Com. v. Rookstool, R. ( 2021 )

J-S06026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUTH ROXY ROOKSTOOL :
:
Appellant : No. 227 EDA 2020
Appeal from the Judgment of Sentence Entered November 25, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001151-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: Filed: September 30, 2021
Appellant Ruth Roxy Rookstool appeals from the judgment of sentence
imposed following her jury convictions for theft by unlawful taking, insurance
fraud, and conspiracy to commit insurance fraud.1 Appellant raises numerous
arguments that her convictions are constitutionally infirm. Appellant also
challenges the increase in her bail following her conviction and her sentence,
and her sentence. For the reasons that follow, we affirm in part, vacate in
part, and remand for further proceedings to consider the trial court’s
restitution award.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 4117(b)(4), and 903, respectively.
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The parties are familiar with the facts and procedural history of this
appeal.2 Briefly, we note that Appellant’s convictions concern her time as the
treasurer and bookkeeper for the Morrisville Borough Ambulance Squad (MAS)
and her interactions with her co-defendant, Brian Eckhart, between 2011 and
2018. Following her arrest, the magisterial district court released Appellant
on unsecured bail of $50,000.00. Appellant’s counsel, Brian M. Puricelli, Esq.,
entered his appearance.
On August 21, 2019, the parties litigated Appellant’s pre-trial motions,
which included claims that the Commonwealth failed to timely provide
discovery or disclose a list of proposed witnesses. After hearing arguments
from the parties, the trial court deferred its ruling and instructed Appellant’s
counsel to object to any undisclosed information during trial.
During jury selection, an issue arose concerning inconsistencies
between the potential jurors’ responses on their written questionnaires and
their in-court responses to the trial judge. Following additional questioning of
the jury pool and individual prospective jurors, the parties exercised their
peremptory strikes and selected a jury.
Following a four-day trial, at which Appellant testified on her own behalf,
the jury convicted Appellant of the above-mentioned offenses on August 27,
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2 The trial court also summarized the procedural and factual history of this
appeal in its supplemental Pa.R.A.P. 1925(a) opinion. See Supplemental Trial
Ct. Op., 11/10/20, at 1-13.
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2019.3 Upon a motion by the Commonwealth at the conclusion of trial, the
trial court increased Appellant’s bail to $100,000.00. Appellant filed post-trial
motions, including a motion to modify bail, which the trial court denied
pending the completion of the pre-sentence investigation report (PSI).
On November 25, 2019, the trial court sentenced Appellant to a
recidivism risk reduction incentive (RRRI) sentence of eleven and one-quarter
to thirty-six months’ incarceration and a consecutive sixty months’ probation.
See 61 Pa.C.S. §§ 4501-4512. The trial court also ordered Appellant to pay
$101,634.55 in restitution. Appellant did not file post-sentence motions.
On December 20, 2019, Appellant timely appealed and
contemporaneously filed a Rule 1925(b) statement.4 The trial court initially
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3 The trial court instructed the jury to determine whether the theft concerned
an amount over $2,000.00, and the jury found that Appellant’s theft conviction
involved an amount over $2,000.00. See Verdict, 8/27/19; 18 Pa.C.S. § 3903
(grading theft as a third-degree felony when “the amount involved exceeds
$2,000”).
4 The trial court did not order a Rule 1925(b) statement. This Court has held
that when an appellant files a Rule 1925(b) statement before the trial court
orders one, “there is no need for the trial court to request it.”
Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008). As the
Nobles Court reasoned, this Court will not encourage “‘sandbagging’ by
counsel if they are allowed to quickly file a Rule 1925(b) statement and then
claim that nothing is waived because the Rule 1925(b) statement was not in
response to a formal request.” Id. (noting that the Commonwealth’s
voluntary filing of an unrequested Rule 1925(b) statement, which failed to
specify a challenge concerning the court’s error in considering a suppression
motion raised by the defendant in the middle of trial, required waiver of that
challenge).
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filed a Rule 1925(a) opinion finding waiver due to Appellant’s failure to order
the necessary transcripts.
On March 26, 2020, this Court remanded this matter for Appellant to
order the transcripts. During the remand, Appellant ordered the transcripts
and filed additional motions to compel production of documents concerning
restitution and jury selection. The trial court granted the motions to compel,
but later indicated that the jury pool’s written questionnaires were destroyed.
See Supplemental Trial Ct. Op. at 13. The trial court filed a supplemental
Rule 1925(a) opinion.
Appellant presents the following issues for review:
1. Whether the pre, post, and trial motion rulings, and for
objections, are singularly or collective reversible error, an
abuse of discretion, and/or manifest abuse of discretion that
denies [Appellant] of constitutional rights and requires
reversal of the conviction?
2. Whether the post-verdict but presentencing bail change is
error?
3. Whether the sentencing is a manifest abuse of discretion?
Appellant’s Brief at 1.
Issue 1—Singular or Collective Reversible Pre, Post, and
Trial Errors
In her first issue, Appellant states that “there are many prejudicial errors
and abuses of discretion that when viewed singularly or collectively denied
[her] a fair trial . . . .” Id. Appellant argues cumulative prejudice to her
constitutional rights to the presumption of innocence and proof beyond a
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reasonable doubt and, throughout her brief, cites individual claims concerning
(A) the sufficiency of the evidence, see id. at 14, 20, 30-31 (B) the failure to
strike the entire jury pool, see id. at 18-20, 26, (C) discovery violations, see
id. at 21, (D) the trial court’s evidentiary rulings, id. at 27-30, (E) improper
questions and comments by the prosecutor, id. at 31, and (F) the trial court’s
jury instructions, see id. at 20.
The Commonwealth responds that Appellant’s individual issues are
“quite difficult to discern” and argues that her “legal analysis following the
litany of issues touched upon throughout her brief is often entirely
undeveloped, if present at all.” Commonwealth’s Brief at 25. The
Commonwealth asserts that “the vast majority of claims . . . should be deemed
waived” due to Appellant’s non-compliance with the issue preservation and
briefing requirements in the Pennsylvania Rules of Appellate Procedure. Id.
In any event, the Commonwealth contends that Appellant either failed to
preserve her individual claims in the trial court or raise any meritorious
appellate arguments. Id. at 29-34, 36-38, 41-43, 45-47, 49-51.
Initially, we note that while this Court has recognized that cumulative
errors may deprive an appellant of a fair trial, an appellant cannot bootstrap
a series of meritless claims into a claim of cumulative error. See
Commonwealth v. Rolan, 964 A.2d 398, 411 (Pa. Super. 2008) (stating that
“no number of failed claims may collectively attain merit if they could not do
so individually” (quotation marks omitted)); Commonwealth v. Scott, 212
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A.3d 1094, 1113 (Pa. Super. 2019), appeal denied, 222 A.3d 383 (Pa. 2019).
Therefore, we will review each of Appellant’s claims individually.
A. Sufficiency of the Evidence
Before considering Appellant’s sufficiency of the evidence claims, we
note the Commonwealth’s assertion that Appellant waived her arguments.
The Commonwealth correctly argues that Appellant’s brief lacks any citation
to the relevant standard of review and criminal statutes defining her conviction
for theft by unlawful taking, insurance fraud, and conspiracy to commit
insurance fraud. Commonwealth’s Brief at 28. Additionally, the
Commonwealth asserts that Appellant’s Rule 1925(b) statement was too
vague to preserve her arguments. Id. at 28.
