J-S34023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

COREY MICHAEL WEAVER KISTNER

                            Appellant                No. 1795 MDA 2014


            Appeal from the Judgment of Sentence October 21, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001221-2014


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED AUGUST 07, 2015

        Corey Michael Weaver Kistner1 appeals from the judgment of sentence

entered on October 21, 2014, in the Court of Common Pleas of York County,

following his negotiated guilty plea to one count each of theft by unlawful

taking, and forgery.2       The plea agreement included the requirement that

Weaver Kistner pay restitution, but the exact amount was not fixed.       The

trial court ultimately ordered restitution of $25,000.3 In this timely appeal,

Weaver Kistner claims the amount of restitution ordered by the court is

____________________________________________


1
    Appellant’s name also appears in the record as “Weaver-Kistner”.
2
    18 Pa.C.S. §§ 3921(a) and 4102(a)(2), respectively.
3
  At sentencing, the trial court ordered restitution of $31,244.50. Following
a hearing on Weaver Kistner’s motion challenging restitution, the court
reduced restitution to $25,000.
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unsupported by independent facts. Based on the submissions by the parties,

certified record, and relevant law, we affirm.

       The facts of the record establish that Weaver Kistner worked as a parts

sales manager for AutoZone between May 1, 2013 and January 28, 2014.

On January 28, 2014, AutoZone’s district manager, Lester Stanley, and

AutoZone investigator, Robert Brito, interviewed Weaver Kistner while he

was still employed by AutoZone.                During this interview, Weaver Kistner

admitted that he had been making fraudulent returns of merchandise that he

estimated totaled about $25,000. N.T., 10/21/2014 at 7. He also stated he

made fraudulent returns during a seven to eight month period, two to three

times a week.          Weaver Kistner estimated each return to be worth

approximately $500.4         Id. at 9.     Subsequently, following instructions by

Brito, Weaver Kistner used a scan gun to identify items fraudulently returned

and the total amount scanned was $31,244.50.                  Id. at 11.   After the

interview concluded, Weaver Kistner was arrested. When the police asked

about the value of the returns, he told them the value was between $5,000

and $10,000. Id. at 25.5

____________________________________________


4
  Our calculations provided a range between $28,000, multiplying $1,000
per week for twenty-eight weeks, and $48,000, multiplying $1,500 per week
for thirty-two weeks. See also N.T., 10/12/2014 (calculating $32,000-
$48,000 based on 8 months).
5
  Accordingly, evidence produced at the October 21, 2014, hearing provided
the trial court with four estimates of the values of the fraudulent returns: 1)
(Footnote Continued Next Page)


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      Following sentencing on August 28, 2014, Weaver Kistner filed a

motion for a restitution hearing to determine the accurate amount of

restitution owed.6       At the hearing on October 21, 2014, the trial judge

ordered restitution of $25,000.            Trial Court Pa.R.A.P. 1925(a) Opinion,

1/25/2014, at 3-4.

      Weaver Kistner filed a timely notice of appeal. His sole claim is that

the evidence at the restitution hearing was insufficient as a matter of law to

support the trial court’s restitution award of $25,000. Defendant’s Brief, at

9 (capitalization omitted).

      We address Weaver Kistner’s restitution claim mindful of the following.

      In 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.




                       _______________________
(Footnote Continued)

$25,000, 2) between $28,000 and $48,000, 3) $31,244.50, and 4) between
$5,000 and $10,000.
6
  At the August 28, 2014, sentencing hearing, Weaver Kistner informed the
court of his intent to request a restitution hearing. The Commonwealth did
not oppose. Weaver Kistner agreed that restitution was owed and told the
court if the restitution amount exceeded the anticipated $31,000 “then
restitution is what it is, and [Weaver Kistner] will pay it.” N.T. 08/28/2014
at 3.



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

(citations and quotations omitted).

      Both the Sentencing Code and the Crimes Code govern the imposition

of restitution. “The court shall order the defendant to compensate the victim

of his criminal conduct for the damage or injury that he sustained.” 42

Pa.C.S. § 9721(c). Additionally, 18 Pa.C.S. § 1106 directs that:

      Upon conviction for any crime wherein property has been stolen,
      converted or otherwise unlawfully obtained, or its value
      substantially decreased as a direct result of the crime, or
      wherein the victim suffered personal injury directly resulting
      from the crime, the offender shall be sentenced to make
      restitution in addition to the punishment prescribed therefor.

See 18 Pa.C.S. § 1106(a).

      The amount that constitutes the “full restitution” must be determined

by the trial court, under the adversarial system with considerations of due

process. See Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super.

2004). Further, “it is the Commonwealth’s burden of proving its entitlement

to restitution … the lower court must ensure that the record contains the

factual   basis    for   the   appropriate   amount   of   restitution.”   See

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010)

(citation omitted).      The restitution award may not be excessive or

speculative. Id.

      The trial court reasoned that “[a]fter the evidence was presented, and

after hearing argument by counsel, the … proper amount of restitution is

$25,000, based on [Weaver Kistner’s] own belief that that is the amount of

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merchandise that he stole, as indicated in his statement provided to

AutoZone.   There is no credible reason to believe that anything [Weaver

Kistner] said in that interview was false or inaccurate.”     See Trial Court

Opinion, at 3-4 (record citation omitted).

      In arriving at the $25,000 figure, the trial court weighed the evidence

of loss presented by each party and considered several amounts regarding

the valuation of the fraudulent returns.     While Weaver Kistner currently

claims that the accurate amount of the returns is between $5,000 and

$10,000, as he told police, Stanley testified that Weaver Kistner admitted to

making $25,000 worth of fraudulent returns. Further, the trial court deemed

Stanley credible when he testified that $25,000 more accurately represented

the amount taken by Weaver Kistner, than the scan sheet amount. Lastly,

$25,000 is below the lowest end of Weaver Kistner’s range of estimates of

$500 per return.   Therefore, based upon Stanley’s testimony and Weaver

Kistner’s interview statement, the trial court had sufficient grounds to reject

Weaver Kistner’s wholly self-serving low estimate and to determine the

proper amount of restitution was $25,000.

      In Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), “the

victim’s testimony, as to the value of the stolen property, supported

restitution in the amount at issue.      In accepting victim’s testimony as

credible, the court determined, and [the defendant] confirmed, that the loss

suffered by the victim was attributable to the conduct on the part of the

[defendant].”   Id. at 810 (citations omitted).    Similar to Rush, the trial

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court credited Stanley’s testimony in estimating the actual loss to be closer

to $25,000, based on Weaver Kistner’s own admission. N.T., 10/21/2014 at

33.   Weaver Kistner fails to proffer any authority that precludes the court

from using such testimony to support its decision.

      Based    on   the   aforementioned   review,   we   conclude   that   the

Commonwealth presented sufficient evidence for the trial court to award

restitution in the amount of $25,000. Accordingly, Weaver Kistner is entitled

to no relief on this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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