Com. v. Greiner, J. ( 2020 )

J-S58038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JANET NICOLE GREINER :
:
Appellant : No. 790 WDA 2019
Appeal from the Judgment of Sentence Entered January 10, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000162-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 08, 2020
Appellant, Janet Nicole Greiner, appeals from the January 10, 2019
Judgment of Sentence entered in the Butler County Court of Common Pleas
following her negotiated guilty plea to one count each of Criminal Conspiracy—
Theft by Unlawful Taking and Criminal Conspiracy—Robbery.1 On appeal,
Appellant challenges the amount of restitution the court ordered her to pay to
the victim. After careful review, we affirm.
The facts and procedural history are, briefly as follows. On December
2, 2017, at approximately 6:22 AM, Michael Karch and David Boggs rang the
doorbell at the home of the victim, Robert Patterson (the “Victim”). The Victim
answered the door. Karch and Boggs forced their way into the Victim’s home,
while Brandon Wissinger and Appellant waited outside in a truck. Karch and
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1 18 Pa.C.S. §§ 903—3921(a), and 18 Pa.C.S. §§ 903—3701(a)(1)(iv),
respectively.
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Boggs hit the Victim over the head twice with a gun and beat him for fifty
minutes before tying him up. They then took a number of items from the
home, including handguns, jewelry, cash, two key fobs for a rental vehicle,
and coins. They fled in the waiting truck.
The Commonwealth initially charged Appellant with seven counts of
Conspiracy and one count of Receiving Stolen Property. Ultimately, on
January 10, 2019, Appellant entered negotiated guilty pleas to two counts of
Criminal Conspiracy. Relevantly, Appellant’s agreement required Appellant to
pay restitution to the Victim.2 Accordingly, the trial court entered a Restitution
Order directing Appellant to pay $15,779 to the Victim and $4,774.80 to the
Victim Compensation Assistance Program.
Appellant filed a Post-Sentence Motion in which she challenged the
restitution amounts ordered. On April 10, 2019, the trial court held a hearing
on Appellant’s Motion at which the Victim testified about the value of the items
stolen by Appellant. Appellant’s counsel cross-examined the Victim. Appellant
did not present any evidence. Following the hearing, the trial court reduced
the amount of restitution payable to the Victim to $15,429.
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2 The court also sentenced Appellant to an aggregate term of six to twenty-
four months’ incarceration followed by forty-eight months’ probation.
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This timely appeal followed.3 Appellant raises the following issue on
appeal:
[] Whether the [t]rial [c]ourt erred or abused its discretion
when it established the restitution amount owed by Appellant
on April 23, 2019, following a restitution hearing?
Appellant’s Brief at 7.
Appellant argues in support of this claim that the amount of restitution
set by the trial court and payable to the Victim to compensate him for his loss
was not supported by sufficient evidence.4 Appellant’s Brief at 10-16. In
particular, she asserts that the trial court erred in relying solely on the Victim’s
testimony, without any supporting documentation, about the value of the
items stolen. Id. at 11. She also claims that the amount set by the court was
excessive, and constituted “double dipping,” because the court made “no
effort . . . to reduce these claims by the amounts reimbursed by [the Victim’s]
insurance company.” Id.
We note our well-settled standard of review. 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) (citation omitted). “An appeal from an order of
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3 Appellant complied with the trial court’s Order to file a Pa.R.A.P. 1925(b)
Statement. The trial court did not file an Opinion pursuant to Pa.R.A.P.
1925(a), and instead relied on its Memorandum Opinion and Order dated April
23, 2019, addressing Appellant’s Post-Sentence Motion.
4 Appellant does not contest the amount of the restitution awarded to the
Pennsylvania Victim Compensation Fund.
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restitution based upon a claim that a restitution order is unsupported by the
record challenges the legality, rather than the discretionary aspects, of
sentencing.” Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super.
2012).
The imposition of restitution is statutorily set forth at 18 Pa.C.S. § 1106,
which provides in pertinent part:
§ 1106. Restitution for injuries to person or property
(a) General rule––Upon conviction for any crime wherein []
property . . . has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime; or [wherein] the victim . . .
suffered personal injury directly resulting from the crime,
the offender shall be sentenced to make restitution in
addition to the punishment prescribed therefor.
18 Pa.C.S § 1106(a).
“Because restitution is a sentence, the amount ordered must be
supported by the record; it may not be speculative or excessive.”
Commonwealth v. Poplawski, 158 A.3d 671, 674 (Pa. Super. 2017)
(citation omitted). The Commonwealth has the burden of proving entitlement
to restitution. Atanasio, 997 A.2d at 1183. The trial court is responsible for
ensuring that the “record contains the factual basis for the appropriate amount
of restitution.” Id.
In its Memorandum Opinion and Order of Court, the trial court
summarized the Victim’s testimony regarding the losses he suffered as a result
of Appellant’s crime. In particular, the court noted the Victim’s testimony that
Appellant, Karch, Boggs, and Wissinger stole thirteen weapons from him,
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twelve of which were worth approximately $7,125 in total.5 Trial Ct. Op.,
4/23/19, at 1-2 (unpaginated). The Victim also testified that his insurance
might cover twenty percent of the loss sustained. Id. at 2 (unpaginated).
With respect to the stolen jewelry, the Victim testified that its total value
was between $7,780 and $10,780.6 Id. The Victim further testified that
Appellant and her co-conspirators stole $550 in cash, and, after paying his
$500 deductible, he received $50 from his insurance company for that loss.
Id. The Victim testified that the stolen key fobs had a replacement cost of
$224 and that he lost approximately $225 in coins. Id. Last, the Victim
testified that he had to hire a cleaning service to remove the bloodstains that
resulted from the attack by Appellant and her co-conspirators. Id.
Based on the testimony presented at the hearing, the trial court
concluded that the victim’s unreimbursed losses might have been as much as
$17,429. Id. at 3 (unpaginated). Given that Appellant’s insurance company
might reimburse him for twenty percent of the value of the stolen weapons,
however, the trial court concluded that the record supported its finding that
the Victim had unreimbursed losses of $15,429. Id.
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5 The Victim was unable to remember the model or value of the thirteenth
stolen handgun. Trial Ct. Op., 4/23/19, at 2 (unpaginated).
6 The Victim acknowledged, for example, that the value of a diamond
engagement ring stolen by Appellant and her co-conspirators had an
appraised value of $5,000 to $8,000. Trial Ct. Op., 4/23/19, at 2
(unpaginated).
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Following our review of the record, we agree with the trial court that the
Victim’s testimony supports the trial court’s assessed restitution amount and
undermines Appellant’s bald claim that the trial court made “no effort” to
account for reimbursements to the Victim by his insurance company. The trial
court properly considered the evidence offered by the Victim, including the
Victim’s reimbursement by his insurance company, and fashioned an award
supported by the record.7
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2020
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7 Moreover, we note that Appellant has not cited to any authority in support
of her argument that the trial court erred when it relied exclusively on the
Victim’s testimony, without any supporting documentation. Appellant has,
therefore, waived this argument and we decline to address it. See
Commonwealth v. Wilson, 147 A.3d 7, 14 (Pa. Super. 2016) (concluding
that an appellant waives his issue on appeal if he fails to present the claim
with citations to relevant authority or develop the issue in a meaningful
fashion capable of review).
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