J-S67002-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                    Appellee             :
                                         :
           v.                            :
                                         :
WILLIAM ALBERT RICHARDS,                 :
                                         :
                    Appellant            : No. 1741 WDA 2013

        Appeal from the Judgment of Sentence September 25, 2013,
                 Court of Common Pleas, Allegheny County,
             Criminal Division at No. CP-02-CR-0006475-2013

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED NOVEMBER 12, 2014

     Appellant, William Albert Richards (“Richards”), appeals from the

judgment of sentence of the Court of Common Pleas, Allegheny County,

following a conviction of receiving stolen property, 18 Pa.C.S.A. § 3925(a).

After a review of the record, we affirm the judgment of sentence, but vacate

the amended order of restitution and remand to the trial court.

     A summary of the relevant facts and procedural history is as follows.

In 2012, Richards and Christopher Buckley (“Buckley”) were neighbors in a

duplex and shared a garage that was separated into two sides by a painted

orange line down the middle of the garage. During their time as neighbors,

Richards and Buckley had an acrimonious relationship that resulted in

several disagreements and multiple harassment claims filed by Buckley

against Richards.




*Former Justice specially assigned to the Superior Court.
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      Between June 30, 2012 and July 3, 2012, Buckley and his wife noticed

that several items were missing from a refrigerator and from several large

storage containers located on their side of the garage. On July 12, 2012,

Buckley called the police to report that Richards stole his property.     No

charges were filed against Richards at that time.

      On March 11, 2013, while Richards was moving out of the duplex,

Buckley saw some of the items he reported missing amidst Richards’

belongings.   Specifically, Buckley saw a drill set and several cans of paint

that he noticed were missing from his storage containers in the garage. A

few days after Richards moved, Buckley also discovered his fishing rods that

he noticed were missing the previous summer behind the water heater on

Richards’ side of the garage.   Thereafter, Buckley filed a private criminal

complaint against Richards.     Richards was charged with two counts of

receiving stolen property.1

      On September 25, 2013, the trial court held a bench trial.     Buckley

testified that the cans of paint he saw amidst Richards’ belongings were

significant because they did not contain stock colors, but contained colors

that Buckley specifically had mixed at Lowe’s.      He also testified that he

believed the drill set was his because it “was the exact same color set size,

and it even matched the box that it originally came in. Like I said, it was a



1
   At the beginning of trial, the Commonwealth moved to withdraw the
second count. N.T., 9/25/13, at 2.


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brand new set. […] It had never been used.         It was still in that same

condition.” N.T., 9/25/13, at 12-13. Richards, on the other hand, testified

that he did not have any of the property that Buckley reported missing. He

testified that his aunt gave him the paint that Buckley discovered and that

he had tools in his garage, including the drill set, because he worked in

construction and used tools.

      At the conclusion of testimony, the trial court found Buckley’s

testimony to be credible and found Richards guilty.      Richards waived his

right to a presentence report and the trial court proceeded to sentencing

that day. The trial court sentenced Richards to one year of probation and

ordered him to pay restitution. The Commonwealth requested that the trial

court set restitution at $3,050 based on the total value of the items taken.

The trial court stated, “We’re going to have to have a separate restitution

hearing with regard to that.   So we’ll leave restitution open for 30 days.

You’ll have to submit to [defense counsel] who then can discuss with her

client the basis for the value. […] Receipts will have to be provided.” Id. at

27.   The court concluded the hearing by stating, “You can schedule a

restitution hearing for within the 30 days [], unless they can come to an

amount -- by agreement, which I would suggest that they do because unless

there’s adequate documentation, it’s kind of speculation, and we don’t

speculate.” Id. at 28.




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      On October 25, 2013, Richards’ appellate counsel filed a notice of

appeal to this Court at 9:49 a.m.         At 1:25 p.m., the Assistant District

Attorney received an email from an account belonging to an individual by the

name of Thomas Buckley listing items that Richards allegedly stole from

Buckley, along with amounts owed for each item. The email did not provide

any support or documentation for the amounts owed, but noted in

parentheticals that most of the items listed were brand new. The email was

signed, “Buffalo Bob.” At 2:14 p.m., the Assistant District Attorney filed a

Motion for Modification of Restitution, requesting that restitution be set at

$2,695.90.

