J-S91022-16

                                   2017 PA Super 78



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

GEORGE POPLAWSKI

                            Appellant                  No. 820 MDA 2016


              Appeal from the Judgment of Sentence May 2, 2016
                in the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002941-2013


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY RANSOM, J.:                                FILED MARCH 24, 2017

        Appellant, George Poplawski, appeals from the judgment of sentence

of eighteen months of probation, as well as restitution in the amount of

$41,637.00. We vacate and remand.

        The facts underlying Appellant’s conviction are unnecessary to the

disposition of his appeal.       However, we briefly summarize the procedural

history of his case as follows. Appellant was arrested and charged with theft

by deception, deceptive or fraudulent business practices, and home

improvement fraud for receiving advance payment for services that he failed

to perform.1       Following a jury trial in November 2014, Appellant was


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1
  18 Pa.C.S. §§ 3922(a)(1), 4107(a)(2), and 73 P. S. § 517.8(a)(2),
respectively.


*
    Former Justice specially assigned to the Superior Court.
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acquitted of the first two charges, but convicted of home improvement

fraud. Specifically, the jury found him guilty of receiving advance payments

of $2,000.00 or less for work he did not perform.             See 73 P.S. §

517.8(a)(2), (c)(2) (“A violation of subsection (a)(2) constitutes: … (ii) a

misdemeanor of the first degree if the amount of the payment retained is

$2,000 or less…”).

     On January 9, 2015, the court sentenced Appellant to eighteen months

of probation.   No amount of restitution was imposed on that date.        On

January 28, 2015, the court conducted a restitution hearing and imposed

restitution in the amount of $41,637.00.

     Appellant timely appealed his judgment of sentence. On February 9,

2016, this Court vacated Appellant’s sentence in its entirety and remanded

for resentencing. See Commonwealth v. Poplawski, 141 A.3d 589 (Pa.

Super. 2016) (unpublished memorandum).         As Appellant’s restitution was

part of his direct sentence, the court was required to impose restitution at

the same time as his sentencing hearing. Id.

     On   May   2,   2016,   Appellant   appeared   for   resentencing.   The

Commonwealth referred to the complainant’s trial testimony regarding the

amount expended to correct work Appellant had allegedly done. See Notes

of Testimony (N. T.), 5/2/16, at 3-4. Further, the Commonwealth indicated

a contractor hired by the complainant had testified that he expended

$41,637.00 to correct the work Appellant had allegedly performed. Id. The




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court resentenced Appellant to eighteen months of probation and restitution

in the amount of $41,637.00. Id. at 6.

       Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).             The

sentencing court issued a responsive opinion.

       On appeal, Appellant raises the following issues for our review:

       I. The honorable trial court erred when it imposed an illegal
       sentence of restitution in the amount of $41,637.00, because
       there was no causal connection between the crime for which
       Appellant was convicted of and the amount of said restitution.

       II. The honorable trial court erred when it imposed an illegal
       sentence of restitution in the amount of $41,6370.00, because
       said amount was speculative and not supported by the record.

Appellant’s Brief at 4 (unnecessary capitalization omitted).2

       Due to our disposition of Appellant’s issues, we will address them

together.     Appellant argues that the court erred in imposing an illegal

sentence of restitution, because 1) there was no causal connection between

the amount of the restitution and the crime for which Appellant was

convicted, and 2) because the amount of restitution ordered was speculative

and unsupported by the record. See Appellant’s Brief at 7.

       Appellant’s claim is an attack on the legality of his sentence.    See

Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa. Super. 2007). With

____________________________________________


2
 In the court below, Appellant raised a third issue, which he has withdrawn
on appeal. See Appellant’s Brief at 4.



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regard to appeals stemming from the imposition of restitution as a condition

of the judgment of sentence,

      [r]estitution may be imposed only for those crimes to property
      or person where the victim suffered a loss that flows from the
      conduct that forms the basis of the crime for which the
      defendant is held criminally accountable. In computing the
      amount of restitution, the court shall consider the extent of
      injury suffered by the victim and such other matters as it deems
      appropriate. Because restitution is a sentence, the amount
      ordered must be supported by the record; it may not be
      speculative or excessive. The amount of a restitution order is
      limited by the loss or damages sustained as a direct result of
      defendant’s criminal conduct and by the amount supported by
      the record.

Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (internal

citations and quotations omitted); see also 18 Pa.C.S. § 1106(c)(2)(i). Due

to the language “directly resulting from the crime,” restitution is proper only

if there is a direct causal connection between the crime and the loss.

