Com. v. Dimou, H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
HRISTOS DIMOU, :
:
Appellant :
: No. 1845 EDA 2014
Appeal from the Judgment of Sentence January 9, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division No(s): CP-39-CR-0000616-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BARBARA PAXOS, :
:
Appellant :
: No. 2130 EDA 2014
Appeal from the Judgment of Sentence January 9, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division No(s): CP-39-CR-0000615-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
PENELOPE VERONIKIS, :
:
Appellant :
: No. 2031 EDA 2014
Appeal from the Judgment of Sentence January 9, 2014
In the Court of Common Pleas of Lehigh County
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Criminal Division No(s): CP-39-CR-0000619-2012
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 29, 2016
Appellants, Hristos Dimou, Barbara Paxos, and Penelope Veronikis,
appeal from the judgments of sentence entered in Lehigh County Court of
Common Pleas following a multi-day jury trial. Dimou was convicted of
dealing in the proceeds of illegal activities,1 theft by unlawful taking,2
receiving stolen property,3 and conspiracy to commit dealing in the proceeds
of illegal activities.4 Paxos was convicted of receiving stolen property.
Veronikis was convicted of dealing in the proceeds of illegal activities, theft
by unlawful taking, theft by deception,5 theft by failure to make required
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 5111(a)(2).
2
18 Pa.C.S. § 3921(a).
3
18 Pa.C.S. § 3925(a).
4
18 Pa.C.S. § 903(c).
5
18 Pa.C.S. § 3922(a)(1). Under 42 Pa.C.S. § 9717:
when the victim is over 60 years of age and not a police
officer [the defendant] shall be sentenced to a mandatory
term of imprisonment as follows: . . . 18 Pa.C.S. § 3922
(relating to theft by deception)—not less than 12 months,
but the imposition of the minimum sentence shall be
discretionary with the court where the court finds
justifiable cause and that finding is written in the opinion.
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disposition of funds received,6 and conspiracy to commit dealing in the
proceeds of illegal activities. Dimou challenges the sufficiency of evidence
for his convictions and the restitution order for $260,000.7 Paxos challenges
the sufficiency and weight of the evidence for her conviction and the
restitution order. Veronikis challenges the sufficiency and weight of the
evidence for all of her convictions, the restitution order, and the
discretionary aspects of her sentence. We affirm the convictions and
judgments of sentence for Dimou and Veronikis. We affirm the conviction
for Paxos, but modify her restitution order to reflect an amount of $160,000.
As we write for the parties, we adopt the facts and procedural history
set forth by the trial court’s opinions. See Dimou Trial Ct. Op., 6/20/14, at
2-6; Paxos Trial Ct. Op., 6/20/14, at 2-6; Veronikis Trial Ct. Op., 6/20/14, at
2-7. Dimou conceded depositing $52,750 within six weeks of the sale of the
victim’s vacation home. N.T., 10/15/13, at 221. We add that Veronikis
testified on her own behalf and Dimou’s testimony from the grand jury was
read into the record without objection.
42 Pa.C.S. § 9717(a).
6
18 Pa.C.S. § 3927(a).
7
For each appellant, the restitution order for $260,000 was joint and several
with the other appellants. See, e.g., N.T. Paxos Sentencing Hr’g, 1/9/14, at
7.
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A jury convicted all Appellants. The court sentenced Dimou to an
aggregate term of twelve months minus one day to twenty-four months
minus one day, followed by a consecutive eight years’ probation, and to pay
restitution in the amount of $260,000. Paxos was sentenced to two years’
probation and restitution for $260,000. With respect to Veronikis, following
a pre-sentence investigation, the court sentenced her to an aggregate term
of thirty-two months to twenty-seven years’ imprisonment. See generally
N.T. Veronikis Sentencing Hr’g, 1/9/14, at 2. The aggregate sentence is
comprised of the following: sixteen months to twenty years’ imprisonment
and a $520,000 fine for dealing in the proceeds of illegal activities; sixteen
months to seven years’ imprisonment and a $15,000 fine for theft by
unlawful taking, consecutive to the prior sentence; fourteen months to
twenty years’ imprisonment for conspiracy, concurrent to the initial sentence
for dealing in the proceeds of illegal activities; and restitution in the amount
of $260,000. With the parties’ agreement, the court merged receiving
stolen property, theft by deception, and theft by failure to make required
disposition of funds received into the theft by unlawful taking count. N.T.
Veronikis Sentencing Hr’g, 1/9/14, at 27. The court, therefore, did not
impose a mandatory minimum sentence for theft by deception.
