Commonwealth v. Solomon

COMMONWEALTH OF PENNSYLVANIA v. PATRICK SEISIRO SOLOMON Appellant

J-S54038-19

No. 1407 MDA 2018

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 25, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered July 23, 2018

In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001122-2018

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

DISSENTING MEMORANDUM BY BOWES, J.:

The learned Majority correctly notes that we review issues concerning the amount of restitution for an abuse of discretion. See Majority Memorandum at 5. See also Commonwealth v. Muhammed, 219 A.3d 1207, 1215 (Pa.Super. 2019) (explaining that the discretionary aspects of sentencing are implicated by a challenge to the amount of restitution ordered). Accordingly, to obtain relief from this Court, Appellant is required to "establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision." Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017). As I believe that the record manifests no such abuse of discretion on the part of the trial court in ordering restitution in the amount of $86,974.93, I respectfully dissent.

Black's Law Dictionary defines the term restitution in relevant part as follows.

restitution . . . 3. Return or restoration of some specific thing to its rightful owner or status. 4. Compensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation. — Also termed criminal restitution.

RESTITUTION, Black's Law Dictionary (11th ed. 2019) (internal citations omitted). While the dictionary refers to full or partial compensation, our Legislature has provided that, when the property of a victim has been unlawfully obtained, the sentencing court must order "full restitution . . . so as to provide the victim with the fullest compensation for the loss." 18 Pa.C.S. § 1106(c)(1)(i) (emphasis added).

In computing the amount of restitution under Pennsylvania law, the sentencing court is required to "consider the extent of injury suffered by the victim and such other matters as it deems appropriate." Commonwealth v. Wright, 722 A.2d 157, 159 (Pa.Super. 1998) (cleaned up). We have indicated that there is no one correct means of quantifying a victim's loss. Rather, "[r]estitution . . . can be made by either the return of the original property or the payment of money necessary to replace, or to repair the damage to, the property." Commonwealth v. Genovese, 675 A.2d 331, 333 (Pa.Super. 1996).

"Because restitution is a sentence, the amount ordered must be supported by the record, and may not be speculative." Commonwealth v.Lekka, 210 A.3d 343, 358 (Pa.Super. 2019) (internal quotation marks omitted). We have sustained valuations, in this and other contexts, based upon the testimony of the owner of the stolen property. See, e.g., Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.Super. 2006) (holding trial court's restitution award was supported by the record testimony from the victim as to the value of stolen scrap metal); Commonwealth v. Hanes, 522 A.2d 622, 625 (Pa.Super. 1987) ("[A]n owner, by reason of his status as owner, is deemed qualified to give estimates of the value of what he owns." (internal quotation marks omitted)).

Applying our Legislature's demand for restitution to constitute the fullest compensation for a victim's loss, with the sentencing court being free to consider the matters it deems appropriate in determining the proper amount, I cannot agree with the Majority's position that the value of the coin collection at the time Appellant wrongfully acquired it was necessarily the proper measure.

I submit that the fullest compensation Appellant could be ordered to pay is the cost to replace the stolen coins. Accord Genovese, supra at 333 (including payment replacement costs as an example of restitution). In fact, Appellant acknowledges that "[a]warding the replacement costs of the property taken makes the victim whole because it creates the opportunity to repurchase the property and restore the pre-theft state of affairs." Appellant'sbrief at 15. However, Appellant conflates replacement costs with market value at the time of the theft. See id.

On the contrary, the record reflects that the replacement value of the whole collection at the time of the restitution hearing was substantially greater than the market value of the sum of its parts at the time it was unlawfully taken by Appellant. Yet, as the Majority aptly notes, this testimony concerning the cost to replace the victim's coin collection was less than certain. See Majority Memorandum at 3 n.3; see also N.T. Restitution Hearing, 7/23/18, at 13-14 ("I purchased [the coins] in thoughts of giving them to my grandchildren . . . . I don't have enough money to go back and pay whatever it's gonna be not, [$]150,000 perhaps, to replace these coins[.]"). Therefore, I discern no error on the part of the trial court in declining to set replacement costs as the full measure of the victim's loss. See, e.g., Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa.Super. 2017) ("Although an award of restitution lies within the discretion of the trial court, it should not be speculative or excessive and we must vacate a...