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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEREMIAH D. HELLER
Appellant No. 2010 WDA 2015
Appeal from the Order dated November 18, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007331-2014
BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 23, 2016
Appellant, Jeremiah Heller, appeals from an order dated November 18,
2015, that directs his payment of restitution relative to items stolen by
Appellant from the home of his girlfriend and his girlfriend’s grandfather.
We affirm.
On November 20, 2014, Appellant pleaded guilty to one count of
defiant trespasser – actual communication to actor, and two counts of theft
by unlawful taking – movable property.1 That same day, on one count of
theft by unlawful taking, Appellant was sentenced to five years’ probation
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3503(b)(1)(i) and 3921(a), respectively.
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and ordered to pay restitution in the amount of $83,000.00; he received no
further penalty on the remaining two counts.
On December 12, 2014, Appellant moved for a restitution hearing; on
December 17, 2014, the trial court scheduled a hearing for January 28,
2015. During that hearing, the trial court admitted that it “can’t answer the
fundamental question why was it $83,000,” it “[did]n’t know how we came
up with that amount,” and “[t]here was nothing put on the record”
explaining the amount. N.T., 1/28/15, at 9-10. The trial court granted a
continuance in order “to make a more informed decision.” Id. at 14.
After the hearing was rescheduled multiple times, it ultimately was
convened on September 21, 2015. On November 18, 2015, the trial court
ordered Appellant to pay $25,000.00 in restitution, rather than the
$83,000.00 originally ordered. This appeal followed.
Appellant raises one issue for our review:
WHETHER THE TRIAL COURT ERRED IN SENTENCING
APPELLANT PURSUANT TO 18 Pa. C.S.A. §1106 BY REQUIRING
HIM TO PAY $25,000.00 IN RESTITUTION WHEN THE VALUE OF
ITEMS REFERENCED WERE SPECULATED UPON AND THE ORDER
WAS NOT SUPPORTED BY THE RECORD?
Appellant’s Brief at 4.
Regarding challenges to a trial court’s imposition of restitution,
appellate courts have drawn a distinction between cases where the challenge
is directed to the trial court’s authority to impose restitution and cases
where the challenge is premised upon a claim that the restitution ordered is
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excessive. Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006).
“When the court's authority to impose restitution is challenged, it concerns
the legality of the sentence; however, when the challenge is based on
excessiveness, it concerns the discretionary aspects of the sentence.” Id.
“[C]hallenges concerning the amount of restitution involve the discretionary
aspects of sentencing.” Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa.
Super. 2007).
A challenge to the discretionary aspects of a sentence is not
appealable as of right. Commonwealth v. Luis Colon, 102 A.3d 1033,
1042–1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).
Therefore, before we exercise jurisdiction to reach the merits of Appellant’s
issue, we must engage in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons relied upon for
allowance of an appeal with respect to the discretionary aspects of his
sentence; and (4) whether the concise statement raises a substantial
question whether the sentence is inappropriate under the Sentencing Code.
Id. Only if the appeal satisfies each of these four requirements may we
proceed to decide the substantive merits of the case. Id.
Instantly, Appellant filed a timely notice of appeal and properly
preserved his issue in his post-sentence motion. Additionally, Appellant’s
brief contains a concise statement of the reasons on which he relies.
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Appellant’s Brief at 10-11.2 Finally, in Commonwealth v. Pappas, 845
A.2d 829, 842 (Pa. Super. 2004), this Court held that a substantial question
is raised when an appellant argues that a sentence of restitution was not
supported by the record. Thus, we will consider the substantive merits of
Appellant’s sentencing claim.
A trial court has discretion when it sentences a defendant:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2015), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted). Here, the trial court
included a restitution requirement as part of Appellant’s sentence, as
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2
Appellate Rule 2119(f) requires that this statement provide “the reasons
relied on for allowance of appeal.” Appellant’s statement cites
Commonwealth v. Walker, 666 A.2d 301, 307 (Pa. Super. 1995), for the
proposition “that a substantial question is raised when a defendant argues
that restitution was not supported by the record.” The Rule 2119(f)
Statement is otherwise bereft of any analysis or explanation. Nevertheless,
in light of the argument made in the remainder of Appellant’s brief, we
decline to dismiss this appeal on the basis of the statement’s inadequacy.
