J-S67002-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM ALBERT RICHARDS, :
:
Appellant : No. 1741 WDA 2013
Appeal from the Judgment of Sentence September 25, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0006475-2013
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 12, 2014
Appellant, William Albert Richards (“Richards”), appeals from the
judgment of sentence of the Court of Common Pleas, Allegheny County,
following a conviction of receiving stolen property, 18 Pa.C.S.A. § 3925(a).
After a review of the record, we affirm the judgment of sentence, but vacate
the amended order of restitution and remand to the trial court.
A summary of the relevant facts and procedural history is as follows.
In 2012, Richards and Christopher Buckley (“Buckley”) were neighbors in a
duplex and shared a garage that was separated into two sides by a painted
orange line down the middle of the garage. During their time as neighbors,
Richards and Buckley had an acrimonious relationship that resulted in
several disagreements and multiple harassment claims filed by Buckley
against Richards.
*Former Justice specially assigned to the Superior Court.
J-S67002-14
Between June 30, 2012 and July 3, 2012, Buckley and his wife noticed
that several items were missing from a refrigerator and from several large
storage containers located on their side of the garage. On July 12, 2012,
Buckley called the police to report that Richards stole his property. No
charges were filed against Richards at that time.
On March 11, 2013, while Richards was moving out of the duplex,
Buckley saw some of the items he reported missing amidst Richards’
belongings. Specifically, Buckley saw a drill set and several cans of paint
that he noticed were missing from his storage containers in the garage. A
few days after Richards moved, Buckley also discovered his fishing rods that
he noticed were missing the previous summer behind the water heater on
Richards’ side of the garage. Thereafter, Buckley filed a private criminal
complaint against Richards. Richards was charged with two counts of
receiving stolen property.1
On September 25, 2013, the trial court held a bench trial. Buckley
testified that the cans of paint he saw amidst Richards’ belongings were
significant because they did not contain stock colors, but contained colors
that Buckley specifically had mixed at Lowe’s. He also testified that he
believed the drill set was his because it “was the exact same color set size,
and it even matched the box that it originally came in. Like I said, it was a
1
At the beginning of trial, the Commonwealth moved to withdraw the
second count. N.T., 9/25/13, at 2.
-2-
J-S67002-14
brand new set. […] It had never been used. It was still in that same
condition.” N.T., 9/25/13, at 12-13. Richards, on the other hand, testified
that he did not have any of the property that Buckley reported missing. He
testified that his aunt gave him the paint that Buckley discovered and that
he had tools in his garage, including the drill set, because he worked in
construction and used tools.
At the conclusion of testimony, the trial court found Buckley’s
testimony to be credible and found Richards guilty. Richards waived his
right to a presentence report and the trial court proceeded to sentencing
that day. The trial court sentenced Richards to one year of probation and
ordered him to pay restitution. The Commonwealth requested that the trial
court set restitution at $3,050 based on the total value of the items taken.
The trial court stated, “We’re going to have to have a separate restitution
hearing with regard to that. So we’ll leave restitution open for 30 days.
You’ll have to submit to [defense counsel] who then can discuss with her
client the basis for the value. […] Receipts will have to be provided.” Id. at
27. The court concluded the hearing by stating, “You can schedule a
restitution hearing for within the 30 days [], unless they can come to an
amount -- by agreement, which I would suggest that they do because unless
there’s adequate documentation, it’s kind of speculation, and we don’t
speculate.” Id. at 28.
-3-
J-S67002-14
On October 25, 2013, Richards’ appellate counsel filed a notice of
appeal to this Court at 9:49 a.m. At 1:25 p.m., the Assistant District
Attorney received an email from an account belonging to an individual by the
name of Thomas Buckley listing items that Richards allegedly stole from
Buckley, along with amounts owed for each item. The email did not provide
any support or documentation for the amounts owed, but noted in
parentheticals that most of the items listed were brand new. The email was
signed, “Buffalo Bob.” At 2:14 p.m., the Assistant District Attorney filed a
Motion for Modification of Restitution, requesting that restitution be set at
$2,695.90.
