Commonwealth v. Antos

COMMONWEALTH OF PENNSYLVANIA, Appellee v. HEATHER ANTOS, Appellant

J-S63005-14

No. 705 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 7, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence March 26, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002126-2013

BEFORE: BOWES, PANELLA, and PLATT,^* JJ.

MEMORANDUM BY BOWES, J.:

Heather Antos appeals from the March 26, 2014 judgment of sentence and contests the amount of restitution she was ordered to pay as unsupported by competent evidence. We agree with her position that the Commonwealth utilized inadmissible hearsay to establish the amount of restitution. We therefore vacate the judgment of sentence and remand for re-sentencing.

On November 15, 2013, Appellant entered a guilty plea to one count of theft by unlawful taking graded as a third-degree felony. She admitted that, between June 1, 2012, and August 5, 2013, she exercised unlawful control over numerous pieces of jewelry and cash with the intent to deprive theowners of that property. The items in question belonged to Joseph Kapaso, Chris Kutch, Eric Judge, Jerry Kaufman, and Mary Ann Kaufman. Appellant conceded that she was cleaning the homes of the named victims and stole cash and jewelry.

A restitution hearing was held on March 7, 2014. Eric Judge testified and established that Appellant removed items from his house worth $19,350 and that he was reimbursed by his insurer for $3,500. The Commonwealth then introduced a victim impact statement from Debra Kutch, who did not appear at the hearing. In the statement, Ms. Kutch reported that Appellant stole $7,395 in jewelry and $1,500 in cash from her. Appellant objected to introduction of the victim impact statement as hearsay. N.T. Hearing, 3/7/14, at 11. The trial court overruled the objection on the basis that, "I don't feel that I am bound by the strict rules of evidence and it is up to me to set the amount of restitution that will be ordered." Id.

Similarly, the amount of restitution to be awarded to Mr. Kaufman and Ms. Kaufman was also established through the use of hearsay evidence. Over a hearsay objection, the Commonwealth introduced a handwritten list of the items from Mr. Kaufman and reportedly taken by Appellant. Mr. Kaufman wrote that Appellant took cuff links worth $1,200 and a pocket watch valued at $8,500. Ms. Kaufman sent an e-mail that was admitted into evidence and outlined the pieces of jewelry stolen from her by Appellant. The jewelry stores where Ms. Kaufman purchased the items provided their respective values. The objects included a necklace worth $100,000, adiamond heart pendant worth $15,000, a sapphire diamond pendant worth $25,000, a ring worth $10,000, a turquoise necklace worth $15,000, a ring set worth $10,000, diamond hoop earrings worth $25,000, and other earrings worth $21,000. Appellant objected on the basis that the estimates and list of items purportedly stolen constituted hearsay. She also noted, "Neither Miss Kaufman or the jewelry companies are here to authenticate it." Id. at 14.

Appellant was sentenced on March 26, 2014, to nine to twenty-three months in jail followed by two years probation. The sentencing court also awarded restitution of $8,895 to Mr. Kutch, $9,700 to Mr. Kaufman, $256,000 to Ms. Kaufman, and $15,850 to Mr. Judge. This appeal followed. Appellant presents two related issues on appeal:

I. Did the trial court err as a matter of law by determining that the Commonwealth met its burden of establishing restitution owed by the Appellant to Christopher and Deborah Kutch, Jerry Kaufman, and Mary Ann Kaufman?

II. Should the documents contained in the Victim Impact Statement/Memorandum for victims Christopher and Deborah Kutch, Jerry Kaufman, and Mary Ann Kaufman be denied by this Honorable Court as inadmissible hearsay?

Appellant's brief at 4.

Appellant claims that the restitution award as to victims Christopher and Deborah Kutch, Jerry Kaufman and Mary Ann Kaufman¹ was not supported by the record. Restitution is authorized under 18 Pa.C.S. § 1106, which provides in pertinent part that it is mandatory that the court order "full restitution . . . [r]egardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss." 18 Pa.C.S. § 1106(c)(1)(i). While restitution is mandatory, "It is the Commonwealth's burden of proving its entitlement to restitution." Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa.Super. 2010). Moreover, "When fashioning an order of restitution, the lower court must ensure that the record contains the factual basis for the appropriate amount of restitution." Id. It is settled that an award of restitution cannot be excessive or speculative. Id. Finally, "although it is mandatory under section 1106(c) to award full restitution, it is still necessary that the amount of the 'full restitution' be determined under the adversarial system with considerations of due process." Id. (quoting Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa.Super. 2004)).

