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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :         IN THE SUPERIOR COURT OF
                                           :               PENNSYLVANIA
                   v.                      :
                                           :
RONALD BRAKE,                              :            No. 1975 WDA 2013
                                           :
                        Appellant          :


       Appeal from the Judgment of Sentence, September 19, 2013,
           in the Court of Common Pleas of Allegheny County
            Criminal Division at No. CP-02-CR-0003887-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED MAY 11, 2015

      Ronald   Brake    appeals     from       the    judgment   of   sentence   of

September 19, 2013, following his conviction of multiple counts of theft. On

appeal, he challenges the amount of restitution he was ordered to pay.

Finding no error, we affirm.

      On August 20, 2013, appellant entered a guilty plea to counts two

through seventeen of the information in exchange for a probationary

sentence.    Count one, dealing in the proceeds of illegal activity, was

withdrawn.     Appellant pled guilty to one count of retail theft as a

third-degree felony; one count of theft by unlawful taking as a third-degree

felony; and fourteen counts of theft by deception, one count graded as a

third-degree felony, one count graded as a first-degree misdemeanor, five

counts graded as second-degree misdemeanors, and seven counts graded as
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third-degree misdemeanors.       The charges related to appellant’s theft of

$10,400 in scratch-off lottery tickets while employed at the Glassmere Food

Mart in Springdale.    Appellant cashed the stolen lottery tickets at various

other stores in the area, mostly in Cheswick and New Kensington.

Sentencing was deferred pending a restitution hearing.

        On September 19, 2013, the parties appeared for a restitution hearing

and sentencing.      It was determined that appellant owed restitution of

$20,106, allocated as follows:      $9,400 to American General Insurance,

Glassmere’s insurer; $1,000 to Glassmere for its insurance deductible; and

$9,706 to the Pennsylvania Lottery Commission for the proceeds of the

stolen tickets. Appellant was sentenced to seven years of probation at count

two, theft by unlawful taking as a felony of the third degree, with no further

penalty at the remaining counts.      In addition, the court allowed for the

possibility that appellant’s probation could be reduced if he paid off the

restitution sooner. (Notes of testimony, 9/19/13 at 39.)

        Appellant filed a petition for reconsideration and modification of

sentence which was denied on October 8, 2013.        On November 12, 2013,

appellant filed a PCRA1 petition seeking restoration of his direct appeal

rights.     The petition was granted on November 15, 2013, and on

December 13, 2013, appellant filed a notice of appeal. Appellant complied




1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed a

Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            I.     Whether the aggregate amount of restitution of
                   $20,106.00 is illegal because it is excessive,
                   speculative, and not supported by the record?

            II.    Whether the restitution award of $9,706.00 to
                   the Lottery is illegal because the amount is
                   excessive and speculative, was based entirely
                   on hearsay, and no evidence was introduced
                   that the Lottery suffered any loss?

Appellant’s brief at 5.

      “We first 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,

731 n.4 (Pa. 1999).

            Initially, we note that

                   [i]n the context of criminal proceedings,
                   an order of restitution is not simply an
                   award of damages, but, rather, a
                   sentence. An appeal from an order of
                   restitution based upon a claim that a
                   restitution order is unsupported by the
                   record challenges the legality, rather
                   than the discretionary aspects, of
                   sentencing.    The determination as to
                   whether the trial court imposed an illegal
                   sentence is a question of law; our
                   standard of review in cases dealing with
                   questions of law is plenary.




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Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013), quoting

Commonwealth v. Stradley, 50 A.3d 769, 771-772 (Pa.Super. 2012)

(citations and quotation marks omitted).

      Here, the parties agree that restitution was imposed as a condition of

appellant’s probation, rather than as part of his sentence. (Appellant’s brief

at 21 n.6; Commonwealth’s brief at 10.)         As such, Section 9754 of the

Judicial Code governs.

            Section 9754 provides, in pertinent part, as follows:

            (a)   General Rule.--In imposing an order of
                  probation the court shall specify at the
                  time of sentencing the length of any
                  term during which the defendant is to be
                  supervised, which term may not exceed
                  the maximum term for which the
                  defendant could be confined, and the
                  authority    that shall   conduct    the
                  supervision.