See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)
(this Court may review an appellant’s discretionary aspects of sentence
claims in instances where the Commonwealth has not objected to his or her
failure to include an adequate Rule 2119(f) statement in the appellate brief).
In the current appeal, the Commonwealth has not raised any objections in
its brief to the adequacy of Appellant’s Rule 2119(f) Statement.
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mandated by the Sentencing Code, 42 Pa. C.S. § 9721(c) (“the court shall
order the defendant to compensate the victim of his criminal conduct for the
damage or injury that he sustained”). Where, as here, the crime is theft of
property, the Crimes Code, 18 Pa. C.S. § 1106(a), provides that “the
offender shall be sentenced to make restitution in addition to the
punishment prescribed therefor.”
The statute mandates that the court order “full restitution,” 18 Pa. C.S.
§ 1106(c)(1), and requires the district attorney to recommend an amount
based on information received from the victim or “other available
information,” id. § 1106(c)(4). In setting the restitution amount, the trial
court then “[s]hall consider the extent of injury suffered by the victim, the
victim’s request for restitution as presented to the district attorney in
accordance with paragraph (4) and such other matters as it deems
appropriate.” Id. § 1106(c)(2)(i). We have explained:
Although restitution does not seek, by its essential nature, the
compensation of the victim, the dollar value of the injury
suffered by the victim as a result of the crime assists the court in
calculating the appropriate amount of restitution. A restitution
award must not exceed the victim's losses. A sentencing court
must consider the victim’s injuries, the victim’s request as
presented by the district attorney and such other matters as the
court deems appropriate. The court must also ensure that the
record contains the factual basis for the appropriate amount of
restitution. In that way, the record will support the sentence.
Pleger, 934 A.2d at 720 (citations omitted).
Appellant argues that the amount of restitution ordered by the trial
court — $25,000.00 — was based upon speculation and “not supported by
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the record.” Appellant’s Brief at 4. After a thorough review of the record,
we disagree.
During the restitution hearing, the Commonwealth presented two
witnesses. The first was Pamela Mervos, the mother of one victim and the
daughter of the other, who recounted what was taken from the home.
According to Ms. Mervos, Appellant stole “a diamond pinkie ring,” gold
chains, money, “high school championship rings, a Steeler championship
ring,” “an 18-inch rope gold chain,” “six gold bracelets,” “various patterns,”
U.S. currency, and “a gold necklace with [a] gold cross.” N.T., 9/21/15, at
12. Ms. Mervos was able to provide detailed descriptions of the stolen
jewelry. Id. at 13. Ms. Mervos also provided written lists of the stolen
items; she had previously given these lists to law enforcement. Id. at 12-
13; Exs. 1-2. Additionally, she supplied seven photographs of herself or her
father wearing the jewelry, as proof of its existence and of ownership. N.T.,
9/21/15, at 14; Exs. 3-9.
The Commonwealth’s second witness was David Lykens, who testified
to having more than 30 years’ experience as a jeweler. N.T., 9/21/15, at
18. Mr. Lykens was not called as an expert, but he offered testimony
quantifying the value of the stolen items. Based on the descriptions
provided by Ms. Mervos, Mr. Lykens referenced examples from industry
guidebooks, which Ms. Mervos confirmed were approximate substitutes for
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the stolen jewelry. Id. at 18-19. Mr. Lykens estimated that the total value
of the stolen jewelry was $61,445.00. Id. at 22; Exs. 10-11.
After taking the matter under advisement, the trial court set the
amount of restitution at $25,000.00. In its opinion, the trial court stated
that it did not fully accept Mr. Lykens’ estimated value of $61,445.00,
because it was based on testimony by Ms. Mervos about details of the
jewelry that were not proven to the court’s satisfaction and that, as a result,
would have caused Mr. Lykens to give the items a higher value than was
appropriate. The trial court explained:
The estimate was solely influenced by Ms. Mervos. Not that the
Court disbelieved her regarding the items taken, the Court is
simply not convinced that her description of the key determining
factors (quality of gold, length of item, etc.) is as precise as
what may have led to a higher figure. In essence, the Court
believed some, but not all, of what Ms. Mervos said. This finding
flowed naturally to not believing everything the jeweler/expert
said.
