Com. v. Hetherington, R. ( 2023 )

J-S18039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
V. :
:
REBECCA HETHERINGTON :
:
Appellant :
:
: No. 2507 EDA 2022
Appeal from the Judgment of Sentence Entered May 6, 2022
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000002-2020
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 29, 2023
Appellant, Rebecca Hetherington, appeals from the judgment of
sentence entered by the Court of Common Pleas of Carbon County following
her entry of a guilty plea to one count of Simple Assault, 18 Pa.C.S.A.
§2701(a)(1), and a stipulation to pay restitution to her victim in the amount
of $23,334.85. Herein, Appellant contends that insufficient evidence
supported the restitution amount and that her plea was unknowing because
an ambiguously worded restitution stipulation clause contained in her written
guilty plea caused her to believe she owed only one-half the restitution
amount stated. After careful review, we affirm.
The trial court opinion sets forth the relevant facts and procedural
history, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant was charged with Aggravated Assault, 18 Pa.C.S.A. §
2702, Simple Assault, 18 Pa.C.S.A. § 2701(a)(1) and Harassment,
18 Pa.C.S.A. § 2709(a)(1) with regard to an incident which
occurred at Skirmish Paintball in Penn Forest Township, Carbon
County, Pennsylvania on July 11, 2019, where both Appellant and
Thomas Grande injured Nicholas DiCostanzo [after Grande
confronted him and punched him to the ground, whereupon
Appellant stomped on DiCostanzo’s ankle causing it to fracture].
On May 18, 2021, Appellant entered into a nolo contendere plea
to Simple Assault, with the remaining charges to be dismissed and
restitution to Mr. DiCostanzo to be later determined. On July 6,
2021, a pre-sentence investigation report was prepared which
included a recommendation of restitution in the amount of twenty-
two thousand three hundred thirty-three dollars and ninety-eight
cents ($22,333.98) to Mr. DiCostanzo. On August 23, 2021,
Appellant filed a “Petition for Leave to Withdraw Nolo Contendere
Plea” which included an assertion that she was not advised by her
former counsel that she would be directed to remit restitution to
Mr. DiCostanzo as part of her sentence. On September 27, 2021,
[the trial court] entered an order granting Appellant’s petition to
withdraw her nolo contendere plea.
On May 2, 2022, Appellant entered into a guilty plea to Simple
Assault, and the remaining charges were dismissed. The written
stipulation [accompanying Appellant’s written guilty plea colloquy]
included the following language: “As per prior PSI . . . Restitution
to victim in pro rata share of $23,344.85.FN That same day,
Appellant was sentenced to a period of probation for twenty-four
(24) months under the supervision of the Carbon County Adult
Probation and Parole Department and directed to pay restitution
in the amount of twenty-three thousand three hundred forty-four
dollars and eighty-five cents ($23,344.85) to Mr. DiCostanzo.
FN On August 30, 2022, Appellant’s counsel submitted a
written request for a thirty (30) day extension of the one hundred
twenty-day time limit for rendering a decision on Appellant’s post-
sentence motions.
On May 6, 2022, Appellant filed her “Post-Sentence Motions
Submitted by the Defendant” challenging the imposition of
restitution and seeking clarification regarding the amount of
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restitution for which she is responsible. Appellant claimed she
believed that she was responsible for one-half of twenty-three
thousand three hundred forty-four dollars and eighty-five cents
($23,444.85) rather than that entire sum.
On September 27, 2022, following an extensive hearing and the
receipt of supplemental documentation from Mr. DiCostanzo, [the
trial court] entered an order denying Appellant’s post-sentence
motions and directing her to pay restitution in the amount of
twenty-three thousand three hundred forty-four dollars and
eighty-five cents ($23,344.85) to Mr. DiCostanzo.[] Trial Court
Order of 9/27/22. Although the record supported a higher
restitution amount, [the trial court] found that because the parties
entered into a written stipulation for a guilty plea which included
restitution to Mr. DiCostanzo in the pro rata share of twenty-three
thousand three hundred forty-four dollars and eighty-five cents
($23,344.85). Id.