Initially, we note that "questions implicating the trial court's power to impose restitution concern the legality of the sentence." Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013) (citing In re M.W., 725 A.2d 729,731 n.4 (Pa. 1999); Commonwealth v. Stetler, 95 A.3d 864, 888 n.6 (Pa.Super. 2014) ("challenges to the appropriateness of a sentence of restitution are generally considered [c]hallenges to the legality of the sentence."). In contrast, where the claim is "that the restitution order is excessive, it involves a discretionary aspect of sentencing." In re M.W., supra at 731.

In this case, Appellant maintains that the court could not award restitution to the named victims since no valid evidence of record supported it; hence, it falls within the parameters of the court's power to enter an award and relates to the legality of sentence. Accord Commonwealth v. Boyd, 73 A.3d 1269 (Pa.Super. 2013) (en banc) (where claim was that fine was improper since there was no record support that defendant had ability to pay fine, it related to sentencing court's authority to impose a fine and therefore raised a nonwaivable legality of sentence issue).

In this case, we agree with Appellant's preserved allegation that the amount of restitution to the victims, other than that directed to Mr. Judge, was unsupported by competent evidence. The restitution awarded to the other three victims was based upon rank hearsay unsubstantiated by any surrounding circumstances. The proof of the restitution awarded to the pertinent victims in this matter deprived Appellant of her ability to contest and challenge, through cross-examination, whether the items were taken as well as their value.

Our law provides that the rules of evidence apply to sentencing proceedings. Pa.R.E. 101, which relates to the scope of the rules, provides that, "These rules of evidence govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except as otherwise provided by law."² Pa.R.E. 101(a) (emphasis added). Sentencing is a proceeding in the courts of this Commonwealth, and thus, the rules of evidence, including those related to hearsay, apply.³ The comment to Rule 101 does concede that, "Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as . . . sentencing hearings," but this comment does not permit a wholesale abrogation of the hearsay rule in the sentencing context. Indeed, case law is to the contrary.

In an analogous scenario, we vacated a judgment of sentence that was imposed, in part, based upon consideration of hearsay contained in police reports. Commonwealth v. Rhodes, 990 A.2d 732 (Pa.Super. 2009). We noted that we were particularly concerned with the sentencing court's reliance upon the police reports in that their use deprived the defendant of "the opportunity to cross-examine the witnesses whose hearsay statements comprised the bulk of the reports' contents." Id. at 745. We ruled that a sentencing court's "reliance on unverified hearsay outside the record isimpermissible." Id. We continued that "a defendant has the right to minimal safeguards to ensure that the sentencing court does not rely on factually erroneous information, and any sentence predicated on such false assumptions is [anathema] to the concept of due process." Id. at 746 (citation omitted); accord Commonwealth v. Schwartz, 418 A.2d 637 (Pa.Super. 1980) (reversing a fine due to the fact that it was based upon ex parte hearsay information provided to the sentencing court by police officers, who told the court that the defendant was known to frequently sell high volumes of drugs); see also Commonwealth v. Green, 581 A.2d 544 (Pa. 1990) (it was error for the trial court to permit a witness to testify at sentencing that an unnamed inmate accused defendant of inciting other prisoners to take a hostage); Commonwealth v. Cruz, 402 A.2d 536, 537 (Pa.Super. 1979) (criticizing the sentencing court's consideration of a detective's unsubstantiated hearsay statement that informants told him that the defendant was a major drug dealer, but noting that the hearsay objection had been waived).

A sentencing court is permitted to rely upon hearsay evidence when it is substantiated if the hearsay originated from a dependable source under reliable circumstances. In Commonwealth v. Medley, 725 A.2d 1225 (Pa.Super. 1999), the issue concerned the defendant's prior record score, and the Commonwealth established through hearsay proof that an out-of-state conviction increased that score. While the defendant objected to thesentencing court's reliance upon hearsay, we rejected that contention due to the trustworthy nature of the proof.

Specifically, a police detective testified that he had contacted the out-of-state authorities and verified that the defendant was convicted of the offense based upon the defendant's name...