J-S35020-25
2025 PA Super 263
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEFAN BERNARSKY :
:
Appellant : No. 1041 MDA 2024
Appeal from the Judgment of Sentence Entered January 30, 2024
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001036-2020
BEFORE: OLSON, J., MURRAY, J., and LANE, J.
OPINION BY MURRAY, J.: FILED: NOVEMBER 24, 2025
Stefan Bernarsky (Appellant) appeals from the judgment of sentence
imposed following his jury convictions of theft by unlawful taking, theft by
failure to make required disposition of funds received, theft by deception –
false impression, theft by deception – failure to correct, and misapplication of
entrusted property.1 After careful review, we affirm.
This case arises from Appellant’s management of funds held in the
Bernarsky Family Trust (Trust), for which Appellant was the sole trustee.
Relevantly, Appellant had previously worked in the financial industry.
Appellant participated in a financial advisor training program through Morgan
Stanley and became a registered broker with the Financial Industry Regulatory
____________________________________________
1 18 Pa.C.S.A. §§ 3921(a), 3927(a), 3922(a)(1) and (3), 4113(a).
J-S35020-25
Authority. N.T., 11/1/23 (p.m.), at 62. Appellant was a registered broker for
approximately a year-and-a-half. Id.
Trust Creation
Appellant is the grandson of Michael Bernarsky, Sr. (Michael Sr.), and
Bernadine Bernarsky (Betty) (collectively, Grandparents). Grandparents had
two sons, Michael Bernarsky, Jr., who is Appellant’s father (Father),2 and
David Bernarsky (Uncle). At some time between 2012 and 2013, the family
decided that Grandparents would need to move into an assisted living facility.
Grandparents granted powers of attorney to Father and Uncle to aid their
transition into an assisted living facility. Grandparents also sold their home
“and generated proceeds of roughly sixty thousand dollars ($60,000.00).
[Father] testified that he provided to Appellant[] his half of the proceeds from
the sale of that residence.” Trial Court Opinion, 3/19/25, at 5.
The trial court summarized Father’s testimony concerning the family’s
financial planning and the subsequent creation of the Trust:
[Father, Uncle, and Grandparents], along with Appellant, met with
representatives from an annuity company in Scranton,
Pennsylvania. [Father] testified that at the conclusion of the
meeting, Appellant advised [Father, Uncle, and Grandparents] to
not make a decision regarding the annuity at that time. …
Appellant offered to act as trustee and manage the funds in
relation to paying the bills for the assisted living for
[Grandparents].
____________________________________________
2 Appellant also has a sister, Sonya. His mother, Mary Scarpetta (Ms.
Scarpetta), and Father later separated.
-2-
J-S35020-25
[Father] testified that it was later agreed to allow Appellant
to act as trustee for the … Trust upon its creation. [The rationale
for creating the Trust was to transfer certain assets belonging to
Grandparents out of their name, so as to enable them to become
financially eligible for a government assistance program through
the Department of Veterans Affairs that would defray the cost of
the assisted living facility.] … [Father] stated that after an initial
meeting with [James Gillotti, Esquire (Attorney Gillotti),] on his
own, a subsequent meeting related to the creation of the … Trust
was conducted. [Father, John Krisa, Esquire (Attorney Krisa),3]
Attorney Gillotti, [Uncle], and Appellant attended that meeting[,]
where Attorney Gillotti presented information about the formation
and operation of the [T]rust and would draft the document for
their review. [Father] stated that several weeks later[,] the same
individuals attended another meeting where Attorney Gillotti
presented to them the [T]rust document, which … was dated
September 10, 2013. [Father] testified that the … Trust document
was subsequently executed by him, [Uncle], and Appellant, as
trustee.
[Father] indicated that during that meeting, Attorney Gillotti
reviewed the [T]rust document with all individuals present and
explained to Appellant his duties as trustee. … [T]he [T]rust was
funded through an E-Trade account [(the Trust account)]
containing 3,000 shares of Proctor & Gamble [s]tock,
[purportedly] worth approximately $280,000.00 to $300,000.00.
Id. at 5-6, 8 (citations to record omitted; footnote added). Father and Uncle
were the named beneficiaries of the Trust.
During trial, Attorney Gillotti confirmed that he drafted the Trust, for the
purpose of transferring some of Grandparents’ assets out of their names,
which would allow them to qualify for Veterans Affairs benefits. N.T.,
10/30/23, at 26, 48-49. Attorney Gillotti testified that the Trust permitted the
____________________________________________
3 Attorney Krisa is Father’s longtime friend. Father first consulted with
Attorney Krisa, who referred Father to Attorney Gillotti.
-3-
J-S35020-25
trustee to “distribute principal to members of a class consisting of [Father,]
[Uncle,] and [Grandparents’] grandchildren.” Id. at 54. Attorney Gillotti then
explained:
But there’s a very important provision at the top of Page 3. It’s
so important that when I drafted the agreement I put it in bold
type. [The provision provided t]hat there could be no distribution
of principal made from the [T]rust to [Father and/or Uncle] or any
other decedent [sic], including a grandchild, while at least … one
of them[, i.e., Michael Sr. or Betty,] was alive without the
approval of the distribution committee. And the distribution
committee [provided for] in section six was [Father] and [Uncle],
the two sons.
Id. (emphasis added); see also id. at 55 (Attorney Gillotti clarifying that
distributions of principal “could not be made without the unanimous written
consent of the distribution committee.” (emphasis added)), 65 (reiterating
that the distribution committee, i.e., Father and Uncle, had to provide consent
for any distribution of principal). According to Attorney Gillotti, such language
“prevent[s] the trustee from using his power over the [T]rust assets in a way
that might favor one family member over another, especially favoring the
trustee.” Id. at 56.
Relevantly, Trust provision 3.7.1 sets forth Appellant’s powers and
duties while acting as the fiduciary:
Make investments using the judgment and care under the
circumstances that persons of prudence, discretion, and
intelligence exercise in managing their own affairs, not in regard
to speculation, but in regard to the permanent disposition of their
own funds, considering the probable income as well as the
probable safety of their capital.
-4-
J-S35020-25
Id. at 59-60 (read by Attorney Gillotti).4 When asked what might be
considered a “proper investment,” Attorney Gillotti explained that
what has been determined over the years by [c]ourts in
Pennsylvania as being reasonable investments for a trustee to
make would be things like a savings account at a bank, a
certificate of deposit at a bank, maybe high-grade corporate
bonds in a really solid company. Perhaps publicly traded stock of
a company whose stock was not likely to decline in value.
Id. at 60. Attorney Gillotti further testified that because Grandparents, the
settlors of the Trust, were in their nineties, the trustee should consider low-
risk investments. Id.; see also id. at 61 (identifying investments in a closely-
held company and certain types of stocks as high-risk investments).
Attorney Gillotti testified that he also supplied Appellant with a two-page
informational memo about his duties as trustee. Id. at 68. According to
Attorney Gillotti, the memo detailed the “most important provisions of in the
[T]rust agreement,” including the requirement that any distributions be
approved by the distribution committee. Id. at 69.
____________________________________________
4 A copy of the Trust Agreement was admitted into evidence as
Commonwealth’s Exhibit 1. N.T., 10/30/23 (p.m.), at 47. However, we note
that Appellant failed to include any of the trial exhibits in the certified
record. It is well settled that “it is an appellant’s duty to ensure that the
certified record is complete for purposes of review.” Commonwealth v.
Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (citation and brackets omitted).
Moreover, Appellant failed to include copies of any relevant trial exhibits in his
reproduced record. We thus set forth the language of the Trust Agreement as
read into evidence, without objection, during Attorney Gillotti’s testimony.
Appellant does not dispute the pertinent Trust language in his appellate brief.
-5-
J-S35020-25
Grandparents’ Death and Status of the Trust
Michael Sr. passed away in 2016. Betty’s health subsequently declined,
and she passed away in 2018.
The trial court summarized Father’s testimony concerning the events
that next transpired:
[Father] indicated that he understood that the death of both
[Grandparents] would cause the [T]rust to terminate and its
assets [to] be distributed to him and [Uncle], as beneficiaries. He
further testified that in preparation for the termination of the
Trust, he reached out to Appellant, as [t]rustee, to inquire as to
the value of the Trust. [Father] testified that Appellant informed
him that the value of the Trust was thirty-five dollars ($35.00).
[Father] indicated that the $35.00 value shocked and upset
him[,] as he expected the value to be approximately $210,000.00
because approximately $72,000.00 was distributed and used for
the care of [Grandparents]. After learning this, [Father] reached
out to Appellant to discuss what had transpired with the Trust
funds/assets. [Father] stated th[at] when he asked Appellant
where the funds had gone, Appellant did not provide a response.
