J-S54038-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 PATRICK SEISIRO SOLOMON                   :
                                           :
                    Appellant              :   No. 1407 MDA 2018

                Appeal from the Order Entered July 23, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0001122-2018


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                         FILED FEBRUARY 25, 2020

      Patrick Seisiro Solomon (“Appellant”) appeals from the Order modifying

restitution entered after a hearing. Appellant contends that the court erred in

ordering restitution in an amount equal to the victim’s initial purchase price of

the stolen collectible coins, rather than calculating it based on the market

value of the coins when they were stolen. We reverse and remand for further

proceedings.

      We glean the following relevant facts from our review of the certified

record and the trial court’s recitation of the facts. See Tr. Ct. Op., dated Apr.

25, 2019.    On June 11, 2018, Appellant pled guilty to Theft by Unlawful
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Taking.1 In exchange, the Commonwealth dismissed a charge of Receiving

Stolen Property. That same day, the court sentenced Appellant to a negotiated

term of three to twenty-three months’ incarceration.          The amount of

restitution was not part of the negotiated sentence.

       The Commonwealth indicated at sentencing that the victim claimed

restitution for $86,950.00. After both parties requested a restitution hearing,

the court entered restitution as $1,799.00, the amount indicated on the

criminal information, and scheduled a restitution modification hearing for July

23, 2018.

       At the restitution hearing, the victim, James Armstrong, testified that

he had kept a detailed list of his coin purchases, compiled by Coinhouse, the

establishment from which he bought the coins over the years. He presented

two lists to the court: (1) one listing the purchase price he paid for all the

coins that Appellant stole from him; and (2) one listing the “current value” of

the coins taken from him, which was determined based upon how much coins

similar to his had sold for on the Internet auction site, eBay, in the three

months prior to the restitution hearing. The original cost of the coins stolen

from him was $86,974.93. The market value of the coins when he checked



____________________________________________


1 Appellant worked for the victim off and on for three years, doing chores
around the victim’s 12-acre property. In September 2017, Appellant helped
the victim move to another home. The victim discovered the theft of many
rare coins in December 2017.



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the eBay listings averaged $58,600.00.2          The victim further testified that

unlike normal objects that depreciate over time, collectible coins are a

commodity whose value fluctuates up and down with the market. Tr. Ct. Op.,

at 2 (citations to Notes of Testimony omitted).3

       After hearing the testimony and argument and reviewing the evidence,

the court ordered Appellant to pay $86,974.93 as restitution to the victim,

explaining:

       The [c]ourt finds [the victim’s] testimony to be credible. He’s
       extremely knowledgeable about coins and their values. This is a
       very interesting question, probably should be on a law school
       exam some day.

       The defense is right in that we don’t normally give people what
       they paid for something. You get market value and in other
       context[s,] you’d get the profit you get what it could be sold for;
       but, when you’re dealing with something that is uniquely a
       collectible that has been stolen and then it’s been put out on the
       market en masse at a time in a fluctuating market, I’m not sure
       that that’s the fair valuation and here’s why.

       . . . If you got coins or stamps or something that’s recognized as
       a legitimate collectible with a longstanding market, the person
       who owns that item can [choose the] time when they sell that
       item on the market. They’re not going to take that collection and
       flood the entire collection at one time onto the market and take
       the highs and the lows hits. They get to pick and choose when
       they put those items into the market, so they can choose to put
       their high-value items out into the market at a peak and hold onto
       those low-value items for the day that the valuation comes back
____________________________________________


2 The victim testified that some of the coins he had purchased had increased
in value in the 12 years that he owned them, and some had decreased in
value. N.T. Restitution, at 19.

3 We note that the victim also testified that it would cost “perhaps” $150,000
to replace the stolen coins. N.T. Restitution at 13.

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     up. That valuation can come back up because silver prices come
     back up, platinum prices come back up, gold comes back up.

     You can have a situation where the value on the market comes
     back because there’s a change of government in a certain country
     and that item is no longer going to be made, that nation no longer
     exists. So the collector sets the time of when it comes out on the
     market. When you have a thief who intervenes, the analogous
     situation is more like someone who comes in and grabs your stock
     portfolio and floods it out onto the market during a day when the
     Stock Market is taking a dip and then saying, well, the guy who
     owns the stocks gets the market value for that day. Well, that’s
     not fair because the person who owns the stocks or the coins or
     the stamps would not have sold on that day.

