J-S68020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JEREMIAH D. HELLER

Appellant No. 2010 WDA 2015

Appeal from the Order dated November 18, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007331-2014

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 23, 2016

Appellant, Jeremiah Heller, appeals from an order dated November 18, 

2015, that directs his payment of restitution relative to items stolen by 

Appellant from the home of his girlfriend and his girlfriend’s grandfather. 

We affirm.

On November 20, 2014, Appellant pleaded guilty to one count of 

defiant trespasser – actual communication to actor, and two counts of theft 

by unlawful taking – movable property.1 That same day, on one count of 

theft by unlawful taking, Appellant was sentenced to five years’ probation 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3503(b)(1)(i) and 3921(a), respectively.
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and ordered to pay restitution in the amount of $83,000.00; he received no 

further penalty on the remaining two counts. 

On December 12, 2014, Appellant moved for a restitution hearing; on 

December 17, 2014, the trial court scheduled a hearing for January 28, 

2015. During that hearing, the trial court admitted that it “can’t answer the 

fundamental question why was it $83,000,” it “[did]n’t know how we came 

up with that amount,” and “[t]here was nothing put on the record” 

explaining the amount. N.T., 1/28/15, at 9-10. The trial court granted a 

continuance in order “to make a more informed decision.” Id. at 14.

After the hearing was rescheduled multiple times, it ultimately was 

convened on September 21, 2015. On November 18, 2015, the trial court 

ordered Appellant to pay $25,000.00 in restitution, rather than the 

$83,000.00 originally ordered. This appeal followed.

Appellant raises one issue for our review:

WHETHER THE TRIAL COURT ERRED IN SENTENCING 

APPELLANT PURSUANT TO 18 Pa. C.S.A. §1106 BY REQUIRING 

HIM TO PAY $25,000.00 IN RESTITUTION WHEN THE VALUE OF 

ITEMS REFERENCED WERE SPECULATED UPON AND THE ORDER 

WAS NOT SUPPORTED BY THE RECORD?

Appellant’s Brief at 4.

Regarding challenges to a trial court’s imposition of restitution, 

appellate courts have drawn a distinction between cases where the challenge 

is directed to the trial court’s authority to impose restitution and cases 

where the challenge is premised upon a claim that the restitution ordered is 
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excessive. Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006). 

“When the court's authority to impose restitution is challenged, it concerns 

the legality of the sentence; however, when the challenge is based on 

excessiveness, it concerns the discretionary aspects of the sentence.” Id. 

“[C]hallenges concerning the amount of restitution involve the discretionary 

aspects of sentencing.” Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa. 

Super. 2007).

A challenge to the discretionary aspects of a sentence is not 

appealable as of right. Commonwealth v. Luis Colon, 102 A.3d 1033, 

1042–1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). 

Therefore, before we exercise jurisdiction to reach the merits of Appellant’s 

issue, we must engage in a four part analysis to determine: (1) whether the 

appeal is timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a concise statement of the reasons relied upon for 

allowance of an appeal with respect to the discretionary aspects of his 

sentence; and (4) whether the concise statement raises a substantial 

question whether the sentence is inappropriate under the Sentencing Code. 

Id. Only if the appeal satisfies each of these four requirements may we 

proceed to decide the substantive merits of the case. Id.

Instantly, Appellant filed a timely notice of appeal and properly 

preserved his issue in his post-sentence motion. Additionally, Appellant’s 

brief contains a concise statement of the reasons on which he relies. 
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Appellant’s Brief at 10-11.2 Finally, in Commonwealth v. Pappas, 845 

A.2d 829, 842 (Pa. Super. 2004), this Court held that a substantial question 

is raised when an appellant argues that a sentence of restitution was not 

supported by the record. Thus, we will consider the substantive merits of 

Appellant’s sentencing claim.

A trial court has discretion when it sentences a defendant:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2015), appeal 

denied, 117 A.3d 297 (Pa. 2015) (citation omitted). Here, the trial court 

included a restitution requirement as part of Appellant’s sentence, as 

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2 Appellate Rule 2119(f) requires that this statement provide “the reasons 

relied on for allowance of appeal.” Appellant’s statement cites 

Commonwealth v. Walker, 666 A.2d 301, 307 (Pa. Super. 1995), for the 

proposition “that a substantial question is raised when a defendant argues 

that restitution was not supported by the record.” The Rule 2119(f) 

Statement is otherwise bereft of any analysis or explanation. Nevertheless, 

in light of the argument made in the remainder of Appellant’s brief, we 

decline to dismiss this appeal on the basis of the statement’s inadequacy. 