As discussed below, we agree that certain claims are waived, but we will
consider Appellant’s sufficiency of the evidence claims that are appropriate for
our review.
Theft
We first address Appellant’s sufficiency argument concerning her theft
conviction. Our review reveals that she preserved this claim in her Rule
1925(b) statement and that the trial court addressed it in its Rule 1925(a)
opinion. Therefore, we will address the substantive merits of this claim.
Appellant contends that the evidence was insufficient to establish her
conviction for felony-three theft because she wrote checks for legitimate
reasons related to MAS, such as snow removal, food, supplies for fundraisers,
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and routine maintenance of vehicles and equipment. Appellant’s Brief at 15-
16. Appellant argues that the Commonwealth’s case was speculative because
the Commonwealth failed to prove “actual knowledge about the checks and
could not by the checks provide evidence for guilt or intent.” Id. at 15.
Appellant emphasizes that investigators initially believed that she stole money
because she was unable to provide documents but failed to consider those
documents were destroyed. Id. Appellant further asserts that the
Commonwealth failed to establish the value and ownership of the property
taken. Id. at 20.
The Commonwealth argues that there was overwhelming evidence to
convict Appellant of theft. Id. at 29. The Commonwealth, in part, notes that
it presented evidence that Appellant wrote MAS checks to reimburse herself
for payments that she personally made on behalf of MAS and that the
reimbursements exceeded the payments that she made. Id. at 33.
The principles governing our review of a challenge to the sufficiency of
the evidence are as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
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may sustain its burden of proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier of fact while passing
upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Sanchez, 848 A.2d 977, 982 (Pa. Super. 2004)
Section 3921(a) of the Crimes Code defines theft by unlawful taking, in
relevant part as follows: “A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a). Section 3903 provides that a
theft offense is graded as a third-degree felony “if the amount involved
exceeds $2,000,” but is less than $100,000. See 18 Pa.C.S. § 3903(a.1);
see also 18 Pa.C.S. § 3903 (a)(5) (grading theft as a second-degree felony
if amount involved “is $100,000 or more but less than $500,000”).
Here, the trial court stated:
[T]he Commonwealth proved that Appellant unlawfully took
money of [MAS] with intent to deprive it and this amount
exceeded $2,000 but was less than $100,000. Through its
numerous witnesses, the Commonwealth introduced evidence
that Appellant exercised control over MAS’s checkbook and
accounts and enriched herself.
Through the testimony of Ms. Hoffer, MAS’s President, the
Commonwealth showed that Ms. Hoffer had the authority to sign
checks on behalf of MAS and two signatures were required for
each check. N.T. [Trial, 8/22/19, at 148]. In order to pay bills in
a timely manner, a signature stamp was created with Ms. Hoffer's
signature. Id. at 148-49. However, Appellant was only
authorized to use the signature stamp for business related to MAS.
Id. at 150.
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Through the testimony of Appellant's co-conspirator, Mr. Brian
Eckert, the Commonwealth showed that Appellant took money
from MAS with the intent to deprive MAS when Appellant paid for
a honeymoon with MAS’s funds and used a Home Depot credit
card to buy Appellant a dishwasher. Id. at 153, 155. Appellant
and Mr. Eckert paid $1,675.02 for the honeymoon and over $500
for the dishwasher. Id. at 201-02, 248. Additionally, Appellant
reimbursed herself [over $5,000.00] in excess of the amount
charged on her credit card for Stamps.com, as demonstrated
through the testimony of Detective Landamia.
Supplemental Trial Ct. Op. at 19-20.
On this record, we agree with the trial court’s reasoning that the
evidence was sufficient to sustain Appellant’s convictions for theft.5
Accordingly, Appellant’s claim fails.
Waiver—Insurance Fraud
Appellant also contends that the evidence was insufficient to sustain her
conviction for insurance fraud. Appellant’s Brief 28, 31. Appellant essentially
argues that the Commonwealth’s evidence failed to establish the mens rea
element of insurance fraud, namely, that she acted knowingly and with the
intent to defraud MAS’s health insurance providers. See id.; see also 18
Pa.C.S. § 4117(b)(4) (defining insurance fraud, in part, as “[a] person may
not knowingly and with intent to defraud any insurance company, self-insured
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5 Appellant also contends that the jury’s verdict on the amount involved in her
theft conviction is suspect because the Commonwealth and the jury included
health care payments as a theft amount. However, the Commonwealth’s
evidence based on excess reimbursements for Stamps.com alone was
sufficient to establish a theft involving over $2,000.00. Therefore, we address
Appellant’s claim regarding the possible confusion in the jury’s calculation of
the amounts involved in greater detail when considering Appellant’s challenge
to the trial court’s jury instructions.
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or other person file an application for insurance containing any false
information or conceal for the purpose of misleading information concerning
any fact material thereto”).
It is well settled that a Rule 1925(b) statement must sufficiently identify
the errors complained of on appeal. See Pa.R.A.P. 1925(b)(4)(ii), (vii);
Commonwealth v. Williams, 204 A.3d 489, 494-95 (Pa. Super. 2019)
(reiterating that “[w]hen the trial court has to guess what issues an appellant
is appealing, that is not enough for meaningful review” (citation omitted).
Additionally, this Court has held that an Appellant may not raise a new theory
for relief for the first time in her appellate brief. Cf. Commonwealth v.
Jones, 191 A.3d 830, 834-35 (Pa. Super. 2018) (finding waiver of a weight
of the evidence argument that differed from the argument in a defendant’s
post-sentence motion and Rule 1925(b) statement).
Instantly, Appellant’s Rule 1925(b) statement raised the following issue
challenging the sufficiency of the evidence underlying her insurance fraud
conviction:
Whether the conviction is constitutional firm, the court errs or
abuses discretion, and the accused is materially prejudiced, to
require the verdict vacated and a new trial granted, when for the
theft charged by the insurance claim payment?
Rule 1925(b) Statement, 12/20/19, at ¶ 6 (verbatim).
The trial court concluded that it was “unclear” what Appellant’s Rule
1925(b) statement meant. Supplemental Trial Ct. Op. at 23. Nevertheless,
when attempting to consider the statement, the trial court noted that
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Appellant’s theft conviction concerned her use of unauthorized MAS checks
and that her theft conviction did not relate to MAS’s payment of premiums for
her health insurance. Id.Based on the foregoing, we conclude that Appellant’s Rule 1925(b)
statement did not preserve a challenge to the mens rea elements of insurance
fraud. Therefore, we are constrained to agree with the Commonwealth that
Appellant has waived her sufficiency issue concerning insurance fraud
pursuant to Rule 1925(b)(4)(ii) and (vii). See Pa.R.A.P. 1925(b)(4)(ii), (vii);
Jones, 191 A.3d at 834-35.
Waiver—Conspiracy
As to Appellant’s conspiracy conviction, our review of Appellant’s Rule
1925(b) statement and her brief reveals Appellant’s failure to raise a colorable
issue or argument that the evidence was insufficient to sustain this conviction.
Specifically, Appellant fails to identify any specific elements of the offense that
the Commonwealth did not prove beyond a reasonable doubt. Therefore, we
will not address her sufficiency challenge to the conspiracy offense. See
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (noting that
it is an appellant’s duty to present arguments that are sufficiently developed
for our review [and] when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived” (some citations omitted)).