On October 4, 2022, Appellant filed an appeal to the Superior
Court of Pennsylvania requesting review and reversal of [the trial
court’s judgment of sentence, with specific reference to the
hearing on her post-sentence motion challenging the amount of
her restitution sentence]. On October 5, 2022, [the trial court]
entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In compliance with our order, Appellant filed her “Concise
Statement of Matters Complained of on Appeal” on October 25,
2022.
Trial Court Opinion, 11/2/22, at 1-4.1
____________________________________________
1 A notice of appeal must be filed within 30 days of the entry of the order
being appealed. See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d
1253 (Pa. Super. 2000). If the defendant files a timely post-sentence motion,
the notice of appeal shall be filed within 30 days of the entry of the order
deciding the motion. See Pa.R.Crim.P. 720(A)(2)(a). A trial court has 120
days to decide a post-sentence motion, and if it fails to decide the motion
within that period, the motion is deemed denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). When the motion is deemed denied by operation
of law, the clerk of courts shall enter an order deeming the motion denied on
behalf of the trial court and serve copies on the parties. See Pa.R.Crim.P.
720(B)(3)(c). The notice of appeal shall be filed within 30 days of the entry
(Footnote Continued Next Page)
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Consistent with the issues raised in her Pa.R.A.P. 1925(a) statement,
Appellant presents in her brief the following question for our review:
1. Did the trial court abuse its discretion and commit reversible
error when it held [Appellant] was bound to the terms of a
stipulation concerning restitution to the alleged victim when
such terms were ambiguous and subject to differing
interpretations?
2. Did the trial court erroneously calculate the dollar amount of
restitution owed the alleged victim by failing to consider dollar
amounts shown on W-2 forms for years prior to the subject
assault and by failing to consider that some medical expenses
claimed by the victim were for services rendered after he
returned to work?
Appellant’s brief, at 7.
Appellant’s first challenge to the imposition of restitution contends she
effectively entered an unknowing and involuntary guilty plea because she
____________________________________________
of the order denying the motion by operation of law. See Pa.R.Crim.P.
720(A)(2)(b).
Here, the 120-day period for decision on Appellant’s post-sentence motion
expired on September 6, 2022. However, the clerk of courts failed to enter
an order deeming the motion denied on that date. Instead, the trial court
entered an order denying the post-sentence motion on September 27, 2022,
outside the 120-day period, and Appellant appealed within 30 days of that
order.
This Court has held that a court breakdown occurs when the trial court clerk
fails to enter an order deeming post-sentence motions denied by operation of
law pursuant to Pa.R.Crim.P. 720(B)(3)(c). See Commonwealth v.
Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) (citing Commonwealth
v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003)). Appellant’s notice of appeal
was filed within thirty days of the expiration of the 120-day period, and within
thirty days of the trial court’s September 27, 2022, order denying the post-
sentence motions. Accordingly, we decline to quash the appeal and proceed
to consider Appellant’s substantive issues.
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misconstrued what, she maintains, was an ambiguously worded stipulation
about her obligation to pay restitution in her pro rata share of $23,334.00.
The principles governing post-sentence motions to withdraw guilty pleas are
as follows:
It is well-settled that the decision whether to permit a defendant
to withdraw a guilty plea is within the sound discretion of the trial
court.[] Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa.
Super. 2013) (quotation omitted); see Commonwealth v.
