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[U] Commonwealth v. Cookson

Superior Court of Pennsylvania

February 11, 2014



Appeal from the Judgment of Sentence of February 19, 2013 I n the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000303-2012.

Joseph D. Seletyn, Esq.




Appellant, Brad Stephen Cookson, Jr., appeals from the judgment of sentence entered on February 19, 2013. We affirm.

On November 20, 2012, Appellant pleaded guilty to the summary offense of criminal mischief.[1] As part of the plea agreement, Appellant agreed that "a restitution hear[ing] shall be held at which time [ the] Com[monwealth would] not be limited to [ the] summary limit regarding restitution [ ] and [ the trial] court can order restitution of more than [ the] summary amount if [ the] Com[monwealth] proves same."[2] Plea Agreement, 11/ 20/ 12, at 1. That day, the Honorable Timothy F. McCune of the Court of Common Pleas of Butler County[3] entered an order declaring that Appellant's sentencing hearing would occur on a future date and that, during the sentencing hearing, Judge McCune would hear testimony "regarding the restitution [ that] is to be ordered as part of this sentence." Trial Court Order, 11/ 20/ 12, at 1.

During the restitution hearing, the trial court heard testimony from the victim in this case, Steve Pelusi. Mr. Pelusi testified that, in 2011, he was renting an apartment to Appellant and that he was forced to evict Appellant due to Appellant's non-payment of rent. N.T. Restitution Hearing, 2/19/13, at 4-5. According to Mr. Pelusi, on December 22, 2011, he saw Appellant on the street and realized that Appellant was attempting to steal the refrigerator from his apartment, as well as "a yellow table[, ] a variety of antiques[, ] some hardware, some pipes[, ] and miscellaneous things" from the apartment building basement. Id. at 5-6. Mr. Pelusi testified that he telephoned the police and – although Appellant left the refrigerator on the street – Appellant absconded with the remaining property. Id. 6-9. Moreover, Mr. Pelusi testified that the refrigerator did not work after Appellant had left it on the street. Id. at 9.

Mr. Pelusi testified as to the value of all the broken or stolen item s. As Mr. Pelusi specifically testified: the refrigerator was worth $350.00; the table was worth $150.00; the hardware was worth $1, 600.00; and, the pipes were worth $1, 400.00. Thus, Mr. Pelusi testified, the grand total of the property that Appellant either stole or broke was $3, 500.00. Id. at 9-11. Appellant did not object to any portion of Mr. Pelusi's testimony and Appellant did not claim that Mr. Pelusi's estimates were somehow speculative. See id.

During the restitution hearing, Appellant testified on his own behalf and denied stealing or attempting to steal anything from the apartment or the apartment building. Id. at 25. Moreover, Appellant testified that his apartment refrigerator had been broken for a long time prior to December 22, 2011 and that he had, in fact, notified the landlord's superintendent that his refrigerator was broken. Id. at 23.

At the conclusion of the restitution hearing, the district attorney recommended that the trial court order Appellant to pay Mr. Pelusi either $3, 500.00 or $3, 330.00[4] in restitution. Id. at 30.

The trial court ordered Appellant to pay Mr. Pelusi $3, 150.00 in restitution. Specifically, the trial court declared:

The [ trial] court finds restitution shall be due to Mr. Pelusi, [ $150.00] for the table, [ $1, 600.00] for the [ hardware], [ $1, 400.00] for the gas pipe. [ The trial court] is not going to order restitution of the refrigerator.

Id. at 30- 31.

Appellant filed a timely notice of appeal to this Court and now raises the following claim: [5]

Did the trial court err in finding there was sufficient evidence to impose restitution in the amount of $3, 150?

Appellant's Brief at 7.

"In the context of criminal proceedings, it is well-settled that an order of restitution is not simply an award of dam ages, but, rather, a sentence." Commonwealth v. McKee, 38 A.3d 879, 880-881 (Pa.Super. 2012) (internal quotations and citations omitted). Further, as our Supreme Court has held, "restitution is a creature of statute and, without express legislative direction, a court is powerless to direct a defendant to make restitution as part of a sentence." Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992).