For the foregoing reasons, we conclude that Appellant preserved a
single, meritless challenge to the sufficiency of the evidence sustaining her
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theft conviction and failed to preserve sufficiency issues concerning her
insurance fraud and conspiracy convictions. Accordingly, Appellant’s
challenges to the sufficiency of the evidence merit no relief.
B. Jury Selection
Appellant next contends that the trial court erred in denying her motion
to strike the entire jury pool. In support, Appellant refers to “significant
inconsistencies” between the prospective jurors’ answers on their written
questionnaires and their in-court answers during jury selection. Appellant’s
Brief at 18. Appellant concludes that a fair and impartial jury could not have
been seated. Id. The Commonwealth responds that this issue is waived
because Appellant did not move to strike the entire jury pool.
Commonwealth’s Brief at 36-37.
It is well settled that a party must raise a timely objection in the trial
court in order to preserve an issue for appeal. See Pa.R.A.P. 302(a);
Commonwealth. v. Philistin, 774 A.2d 741, 742 (Pa. 2001) (finding that an
appellant waived a challenge to the racial makeup of the jury by failing to
object during voir dire). Moreover, an appellate brief must contain citations
to the record demonstrating where she preserved an objection. See Pa.R.A.P.
2117(c)(2) & 2119(e).
Here, Appellant’s brief does not contain any citations to the record where
she preserved her objection to the entire jury panel. See Pa.R.A.P. 2117(c)(2)
& 2119(e). Appellant’s reply brief, again without a specific citation to the
record, discusses the portion of the jury selection transcripts that refers to a
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sidebar conference discussing the prospective jurors’ inconsistent answers on
their questionnaires and during voir dire. Appellant’s Reply Brief at 11
(arguing that the “the issue was preserved through a side bar, which the
Commonwealth was present and spoke to oppose the disqualification of the
jury poll).
However, our review of the sidebar conference to which Appellant refers
to in her reply brief fails to substantiate Appellant’s assertion that she
specifically requested dismissal of the entire panel of prospective jurors. See
N.T. Voir Dire, 8/21/19, at 28-29. Specifically, the jury selection transcripts
lack any record of Appellant’s objection to the entire pool, the trial court’s
overruling of such an objection, and any follow-up objection to the trial court’s
ultimate remedy of questioning the jury pool regarding their inconsistent
answers on their questionnaires and in-court. See id. at 33-34 (indicating
that Appellant’s counsel only questioned the jury pool regarding their ability
to decide the matter impartially). Further, except for prospective juror
number 8, Appellant did not move to strike an individual juror for cause based
on the potential juror’s inconsistent answers during voir dire. See id. at 35-
38.
Under these circumstances, we are constrained to agree with the
Commonwealth. Although Appellant challenged an individual prospective
juror, she did not object and move to dismiss the entire jury pool. Therefore,
this issue is waived. See Pa.R.A.P. 302(a); Philistin, 774 A.2d at 742.
C. Discovery Violations
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Appellant next contends that the trial court erred in denying her pretrial
motions to preclude evidence or witnesses for the Commonwealth’s Brady6
violations and untimely responses to her requests for discovery.
By way of background, Appellant and the Commonwealth argued
discovery issues at a pre-trial hearing on August 21, 2019. N.T. Trial,
8/21/19, at 3-26. At the hearing, the parties’ discussion included references
to problems exchanging three flash drives due to Appellant’s counsel entering
his appearance using an old office address and Appellant’s inability to access
those drives because the Commonwealth protected them with a password.
Id. at 4-10. At least one of the flash drives prepared by the Commonwealth
was also empty, which the Commonwealth attributed to the size of the file
involved. Id. at 8. The parties also represented that on August 19, 2019,
two days before trial, Appellant’s counsel went to the District Attorney’s office
to review materials that could not be put on a flash drive. Id. at 9-10.
Appellant argued that she was entitled to a witness list and requested
that the trial court “preclude those people who were not disclosed by name
and what they would testify to” from testifying at trial. Id. at 18. According
to Appellant’s counsel, the Commonwealth had “to provide under Brady what
the witness is going to say” in order to prepare a defense. Id. at 21. The
Commonwealth responded that it did not believe that Appellant was entitled
a “full witness list” but attempted to email a list to Appellant’s counsel after
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6 Brady v. Maryland, 373 U.S. 83 (1963).
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their meeting on August 19, 2019. Id. at 10. The Commonwealth stated that
it mistakenly sent the list to a wrong email address. Id. On the evening
before trial, the Commonwealth re-sent its list to Appellant’s counsel. Id.
Additional arguments concerning the witness list focused on two witnesses—
Edward Manning, a financial investigator with Independence Blue Cross and
Jill Ruggiero, a business account manager with United Healthcare. Id. at 12-
14.
When asked by the trial court whether Appellant’s counsel had “all the
evidence,” counsel responded: “True. But I don’t know what the person is
going to say. . . . They may say nothing that hurts my client, but I can’t
prepare a defense on a maybe.” Id. at 22. When the court asked whether
Appellant’s counsel would need additional time for review, Appellant’s counsel
stated that he needed additional time to investigate to determine if the
witnesses would testify beyond the documents that he received in discovery.
Id. at 19.
The trial court ruled as follows:
All right. I think we’re going to go forward. Of course, if there is
any Brady material that comes to light that hasn’t been disclosed,
certainly I’ll entertain an appropriate motion at that time. But
certainly sounds like all the documents have been provided, and
all the discovery has been provided in one form or another.
You may not know all the witnesses’ names, but doesn’t sound
like they’re going to go outside the four corners of the documents
with a couple of them that concerned you. At least I don’t see any
prejudice at this point.
Id. at 26.
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Appellant renewed her Brady objections when the Commonwealth
called Manning and Ruggiero, N.T. Trial, 8/22/19, at 79, and when the
Commonwealth presented Detective Eric Landamia with exhibits including
documents obtained from TD Bank and M&T Bank pursuant search warrants.
Id. at 262-63. Appellant did not raise a Brady objection when Appellant’s co-
defendant, Brian Eckert, testified against her, but cross-examined him
regarding his plea agreement with the Commonwealth, including his plea to
reduced offenses. Id. at 226. Appellant also stipulated to the contents of an
audio recording, but she also preserved her right to argue her Brady issue
further at the close of the Commonwealth’s case. N.T. Trial, 8/26/19, at 3-5.
At the close of the Commonwealth’s case, Appellant revisited her Brady
objections, briefly arguing that she was not “provided certain things in
discovery” and focusing on Manning and Ruggerio. Id. at 144. The
Commonwealth responded that it provided all documents to Appellant in
discovery and that it identified Manning and Ruggerio as witnesses. The
Commonwealth added that Manning and Ruggerio essentially testified based
on documents and information that were in Appellant’s possession. Id. at
145.
In its Rule 1925(a) opinion, the trial court noted that Appellant’s counsel
“continually raised his objections to not being provided the witness list but did
not raise any Brady issues” during trial. Supplemental Trial Ct. Op. at 17.
The court continued: “Pa.R.Crim.P. 573(b) burdens the Commonwealth to
make mandatory disclosures. However, it is clear from the record that the
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Commonwealth simply did not violate this rule and this [c]ourt properly denied
Appellant’s pre-trial motion to preclude witnesses and evidence at trial.” Id.