All Appellants filed post-sentence motions, all of which the court
denied on June 20, 2014. In her post-sentence motion, Veronikis argued,
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inter alia, that the court imposed an unreasonably lengthy maximum
sentence of twenty-seven years “under all of the circumstances.” Veronikis’s
Mot. for Reconsideration of Sentence, 1/21/14, at 2. She also contended the
sentence was excessive when the court ordered that the sentence for theft
by unlawful taking be consecutive to the sentence for dealing in the
proceeds of illegal activities. Id. Veronikis also claimed the restitution
amount was inaccurate. Both Paxos and Veronikis challenged the weight of
the evidence. All Appellants timely appealed and timely filed a court-ordered
Pa.R.A.P. 1925(b) statement challenging, inter alia, the sufficiency of the
evidence.8
We address Dimou’s issues first. Dimou raised the following issues in
his brief:
Was the evidence insufficient to support [Dimou’s]
conviction for conspiracy to deal in the proceeds of
unlawful activity, where the evidence was insufficient as a
matter of law to support the elements of conspiracy?
Was the evidence insufficient to support [Dimou’s]
conviction for dealing in the proceeds of unlawful activity?
8
The Rule 1925(b) statements for Paxos and Veronikis failed to identify the
element or elements of the crimes allegedly not proven. See
Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super. 2007) (holding
failure to identify element of offense resulted in waiver of sufficiency claim).
Our Supreme Court, however, has found that when the basis for the
sufficiency challenge is “relatively straightforward,” this Court should
“conduct the requested sufficiency review.” Commonwealth v. Laboy, 936
A.2d 1058, 1060 (Pa. 2007). Because the crimes are relatively
straightforward, we decline to find waiver. See id.
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Was the evidence insufficient to support [Dimou’s]
conviction for theft by unlawful taking?
Was the evidence insufficient to support [Dimou’s]
conviction for receiving stolen property?
Should the restitution order against [Dimou] in the amount
of $260,000.00 be set aside?
Dimou’s Brief at 5.
We summarize the arguments for Dimou’s first four issues. Dimou
contends that the evidence did not establish an agreement to commit crimes
with Veronikis. Dimou maintains that the record established only that he
accepted loan repayments from Veronikis and he had no knowledge that
Veronikis planned or engaged in criminal acts. He asserts that the evidence
was mere innuendo. With respect to his conviction for dealing in the
proceeds of unlawful activities, Dimou argues the record demonstrated he
had no knowledge that those funds were proceeds of illegal activities or that
the underlying transaction was deceptive. Regarding theft by unlawful
taking, Dimou claims there was no knowledge or intent that his receipt of
funds would deprive the victim of her property. Finally, for receiving stolen
property, Dimou alleges he had no knowledge that the funds were stolen.
The Commonwealth counters by quoting extensive excerpts from the trial
transcript that, in its view, established Dimou’s guilt for all of his convictions.
Dimou is due no relief.
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The standard of review for a challenge to the sufficiency of evidence is
de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d
1233, 1235 (Pa. 2007).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
Id. at 1235-36 (citations and some punctuation omitted). “When reviewing
the sufficiency of the evidence, an appellate court must determine whether
the evidence, and all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict winner, are
sufficient to establish all of the elements of the offense beyond a reasonable
doubt.” Id. at 1237 (citation and some punctuation omitted).
We set forth the statutory elements as follows:
§ 5111. Dealing in proceeds of unlawful activities
(a) Offense defined.—A person commits a felony of the
first degree if the person conducts a financial transaction
under any of the following circumstances:
* * *
(2) With knowledge that the property involved,
including stolen or illegally obtained property,
represents the proceeds of unlawful activity and that
the transaction is designed in whole or in part to
conceal or disguise the nature, location, source,
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ownership or control of the proceeds of unlawful
activity.
18 Pa.C.S. § 5111(a)(2). “Unlawful activity” is defined as “Any activity
graded a misdemeanor of the first degree or higher under Federal or State
law.” 18 Pa.C.S. § 5111(f).
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.—A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him
thereof.
18 Pa.C.S. § 3921(a).
§ 3925. Receiving stolen property
(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to
restore it to the owner.
18 Pa.C.S. § 3925(a).
Receiving stolen property is established by proving that
the accused intentionally receives, retains, or disposes of
movable property of another knowing that it has been
stolen, or believing that it has probably been stolen, unless
the property is received, retained, or disposed of with
intent to restore it to the owner. . . .
Importantly, the Legislature expressly defined the
required mental state as “knowing” or “believing.”
Because the Legislature excluded mental states such as
recklessness, negligence, or naïveté about the stolen
status of the property, those mental states are insufficient.
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[T]he defendant must, at a minimum, harbor the personal
belief that the item is probably stolen. . . .
Guilty knowledge (like all culpable mental states) may
be proved by circumstantial evidence. Often, intent cannot
be proven directly but must be inferred from examination
of the facts and circumstances of the case. When
examining the totality of the circumstances to determine if
there is sufficient evidence from which a jury could infer
the requisite mens rea, we must, as with any sufficiency
analysis, examine all record evidence and all reasonable
inferences therefrom. . . .
