Com. v. Solomon, P. ( 2021 )

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2021 PA Super 43COMMONWEALTH 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: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY BOWES, J.: FILED MARCH 16, 2021
A penny saved is a penny earned. But what is the worth of the coin
once it is stolen? Patrick Seisiro Solomon stole collectable coins and now
wants to cap his restitution liability at their market value at the time of the
crime. The issue before us is whether the sentencing court abused its
discretion in setting the restitution amount for the coins at their acquisition
cost. As we conclude that the sentencing court committed no error of law or
abuse of discretion in reaching its determination, we affirm.
The facts of this case are straightforward and undisputed. In late 2017
or early 2018, Appellant stole rare coins owned by James Armstrong and sold
them for funds to support his drug habit. As a result, Appellant was charged
with theft by unlawful taking and receiving stolen property. On June 6, 2018,
Appellant agreed to plead guilty to the theft count, with the other count being
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dismissed, for a sentence of three to twenty-three months of incarceration
plus costs and restitution. The criminal information indicated that the coins
were worth $1,799, but the Commonwealth represented at the plea hearing
that the victim was claiming $86,950 in restitution. When accepting
Appellant’s plea, the trial court set restitution at the lesser amount, but
scheduled a hearing for the Commonwealth to prove the larger amount.
The hearing took place on July 23, 2018.1 The Commonwealth’s
evidence consisted of the testimony of the victim, Mr. Armstrong, as well as
an exhibit that Mr. Armstrong prepared. The exhibit contained a seventeen-
page typewritten list detailing Mr. Armstrong’s coin acquisitions from 2004
through 2012 and indicating for each purchase a description, i.e., the type of
coins and the number in each set, as well as the price he paid. 2 See
Commonwealth Exhibit 1. It also included a handwritten list of which coins
Appellant stole, referencing the corresponding page and line of the typed list,
and specifying for each the “current value” as well as the initial cost. Id. For
some sets of coins the amounts were roughly the same; others had increased
or decreased in value between the time Mr. Armstrong bought them and
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1 Appellant was represented by counsel at the restitution hearing, but he
declined to appear himself.
2For example, one line-item purchase was of a six-coin set of 2008 Beijing
Olympic gold and silver coins, while another was a thirteen-piece set of
Morgan silver dollar coins from 1878 to 1892. See Commonwealth Exhibit 1.
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Appellant’s theft. Overall, the original cost of the property Appellant stole was
$86,974.93, while its “current value” was $58,600. Id.Mr. Armstrong testified that he started collecting coins in the late 1980s
or early 1990s and kept them secured in a storage area in his home.
Appellant, whom Mr. Armstrong knew for several years as someone he paid
for occasional help to maintain his house and property, learned of the
existence of the coin collection when he assisted Mr. Armstrong in moving the
boxes to the garage of his new home. See N.T. Restitution Hearing, 7/23/18,
at 6-7, 9. After Mr. Armstrong noticed that the boxes of coins had been
rearranged more than once, he discovered that some were missing. He went
through and made the handwritten list of missing coins, although he only
included coins that sold for more than $2,000, and believed that the list would
have been longer if he “were willing to spend another three or four days on
inventorying every single thing[.]” Id. at 10.
Mr. Armstrong explained that he arrived at the “current value” figures
through eBay. He indicated that eBay trades heavily in coins and provides
data about recent sales. Id. at 14. He looked though sales within the prior
three months of coins comparable to those Appellant had stolen to “find out
what the general average sales price was” for each set. Id. at 15. In
instances where there were exceptionally high and low sales for the same
item, Mr. Armstrong used “the cluster in between” to arrive at a value in the
middle. Id.
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The trial court questioned Mr. Armstrong about the cause of the
fluctuations in values of the coins. Mr. Armstrong indicated that the price at
any given time is based upon “the collectability, the desirability, factors of how
many were minted,” the rarity of the coins, and the metal used (silver, gold,
platinum, etc.). Id. at 17-20.
After entertaining argument from the parties, the trial court announced
its findings. It indicated that it found Mr. Armstrong to be credible and
“extremely knowledgeable about coins and their values.”3 Id. at 26. The
court discussed various rationales for accepting different total values, but
ultimately concluded that the cost to Mr. Armstrong to acquire the coins was
the appropriate amount. Accordingly, it set restitution at $86,974.93. Id. at
29.