Lastly, the court added that it found no prejudice resulting from Appellant’s
counsel’s “self-created delay.” Id.
On appeal, Appellant maintains that the problems during discovery
amounted to a Brady violation that prejudiced her ability to prepare a defense
and meaningful cross-examination of the Commonwealth’s witnesses.7
Appellant’s Brief at 22-23. Specifically, Appellant asserts that the
Commonwealth untimely disclosed the checks Appellant wrote from the MAS’s
bank accounts, various ledgers, and an audio recording of Appellant. Id. at
22-23, 28. Appellant also emphasizes that the Commonwealth previously
continued Appellant’s trial due to the unavailability of its witnesses but then
“substituted new witnesses” without timely disclosing their identities and their
statement. Id. at 23. Further, Appellant asserts that the Commonwealth
failed to disclose a plea agreement with co-defendant, who testified at trial
against Appellant. Id. at 20, 24.
The Commonwealth responds that “Appellant’s claims are factually
inaccurate and meritless.” Commonwealth’s Brief at 48. The Commonwealth
contends that “there is simply no evidence of record to establish that [it]
withheld any discovery.” Id. at 50. As to the Appellant’s claim regarding the
identities of its witnesses, the Commonwealth argues that that the witnesses
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7 Appellant discusses Brady at length without any meaningful discussion of
Rule 573. See Appellant’s Brief at 22-23
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to whom Appellant objected “were primarily records custodians” and that it
disclosed their names before trial. Id.
As to Appellant’s argument that it failed to disclose co-defendant’s plea
agreement, the Commonwealth emphasizes that co-defendant testified that
the Commonwealth made no promises in exchange for his plea and was
awaiting sentencing at the time Appellant’s trial. Id. at 48 n.1. The
Commonwealth further notes that Appellant did not raise this argument before
the trial court, referenced it for the first time in her appellate brief, and failed
to adequately develop a meaningful argument in her brief. Id.
Our Supreme Court has explained that
Brady and subsequent precedent flowing therefrom imposes upon
a prosecutor the obligation to disclose all favorable evidence that
is material to the guilt or punishment of an accused, even in the
absence of a specific request by the accused. This Court has held
that, to establish a Brady violation, a defendant has the burden
to prove that: (1) the evidence at issue was favorable to the
accused, either because it is exculpatory or because it impeaches;
(2) the prosecution has suppressed the evidence, either willfully
or inadvertently; and (3) the evidence was material, meaning that
prejudice must have ensued.
Commonwealth v. Bagnall, 235 A.3d 1075, 1085-86 (Pa. 2020) (citations
omitted).
Pennsylvania Rule of Criminal Procedure 573 states, in relevant part:
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in Rules
230 (Disclosure of Testimony Before Investigating Grand Jury)
and 556.10 (Secrecy; Disclosure), if the defendant files a
motion for pretrial discovery, the court may order the
Commonwealth to allow the defendant's attorney to inspect
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and copy or photograph any of the following requested items,
upon a showing that they are material to the preparation of the
defense, and that the request is reasonable:
(i) the names and addresses of eyewitnesses;
(ii) all written or recorded statements, and substantially
verbatim oral statements, of eyewitnesses the
Commonwealth intends to call at trial;
(iii) all written and recorded statements, and substantially
verbatim oral statements, made by co-defendants, and by
co-conspirators or accomplices, whether such individuals
have been charged or not; and
(iv) any other evidence specifically identified by the
defendant, provided the defendant can additionally establish
that its disclosure would be in the interests of justice.
Pa.R.Crim.P. 573(B)(2)
Following our review, we conclude Appellant failed to establish Brady
violations concerning these claims. Initially, with respect to the documents to
which Appellant objected, the record supports the trial court’s finding that the
Commonwealth disclosed the challenged documents before trial. See N.T.
Trial, 8/21/19, at 22 (indicating that Appellant’s counsel responded, “True,”
when the trial court asked whether Appellant had “all the evidence”); see also
N.T. Trial, 8/22/19, at 262. Therefore, Appellant has not demonstrated that
the Commonwealth suppressed the documents. See Bagnall, 235 A.3d at
1085-86.
With respect to Appellant’s claims concerning the Commonwealth’s
witness list, Appellant cites no authority that Brady requires the
Commonwealth to provide a witness list to the defense under the
circumstances of this case. We note that our Supreme Court has held that
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Rule 573 governs a demand for a witness list, and if a party properly brings a
discovery dispute to the trial court, the court retains the discretion to grant or
deny the request. See Commonwealth v. Jones, 668 A.2d 491, 512 (Pa.
1995) (discussing former Rule 305 and reasoning that witness lists do not fall
under the mandatory disclosure rules of discovery); see also
Commonwealth v. Walter, 119 A.3d 255, 283 (Pa. 2015) (discussing
alleged discovery violation under Rule 573(B) and (D), the latter of which
requiring a continuing duty to disclose the identity of additional witnesses,
where the trial court previously entered an order compelling the parties to
submit witness lists). In sum, we agree with the trial court that Appellant has
not established the applicability of Brady to her claim concerning the
Commonwealth’s witness list.
With respect to Appellant’s Brady claim based on the Commonwealth’s
plea agreement with co-defendant, the record reveals that Appellant was
aware that co-defendant had pled guilty. Further, Appellant did not raise the
Commonwealth’s failure to disclose a plea agreement at any point before or
during trial, and therefore she has not preserved this argument before the
trial court. Lastly, as noted by the Commonwealth, Appellant’s co-defendant
testified that the Commonwealth made no promises in exchange for his plea,
and Appellant did not present any evidence to contradict the record evidence
before this Court. Based on this record, we conclude that because Appellant
has not preserved the instant claim, and it remains too speculative to merit
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any relief. See Bagnall, 235 A.3d at 1086 (discussing a Brady claim based
on evidence of a cooperation agreement with a witness).
D. Evidentiary Rulings
Appellant next contends that the trial court erred in admitting
spreadsheets of insurance claims amounts presented by the Commonwealth
that were irrelevant, immaterial, and prejudicial to Appellant. Appellant’s Brief
at 27-28. Appellant also argues that the trial court erred when it initially
determined that a defense exhibit, which she offered to show MAS’s prior
practices when submitting forms for coverage, was irrelevant, but then
permitted Appellant to admit the exhibit. Id. at 29.
The Commonwealth responds that Appellant’s challenge regarding her
exhibit is frivolous because the trial court “eventually admitted into evidence”
the document showing MAS’s past practices as Exhibit D-1. As to its own
spreadsheets, the Commonwealth argues that Appellant failed to identify her
precise claim in her appellate brief nor did she properly object at trial to
preserve her claim that the information in the exhibits were irrelevant and
prejudicial. Regardless, the Commonwealth also concludes that the trial court
properly admitted the exhibits as demonstrative materials that assisted in the
presentation of “voluminous financial information . . . to the jury throughout
trial.” Id. at 46.
It is well-settled that,
[w]ith regard to the admission of evidence, we give the trial
court broad discretion, and we will only reverse a trial
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court's decision to admit or deny evidence on a showing that
the trial court clearly abused its discretion. . . .
Relevance is the threshold for admissibility of evidence. “Evidence
is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence[,] and the fact is
of consequence in determining the action.”