      On October 29, 2013, the trial court issued an order modifying

restitution, amending the amount of restitution to $3,050.00. The trial court

then issued a restitution court order on October 30, 2013, setting the

amount of restitution to $2,695.00.

      On   January   28,   2014,     Richards   filed   his   statement    of   errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).2                   On appeal,

Richards raises the following two issues for our review, which we have

reordered for ease of disposition:

      1.     Did the Commonwealth present sufficient evidence
             that the defendant intentionally received stolen


2
   On October 30, 2013, the trial court ordered Richards to file a 1925(b)
statement within 21 days or 21 days from receipt of last transcript. In his
1925(b) statement, Richards stated that he received transcripts on January
8, 2014. Therefore, Richards’ 1925(b) statement was timely.


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            property or that he knew that the property was
            stolen?

      2.    Was the sentence illegal since the sentencing court
            increased restitution without jurisdiction, the record
            failed to support this speculative increase in
            restitution, and due process protections were not
            afforded to the defendant when restitution was
            increased?

Richards’ Brief at 6.

      For his first issue on appeal, Richards argues that the Commonwealth

failed to present sufficient evidence to convict him of receiving stolen

property.   Our standard of review in assessing the sufficiency of the

evidence presented is well settled:

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all of the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying [the above]
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we
            note that the facts and circumstances established by
            the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.             The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the trier of fact
            while passing upon the credibility of witnesses and




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           the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing

Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)). “This

standard is equally applicable in cases where the evidence is circumstantial,

rather than direct, provided that the combination of evidence links the

accused to the crime beyond a reasonable doubt.” Commonwealth v. Orr,

38 A.3d 868, 873 (Pa. Super. 2011) (citing Commonwealth v. Cox, 686

A.2d 1279, 1285 (Pa. 1996), cert. denied, 522 U.S. 999 (1997)).

     In this case, the trial court found Richards guilty of receiving stolen

property under 18 Pa.C.S.A. § 3925, which provides:

           (a) Offense defined.--A person is guilty of theft if
           he intentionally receives, retains, or disposes of
           movable property of another knowing that it has
           been stolen, or believing that it has probably been
           stolen, unless the property is received, retained, or
           disposed with intent to restore it to the owner.

           (b) Definition.--As used in this section the word
           ‘receiving’ means acquiring possession, control or
           title, or lending on the security of the property.

18 Pa.C.S.A. § 3925.

     A conviction of receiving stolen property requires the Commonwealth

to prove: “(1) the property was stolen; (2) the defendant was in possession

of the property; and (3) the defendant knew or had reason to believe the

property was stolen.” Commonwealth v. Foreman, 797 A.2d 1005, 1011

(Pa. Super. 2002) (citing Commonwealth v. Matthews, 632 A.2d 570,



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571 (Pa. Super. 1993)). Richards argues that the Commonwealth failed to

prove these three elements. We will address each element separately.

      First, Richards argues that the Commonwealth failed to establish that

Richards stole Buckley’s property. Richards claims that “[t]he only evidence

presented that [he] took [] Buckley’s food items and miscellaneous house

items consisted of [] Buckley’s unfounded accusations that [] Richards must

have taken the items from the garage that multiple people were able to

access.” Richards’ Brief at 36.

      Buckley’s testimony at trial established that several items were

missing from the garage he shared with Richards.     N.T., 9/25/13, at 7-9.

Buckley testified that the garage was always locked: “there’s a garage door

that we use an automatic opener, but there were two doors.       We always

kept ours locked, and [Richards] always kept his locked, especially because

the spring before that he had somebody come after looking for him, so he

always kept it -- he was afraid of that.” Id. at 8. When questioned at trial

regarding who had access to the garage, Richards stated that he, his

girlfriend, Buckley, Buckley’s wife, and the landlord had access to the

garage. Id. at 24.

      As our standard of review provides, “[t]he Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt

by means of wholly circumstantial evidence.”      Helsel, 53 A.3d at 918.

Viewing the evidence in the light most favorable to the Commonwealth as



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the verdict winner, we conclude that the evidence is sufficient to support an

inference that Buckley’s property was stolen.