Harriott, 919 A.2d at 238. The sentencing court applies a “but for” test in

imposing restitution; damages which occur as a direct result of the crimes

are those which would not have occurred but for the defendant’s criminal

conduct.   Commonwealth v. Wright, 722 A.2d 157, 159 (Pa. Super.

1998).

      The trial court determined that Matthew Stuka, the complainant, had

paid a second contractor $41,637.00 to complete Appellant’s project after

advancing payments to Appellant. See Trial Court Opinion, 7/11/16, at 7-8.

The trial court noted that but for Appellant’s actions, these payments would

not have been made. Id. The court relied on Wright to note that it was


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empowered to expand the restitution award beyond what had been found by

the jury. Id. We disagree.

     First, we note that the restitution is not directly related to the crime

and the loss.     As noted, supra, Appellant was acquitted of the first two

counts charged. See Jury Verdict Sheet at 1-2. His sole conviction was for

home improvement fraud. A person commits this offense if, with the intent

to defraud another, he:

     [r]eceives any advance payment for performing home
     improvement services or providing home improvement materials
     and fails to perform or provide such services or materials when
     specified in the contract taking into account any force majeure or
     unforeseen labor strike that would extend the time frame or
     unless extended by agreement with the owner and fails to return
     the payment received for such services or materials which were
     not provided by that date.

73 P. S. § 517.8(a)(2). The jury found that the payment Appellant retained

was $2,000.00 or less. See 73 P.S. § 517.8(c)(2)(ii); Jury Verdict Sheet,

11/19/14, at 3.

     The crime for which Appellant was convicted requires, essentially, that

he received advance payment for services never performed.          The jury

concluded that Appellant had retained a deposit of $2,000.00 or less, and

did not perform the work. However, Appellant was acquitted of deceptive or

fraudulent business practices by “delivering less than the represented

quantity of any commodity or service.” See 18 Pa.C.S. § 4107(a)(2); Jury

Verdict Sheet at 2.       Based upon the record provided to us, we cannot

determine whether this $41,637.00 was damages the jury either did not


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recognize or criminalize, or whether it was money Mr. Stuka would have had

to expend to complete the project regardless of Appellant’s involvement.

What is clear, however, is that Appellant was acquitted of criminal liability

with regard to the quantity or quality of his services.

      Finally, the court’s reliance on Wright is misplaced. In Wright, the

complainant suffered damage to crops and two pieces of farm equipment as

a result of the defendant’s actions.     Wright, 722 A.2d at 158-59.    At the

time of trial, only one of the pieces of farm equipment had estimates and

repair bills available for it.   Id. Accordingly, the Wright jury, considering

only evidence of that loss, determined damages between $1,000.00 and

$5,000.00. Id. At the time of sentencing, the trial court ordered restitution

in the amount of $20,745.82, as the second piece of equipment had been

repaired and the complainant could now prove his damages for both pieces

of equipment. Id. at 159. This Court upheld the order of restitution, finding

that although the jury had made a determination for grading purposes, the

sentencing court could award restitution beyond that amount where the

record supported the order. Id. at 160-61.

      By contrast, in the instant case, the jury had all of the necessary

evidence before it at the time of trial.       At the sentencing hearing, the

information relied upon by the trial court in fashioning the restitution amount

was 1) the trial testimony of Mr. Stuka regarding the amount paid to a

contractor to “fix” Appellant’s work, and 2) the trial testimony of the

contractor regarding the amount he billed Mr. Stuka.       This was not, as in

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Wright, a case where information was unavailable to the jury at the time of

sentencing. On the contrary, the jury heard and considered this information,

and either found it unconvincing or not criminal: the same jury acquitted

Appellant of fraudulent business practices.

       Absent circumstances such as those in Wright, the court may not go

beyond the jury’s verdict in fashioning its restitution award. Thus, the

amount of restitution ordered was neither a direct result of Appellant’s

criminal conduct, nor was it supported by the record. Dohner, 725 A.2d at

824.

       We note that Mr. Stuka is not without recourse.      The Crimes Code

specifically provides that an order of restitution does not prevent him from

recovering additional funds through a civil lawsuit.       See 18 Pa.C.S. §

1106(g). This criminal case, however, is not the appropriate avenue to do

so. Accordingly, we find that the trial court erred in imposing an order of

restitution in the amount of $41,637.00.

       Judgment of sentence vacated; case remanded for resentencing in

accordance with this opinion; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017


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