“The court may exclude relevant evidence if its probative value is
outweighed by a danger of . . . unfair prejudice . . . . ”
However, [e]vidence will not be prohibited merely because
it is harmful to the defendant. [E]xclusion is limited to
evidence so prejudicial that it would inflame the jury to
make a decision based on something other than the legal
propositions relevant to the case. . . . This Court has stated
that it is not required to sanitize the trial to eliminate all
unpleasant facts from the jury's consideration where those
facts are relevant to the issues at hand[.]
Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (some
citations and quotation marks omitted).
Here, as to Exhibit D-1, the record belies Appellant’s contention that the
trial court precluded the evidence due to relevance. The record shows that
Appellant initially offered Exhibit D-1 during cross-examination of a
Commonwealth’s witness. Although the Commonwealth objected based on
relevance, the trial court ruled that Appellant could admit the exhibit during
her case-in-chief. Appellant’s counsel stated that he would recall the witness
during the defense’s case, but he did not do so. Further, when Appellant’s
counsel offered the exhibit before closing arguments, the trial court admitted
the exhibit. Accordingly, the record supports the trial court’s opinion that it
did not preclude Exhibit D-1 based on relevance, and Appellant’s claim fails.
See Supplemental Trial Ct. Op. at 17-18.
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As to the Commonwealth’s exhibits, a review of the record establishes
that the Commonwealth proffered and the trial court admitted the challenged
exhibits as demonstrative evidence that summarized the documents that
Detective Landamia obtained during his investigation and that the
Commonwealth disclosed during an admittedly challenging discovery process,
which included the password protected flash drives and at least one empty
flash drive. However, Appellant’s arguments lack specific cites concerning the
admission of exhibits as demonstrative evidence. Therefore, we conclude that
this claim is waived. See Kane, 10 A.3d at 331.
E. Comments by the Prosecutor
Appellant next argues that the Commonwealth impermissibly shifted the
burden of proof and violated her right to the presumption of innocence.
Appellant’s Brief at 31. In support, Appellant refers to comments during cross-
examination and in closing argument when the prosecutor stated that
Appellant had opportunities to explain the discrepancies when she talked to
Detective Landamia. Appellant’s Brief at 31. According to Appellant, the
Commonwealth’s comments “inferred [she] had to clear her name and prove
her innocence.” Id. Additionally, Appellant asserts that the Commonwealth
improperly stated that the amount of the theft included benefits she received
from her insurance fraud conviction and improperly stated that Appellant stole
municipal funds. Id. at 32.
The Commonwealth contends that Appellant waived this issue by failing
to properly preserve it in her Rule 1925(b) statement. Commonwealth’s Brief
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at 39. The Commonwealth notes that while Appellant’s Rule 1925(b)
statement mentions the trial court’s denial of her motion for mistrial, she did
not specify the prosecutor’s comments as grounds for relief. Id. The
Commonwealth adds that the trial court did not address this issue in its
supplemental Rule 1925(a) opinion. Id. Nevertheless, the Commonwealth
asserts that its comment referring to Appellant’s opportunity to “clear her
name” was a proper rebuttal of Appellant’s evidence and was not so prejudicial
as to warrant a new trial. Id. at 41-42.
Following our review, we are constrained to agree with the
Commonwealth that Appellant’s Rule 1925(b) statement did not preserve her
arguments concerning the prosecutor’s comments at trial. Specifically,
Appellant’s Rule 1925(b) statement only raised the issue of a mistrial in the
following error complained of on appeal:
Whether the conviction is constitutional firm, the Court errs or
abuses discretion, the accused is materially prejudiced, to require
the verdict vacated and a new trial granted when the Court denies
the accused’s motion for a mistrial and judgment of acquittal, and
the Commonwealth introduces over the accuser’s sustained
objection documentary and oral testimony of the amount of
insurance payments for health coverage care?
Rule 1925(b) Statement at ¶ 5 (verbatim).
Based on the record, we conclude that this statement of the error
complained of was too vague to preserve an appellate challenge to the
comments by the prosecutor. Although Appellant’s Rule 1925(b) statement
mentioned her motion for mistrial, it omitted any reference to her claim
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concerning an infringement of her right to a presumption of innocence, the
Commonwealth’s shifting of the burden of proof, or improper comments by
the Commonwealth. Rather, her Rule 1925(b) statement specified a claim
regarding the admission of evidence. As noted by the Commonwealth, the
trial court did not address the prosecutor’s comments in its Rule 1925(a)
opinion, and we conclude that the trial court would have been forced to
speculate as to the precise nature of the claim Appellant raises in her appellate
brief. See Williams, 204 A.3d at 494-95. Therefore, we are constrained to
conclude that Appellant’s claim is waived. See Pa.R.A.P. 1925(b)(4)(ii), (vii).
F. Jury Instruction
In her final issue raised to support her argument that her convictions
were constitutionally infirm, Appellant asserts that the trial court erred when
it denied her request for a jury instruction regarding amounts involved in the
theft. Appellant’s Brief at 20. Referencing her prior arguments regarding the
admission of evidence and the Commonwealth comments, Appellant asserts:
To test whether the Jury had become biased on the
Commonwealth’s inflated evidence, [Appellant] proposed a jury
interrogatory that required the jury to calculate the theft amount.
The trial judge disallowed the interrogatory and fashioned one that
merely had the Jury select among a range of values. Thus, the
Jury would not remove the medical claim values when it
determined the theft amount. [Appellant] objected to the charge,
she submits it was reversible error to deny her proposed jury
interrogatory, since the jury is the fact-finder of the theft amount,
and the amount must be determined from admissible relevant
evidence and not the inflated amounts the Commonwealth had
presented. The amount of the theft is used to grade a theft thus
properly sentence since the grade of the crime is needed by the
sentence guidelines to calculate a proposed sentence. The
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correct/proper amount is needed also for restitution[.] Ergo, the
issue over the claim payment amount greatly affects the validity
of [Appellant’s] sentence. The error here is prejudicial and
reversible error that singularly and combined with the other errors
denied [Appellant’s] of her Sixth Amend[ment] and Article I fair
trial right and warrant reversing and vacating the conviction.
Id. at 20-21.
Although Appellant raised this issue in her Rule 1925(b) statement, 8
neither the trial court nor the Commonwealth addressed the ruling on
Appellant’s proposed instruction.
It is well settled that this Court will “reverse a [trial] court’s decision
only when it abused its discretion or committed an error of law.”
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation
omitted). When a trial court refuses to deliver a specific jury instruction, “it
is the function of this Court to determine whether the record supports the trial
court’s decision.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa.
Super. 2014) (en banc) (citation omitted).
As noted above, Section 3903 grades theft as a third-degree felony
when “if the amount involved exceeds $2,000.” See 18 Pa.C.S. § 3903(a.1).
____________________________________________
8 Specifically, Appellant’s Rule 1925 stated:
Whether the conviction is constitutional firm, the Court errs or
abuse discretion to require the verdict vacated and a new trial
granted when the Court does not require the jury during
deliberation to calculate and find beyond a reasonable doubt the
actual amount of the alleged theft and the name of the property
owner on the theft by unlawful taking charge?
Rule 1925(b) Statement at ¶ 4.
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Instantly, the trial court instructed the jury on theft as follows:
[Appellant], as I’ve told you, has been charged with theft of
movable property. Find [sic] [Appellant] guilty of this offense,
you must find the following elements have been proven beyond a
reasonable doubt:
First, that [Appellant] took moveable property from another,
namely monetary funds for U.S. currency, and in this case from
[MAS].
