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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.T.P., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: K.T.P., A MINOR
No. 1347 WDA 2018
Appeal from the Dispositional Order Entered August 16, 2018
In the Court of Common Pleas of Westmoreland County
Juvenile Division at No.: CP-65-JV-0000351-2016
BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 22, 2019
Appellant K.T.P. appeals from the August 16, 2018 dispositional order
of the Court of Common Pleas of Westmoreland County ("juvenile court"),
which adjudicated him delinquent of burglary (not adapted for overnight
accommodations, no person present), criminal mischief (intentionally
damaging the real or personal property of another), and theft by unlawful
taking,' and directed him to pay $40,425.30 in restitution. Upon review, we
affirm.
The facts and procedural history of this case are undisputed.2 On
October 5, 2016, the Commonwealth filed a delinquency petition against
Appellant, alleging that, on June 29, 2016, when Appellant was seventeen
' 18 Pa.C.S.A. §§ 3502(a)(4), 3304(a)(5), and 3921(a), respectively.
2 Unless otherwise noted, these facts are taken from the trial court's November
30, 2018 opinion. See Trial Court's Opinion, 11/30/18 (unpaginated).
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years old, he and two other juveniles entered the locked premises of the
Latrobe Speedway. There, they broke into buildings and vandalized property
by spray painting graffiti on the walls and windows, kicking in doors, carving
symbols into a conference table, and throwing bottles of soda onto the ground.
The juvenile court held adjudicatory hearings on February 1, 2018 and
May 9, 2018. At the February 1, 2018 hearing, the Commonwealth presented
the testimony of Kathleen and Dennis Bates, husband and wife, and George
Teslovich. Mr. and Mrs. Bates lease the Latrobe Speedway. N.T. Adjudication
Hearing, 2/1/18, at 4. Mr. Bates estimated that the juveniles caused $541.42
in damages to his wife's and his personal property. Id. at 27-28. Mr.
Teslovich testified that he was the president of the corporation owning and
operating Latrobe Speedway. When asked whether he had an estimate for
the damage caused by the juveniles, Mr. Teslovich replied "I compiled one. I
got numbers from different suppliers, different vendors, different contractors
to replace the stuff that was missing and the stuff that was damaged." Id. at
34. He further testified that the damage exceeded $5,000.00. Id.
Following the May 9, 2018 hearing, the juvenile court adjudicated
Appellant delinquent of burglary not adapted for overnight, criminal mischief
and theft by unlawful taking. On August 16, 2018, the juvenile court held a
dispositional hearing, at which Mr. Teslovich testified about monetary losses
he incurred because of the juveniles' criminal acts committed at Latrobe
Speedway on June 29, 2016. Specifically, for purposes of seeking restitution,
Mr. Teslovich provided receipts, estimates, and bills for the repairs to the
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building located at Latrobe Speedway and items within the building. See N.T.
Dispositional Hearing, 8/16/18, at 6-23. Among other things, Mr. Teslovich
testified that he received an estimate for $32,194.38 from Inselmini
Construction company ("Inselmini") and the Commonwealth moved for the
admission into evidence of Inselmini's estimate. Appellant did not object. Id.
at 17. Mr. Teslovich also testified that he had $215 in damages for "paint, PB
blaster, sign, rug, fan, and gate." Id. at 23. He further testified that he
incurred $500 in costs to clean the premises before he "could get started on
any repairs." Id. Mr. Teslovich also testified that he suffered $1,000.00 in
revenue losses caused by "inoperable conditions" following the incident at
issue. Id. Appellant's counsel did not object to the introduction into evidence
of Mr. Teslovich's claimed losses.
On cross-examination, Mr. Teslovich acknowledged that, despite
receiving an estimate from Inselmini, he did not engage Inselmini to repair
the damage. Id. at 25-26. Mr. Teslovich testified:
If I recall, going back 2 years in time, [Inselmini] wanted to come
in, and it was going to take them, like, 90 days or something to
do it, 60 days, whatever the time frame was, and we didn't have
the availability to have [Inselmini] do it. So I had [Inselmini] do
some of the repairs, and as we went along, we did a lot of the
repairs from different vendors when we had a rain -out or
something like that. We just - we're a seasonal operation. We've
only run 8 races a year there. I just can't lose that time.