* * *
The Crimes Code does not . . . explain [the phrase
“belief that the item is probably stolen.”] However, it is
clear that it is designed to criminalize situations where the
defendant does not know for certain that the goods are
stolen, but nevertheless has: (1) considered the possibility
that the goods are stolen and (2) concluded that the
answer is at the very least, “probably.” This Court has
determined that such a belief can be proven by any
number of circumstantial factors:
In order to establish the mens rea element of the crime
of receiving stolen property, the Commonwealth must
prove that the accused possessed property with “guilty
knowledge”, i.e., knowing that it has been stolen, or
believing that it has probably been stolen.
The necessary knowledge may be demonstrated by
circumstantial evidence, and an inference of guilty
knowledge may be drawn from unexplained possession of
recently stolen goods. Whether possession is recent and
whether it is unexplained are normally questions of fact for
the trier of fact.
Other circumstances involved in any given case may
also be considered by the trier of fact in determining if the
inference of guilty knowledge may properly be drawn from
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the unexplained possession. Amongst such circumstances
are the accused’s conduct at arrest and his conduct while
in possession of the goods, as well as, the accused’s
relationship, if any, with the victim of the theft. Once the
inference is properly drawn by the trier of fact and
pursuant to the understanding that it cannot be drawn
unless he is convinced that the unexplained possession is
so recent as to convince him of the inferred fact beyond a
reasonable doubt and his conviction of the same is not
weakened below this standard by other circumstances, an
appellate court may not reverse unless, after considering
the evidence, it believes a juror or judge, acting in a
reasonable and rational manner, could not have been
convinced beyond a reasonable doubt.
Commonwealth v. Newton, 994 A.2d 1127, 1131-33 (Pa. Super. 2010)
(brackets, citations, some internal quotation marks, and footnote omitted).
The Crimes Code defines conspiracy as follows:
§ 903. Criminal conspiracy
* * *
(c) Conspiracy with multiple criminal objectives.—If
a person conspires to commit a number of crimes, he is
guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S. § 903(c).
[T]o sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1)
entered into an agreement to commit or aid in an unlawful
act with another person or persons, (2) with a shared
criminal intent and (3) an overt act was done in
furtherance of the conspiracy. We have held:
The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is
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to be accomplished. Mere association with the
perpetrators, mere presence at the scene, or mere
knowledge of the crime is insufficient. Rather, the
Commonwealth must prove that the defendant
shared the criminal intent, i.e., that the Appellant
was an active participant in the criminal enterprise
and that he had knowledge of the conspiratorial
agreement. The defendant does not need to commit
the overt act; a co-conspirator may commit the overt
act.
Proof of a conspiracy is almost always extracted from
circumstantial evidence. The Commonwealth may present
a web of evidence linking the defendant to the conspiracy
beyond a reasonable doubt. The evidence must, however,
rise above mere suspicion or possibility of guilty collusion.
We have held that, among the circumstances which are
relevant, but not sufficient by themselves, to prove a
corrupt confederation are: (1) an association between
alleged conspirators; (2) knowledge of the commission of
the crime; (3) presence at the scene of the crime; and (4)
in some situations, participation in the object of the
conspiracy. Moreover:
Once there is evidence of the presence of a
conspiracy, conspirators are liable for acts of co-
conspirators committed in furtherance of the
conspiracy. Even if the conspirator did not act as a
principal in committing the underlying crime, he is
still criminally liable for the actions of his co-
conspirators taken in furtherance of the conspiracy.
* * *
The premise of the rule is that the conspirators have
formed together for an unlawful purpose, and thus,
they share the intent to commit any acts undertaken
in order to achieve that purpose, regardless of
whether they actually intended any distinct act
undertaken in furtherance of the object of the
conspiracy. It is the existence of shared criminal
intent that is the sine qua non of a conspiracy.
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The duration of a conspiracy depends upon the facts of the
particular case, that is, it depends upon the scope of the
agreement entered into by its members.
Commonwealth v. Vargas, 108 A.3d 858, 873-74 (Pa. Super. 2014) (en
banc) (brackets, quotation marks, and citations omitted), appeal denied,
121 A.3d 496 (Pa. 2015).
§ 3922. Theft by deception
(a) Offense defined.—A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including
false impressions as to law, value, intention or other
state of mind; but deception as to a person’s intention
to perform a promise shall not be inferred from the fact
alone that he did not subsequently perform the promise
....
18 Pa.C.S. § 3922(a)(1). “Deception is defined as intentionally creating or
reinforcing a false impression. The Commonwealth must also show that the
victim relied on the false impression created or reinforced by the defendant.”
Commonwealth v. Sanchez, 848 A.2d 977, 983 (Pa. Super. 2004)
(citations omitted).
§ 3927. Theft by failure to make required disposition
of funds received
(a) Offense defined.—A person who obtains property
upon agreement, or subject to a known legal obligation, to
make specified payments or other disposition, whether
from such property or its proceeds or from his own
property to be reserved in equivalent amount, is guilty of
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theft if he intentionally deals with the property obtained as
his own and fails to make the required payment or
disposition. The foregoing applies notwithstanding that it
may be impossible to identify particular property as
belonging to the victim at the time of the failure of the
actor to make the required payment or disposition.