Secondly, those items are moveable property of another.
Moveable property is property, the location of which can be
changed.
Third, the taking was unlawful.
Fourth, that the taking was with the intent to deprive [MAS]
of its property.
A person acts with intent if it is his or her conscious object to
engage and such conduct were to cause such a result.
If you find [Appellant] guilty of theft by unlawful taking on the
basis of these instructions, it will be necessary for you to make a
further determination regarding the value of the property. There
will be a place on the verdict slip for you to record that
determination.
First, you should consider whether the [C]ommonwealth
has established, beyond a reasonable doubt, the value of
the property or other items is $2,000 or more. If you find
this, please indicate so on the verdict slip.
N.T. Trial, 8/27/20, at 155-57 (emphases added).
After Appellant objected to the trial court’s initial charge, the trial court
further instructed the jury as follows:
Now I want to make sure on the verdict slip you -- I know you
paid attention to everything that was said by the lawyers, this is
a guide. It’s only for reference so that you can keep things
straight. But I want to just remind you one last time you need to
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separate the theft from the insurance fraud charge. The theft is
what you have to decide the amount on.
The insurance fraud, while some of the evidence overlaps, I think
the lawyers argued that to you, from their respective positions,
understand that theft is a very -- you have to make a very specific
finding that something was taken and it has to be proven, beyond
a reasonable doubt, that whatever the -- and in this case it’s
the currency or cash from the ambulance company that
that’s what was taken, that’s what the theft was, and that it was
$2,000 or more. All right. So I think that clears up a couple of
points that the lawyers asked me to clarify. I believe that’s it.
Id. at 181-82 (emphasis added).
Based on the foregoing, we discern no error in the trial court’s
instructions to the jury, or an abuse of discretion in the trial court’s decision
to reject Appellant’s alternative instructions and special interrogatories for the
jury. See Baker, 24 A.3d at 1022. Therefore, Appellant is not entitled to
relief.
G. Cumulative Error
To summarize, our review concludes that Appellant waived certain
individual claims and that her preserved claims lack merit as discussed at
length above. Because Appellant failed to establish any merit or prejudice
resulting from her preserved claims, we concluded that “there is no basis for
a claim of cumulative error.” See Commonwealth v. Bomar, 104 A.3d
1179, 1216 (Pa. 2014) (discussing cumulative error in the context of claims
of ineffective assistance of counsel). Accordingly, Appellant’s claim that the
individual errors resulted in the deprivation of her constitutional protections
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guaranteeing the presumption of innocence and that convictions be proven
beyond a reasonable doubt fails. See id.Issue 2—Post-Verdict Bail
Appellant’s next issue concerns the trial court’s decision to increase her
bail after the verdict but before sentencing. Appellant contends that the
increase in bail from $50,000.00 to $100,000.00 was arbitrary and capricious
because the trial court failed to make appropriate findings under Rule 521,
and she requests a declaration that she was subjected to an unconstitutionally
excessive bail. Appellant’s Brief at 36.
In response, the Commonwealth asserts that the issue is moot.
Commonwealth’s Brief at 51-52. Alternatively, the Commonwealth argues
that Appellant’s claim lacks merit because the trial court ultimately explained
its reasons for increasing Appellant’s bail. Id. at 52.
This Court reviews a determination to change bail after a verdict for an
abuse of discretion. See Commonwealth v. Abed, 989 A.2d 23, 29 (Pa.
Super. 2010); Commonwealth v. McDermott, 547 A.2d 1236, 1242 (Pa.
Super. 1988). Pennsylvania Rule of Criminal Procedure 521 guides the trial
court’s exercise of discretion and provides, in relevant part:
(A) Before Sentencing
(2) Other Cases
* * *
(b) Except as provided in paragraph (A)(1) [concerning
capital and life imprisonment cases], when the aggregate of
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possible sentences to imprisonment on all outstanding
verdicts against the defendant within the same judicial
district can exceed 3 years, the defendant shall have the
same right to bail as before verdict unless the judge makes
a finding:
(i) that no one or more conditions of bail will reasonably
ensure that the defendant will appear and comply with
the conditions of the bail bond; or
(ii) that the defendant poses a danger to any other
person or to the community or to himself or herself.
* * *
(D) Modification of Bail Order After Verdict or After
Sentencing
(1) When a defendant is eligible for release on bail after verdict
or after sentencing pursuant to this rule, the existing bail order
may be modified by a judge of the court of common pleas, upon
the judge’s own motion or upon motion of counsel for either
party with notice to opposing counsel, in open court on the
record when all parties are present.
(2) The decision whether to change the type of release on bail
or what conditions of release to impose shall be based on the
judge’s evaluation of the information about the defendant as it
relates to the release criteria set forth in Rule 523. The judge
shall also consider whether there is an increased likelihood of
the defendant’s fleeing the jurisdiction or whether the
defendant is a danger to any other person or to the community
or to himself or herself.
(3) The judge may change the type of release on bail, impose
additional nonmonetary conditions as provided in Rule 527, or,
if appropriate, impose or increase a monetary condition as
provided in Rule 528.
Pa.R.Crim.P. 521.
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Rule 523, in turn, instructs a court to consider information relevant to
“the defendant’s appearance or nonappearance at subsequent proceedings”
including:
(1) the nature of the offense charged and any mitigating or
aggravating factors that may bear upon the likelihood of
conviction and possible penalty;
(2) the defendant’s employment status and history, and financial
condition;
(3) the nature of the defendant’s family relationships;
(4) the length and nature of the defendant’s residence in the
community, and any past residences;
(5) the defendant’s age, character, reputation, mental condition,
and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, whether
he or she appeared as required and complied with the conditions
of the bail bond;
(7) whether the defendant has any record of flight to avoid arrest
or prosecution, or of escape or attempted escape;
(8) the defendant’s prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant will
appear as required and comply with the conditions of the bail
bond.
Pa.R.Crim.P. 523(A)(1)-(10).
Rule 528(A) also requires consideration of the following factors when
determining the amount of a monetary condition of bail: “(1) the release
criteria set forth in Rule 523; and (2) the financial ability of the defendant.”
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Pa.R.Crim.P. 528(A). Additionally, Rule 528 states that “[t]he amount of the
monetary condition shall be reasonable.” Pa.R.Crim.P. 528(B).
This Court has stated that an order revoking bail is interlocutory and
cannot be immediately appealed without following the appropriate Rule of
Appellate Procedure. Commonwealth v. Colleran, 469 A.2d 1130, 1131
(Pa. Super. 1983) (per curiam). Currently, the Pennsylvania Rules of
Appellate Procedure state:
Where the trial court enters an order under Pa.R.A.P. 1762(b)
granting or denying release or modifying the conditions of release
before sentence, a party may seek review of that order by filing a
petition for specialized review in the appellate court that would
have jurisdiction over the appeal from the judgment of sentence.
Pa.R.A.P. 1610.
Once sentence is imposed, however, issues of mootness arise because
this Court no longer can grant substantive relief. Compare Abed, 989 A.2d
at 28 (noting that post-verdict bail revocation issue “is technically moot as we
cannot grant relief), with Commonwealth v. Myers, 86 A.3d 286, 293 (Pa.