Id. at 26. Thereafter, Appellant and one of his co-defendants were called to
the stand to testify. Following their testimony, Appellant's counsel objected
to Mr. Teslovich's claim for $32,194.38 in damages. Id. at 39-40. In so
doing, Appellant's counsel asserted that the amount was "purely speculative,"
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because it was "an estimate." Id. at 41. Appellant's counsel argued that the
juvenile court was not permitted to "take into consideration an estimate and
use that amount to frame a restitution award to the victim." Id. Appellant's
counsel also, for the first time, challenged the $215, $500, and $1,000.00 in
losses claimed by Mr. Teslovich. Id. at 41-42. In total, Appellant's counsel
objected to $33,909.38 in losses claimed by Mr. Teslovich. The juvenile court
ultimately placed Appellant on probation and directed him to pay $40,425.30
in restitution to Mr. Teslovich, jointly and severally with his co-defendants.3
The juvenile court also directed Appellant to pay $541.42 in restitution to Mr.
and Mrs. Bates. Id. at 60-61. In support of its restitution order, the court
reasoned:
Obviously, I have to take into account both the nature of
the crime and the earning capacity of the juveniles. The nature
of the crime is very serious. I hear Mr. Teslovich testify. He's
come to court over and over again, and he's testified about the
unbelievable amount of damage that was done in this case, and
the fact that he's had to pay this money out of his own pocket,
that there's no insurance coverage. I don't know if insurance
coverage is relevant or not when you're determining a restitution
claim, but for him, it's very relevant. He has to pay it out of pocket
and has come to court and deal with this situation for 2 years. It
just - - it's never okay to break in and do vandalism, but probably
many people, if not most, have done that at - - gone corning or
have thrown an egg or something. I don't condone that, but I
understand that, but to go in and create the amount of damage,
I'm surprised that Mr. Teslovich is even able to operate his
business after the amount of damage that was done here.
And the - - I've heard no evidence that neither of these
juveniles are able to work. Is it possible that they would - - one
would be required to pay the entire amount, which by the way is
$40,425.30? I guess it is if it's joint and several, but the greater
3 The award of $40,425.30 in restitution did not include the $1,000.00 Mr.
Teslovich claimed for loss of revenue. However, the award included other
amounts that are not at issue in this appeal.
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likelihood is that they would not have to pay the entire amount
because each of them - - I don't see a reason why each of them
can't contribute. [Co-defendant] has a job, a pretty good job. I
don't see why [Appellant] can't work either. He says he has a
herniated disc. He hasn't brought forth any evidence, but he has
done some work in the past. He does have some training so it's
a lot of money, but it's a lot of damage that they caused. . . .
The reason for my disposition is to hold the juvenile
accountable, to address his actions with regard to the juvenile acts
for which he was adjudicated, to teach him positive and
appropriate peer relations, to protect the victim, to address poor
decision making and impulse control, and to address problems
with criminal thinking and healthy relationships.
Id. at 54-56. Appellant timely appealed. The juvenile court directed Appellant
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant complied, raising several assertions of error. In response, the trial
court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant argues only that "the amount of restitution ordered
by the court was speculative and/or excessive as it was not supported by the
record and said evidence was not presented at adjudication hearing."45
4 To the extent Appellant argues that the juvenile court erred in conducting
the restitution hearing after the adjudication hearing, the argument is waived
because Appellant does not develop it in the argument section of his brief or
provide any meaningful analysis. See Pa.R.A.P. 2119(a), (b); In re W.H., 25
A.3d 330, 339 n.3 (Pa. Super. 2011) (noting that issues are waived if appellate
brief fails to provide meaningful discussion with citation to the record and
relevant authority), appeal denied, 24 A.3d 364 (Pa. 2011);
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) ("[I]t is an
appellant's duty to present arguments that are sufficiently developed for our
review. The brief must support the claims with pertinent discussion, with
references to the record and with citations to legal authorities.") (citations
omitted), appeal denied, 940 A.2d 362 (Pa. 2008).
5 Our review of the record indicates that the juvenile court imposed restitution
herein under Section 6352(a)(5) of the Juvenile Act, 42 Pa.C.S.A. §
6352(a)(5). Consequently, we decline Appellant's invitation to decide this
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Appellant's Brief at 4. Appellant essentially argues that the restitution award
for $40,425.30 is excessive because it is premised on estimates. Id. at 8. In
particular, Appellant asserts that the $32,194.38 estimate from Inselmini, the
$215 claim for paint and blaster, and the $500 claim for cleaning services are
speculative because Mr. Teslovich did not provide any receipts or cancelled
checks to substantiate the amounts.
Because "the Juvenile Act grants to the court broad discretion in
disposition," we review a dispositional order for an abuse of discretion.
Commonwealth v. K.M.-F., 117 A.3d 346, 350 (Pa. Super. 2015) (quoting
In the Interest of A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (en banc).
Section 6352(a)(5) provides that, once a child is adjudicated delinquent,
the court may make any of the following orders of disposition
determined to be consistent with the protection of the public
interest and best suited to the child's treatment, supervision,
rehabilitation and welfare, which disposition shall, as appropriate
to the individual circumstances of the child's case, provide
balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the
development of competencies to enable the child to become a
responsible and productive member of the community:
[o]rdering payment by the child of reasonable amounts of money
as fines, costs, fees or restitution as deemed appropriate as part
of the plan of rehabilitation considering the nature of the acts
committed and the earning capacity of the child, including a
contribution to a restitution fund.
case under Section 6352(a)(6), which provides that "[a]n order of terms of
probation may include . . restitution
. . not in excess of actual damages
. .
caused by the child which shall be paid from earnings of the child received
through participation in a constructive program of service or education
acceptable to the victim.") (emphasis added).