On October 29, 2013, the trial court issued an order modifying
restitution, amending the amount of restitution to $3,050.00. The trial court
then issued a restitution court order on October 30, 2013, setting the
amount of restitution to $2,695.00.
On January 28, 2014, Richards filed his statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 On appeal,
Richards raises the following two issues for our review, which we have
reordered for ease of disposition:
1. Did the Commonwealth present sufficient evidence
that the defendant intentionally received stolen
2
On October 30, 2013, the trial court ordered Richards to file a 1925(b)
statement within 21 days or 21 days from receipt of last transcript. In his
1925(b) statement, Richards stated that he received transcripts on January
8, 2014. Therefore, Richards’ 1925(b) statement was timely.
-4-
J-S67002-14
property or that he knew that the property was
stolen?
2. Was the sentence illegal since the sentencing court
increased restitution without jurisdiction, the record
failed to support this speculative increase in
restitution, and due process protections were not
afforded to the defendant when restitution was
increased?
Richards’ Brief at 6.
For his first issue on appeal, Richards argues that the Commonwealth
failed to present sufficient evidence to convict him of receiving stolen
property. Our standard of review in assessing the sufficiency of the
evidence presented is well settled:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all of the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying [the above]
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and
-5-
J-S67002-14
the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing
Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)). “This
standard is equally applicable in cases where the evidence is circumstantial,
rather than direct, provided that the combination of evidence links the
accused to the crime beyond a reasonable doubt.” Commonwealth v. Orr,
38 A.3d 868, 873 (Pa. Super. 2011) (citing Commonwealth v. Cox, 686
A.2d 1279, 1285 (Pa. 1996), cert. denied, 522 U.S. 999 (1997)).
In this case, the trial court found Richards guilty of receiving stolen
property under 18 Pa.C.S.A. § 3925, which provides:
(a) Offense defined.--A person is guilty of theft if
he intentionally receives, retains, or disposes of
movable property of another knowing that it has
been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.
(b) Definition.--As used in this section the word
‘receiving’ means acquiring possession, control or
title, or lending on the security of the property.
18 Pa.C.S.A. § 3925.
A conviction of receiving stolen property requires the Commonwealth
to prove: “(1) the property was stolen; (2) the defendant was in possession
of the property; and (3) the defendant knew or had reason to believe the
property was stolen.” Commonwealth v. Foreman, 797 A.2d 1005, 1011
(Pa. Super. 2002) (citing Commonwealth v. Matthews, 632 A.2d 570,
-6-
J-S67002-14
571 (Pa. Super. 1993)). Richards argues that the Commonwealth failed to
prove these three elements. We will address each element separately.
First, Richards argues that the Commonwealth failed to establish that
Richards stole Buckley’s property. Richards claims that “[t]he only evidence
presented that [he] took [] Buckley’s food items and miscellaneous house
items consisted of [] Buckley’s unfounded accusations that [] Richards must
have taken the items from the garage that multiple people were able to
access.” Richards’ Brief at 36.
Buckley’s testimony at trial established that several items were
missing from the garage he shared with Richards. N.T., 9/25/13, at 7-9.
Buckley testified that the garage was always locked: “there’s a garage door
that we use an automatic opener, but there were two doors. We always
kept ours locked, and [Richards] always kept his locked, especially because
the spring before that he had somebody come after looking for him, so he
always kept it -- he was afraid of that.” Id. at 8. When questioned at trial
regarding who had access to the garage, Richards stated that he, his
girlfriend, Buckley, Buckley’s wife, and the landlord had access to the
garage. Id. at 24.
As our standard of review provides, “[t]he Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.” Helsel, 53 A.3d at 918.
Viewing the evidence in the light most favorable to the Commonwealth as
-7-
J-S67002-14
the verdict winner, we conclude that the evidence is sufficient to support an
inference that Buckley’s property was stolen.
Turning to the second element, Richards contends that “[t]he only
properly linked to [] Richards is a drill set and some cans of paint that []
Buckley alleged belonged to him, but [] Richards believed these items
belonged to him.” Richards’ Brief at 40.