[Father] further testified that in December 2018, he learned that
Appellant’s business5 had failed and was closed. [Father]
____________________________________________
5 Pertinently, at some time prior to 2011, Appellant began working at Boston
Seafood, a seafood wholesaler and retailer. When the original owner of Boston
Seafood offered to sell the business to Appellant in 2011, Father co-signed a
loan of approximately $13,000.00 to help Appellant purchase the business.
See N.T., 10/30/23 (a.m.), at 26-27. Appellant changed the business’s name
to Boston Seafood Direct (sometimes hereinafter referred to as Appellant’s
business). See id. at 27-28. In 2013, Father invested approximately
$200,000.00 into Boston Seafood Direct, from Father’s retirement account
and the sale of Grandparents’ house. See id. at 30. Father took a 90%
ownership interest in Boston Seafood Direct as a result of his investment. See
N.T., 11/1/23 (p.m.), at 81, 87, 96. Father testified that he also “signed,
through the years, with several banks, cosigns and lines of credit … amounting
to about a hundred and twenty thousand [dollars].” See N.T., 10/30/23
(a.m.), at 30. Several years later, in 2017, Father and Appellant executed a
(Footnote Continued Next Page)
-6-
J-S35020-25
indic[a]ted that he requested that Appellant provide him a list of
loans associated with Appellant’s business[,] as he was concerned
with any financial obligations imparted to him as part-owner of
said business. [Father] testified that Appellant provided him a list,
through e-mail, related to any loan involving [Father], in any way.
[Father] testified that included on that list was a loan from
the … Trust to Boston Seafood Direct[,] stemming from December
2013 through 2014, totaling $140,000.00. [Father] stated that
the information that Appellant provided him indicated that
monthly payments of $1,000.00 were made on that debt
beginning July 2017, which totaled $8,000.00, leaving an
outstanding balance of $132,000.00. [Father] testified that the
$140,000.00 loan distribution from the … Trust to Boston Seafood
Direct was not one approved by the distribution committee[, i.e.,
Father and Uncle].
Id. at 6-7 (footnote added; citations to record omitted).
Appellant’s Characterization of Trust Activity
Appellant testified at trial that, after becoming the Trust’s trustee, he
consulted his attorney, John Siejk, Esquire (Attorney Siejk), corporate counsel
for Boston Seafood Direct. N.T., 11/1/23 (a.m.), at 79.6 As a result of his
____________________________________________
purchase agreement whereby Father sold his ownership interest to Appellant.
See N.T., 11/1/23 (p.m.), at 95-96. Also in 2017, Boston Seafood Direct’s
primary customer—which was responsible for approximately 30% of the
company’s total sales—went out of business. See id. at 121-22. Appellant
then decided to “wind down” the business, and Boston Seafood Direct
ultimately closed “right after New Years of 2018.” Id. at 124-27.
6 During trial, Appellant made several statements indicating that he consulted
with Attorney Siejk after the Trust’s formation, and sought his advice
concerning use of the Trust funds for an investment in his business. See N.T.
11/1/23 (a.m.), at 74, 79-80, 105.
Relevantly, before the close of Appellant’s testimony, the
Commonwealth requested a missing witness instruction regarding Attorney
(Footnote Continued Next Page)
-7-
J-S35020-25
conversations with Attorney Siejk, Appellant “decided to make an investment
into the business that [Father] owned 90 percent of and [Appellant] owned 10
percent of.” Id. at 80; see also id. at 105 (Appellant describing transfers to
his personal bank account as “a loan” from the Trust for his business).
The trial court detailed Appellant’s testimony concerning his use of Trust
assets:
Appellant explained that when he began utilizing the Trust funds
to invest in the business, he transferred the funds to his personal
account and then from his personal account into the business
accounts. He explained that in order to transfer funds from the
Trust directly to his business accounts, E-Trade required a review
of the Trust documents to ensure that he possessed the rights to
do so. Appellant testified that he provided E-Trade with the
required documentation and that some time in December 2013,
E-Trade approved and allowed for the linking of Appellant’s
business accounts [with the Trust account] in [its] system.
Appellant testified that pursuant to his review and understanding
of the Trust document[,] he had sole discretion regarding
investments of the Trust funds and was not prohibited from
investing in a closely held business.
Appellant testified [that] at the time he utilized the Trust
funds to invest in his business, he believed such investments were
prudent as the business, as a whole[,] was growing. Appellant
[testified] that in April or May of 2017, the business’s primary
customer … shut down. He stated that the sales to [that
customer] made up approximately $100,000.00 in monthly sales,
____________________________________________
Siejk. N.T., 11/3/23 (a.m.), at 3. The Commonwealth argued that despite
Appellant’s testimony that he consulted with Attorney Siejk prior to his
investment of Trust funds, the Commonwealth had never heard his name
before voir dire. Id. The Commonwealth also argued Attorney Siejk would
be unavailable to the Commonwealth due to attorney-client privilege. Id.
Appellant responded that Attorney Siejk was corporate counsel for Boston
Seafood Direct, and thus, any privilege was to the corporation rather than
Appellant. Id. at 4. After discussion, the trial court allowed the missing
witness instruction. Id. at 5.
-8-
J-S35020-25
which translated to roughly $1.2 million per year in sales.
Appellant testified that after suffering that loss of sales, the best
course of action was to wind down the business. … [T]he business
remained open until New Years Eve 2017. He stated that the
income from the business, at that time, was utilized for payroll
and reducing the business’s outstanding debt. Appellant testified,
as it related to the repayment of funds into the Trust account from
his business, that the business received $8,500.00 [] in wholesale
receivables after February 9, 2018.
Trial Court Opinion, 5/19/25, at 17-18 (brackets and citations to record
omitted).
Charges and Trial
Father testified that he felt shocked, disappointed, and betrayed when,
following Betty’s death, he learned that the balance of the Trust account was
$35.00. N.T., 10/31/23 (a.m.), at 49. Father met with Appellant in May or
June 2018 to discuss the status of the Trust. Id. at 50. Father testified as
follows:
[W]hen [Appellant] sat down[,] I just said, “We got to do
something about this. Payback.” [Appellant said,] “I can’t do it.”
I said, “just, like, five dollars for [Uncle] and myself per month, a
gesture.” “No.” … And then [Appellant] said I was getting angry,
and he doesn’t want to talk to me because I’m angry.
Id.
Father later learned Appellant’s business had closed, and Appellant
supplied Father with a list of relevant loans. See id. at 53-55. Father noticed
a loan with the following notation:
Trust Bernarsky Family loan to … Boston Seafood Direct (loaned
to business December[] 2013 and through 2014)[.]
Guarantors: Boston Seafood Direct.
-9-
J-S35020-25
… Original balance: One hundred and forty thousand.
Monthly repayments: One thousand per month that began July of
2017.
Remaining balance: One hundred and thirty[-]two thousand
(eight thousand paid back so far and those are the funds available
in the [T]rust as of now.).
Id. at 55-56 (formatting modified). Because Father and Uncle had not
approved a loan to Appellant’s business, they met with Father’s attorney to
ask for advice. See id. at 57-58.
Ultimately, Father and Uncle asked their attorney to contact the
Lackawanna County District Attorney’s Office. Id. at 59. The criminal
investigation division of the Lackawanna County District Attorney’s Office
conducted an investigation and filed a criminal complaint. Subsequently, on
July 17, 2020, the Commonwealth charged Appellant, via criminal information,
with the above-described offenses.
Prior to trial, the parties entered a stipulation as to the admissibility of
certain bank and E-Trade account statements as certified domestic records of
regularly conducted activity. See Pa.R.E. 902(11) (self-authenticating
evidence); Pa.R.E. 803(6) (exceptions to the rule against hearsay – regardless
of whether declarant is available).
On October 24, 2023, Appellant filed a motion in limine seeking
preclusion of certain testimony at trial. In particular, Appellant sought to
preclude 1) testimony by the prior owner of Boston Seafood concerning the
- 10 -
J-S35020-25
sale of the business to Appellant, and to certain other actions by Appellant; 2)
testimony by Father that Appellant had undergone drug and alcohol treatment
during high school; and 3) evidence concerning financial assistance—through
gifts and loans—provided to Appellant by Father and Father’s wife—Appellant’s
stepmother—Jeanne Casey-Bernarsky (Jeanne). Appellant argued such
testimony would constitute prior bad acts evidence under Pa.R.E. 404(b), for
which the Commonwealth had not provided the requisite notice.