            (b)   Conditions generally.--The court shall
                  attach such of the reasonable conditions
                  authorized by subsection (c) of this
                  section as it deems necessary to insure
                  or assist the defendant in leading a
                  law-abiding life.

            (c)   Specific conditions.--The court may as
                  a condition of its order require the
                  defendant:

                  ....

                  (8)    To make restitution of the
                         fruits of his crime or to make
                         reparations, in an amount he
                         can afford to pay, for the loss
                         or damage caused thereby.


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                 ....

                 (13) To     satisfy   any     other
                      conditions reasonably related
                      to the rehabilitation of the
                      defendant and not unduly
                      restrictive of his liberty or
                      incompatible      with     his
                      freedom of conscience.

Hall, 80 A.3d at 1212, quoting 42 Pa.C.S.A. § 9754.

                 In the context of a criminal case,
                 restitution may be imposed either as a
                 direct sentence, 18 Pa.C.S. § 1106(a), or
                 as a condition of probation, 42 Pa.C.S.
                 § 9754. When imposed as a sentence,
                 the injury to property or person for which
                 restitution is ordered must directly result
                 from the crime.            However, when
                 restitution is ordered as a condition of
                 probation, the sentencing court is
                 accorded      the   latitude  to   fashion
                 probationary conditions designed to
                 rehabilitate the defendant and provide
                 some measure of redress to the
                 victim. . . . Thus, the requirement of a
                 nexus between the damage and the
                 offense is relaxed where restitution is
                 ordered as a condition of probation.

           M.W., 725 A.2d at 732 (restitution provision of
           Juvenile Act corresponds to Section 9754 in that
           neither contains language specifically requiring that
           loss or injury sustained by victim be direct result of
           defendant’s actions; court has broad measure of
           discretion to fashion remedy based on nature of
           crime and earning capacity of perpetrator).

Id. at 1215.

           Thus, a condition requiring the defendant to take
           some measure of financial responsibility for the


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           consequences of his criminal conduct may be
           reasonably related to the rehabilitation that
           probation is designed to foster. Probation itself is a
           form of lenity in the context of criminal sentencing,
           and so long as essential constitutional liberties and
           freedoms are not disturbed, sentencing judges have
           discretion to fashion monetary obligations as
           conditions under Section 9754(c)(8) and (13). Such
           conditions, so long as they are individualized and
           reasonable, may provide some measure of redress to
           those who have suffered financial hardship due to a
           defendant’s crimes, while guiding the defendant
           towards a law-abiding path.

Id. at 1216 (footnote omitted).

           This more liberal standard for ordering restitution is
           consistent with the rehabilitative purposes of
           probation. Thus, even without direct causation, a
           court may properly impose restitution as a
           probationary condition if the court is satisfied that
           the restitution is designed to rehabilitate the
           defendant and to make some measure of
           reimbursement to the victim. Such sentences afford
           courts latitude to order restitution so that offenders
           will understand the egregiousness of their conduct,
           be deterred from re-offending, and be encouraged to
           live responsibly. They also give sentencing courts
           flexibility to determine all direct and indirect
           damages caused by an offender.

Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.Super. 2007), appeal

denied, 934 A.2d 72 (Pa. 2007) (citations omitted). “However, there must

be at least an indirect connection between the criminal activity and the loss.

Additionally, to the extent a sentence of probation is imposed to make

restitution for losses caused by the defendant’s criminal conduct, there

should be proof of the damages suffered.”         Kinnan, 71 A.3d at 987

(quotation marks and citations omitted).


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        In his first issue on appeal, appellant argues that the aggregate

amount of restitution of $20,106 is excessive and speculative. According to

appellant, the Commonwealth failed to establish the restitution awards to

American General and the Lottery with competent facts.       Appellant argues

that there is no evidence as to how many lottery tickets were actually stolen.

(Appellant’s brief at 28.) Appellant states that the Commonwealth did not

call any witnesses from American General or the Lottery to testify as to their

respective losses. (Id.)

        First, we note that appellant pled guilty and stipulated to the facts.

(Notes of testimony, 8/20/13 at 2.) In addition, the Commonwealth called

witnesses from Glassmere to testify at appellant’s restitution hearing.