Broaden, 980 A.2d 124, 128 (Pa. Super. 2009) (noting that we
review a trial court's order denying a motion to withdraw a guilty
plea for an abuse of discretion), appeal denied, 606 Pa. 644, 992
A.2d 885 (2010). Although no absolute right to withdraw a guilty
plea exists in Pennsylvania, the standard applied differs depending
on whether the defendant seeks to withdraw the plea before or
after sentencing. When a defendant seeks to withdraw a plea
after sentencing, he “must demonstrate prejudice on the order of
manifest injustice.” Commonwealth v. Yeomans, 24 A.3d
1044, 1046 (Pa. Super. 2011). In Commonwealth v. Prendes,
97 A.3d 337, 352 (Pa. Super. 2014), impliedly overruled on
other grounds by Commonwealth v. Hvizda, 632 Pa. 3, 116
A.3d 1103, 1106 (2015), we explained that a defendant may
withdraw his guilty plea after sentencing “only where necessary
to correct manifest injustice.” Prendes, 97 A.3d at 352 (citation
omitted). Thus, “post-sentence motions for withdrawal are
subject to higher scrutiny since the courts strive to discourage the
entry of guilty pleas as sentence-testing devices.”
Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002).
“Manifest injustice occurs when the plea is not tendered
knowingly, intelligently, voluntarily, and understandingly.”
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super.
2016) (citation omitted). In determining whether a plea is valid,
the court must examine the totality of circumstances surrounding
the plea. Id. “Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.” Id....
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As stated, to be valid, a plea must be voluntary, knowing, and
intelligent. Commonwealth v. Persinger, 532 Pa. 317, 615
A.2d 1305, 1307 (1992). To ensure these requirements are met,
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires
that a trial court conduct a separate inquiry of the defendant
before accepting a guilty plea. It first requires that a guilty plea
be offered in open court. The rule then provides a procedure to
determine whether the plea is voluntarily, knowingly, and
intelligently entered. As the Comment to Rule 590 provides, at a
minimum, the trial court should ask questions to elicit the
following information:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has
the right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible
range or sentences and/or fines for the offenses
charged?
(6) Is the defendant aware that the judge is not bound
by the terms of any plea agreement tendered unless
the judge accepts such agreement?
Pa.R.Crim.P. 590, Comment (Emphasis added).[] In Yeomans,
this Court explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences.
This determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
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a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Yeomans, 24 A.3d at 1047 (Pa. Super. 2011) (citing
Commonwealth v. Fluharty, 632 A.2d 312, 314–15 (1993)).
Commonwealth v. Hart, 174 A.3d 660, 664-65, 667–68 (Pa. Super. 2017)
(emphasis in original).
On the morning of Appellant’s scheduled jury trial, the Commonwealth
informed the trial court that Appellant had signed a counseled stipulation
stating the Commonwealth would dismiss the first-degree felony aggravated
assault and summary harassment charges against her in exchange for her
agreement to plead guilty to simple assault—which carried a two-year
probationary sentence—and to pay “restitution to the victim in her pro rata
share of $23,344.85.” Guilty Plea/Sentencing Hearing, 5/2/22, at 3-4.
Defense counsel confirmed these were the terms of the stipulation and that
he reviewed the guilty plea colloquy with Appellant and was present with her
as she initialed and signed all pages. N.T. at 4.
The trial court conducted a thorough colloquy of Appellant, see pp. 4-
17, after which it concluded she was entering a knowing, voluntary, and
intelligent guilty plea. Returning to the issue of restitution, the trial court
noted that Appellant’s July 16, 2021, presentence investigation report
prepared at her request identified the amount of restitution owed at
$22,333.98. N.T. at 18. The Commonwealth advised the trial court, however,
that over the ensuing eleven months the victim incurred additional related
medical bills that brought Appellant’s pro rata share to $23,334.85. Id.-7-
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The trial court also observed there had been an “oversight” when
Appellant’s initial PSI report had indicated that her listed restitution amount
reflected the entire amount of restitution to be paid to the victim, when in
fact, the trial court clarified, “this is really a pro rata share or one-half share
because of the situation with Mr. Grande?”, thus acknowledging that the
amount represented a one-half share because Appellant was only one of two
assailants. Id. Accordingly, when the trial court announced sentence at the
conclusion of the hearing, it stated, without contemporaneous objection,
“[Appellant] will pay restitution pro rata share in the amount of $23,344.85
to Nicola DiCostanzo.” N.T. at 21.