The Commonwealth filed an answer, arguing 1) it did not intend to call
the prior owner of Boston Seafood as a witness; 2) the fact of Appellant’s prior
addiction is relevant to the issue of Father and Appellant’s prior estrangement,
and was raised only as a result of cross-examination7 by defense counsel; and
3) gifts and loans to Appellant from Father and Jeanne were not criminal
actions, and thus did not constitute bad acts. The trial court heard oral
arguments on the motion in limine prior to the start of trial. Following these
____________________________________________
7 Initially, Appellant waived his right to a jury trial and proceeded to a bench
trial before the Honorable Andrew J. Jarbola, III. After the start of the bench
trial, Judge Jarbola “realized [he] had independent information that would
affect [his] ability to be fair and impartial.” Order, 8/30/22. Judge Jarbola
therefore granted a mistrial, recused himself from the case, and requested the
reassignment of the case to another judge. Id. While Appellant averred in
his motion in limine that he had reason to believe the Commonwealth intended
to introduce addiction evidence based on provided discovery, the
Commonwealth countered that it had instructed Father not to testify regarding
Appellant’s prior addiction. Rather, the Commonwealth argued Father’s
mention of Appellant’s addiction during the bench trial was a response to
defense counsel’s cross-examination.
- 11 -
J-S35020-25
arguments, the trial court stated, “If [the Commonwealth] can prove it, fine.”
N.T., 10/30/23 (Outstanding Motions and Jury Selection), at 14.8
Following additional pretrial proceedings not relevant to the instant
appeal, the case proceeded to a jury trial. Father and Uncle testified against
Appellant. The Commonwealth also introduced as witnesses, inter alia,
Attorney Gillotti (offered as an expert in elder law and estate planning) and
Arthur Moretti (Mr. Moretti) (offered as an expert in forensic accounting and
certified public accounting).9
Relevantly, Attorney Gillotti testified that in his expert opinion,
Appellant’s transfers of Trust funds to himself, regardless of whether the
____________________________________________
8 The trial court never entered an order expressly denying Appellant’s motion
in limine.
9 Pertinently, during cross examination of Father, Appellant introduced Boston
Seafood Direct’s income tax filings for 2013, 2014, and 2015. See N.T.,
10/31/23 (p.m.), at 19-22. Mr. Moretti later testified that those exhibits were
incomplete, as they failed to include various schedules. See N.T., 11/1/23
(a.m.), at 81; see also id. at 82 (Mr. Moretti testifying there was no way to
confirm whether the tax returns provided as exhibits were filed with the
Internal Revenue Service).
Before the close of trial, the Commonwealth requested a missing
document instruction concerning the incomplete tax returns. See N.T.,
11/3/23 (a.m.), at 6. Appellant argued to the contrary that Father had the
same access to the corporate tax returns due to his status as a 90% owner of
Boston Seafood Direct. Id. During the parties’ discussions, the trial court
noted its concern that the documents were never verified. Id. at 8.
Ultimately, the trial court issued the missing document instruction.
- 12 -
J-S35020-25
transfers ultimately went into Appellant’s business, were improper. N.T.,
10/30/23 (p.m.), at 72. Attorney Gillotti testified as follows:
It violates at least three duties that a trustee has. If you are a
trustee of a trust, you have a duty of care to perform your duties
in a way that is prudent. You have a duty of loyalty[;]… the
interest of the beneficiaries of the trust … become paramount.
And you have a duty to avoid self[-]dealing. That is to say your
role as trustee to … enter into a transaction with yourself on the
receiving end. So it was improper because it was a breach of
those duties….
Id. at 73. Additionally, Attorney Gillotti opined that Appellant’s investment in
his own closely-held business was inappropriate. Id.
Mr. Moretti completed an expert report, which was admitted into
evidence as Commonwealth’s Exhibit 10.10 Mr. Moretti testified that he
reviewed the activity in the Trust account “from the moment it’s funded until
the last date of which I have records available, which was December 31[],
2018.” N.T., 11/1/23 (a.m.), at 53. Mr. Moretti also reviewed the Trust
agreement itself. Id. at 55-57 (describing the Trust as “very conservative”
and explaining the Trust language helps him evaluate whether transactions
should be considered regular or irregular); see also id. at 57 (stating, “[T]he
language of the [T]rust was very conservative as I read it. And the
____________________________________________
10 We note, again, that Mr. Moretti’s expert report (and any included
documents he used during his review, including the Trust account documents)
are not included in either the certified or reproduced records. Lopez, 57 A.3d
at 82. Therefore, our summation of Mr. Moretti’s expert opinion is limited to
his testimony at trial, including his testimonial references to his report.
- 13 -
J-S35020-25
investments should probably have followed the same level of conservative
pattern.”).
Mr. Moretti testified that the Trust account was funded on November 6,
2013, with a starting balance of $252,660.00. Id. at 62-63. Mr. Moretti
identified several accounts associated with Appellant to which Trust funds
were distributed:
• Appellant’s personal account at NBT Bank: $138,000.00 (gross
withdrawn from the Trust account) - $1,000.00 (returned to
the Trust account from Appellant’s personal account) =
$137,000.00 net withdrawn
• BSD, Inc.11: $88,078.00 (gross withdrawn from the Trust
account) - $62,500.00 (returned to the Trust account from
BSD, Inc.) = $25,578.00 net withdrawn
• Boston Seafood Direct: $8,700.00 net withdrawn12
• Appellant’s personal E-Trade account: $24,725.00 (gross
withdrawn from the Trust account) - $3,288.47 (returned to
the Trust account from Appellant’s personal E-Trade account)
= $21,436.53 net withdrawn
____________________________________________
11 “BSD, Inc.” is the designation associated with one of the accounts for which
Appellant is a signatory. N.T. 11/1/23 (a.m.), at 65. Presumably, the account
is related to Boston Seafood Direct. Id. (Mr. Moretti stating, “My
understanding is that’s a company. I don’t know if it’s currently running.”).
12 Mr. Moretti testified that a gross of $15,000.00 was transferred from the
Trust account to Boston Seafood Direct’s account. N.T., 11/1/23 (a.m.), at
67. While he did not specifically testify to the amount repaid, keeping in mind
the net withdraw of $8,700.00, it appears $6,300.00 was repaid to the Trust
account from Boston Seafood Direct.
- 14 -
J-S35020-25
See id. at 63-68. Mr. Moretti also testified that a check or checks totaling
$600.00 “came into the [T]rust from Mr. Cindy’s Seafood.”13 Id. at 68.
Additionally, Mr. Moretti explained that additional margin interest and fees
were incurred on the Trust account.14 Id. at 68. He testified that because
____________________________________________
13 During his testimony, Mr. Moretti stated he assumed Mr. Cindy’s Seafood
was a company owned by Appellant. N.T., 11/1/23 (a.m.), at 68. Appellant
referenced Mr. Cindy’s Seafood as an entity operated by the prior owner of
Boston Seafood. See N.T., 11/1/23 (p.m.), at 92. From the record, it is
unclear whether Appellant assumed ownership of Mr. Cindy’s Seafood at the
time he purchased Boston Seafood.
14 Mr. Moretti explained margins as follows:
Whenever you set up an account that’s not encumbered by an
individual retirement account, or some special child’s account,
you’re allowed to margin it. And what that means is you can take
-- if you put [$100,000.00] into an account, and you put it into
stock, the brokerage firm will allow you to borrow against that
[$100,000.00]. So what they’ll do is they will give you a line of
credit for [$50,000.00] that you can use any way you want. If
you don’t use it, you don’t pay any interest or fees. But if you do
use it, just like any other loan, even though you’re borrowing from
yourself, you’re still borrowing, and you have to pay interest and
fees. … Margin allows you to take an account and use borrowed
money to invest further. That’s usually the purpose, to invest that
money. If you’re going to pay [5%] interest on the margin
account, you’re hoping that you’ll make [6%] or greater if you
invest that money. Margin accounts are used by usually
sophisticated investors.
….
… The margin account … is a leverage against your securities that
you have. And the purpose of it is generally to use that money to
invest in a hope that the return on your investment with that
borrowed money will exceed the interest that you’re paying … to
borrow it. … And this is a real danger with margin accounts.
(Footnote Continued Next Page)
- 15 -
J-S35020-25
the margin was used so often, “there was a lot of interest generated and
insufficient fund fees. The [T]rust account was littered with balances that
would fall into the negatives until such time as small amounts of cash were
deposited into the account.” Id. at 73.
Mr. Moretti explained that some income came into the Trust account
through stock dividends. Id. Mr. Moretti acknowledged some distributions to
the beneficiaries, and characterized those distributions as “regular.” Id. at
79, 87.
Additionally, Mr. Moretti testified that his forensic accounting revealed
that Appellant engaged in day trading. Id. at 73-74; see also id. at 74
(“[Appellant] was buying and selling stock within the same period of time
within the same day.”). According to Mr. Moretti, Appellant used the “very
risky process” of buying and selling puts and calls.15
____________________________________________
N.T., 11/1/23 (a.m.), at 69-70 (some paragraph breaks omitted). According
to Mr. Moretti, the Trust account “was margined from the get-go.” Id. at 71.
The margined money was then transferred into the above-described accounts.
See id. at 71-72.