18 Pa.C.S. § 3927(a).
Instantly, a review of the record in the light most favorable to the
Commonwealth, as the verdict winner, reveals the following. Dimou testified
he promised to care for the victim, and was pleased when Veronikis, his
then-girlfriend, bonded with the victim. N.T., 10/15/13, at 123. At a
meeting with the victim and the victim’s then-attorney, Dimou indicated that
Veronikis had the victim’s will and that “things were being taken care of.”
N.T., 10/14/13, at 36. The victim did not speak and did not respond to the
then-attorney’s attempts to converse with her. Id. The victim’s then-
attorney met with the victim and Veronikis a few days later. As a result, the
attorney suspected elder abuse and contacted a local government agency.
Id. at 44.
Within six months of Veronikis’s initial contact with the victim,
Veronikis had power of attorney over the victim’s affairs. One attorney
observed that in his thirty years of experience, he had never prepared a
power of attorney for a non-relative. N.T., 10/10/13, at 39. After Dimou
received, inter alia, a $34,000 check drawn on Veronikis’s and Paxos’s joint
account, Dimou testified that Veronikis told him that the victim was the
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source of the funds. N.T., 10/15/13, at 105-07. He was also unable to
explain why, among other things, he was paid $3,000 for a funeral lunch
held at his diner or why he deposited $52,750 into his account within six
weeks of the sale of the victim’s vacation home. Id. at 196-98, 221.
The entire record, when viewed in the Commonwealth’s favor and
accounting for all reasonable inferences, was sufficient to sustain the jury’s
verdict for all of his convictions. See Ratsamy, 934 A.2d at 1235-36. It
was for the jury to evaluate the evidence including, inter alia, Dimou’s
conduct during the police investigation, his conduct while possessing the
victim’s funds, and his relationship with the victim. See Newton, 994 A.2d
at 1131-33. Conversely, we cannot conclude that the jury acted
unreasonably and irrationally in arriving at its verdict. See Ratsamy, 934
A.2d at 1235-36.
In support of Dimou’s last issue on appeal, he argues that the record
does not support a restitution order of $260,000, as that is the amount co-
defendant Veronikis stole from the victim. Dimou contends that assuming
this Court affirms all of his convictions, the restitution amount should be
$61,750. The Commonwealth responds that because Dimou is guilty of
conspiracy, he is responsible for the full restitution amount. We hold Dimou
is not due relief.
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A claim that the amount of restitution is not supported by the record
challenges the legality of the sentence. Commonwealth v. Veon, 109 A.3d
754, 772 (Pa. Super.), appeal granted in part, 121 A.3d 954 (Pa. 2015).
Whether a sentence is illegal is thus a question of law and our standard of
review is plenary. Id.
In Commonwealth v. Nypaver, 69 A.3d 708 (Pa. Super. 2013), the
defendant and his wife were each convicted of one count of theft by
deception and conspiracy. Id. at 710. The defendant was required to pay
restitution. Id. On appeal, the defendant argued that he was not involved
in the theft and therefore the evidence was insufficient to sustain his
conviction. Id. at 715-16. The Nypaver Court rejected that argument,
reasoning that because the record supported the defendant’s conspiracy
conviction, it also supported the theft conviction. Id. at 716; see also
Commonwealth v. Mathis, 464 A.2d 362, 368 (holding, “restitution may
be imposed upon a conspirator for the acts of his fellow conspirators done
within the course of the conspiracy.”).
Instantly, similar to the defendant in Nypaver, Dimou has argued that
he should not have to pay restitution of $260,000—the amount stolen by
Veronikis. See Nypaver, 69 A.3d at 710. As noted above, we have held
that the record viewed in the Commonwealth’s favor support the jury’s
verdict that Dimou was guilty of conspiracy. Because the record supports
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the conspiracy conviction, it follows that the court may order Dimou to pay
restitution for the acts of Veronikis. See Mathis, 464 A.2d at 368.
Accordingly, we discern no error by the trial court. See Veon, 109 A.3d at
772.
Next, we examine the issues raised by Paxos:
Is [Paxos] entitled to an arrest of judgment on the charge
of receiving stolen property where the evidence is clearly
insufficient to sustain the verdict?
Is [Paxos] entitled to an arrest of judgment where the trial
court erred when it denied [Paxos’s] motion for judgment
of acquittal at the conclusion of the Commonwealth’s case?
Is [Paxos] entitled to a new trial on the charge of receiving
stolen property where the greater weight of the evidence
does not support that verdict?
Is [Paxos] entitled to a remand to the sentencing court for
a new hearing when the court erred in imposing
restitution, erring as a matter of fact and law?
Paxos’s Brief at 3 (reordered to facilitate disposition).
We summarize Paxos’s arguments in support of her first two issues.