Greg Hetrick (“Hetrick”), retail operations manager for Glassmere Food

Stores, testified as to the process of receiving and settling packs of lottery

tickets from the Lottery Commission.        Hetrick testified that the stores

receive packs of scratch-off tickets from the Lottery via UPS.      (Notes of

testimony, 9/19/13 at 8.)     The individual packs come in amounts of $300

and $600.     (Id.)   The packs are then activated for sale to the consumer.

(Id.)    Hetrick testified that after a pack of lottery tickets is sold, it is

“settled” with the Lottery:    “After a pack is sold, we settle the pack, and

once we settle the pack of tickets sold, we pay the lottery for that, and then

get our commission from the Lottery Commission.” (Id.) Hetrick testified

that the Lottery generates computer reports through the settlement system,



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and the stores also keep track of tickets by hand. (Id. at 12-13.) Hetrick

testified that there were $10,400 in tickets that were not settled:

            I looked at the reports, and when you don’t sell a
            pack, we have another report through the Lottery
            Commission and it tells us that these packs were
            never settled by a manager. So that’s when you
            start looking for why they weren’t settled, and that’s
            how they found that the packs were missing and not
            settled, so we were short hundreds of dollars.

            BY MS. PAGE:

            Q     What was the total amount of packs that were
                  not settled?

            A     It was $10,400.

Id. at 9-10.

      Beth Geer (“Geer”), manager of the Springdale store where appellant

worked, also testified regarding the activation and settling of lottery tickets:

                  These slips here are the activation slips that
                  come with every pack of tickets. Before we
                  can sell them, you have to scan it so they are
                  activated so the lottery knows if anybody
                  should turn them in so they can collect money
                  if they won on that ticket.

            Q     Where do those slips go?

            A     After we activate them, we have a folder that
                  we stick them in, and that’s where we keep
                  them until they are settled. We kept them
                  always. We didn’t get rid of any of them, ever.

            Q     Attached to the slip, that activation slip, what
                  is that documentation?

            A     This was a report that the lottery sent of each
                  ticket, the time. It tells you the time that it


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               was activated, and the date, and then it tells
               you every ticket that was cashed in and the
               time and the date, and where it was cashed in
               at, the location, whether it was our store or
               whatever store.

          Q    Now the time and date -- you prepared these
               documents, correct?

          A    Yes. I prepared most of them. Me and Mike
               Naviglia, Chief of Police of Springdale.

          Q    You have the activation slip and you have the
               printout from the PA Lottery Commission,
               correct?

          A    Correct.

          Q    The dates and times of when those packs were
               activated, who was working in the store on
               those dates and times?

          A    Ron Brake.

          Q    You also stated that on the big piece of paper,
               the eight and-a-half by 11 paper, it also shows
               you dates and times of when the individual
               tickets were cashed in, correct?

          A    Correct.

          MS. PAGE:     At this time I would move for the
          admission of Commonwealth Exhibit 2.

          MR. KELLER: I have no objection.

          THE COURT: It’s admitted.

          MS. PAGE:      Your Honor, at this time it’s been
          stipulated by the Commonwealth and defense
          counsel that the total number of tickets cashed in
          totals $9,706.

          THE COURT: Okay.


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Id. at 16-18.

      Furthermore, the Commonwealth introduced into evidence a Sworn

Statement of Proof of Loss from the insurance company, American General,

as well as a copy of the check received from American General in the

amount of $9,400.       (Id. at 6-8; Commonwealth’s Exhibit 1.)        Hetrick

testified that the original claim was for $10,400; however, Glassmere had a

$1,000 deductible, so the check was for $9,400. (Id. at 6-7.)

      The record supports the court’s calculation of the restitution owed by

appellant, and was neither speculative nor excessive.      Although appellant

argues that the Commonwealth did not call any witnesses from the Lottery

or American General, Hetrick testified that the insurance company paid

$9,400 as a result of Glassmere’s loss.      Commonwealth’s Exhibit 1, which

included a copy of the check and a Sworn Statement of Proof of Loss, was

admitted without objection. In addition, Hetrick explained that $10,400 in

lottery tickets were activated but not sold.    Furthermore, it was stipulated

that the amount cashed in for these tickets and paid by the Lottery was

$9,706. The total amount of restitution of $20,106 was amply supported by

the record. This claim fails.