     Turning to the second element, Richards contends that “[t]he only

properly linked to [] Richards is a drill set and some cans of paint that []

Buckley alleged belonged to him, but [] Richards believed these items

belonged to him.” Richards’ Brief at 40.

     At trial Buckley testified that on the day Richards moved out of his

apartment, he saw a drill set and several cans of paint amidst Richards’

belongings. N.T., 9/25/13, at 11. Buckley testified that the paint cans were

significant because the paint color was not stock, but was a specific color

that he made at Lowe’s.       Id.   Buckley further testified that he saw this

custom color painted on the walls inside of Richards’ apartment. Id. at 12.

Similarly, the tool set Buckley saw amidst Richards’ belongings was unique

as “[i]t was the exact same color[, a soft chartreuse green and gray cover,]

set size, and it even matched the box that it originally came in.” Id. The

tool set remained unopened and in the same condition as when Buckley

purchased it. Id. at 12-13.

     Buckley also testified that he and the landlord discovered his fishing

rods behind Richards’ water heater on Richards’ side of the garage. Id. at

13-14. The fishing rods had lures that were marked with Buckley’s name.

Id. at 14. Buckley testified that he did not place the rods there and that he




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previously asked Richards if he had seen them because they were missing.

Id.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the evidence is sufficient to prove

that Richards possessed Buckley’s property.

      Finally, Richards argues that “[n]o evidence was presented that []

Richards knew that the paint cans and the drill set were stolen from []

Buckley.” Richards’ Brief at 44.    This Court has held that “the mere

possession of stolen property is insufficient to prove guilty knowledge, and

the Commonwealth must introduce other evidence, which can be either

circumstantial or direct, that demonstrates that the defendant knew or had

reason to believe that the property was stolen.”      Foreman, 797 A.2d at

1012 (citing Matthews, 632 A.2d at 571).

      At trial, Buckley testified that the items were taken from his side of the

garage, from blue Rubbermaid containers that were labeled with their

contents, sealed, covered with blankets, and stacked. N.T., 9/25/13, at 8-9,

12.   Buckley testified that the containers from which the paint was taken

were at the bottom of the stack and required taking two rows of the

containers out to get to them. Id. at 12.

      In Commonwealth v. Marrero, 914 A.2d 870 (Pa. Super. 2006), this

Court deemed relevant in establishing guilty knowledge, “the location of the

theft in comparison to the location where the defendant gained possession.”



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Id. at 873. “[E]ven if the accused offers an explanation for his possession of

stolen property, the trier of fact may consider the possession as unexplained

if it deems the explanation unsatisfactory.” Id. (citing Foreman, 797 A.2d

at 1012-13).     Whether the defendant’s explanation is satisfactory is a

“question[] of fact for the trier of fact.” Commonwealth v. Newton, 994

A.2d 1127, 1133 (Pa. Super. 2010) (citing Commonwealth v. Williams,

362 A.2d 244 (Pa. 1976)).

      Richards claimed that he thought the items in question belonged to

him and argues that “he was not trying to hide these items because they

were sitting outside with the rest of his belongings where [] Buckley could

see them.” Richards’ Brief at 44. The trial court, however, determined that

Richards “was not credible in his testimony regarding the paint[ or] the

tools.” Trial Court Opinion, 4/3/14, at 3. This Court will not disturb such a

finding.   Accordingly, Richards is not entitled to relief on his sufficiency

claim.3

      For his second issue on appeal, Richards claims that “[t]he sentencing

court erred in multiple respects by imposing an illegal sentence of


3
   We note that Richards cites to Commonwealth v. Graham, 596 A.2d
1117 (Pa. 1991), for the proposition that “the Commonwealth [cannot]
sustain its burden of proof solely on the fact finder’s disbelief of the
defendant’s testimony.” Richards’ Brief at 42-43. We find this statement of
the law to be inapplicable herein as Richards’ possession of Buckley’s
property in the garage from which the items were taken established
circumstantial evidence that Richards had knowledge that the items were
stolen. Thus, the Commonwealth did not sustain its burden solely on the
fact finder’s disbelief of Richards’ testimony.