Paxos notes that she signed the checks at the request of her mother,
Veronikis. She maintains that she did not know the money was stolen and
that she did not intentionally receive the stolen money. No criminal
behavior, Paxos insists, could be attributed to her. She contends nothing in
the record established guilty knowledge. Thus, Paxos concludes the court
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erred in not granting her motion for acquittal after the Commonwealth
rested and the evidence was insufficient.
The Commonwealth counters that Paxos did not just act as a passive
recipient of the stolen money, but was “directly involved in facilitating the
deposits and moving the sizable funds of money.” Commonwealth’s Brief at
13. In the Commonwealth’s view, Paxos’s failure to inquire about the source
of the deposited funds established her guilty knowledge. Id. at 14. It
points out that at Veronikis’s request, Paxos would prepare, sign, and leave
a check for her. Id. at 15. The Commonwealth notes that it was Paxos who
wrote all the checks for Veronikis, although both defendants had authority to
write the checks and that it was Paxos who wrote and delivered the check
that paid for Veronikis’s plastic surgery. The Commonwealth concludes that
it was for a jury to evaluate Paxos’s actions and infer an intent to conceal
stolen funds. Id. at 16. We have concluded that Paxos is not entitled to
relief.
A sufficiency-of-evidence claim is subject to a de novo standard of
review. See Ratsamy, 934 A.2d at 1235. The standard of review for an
arrest of judgment follows:
When ruling on a motion in arrest of judgment, a trial
court is limited to ascertaining the absence or presence of
that quantum of evidence necessary to establish the
elements of the crime. At this stage in the proceedings,
the trial court is limited to rectifying trial errors, and
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cannot make a redetermination of credibility and weight of
the evidence. . . .
For purposes of appellate review,
In passing upon such a motion in arrest of judgment,
the sufficiency of the evidence must be evaluated
upon the entire trial record. All of the evidence must
be read in the light most favorable to the
Commonwealth and it is entitled to all reasonable
inferences arising therefrom. The effect of such a
motion is to admit all the facts which the
Commonwealth’s evidence tends to prove.
In order for a trial court to properly grant a criminal
defendant’s motion in arrest of judgment on the
ground of insufficient evidence, it must be
determined that accepting all of the evidence and all
reasonable inferences therefrom, upon which, if
believed the verdict could properly have been based,
it would be nonetheless insufficient in law to find
beyond a reasonable doubt that the defendant is
guilty of the crime charged.
Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa. Super. 1995)
(brackets, internal quotation marks, and citations omitted).
Instantly, we have carefully reviewed the entire record, including the
trial transcripts, evidence, and reasonable inferences therefrom, in the
Commonwealth’s favor. It was for the jury to evaluate Paxos’s conduct
while possessing and disbursing the funds. See Newton, 994 A.2d at 1131-
33. It was within the jury’s purview to examine the record and conclude
Paxos possessed the funds without explanation and believed that the funds
were probably stolen. See 18 Pa.C.S. § 3925(a); Newton, 994 A.2d at
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1131-33. Given this cold record, we discern nothing compelling that would
permit us to conclude the jury was unreasonable or irrational. See
Ratsamy, 934 A.2d at 1235-36.
For her third issue, Paxos contends that the verdict was against the
weight of the evidence for receiving stolen property. She contends that the
record does not establish that she knew the funds were obtained illegally.
Paxos contends that the record demonstrates nothing unusual about her
actions with her mother, Veronikis. She maintains that the jury’s verdict
was based on speculation and should not stand. We discern no basis for
granting relief.
With respect to a weight claim:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial
court is under no obligation to view the evidence in the
light most favorable to the verdict winner. An allegation
that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would
have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he
were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny
justice.
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Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
footnote, and internal quotation marks omitted). “An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we may only
reverse the lower court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice.” Commonwealth v. Serrano, 61 A.3d 279,
289 (Pa. Super. 2013) (citation omitted).
In this case, as set forth above, the Commonwealth introduced
evidence of Paxos’s culpability, including repeatedly signing checks for the
illegal funds made out to Veronikis. We cannot conclude that the trial court
abused its discretion by denying Paxos’s weight challenge and the verdict
does not shock our sense of justice. See Widmer, 744 A.2d at 751-52;
Serrano, 61 A.3d at 289.
In support of her last issue, Paxos argues that the court erred by
awarding the full restitution amount of $260,000, as she was responsible for
only “$94,949.28, plus an additional amount equal to the value of two Social
Security checks” made out to the victim. Paxos’s Brief at 30. She contends
that the amount of restitution exceeds the damage she caused. Paxos
concedes that the amount of restitution should be $160,000. Id. at 33. In
response, the Commonwealth agrees that because Paxos was not convicted
of conspiracy, and because she received only $160,000 in her bank account,
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the amount of restitution should be $160,000, and not $260,000.
Commonwealth’s Brief at 8.
