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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Kistner1appeals 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.
J-S34023-15

- 2 -

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)
J-S34023-15

- 3 -

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.
J-S34023-15

- 4 -

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 
J-S34023-15

- 5 -

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 
J-S34023-15

- 6 -

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