J-S63005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

HEATHER ANTOS,

                            Appellant                     No. 705 MDA 2014


            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.:                                    FILED MAY 07, 2015

       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 the

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*
    Retired Senior Judge assigned to the Superior Court.
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owners 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, a

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diamond 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.




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       Appellant claims that the restitution award as to victims Christopher

and Deborah Kutch, Jerry Kaufman and Mary Ann Kaufman 1 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,
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1
   Appellant concedes that Eric Judge’s restitution award was sustained by
the evidence. Appellant’s brief at 10.



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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.


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       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 is
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3
   The Commonwealth acknowledges that a restitution proceeding is a
sentencing proceeding.




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impermissible.”   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 the


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sentencing 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 and fingerprint identification. We

outlined that, while the police witness’s “testimony was hearsay, it was not

the type of ‘unsubstantiated’ hearsay previously criticized by this court in

Commonwealth v. Cruz [supra].” Medley, supra at 1230. In affirming,

we also observed that the defendant had admitted that he previously was

arrested in the city and state in which the offense occurred and that the

police detective in question was an expert in fingerprint comparison.          We

concluded that the detective’s hearsay, in light of the circumstances, had

sufficient indicia of reliability to be relied upon by the sentencing court.

      Hearsay is defined as a statement that “the declarant does not make

while testifying at the current trial or hearing” and that “a party offers in

evidence to prove the truth of the matter asserted in the statement.”

Pa.R.E.   801(c)(1-2).     The    myriad     documents     submitted     by    the

Commonwealth herein were undoubtedly hearsay.            Emails, appraisals, and

handwritten lists were introduced to establish which items were taken and

their values. Those who made the statements did not testify at the hearing.

Thus, all of the objected-to documents were hearsay.




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      Additionally, the documents bore no indicia of reliability, as did the

hearsay at issue in Medley.         No one introduced the documents into

evidence.     Instead, the Commonwealth merely submitted them to the

sentencing court. There were no other corroborating circumstances, such as

admissions by Appellant, that provided substantiation for the truth of the

matters reported in the documents.

      The critical flaw in these proceedings was Appellant’s inability to

engage   in   any   type   of   cross-examination.   That   scenario   offends

fundamental notions of fair play and due process. Mr. Kaufman provided a

handwritten list of his lost items and his own personal opinion as to their

worth. Although Appellant pointed out that pocket watches normally retail

for $1,500, the sentencing court speculated that Mr. Kaufman’s pocket

watch may have been an antique and therefore worth $8,500. In doing so,

the sentencing court engaged in unsupported guesswork as to the pocket

watch’s characteristics.    Appellant was unable to question Mr. Kaufman

about why his pocket watch had a value many times in excess of that of a

typical pocket watch.

      Likewise, Ms. Kaufman merely submitted an email listing her stolen

jewelry pieces, which had high values placed on them. Appellant could not

inquire about their size, composition, nature, or other unique characteristics

that supported the significant valuations in question.   Moreover, Appellant




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could not contest the appraisals in any manner, including the $15,000 value

assigned to the turquoise necklace.

       The Commonwealth first argues that, “the Rules of Evidence are not

applicable to restitution proceedings, so that there was no need for

authentication of the documents presented.” Commonwealth’s brief at 4. It

continues that restitution can be upheld based upon hearsay, and it relies

upon Commonwealth v. Burwell, 58 A.3d 790 (Pa.Super. 2012).4 In that

decision, we simply outlined that the victim’s lost wages were proven by

reference to a letter from his employer and affirmed a restitution award.

However, there was no hearsay objection raised to the proof of wage loss

through the use of the letter, and the issue presently on appeal herein was

not examined to any extent by the Burwell decision.

       As stated supra, our Rules of Evidence expressly apply to sentencing

hearings and the use of rank hearsay during sentencing proceedings has

been disapproved by this Court.           As established by Medley, supra, only

hearsay that is reliable and substantiated by surrounding circumstances can

be permitted at such a proceeding.

       The Commonwealth notes that other “state courts have specifically

concluded that restitution is a part of sentencing and hearsay is admissible

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4
   The Commonwealth does not attempt to establish that the documents in
question fall within the parameters of a hearsay exception. We also note
that the appraisals were not authenticated.



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at a restitution hearing.”    Commonwealth’s brief at 7.     It continues, “This

Court should follow the lead of these other state courts and likewise find that

hearsay is admissible in restitution hearings.” Id. at 8. We have read the

decisions from the other jurisdictions and, in each instance, the applicable

state rule of evidence expressly stated that its jurisdiction’s rules of evidence

were not applicable in sentencing proceedings.      The Pennsylvania Rules of

Evidence, as promulgated by our High Court, are directly to the contrary.

The Pennsylvania Supreme Court is accorded the sole authority to alter the

rules of evidence applicable to courts.       Pa.Const. Art. V. § 10(c) (“The

Supreme Court shall have the power to prescribe general rules governing

practice, procedure and the conduct of all courts[.]).       This Court cannot

ignore its mandate that the Pennsylvania Rules of Evidence apply to all

proceedings in any court in this Commonwealth.         Moreover, this panel is

bound by the prior Superior Court decisions that hold that unreliable hearsay

cannot be utilized at sentencing. Hence, we must vacate the judgment of

sentence and remand for re-sentencing, where the Commonwealth may

establish the victims’ entitlement to restitution within the bounds of

accepted evidentiary proof.

      Judgment of sentence vacated.        Case remanded for re-sentencing.

Jurisdiction relinquished.

      Judge Panella and Judge Platt concur in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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