15 Puts and calls are types of options trading, which Mr. Moretti explained as
follows:
A put is a term, [for example,] if I think IBM stock is going to go
down from today, I can … buy it at whatever the price is, and sell
it at today’s price four months from now, that’s called a put.
That’s when you expect the price to go down. You’re betting.
You’re gambling. You are gambling when … you buy a put that an
individual security is going to lose value in the short-term. …
(Footnote Continued Next Page)
- 16 -
J-S35020-25
Based on his forensic accounting, Mr. Moretti testified that a gross of
$265,803.00 was withdrawn from the Trust account. Id. at 76. Mr. Moretti
also opined it was appropriate to add the accrued margin interest and fees
because “had the money not been moved out, it would have been available to
cover all of that stuff. This was a choice that was made to margin the account,
and this was interest incurred because of it.” Id.
In sum, Mr. Moretti provided the following expert opinion, to a
reasonable degree of professional certainty:
[M]y opinion is that [Appellant] initiated transactions of
[$265,803.00] that removed money from the [] Trust to individual
bank accounts of which he was in control. Most of it went to his
personal bank accounts, but … there was some money still out
there that went into some of the businesses.
My opinion is that the [$8,708.27] in margin fees and
insufficient fund fees, it would be absurd to believe … that the
trustee was not responsible for incurring that because of the
actions that [Appellant] took. And [Appellant] did repay [] at
various times, although not in any pattern or manner that I could
see, [$74,188.47].
It’s my opinion that the irregular activity is all
[$274,511.27] that went from the [T]rust to these accounts. And
the reason I’m not crediting [Appellant] with payback of it is
because the irregular activity was the action that sent it from the
[T]rust to his personal account in the first place. … It went to
____________________________________________
A call is you’re betting on the price over a short period of
time increasing. So if you see a price that’s kind of low, and you
think you know about the stock, … you’re going to buy it today at
today’s price, and … you’re selling at a later date because you’re
betting … that the price of the stock will go up.
N.T., 11/1/23 (a.m.), at 74-75.
- 17 -
J-S35020-25
[Appellant]. It went to [Appellant’s] accounts from the [T]rust,
and, therefore I believe all [$274,511.27] was money he diverted
from the [T]rust to his own accounts.
… [T]here’s an opportunity that was lost. … Had the Proctor
& Gamble [stock] stayed [in the Trust,] there would have been
another quarter of a million dollars … that this account would have
earned. It didn’t earn it because the money wasn’t there to put
into it. It was recklessly utilized….
Id. at 85-87.
On November 3, 2023, a jury convicted Appellant of the above-
described offenses. The verdict slip included an interrogatory under each theft
conviction for which the jury could render a finding as to the amount taken.
For each conviction, the jury found the amount taken by Appellant was
“Between $100,000 but less than $500,000.” Additionally, concerning
Appellant’s theft by deception – false impression and theft by deception –
failure to correct convictions, the jury found the victim of the crime was over
the age of 60. In finding Appellant guilty of misapplication of entrusted
property, the jury also entered a finding that the amount exceeded $50
(increasing the offense grading to a second-degree misdemeanor).
On January 30, 2024, the trial court sentenced Appellant to 12 to 36
months in prison for his theft by unlawful taking conviction. The remaining
theft convictions merged for sentencing purposes. For his misapplication of
entrusted property conviction, the trial court sentenced Appellant to a
consecutive term of 2 years’ probation. Further, the court ordered Appellant
- 18 -
J-S35020-25
to pay $201,468.51 in restitution and costs.16 The restitution was ordered to
be divided evenly between Father and Uncle.
On February 2, 2024, Appellant filed a motion for bail pending appeal.
The Commonwealth filed a response to Appellant’s request for bail.
Ultimately, following a hearing, the trial court denied Appellant’s motion for
bail pending appeal.
Additionally, on February 7, 2024, Appellant filed a timely post-sentence
motion challenging the sufficiency and weight of the evidence supporting his
convictions, the propriety of the jury instruction regarding Appellant’s failure
to present documents, the amount of restitution imposed, and the
discretionary aspects of his sentence. The Commonwealth filed a response.
The trial court conducted a hearing on Appellant’s post-sentence motion
on March 12, 2024.17 The court did not render a decision on the post-sentence
motion at that time. On June 3, 2024, Appellant filed a motion for extension
____________________________________________
16 The total of $201,468.51 reflects the $200,322.76 in restitution, plus
$1,085.75 in costs, plus a $60.00 payment to the Crime Victim’s
Compensation Fund.
17At the conclusion of this hearing, the trial court granted trial counsel’s
motion to withdraw from representation, as Appellant had retained new
counsel.
- 19 -
J-S35020-25
of time for the trial court to decide the post-sentence motion.18, 19 See
Pa.R.Crim.P. 720(B)(3)(b) (“Upon motion of the defendant within the 120-day
disposition period, for good cause shown, the judge may grant one 30-day
extension for decision on the motion. If the judge fails to decide the motion
within the 30-day extension period, the motion shall be deemed denied by
operation of law.”). The trial court granted Appellant’s motion, noting that it
previously had scheduled a hearing on Appellant’s post-sentence motion for
June 24, 2024.
During the June 24, 2024, hearing, Appellant pointed out that the
sentencing order did not indicate whether he was eligible for a minimum
sentence under the Recidivism Risk Reduction Incentive (RRRI) program, see
61 Pa.C.S.A. §§ 4501-4512. On the same date, the trial court entered an
order granting Appellant’s post-sentence motion in part and vacating his
judgment of sentence. The following day, the trial court modified the
sentencing order to specify an RRRI minimum sentence of 9 months.
____________________________________________
18 Without the grant of additional time, the 120-day period for deciding the
post-sentence motion would expire on June 6, 2024.
19 We note that this motion is not included in the certified record. However,
the trial court acknowledged its filing.
- 20 -
J-S35020-25
On July 14, 2024, Appellant filed a notice of appeal.20 Appellant and the
trial court have complied with Pa.R.A.P. 1925.
Appellant now raises the following issues for review:
1. Was the evidence insufficient to support the convictions for
theft by unlawful taking, theft by failure to make required
disposition of funds received, theft by deception – false
impression, theft by deception – failure to correct, and
misapplication of entrusted property[,] where [the
Commonwealth witnesses’] testimony was so inconsistent and
incredible that it could not support a finding of guilt beyond a
reasonable doubt?
____________________________________________
20 On September 13, 2024, this Court issued a rule to show cause why the
June 24, 2024, and June 25, 2024, orders should not be vacated as legal
nullities. Rule to Show Cause, 9/13/24, at 2 (stating the order granting an
extension of time for decision on the post-sentence motion was docketed on
June 10, 2024, four days after the motion should have been denied by
operation of law). In response, the trial court argued the order was issued on
June 6, 2024 (the final day of the 120-day disposition period) rather than on
June 10, 2024. The trial court described the docketing delay as a
“clerical/administrative error.” Response to Rule to Show Cause, 9/23/24, at
2 (unnumbered). The court also attached to its response a copy of an email,
dated June 6, 2024, from the trial court’s law clerk to the parties, which
included, as an attachment, the order granting Appellant’s motion for
extension of time. Subsequently, this Court discharged the rule to show cause
and deferred the issue to the merits panel.
From our review of the trial court’s response and attachment, it is clear
the trial court and parties shared an understanding that the order granting an
extension of time was entered as of June 6, 2024, the final day over which
the court could exercise jurisdiction over the motion. Though the order was
not docketed until June 10, 2024, the delay can be attributed to a breakdown
in court operations. Thus, we decline to quash the appeal. See generally
Commonwealth v. Rodriguez, 174 A.3d 1130, 1138-39 (Pa. Super. 2017)
(declining to quash untimely appeal due to a breakdown in court operations,
where the clerk of courts prematurely deemed the appellant’s post-sentence
motion to be denied by operation of law, and upon a second filing by the
appellant for an extension of time, the clerk of courts failed to provide notice
that the motion was denied by operation of law).
- 21 -
J-S35020-25
2. Was the verdict against the weight of the evidence[,] where
[the Commonwealth witnesses’] testimony was so inconsistent
and unreliable that it shocked the conscience?
3. Did the trial court err in admitting testimony regarding
Appellant’s history of drug and alcohol abuse, monetary
gifts/loans from [Father] to Appellant for business ventures[,] and
a $300,000 loan from Jeanne … to Appellant[,] where such
evidence was irrelevant (Pa.R.E. 401), unfairly prejudicial (Pa.R.E.
403), and improper prior bad acts evidence without notice
(Pa.R.E. 404(b))?
4. Did the trial court err in issuing a jury instruction on the
defense’s failure to call Attorney [] Siejk as a witness[,] and on
the defense’s failure to produce complete income tax returns[,]
where the factors for a missing witness/missing document
instruction were not met?