Appellant filed a timely post-sentence motion, asking the court to
reconsider the restitution amount because the Commonwealth failed to prove
“that the victim was entitled under law to recoup the full purchase price paid
for the coins that were stolen.” Motion for Post-Sentence Relief, 8/2/18, at
unnumbered 2. Appellant maintained that the lesser amount, based upon the
value of the coins at the time of Appellant’s crime, should have been used.
Id. The trial court denied the motion without a hearing, and Appellant filed a
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3 Appellant acknowledges that Mr. Armstrong was qualified to offer expert
testimony as to the value of the coins at issue. See Appellant’s substituted
reply brief at 4-5.
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timely notice of appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
On February 25, 2020, a divided panel of this Court reversed the
restitution order and remanded for an evidentiary hearing to set the restitution
amount based upon expert testimony of market value at the time of the theft.
The Commonwealth timely applied for reargument en banc, which we granted
on May 1, 2020, and withdrew the prior memoranda. The parties filed
substituted briefs upon which they agreed to have this Court decide the case
without oral argument. Hence, the appeal is ripe for disposition.
Appellant presents the following question for our review: “Did the
sentencing court award speculative and excessive restitution where it based
the award on the initial cost of stolen coins despite hearing evidence that the
coins’ current market value was almost $30,000 lower than their initial cost?”
Appellant’s substituted brief at 5.
As our Supreme Court recently affirmed, issues concerning amount of
restitution implicate the discretionary aspects of a defendant’s sentence. See
Commonwealth v. Weir, 239 A.3d 25, 38 (Pa. 2020). See also
Commonwealth v. Biauce, 162 A.3d 1133, 1138 (Pa.Super. 2017) (“An
order of restitution is a sentence, thus, the amount awarded is within the
sound discretion of the trial court and must be supported by the record.”
(cleaned up)). As such, Appellant has no absolute right to appellate review.
Rather, an appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. We determine
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whether the appellant has invoked our jurisdiction by considering
the following four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(citations omitted).
Appellant preserved the issue in a timely post-sentence motion seeking
reconsideration of his sentence and filed a timely notice of appeal. Appellant’s
brief contains a statement of reasons relied upon for his challenge to the
discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).
Further, Appellant’s challenge to the amount of restitution set by the trial court
presents a substantial question. See, e.g., Commonwealth v. Pappas, 845
A.2d 829, 842 (Pa.Super. 2004) (stating substantial question was presented
by the contention that there was insufficient evidence of the value of the stolen
property to support the restitution award). Thus, we will address the merits
of Appellant’s claim.
To prevail, Appellant must demonstrate that the sentencing court
abused its discretion. “In this context, an abuse of discretion is not shown
merely by an error in judgment.” Commonwealth v. Antidormi, 84 A.3d
736, 760 (Pa.Super. 2014). Rather, Appellant must “establish, by reference
to the record, that the sentencing court ignored or misapplied the law,
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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). Discretion is abused in ordering
speculative or excessive restitution or entering a restitution award not
supported by the record. See Weir, supra at 38; Commonwealth v.
Crosley, 180 A.3d 761, 771 (Pa.Super. 2018).
Appellant contends that the trial court misapplied the law in awarding
“a speculative and excessive amount in restitution” rather than basing
restitution on “market value or replacement cost[.]” Appellant’s substituted
brief at 17. Appellant maintains that “the general rule for property is to award
its market value or replacement cost in restitution.” Id. at 20. While he
acknowledges that no “particular method of valuation” is prescribed by the
restitution statute, Appellant notes that the statute providing the grading of
theft offenses defines “value” as “‘the market value of the property at the time
and place of the crime, or if such cannot be satisfactorily ascertained, the cost
of replacement of the property within a reasonable time after the crime.’” Id.
(quoting 18 Pa.C.S. § 3903(c)(1)).
We consider the law applicable to Appellant’s claim. Our legislature has
defined restitution as “[t]he return of the property of the victim or payments
in cash or the equivalent thereof pursuant to an order of the court.” 18 Pa.C.S.
§ 1106(h). Restitution “is not a fine, but is an equitable remedy under which
a person is restored to his or her original position prior to loss or injury; it is
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the restoration of anything to its rightful owner or the act of making good or
giving equivalent for any loss, damage or injury.” Commonwealth v.
Genovese, 675 A.2d 331, 333 (Pa.Super. 1996) (quoting Black’s Law
Dictionary (6th ed. 1990)) (cleaned up).