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restitution.”   Richards’ Brief at 17.   Our well-settled standard of review

provides that “a challenge to a court’s authority to impose restitution is

generally considered to be a challenge to the legality of the sentence.”

Commonwealth v. Gentry, __ A.3d __, 2014 WL 4942271, at *3 (Pa.

Super. Oct. 3, 2014) (citing Commonwealth v. Hall, 994 A.2d 1141, 1143

(Pa. Super. 2010) (en banc), affirmed on other grounds, 80 A.3d 1204 (Pa.

2013)). “Issues relating to the legality of a sentence are questions of law[;

as a result, o]ur standard of review over such questions is de novo and our

scope of review is plenary.”     Gentry, 2014 WL 4942271, at *3 (citing

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)).

      Richards presents three separate arguments in support of his claim

that the trial court imposed an illegal sentence of restitution: (1) the trial

court modified the restitution order without jurisdiction; (2) the record did

not contain adequate support for the increase in restitution, and the amount

of restitution was therefore speculative; and (3) the court violated Richards’

due process rights by increasing restitution without a hearing or opportunity

to challenge the evidence.    Id. at 19-35.    We will address each of these

arguments separately.

      First, Richards asserts that the trial court did not have jurisdiction to

modify the restitution portion of the judgment of sentence after he filed an

appeal to this Court. Richards’ Brief at 20. We begin by noting that trial

courts are granted flexibility to amend orders, including orders of restitution.



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Section 1106(c) of the Pennsylvania Crimes Code provides trial courts with

the authority to issue, alter, or amend restitution orders.   18 Pa.C.S.A. §

1106(c). Subsection (c)(3) specifically provides:

           (3) The court may, at any time or upon the
           recommendation of the district attorney that is based
           on information received from the victim and the
           probation section of the county or other agent
           designated by the county commissioners of the
           county with the approval of the president judge to
           collect restitution, alter or amend any order of
           restitution made pursuant to paragraph (2),
           provided, however, that the court states its reasons
           and conclusions as a matter of record for any change
           or amendment to any previous order.

18 Pa.C.S.A. § 1106(c)(3) (emphasis added).

     Richards does not dispute the trial court’s authority to alter orders

under section 1106(c)(3); rather, Richards argues that section 1106(c)(3)

must be read in conjunction with Rule 1701(a) of the Pennsylvania Rules of

Appellate Procedure, which provides, “[e]xcept as otherwise prescribed by

these rules, after an appeal is taken or review of a quasijudicial order is

sought, the trial court or other government unit may longer proceed further

in the matter.” Id.; Pa.R.A.P. 1701(a).

     Richards also cites to Commonwealth v. Weathers, 95 A.3d 908

(Pa. Super. 2014), wherein a panel of this Court was presented with a

similar situation to the one presented herein. In Weathers, the appellant

was charged with one count of criminal mischief following an incident

wherein the appellant threw a brick through a car window. Id. at 909. On



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March 4, 2013, at the conclusion of a bench trial, the trial court found the

appellant guilty. Id. at 910. At the sentencing hearing held on March 11,

2013, the Commonwealth requested $530.00 for restitution. Id. However,

the Commonwealth did not possess a receipt to prove the amount of the

repairs to support its request for restitution. Id. As a result, “the parties

agreed to leave the restitution amount open until the Commonwealth

received a receipt.” Id. The trial court then sentenced the appellant to one-

year probation and restitution in the amount of $1.00, “which was to be

amended within thirty days upon the Commonwealth’s providing a receipt.”

Id.

      After the trial court in Weathers denied the appellant’s post-sentence

motion challenging the weight of the evidence, the appellant filed a timely

notice of appeal on April 19, 2013 – more than 30 days after the original

sentencing hearing.   On June 3, 2013, “the trial court issued an amended

order of restitution in the amount of $530.00.” Id. On appeal to this Court,

the appellant argued that the trial court improperly entered the restitution

order more than 30 days after sentencing. Id. at 911. This Court agreed

with the appellant, stating:

            Despite the ‘at any time’ language of section
            1106(c)(3), we are compelled to conclude that in this
            case the trial court did not have jurisdiction to
            modify the order of restitution due to Appellant’s
            timely filing of a notice of appeal. […] After the trial
            court denied Appellant’s post-sentence motion,
            Appellant filed a timely notice of appeal on April 19,



