Commonwealth v. Poplawski , 2017 Pa. Super. 78 ( 2017 )

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2017 PA Super 78COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GEORGE POPLAWSKI
Appellant No. 820 MDA 2016
Appeal from the Judgment of Sentence May 2, 2016
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002941-2013
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
OPINION BY RANSOM, J.: FILED MARCH 24, 2017
Appellant, George Poplawski, appeals from the judgment of sentence
of eighteen months of probation, as well as restitution in the amount of
$41,637.00. We vacate and remand.
The facts underlying Appellant’s conviction are unnecessary to the
disposition of his appeal. However, we briefly summarize the procedural
history of his case as follows. Appellant was arrested and charged with theft
by deception, deceptive or fraudulent business practices, and home
improvement fraud for receiving advance payment for services that he failed
to perform.1 Following a jury trial in November 2014, Appellant was
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1
18 Pa.C.S. §§ 3922(a)(1), 4107(a)(2), and 73 P. S. § 517.8(a)(2),
respectively.
*
Former Justice specially assigned to the Superior Court.
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acquitted of the first two charges, but convicted of home improvement
fraud. Specifically, the jury found him guilty of receiving advance payments
of $2,000.00 or less for work he did not perform. See 73 P.S. §
517.8(a)(2), (c)(2) (“A violation of subsection (a)(2) constitutes: … (ii) a
misdemeanor of the first degree if the amount of the payment retained is
$2,000 or less…”).
On January 9, 2015, the court sentenced Appellant to eighteen months
of probation. No amount of restitution was imposed on that date. On
January 28, 2015, the court conducted a restitution hearing and imposed
restitution in the amount of $41,637.00.
Appellant timely appealed his judgment of sentence. On February 9,
2016, this Court vacated Appellant’s sentence in its entirety and remanded
for resentencing. See Commonwealth v. Poplawski, 141 A.3d 589 (Pa.
Super. 2016) (unpublished memorandum). As Appellant’s restitution was
part of his direct sentence, the court was required to impose restitution at
the same time as his sentencing hearing. Id.On May 2, 2016, Appellant appeared for resentencing. The
Commonwealth referred to the complainant’s trial testimony regarding the
amount expended to correct work Appellant had allegedly done. See Notes
of Testimony (N. T.), 5/2/16, at 3-4. Further, the Commonwealth indicated
a contractor hired by the complainant had testified that he expended
$41,637.00 to correct the work Appellant had allegedly performed. Id. The
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court resentenced Appellant to eighteen months of probation and restitution
in the amount of $41,637.00. Id. at 6.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
sentencing court issued a responsive opinion.
On appeal, Appellant raises the following issues for our review:
I. The honorable trial court erred when it imposed an illegal
sentence of restitution in the amount of $41,637.00, because
there was no causal connection between the crime for which
Appellant was convicted of and the amount of said restitution.
II. The honorable trial court erred when it imposed an illegal
sentence of restitution in the amount of $41,6370.00, because
said amount was speculative and not supported by the record.
Appellant’s Brief at 4 (unnecessary capitalization omitted).2
Due to our disposition of Appellant’s issues, we will address them
together. Appellant argues that the court erred in imposing an illegal
sentence of restitution, because 1) there was no causal connection between
the amount of the restitution and the crime for which Appellant was
convicted, and 2) because the amount of restitution ordered was speculative
and unsupported by the record. See Appellant’s Brief at 7.
Appellant’s claim is an attack on the legality of his sentence. See
Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa. Super. 2007). With
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2
In the court below, Appellant raised a third issue, which he has withdrawn
on appeal. See Appellant’s Brief at 4.
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regard to appeals stemming from the imposition of restitution as a condition
of the judgment of sentence,
[r]estitution may be imposed only for those crimes to property
or person where the victim suffered a loss that flows from the
conduct that forms the basis of the crime for which the
defendant is held criminally accountable. In computing the
amount of restitution, the court shall consider the extent of
injury suffered by the victim and such other matters as it deems
appropriate. Because restitution is a sentence, the amount
ordered must be supported by the record; it may not be
speculative or excessive. The amount of a restitution order is
limited by the loss or damages sustained as a direct result of
defendant’s criminal conduct and by the amount supported by
the record.
Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (internal
citations and quotations omitted); see also 18 Pa.C.S. § 1106(c)(2)(i). Due
to the language “directly resulting from the crime,” restitution is proper only
if there is a direct causal connection between the crime and the loss.