A challenge to the amount of restitution is a question of law, as it
relates to the legality of the sentence. See Veon, 109 A.3d at 772. After
careful review of the record, we agree with the parties that because Paxos
was not convicted of conspiracy, she is only culpable for $160,000. Because
both parties agree on the amount of restitution, see Paxos’s Brief at 33;
Commonwealth’s Brief at 8, we need not remand for a new hearing and
thus, modify the restitution order to reflect $160,000.9
We last turn to the issues raised by Veronikis:10
I. Is [Veronikis] entitled to an Arrest of Judgment on all
charges including various Theft charges and Criminal
Conspiracy as well as dealing in proceeds of unlawful
activities where there is clearly insufficient evidence to
sustain the verdict?
II. Is [Veronikis] entitled to a new trial on all charges
where the greater weight of the evidence does not support
the verdict?
III. Is [Veronikis] entitled to an Arrest of Judgment where
the Trial Court erred when it denied [Veronikis’s] Motion
9
We do not modify the joint and several restitution order for $260,000 for
Dimou and Veronikis.
10
We note Veronikis’s appellate brief did not include a certificate of
compliance that the brief is less than 14,000 words per Pa.R.A.P. 2135(d).
An informal word count reveals that the brief exceeds 15,000 words.
Because the Commonwealth did not object, we decline to find waiver.
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for Judgment of Acquittal at the conclusion of the
Commonwealth’s case?
IV. Should [Veronikis] be remanded to the Sentencing
Court for a new hearing on the issue of restitution,
because the Court made an error of law in determining the
restitution amount?
V. Is [Veronikis] entitled to a remand to the Sentencing
Court for a new Sentencing Hearing as the Sentencing
Court erred in its legal interpretation of the sentence that
was necessary pursuant to 18 Pa. C.S.A. Section 5111?
VI. Is [Veronikis] entitled to a remand to the Sentencing
Court for a new Sentencing Hearing where the Sentencing
Court abused its discretion in sentencing [Veronikis] by
violating Sentencing Norms and by imposing an unduly
harsh sentence upon [her]?
VII. Is [Veronikis] entitled to a new trial as the Trial Court
erred when it permitted grossly irrelevant evidence, in the
form of a letter and other evidence, reflecting the hiring of
a “criminal attorney” during the investigation of this case?
VIII. Is [Veronikis] entitled to a new trial as the result of
Court error in permitting settlement discussions and offer
and compromise to be admitted at trial when that evidence
should have been excluded?
Veronikis’s Brief at 3.
For her first and third issues, Veronikis contends that the trial court
should have granted her motions for arrest of judgment. For dealing in the
proceeds of illegal activities, she maintains that the victim lawfully gave her
the proceeds at issue. Id. at 17. Veronikis insists that the victim, at that
time, lawfully gifted the funds to her. Id. at 17-18. She denies knowing her
actions were illegal. Id. at 18. With respect to theft by unlawful taking,
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Veronikis similarly asserts that the victim lawfully gave her the funds and
thus she lacked intent. Id. at 19. Regarding her conviction for receiving
stolen property, she argues the funds were never stolen. Id. at 22.
Similarly, Veronikis challenges the sufficiency of evidence for her theft by
deception conviction by insisting the victim voluntarily relinquished the funds
and the absence of any deception and the victim’s reliance on that
deception. Id. at 25-26. In response to her conviction for theft by failure to
make required disposition of funds received, Veronikis suggests she lacked
an intent to steal from the victim. Id. at 28. She opines that her conviction
was a result of an appearance of impropriety. Lastly, for conspiracy,
Veronikis claims the record did not establish an agreement between any of
the co-defendants. Id. at 32. She points out that Paxos was found not
guilty of conspiracy. Veronikis insists that even if she violated the law, it
does not follow she conspired with Dimou because he was her then-
boyfriend and funds were deposited into his bank account. Id. at 33.
As set forth above, the standard of review is de novo, and for this
Court to grant relief, it must conclude the evidence was insufficient to
sustain the defendant’s convictions. See Melechio, 658 A.2d at 1387. We
have carefully reviewed the entire record in the light most favorable to the
Commonwealth. See Ratsamy, 934 A.2d at 1235-36. As noted above, the
jury evaluated all the evidence presented, including her power of attorney,
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the checks she had Paxos prepare, and her testimony that the victim gifted
the funds. See, e.g., Veronikis’s Brief at 17-18. The jury, however, elected
to disbelieve her. See Ratsamy, 934 A.2d at 1235-36. We have no basis
to conclude the jury did not act reasonably and rationally. See id.
In support of her second issue, Veronikis contends that all of her
convictions were against the weight of the evidence. Veronikis asserts that
the power of attorney established that she deferred to the victim’s orders
disbursing the funds to Veronikis and others. She reasons that because she
deferred to the victim, she acted in the victim’s best interests, which was in
accord with the power of attorney. Veronikis argues that the evidence
against her was wholly circumstantial.