Restitution is governed by § 1106 of the Crimes Code, which provides
as follows in pertinent part:
(a) General rule.--Upon conviction for any crime wherein:
(1) property of a victim has been stolen, converted or
otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime; or
(2) the victim, if an individual, suffered personal injury directly
resulting from the crime,
the offender shall be sentenced to make restitution in addition to
the punishment prescribed therefor.
....
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. The court shall not reduce a
restitution award by any amount that the victim has
received from the Crime Victim’s Compensation Board or
other government agency but shall order the defendant to
pay any restitution ordered for loss previously compensated
by the board to the Crime Victim’s Compensation Fund or
other designated account when the claim involves a
government agency in addition to or in place of the board.
The court shall not reduce a restitution award by any
amount that the victim has received from an insurance
company but shall order the defendant to pay any
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restitution ordered for loss previously compensated by an
insurance company to the insurance company.
....
(2) At the time of sentencing the court shall specify the amount
and method of restitution. In determining the amount and
method of restitution, the court:
(i) Shall 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.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it deems
just.
(iii) Shall not order incarceration of a defendant for failure
to pay restitution if the failure results from the offender’s
inability to pay.
(iv) Shall consider any other preexisting orders imposed on
the defendant, including, but not limited to, orders imposed
under this title or any other title.
(3) The court may, at any time or upon the recommendation
of the district attorney that is based on information received
from the victim and the probation section of the county or other
agent designated by the county commissioners of the county
with the approval of the president judge to collect restitution,
alter or amend any order of restitution made pursuant to
paragraph (2), provided, however, that the court states its
reasons and conclusions as a matter of record for any change
or amendment to any previous order.
(4) (i) It shall be the responsibility of the district attorneys of
the respective counties to make a recommendation to the
court at or prior to the time of sentencing as to the amount
of restitution to be ordered. This recommendation shall be
based upon information solicited by the district attorney
and received from the victim.
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(ii) Where the district attorney has solicited information
from the victims as provided in subparagraph (i) and has
received no response, the district attorney shall, based on
other available information, make a recommendation to
the court for restitution.
....
(g) Preservation of private remedies.--No judgment or order
of restitution shall debar the victim, by appropriate action, to
recover from the offender as otherwise provided by law, provided
that any civil award shall be reduced by the amount paid under
the criminal judgment.
18 Pa.C.S. § 1106. Our legislature did not proffer definitions for the terms
“full restitution,” “fullest compensation,” or “extent of injury,” or otherwise
provide guidance to courts beyond that quoted above, to direct a court’s
calculation of a restitution amount. However, decisions of our appellate
courts shed light on the subject.
This Court has noted that “the primary purpose of restitution is
rehabilitation of the offender by impressing upon him that his criminal conduct
caused the victim’s loss or personal injury and that it is his responsibility to
repair the loss or injury as far as possible.” Commonwealth v. Mariani, 869
A.2d 484, 486 (Pa.Super. 2005). “Restitution, by definition, as it relates to
property damage, 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.” Genovese, supra at 333 (affirming judgment of sentence for
careless driving conviction ordering restitution in the amount of damage
caused to the victim’s automobile). The dollar value of a victim’s loss does
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not necessarily set the restitution amount, but merely “assists the court in
calculating the appropriate amount of restitution.” Commonwealth v.
Burwell, 58 A.3d 790, 794 (Pa.Super. 2012) (internal quotation marks
omitted). Stated differently, “restitution is not damages, as the objectives are
different, and because this is so, the amounts, although related, need not be
coterminous.” Mariani, supra at 486.
As our Supreme Court recently observed, “[t]here is nothing within [the
restitution statute] that remotely relates to the quantity or quality of the
evidence necessary to establish the amount of the victim’s loss.” Weir, supra
at 38. Rather, the statute broadly provides that “[i]n determining the amount
and method of restitution, the court: (i) Shall consider the extent of injury
suffered by the victim, the victim’s request for restitution as presented to the
district attorney . . . and such other matters as it deems appropriate.” 18
Pa.C.S. § 1106(c)(2). Then, regardless of any other recovery for the stolen
or damaged property, and “[r]egardless of the current financial resources of
the defendant,” the court must order restitution “so as to provide the victim
with the fullest compensation for the loss.” 18 Pa.C.S. § 1106(c)(1)(i)
(emphasis added).
Nonetheless, there are limits to a sentencing court’s discretion in
determining a restitution amount. “Restitution 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
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convicted.” Commonwealth v. Boone, 862 A.2d 639, 643 (Pa.Super. 2004).