On May 6, 2022, however, Appellant filed a timely counseled post-
sentence motion challenging the voluntariness of her guilty plea with respect
to the amount of the restitution ordered. Specifically, Appellant’s motion
maintained “that at all times prior to entry of the guilty plea and during
sentencing in this matter, [she] was under the impression that she was to
make restitution to the alleged victim of her pro rata share of a total of
$23,344.85[,]” or, in other words, of only one-half of the total of $23,344.85.
The post-sentence motion also asserted that “[Appellant] does question
the claimed dollar amount of unpaid medical charges sought by the alleged
victim through restitution[,]” because the Commonwealth failed to produce
unpaid medical bills or other statements substantiating the stated restitution
amount prior to the presentation of the Stipulation. To that assertion,
Appellant argued Appellant “always was covered by an excellent health
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insurance plan through his Union employment[,] . . . it is also presently
unknown to the [Appellant] what medical bills of the alleged victim were
actually paid by his health insurance carrier[, and] . . . it is presently unknown
to [Appellant] what secondary sources of income, if any, were paid out to and
received by the alleged victim. . . .”
At the August 2, 2022, hearing on the post-sentence motion, defense
counsel argued that the wording of the stipulation led him to believe that
Appellant was responsible for “her proportionate share of a certain amount,
$23,000. Prior to that being signed, I had not been supplied with any
documentation evidencing the dollar amount of the claimed restitution. . . . It
was only afterward that Attorney Gazo was courteous enough to advise me
that [the] claimed total was actually $46,000 and that somehow the $23,000
would be my client’s responsibility.” Post-Sentence Motion Hearing, 8/2/22,
at 4.
Addressing Appellant’s claim that both the written stipulation and the
trial court’s subsequent plea colloquy contained an ambiguously expressed
restitution obligation that rendered her plea involuntary, we examine the
totality of circumstances evident in the record and perceive no manifest
injustice with the trial court’s denial of Appellant’s post-sentence motion to
withdraw her guilty plea. The stipulation in question, “As per prior PSI . . .
Restitution to victim in pro rata share of $23,344.85” is not ambiguous. It
states clearly that she must pay restitution in her share of $23,344.85. It
does not say that she must pay her share of $23,344.85 restitution, which
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would reduce the figure by half and is how she asks this Court to interpret the
stipulation.
Furthermore, there was no indication of record that counsel and
Appellant believed that the PSI report oddly withheld the exact dollar amount
of her restitution obligation in favor of presenting an incomplete calculation
that left it to them to figure out her obligation by dividing the specified amount
by 2. Finally, their post-sentence and appellate argument becomes more
unavailing still when one considers that the trial court concluded the guilty
plea/sentencing hearing with a different plainly worded announcement that
Appellant was to pay her pro rata share of restitution in the amount of
$23,344.85, and neither counsel nor Appellant objected to or questioned the
announcement in open court. Therefore, in light of this record and pertinent
authority, we discern no reversible error with the trial court’s conclusion that
Appellant entered a knowing guilty plea with respect to the stated amount of
her restitution obligation.
Appellant’s second issue asserts that insufficient evidence supported the
claimed restitution amount. Specifically, she charges the trial court with
erroneously calculating the dollar amount of restitution owed the victim by
failing to consider income shown on W-2 forms for years subsequent to the
subject assault and by failing to consider that some medical expenses claimed
by the victim were for services rendered after he returned to full-time
employment. We disagree.
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The following principles govern our review from a challenge to the
imposition of restitution as part of a sentence:
“[T]he 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. Solomon, 247 A.3d 1163, 1170 (Pa. Super. 2021) (en banc)
(internal citation and quotations omitted), appeal denied, 274
A.3d 1221 (Pa. 2022); see also 18 Pa.C.S.A. § 1106(c)(1)
(requiring the court to order “full restitution ... so as to provide
the victim with the fullest compensation for the loss”). . . .
Challenges to a restitution order may go to the legality of the
sentence, i.e., the trial court's statutory authority to impose
restitution under section 1106(c)(1), or the discretionary aspects
of the sentence, i.e., the trial court's determination of the amount
of restitution. See Commonwealth v. Weir, 239 A.3d 25, 38
(Pa. 2020).