At trial Buckley testified that on the day Richards moved out of his
apartment, he saw a drill set and several cans of paint amidst Richards’
belongings. N.T., 9/25/13, at 11. Buckley testified that the paint cans were
significant because the paint color was not stock, but was a specific color
that he made at Lowe’s. Id. Buckley further testified that he saw this
custom color painted on the walls inside of Richards’ apartment. Id. at 12.
Similarly, the tool set Buckley saw amidst Richards’ belongings was unique
as “[i]t was the exact same color[, a soft chartreuse green and gray cover,]
set size, and it even matched the box that it originally came in.” Id. The
tool set remained unopened and in the same condition as when Buckley
purchased it. Id. at 12-13.
Buckley also testified that he and the landlord discovered his fishing
rods behind Richards’ water heater on Richards’ side of the garage. Id. at
13-14. The fishing rods had lures that were marked with Buckley’s name.
Id. at 14. Buckley testified that he did not place the rods there and that he
-8-
J-S67002-14
previously asked Richards if he had seen them because they were missing.
Id.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that the evidence is sufficient to prove
that Richards possessed Buckley’s property.
Finally, Richards argues that “[n]o evidence was presented that []
Richards knew that the paint cans and the drill set were stolen from []
Buckley.” Richards’ Brief at 44. This Court has held that “the mere
possession of stolen property is insufficient to prove guilty knowledge, and
the Commonwealth must introduce other evidence, which can be either
circumstantial or direct, that demonstrates that the defendant knew or had
reason to believe that the property was stolen.” Foreman, 797 A.2d at
1012 (citing Matthews, 632 A.2d at 571).
At trial, Buckley testified that the items were taken from his side of the
garage, from blue Rubbermaid containers that were labeled with their
contents, sealed, covered with blankets, and stacked. N.T., 9/25/13, at 8-9,
12. Buckley testified that the containers from which the paint was taken
were at the bottom of the stack and required taking two rows of the
containers out to get to them. Id. at 12.
In Commonwealth v. Marrero, 914 A.2d 870 (Pa. Super. 2006), this
Court deemed relevant in establishing guilty knowledge, “the location of the
theft in comparison to the location where the defendant gained possession.”
-9-
J-S67002-14
Id. at 873. “[E]ven if the accused offers an explanation for his possession of
stolen property, the trier of fact may consider the possession as unexplained
if it deems the explanation unsatisfactory.” Id. (citing Foreman, 797 A.2d
at 1012-13). Whether the defendant’s explanation is satisfactory is a
“question[] of fact for the trier of fact.” Commonwealth v. Newton, 994
A.2d 1127, 1133 (Pa. Super. 2010) (citing Commonwealth v. Williams,
362 A.2d 244 (Pa. 1976)).
Richards claimed that he thought the items in question belonged to
him and argues that “he was not trying to hide these items because they
were sitting outside with the rest of his belongings where [] Buckley could
see them.” Richards’ Brief at 44. The trial court, however, determined that
Richards “was not credible in his testimony regarding the paint[ or] the
tools.” Trial Court Opinion, 4/3/14, at 3. This Court will not disturb such a
finding. Accordingly, Richards is not entitled to relief on his sufficiency
claim.3
For his second issue on appeal, Richards claims that “[t]he sentencing
court erred in multiple respects by imposing an illegal sentence of
3
We note that Richards cites to Commonwealth v. Graham, 596 A.2d
1117 (Pa. 1991), for the proposition that “the Commonwealth [cannot]
sustain its burden of proof solely on the fact finder’s disbelief of the
defendant’s testimony.” Richards’ Brief at 42-43. We find this statement of
the law to be inapplicable herein as Richards’ possession of Buckley’s
property in the garage from which the items were taken established
circumstantial evidence that Richards had knowledge that the items were
stolen. Thus, the Commonwealth did not sustain its burden solely on the
fact finder’s disbelief of Richards’ testimony.
- 10 -
J-S67002-14
restitution.” Richards’ Brief at 17. Our well-settled standard of review
provides that “a challenge to a court’s authority to impose restitution is
generally considered to be a challenge to the legality of the sentence.”
Commonwealth v. Gentry, __ A.3d __, 2014 WL 4942271, at *3 (Pa.