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            2013. At that point, the trial court no longer had
            jurisdiction to proceed in this matter. See Pa.R.A.P.
            1701(a) (‘Except as otherwise prescribed by these
            rules, after an appeal is taken or review of a
            quasijudicial order is sought, the trial court or other
            government unit may no longer proceed further in
            the matter.’); Commonwealth v. Ledoux, 768
            A.2d 1124, 1125 (Pa. Super. 2001) (‘Jurisdiction is
            vested in the Superior Court upon the filing of a
            timely notice of appeal.’).[] Nevertheless, the trial
            court entered an order amending the amount of
            restitution on June 3, 2013. Despite the flexibility
            granted to the court to amend orders of restitution
            under section 1106(c)(3), here the court could not
            modify the order of restitution during a period when
            it did not have jurisdiction over the case.

Id. at 912 (footnote omitted).      As a result, we vacated the trial court’s

amended order of restitution, with instructions that “the trial court may

subsequently amend the order of restitution when it regains jurisdiction,

following the conclusion of this appeal, provided that the court states its

reasons for doing so as a matter of record.” Id. at 913.

      Although both Richards and the Commonwealth posit that Weathers

is indistinguishable from the instant matter, we disagree. In Weathers, the

appellant allowed the 30-day period that the trial court left open for

restitution purposes to pass before filing a notice of appeal to this Court.

The trial court amended the order of restitution 84 days after sentencing and

more than a month after the appellant filed a notice of appeal to this Court.

In the case at bar, Richards filed his notice of appeal on the thirtieth day,

prior to the finalization of the sentencing order.




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      It is well-settled that “[w]ith limited exceptions, Pennsylvania law

permits only appeals from final orders.”     Commonwealth v. Sabula, 46

A.3d 1287, 1291 (Pa. Super. 2012); Pa.R.A.P. 341.           Rule 341 of the

Pennsylvania Rules of Appellate procedure provides that “[a] final order is

any order that: (1) disposes of all claims and of all parties; or (2) is

expressly defined as a final order by statute; or (3) is entered as a final

order pursuant to subdivision (c) of this rule.” Id. In this case, there was

no final order from which Richards could appeal, as the trial court expressly

left the question of restitution open for a period of 30 days. “In the context

of criminal proceedings, an order of ‘restitution is not simply an award of

damages, but, rather, a sentence.’”      Commonwealth v. Atanasio, 997

A.2d 1181, 1182-83 (Pa. Super. 2010) (citing Commonwealth v. C.L., 963

A.2d 489, 494 (Pa. Super. 2008)). Richards filed the appeal on the thirtieth

day. At that time, the trial court had not entered a final order. Thus, we

find Richards’ appeal to be premature.

      Under Rule Pa.R.A.P. 905(a)(5), however, a premature appeal is

subsequently perfected when a final, appealable order is entered. Pursuant

to Rule 905(a)(5), the appeal is “treated as filed after such entry and on the

day thereof.”   Id.   Thus, although Richards’ appeal was premature, the

appeal was perfected on October 29, 2013, after the trial court entered a

final, appealable order.   Richards’ claim that the trial court did not have




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jurisdiction to amend the order after he filed an appeal is therefore without

merit.

      Richards argues that in the alternative, the sentencing court did not

have jurisdiction to enter the order because the order was entered four to

five days after the 30 day deadline. Richards’ Brief at 22. We also disagree

with this argument.    As Richards states in his brief, 42 Pa.C.S.A. § 5505

provides that a sentencing court has 30 days to modify its order if no appeal

is taken. Id. at 21. Section 5505, however, “applies only to final orders and

does not apply to interlocutory orders.” Commonwealth v. Williams, 893

A.2d 147, 149 (Pa. Super. 2006). As the order of sentence in this case was

not a final order, the trial court was not limited by the 30 day jurisdictional

limit of section 5505.    Accordingly, we conclude that the trial court had

jurisdiction to enter the modified order beyond the thirtieth day.

      For his second argument, Richards claims that the increase in

restitution was speculative. Richards’ Brief at 24. Richards argues that the

trial court improperly “relied on a hearsay email signed by someone named

‘Buffalo Bob,’ that included a list of items allegedly stolen, along with prices.