A defendant's “discontent with the amount of restitution and the
evidence supporting it is a challenge to the sentencing court's
exercise of discretion” and constitutes a challenge to the
discretionary aspects of the sentence. Id. When a court imposes
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.” Solomon, 247 A.3d at 1170 (internal
citation and quotations omitted). To determine the correct
amount of restitution, a court must use a “but-for” test: “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. Poplawski, 158 A.3d 671, 674 (Pa. Super.
2017) (internal citation omitted).
Commonwealth v. Wilcox, 293 A.3d 605 (Pa. Super. 2023).
There is no dispute in this issue that Appellant participated in an assault
that caused bodily injury to Mr. DiCostanzo necessitating medical expenses
and resulting in lost wages, nor does Appellant contest that the trial court had
the statutory authority to order full restitution to provide Mr. DiCostanzo with
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complete compensation for his loss. See 18 Pa.C.S.A. § 1106(c)(1). Rather,
Appellant challenges the amount of restitution imposed.
It is well settled that a challenge to the discretionary aspects
of a sentence does not entitle an appellant to review as of right.
See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). Rather, such a challenge must be considered a petition for
permission to appeal. See Commonwealth v. Christman, 225
A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the merits
of a discretionary sentencing issue,
[w]e conduct a four-part analysis to determine: (1)
whether [the] appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether [the] appellant's brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (internal citation and brackets omitted).
Wilcox, 293 A.3d at 608.
While Appellant complies with the first two parts of the analysis, he fails
to include in his appellate brief a Rule 2119(f) concise statement of reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of sentence seeking permission. Nevertheless, we decline to find waiver, as
the Commonwealth does not include in its one-paragraph argument
denouncing this “frivolous” appeal an objection positing that Appellant has
waived her challenge to the discretionary aspects of her sentence. We have
held that “in the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule 2119(f).”
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Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006). Accord
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2019).
Turning to the substance of Appellant’s argument, she maintains that
the trial court undertook an inadequate review of Mr. DiCostanzo’s lost wages
caused by the July 2019 assault. Among other evidence, the court considered
W-2 forms which showed Mr. DiCostanzo’s past earnings were $94,424.00 in
2017, N.T. at 37, $82,681.00 in 2018, N.T. at 41, and $45,791.20 from
January 1, 2019 to July 11, 2019, the date of his attack, all of which were
earned while working contractually guaranteed 40-hour work weeks for ADCO
Electrical Corporation on a long-term construction project at Hudson Yards.
At the hearing on Appellant’s post-sentence motion, however, Appellant
underscored that after DiCostanzo had returned to full employment in
February of 2020, his W-2 for that year showed eleven months of wages
totaling $49,243.00, which extrapolates to an annual wage of only $53,720
for that year. She argues, therefore, that the “best evidence” of DiCostanzo’s
lost wages in 2019 due to injury included records of his wages earned from
the date of his 2020 return to work to the August 2, 2022, restitution hearing,
along with DiCostanzo’s own testimony that his income was variable
depending on the job he was working.
DiCostanzo testimony addressed explained that his 2020 earnings and
beyond reflected the fact that he was no longer working the Hudson Yards site
but had been assigned, instead to a different job operating under the union’s
standard 35-hour work week. N.T. at 21-22. Furthermore, DiCostanzo
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explained that his 2018 annual earnings at the ADCO job were slightly reduced
because it was his turn to participate in work sharing, a system in which his
union required 10% of the workforce, (80 out of the 800 at the ADCO site) to
be furloughed for eight weeks while other workers replaced them. N.T. at 16-
17, 41-42. He testified his 2019 annual earnings would return to 2017 levels,
as he had just started a “multimillion [dollar] job doing ten floors for Time
Warner in Hudson Yards” working 40-hour weeks at his $52 hourly rate. N.T.
at 18.