Harriott, 919 A.2d at 238. The sentencing court applies a “but for” test in
imposing restitution; damages which occur as a direct result of the crimes
are those which would not have occurred but for the defendant’s criminal
conduct. Commonwealth v. Wright, 722 A.2d 157, 159 (Pa. Super.
1998).
The trial court determined that Matthew Stuka, the complainant, had
paid a second contractor $41,637.00 to complete Appellant’s project after
advancing payments to Appellant. See Trial Court Opinion, 7/11/16, at 7-8.
The trial court noted that but for Appellant’s actions, these payments would
not have been made. Id. The court relied on Wright to note that it was
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empowered to expand the restitution award beyond what had been found by
the jury. Id. We disagree.
First, we note that the restitution is not directly related to the crime
and the loss. As noted, supra, Appellant was acquitted of the first two
counts charged. See Jury Verdict Sheet at 1-2. His sole conviction was for
home improvement fraud. A person commits this offense if, with the intent
to defraud another, he:
[r]eceives any advance payment for performing home
improvement services or providing home improvement materials
and fails to perform or provide such services or materials when
specified in the contract taking into account any force majeure or
unforeseen labor strike that would extend the time frame or
unless extended by agreement with the owner and fails to return
the payment received for such services or materials which were
not provided by that date.
73 P. S. § 517.8(a)(2). The jury found that the payment Appellant retained
was $2,000.00 or less. See 73 P.S. § 517.8(c)(2)(ii); Jury Verdict Sheet,
11/19/14, at 3.
The crime for which Appellant was convicted requires, essentially, that
he received advance payment for services never performed. The jury
concluded that Appellant had retained a deposit of $2,000.00 or less, and
did not perform the work. However, Appellant was acquitted of deceptive or
fraudulent business practices by “delivering less than the represented
quantity of any commodity or service.” See 18 Pa.C.S. § 4107(a)(2); Jury
Verdict Sheet at 2. Based upon the record provided to us, we cannot
determine whether this $41,637.00 was damages the jury either did not
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recognize or criminalize, or whether it was money Mr. Stuka would have had
to expend to complete the project regardless of Appellant’s involvement.
What is clear, however, is that Appellant was acquitted of criminal liability
with regard to the quantity or quality of his services.
Finally, the court’s reliance on Wright is misplaced. In Wright, the
complainant suffered damage to crops and two pieces of farm equipment as
a result of the defendant’s actions. Wright, 722 A.2d at 158-59. At the
time of trial, only one of the pieces of farm equipment had estimates and
repair bills available for it. Id. Accordingly, the Wright jury, considering
only evidence of that loss, determined damages between $1,000.00 and
$5,000.00. Id. At the time of sentencing, the trial court ordered restitution
in the amount of $20,745.82, as the second piece of equipment had been
repaired and the complainant could now prove his damages for both pieces
of equipment. Id. at 159. This Court upheld the order of restitution, finding
that although the jury had made a determination for grading purposes, the
sentencing court could award restitution beyond that amount where the
record supported the order. Id. at 160-61.
By contrast, in the instant case, the jury had all of the necessary
evidence before it at the time of trial. At the sentencing hearing, the
information relied upon by the trial court in fashioning the restitution amount
was 1) the trial testimony of Mr. Stuka regarding the amount paid to a
contractor to “fix” Appellant’s work, and 2) the trial testimony of the
contractor regarding the amount he billed Mr. Stuka. This was not, as in
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Wright, a case where information was unavailable to the jury at the time of
sentencing. On the contrary, the jury heard and considered this information,
and either found it unconvincing or not criminal: the same jury acquitted
Appellant of fraudulent business practices.
Absent circumstances such as those in Wright, the court may not go
beyond the jury’s verdict in fashioning its restitution award. Thus, the
amount of restitution ordered was neither a direct result of Appellant’s
criminal conduct, nor was it supported by the record. Dohner, 725 A.2d at
824.
We note that Mr. Stuka is not without recourse. The Crimes Code
specifically provides that an order of restitution does not prevent him from
recovering additional funds through a civil lawsuit. See 18 Pa.C.S. §
1106(g). This criminal case, however, is not the appropriate avenue to do
so. Accordingly, we find that the trial court erred in imposing an order of
restitution in the amount of $41,637.00.
Judgment of sentence vacated; case remanded for resentencing in
accordance with this opinion; jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2017
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