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42 Pa.C.S.A. § 6352(a)(5).
In In re M.W., 725 A.2d 729 (Pa. 1999), our Supreme Court considered
the juvenile court's authority to award restitution under Section 6352(a)(5).
The Court observed that, in an adult criminal proceeding, "restitution may be
imposed either as a direct sentence, or as a condition of probation. When
imposed as a sentence, the injury to property or person for which restitution
is ordered must directly result from the crime. However, when restitution is
ordered as a condition of probation, the sentencing court is accorded the
latitude to fashion probationary conditions designed to rehabilitate the
defendant and provide some measure of redress to the victim." M. W., 725
A.2d at 732 (citations omitted). Thus, when restitution is imposed as a
condition of probation, the trial court is granted "the flexibility to determine
all the direct and indirect damages caused by a defendant and then permit the
court to order restitution so that the defendant will understand the
egregiousness of his conduct, be deterred from repeating this conduct, and be
encouraged to live in a responsible way." Id. Simply put, "the requirement
of a nexus between the damage and the offense is relaxed where restitution
is ordered as a condition of probation." Id. Our High Court in M.W. ruled
that the principles applicable to restitution imposed as a condition of probation
rather than as a direct sentence were applicable to Section 6352(a)(5). The
Court reasoned:
the rehabilitative policy of the Juvenile Act's restitution provision
corresponds to that which supports the imposition of restitution
as a condition of probation in a criminal case. Section 6352,
unlike the provision of the Crimes Code providing for restitution
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as a condition of sentence, does not contain language
specifically requiring that the loss or injury be a direct
result of the juvenile's wrongful conduct. Consistent with the
protection of the public interest and the community, the
rehabilitative purpose of the Juvenile Act is attained through
accountability and the development of personal qualities that will
enable the juvenile offender to become a responsible and
productive member of the community. See 42 Pa.C.S.A. §
6301(b)(2). Thus, the policies underlying the Juvenile Act and its
restitution provision, as well as the plain language of Section
6352, serve to invest the juvenile court with a broad measure of
discretion to apportion responsibility for damages based upon the
nature of the delinquent act and the earning capacity of the
juvenile.
M. W., 725 A.2d at 732-33 (emphases added). In In re D.G., 114 A.3d 1091
(Pa. Super. 2015), the appellant challenged the juvenile court's restitution
award, asserting that "there was no evidence to support the amount of
restitution required," and that "the court accepted the uncorroborated,
conclusory receipts as accurate." D.G., 114 A.3d at 1097 (brackets omitted).
We disagreed, holding that "the amount of restitution ordered is supported by
evidence and consistent with the testimony of the victim as well as the
purposes of the Juvenile Act." We noted that the victim filled out a restitution
claim form, provided his accounting, and testified at length as to the various
damages he suffered, including the repair of the doors and frame, the ADT
alarm, the doorknobs, and the broken windows. Id. at 1097-98. We also
noted that the juvenile court "has broad discretion in awarding restitution."
Id. at 1098.
Instantly, based upon our review of the record, as detailed above, and
consistent with D.G., we conclude that the trial court did not abuse its
discretion in awarding to Mr. Teslovich $40,425.30 in restitution to be paid
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jointly and severally by Appellant and his co-defendants. The record supports
the amount of restitution because Mr. Teslovich provided estimates and
accounting of his losses at the dispositional hearing. Additionally, as the trial
court explained:
[Appellant] and his [co-defendants] were found to have
committed the delinquent acts which caused the damages
sustained by the victims. The victims testified at length about the
damage to their property and, without objection, the amounts of
damage. Mr. Teslovich provided the [juvenile] court with receipts
and an itemized estimate in support of his testimony, and these
were admitted without objection. The court found the victims to
be credible and the costs to be reasonable.
While the [juvenile] court acknowledges that the amount of
restitution ordered in this matter is quite high, it is an accurate
reflection of the amount of damage caused by [Appellant] and his
[co-defendants]. By ordering that the total amount of restitution
be held jointly and severally between [Appellant] and his [co-
defendants], the court is holding the juveniles responsible for their
actions and requiring that the victims be fully compensated in
accordance with the rehabilitative purpose of the [Juvenile] Act.
Trial Court Opinion, 11/30/18 (unpaginated). Accordingly, because the record
supports the restitution award, we conclude that Appellant's issue lacks merit.
Dispositional order affirmed.
Judgment Entered.
J seph D. Seletyn, Es
Prothonotary
Date: 7/22/2019
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