5. Did the trial court err in ordering restitution in the amount of
$200,322.77[,] where it failed to account for funds already
distributed to the beneficiaries?
Appellant’s Brief at 6-7.
In his first claim, Appellant challenges the sufficiency of the evidence
supporting each of his convictions. As to each of his convictions, Appellant
contends the Commonwealth failed to establish he had the specific intent to
commit the offenses. See id. at 18-21. Appellant argues, to the contrary,
that the evidence established his intent to benefit the Trust through
investment in his business. Id. at 21. According to Appellant, “[t]here was
never any personal enrichment.” Id. at 22. Appellant emphasizes that he
consulted with Attorney Siejk regarding the propriety of investing Trust funds
into Boston Seafood Direct. Id. Appellant also points out that he made
- 22 -
J-S35020-25
investments in the business, over which Father held a 90% ownership interest.
Id. at 23.
Regarding his misapplication of entrusted property conviction, Appellant
asserts the Commonwealth did not establish his investments involved a
substantial risk of loss, because Appellant’s business was profitable at the time
he made the investments. Id. at 23. Additionally, Appellant alleges he 1)
made good faith efforts to repay the Trust; 2) made authorized distributions
to Father and Uncle; and 3) provided funds for Grandparents’ care from the
Trust assets without difficulty. Id. at 24.21, 22
Further, Appellant claims the Commonwealth failed to prove Appellant
committed the crimes of theft by deception:
____________________________________________
21 We observe that Appellant’s argument includes citations only to our
standard of review for sufficiency claims and to the statutory language of the
crimes for which he was convicted. Appellant has otherwise cited no caselaw
to support his argument. See Pa.R.A.P. 2119(a) (providing that the argument
shall include “such discussion and citation of authorities as are deemed
pertinent.”).
22 Appellant also avers that Father’s testimony “was riddled with
inconsistencies on critical facts.” Appellant’s Brief at 25. To the extent
Appellant challenges the credibility of Father’s trial testimony, such a claim
properly goes to the weight, rather than sufficiency, of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003)
(explaining that a challenge to the sufficiency of evidence “does not include
an assessment of the credibility of the testimony offered by the
Commonwealth. Such a claim is more properly characterized as a weight of
the evidence challenge.”) (citation omitted). But see Commonwealth v.
Brown,
52 A.3d 1139, 1157 n. 18 (Pa. 2012) (recognizing that a verdict may
be reversed as insufficient in “extreme situations where witness testimony is
so inherently unreliable and contradictory that it makes the jury’s choice to
believe that evidence an exercise of pure conjecture”).
- 23 -
J-S35020-25
For the theft by deception charges, the Commonwealth was
required to prove that Appellant created or reinforced a false
impression. However, the evidence established no
communication. The uncontradicted evidence showed there was
no communication between Appellant and the beneficiaries
regarding [T]rust investments or performance. … Because there
were no discussions about [T]rust performance, Appellant could
not have created any false impressions about the value or success
of [T]rust investments. … The beneficiaries never requested an
accounting or inquired about [T]rust performance during
Appellant’s tenure. The absence of communication precludes any
finding of deception.
Id. at 25 (citations to record omitted).
“Because sufficiency of the evidence is a question of law, the standard
of review is de novo, and the scope of review is plenary.” Commonwealth
v. Coniker, 290 A.3d 725, 733 (Pa. Super. 2023) (citation omitted).
The standard we apply in reviewing the sufficiency of the evidence
is whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation
and brackets omitted).
- 24 -
J-S35020-25
The Crimes Code defines theft by unlawful taking as follows:
§ 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.A. § 3921(a). “[T]o convict a defendant of theft by unlawful taking,
the Commonwealth must establish three elements: (1) unlawful taking or
unlawful control over movable property; (2) ownership of another person of
the movable property; and (3) intent to deprive permanently.”
Commonwealth v. Carter, 332 A.3d 867, 674 (Pa. Super. 2025).
Appellant was also convicted of two counts of theft by deception, which
is defined, in relevant part, as follows:
§ 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;
…
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver knows
to be influencing another to whom he stands in a fiduciary or
confidential relationship.
18 Pa.C.S.A. § 3922(a)(1), (3). This Court has explained that criminal intent
may be “inferred from acts or conduct or the attendant circumstances.”
- 25 -
J-S35020-25
Commonwealth v. Gaspard, 323 A.3d 1276, 1279 (Pa. Super. 2024)
(citation omitted).
The Crimes Code defines theft by failure to make required disposition of
funds received as follows:
§ 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 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.A. § 3927(a). “In short, [section 3927] criminalizes the act of failing
to properly distribute another’s property in accordance with either an
agreement or legal obligation.” Commonwealth v. Goodco Mech., Inc.,
291 A.3d 378, 392 (Pa. Super. 2023).
Regarding the proof required, we have explained that the
defendant may have failed to adhere to either an agreement or a
preexisting legal obligation. We established that the element
requiring the defendant to “deal” with the other’s property as his
own means only that the actor must have treated the other’s
property as if it were his own; it does not require the defendant
to have used the property. Finally, although the Commonwealth
must prove the defendant “intentionally” dealt with the property
as his own, the remaining elements are satisfied if the
Commonwealth proves the defendant acted intentionally,
knowingly, or recklessly.
Id. at 393 (internal citations omitted).
- 26 -
J-S35020-25
Finally, misapplication of entrusted property is defined as follows:
§ 4113. Misapplication of entrusted property and property
of government or financial institutions
(a) Offense defined.--A person commits an offense if he applies
or disposes of property that has been entrusted to him as a
fiduciary … in a manner which he knows is unlawful and involves
substantial risk of loss or detriment to the owner of the property
or to a person for whose benefit the property was entrusted.
18 Pa.C.S.A. § 4113(a).23 “The only pertinent inquiry is whether [the
defendant] disposes of entrusted property in a manner that he knows is
unlawful and involves a substantial risk of loss or detriment to the owner of
the property.” Commonwealth v. McCullough, 230 A.3d 1146, 1177 (Pa.
Super. 2020). Additionally, the defendant’s “intent to ‘replace’ the property
in the future is irrelevant.”
Id.
Instantly, Appellant argues only that the Commonwealth failed to prove
his intent to commit each of the crimes for which he was convicted. The trial
court rejected Appellant’s sufficiency challenge, relying on the reasoning it set
forth in addressing Appellant’s weight challenge (which we quote in full, infra).
See Trial Court Opinion, 3/19/25, at 19-22, 23-27. Upon review, we agree
that the evidence presented at trial, viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to support each of Appellant’s
convictions.
____________________________________________
23 Appellant does not dispute his status as a fiduciary.
- 27 -
J-S35020-25
Appellant’s attempt to characterize his actions as reasonable and well-
intentioned, albeit failed, business investments24 ignores the most critical fact
of this case—beginning the day after the Trust was funded, Appellant diverted
funds from the Trust without the unanimous approval of the distribution
committee. Appellant acknowledges that he attended the meeting with
Attorney Gillotti, Father, and Uncle to execute the Trust. N.T., 11/1/23 (p.m.),
at 72. Appellant also remembered receiving a copy of the Trust agreement,
as well as the informational memo that Attorney Gillotti supplied, which
detailed the key provisions of the Trust. Id. at 73, 75; see also id. at 116
(Appellant acknowledging he had several occasions to review the Trust
agreement). Notably, Appellant confirmed his understanding that the Trust
agreement required the distribution committee to approve any distributions
of principal. Id. at 76.
Nevertheless, between the Trust’s creation in 2013 and Betty’s death in
2018, Appellant knowingly and repeatedly distributed Trust principal to his
personal bank account, his personal E-Trade account, and various business
____________________________________________
24 Though Appellant describes the distribution of Trust funds to his personal
and business accounts as both “investments” and “loans,” we note that
investments and loans are distinct terms. Compare Investment, BLACK’S LAW
DICTIONARY (12th ed. 2024) (defining an “investment” as, inter alia, “[a]n
expenditure to acquire property or assets to produce revenue; a capital
outlay.”) with Loan, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “loan”
as “1. An act of lending; a grant of something for temporary use…. 2. A thing
lent for the borrower’s temporary use; esp., a sum of money lent at
interest…”).
- 28 -
J-S35020-25
accounts. All such distributions were made without the approval of the
distribution committee, i.e., Father and Uncle, as specifically required by
the Trust agreement. At no time during the approximately five years of
Appellant’s tenure as trustee did Appellant inform Father and Uncle of his
“investments” or “loans,” or the dwindling balance of the Trust principal
resulting therefrom.