In this case, the trial court imposed restitution as a part of Appellant's direct sentence, in accordance with 18 Pa.C.S.A. § 1106. This section provides, in relevant part:

§ 1106 . Restitution for injuries to person or property

(a) General rule.- - Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.
(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. . . .
(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim, the victim 's request for restitution as presented to the district attorney in accordance with paragraph (4) and such other matters as it deems appropriate.

18 Pa.C.S.A. § 1106.[6]

The above statute demands that the trial court order "full restitution . . . to provide the victim with the fullest compensation for the loss." Id. Our Supreme Court has, however, held:

Because [ 18 Pa.C.S.A. § 1106] imposes restitution as part of a sentence, its penal character must not be overlooked and it would seem to us that restitution can be permitted under 18 Pa.C.S.A. § 1106 only as to losses for which the defendant has been held criminally accountable. This is in keeping with the well established principle that criminal statutes must be strictly construed. See 1 Pa.C.S.A. § 1928(b)(1).

Harner, 617 A.2d at 705.

We turn now to consider the precise nature of Appellant's challenge to the trial court's restitution order. Regarding challenges to the imposition of restitution, we have held:

the appellate courts have drawn a distinction between those cases where the challenge is directed to the trial court's [ statutory] authority to impose restitution and those cases where the challenge is premised upon a claim that the restitution order is excessive. When the court's authority to impose restitution is challenged, it concerns the legality of the sentence; however, when the challenge is based on excessiveness, it concerns the discretionary aspects of the sentence.

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa.Super. 2006); see also In re M.W ., 725 A.2d 729, 731 (Pa. 1999) (holding that, when an issue "centers upon [ the court's] statutory authority" to impose the sentence, as opposed to the "court's exercise of discretion in fashioning" the sentence, the issue implicates the legality of the sentence); Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011) (plurality) (explaining In re M.W .).

In this case, Appellant claims that the trial court erred when it ordered him to pay $3, 150.00 in restitution, as the restitution order was not supported by the record. Specifically, Appellant claims: 1) there was "no evidence" that Appellant stole the items from the basement, and 2) Mr. Pelusi's value estimates were "speculative and unsubstantiated." Appellant's Brief at 9-11. Both of Appellant's claim s challenge the trial court's statutory authority to order the restitution. See McKee, 38 A.3d at 881 ("[ a] n appeal from an order of restitution based upon a claim that a restitution is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing") (internal quotations and citations omitted); Commonwealth v. Katz, 464 A.2d 1343, 1346 (Pa.Super. 1983) ("[ s]ince an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record") (internal quotations and citations). Thus, since Appellant challenges the legality of his sentence, "our standard of review [ regarding his challenges] is de novo and our scope of review is plenary." Commonwealth v. Saunders, 946 A.2d 776, 787 n.12 (Pa.Super. 2008).

The record supports the trial court's determination that Appellant stole the item s from the basement, as well as the trial court's determination of the value of the stolen items. Thus, both of Appellant's claim s fail. Certainly, prior to sentencing, the trial court held a com prehensive restitution hearing, wherein the trial court heard testimony from both the victim and Appellant. During this hearing, the victim expressly and unequivocally testified that Appellant stole all of the listed item s from the basement and the victim then provided the trial court with explicit values for each of the missing item s. N.T. Restitution Hearing, 2/19/13, at 3-20.

Thus, the record clearly supports the trial court's restitution award, given that the victim identified all of the stolen items, was familiar with all of the stolen item s, and provided a specific value for all of the stolen item s. Id. Any claim that the trial court should have believed Appellant's self-serving testimony, or that the trial court should have disbelieved the victim's testimony concerning the value of the items, simply challenges the weight of the evidence – not the trial court's statutory authority to order the restitution. Appellant's claim s on appeal thus fail.

Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.


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