Com. v. Solomon, P. ( 2020 )

J-S54038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK SEISIRO SOLOMON :
:
Appellant : No. 1407 MDA 2018
Appeal from the Order Entered July 23, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001122-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED FEBRUARY 25, 2020
The learned Majority correctly notes that we review issues concerning
the amount of restitution for an abuse of discretion. See Majority
Memorandum at 5. See also Commonwealth v. Muhammed, 219 A.3d
1207, 1215 (Pa.Super. 2019) (explaining that the discretionary aspects of
sentencing are implicated by a challenge to the amount of restitution ordered).
Accordingly, to obtain relief from this Court, Appellant is required to “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.
Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017). As I believe that the record
manifests no such abuse of discretion on the part of the trial court in ordering
restitution in the amount of $86,974.93, I respectfully dissent.
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Black’s Law Dictionary defines the term restitution in relevant part as
follows.
restitution . . . 3. Return or restoration of some specific thing to
its rightful owner or status. 4. Compensation for loss; esp., full
or partial compensation paid by a criminal to a victim, not awarded
in a civil trial for tort, but ordered as part of a criminal sentence
or as a condition of probation. — Also termed criminal restitution.
RESTITUTION, Black’s Law Dictionary (11th ed. 2019) (internal citations
omitted). While the dictionary refers to full or partial compensation, our
Legislature has provided that, when the property of a victim has been
unlawfully obtained, the sentencing court must order “full restitution . . . so
as to provide the victim with the fullest compensation for the loss.” 18
Pa.C.S. § 1106(c)(1)(i) (emphasis added).
In computing the amount of restitution under Pennsylvania law, the
sentencing court is required to “consider the extent of injury suffered by the
victim and such other matters as it deems appropriate.” Commonwealth v.
Wright, 722 A.2d 157, 159 (Pa.Super. 1998) (cleaned up). We have
indicated that there is no one correct means of quantifying a victim’s loss.
Rather, “[r]estitution . . . can be made by either the return of the original
property or the payment of money necessary to replace, or to repair the
damage to, the property.” Commonwealth v. Genovese, 675 A.2d 331,
333 (Pa.Super. 1996).
“Because restitution is a sentence, the amount ordered must be
supported by the record, and may not be speculative.” Commonwealth v.
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Lekka, 210 A.3d 343, 358 (Pa.Super. 2019) (internal quotation marks
omitted). We have sustained valuations, in this and other contexts, based
upon the testimony of the owner of the stolen property. See, e.g.,
Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.Super. 2006) (holding trial
court’s restitution award was supported by the record testimony from the
victim as to the value of stolen scrap metal); Commonwealth v. Hanes, 522
A.2d 622, 625 (Pa.Super. 1987) (“[A]n owner, by reason of his status as
owner, is deemed qualified to give estimates of the value of what he owns.”
(internal quotation marks omitted)).
Applying our Legislature’s demand for restitution to constitute the
fullest compensation for a victim’s loss, with the sentencing court being free
to consider the matters it deems appropriate in determining the proper
amount, I cannot agree with the Majority’s position that the value of the coin
collection at the time Appellant wrongfully acquired it was necessarily the
proper measure.
I submit that the fullest compensation Appellant could be ordered to pay
is the cost to replace the stolen coins. Accord Genovese, supra at 333
(including payment replacement costs as an example of restitution). In fact,
Appellant acknowledges that “[a]warding the replacement costs of the
property taken makes the victim whole because it creates the opportunity to
repurchase the property and restore the pre-theft state of affairs.” Appellant’s
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brief at 15. However, Appellant conflates replacement costs with market value
at the time of the theft. See id.
On the contrary, the record reflects that the replacement value of the
whole collection at the time of the restitution hearing was substantially greater
than the market value of the sum of its parts at the time it was unlawfully
taken by Appellant. Yet, as the Majority aptly notes, this testimony
concerning the cost to replace the victim’s coin collection was less than
certain. See Majority Memorandum at 3 n.3; see also N.T. Restitution
Hearing, 7/23/18, at 13-14 (“I purchased [the coins] in thoughts of giving
them to my grandchildren . . . . I don’t have enough money to go back and
pay whatever it’s gonna be not, [$]150,000 perhaps, to replace these
coins[.]”). Therefore, I discern no error on the part of the trial court in
declining to set replacement costs as the full measure of the victim’s loss.
See, e.g., Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa.Super. 2017)
(“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
order which is not supported by the record.” (cleaned up)).
In electing to set the victim’s acquisition costs as the full value of the
victim’s loss, rather than the market value at the time of the theft, the
sentencing court offered a manifestly reasonable explanation:
While current market value of an item may be an appropriate
remedy for restitution concerning personal property, this case is
distinct from the typical theft of personal property situation. A
typical item of personal property depreciates in value over time,
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as wear and tear take their toll on it. In the case of collectibles,
like the coins taken from the victim, there is a longstanding
recognized legitimate marketplace, where values fluctuate based
upon demand and actions by other participants in that
marketplace. A collector who participates in that marketplace
must be strategic in their decisions to place their items into the
market at the proper moment, in an attempt to maximize value.
Though the coins themselves are tangible personal
property, the actions of [Appellant] are more analogous to the
situation where someone steals a victim's stock portfolio and sells
the stocks on a day when the market is down. Instead of the
rightful owner getting to sell the stocks at their maximum value
on a day of their choosing, a third party that caused them harm
gets to set their deflated value and the victim must live with the
injurious economic consequences of this bad actor.
A more just outcome is to award the victim what it initially
cost that person to acquire the items, as that sets the real
economic damage of what was taken from the bona fide owner.
. . . In a situation such as this, the loss suffered by the victim to
the collectibles was not only the market value of the coins on the
date of the theft, but the opportunity to set the timing of the sale
for a more beneficial day in the fluctuating market. The record
supports the amount ordered, as the victim was very thorough in
calculating the purchase price for the coins. As such, the amount
of restitution the [c]ourt ordered . . . makes the victim whole,
rather than making him suffer a loss artificially initiated in the
down market by [Appellant]’s malfeasance, a loss the owner
would not have suffered but for the [Appellant]’s untimely
misconduct.
Trial Court Opinion, 4/25/19, at 3-4
Hence, the sentencing court thoughtfully considered the extent of the
victim’s loss in light of the atypical property involved and settled upon a non-
speculative value. Moreover, the restitution amount set by the sentencing
court as the fullest compensation for the victim’s loss is both supported by the
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record1 and free from any misapplication of the law, partiality, prejudice, bias,
or ill will. Therefore, I would affirm.
____________________________________________
1 Indeed, the victim expressly testified that the value at the time of the
restitution hearing was greater than when Appellant stole them. Specifically,
Appellant’s counsel, in cross-examining the victim, attempted to elicit a
concession that the coins would never again be worth more than $58,600.
The victim indicated that “they already are,” and explained again the impact
of collectability and desirability over time. N.T. Restitution Hearing, 7/23/18,
at 19.
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