Additionally, the jury heard testimony (detailed supra) from the
Commonwealth’s experts, Attorney Gillotti and Mr. Moretti, concerning
Appellant’s duties as Trustee and his actions in managing Trust assets. In
particular, Attorney Gillotti opined that Appellant’s actions violated the core
duties of a trustee. See N.T., 10/30/23 (p.m.), at 72-73. Further, Mr. Moretti,
after completing forensic accounting, detailed the “irregular activity” found in
the Trust account, including a pattern of high-risk investment and stock
trading, which resulted in the incursion of margin interest and fees. See N.T.,
11/1/23 (a.m.), at 53-87. From the verdict, it is clear the jury credited the
experts’ testimony, as was within its sole province as the finder of fact. See
Furness, 153 A.3d at 401.
From the attendant circumstances, we conclude the evidence sufficiently
established that over the course of approximately five years, Appellant, using
his status as trustee, intentionally diverted funds from the Trust principal into
his own business venture and personal accounts, knowing that he was not
entitled to do so without the approval of both Father and Uncle. The evidence
- 29 -
J-S35020-25
therefore supports the finding that Appellant acted with the specific intent
necessary to support his convictions. See, e.g., Gaspard, 323 A.3d at 1280
(concluding evidence was sufficient to support the defendant’s conviction for
theft by deception in connection with her recertification for county housing
benefits, where the recertification the defendant signed required her to report
any changes in income, regardless of the source; the defendant failed to
disclose self-employment income; and the county housing authority relied on
the defendant’s disclosures in awarding benefits); Commonwealth v.
Gorman,
182 A.3d 1035, 1043-46 (Pa. Super. 2018) (concluding evidence
was sufficient to support the defendant’s convictions of theft by unlawful
taking, receiving stolen property, and misapplication of entrusted property,
where the defendant mishandled and misused donations made to the Military
Veterans Honor Guard, which he operated; defendant disregarded the
Veterans of Foreign Wars Post bylaws concerning the handling of funds and
disbursements; defendant ignored multiple cautions that any donated money
was not his personal property; defendant knowingly disregarded bylaws
requiring membership approval for disbursements; and defendant used
donations to pay for personal expenses).
Moreover, concerning Appellant’s misapplication of entrusted property
conviction, we reiterate that a fiduciary’s intent to replace (or actual
replacement of) previously disposed-of property, is irrelevant. See
McCullough, 230 A.3d at 1177. Indeed, the theft and misappropriation
- 30 -
J-S35020-25
occurred at the time Appellant diverted Trust principal into his personal and
business accounts. See id. By diverting the Trust funds, Appellant “caused
an actual, not [] merely a risk of, loss to” the Trust and its beneficiaries. See
id. (concluding the defendant/attorney—who exercised control over the
victim’s property through an invalid power of attorney—caused an actual loss
to the victim and committed misapplication of entrusted property at the time
he issued checks from the victim’s trust, notwithstanding the later return of
those checks). Accordingly, Appellant’s sufficiency claims lack merit.
In his second claim, Appellant argues the verdicts were against the
weight of the evidence. See Appellant’s Brief at 26-29. According to
Appellant, “[t]he trial court failed to properly weigh the overwhelming
evidence that Appellant’s conduct constituted legitimate business
investment[.]” Id. at 27. Appellant asserts that because his business was
initially successful, the fact-finder could not infer that he made the
investments with knowledge that they would impose a substantial risk. Id.
Appellant also points out that he provided authorized distributions to Father
and Uncle to use for Grandparents’ care. Id. at 28. Appellant faults the trial
court’s finding that the Commonwealth witnesses were credible. Id.
A weight of the evidence claim is addressed to the discretion of the trial
court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
- 31 -
J-S35020-25
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Bright, 234 A.3d 744, 749 (Pa. Super. 2020) (citation
omitted). “In order for an appellant to prevail on a challenge to the weight of
the evidence, the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Commonwealth v. Smith,
146
A.3d 257, 265 (Pa. Super. 2016) (citation omitted). Additionally, “this Court
cannot substitute its credibility determinations for that of the factfinder or
reweigh the evidence.” Commonwealth v. Salinas,
307 A.3d 790, 795 (Pa.
Super. 2023). Indeed,
when the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on direct review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009).
Instantly, the trial court rejected Appellant’s challenge to the weight of
the evidence, reasoning as follows:
[T]he evidence presented at trial leading to Appellant’s guilty
verdict[s] do[] not shock one’s sense of justice so as to require
the grant of a new trial. The record supports the jury’s finding of
guilt. In this case, the Commonwealth presented five (5)
witnesses.
- 32 -
J-S35020-25
During trial, the jury heard from [Father], who provided
detailed testimony regarding the formation of the … Trust, and the
reasons for its creation. [Father] additionally provided testimony
explaining how and why Appellant was chosen as trustee…. His
testimony provided information that indicated that[, as trustee,
Appellant] had access to the funds contained in the … Trust, which
Appellant utilized to invest, without authorization, in a business
that Appellant owned and operated. [T]hat business ultimately
failed, causing the investment from the … Trust to be lost, which
in turn hastened the depletion of the [T]rust assets.
Additionally, [Uncle], in the same vein, testified regarding
the creation of the … Trust and appointment of Appellant as its
trustee. [Uncle] testified that he managed the joint bank account
between h[im] and [Father] that was used to pay any expenses
associated with the care of [Grandparents]. [Uncle] testified that
if he needed funds from the Trust in order to pay for expenses for
[Grandparents’] care, he contacted Appellant and requested the
funds. [Uncle] stated that he never had any difficulty obtaining
the funds from the Trust through Appellant. [Uncle] was not
aware of the depletion of the Trust assets until after [Betty’s]
funeral, when [Father] informed him of what took place.
Attorney Gillotti testified in relation to the creation of the
Trust, his involvement in its creation, and his explanation of the
contents of the Trust document to the beneficiaries[, i.e., Father
and Uncle,] and Appellant as trustee. Attorney Gillotti indicated
that [Grandparents] were the settlors of the Trust, with [Father]
and [Uncle] as named beneficiaries, and Appellant as trustee.
Attorney Gillotti indicated that the Trust was funded by the
transfer of three thousand (3,000) shares of stock of the Proctor
& Gamble Company. He further explained the powers and duties
of each party[,] including those of Appellant as trustee.
Attorney Gillotti explained to the jury that if Appellant, as
trustee, wanted to make a distribution, he would have to get the
consent of [Father] and [Uncle], the distribution committee.
[Attorney Gillotti] also explained that pursuant to the provisions
of the Trust, Appellant could not have distributed money to himself
without the written approval of the distribution committee.
When the Commonwealth inquired of Attorney Gillotti, as an
expert in elder law and estate planning, as to whether he rendered
an expert opinion as to the propriety of Appellant’s transactions
- 33 -
J-S35020-25
into Appellant’s personal and business accounts, he testified that
the transfer of money out of the [T]rust by Appellant as trustee to
himself, even if it went into his business, was totally improper
because it was a breach of the duty of care, the duty of loyalty,
and the duty to avoid self[-]dealing.
Moreover, [Mr.] Moretti[] testified as an expert witness in
the field of forensic accounting and certified public accounting.
Mr. Moretti testified that upon completing the forensic accounting,
he noted that the [T]rust had a lot of irregular activity, and
indicated that almost all but the distributions to the beneficiaries
he considered irregular. Mr. Moretti testified that at the outset of
the formation and funding of the Trust, Appellant began
transferring funds from the Trust and into his personal bank
account at NBT Bank. Mr. Moretti provided testimony that
demonstrated that Appellant transferred a net amount of
$137,000.00 from the Trust to his personal NBT Bank account.
Further, Mr. Moretti testified that pursuant to his forensic
accounting, he determined that Appellant transferred a net
amount of $21,436.53 from the Trust account to his personal E-
Trade account. Additionally, Mr. Moretti testified that Appellant
transferred a net amount of $25,578.00 from the Trust account to
BSD, Inc. [H]e further testified that Appellant transferred a net
amount of $8,700.00 from the Trust account to the Franklin
Security Bank account associated with Boston Seafood Direct… [,
t]hereby creating a net amount of $191,614.50 that Appellant
transferred from the Trust to his personal and/or business
accounts. With the addition of margin fees and interest, …
Appellant withdrew a net total of $200,322.77 from the Trust,
which was not reimbursed.
[The trial c]ourt found that the Commonwealth’s witnesses
provided testimony that was credible and reliable enough to allow
the jury to return a verdict of guilty on all of the offenses charged
against Appellant. …
Trial Court Opinion, 3/19/25, at 23-26 (internal citations, quotation marks,
and some brackets omitted).
Upon review, we discern no abuse of the trial court’s discretion in
rejecting Appellant’s weight claim. From the verdicts, it is clear the jury
- 34 -
J-S35020-25
credited the testimony of the Commonwealth’s witnesses. “It is not for this
Court to overturn the credibility determinations of the fact-finder.”
Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa. Super. 2006); see
also Salinas,
307 A.3d at 795. The verdicts are not so contrary to the
evidence as to shock the conscience. Thus, the trial court properly denied
Appellant’s weight of the evidence claim.