In other words, when “restitution as part of a sentence, there must be a direct
nexus between the restitution ordered and the crime for which the defendant
was convicted.” Commonwealth v. Risoldi, 238 A.3d 434, 461 (Pa.Super.
2020). Further, the amount ordered must be supported by the record; it may
not be speculative or excessive.” Commonwealth v. Pappas, 845 A.2d 829,
842 (Pa.Super. 2004). See also Commonwealth v. Pleger, 934 A.2d 715,
720 (Pa.Super. 2007) (“A restitution award must not exceed the victim’s
losses.”).
For example, in Commonwealth v. Poplawski, 158 A.3d 671, 675
(Pa.Super. 2017), we vacated a restitution award that was neither caused by
the defendant’s crime nor supported by the evidence. In that case, the
defendant was charged with various crimes after he accepted an advance
payment of $2,000 for home improvement work that he ultimately failed to
perform. The victim paid another contractor over $41,000 to complete the
work. A jury convicted the defendant of home improvement fraud, but
acquitted him of theft by deception and deceptive or fraudulent business
practices. The sentencing court ordered restitution for the $41,000 amount,
indicating that, but for the defendant’s actions, the victim would not have paid
the other contractor. This Court disagreed. First, since the only crime the
defendant was convicted for was failing to do the work or return the $2,000
advance payment, and he was acquitted of the crimes related to the quality
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or quantity of services, there was no nexus between the restitution amount
and the crime. Second, the record did not indicate whether the $41,000 “was
damages the jury either did not recognize or criminalize, or whether it was
money [the victim] would have had to expend to complete the project
regardless of [the defendant’s] involvement.” Id. at 675. Hence, the order
could not stand because “the amount of restitution ordered was neither a
direct result of [the defendant’s] criminal conduct, nor was it supported by the
record.” Id. See also Risoldi, supra at 464-65 (vacating restitution award
based upon damages associated only with charges of which the jury acquitted
the defendant).
This Court considered an atypical restitution issue in Commonwealth
v. Boone, 862 A.2d 639 (Pa.Super. 2004). In that case, the defendants
gained control over uninhabited, fire-damaged properties, acquired title
through forging and recording deeds conveying the property to themselves,
and used them as collateral to obtain mortgage loans exceeding $300,000.
The sentencing court assigned an aggregate restitution value of $63,921 to
the properties. On appeal, this Court agreed with the Commonwealth that the
decision to order monetary restitution was an abuse of discretion. We noted
that the victim’s damages were equal to the value of the real estate at the
time the defendants took possession, but the lack of evidence of that value,
“coupled with the disparity between the current and pre-improvement values,
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ma[de it] clear that the trial court did not calculate the amount of restitution
with the requisite degree of accuracy.” Id. at 644.
Accomplishing the purpose of the restitution statute, we stated, required
returning the property to the rightful owners. The Commonwealth proposed
to do so through a court order directing the recorder of deeds to strike off the
fraudulent deed. However, we crafted a different solution:
Monetary restitution alone is, as noted, inadequate in this
situation, and more than mere possession is necessary to qualify
as complete recompense given the nature of the loss sustained.
Thus further steps, to restore title, must be undertaken to return
the property to the victims. And, although the Commonwealth's
proposed order represented an attempt to rectify the omission, it
is no[t] part of the sentencing code for the court to direct the
activities of the Recorder of Deeds. A private remedy, which in
the context is civil in nature, is thus necessarily implicated, and
the language of the statute places on the victim(s) the onus of
investigating and applying the correct procedure. The only
procedure designed to accomplish the necessary correction of the
deeds is an action to quiet title.
Accordingly the sequence to be followed is first, for
possession of the property to be transferred by order of the court
to the original title holders, that is, to order that [the defendants]
make restitution to that extent since they cannot transfer title
they do not have. . . . They may, however, be ordered to
relinquish possession, which under the terms of the statute
returns that aspect of the property they do have. Once the victims
gain possession, they may seek to quiet title under Pa.R.C.P.
1061, since only a party in possession may commence such a suit.
Under circumstances such as those involved here, the action
would be resolvable on the basis of the pleadings alone. While
these proceedings may well be regarded as pro forma, they are
nevertheless consistent with section 1106(g), and have the
further advantage of producing incontestably valid title to the
property. We accordingly remand for these procedures to be
instituted.