Trial Court Opinion, 4/25/16, at 4. The trial court therefore discounted Mr.
Lykens’ estimate to $25,000.00 (a reduction of nearly 60%). We find no
error in the trial court’s decision.
Reiterating the holding of Pleger, we stated the following in
Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010):
When fashioning an order of restitution, the lower court must
ensure that the record contains the factual basis for the
appropriate amount of restitution. Commonwealth v. Pleger,
934 A.2d 715, 720 (Pa.Super.2007). The dollar value of the
injury suffered by the victim as a result of the crime assists the
court in calculating the appropriate amount of restitution. Id.
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The amount of the restitution award may not be excessive or
speculative.
Here, the record indicates that the trial court relied on the best factual
evidence that was available in valuing the stolen items, while taking care
that the amount not be excessive or speculative.
Appellant complains that the estimate by Mr. Lykens on which the trial
court relied lacked the precision of a formal appraisal, but, since the items
were stolen, no such appraisal was available or possible. Appellant provided
no estimate or evidence of his own regarding the value of the stolen jewelry
and relied primarily on an argument that the value must have been low
because the victims’ homeowner’s insurance policy contained a rider that
insured the jewelry for only $500.00. N.T., 9/21/15, at 16.
The trial court based its decision on the evidence that was presented
to it: the court heard testimony from a victim to determine what was stolen,
heard testimony from a jeweler estimating the value of those items, and
then acted within its province as a fact-finder to make credibility
determinations regarding the evidence that it heard. In doing so, the trial
court was “free to believe all, part, or none of the evidence,”
Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). We are
bound by the trial court’s credibility determinations. Commonwealth v.
Baumhammers, 92 A.3d 708 (Pa. 2014). The fact that the court
discounted Mr. Lykens’ estimate by 60% shows that the court carefully
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considered the amount of restitution it would impose. We find no error or
abuse of discretion by the trial court.
Appellant also argues that the restitution award is too high because
the trial court “failed to fully consider Appellant’s ability to pay $25,000.00 in
restitution.” Appellant’s Brief at 19. In this regard, Appellant notes that he
presented testimony that he had a limited ability to pay restitution because
he was 25 years old and working for his brother’s landscaping business
approximately 40 hours per week, earning $12.00 per hour. N.T., 9/21/15,
at 27, 29. Contrary to Appellant’s argument, however, the trial court could
not reduce the restitution award on the basis of this evidence. Rather, the
court had to order restitution, “[r]egardless of the current financial
resources of the defendant, so as to provide the victim with the fullest
compensation for the loss.” 18 Pa.C.S. § 1106(c)(1)(i) (emphasis added).
Evidence about Appellant’s ability to pay restitution thus has no bearing on
the final amount of restitution ordered. See Commonwealth v. Rush, 909
A.2d 805, 811 (Pa. Super. 2006) (citing Commonwealth v. Marshall
Colon, 708 A.2d 1279, 1282 (Pa. Super. 1998)) (“the court need not
consider the defendant’s ability to pay at the time of imposing restitution”). 3
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3
The contrary cases cited by Appellant — Commonwealth v. Fuqua, 407
A.2d 24 (Pa. 1987); Commonwealth v. Valent, 463 A.2d 1127, 1128 (Pa.
Super. 1983); and Commonwealth v. Wood, 446 A.2d 948 (Pa. Super.
1982) — predate addition of the phrase “[r]egardless of the current financial
resources of the defendant” to Section 1106 in 1995. Similarly, the one
(Footnote Continued Next Page)
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Because the amount of restitution ordered by the trial court was
supported by the record and not manifestly unreasonable, we find no basis
to disturb the award.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
_______________________
(Footnote Continued)
later opinion quoted by Appellant, Commonwealth v. Wright, 722 A.2d
157, 159 (Pa. Super. 1998), is referenced for this quotation from pre-1995
precedent:
[A] court “must make sure that the amount awarded not only
does not exceed damages to the victim, but also does not
exceed the [appellant's] ability to pay.” Commonwealth v.
Torres, 396 Pa.Super. 573, 579-81, 579 A.2d 398, 401 (1990)
(quoting Commonwealth v. Celane, 311 Pa.Super. 93, 102,
457 A.2d 509, 514 (1982)).
That pre-1995 precedent no longer is applicable.
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