Yet, at the hearing on his post-sentence motion, Appellant expressed
particular concern that Appellant had not submitted a W-2 from 2019, the
year of his injury, showing what his earnings had been from January through
July 11, 2019. He argued, “if the alleged victim came in today and showed
us a W-2 from the year of injury that showed he only made this amount of
money, that’s demonstrative evidence and would bolster what he says in that
regard, but we don’t have that.” N.T. at 45.
In response, the Commonwealth argued that DiCostanzo’s unrefuted
testimony was that for all of 2019 leading up to the July attack and injury, he
was employed full-time, 40-hours per week at the contract rate of $52 per
hour and was on course to earn between $90,000 and $100,000 for that
calendar year. N.T. 17-22. Moreover, during a brief recess, DiCostanzo
obtained his 2019 W-2 showing his six months’ earnings of $45,791, N.T. at
54, which substantiated his testimony.
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The Commonwealth also explained that it had arrived at its restitution
request by averaging two W-2s from the previous two years of 2017 and 2018,
in which he had worked the same 40-hour work weeks at $52 per hour, and
had also experienced an eight week work sharing furlough in 2018, and the
average annual earnings over those two years preceding 2019 was
$88,388.94. To that figure, the Commonwealth explained, it had added the
unpaid ambulance bill and several medical bills, divided that figure by 2 to
reflect DiCostanzo’s total six-month loss of $46,689.70, and divided that total
by 2 to reflect Appellant pro rata share of $23,344.85. N.T. at 22-28.
Our review confirms that the trial court reached an appropriate amount
of restitution based on DiCostanzo’s earning history up to and including the
year of his injury and his unreimbursed medical expenses and out-of-pocket
costs. As the trial court explained in its Order of September 27, 2022, denying
Appellant’s post-sentence motion, Appellant’s restitution amount of
$23,344.85 pursuant to the stipulation in the written plea agreement was fact-
based and slightly below one-half the amount of DiCostanzo’s final tally of lost
wages and unreimbursed costs:
Based on our review of the testimony and evidence presented, we
find that the record supports restitution in the amount of twenty-
five thousand forty-six dollars and twenty-nine cents
($25,046.29). This sum is based on a thorough review of Mr.
DiConstanzo’s [sic] 2019 and 2020 W-2 forms, taking into account
that he worked until he was injured on July 11, 2019, and that he
did not return to his employment until February of 2020. Based
upon the documentation introduced into evidence, Mr.
DiConstanzo’s [sic] total wage loss during this period was
$48,042.47. In addition, unreimbursed medical expenses and
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out-of-pocket costs totaled $2,050.10 for a combined total
restitution figure of $50,092.57. Dividing that sum in half to arrive
at [Appellant’s] pro rata share yields a restitution amount of
$25,046.29 which reflects the lost wages, unreimbursed medical
expenses and out-of-pocket costs sought by Mr. DiCostanzo and
sustained as a direct result of [Appellant’s] criminal conduct in this
matter.
The foregoing notwithstanding, we find that [Appellant] is
responsible for restitution in the lesser amount of twenty-three
thousand three hundred forty-four dollars and eighty-five cents
($23,334.85) as the agreed-upon sum in the parties’ written
stipulation. “A stipulation is a declaration that the fact agreed
upon is proven, and a valid stipulation must be enforced according
to its terms.” Commonweatlh v. Gvoko, 243 A.3d 247, 249 (Pa.
Super. 2020) (quoting Commonweatlh v. Mitchell, 902 A.2d
430, 460 (Pa. 2006)). “Moreover, when a plea is entered following
negotiations, it is even more important that the terms of the
agreement be followed.” Commonwealth v. Ortiz, 854 A.2d
1280, 1283 (Pa. Super. 2004). The Superior Court has held that
it is improper to modify the terms of restitution where the amount
of additional restitution could have been ascertained and revealed
to the trial court prior to sentencing, the restitution was part of a
plea agreement and there was no change in circumstances. See
[Id.] at 1284.
Trial Court Opinion at 7-8.
As we find the record supports the trial court’s restitution sentence
imposed in the case sub judice, we deny Appellant’s second issue as meritless.
Judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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