See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006) 

(this Court may review an appellant’s discretionary aspects of sentence 

claims in instances where the Commonwealth has not objected to his or her 

failure to include an adequate Rule 2119(f) statement in the appellate brief). 

In the current appeal, the Commonwealth has not raised any objections in 

its brief to the adequacy of Appellant’s Rule 2119(f) Statement.
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mandated by the Sentencing Code, 42 Pa. C.S. § 9721(c) (“the court shall 

order the defendant to compensate the victim of his criminal conduct for the 

damage or injury that he sustained”). Where, as here, the crime is theft of 

property, the Crimes Code, 18 Pa. C.S. § 1106(a), provides that “the 

offender shall be sentenced to make restitution in addition to the 

punishment prescribed therefor.” 

The statute mandates that the court order “full restitution,” 18 Pa. C.S. 

§ 1106(c)(1), and requires the district attorney to recommend an amount 

based on information received from the victim or “other available 

information,” id. § 1106(c)(4). In setting the restitution amount, the trial 

court then “[s]hall 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.” Id. § 1106(c)(2)(i). We have explained:

Although restitution does not seek, by its essential nature, the 

compensation of the victim, 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. A restitution 

award must not exceed the victim's losses. A sentencing court 

must consider the victim’s injuries, the victim’s request as 

presented by the district attorney and such other matters as the 

court deems appropriate. The court must also ensure that the 

record contains the factual basis for the appropriate amount of 

restitution. In that way, the record will support the sentence. 

Pleger, 934 A.2d at 720 (citations omitted).

Appellant argues that the amount of restitution ordered by the trial 

court — $25,000.00 — was based upon speculation and “not supported by 
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the record.” Appellant’s Brief at 4. After a thorough review of the record, 

we disagree.

During the restitution hearing, the Commonwealth presented two 

witnesses. The first was Pamela Mervos, the mother of one victim and the 

daughter of the other, who recounted what was taken from the home. 

According to Ms. Mervos, Appellant stole “a diamond pinkie ring,” gold 

chains, money, “high school championship rings, a Steeler championship 

ring,” “an 18-inch rope gold chain,” “six gold bracelets,” “various patterns,” 

U.S. currency, and “a gold necklace with [a] gold cross.” N.T., 9/21/15, at 

12. Ms. Mervos was able to provide detailed descriptions of the stolen 

jewelry. Id. at 13. Ms. Mervos also provided written lists of the stolen 

items; she had previously given these lists to law enforcement. Id. at 12-

13; Exs. 1-2. Additionally, she supplied seven photographs of herself or her 

father wearing the jewelry, as proof of its existence and of ownership. N.T., 

9/21/15, at 14; Exs. 3-9. 

The Commonwealth’s second witness was David Lykens, who testified 

to having more than 30 years’ experience as a jeweler. N.T., 9/21/15, at 

18. Mr. Lykens was not called as an expert, but he offered testimony 

quantifying the value of the stolen items. Based on the descriptions 

provided by Ms. Mervos, Mr. Lykens referenced examples from industry 

guidebooks, which Ms. Mervos confirmed were approximate substitutes for 
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the stolen jewelry. Id. at 18-19. Mr. Lykens estimated that the total value 

of the stolen jewelry was $61,445.00. Id. at 22; Exs. 10-11.

After taking the matter under advisement, the trial court set the 

amount of restitution at $25,000.00. In its opinion, the trial court stated 

that it did not fully accept Mr. Lykens’ estimated value of $61,445.00, 

because it was based on testimony by Ms. Mervos about details of the 

jewelry that were not proven to the court’s satisfaction and that, as a result, 

would have caused Mr. Lykens to give the items a higher value than was 

appropriate. The trial court explained:

The estimate was solely influenced by Ms. Mervos. Not that the 

Court disbelieved her regarding the items taken, the Court is 

simply not convinced that her description of the key determining 

factors (quality of gold, length of item, etc.) is as precise as 

what may have led to a higher figure. In essence, the Court 

believed some, but not all, of what Ms. Mervos said. This finding 

flowed naturally to not believing everything the jeweler/expert 

said.