     So are we going to say that we’re going to let the thief set the
     market price by having the thief through his misconduct set the
     date and the valuation of the items? That doesn’t seem just. It
     doesn’t seem like an accurate valuation either.

                                        ***
     So what are we going to do with this? What we’re going to do is
     we’re going to give the aggrieved party the cost because that’s
     the floor of what they lost here. They may well have lost more
     because, as I mentioned, with collectibles the timing of the sale is
     critical and what was stolen from the victim here was not only the
     coins but it was the opportunity to set the timing of when he would
     sell the collectibles and that’s why we have a fluctuating situation
     here where the market value on a given day does not set the true
     value for the entire set because the entire set would not have been
     sold on a given day.

     Accordingly, the [c]ourt finds that the true damage to [the victim]
     was what he paid for this collection[,] which is $86,974.93

N.T. Restitution, 7/23/18, at 26-30.

     After the denial of his Motion for Reconsideration, Appellant timely

appealed. He raises the following question for our review:

     Did the sentencing court err in awarding restitution based on the
     initial cost of the items stolen as opposed to their market value at
     the time of the theft?

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Appellant’s Brief at 4, 13.

      We review a trial court’s decision regarding restitution for an abuse of

discretion. Commonwealth v. Rush, 909 A.2d 805, 807 (Pa. Super. 2006).

      Section 1106 of the Crimes Code states, “[u]pon conviction for any

crime wherein property has been stolen, converted or otherwise unlawfully

obtained . . . the offender shall be sentenced to make restitution in addition

to the punishment prescribed therefor.” 18 Pa.C.S. § 1106(a). Restitution is

mandatory and a part of a sentence. Commonwealth v. Pleger, 934 A.2d

715, 720 (Pa. Super. 2007).

      A sentence of restitution is designed to impress “upon the offender the

loss he has caused and his responsibility to repair that loss as far as it is

possible to do so.” Commonwealth v. Wood, 446 A.2d 948, 950 (Pa. Super.

1982) (citation, internal quotation marks, and emphasis omitted).

      When determining the amount of restitution, Section 1106(c)(2)

requires the trial court to “consider the extent of injury suffered by the victim,

the victim’s request for restitution as presented to the district attorney in

accordance with paragraph (4) and such other matters as it deems

appropriate.” 18 Pa.C.S. § 1106(c)(2)(i).

      Thus, “[t]o determine the correct amount of restitution, a ‘but-for’ test

is used to identify damages which occurred as a direct result of the crime and

which should not have occurred but for the defendant’s criminal conduct.”

Commonwealth v. Weir, 201 A.3d 163, 171 (Pa. Super. 2018), appeal

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granted on other grounds, 215 A.3d 966 (Pa. 2019) (quoting Commonwealth

v. Gerulis, 616 A.2d 686, 697 (Pa. Super. 1992)). “Additionally, when

imposing an order of restitution, the lower court must ensure that the record

contains the factual basis for the appropriate amount of restitution.” Weir,

supra at 171 (quoting Pleger, supra at 720). “The dollar value of the injury

suffered by the victim as a result of the crime assists the court in calculating

the appropriate amount of restitution.” Weir, supra at 171.

      “Because restitution is a sentence, the amount ordered must be

supported by the record, and may not be speculative.” Id. (quoting

Commonwealth v. Reed, 543 A.2d 587, 589 (Pa. Super. 1988). See e.g.,

Commonwealth v. Boone, 862 A.2d 639, 643-44 (Pa. Super. 2004)

(reversing restitution order after finding the amount ordered was based on

conflicting value estimates submitted by the parties and was, therefore,

speculative).

      In the instant case, the court ordered restitution to comport with the

purchase price of the coins.    However, the trial court also found that the

market value of collectible coins fluctuates. Accordingly, utilizing the purchase

price as the value of the coins at the time of their theft was speculative.

      In light of the fluctuating nature of fair market value of the coins, the

trial court should have relied upon expert testimony that would account for

the fluctuations in the price of the coins over time to determine the fair market

value of the coins at the time Appellant stole the coins.       Accordingly, we


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reverse and remand for an evidentiary hearing on the fair market value of the

coins at the time Appellant stole the coins.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Lazarus joins the memorandum.

      Judge Bowes files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




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