Id. at 644–45 (cleaned up).
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Hence, a restitution order that fails both to have a direct nexus to a
crime for which the defendant was convicted and to have evidentiary support
for the amount will be vacated by this Court. When, on the contrary, the
restitution has a direct nexus to the crime and is supported by the record, this
Court has accepted a wide range of restitution determinations as authorized
by § 1106. For example, in Commonwealth v. Lock, 233 A.3d 888(Pa.Super. 2020), we affirmed a restitution sentence based upon repair costs,
rather than the value of the property before it was damaged, since it flowed
from the defendant’s crime and was supported by the record. In that case,
the defendant was convicted of failing to keep his dog on his own premises
after it attacked a neighbor’s cat. The sentencing court ordered restitution in
the amount of $9,331.43, which was the costs of the veterinary bills for the
cat’s treatment. The defendant argued that § 1106 capped restitution at “the
amount by which the value of the pet has been substantially decreased.” Id.
at 889 (internal quotation marks omitted).
This Court rejected the claim that restitution was limited to the decrease
in value of the cat, reiterating that § 1106 did not specify a single means of
calculating restitution, but rather allowed for an amount necessary to repair
the property damaged as a result of the crime. Id. at 892. Nor did we accept
the defendant’s argument that the restitution order was invalid because the
amount exceeded the value of the cat. While the record contained no evidence
of the cat’s value, it did fully support the determination of the value of the
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veterinary services; thus, the award in the amount of the veterinary bills,
which were incurred as a result of the defendant’s crime, was within the
sentencing court’s statutory authority. Id. at 892 n.4.
In Burwell, supra, the defendant injured the victim with an electric
guitar, causing broken bones and numbness that lasted for months. A jury
convicted him of aggravated assault, and his sentence included restitution of
$2,800 in lost wages. We affirmed the order, holding that such an award
furthered the mandate of § 1106 to provide the victim with the fullest
compensation for his losses, and that the record supported the amount, as
the victim testified to his average monthly earnings prior to the assault and
presented corroborating documentation. Id. at 794-95.
Appellant has not cited a single case in which this Court disturbed a
mandatory restitution order that had a direct nexus to the defendant’s
conviction and was supported by the record. Nor have we found one.
Moreover, neither the parties nor this Court has located authority addressing
the type of property at issue in the case sub judice. Mr. Armstrong’s loss is
not of past medical bills or future earnings, or of fungible, depreciating
property that may readily be replaced, such as an automobile or a television.
Nor is Appellant capable of returning the coins, which he pawned for far less
than their value, to Mr. Armstrong. Rather, Appellant has forever deprived
Mr. Armstrong of rare collectibles that he acquired, piece by piece, over many
years, searching for those in perfect condition, with zero flaws under a certain
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power of magnification. See N.T. Restitution Hearing, 7/23/18, at 13.
Nowhere can Mr. Armstrong go to reacquire the whole of what Appellant stole.
Hence, we must apply the general principles gleaned from the above-
discussed cases concerning the purposes of restitution and the scope of the
sentencing court’s discretion to our review of the sentencing court’s resolution
of this novel circumstance.
In arguing that the sentencing court abused its discretion in setting the
valuation of Mr. Armstrong’s loss, Appellant acknowledges that restitution is
an equitable remedy, and that § 1106 provides no specific formula for its
calculation. See Appellant’s substituted brief at 20. However, in arguing that
the trial court’s use of the purchase price of the coins is a misapplication of
the law, Appellant suggests that the only acceptable method for determining
the value of stolen property in cases where the record establishes the market
value of the property when it was stolen is to effectuate the definition of
“value” provided for the grading of theft offenses. Id. (citing 18 Pa.C.S.
§ 3903(c)(1) (“[V]alue means the market value of the property at the time
and place of the crime, or if such cannot be satisfactorily ascertained, the cost
of replacement of the property within a reasonable time after the crime.”).
Appellant maintains that such definition is in accord with “the general rule” of
setting market value or replacement cost as the amount of restitution for
stolen or damaged property. Id. (citing Genovese, supra at 333).
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Appellant’s argument proves too much. He has established that our
legislature clearly knew how to provide a limited definition of the value of
stolen property, and it could have specified its applicability to § 1106 if it
wanted to constrain a sentencing court’s discretion in imposing restitution.