Trial Court Opinion, 4/25/16, at 4. The trial court therefore discounted Mr. 

Lykens’ estimate to $25,000.00 (a reduction of nearly 60%). We find no 

error in the trial court’s decision.

Reiterating the holding of Pleger, we stated the following in 

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

When fashioning an order of restitution, the lower court must 

ensure that the record contains the factual basis for the 

appropriate amount of restitution. Commonwealth v. Pleger,

934 A.2d 715, 720 (Pa.Super.2007). 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. Id. 
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The amount of the restitution award may not be excessive or 

speculative.

Here, the record indicates that the trial court relied on the best factual 

evidence that was available in valuing the stolen items, while taking care 

that the amount not be excessive or speculative. 

Appellant complains that the estimate by Mr. Lykens on which the trial 

court relied lacked the precision of a formal appraisal, but, since the items 

were stolen, no such appraisal was available or possible. Appellant provided 

no estimate or evidence of his own regarding the value of the stolen jewelry 

and relied primarily on an argument that the value must have been low 

because the victims’ homeowner’s insurance policy contained a rider that 

insured the jewelry for only $500.00. N.T., 9/21/15, at 16. 

The trial court based its decision on the evidence that was presented 

to it: the court heard testimony from a victim to determine what was stolen, 

heard testimony from a jeweler estimating the value of those items, and 

then acted within its province as a fact-finder to make credibility 

determinations regarding the evidence that it heard. In doing so, the trial 

court was “free to believe all, part, or none of the evidence,” 

Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). We are 

bound by the trial court’s credibility determinations. Commonwealth v. 

Baumhammers, 92 A.3d 708 (Pa. 2014). The fact that the court 

discounted Mr. Lykens’ estimate by 60% shows that the court carefully 
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considered the amount of restitution it would impose. We find no error or 

abuse of discretion by the trial court.

Appellant also argues that the restitution award is too high because 

the trial court “failed to fully consider Appellant’s ability to pay $25,000.00 in 

restitution.” Appellant’s Brief at 19. In this regard, Appellant notes that he 

presented testimony that he had a limited ability to pay restitution because 

he was 25 years old and working for his brother’s landscaping business 

approximately 40 hours per week, earning $12.00 per hour. N.T., 9/21/15, 

at 27, 29. Contrary to Appellant’s argument, however, the trial court could 

not reduce the restitution award on the basis of this evidence. Rather, the 

court had to order restitution, “[r]egardless of the current financial 

resources of the defendant, so as to provide the victim with the fullest 

compensation for the loss.” 18 Pa.C.S. § 1106(c)(1)(i) (emphasis added). 

Evidence about Appellant’s ability to pay restitution thus has no bearing on 

the final amount of restitution ordered. See Commonwealth v. Rush, 909 

A.2d 805, 811 (Pa. Super. 2006) (citing Commonwealth v. Marshall 

Colon, 708 A.2d 1279, 1282 (Pa. Super. 1998)) (“the court need not 

consider the defendant’s ability to pay at the time of imposing restitution”).3

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3 The contrary cases cited by Appellant — Commonwealth v. Fuqua, 407 

A.2d 24 (Pa. 1987); Commonwealth v. Valent, 463 A.2d 1127, 1128 (Pa. 

Super. 1983); and Commonwealth v. Wood, 446 A.2d 948 (Pa. Super. 

1982) — predate addition of the phrase “[r]egardless of the current financial 

resources of the defendant” to Section 1106 in 1995. Similarly, the one 

(Footnote Continued Next Page)
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Because the amount of restitution ordered by the trial court was 

supported by the record and not manifestly unreasonable, we find no basis 

to disturb the award.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016

(Footnote Continued) _______________________

later opinion quoted by Appellant, Commonwealth v. Wright, 722 A.2d 

157, 159 (Pa. Super. 1998), is referenced for this quotation from pre-1995 

precedent:

[A] court “must make sure that the amount awarded not only 

does not exceed damages to the victim, but also does not 

exceed the [appellant's] ability to pay.” Commonwealth v. 

Torres, 396 Pa.Super. 573, 579-81, 579 A.2d 398, 401 (1990) 

(quoting Commonwealth v. Celane, 311 Pa.Super. 93, 102, 

457 A.2d 509, 514 (1982)).

That pre-1995 precedent no longer is applicable.