Super. 2014) (remanding case for a bail hearing, “unless [the appellant] has
completed his term of confinement). Nevertheless, this Court has addressed
post-verdict changes in bail because they are capable of repetition. See
Abed, 989 A.2d at 28; see also Myers, 86 A.3d at 293.
Instantly, we note that Appellant’s arguments lack any meaningful
discussion of the trial court’s statement, at the hearing denying Appellant’s
motion to modify bail, that the court increased bail because Appellant faced a
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maximum possible sentence of seventeen years and that the court deemed
Appellant to be “flight risk.” See N.T. Bail Modification Hr’g, 9/24/19, at 9-
10; see also Supplemental Trial Ct. Op. at 26. Moreover, although we are
mindful that the issue is capable of repetition, we conclude that Appellant’s
challenge to the increased bail between the verdict and sentencing is moot
where, as here, it is undisputed that Appellant is no longer incarcerated. Cf.
Myers, 86 A.3d at 293. Accordingly, even if the trial court erred in failing to
consider Rule 521 when it increased bail after trial, this Court has no basis to
grant any substantive relief.9 Therefore, Appellant’s claim is moot, and we
decline to address this claim and issue the declaration that Appellant seeks.
Issue 3—Sentencing Issues
In her third issue, Appellant challenges her sentence, and we reproduce
her argument verbatim:
Ms. Rookstool was in custody and incarcerated for 90 days before
sentencing. She was incarcerated the 90 days for conduct on
which she was charged or the charge based. This is undisputed
or disputable by the Commonwealth. As such, Ms. Rookstool was
entitled to a credit of 90 days for time served. She was not given
the credit albeit, it seems from the sentencing transcript that she
was to be given the credit (11/25/19 Sentencing Transcript at
33:11-16). Nonetheless, it remains that the DOC did not credit
Ms. Rookstool for 90 days. Ergo, Ms. Rookstool submits here
sentence was excessive, cruel, and unusual. She only faced two
and a half months incarceration time and has done 90 days of 15
day more than she faced. e. She was sentenced to three years
State Prison time, which was a cruel punishment, particularly
____________________________________________
9 Appellant concedes as much noting that “the bail issue seemingly cannot be
remedied except for the declaration that [she] requests.” Appellant’s Brief at
36 n.15.
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since co-defendant Eckert received less time and house arrest,
which again infers the sentence was punishment for exercising her
rights than for criminal conduct. Equally, the pre-sentence report
showed this to be Ms. Rookstool’s first brush with the law and that
she had a low IQ. Her financial status was poor with no ability to
pay fines, least the ordered $103,000.00 restitution. Jail time and
particularly State imprisonment was not a recommendation.
Under the circumstances, incarceration was and intended to be
cruel and unusual punishment and the restitution order is an
excessive fine. Accordingly, [Appellant] respectfully requests the
Court to reverse the restitution order.
Appellant’s Brief at 37.
The Commonwealth responds that Appellant waived any challenge to
the discretionary aspects of her sentence by failing to file a post-sentence
motion and including in her brief a Pa.R.A.P. 2119(f) statement.
Commonwealth’s Brief at 54-55. The Commonwealth further notes that
Appellant’s allegation that the Department of Corrections failed to provide
appropriate sentencing credit based on the trial court’s sentencing order
should have been raised in the Commonwealth Court. Id. at 57. The
Commonwealth also asserts that Appellant failed to raise a substantial
question warranting appellate review of the discretionary aspects of her
sentence. Id. at 56. As to Appellant’s reference to the restitution award, the
Commonwealth notes that it is “unable to determine any reason why the
calculated restitution . . . was inaccurate or unlawful in any way.” Id. at 59.
Our Supreme Court recently provided the following guidance:
Where a claim concerns the sentencing court’s exercise of
discretion in fashioning a sentence, the defendant must
preserve and present the claim at trial by way of a
contemporaneous objection and/or a post-trial motion and
on appeal through the process provided by 42 Pa.C.S. §
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9781(b) and Pa.R.A.P. 2119(f). Where a claim concerns the
sentencing court’s authority to impose a sentence, it is
reviewable as of right on direct appeal, without regard to
preservation of the claim. “[A] determination that a claim
implicates the legality of a sentence ... operates to revive a
claim otherwise insufficiently preserved below,” and is
reviewable by this Court on permissive appeal.
Commonwealth v. Weir, 239 A.3d 25, 34 (Pa. 2020) (citation omitted).
A. Discretionary Aspects of Sentence
To the extent Appellant’s claims implicate the discretionary aspects of
her sentence, we agree with the Commonwealth that Appellant waived this
issue by failing to file post-sentence motions or include a Rule 2119(f)
statement in her brief. See generally id. Because Appellant’s challenge to
the excessive amount of restitution also relate to the discretionary aspects of
her sentence, that claim is also waived. See id. Accordingly, we decline to
consider Appellant’s discretionary aspects of sentencing claims. See id.; see
also Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006);
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004)
B. Legality of Sentence—Restitution
However, Appellant’s arguments, when read in their entirety, suggest
challenges to the trial court’s statutory authority to impose restitution. See
Appellant’s Brief at 21 (arguing, in the context of jury instruction that the
possibility of confusion over amounts involved in Appellant’s theft and
insurance fraud convictions), 37 (discussing the amount of restitution and her
ability to pay). Therefore, we will address these issues. See Weir, 239 A.3d
at 34.
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Currently, Section 1106 of the Crimes Code states:
(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 . . .
* * *
(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. . . .
(ii) If restitution to more than one victim is set at the same
time, the court shall set priorities of payment. However,
when establishing priorities, the court shall order payment
in the following order:
(A) Any individual.
(A.1) Any affected government agency.
* * *
(C) Any other government agency which has provided
reimbursement to the victim as a result of the
defendant’s criminal conduct.
(D) Any insurance company which has provided
reimbursement to the victim as a result of the
defendant’s criminal conduct.
* * *
(F) Any business entity organized as a nonprofit or
not-for-profit entity.
(G) Any other business entity.
* * *
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(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 . . . .
(h) Definitions.—As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
“Affected government agency.” The Commonwealth, a political
subdivision or local authority that has sustained injury to
property.
“Business entity.” A domestic or foreign:
(1) business corporation;
(2) nonprofit corporation;
(3) general partnership;
(4) limited partnership;
(5) limited liability company;
(6) unincorporated nonprofit association;
(7) professional association; or
(8) business trust, common law business trust or statutory
trust.
* * *
“Victim.” As defined in section 103 of the act of November 24,
1998 (P.L. 882, No. 111), known as the Crime Victims Act. [10]
____________________________________________
10 Section 1106 also relies on the definition of a victim in the Crime Victims
Act (CVA), which, in turn, provides:
“Direct victim.” An individual against whom a crime has been
committed or attempted and who as a direct result of the criminal
act or attempt suffers physical or mental injury, death or the loss
of earnings under this act.
“Victim.” The term means the following:
(Footnote Continued Next Page)
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The term includes an affected government agency, the Crime
Victim’s Compensation Fund, if compensation has been paid by
the Crime Victim’s Compensation Fund to the victim, any
insurance company that has compensated the victim for loss
under an insurance contract and any business entity.
18 Pa.C.S. § 1106(a)(1), (c)(1), (h) (eff. Oct. 24, 2018) (emphases added).
Notably, the General Assembly included the references to “an affected
government agency,” “any business entity organized as a nonprofit or not-for-
profit entity,” and “other business entity” in Section 1106 in 2018. See 2018,
Oct. 24, P.L. 891, No. 145, § 1 (eff. immediately).
