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Commonwealth v. Rotola

Superior Court of Pennsylvania

November 6, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN MICHAEL ROTOLA Appellant

         Appeal from the Judgment of Sentence September 20, 2016 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000282-2016.

          BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J. [*]

          OPINION

          LAZARUS, J.

         John Michael Rotola appeals from the trial court's judgment of sentence, entered in the Court of Common Pleas of Monroe County, following his open guilty plea to theft of property lost, mislaid or delivered by mistake (M-1), [1] ordering him to serve 9-24 months', less one day, imprisonment, and pay restitution in the amount of $25, 000, jointly and severally with his co-defendant.[2] After careful review, we vacate and remand.

         The trial court summarized the relevant facts underlying this case as follows:

On October 25, 2015, Pocono Mountain Regional Police Department received a call from Theresa Mahoney[], regarding a theft at her residence, located at 191 Flame Drive, Tunkhannock Township, Monroe County. Theresa had arrived home to find her front door damaged and her television and $15, 000-$20, 000 worth of jewelry missing. Mahoney advised officers that there had been multiple burglaries and thefts in the neighborhood since her neighbor Thomas Pollard [] moved in with his mother at 222 Flame Drive.
A database search on Leadsonline showed that a Thomas Pollard of 222 Flame Drive sold jewelry to P&J Coin and Gold Exchange in Broadheadsville, PA. Mahoney later identified several pieces of unique jewelry on display at the pawn shop as belonging to her and stolen from her residence. On November 11, 2015, a search warrant was served at Pollard's residence. After the search was concluded, Detective Kenneth Lenning [] and Detective Ryan Venneman [] interviewed Pollard. Officers also spoke with community members in the development who advised . . . [Detective] Lenning that the police should look into Pollard's brother, John Rotola, and Catherine McDonnell, both residents of the development.
A database search on Leadsonline showed that a Catherine McDonnell sold several pieces of jewelry to P&J Coin and Gold Exchange in Broadheadsville, PA. Mahoney was shown pictures of the various items sold to the pawn shop and identified all the pieces of jewelry as belonging to her and stolen from her residence. Mahoney also identified a heart-shaped pendant and ring on display at the pawn shop as belonging to her. A receipt on Leadsonline showed that Rebecca Heddy of Effort, PA had sold the jewelry to the pawn shop.
On November 11, 2015[, ] Lenning received a call from [Defendant] advising him that he had some information for him regarding the recent burglaries in his neighborhood. Rotola advised Lenning and Venneman that he got himself wrapped up in the burglaries that were going on in the community. He stated that one night he was driving around the development with his brother, Pollard, when they ran into their friend Adam Lugo. Lugo asked Pollard if he would sell some jewelry for him. Pollard agreed and Rotola drove his brother to P&J Pawn shop where they sold the jewelry. The next day Rotola noticed some jewelry inside his truck. After asking around to see if any of his friends left it in the truck, he decided it had probably fallen out of the bag of jewelry his brother had the day before. Rotola asked his friend Catherine McDonnell to go with him to the pawn shop and sell the jewelry for him because he did not have any identification. Rotola admitted that he drove McDonnell to the pawn shop on two separate occasions to sell the jewelry he found.
On November 13, 2015, Lenning and Venneman interviewed Rebecca Heddy at her residence. Heddy stated that she received a phone call from Rotola asking her to come to his residence because he had something to talk to her about. Heddy stated that Rotola told her that he needed money to feed his children and asked if she would sell some of his wife's jewelry. Heddy agreed to give Rotola $50 in exchange for the bag of jewelry which she later sold for over $200 to P&J Pawn Shop.

Trial Court Opinion, 1/17/17, at 1-3.

         On June 27, 2016, Rotola pled guilty to one count of theft of property, lost, mislaid, or delivered by mistake. On September 19, 2016, Rotola was sentenced to 9-24 months', minus one day, incarceration in the Monroe County Correctional Facility and ordered to pay $25, 934.44 in restitution to the victim and $120.27 to American Modern Insurance Group. On September 29, 2016, Rotola filed a motion to reconsider sentence requesting amendment of the restitution amount. On October 31, 2016, after a hearing, the court granted Rotola's motion and modified the restitution portion of Rotola's sentence to $25, 000, jointly and severally with his co- defendant.[3]

         Rotola filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On appeal, Rotola presents a single issue for our review: Whether the lower court abused its discretion at the time of sentencing by ordering that [Rotola] pay restitution in an amount that was [neither] commensurate with his degree of criminality nor supported by the record?

         "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 restitution [o]rder which is not supported by the record." Commonwealth v. Balisteri, 478 A.2d 5, 9 (Pa. Super. 1984). Mandatory restitution, as part of a defendant's sentence, is authorized by 18 Pa.C.S. § 1106, which states, 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 ...

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