As noted above, the standard of review is abuse of discretion. See
Widmer, 744 A.2d at 751-52. Veronikis testified at length on her own
behalf. The trial court viewed the record as a whole and essentially held
that there were no facts that should have been given greater weight. See
id. After careful review of the record, the evidence does not shock our
sense of justice and thus we cannot conclude the trial court abused its
discretion. See Serrano, 61 A.3d at 289.
For her fourth issue, Veronikis contends the court erred in calculating
the amount of restitution as $260,000. In her view, the restitution amount
exceeds the victim’s damages by $94,949.28, plus the unknown total of two
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social security checks,11 and thus is illegal. Veronikis’s Brief at 40. Of the
$94,949.28, Veronikis contends that $44,949.2812 was due to taxes and
other expenses from the victim’s sister’s estate,13 and the remaining
$50,000 was for a second mortgage. Veronikis argues that because she
never received $94,949.28, she should not be held responsible for repaying
that amount.
The Commonwealth counters that because Veronikis was convicted of
conspiracy, she is responsible for the full amount of $260,000. The trial
court opined that Veronikis failed to provide the court documents evidencing
her contention at or after her post-sentence motion hearing. Veronikis Trial
Ct. Op., 6/20/14, at 13. We conclude Veronikis has not established
entitlement to relief.
The standard of review is de novo, as a contention that the restitution
amount is not supported by the evidence is a legality-of-sentence issue.
11
Veronikis’s counsel offered to provide documentation of that amount after
the hearing on her motion for reconsideration of sentence, but the record
reflects no post-hearing supplementation. See N.T. Veronikis Sentencing
Hr’g at 10-11.
12
Somewhat confusingly, Veronikis’s counsel also asserts this figure is
$44,949.78. See N.T. Veronikis Sentencing Hr’g at 11.
13
Specifically, according to Veronikis’s counsel, the victim’s sister
bequeathed $5,000 to a third party, and owed $26,506.49 in taxes, $7,800
in estate legal fees, and $5,642.79 for outstanding debts. See N.T.
Veronikis Sentencing Hr’g at 8-9, 11.
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See Veon, 109 A.3d at 772. We agree with the trial court, however, that
Veronikis failed to supply the trial court with sufficient documentation
supporting her position. Based on the documentation Veronikis provided to
the trial court, we are unable to ascertain how she arrived at her conclusion
that the victim’s damages were allegedly $94,949.28 less than the
restitution amount. See, e.g., Ex. C-1, Victim’s Inheritance Tax Return.
Accordingly, this Court is not in a position to conclude the trial court
erroneously calculated the restitution amount. See Veon, 109 A.3d at 772.
Next, we address Veronikis’s fifth issue. Veronikis’s argument is in
reference to her sixteen month to twenty year prison sentence and $520,000
fine for dealing in the proceeds of illegal activities under 18 Pa.C.S. §
5111(b). She contends that the trial court did not understand the
sentencing choices available to it. Veronikis’s Brief at 44. Accordingly, she
contends the sentence was illegal as it did not “impose a total sentence that
was fair and just under all of the circumstances.” Id. We hold she is due no
relief.
By way of background, at the sentencing hearing, the court imposed
sentence as follows:
The Court: Okay. On count 1, the sentence is a minimum
of 16 months. She is RRRI eligible. The RRRI minimum is
12 months and the maximum is 20 years. And I’m
imposing a $520,000 fine on that count.
* * *
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The Court: . . . So the total sentence is what I indicated
before, it’s 32 months to 27 years. $520,000 fine on count
1. Now, on count 2, the theft—
[Veronikis’s counsel]: You said 25,000?
The Court: $520,000 fine. That’s what [the district
attorney] had asked for with respect to that special
provision. And I think that should apply on this particular
count.
No fines on the other counts. Actually, no, I stand
corrected. I do intend to give her a $25,000 fine on count
2. And I’m putting that in there in case there’s some type
of a legal challenge.
If the Superior Court determines that that does not
apply, at a minimum she will have a $25,000 fine that will
remain. All right. Because I suspect there will be a
challenge to that.
[District attorney]: Your Honor, is that on count 2 or 6?
The Court: Count 2. I’m putting a $25,000 fine on—
excuse me. A $15,000 fine. My mistake. Thank you for
pointing that out to me. She will, at least, have a $15,000
fine on that. $520,000 fine on count 1.
N.T. Veronikis Sentencing Hr’g at 27-28.
“Whether a question implicates the legality of a sentence presents a
pure question of law.” Commonwealth v. Taylor, 104 A.3d 479, 489 (Pa.
2014). “If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Commonwealth v. Melvin,
103 A.3d 1, 52 (Pa. Super. 2014) (citation omitted). The relevant
sentencing provision follows:
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(b) Penalty.—Upon conviction of a violation under
subsection (a), a person shall be sentenced to a fine of the
greater of $100,000 or twice the value of the property
involved in the transaction or to imprisonment for not
more than 20 years, or both.