____________________________________________
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim,
except when the parent or legal guardian of the child is the
alleged offender.
(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S. (relating to
crimes and offenses) committed or attempted against a
member of the child’s family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim, including
stepbrothers or stepsisters, stepchildren, stepparents or a
fiance, one of whom is to be identified to receive
communication as provided for in this act, except where the
family member is the alleged offender.
18 P.S. § 11.103.
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Instantly, Appellant’s offenses occurred from 2011 to 2018.11 At the
November 25, 2019 sentencing hearing, the Commonwealth sought a total
amount of restitution of $101,634.55, as follows: (1) $29,628.78 to Morrisville
Borough and $4,783.27 to Falls Township for municipal funds given to MAS;
and (2) $20,639.23 to Independence Blue Cross, $45,902.47 to United
Healthcare, and $680.80 Guardian Life Insurance for benefits they paid to
Appellant. N.T. Sentencing Hr’g, 11/25/19, at 2-3. The trial court accepted
the Commonwealth’s arguments and imposed the restitution requested by the
Commonwealth. Following this Court’s previous remand, and in response to
Appellant’s motions to compel production, the Commonwealth asserted that
its request for restitution to the municipalities included the amounts involved
in Appellant’s theft and Morrisville Borough’s direct payments of Appellant’s
insurance premiums.
At the outset, we note that Appellant’s passing reference to her ability
to pay restitution merits no relief because, since 1995, Section 1106 has
expressly provided that restitution shall be imposed regardless of her current
financial resources. See 18 Pa.C.S. § 1106(c)(1) (eff. 1995);
Commonwealth v. Petrick, 217 A.3d 1217, 1225 (Pa. 2019) (noting that
the General Assembly “ability to pay as a prerequisite consideration” when
imposing sentence and “simply placed the consideration of a defendant’s
____________________________________________
11The record indicates that MAS formally ceased operations in October of
2018. N.T. Trial, 8/21/19, at 87.
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ability to pay at the more pertinent stage, when a sentence court must assess
a defendant’s compliance with the order” (footnote omitted)).
However, a review of the record reveals that neither the parties nor the
trial court discussed whether the post-2018 or preceding version of Section
1106 applied at the time of sentencing. This determination is critical to any
discussion of the legality of the restitution portion of Appellant’s sentence. 12
Specifically, applying the pre-2018 version of Section 1106, our
Supreme Court held that “to qualify for restitution under Subsection
1106(c)(1)(i), a Commonwealth agency either must be a victim as that term
is used in that subsection or must have reimbursed a victim as defined by
Section 11.103, directly or by paying a third party on behalf of the victim.”
Commonwealth v. Veon, 150 A.3d 435, 447, 454 (Pa. 2016) (holding that
the Pennsylvania Department of Community and Economic Development
(DCED) was not entitled to be paid restitution when it provided funds to
organizations through which the defendant committed crimes). Applying
Veon, this Court further held that other governmental agencies and other
organizations, such as the United States Coast Guard, a Pennsylvania limited
liability company, and an insurance company, were not entitled to restitution
under the pre-2018 version of Section 1106 unless these entities were being
compensated for reimbursements to direct victims who had been harmed by
the offender. See e.g. Commonwealth v. LeClair, 236 A.3d 71, 86 (Pa.
____________________________________________
12 We note that the Commonwealth cites the current version of Section 1106
without further discussion.
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Super. 2020), appeal denied, 244 A.3d 1222 (Pa. 2021) (vacating a restitution
award to the United States Coast Guard as illegal); Commonwealth v. Hunt,
220 A.3d 582, 584, 591 (Pa. Super. 2019) (concluding that the definition of a
‘“direct victim’ under the CVA (and, consequently, the definition of ‘victim’
under the pre-[2018] amendment version of § 1106) does not include
corporate entities like [a limited liability corporation]” on whose account the
defendant wrote sham checks)); Commonwealth v. Tanner, 205 A.3d 388,
398 (Pa. Super. 2019) (concluding that a township and “an insurance
company is entitled to receive restitution only when it compensates a victim”
under the pre-2018 amendments to Section 1106).
Therefore, if the pre-2018 version of Section 1106 applies, it appears
that municipalities and organizations, such as MAS and insurance companies,
may not be entitled to mandatory restitution. While the post-2018 version of
Section 1106 appears to recognize “affected governmental entities” and
“business entities” as direct victims, see 18 Pa.C.S. § 1106(h) (eff. Oct. 24,
2018), our courts have not yet expressly considered or held that the post-
2018 version of Section 1106 should apply if the criminal conduct occurred
before the effective date of the amendment. Compare Hunt, 220 A.3d at
586-87 & nn.3-5 (declining to apply the post-2018 version of Section 1106
when, in part, the General Assembly did not unambiguously give retroactive
effect to the 2018 amendment, and noting that the defendant’s conduct, and
the adjudication of guilt, sentencing, and restitution issues were resolved
before the effective date of the 2018 amendments), and Tanner, 205 A.3d
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at 396 n.7 (applying the pre-2018 version of Section 1106 when all “events
that led” to the “conviction occurred before October 24, 2018”), with LeClair,
236 A.3d at 82 (applying the pre-2018 version of Section 1106 when the 2018
amendment took effect after the defendant’s conduct but before sentencing),
and Commonwealth v. Lock, 233 A.3d 888, 890 n.2 (Pa. Super. 2020)
(same). But see Commonwealth v. Kline, 695 A.2d 872, 873 (Pa. Super.
1997) (permitting restitution to an insurance company that reimbursed the
victim based on a version of Section 1106 that took effect after the defendant’s
crimes but before sentencing and rejecting the defendant’s claim that
restitution violated ex post facto principles).
We acknowledge that this Court could find waiver based on Appellant’s
failure to develop this claim in the trial court or on appeal and affirm without
prejudice to Appellant’s rights to seek a modification of restitution in a
collateral proceeding. See 18 Pa.C.S. § 1106(c)(3). However, as discussed
above, factual and legal issues remain unresolved as to the applicable version
of Section 1106 which instantly determines the trial court’s imposition of
restitution and therefore implicates non-waivable issues concerning the
legality of Appellant’s sentence. See Weir, 239 A.3d at 34. Moreover,
Appellant has served the incarceration portion of her sentence and remains
subject to a sentence of restitution as well as the remaining term of probation.
These circumstances compel us to conclude it is appropriate to vacate the
judgment of sentence in part and remand this matter to the trial court for an
evidentiary hearing and argument to determine the applicable version of
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Section 1106, including whether the Commonwealth intends to pursue
restitution for municipalities and insurance companies as a part of Appellant’s
sentence. Consistent with the applicable version of Section 1106 as
determined by the trial court, the court shall make findings of fact and
conclusions of law as to whether the individuals or entities to whom it grants
restitution is proper under the appropriate version of the statute.13
In sum, we affirm Appellant’s convictions and the discretionary aspects
of the trial court’s sentence, and we vacate the portion of the judgment of
sentence concerning the restitution and remand for further proceedings as
described herein.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/21
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13As the there is no indication that the trial court originally intended its
sentence to be a condition of probation, we will not discuss the
appropriateness of restitution as a matter of probation upon resentencing. Cf.
42 Pa.C.S. §§ 9754, 9763.
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