Commonwealth v. Solomon

247 A.3d 1163

COMMONWEALTH of Pennsylvania

v.Patrick Seisiro SOLOMON, Appellant

No. 1407 MDA 2018

Superior Court of Pennsylvania.

Submitted September 15, 2020

Filed March 16, 2021

Brian McNeil, Public Defender, York, for appellant.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.

Justin M. Talarowski, Assistant District Attorney, York, for Commonwealth, appellee.

Kelby S. Carlson, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

OPINION BY BOWES, J.:

A penny saved is a penny earned. But what is the worth of the coin once it is stolen? Patrick Seisiro Solomon stole collectible coins and now wants to cap his restitution liability at their market value at the time of the crime. The issue before us is whether the sentencing court abused its discretion in setting the restitution amount for the coins at their acquisition cost. As we conclude that the sentencing court committed no error of law or abuse of discretion in reaching its determination, we affirm.

The facts of this case are straightforward and undisputed. In late 2017 or early 2018, Appellant stole rare coins owned by James Armstrong and sold them for funds to support his drug habit. As a result, Appellant was charged with theft by unlawful taking and receiving stolen property. On June 6, 2018, Appellant agreed to plead guilty to the theft count, with the other count being dismissed, for a sentence of three to twenty-three months of incarceration plus costs and restitution. The criminal information indicated that the coins were worth $1,799, but the Commonwealth represented at the plea hearing that the victim was claiming $86,950 in restitution. When accepting Appellant's plea, the trial court set restitution at the lesser amount, but scheduled a hearing for the Commonwealth to prove the larger amount.

The hearing took place on July 23, 2018.¹ The Commonwealth's evidence consisted of the testimony of the victim, Mr. Armstrong, as well as an exhibit that Mr. Armstrong prepared. The exhibit contained a seventeen-page typewritten list detailing Mr. Armstrong's coin acquisitions from 2004 through 2012 and indicating for each purchase a description, i.e. , the type of coins and the number in each set, as well as the price he paid.² See Commonwealth Exhibit 1. It also included a handwritten list of which coins Appellant stole, referencing the corresponding page and line of the typed list, and specifying for each the "current value" as well as the initial cost. Id . For some sets of coins the amounts were roughly the same; others had increased or decreased in value between the time Mr. Armstrong bought them and Appellant's theft. Overall, the original cost of the property Appellant stole was $86,974.93, while its "current value" was $58,600. Id .

Mr. Armstrong testified that he started collecting coins in the late 1980s or early 1990s and kept them secured in a storage area in his home. Appellant, whom Mr. Armstrong knew for several years as someone he paid for occasional help to maintain his house and property, learned of the existence of the coin collection when he assisted Mr. Armstrong in moving the boxes to the garage of his new home. See N.T. Restitution Hearing, 7/23/18, at 6-7, 9. After Mr. Armstrong noticed that the boxes of coins had been rearranged more than once, he discovered that some were missing. He went through and made the handwritten list of missing coins, although he only included coins that sold for more than $2,000, and believed that the list would have been longer if he "were willing to spend another three or four days on inventorying every single thing[.]" Id . at 10.

Mr. Armstrong explained that he arrived at the "current value" figures through eBay. He indicated that eBay trades heavily in coins and provides data about recent sales. Id . at 14. He looked though sales within the prior three months of coins comparable to those Appellant had stolen to "find out what the general average sales price was" for each set. Id . at 15. In instances where there were exceptionally high and low sales for the same item, Mr. Armstrong used "the cluster in between" to arrive at a value in the middle. Id .

The trial court questioned Mr. Armstrong about the cause of the fluctuations in values of the coins. Mr. Armstrong indicated that the price at any given time is based upon "the collectability, the desirability, factors of how many were minted," the rarity of the coins, and the metal used (silver, gold, platinum, etc.). Id . at 17-20.

After entertaining argument from the parties, the trial court announced its findings. It indicated that it found Mr. Armstrong to be credible and "extremely knowledgeable about coins and their values."³ Id . at 26. The court discussed various rationales for accepting different total values, but ultimately concluded that the cost to Mr. Armstrong to acquire the coins was the appropriate amount. Accordingly, it set restitution at $86,974.93. Id . at 29.

Appellant filed a timely post-sentence motion, asking the court to reconsider the restitution amount because the Commonwealth failed to prove "that the victim was entitled under law to recoup the full purchase price paid for the coins that were stolen." Motion for Post-Sentence Relief, 8/2/18, at unnumbered 2. Appellant maintained that the lesser amount, based upon the value of the coins at the time of Appellant's crime, should have been used. Id . The trial court denied the motion without a hearing, and Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

On February 25, 2020, a divided panel of this Court reversed the restitution order and remanded for an evidentiary hearing to set the restitution amount based upon expert testimony of market value at the time of the theft. The Commonwealth timely applied for reargument en banc , which we granted on May 1, 2020, and withdrew the prior memoranda. The parties filed substituted briefs upon which they agreed to have this Court decide the case without oral argument. Hence, the appeal is ripe for disposition.

Appellant presents the following question for our review: "Did the sentencing court award speculative and excessive restitution where it based the award on the initial cost of stolen coins despite hearing evidence that the coins’ current market value was almost $30,000 lower than their initial cost?" Appellant's substituted brief at 5.

As our Supreme Court recently affirmed, issues concerning amount of restitution implicate the discretionary aspects of a defendant's sentence. See Commonwealth v. Weir , 239 A.3d 25, 38 (Pa. 2020). See also Commonwealth v. Biauce , 162 A.3d 1133, 1138 (Pa.Super. 2017) ("An order of restitution is a sentence, thus, the amount awarded is within the sound discretion of the trial court and must be supported by the record." (cleaned up)). As such, Appellant has no absolute right to appellate review.

Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Samuel , 102 A.3d 1001, 1006-07 (Pa.Super. 2014) (citations omitted).

Appellant preserved the issue in a timely post-sentence motion seeking reconsideration of his sentence and filed a timely notice of appeal. Appellant's brief contains a statement of reasons relied upon for his challenge to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f). Further, Appellant's challenge to the amount of restitution set by the trial court presents a substantial question.

See , e.g. , Commonwealth v. Pappas , 845 A.2d 829, 842 (Pa.Super. 2004) (stating substantial question was presented by the contention that there was insufficient evidence of the value of the stolen property to support the restitution award). Thus, we will address the merits of Appellant's claim.

To prevail, Appellant must demonstrate that the sentencing court abused its discretion. "In this context, an abuse of discretion is not shown merely by an error in judgment." Commonwealth v. Antidormi , 84 A.3d 736, 760 (Pa.Super. 2014). Rather, Appellant must "establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision." Commonwealth v. Bullock , 170 A.3d 1109, 1123 (Pa.Super. 2017). Discretion is abused in ordering speculative or excessive restitution or entering a restitution award not supported by the record. See Weir , supra at 38 ; Commonwealth v. Crosley , 180 A.3d 761, 771 (Pa.Super. 2018).

Appellant contends that the trial court misapplied the law in awarding "a speculative and excessive amount in restitution" rather than basing restitution on "market value or replacement cost[.]" Appellant's substituted brief at 17. Appellant maintains that "the general rule for property is to award its market value or replacement cost in restitution." Id . at 20. While he acknowledges that no "particular method of valuation" is prescribed by the restitution statute, Appellant notes that the statute providing the grading of theft offenses defines "value" as " ‘the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.’ " Id . (quoting 18 Pa.C.S. § 3903(c)(1) ).

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