Instead, it opted for a flexible standard left to the discretion of a sentencing
court in light of the specific circumstances of each case, requiring the amount
of restitution to be based not only upon the extent of the injury suffered by
the victim, but also “such other matters that it deems appropriate.” 18 Pa.C.S.
§ 1106(c)(2)(i). Moreover, this Court has rejected the notion that a
sentencing court’s discretion in rendering a restitution order is circumscribed
by the amount relevant to the grading the offense. See Commonwealth v.
Wright, 722 A.2d 157, 160 (Pa.Super. 1998) (affirming restitution order of
more than $20,000 although the jury had found the victim’s loss to be
between $1,000 and $5,000).4
In light of our legislature’s demand for restitution to constitute the fullest
compensation for a victim’s loss, and the sentencing court’s freedom to
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4 In Commonwealth v. Poplawski, 158 A.3d 671, 675 (Pa.Super. 2017),
this Court suggested that the holding in Wright was limited to circumstances
where the full amount of the loss was not known at the time the fact finder
made its findings relevant to grading the offenses. However, since the
Poplawski Court held that the restitution amount was not related to a crime
for which the defendant was convicted and was not supported by the record,
its discussion of Wright was dicta. See also Commonwealth v. Dohner,
725 A.2d 822, 824 (Pa.Super. 1999) (affirming restitution award of $2,000
that was supported by the record although the jury determined that the theft
was less than $50).
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consider any matters it deems appropriate in determining the proper amount,
we cannot agree with Appellant that the value of the coin collection at the time
he wrongfully acquired it was necessarily the proper measure. The limitation
simply is not supported by the language of the statute or by the cases applying
it discussed supra. See, e.g., Lock, supra at 892 n.4 (rejecting argument
that restitution amount was capped at the value of the cat at the time it was
injured by the defendant’s dog); Boone, supra at 643-44 (holding restitution
order in the amount of the market value of fraudulently-obtained real estate
was in inadequate award for unique property).
Appellant alternatively concedes that there indeed “may be some cases
where there is a better metric for restitution than market value,” but contends
that “this is not one of them.” Appellant’s substituted reply brief at 6. In fact,
Appellant acknowledges that awarding the replacement costs of the property
taken “makes the victim whole by creating the opportunity to repurchase that
property and restore the pre-theft state of affairs.” Appellant’s substituted
brief at 21-22. However, Appellant conflates replacement costs at the time of
the restitution order with market value at the time of the theft, see id.,something that simply is not true where the stolen property fluctuates in
value.
Indeed, 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
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Appellant. Appellant’s counsel, in cross-examining the victim, attempted to
elicit a concession that the coins would never again be worth more than the
$58,600 market value they held at the time of the theft. Mr. Armstrong
testified that “they already are,” and explained again the impact of
collectability and desirability over time. N.T. Restitution Hearing, 7/23/18, at
19. Yet, rather than offer an updated market value supported by recent sales
of similar coins, Mr. Armstrong vaguely posited that it would cost “[$]150,000
perhaps” to recreate his collection at that point. N.T. Restitution Hearing,
7/23/18, at 13-14. Given the uncertain and unsubstantiated nature of this
evidence, it would have been an abuse of discretion on the part of the trial
court to set replacement costs as the full measure of Mr. Armstrong’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 Mr. Armstrong’s acquisition costs as the full value of
Mr. Armstrong’s loss, rather than the market values at the time of the theft of
the individual coins and sets that comprised the collection, the sentencing
court offered the following 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,
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
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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.
This thoughtful consideration of the extent of the victim’s loss in light of
the atypical property involved evinces an utterly reasonable exercise of the
sentencing court’s considerable sentencing discretion. It entered a restitution
order providing compensation for a loss that the victim would not have
sustained but for Appellant’s crime, and the amount chosen by the sentencing
court representing that loss that is supported by the record. As such, we
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discern no conflict with any provision of § 1106, nor any indication that the
trial court otherwise “ignored or misapplied the law, exercised its judgment
for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Bullock, supra at 1123.
Consequently, in accordance with this Court’s duty when presented with
the requisite nexus between the crime and a restitution amount reasonably
calculated based upon record evidence, we may not disturb the sentencing
court’s exercise of discretion. Therefore, Appellant is entitled to no relief.
Order affirmed.
President Judge Emeritus Bender, Judge Shogan, Judge Olson, Judge
Kunselman, Judge Murray, and Judge McCaffery join this Opinion.
Judge Dubow files a Dissenting Opinion in which Judge Lazarus joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2021
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