In his third claim, Appellant contends the trial court improperly admitted
testimony concerning his history of drug and alcohol abuse, as well as
testimony concerning monetary gifts and loans from Father, and a loan from
Jeanne. Appellant’s Brief at 29. Appellant argues his prior drug and alcohol
abuse, which occurred approximately 15-20 years prior to the charged
conduct, was irrelevant to his management of the Trust. Id. at 30-31.
Appellant also claims this testimony was unfairly prejudicial because
“[e]vidence of substance abuse creates a powerful inference that Appellant
might have used [T]rust funds to support addiction….” Id. at 31.
Similarly, Appellant asserts evidence concerning financial gifts and loans
he received from Father and Jeanne were not relevant to the issue of whether
he criminally misappropriated Trust funds. Id. at 31-32. According to
Appellant, testimony about these gifts and loans was unfairly prejudicial and
“created the false impression that Appellant was financially irresponsible and
dependent on family support, leading to an improper character inference that
he would steal [T]rust funds.” Id. at 32. Further, Appellant claims both
- 35 -
J-S35020-25
categories of testimony constituted Pa.R.E. 404(b) bad acts evidence, for
which the Commonwealth did not provide notice. Appellant’s Brief at 30-31,
33.
We employ a deferential standard of review for evidentiary issues:
The admission of evidence is committed to the sound discretion of
the trial court, and the trial court’s ruling regarding the admission
of evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Dodd, 339 A.3d 514, 517 (Pa. Super. 2025) (citation
omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Lowmiller, 257 A.3d 758, 763 (Pa. Super. 2021).
Evidence is relevant if “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence[,] and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401; see also Lowmiller,
257 A.3d at 763 (stating that “[e]vidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a
material fact.” (citation omitted)). “All relevant evidence is admissible, except
as otherwise provided by law. Evidence that is not relevant is not admissible.”
Pa.R.E. 402. “The court may exclude evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
- 36 -
J-S35020-25
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
Further, regarding “bad acts” evidence, Rule 404(b) provides as follows:
Rule 404. Character Evidence; Other Crimes, Wrongs, or
Acts
…
(b) Other Crimes, Wrongs, or Acts
(1) Prohibited Uses. Evidence of any other crime, wrong, or
act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its
potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable written notice in advance of trial so
that the defendant has a fair opportunity to meet it, or during
trial if the court excuses pretrial notice on good cause shown,
of the specific nature, permitted use, and reasoning for the use
of any such evidence the prosecutor intends to introduce at
trial.
Pa.R.E. 404(b).
As we have explained,
[e]vidence of prior [bad acts] is not admissible for the sole
purpose of demonstrating a criminal defendant’s propensity to
commit crimes. Nevertheless, evidence may be admissible in
certain circumstances where it is relevant for some other
legitimate purpose and not utilized solely to blacken the
defendant’s character. Specifically, other [bad acts] evidence is
admissible if offered for a non-propensity purpose such as proof
- 37 -
J-S35020-25
of an actor’s knowledge, plan, motive, identity, or absence of
mistake or accident. When offered for a legitimate purpose,
evidence of prior [bad acts] is admissible if its probative value
outweighs its potential for unfair prejudice.
Lowmiller, 257 A.3d at 763 (internal citations and quotation marks omitted).
Here, the trial court addressed Appellant’s evidentiary claims as follows:
In regard to Appellant’s claim concerning the admission of
testimony of Appellant’s history of drug and/or alcohol abuse, th[e
trial c]ourt allowed [Father’s] testimony on that subject[,] as it
portrayed the history of the relationship between Appellant and
[Father]. That is, Appellant and [Father] had multiple
estrangements where the two did not speak for many years at a
time. The first occurred when Appellant was a child[,] due to the
separation of [Father] and [Ms. Scarpetta]. The second, the issue
at hand, occurred approximately at a time when Appellant was in
high school. Here, during direct examination, [Father], when
asked by the Commonwealth, explained that he learned that
Appellant became involved with the use of alcohol and drugs.
After learning that, [Father] arranged for Appellant’s admission
into [a] rehabilitation facility and transported Appellant to that
facility. [Father] indicated that after that took place, it seemed
like Appellant had an anger towards him[,] and [] he and
Appellant did not communicate for roughly eight (8) years.
It was after this eight (8) year period that Appellant and
[Father] reconciled their relationship. Upon doing so, [Father]
learned that Appellant enrolled in a program with Morgan Stanley
and worked towards obtaining a license to be able to trade stocks.
Although that endeavor did not work out for Appellant, it was at
that time that [Father] learned Appellant became involved in the
seafood business. All of which led to Appellant becoming involved
as the trustee for the Trust at issue.
As it relates to Appellant’s challenge … concerning loans
made to Appellant as investments [] or to be utilized as business
capital, th[e trial c]ourt found that the Commonwealth did not
offer such evidence as a prior bad act pursuant to Pennsylvania
Rule of Evidence 404. Rather, the Commonwealth indicated that
such evidence was offered in support of a letter that Appellant
sent to [Father], wherein Appellant acknowledged the existence
of the loans that [Father] and Jeanne advanced to Appellant. The
- 38 -
J-S35020-25
Commonwealth introduced that particular letter through
[Father’s] testimony[,] wherein he read said letter into the record.
The letter was dated March 23, 2020, at a time after [Betty]
departed this life, the depletion of the Trust funds, and when
criminal charges were pending against him. The letter contained
information demonstrating Appellant’s acknowledgement of the
loans in question and his desire to make financial restitution.
Moreover, the introduction of the testimonial evidence that
Appellant now challenges was offered to support information
contained in an e-mail from Appellant to [Father], in which
Appellant listed the accounts and loans made to Boston Seafood
Direct that involved [Father] in any manner.25
Thus, … th[e trial c]ourt found that the Commonwealth did
not offer the challenged evidence as prior bad acts under
Pennsylvania Rule of Evidence 404. Additionally, th[e trial c]ourt
found that such information [was] relevant to the issue at hand
and served to form the history and development of the case at
bar.
Trial Court Opinion, 3/19/25, at 29-31 (footnote added; citations to record
omitted).
Upon review, we discern no abuse of the trial court’s discretion in
admitting the challenged testimonial evidence. The testimony contextualized
Appellant’s relationship with Father and Father’s desire to help Appellant.
Further, Father’s mention of Appellant’s prior drug and alcohol use was very
____________________________________________
25 Following Appellant’s objection to the introduction of testimony concerning
the $300,000.00 loan from Jeanne to Appellant (in particular, Appellant’s
failure to make repayment under the loan), the trial court and the parties
discussed the Rule 404(b) concern in a sidebar. See N.T., 10/31/23 (a.m.),
at 76-79. The trial court limited testimony about Appellant’s failure to repay
the loan to the time period following Betty’s death, as Appellant identified the
loan from Jeanne on the list of debts he detailed for Father, after Father
discovered the Trust had been depleted. See id. at 79 (trial court stating,
“the [c]ourt will allow it, but with limited nexus.”).
- 39 -
J-S35020-25
brief and offered only to explain their estrangement. See N.T., 10/31/23
(a.m.), at 80-81. Father also specifically stated that he did not believe
Appellant’s “financial difficulties” were connected to the drug and alcohol
dependency Appellant experienced in high school. N.T., 10/31/23 (p.m.), at
12-13; see also id. (Father explaining that when he and Appellant
reconnected, Appellant “had been sober for quite a long time, and [Father]
was proud of him.”); id. at 13 (Father indicating Appellant was sober
throughout his involvement with the Trust).
While the trial court acknowledged the challenged testimony was
“seemingly unpleasant” toward Appellant, Trial Court Opinion, 3/19/25, at 29,
a court “is not required to sanitize the trial to eliminate all unpleasant facts
from the jury’s consideration where those facts are relevant to the issues at
hand and form part of the history and natural development of the events and
offenses for which the defendant is charged.” Commonwealth v. Hairston,
84 A.3d 657, 666 (Pa. 2014) (citation omitted). We agree with the trial court’s
conclusion that the challenged evidence was not introduced as “bad acts”
evidence such that the Commonwealth was required to file a written pretrial
notice. Additionally, the trial court did not abuse its discretion in concluding
the challenged evidence was relevant to the history and natural development
of the case. Accordingly, Appellant’s third claim merits no relief.