Most of the items were never discussed at trial or sentencing and no

information was presented how ‘Buffalo Bob’ obtained pricing information.”

Id. at 24-25. Richards further challenges the trial court’s failure to review

“bills, receipts, or any other legitimate supporting documentation about




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pricing and depreciation, and without stating any reasons justifying the

modification.” Id. at 25.

        The trial court stated in its opinion that “[a]t the writing of this

Opinion, it was determined that the restitution should have been entered for

$2,695 and it was by clerical error that an order was entered for $3,050.

After consultation with Ms. Phillips (defense counsel), the Restitution order

was correctly set at $2,695.”       Trial Court Opinion, 4/3/14, at 1.   The trial

court, however, did not provide any explanation or justification for the

amount of restitution ordered.

        At sentencing, the trial court expressly stated, “[r]eceipts will have to

be provided […] and we’re not an insurance policy, so this isn’t replacement

cost.    This will be whatever -- I guess for lack of a better phrase --

depreciated value of these items would be.” N.T., 9/25/13, at 27-28. The

trial court further provided that “unless there’s adequate documentation, it’s

kind of speculation, and we don’t speculate.”       Id. at 28.   A review of the

record reveals no support for the Commonwealth’s request or for the trial

court’s order.     Even if the trial court relied upon the email that the

Commonwealth attached to its motion for modification of restitution, there is

no explanation for the restitution amount of $2,695. The value of the items

listed in the email totals $2,974.87. Thus, the email does not provide the

basis of the trial court’s order.




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      “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.”        In Interest of

Dublinski, 695 A.2d 827, 829 (Pa. Super. 1997) (citing Commonwealth v.

Balisteri, 478 A.2d 5, 9 (Pa. Super. 1984)).                 In this case, the

Commonwealth did not present any documentation supporting its request for

restitution aside from the email listing items with an assigned value. This

email does not provide any information as to where the pricing information

was obtained or whether the prices listed reflect the replacement cost, which

the trial court specifically prohibited, or the depreciated value. As a result,

we conclude that the trial court’s restitution order is not supported by the

record.

      Richards further argues, and we agree, that the trial court violated his

due process rights when it substantially increased the amount of restitution

owed without scheduling a hearing or giving Richards the opportunity to

challenge   the   restitution   evidence   presented   by   the   Commonwealth.

Richards’ Brief at 30.   In its opinion, the trial court provided the following

explanation:

            [T]he restitution portion of the sentence was ‘left
            open’ for 30 days to have a hearing unless the
            attorneys agreed to an amount. On the 30th day,
            the court’s minute clerk, Ms. Buchewicz, received the
            Motion to Amend and personally called Ms. Phillips
            (defense counsel) to ask if the matter needed a
            hearing or if the amount was agreed to by the



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            defendant. It is Ms. Buchewicz’s specific recollection
            that Ms. Phillips agreed to the amendment and, as
            such, a hearing was not necessary. The Order was
            entered on October 30, 2013.

Trial Court Opinion, 4/3/14, at 3.

      “It is black letter law in this jurisdiction that an appellate court cannot

consider   anything   which   is   not   part   of   the   record   in   the   case.”

Commonwealth v. McBride, 957 A.2d 752, 757 (Pa. Super. 2008) (citing

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)).

There is no evidence in the record establishing that a phone conversation

between the trial court’s staff and counsel for Richards occurred, nor is there

any evidence that counsel for Richards consented to the amount. Thus, this

Court may not properly consider this information.

      “[A]lthough 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.” Atanasio, 997 A.2d at 1183 (quoting Commonwealth v. Ortiz,

854 A.2d 1280, 1282 (Pa. Super. 2004)). In this case, the record reflects

that Richards never received the opportunity to challenge the restitution

evidence presented by the Commonwealth. We therefore conclude that the

trial court violated Richards’ due process rights. As a result, we vacate the

restitution order and remand to the trial court for it to determine the amount

of restitution owed by Richards.




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     Judgment of sentence affirmed. October 30, 2013 order of restitution

vacated. Case remanded to the trial court for proceedings consistent with

this Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2014




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