      Next, appellant argues that the restitution award of $9,706 to the

Lottery is illegal.   According to appellant, there is no evidence that the

Lottery actually suffered any loss.    (Appellant’s brief at 30.)    Appellant

contends that because the lottery tickets he cashed were, in fact, valid,


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winning tickets, the Lottery did not lose anything.   (Id. at 33.) Appellant

argued at the restitution hearing that ultimately, the Lottery would have paid

the winning tickets anyway:

           There is no evidence of a loss to these convenience
           stores that Mr. Brake was going around and cashing
           in these tickets at. They were going to give that
           money out regardless of whether the tickets were
           stolen or if they were paid for. My client wasn’t
           accused of manipulating tickets, he wasn’t accused
           of creating tickets. These were tickets that they
           were going to pay out.

Notes of testimony, 9/19/13 at 28.

           Like I said earlier, in our plea we pled to the theft by
           deception, retail theft, it was that conduct of cashing
           them in around town, but as far as restitution it’s not
           there. Once he had ahold of that ticket, it’s a
           negotiable instrument to be cashed in for the
           amount. That ticket, that stealing of the ticket, that
           is the theft, that is where the restitution lies. It
           doesn’t lie when he receives an amount, especially
           considering if the PA Lottery is out that money, they
           are not here to say that. They are not here to
           substantiate that.      I think to say so would be
           speculation. We don’t have any evidence of that. It
           was a negotiable instrument. He gives it to a clerk.
           The clerk either pays him out if it’s a winner or he
           doesn’t.

Id. at 30-31.

      Appellant’s argument misses the mark.      First, it was stipulated that

appellant cashed in $9,706 in stolen lottery tickets. (Id. at 18.) That figure

is not in dispute. Second, appellant has benefited from his wrongdoing and

it is absurd to suggest that he should be allowed to keep his ill-gotten

winnings because the Lottery would probably have paid out the money


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regardless.    These may have been “valid, winning tickets,” as appellant

states, but they were also stolen tickets. As the Commonwealth observes,

while the Lottery might have paid out those winnings to somebody else, they

would not have paid them to appellant because he had no right to those

tickets.   (Commonwealth’s brief at 25.)     To hold otherwise would provide

appellant with a financial windfall. In fact, the amount of appellant’s profit

($9,706) is roughly equal to the face value of the tickets ($10,400). (Id. at

25 n.4.) Therefore, appellant would be able to use his “winnings” to pay off

the restitution for the tickets he stole.    Certainly, this would not further

Section 9754’s primary purpose of rehabilitation of the offender.

      Appellant relies on the recent case of Kinnan, supra, which is readily

distinguishable.   There, this court vacated the appellant’s sentence and

remanded for re-sentencing where we found the restitution component

imposed as a condition of his probation to be illegal.        In Kinnan, the

appellant was an employee of a welding company and stole $3,010.41 worth

of metal. Id. at 985. Police recovered the stolen metal from the appellant’s

garage and returned all of it to the welding company.         Id.   There was

nothing in the record to indicate that the metal or the company premises

were damaged in any way. Id.

      As a condition of his probation, the trial court ordered the appellant to

pay $3,010.41 in restitution to the company. Id. at 986. On appeal, this

court determined that even as a probationary condition, the order could not



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stand where the company suffered no permanent loss as a result of the

theft. Id. at 987-988. The stolen property was returned to the victim and

there was no indication of any other losses or damages. Id. at 987. The

victim was only temporarily deprived of its property. Id.

      In the case sub judice, it is undisputed that the Lottery paid out

$9,706 for the stolen scratch-off lottery tickets and appellant does not claim

that this money has been repaid.       The stolen property in Kinnan was

promptly returned and the victim was made whole. Here, the Lottery has

been wrongfully and permanently deprived of $9,706 due to appellant’s

criminal conduct. It is true that, assuming all of the tickets were eventually

cashed in, the Lottery would have paid out $9,706 to whoever had bought

those tickets. Again, however, this misses the point. Appellant should not

be permitted to benefit from his criminal activity and to hold otherwise

would lead to an absurd and unconscionable result.      Appellant’s sentence

was not illegal and the trial court’s restitution calculation was supported by

the record.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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