Super. Oct. 3, 2014) (citing Commonwealth v. Hall, 994 A.2d 1141, 1143
(Pa. Super. 2010) (en banc), affirmed on other grounds, 80 A.3d 1204 (Pa.
2013)). “Issues relating to the legality of a sentence are questions of law[;
as a result, o]ur standard of review over such questions is de novo and our
scope of review is plenary.” Gentry, 2014 WL 4942271, at *3 (citing
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)).
Richards presents three separate arguments in support of his claim
that the trial court imposed an illegal sentence of restitution: (1) the trial
court modified the restitution order without jurisdiction; (2) the record did
not contain adequate support for the increase in restitution, and the amount
of restitution was therefore speculative; and (3) the court violated Richards’
due process rights by increasing restitution without a hearing or opportunity
to challenge the evidence. Id. at 19-35. We will address each of these
arguments separately.
First, Richards asserts that the trial court did not have jurisdiction to
modify the restitution portion of the judgment of sentence after he filed an
appeal to this Court. Richards’ Brief at 20. We begin by noting that trial
courts are granted flexibility to amend orders, including orders of restitution.
- 11 -
J-S67002-14
Section 1106(c) of the Pennsylvania Crimes Code provides trial courts with
the authority to issue, alter, or amend restitution orders. 18 Pa.C.S.A. §
1106(c). Subsection (c)(3) specifically provides:
(3) The court may, at any time or upon the
recommendation of the district attorney that is based
on information received from the victim and the
probation section of the county or other agent
designated by the county commissioners of the
county with the approval of the president judge to
collect restitution, alter or amend any order of
restitution made pursuant to paragraph (2),
provided, however, that the court states its reasons
and conclusions as a matter of record for any change
or amendment to any previous order.
18 Pa.C.S.A. § 1106(c)(3) (emphasis added).
Richards does not dispute the trial court’s authority to alter orders
under section 1106(c)(3); rather, Richards argues that section 1106(c)(3)
must be read in conjunction with Rule 1701(a) of the Pennsylvania Rules of
Appellate Procedure, which provides, “[e]xcept as otherwise prescribed by
these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may longer proceed further
in the matter.” Id.; Pa.R.A.P. 1701(a).
Richards also cites to Commonwealth v. Weathers, 95 A.3d 908
(Pa. Super. 2014), wherein a panel of this Court was presented with a
similar situation to the one presented herein. In Weathers, the appellant
was charged with one count of criminal mischief following an incident
wherein the appellant threw a brick through a car window. Id. at 909. On
- 12 -
J-S67002-14
March 4, 2013, at the conclusion of a bench trial, the trial court found the
appellant guilty. Id. at 910. At the sentencing hearing held on March 11,
2013, the Commonwealth requested $530.00 for restitution. Id. However,
the Commonwealth did not possess a receipt to prove the amount of the
repairs to support its request for restitution. Id. As a result, “the parties
agreed to leave the restitution amount open until the Commonwealth
received a receipt.” Id. The trial court then sentenced the appellant to one-
year probation and restitution in the amount of $1.00, “which was to be
amended within thirty days upon the Commonwealth’s providing a receipt.”
Id.
After the trial court in Weathers denied the appellant’s post-sentence
motion challenging the weight of the evidence, the appellant filed a timely
notice of appeal on April 19, 2013 – more than 30 days after the original
sentencing hearing. On June 3, 2013, “the trial court issued an amended
order of restitution in the amount of $530.00.” Id. On appeal to this Court,
the appellant argued that the trial court improperly entered the restitution
order more than 30 days after sentencing. Id. at 911. This Court agreed
with the appellant, stating:
Despite the ‘at any time’ language of section
1106(c)(3), we are compelled to conclude that in this
case the trial court did not have jurisdiction to
modify the order of restitution due to Appellant’s
timely filing of a notice of appeal. […] After the trial
court denied Appellant’s post-sentence motion,
Appellant filed a timely notice of appeal on April 19,
- 13 -
J-S67002-14
2013. At that point, the trial court no longer had
jurisdiction to proceed in this matter. See Pa.R.A.P.