18 Pa.C.S. § 5111(b) (emphasis added).
Instantly, the court sentenced Veronikis to a sentence of sixteen
months to twenty years’ imprisonment and a fine of $520,000, which
represents twice the value of the property involved. See N.T. Veronikis
Sentencing Hr’g at 27. Section 5111(b) permits a court to impose both
imprisonment and a fine, and the instant trial court elected to impose both.
See 18 Pa.C.S. § 5111(b); Melvin, 103 A.3d at 52. We thus cannot agree
with Veronikis’s assertion that the sentence was illegal or that the court was
somehow unaware of or did not understand the available sentences.
Her sixth issue challenges the discretionary aspects of the sentence.
Veronikis contends her sentence was unreasonable as it was manifestly
excessive. Specifically, she alleges that the maximum sentence of twenty-
seven years’ imprisonment is excessive given her prior record score of zero.
Veronikis’s Brief at 48. Veronikis contends the court gave undue weight to
the age of the victim. She claims the amount of restitution was not
supported by the record and that the court failed to exercise its discretion
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under 18 Pa.C.S. § 5111(b) to impose a fine or imprisonment, or both. 14 Id.
at 49. We conclude Veronikis is not entitled to relief.
This Court has stated that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[W]e conduct a four part analysis to
determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that
the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. §
9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
14
We resolved this specific challenge, supra.
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Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. at 727.
Instantly, Veronikis timely appealed, arguably preserved her issue in
her post-sentence motion,15 and included a Pa.R.A.P. 2119(f) statement in
her brief. See Evans, 901 A.2d at 533. Veronikis’s Rule 2119(f) statement
complies with Googins as she has raised a substantial question by asserting
that her sentence was contrary to the fundamental norms underlying the
sentencing process. See Googins, 748 A.2d at 727. Accordingly, we
examine the merits.
This Court has stated,
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.
15
As noted above, Veronikis did not specifically argue a zero prior record
score or the age of the victim in her post-sentence motion, but did generally
contend the sentence was unreasonable.
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
The level of appellate scrutiny depends on whether the sentence falls
within the sentencing guidelines. Commonwealth v. Bowen, 975 A.2d
1120, 1124 (Pa. Super. 2009). “[A]n appellate court may not disturb a
sentence that is within the sentencing guidelines unless it determines that
the sentence is ‘clearly unreasonable.’” Id. at 1126 n.5 (quoting 42 Pa.C.S.
§ 9781(c)). For sentences that fall outside of the guidelines, the appellate
court may vacate the sentence and remand the case to the sentencing court
only if the sentence is “unreasonable.” Id. at 1123 (quoting 42 Pa.C.S §
9781(c)). However, the guidelines have no binding effect, and do not
“predominate over other sentencing factors.” Commonwealth v. Walls,
926 A.2d 957, 964-65 (Pa. 2007).
In making a reasonableness determination, a court should consider
four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4).
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A sentence may be found unreasonable if it fails to
properly account for these four statutory factors. A
sentence may also be found unreasonable if the “sentence
was imposed without express or implicit consideration by
the sentencing court of the general standards applicable to
sentencing.” These general standards mandate that a
sentencing court impose a sentence “consistent with the
protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.”
42 Pa.C.S. § 9721(b).
Sheller, 961 A.2d at 191 (citation omitted).
“When a sentencing court has reviewed a presentence investigation
report, we presume that the court properly considered and weighed all
relevant factors in fashioning the defendant’s sentence.” Commonwealth
v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (citation omitted), appeal
denied, 86 A.3d 231 (Pa. 2015). As our Supreme Court explained:
A pre-sentence report constitutes the record and speaks
for itself. In order to dispel any lingering doubt as to our
intention of engaging in an effort of legal purification, we
state clearly that sentencers are under no compulsion to
employ checklists or any extended or systematic
definitions of their punishment procedure. Having been
fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we
will presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take
the position that if a court is in possession of the facts, it
will fail to apply them to the case at hand.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
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Instantly, Veronikis’s maximum sentence falls within the statutory
limits and her minimum sentence falls within the sentencing guidelines. The
sentencing guidelines recommend a minimum sentence of between nine and
sixteen months’ imprisonment and the maximum statutory sentence is
twenty years for dealing in the proceeds of illegal activity. The trial court
indicated it evaluated the presentence investigation report, including the
absence of a prior record. N.T. Veronikis Sentencing Hr’g at 2. Thus, we
presume the court properly considered and weighed all the relevant factors
in sentencing her. See Devers, 546 A.2d at 18; Baker, 72 A.3d at 663.
We discern no basis to disturb the court’s sentence and thus affirm
Veronikis’s judgment of sentence.
Judgment of sentence at dockets 1845 EDA 2014 and 2031 ED 2014
affirmed. We affirm the conviction at docket 2130 EDA 2014, but modify the
sentence to reflect a restitution amount of $160,000.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
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Circulated 01/14/2016 11:33 AM