J-S91022-16

2017 PA Super 78

*

Former Justice specially assigned to the Superior Court.

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 

____________________________________________

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

respectively.
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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Super. 2016) (unpublished memorandum).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