1701(a) (‘Except as otherwise prescribed by these
rules, after an appeal is taken or review of a
quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in
the matter.’); Commonwealth v. Ledoux, 768
A.2d 1124, 1125 (Pa. Super. 2001) (‘Jurisdiction is
vested in the Superior Court upon the filing of a
timely notice of appeal.’).[] Nevertheless, the trial
court entered an order amending the amount of
restitution on June 3, 2013. Despite the flexibility
granted to the court to amend orders of restitution
under section 1106(c)(3), here the court could not
modify the order of restitution during a period when
it did not have jurisdiction over the case.
Id. at 912 (footnote omitted). As a result, we vacated the trial court’s
amended order of restitution, with instructions that “the trial court may
subsequently amend the order of restitution when it regains jurisdiction,
following the conclusion of this appeal, provided that the court states its
reasons for doing so as a matter of record.” Id. at 913.
Although both Richards and the Commonwealth posit that Weathers
is indistinguishable from the instant matter, we disagree. In Weathers, the
appellant allowed the 30-day period that the trial court left open for
restitution purposes to pass before filing a notice of appeal to this Court.
The trial court amended the order of restitution 84 days after sentencing and
more than a month after the appellant filed a notice of appeal to this Court.
In the case at bar, Richards filed his notice of appeal on the thirtieth day,
prior to the finalization of the sentencing order.
- 14 -
J-S67002-14
It is well-settled that “[w]ith limited exceptions, Pennsylvania law
permits only appeals from final orders.” Commonwealth v. Sabula, 46
A.3d 1287, 1291 (Pa. Super. 2012); Pa.R.A.P. 341. Rule 341 of the
Pennsylvania Rules of Appellate procedure provides that “[a] final order is
any order that: (1) disposes of all claims and of all parties; or (2) is
expressly defined as a final order by statute; or (3) is entered as a final
order pursuant to subdivision (c) of this rule.” Id. In this case, there was
no final order from which Richards could appeal, as the trial court expressly
left the question of restitution open for a period of 30 days. “In the context
of criminal proceedings, an order of ‘restitution is not simply an award of
damages, but, rather, a sentence.’” Commonwealth v. Atanasio, 997
A.2d 1181, 1182-83 (Pa. Super. 2010) (citing Commonwealth v. C.L., 963
A.2d 489, 494 (Pa. Super. 2008)). Richards filed the appeal on the thirtieth
day. At that time, the trial court had not entered a final order. Thus, we
find Richards’ appeal to be premature.
Under Rule Pa.R.A.P. 905(a)(5), however, a premature appeal is
subsequently perfected when a final, appealable order is entered. Pursuant
to Rule 905(a)(5), the appeal is “treated as filed after such entry and on the
day thereof.” Id. Thus, although Richards’ appeal was premature, the
appeal was perfected on October 29, 2013, after the trial court entered a
final, appealable order. Richards’ claim that the trial court did not have
- 15 -
J-S67002-14
jurisdiction to amend the order after he filed an appeal is therefore without
merit.
Richards argues that in the alternative, the sentencing court did not
have jurisdiction to enter the order because the order was entered four to
five days after the 30 day deadline. Richards’ Brief at 22. We also disagree
with this argument. As Richards states in his brief, 42 Pa.C.S.A. § 5505
provides that a sentencing court has 30 days to modify its order if no appeal
is taken. Id. at 21. Section 5505, however, “applies only to final orders and
does not apply to interlocutory orders.” Commonwealth v. Williams, 893
A.2d 147, 149 (Pa. Super. 2006). As the order of sentence in this case was
not a final order, the trial court was not limited by the 30 day jurisdictional
limit of section 5505. Accordingly, we conclude that the trial court had
jurisdiction to enter the modified order beyond the thirtieth day.
For his second argument, Richards claims that the increase in
restitution was speculative. Richards’ Brief at 24. Richards argues that the
trial court improperly “relied on a hearsay email signed by someone named
‘Buffalo Bob,’ that included a list of items allegedly stolen, along with prices.
Most of the items were never discussed at trial or sentencing and no
information was presented how ‘Buffalo Bob’ obtained pricing information.”
Id. at 24-25. Richards further challenges the trial court’s failure to review
“bills, receipts, or any other legitimate supporting documentation about
- 16 -
J-S67002-14
pricing and depreciation, and without stating any reasons justifying the
modification.” Id. at 25.
The trial court stated in its opinion that “[a]t the writing of this
Opinion, it was determined that the restitution should have been entered for
$2,695 and it was by clerical error that an order was entered for $3,050.
After consultation with Ms. Phillips (defense counsel), the Restitution order
was correctly set at $2,695.” Trial Court Opinion, 4/3/14, at 1. The trial
court, however, did not provide any explanation or justification for the
amount of restitution ordered.
At sentencing, the trial court expressly stated, “[r]eceipts will have to
be provided […] and we’re not an insurance policy, so this isn’t replacement
cost. This will be whatever -- I guess for lack of a better phrase --
depreciated value of these items would be.” N.T., 9/25/13, at 27-28. The
trial court further provided that “unless there’s adequate documentation, it’s
kind of speculation, and we don’t speculate.” Id. at 28. A review of the
record reveals no support for the Commonwealth’s request or for the trial
court’s order. Even if the trial court relied upon the email that the
Commonwealth attached to its motion for modification of restitution, there is
no explanation for the restitution amount of $2,695. The value of the items
listed in the email totals $2,974.87. Thus, the email does not provide the
basis of the trial court’s order.
- 17 -
J-S67002-14
“Although an award of restitution lies within the discretion of the [trial]
court, it should not be speculative or excessive and we must vacate a
restitution [o]rder which is not supported by the record.” In Interest of
Dublinski, 695 A.2d 827, 829 (Pa. Super. 1997) (citing Commonwealth v.
Balisteri, 478 A.2d 5, 9 (Pa. Super. 1984)). In this case, the
Commonwealth did not present any documentation supporting its request for
restitution aside from the email listing items with an assigned value. This
email does not provide any information as to where the pricing information
was obtained or whether the prices listed reflect the replacement cost, which
the trial court specifically prohibited, or the depreciated value. As a result,
we conclude that the trial court’s restitution order is not supported by the
record.
Richards further argues, and we agree, that the trial court violated his
due process rights when it substantially increased the amount of restitution
owed without scheduling a hearing or giving Richards the opportunity to
challenge the restitution evidence presented by the Commonwealth.
Richards’ Brief at 30. In its opinion, the trial court provided the following
explanation:
[T]he restitution portion of the sentence was ‘left
open’ for 30 days to have a hearing unless the
attorneys agreed to an amount. On the 30th day,
the court’s minute clerk, Ms. Buchewicz, received the
Motion to Amend and personally called Ms. Phillips
(defense counsel) to ask if the matter needed a
hearing or if the amount was agreed to by the
- 18 -
J-S67002-14
defendant. It is Ms. Buchewicz’s specific recollection
that Ms. Phillips agreed to the amendment and, as
such, a hearing was not necessary. The Order was
entered on October 30, 2013.
Trial Court Opinion, 4/3/14, at 3.
“It is black letter law in this jurisdiction that an appellate court cannot
consider anything which is not part of the record in the case.”
Commonwealth v. McBride, 957 A.2d 752, 757 (Pa. Super. 2008) (citing
Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)).
There is no evidence in the record establishing that a phone conversation
between the trial court’s staff and counsel for Richards occurred, nor is there
any evidence that counsel for Richards consented to the amount. Thus, this
Court may not properly consider this information.
“[A]lthough it is mandatory under section 1106(c) to award full
restitution, it is still necessary that the amount of the ‘full restitution’ be
determined under the adversarial system with considerations of due
process.” Atanasio, 997 A.2d at 1183 (quoting Commonwealth v. Ortiz,
854 A.2d 1280, 1282 (Pa. Super. 2004)). In this case, the record reflects
that Richards never received the opportunity to challenge the restitution
evidence presented by the Commonwealth. We therefore conclude that the
trial court violated Richards’ due process rights. As a result, we vacate the
restitution order and remand to the trial court for it to determine the amount
of restitution owed by Richards.
- 19 -
J-S67002-14
Judgment of sentence affirmed. October 30, 2013 order of restitution
vacated. Case remanded to the trial court for proceedings consistent with
this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
- 20 -