In his fourth claim, Appellant challenges two jury instructions: a missing
witness instruction pertaining to Appellant’s failure to call Attorney Siejk; and
- 40 -
J-S35020-25
a missing evidence instruction concerning Appellant’s failure to produce
complete income tax returns. Appellant’s Brief at 34. Appellant argues that
because Attorney Siejk was corporate counsel for Boston Seafood Direct, he
was available to both Appellant and the Commonwealth. Id. at 36. Appellant
also claims Attorney Siejk could offer no information material to the charges,
as he lacked special knowledge concerning Appellant’s intent or the Trust
operations. Id. Regarding the missing document charge, Appellant
emphasizes that the Commonwealth did not object to the introduction of the
tax returns into evidence. Id. at 37. According to Appellant, the missing
document instruction “essentially told the jury that the documents were
inadequate, usurping their role as fact-finders.” Id.26
In assessing jury instructions, we adhere to the following standard of
review:
When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where this is an absolute abuse of
discretion or an inaccurate statement of the law is there reversible
error.
____________________________________________
26 We observe that while Appellant cites to the appropriate standard of review
and the elements of the missing witness instruction, Appellant offers no case
law in support of his argument. See Pa.R.A.P. 2119(a).
- 41 -
J-S35020-25
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citation
and brackets omitted).
We have explained the missing witness instruction as follows:
A missing witness instruction is appropriate where the
witness is available to only one of the parties to a trial, and it
appears this witness has special information material to the issue,
and this person’s testimony would not merely be cumulative.
Where the party does not present the witness, the jury may be
instructed that it can infer that the testimony of the witness would
have been unfavorable.
However, a trial court may decline to issue this instruction
if the uncalled witness is equally available to both parties, not
within the control of the party against whom a negative inference
is sought, or there is a satisfactory explanation as to why the party
failed to call the witness.
Commonwealth v. Crumbley, 270 A.3d 1171, 1185 (Pa. Super. 2022).27
The same factors are required to establish the propriety of a missing document
instruction.
____________________________________________
27 Pennsylvania Suggested Standard Jury Instruction (Pa. SSJI (Crim)) 3.21A
provides as follows:
3.21A Failure to Call Potential Witness
1. There is a question about what weight, if any, you should give
the failure of [a party] [the Commonwealth] [the defendant] to
call [person] [name of person] as a witness.
2. If [however] three factors are present, and there is no
satisfactory explanation for a party’s failure to call a potential
witness, the jury is allowed to draw a common-sense inference
that [his] [her] testimony would have been unfavorable to that
party. The three necessary factors are:
(Footnote Continued Next Page)
- 42 -
J-S35020-25
Here, the trial court concluded the missing witness and missing
document instructions were “warranted based on the evidence presented.”
Trial Court Opinion, 3/19/25, at 32. The court detailed the pertinent testimony
supporting these instructions:
Appellant stated that after the Trust was formed and he was
named as trustee, he brought the [Trust] document to “[Attorney
Siejk], and [they] reviewed it together.” Further, Appellant, when
asked on direct examination whether he consulted with any other
lawyers or professional[s] regarding Trust distributions, he
indicated that he spoke with Attorney Siejk. That is, Appellant
indicated that he spoke with Attorney Siejk regarding utilizing
Trust funds to invest in the business that he owned and[,] after
so consulting with Attorney Siejk, he “decided to make an
investment into the business.”
The Commonwealth subsequently requested that th[e trial
c]ourt provide the jury with the failure to call potential witness
instruction. An argument on the record was held, outside the
____________________________________________
First, that the person is available to that party only and not to the
other;
Second, that it appears the person has special information
material to the issue; and
Third, that the person’s testimony would not be merely
cumulative.
3. Therefore, if you find these three factors present, and there is
no satisfactory explanation for the [party’s] [Commonwealth’s]
[defendant’s] failure to call [a person] [name of person] to testify,
you may infer, if you choose to do so, that [his] [her] testimony
would have been unfavorable to [that party] [the Commonwealth]
[the defendant].
Pa. SSJI (Crim) 3.21A. The text of Pa. SSJI (Crim) 3.21B (Failure to Produce
Document or Other Tangible Evidence at Trial) is substantially identical,
merely replacing references to a potential witness with references to the
document or tangible item.
- 43 -
J-S35020-25
presence of the jury, wherein th[e trial c]ourt determined that
based on the evidence presented, it would issue the requested
instruction.
Additionally, the Commonwealth requested th[e trial c]ourt
provide the jury with an instruction related to Appellant’s failure
to produce document and other tangible evidence at trial. During
cross examination of [Father], defense counsel introduced
multiple tax returns related to [Father’s individual] and [Boston
Seafood Direct’s] income tax filings for the years 2013, 2014, and
2015…. During direct examination, Mr. Moretti provided
testimony that as part of his forensic accounting, he reviewed the
Trust document and multiple financial documents related to the
Trust account[,] as well [as] Appellant’s business and personal
accounts. He further testified that following the close of
proceedings on October 31, 2023, the Commonwealth provided
him with updated tax documents…. Mr. Moretti testified that most
of the tax returns that defense counsel introduced through
[Father] on the previous day were incomplete. Mr. Moretti
indicated that many of the tax schedules were not contained in
the purported tax filings. The Commonwealth inquired of Mr.
Moretti whether[,] after his review of the newly provided tax
documents, his opinion regarding his findings in the forensic
accounting changed. Mr. Moretti stated, “No, I would never accept
those returns as they were. Number one, they’re incomplete[.]
Number two, there’s no proof of filing.[”]
As such, because Appellant, through his counsel, introduced
the above-mentioned tax documents at the time of trial, which
documents were determined to be incomplete and introduced for
the first time at trial, th[e trial c]ourt provided the jury with [the
instruction at Pa. SSJI (Crim)] 3.21B….
Trial Court Opinion, 3/19/25, at 32-34 (citations to record omitted; some
capitalization modified).28
____________________________________________
28 We again emphasize that Appellant failed to include the trial exhibits in the
certified record. Without the ability to review the tax returns, there is no
evidence on which to overturn the trial court’s determination.
- 44 -
J-S35020-25
The jury instruction provided by the trial court mirrored the
Pennsylvania Suggested Standard Jury Instructions and accurately stated the
law. Discerning no abuse of discretion or reversible error by the trial court in
issuing these instructions, we conclude Appellant is not entitled to relief on
this claim.
In his fifth and final claim, Appellant contends the trial court erred in
determining the amount of restitution. Appellant’s Brief at 38 (citing 18
Pa.C.S.A. § 1106(c), explained infra). Appellant argues the trial court
accepted the Commonwealth’s recommendation of $200,322.77, which
reflects the gross amount of money withdrawn from the Trust. Id. at 39.
Appellant argues the trial court failed to consider the sum of $79,001.00,
which had been paid to the beneficiaries during the operation of the Trust.
Id. According to Appellant, by failing to account for this sum, “the trial court’s
order requires Appellant to pay for losses the beneficiaries never suffered.”
Id. Appellant further argues:
Appellant testified that he made an additional $8,500.00 payment
to the [T]rust in 2017 after collecting on accounts receivable.
While the trial court was not required to credit this testimony
without documentation, it should have been considered in the
restitution calculation. Based on the Commonwealth’s own expert
testimony, the maximum restitution should be $173,659.00
($252,666.00 [T]rust value minus $79,001.00 already distributed
to beneficiaries). If Appellant’s testimony about the additional
$8,500.00 payment is credited, the amount should be further
reduced to $165,159.00.
Id. at 49-50 (citation to record omitted).
- 45 -
J-S35020-25
“[D]iscontent with the amount of restitution and the evidence
supporting it is a challenge to the sentencing court’s exercise of discretion,
not to the legality of the sentence.” Commonwealth v. Weir, 239 A.3d 25,
38 (Pa. 2020);29 see also Commonwealth v. Biauce,
162 A.3d 1133, 1139
(Pa. Super. 2017) (“An order of restitution is a sentence, thus, the amount
awarded is within the sound discretion of the trial court and must be supported
by the record.” (citation, quotation marks, and ellipses omitted)). “Criminal
defendants do not have the automatic right to challenge the discretionary
aspects of their sentence.” Commonwealth v. Karns,
50 A.3d 158, 166 (Pa.
Super. 2012) (citation omitted).
Rather, an appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. We determine
whether the appellant has invoked our jurisdiction by considering
the following four factors: (1) whether appellant has filed a timely
notice of appeal; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; (3)
whether appellant’s brief has a fatal defect; and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa. Super. 2021) (en
banc) (citation and paragraph break omitted).
____________________________________________
29 By contrast, the Weir Court explained that a challenge to the sentencing
court’s authority to impose restitution under 18 Pa.C.S.A. § 1106(a)
(providing for mandatory restitution where “(1) property of a victim has been
stolen, converted or otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime; or (2) the victim, if an individual,
suffered personal injury directly resulting from the crime”) implicates the
legality of the sentence. Weir, 239 A.3d at 37-38. Instantly, Appellant does
not challenge the trial court’s authority to impose restitution.
- 46 -
J-S35020-25
Instantly, Appellant filed a timely notice of appeal and preserved his
challenge to the amount of restitution imposed in a timely post-sentence
motion. However, Appellant failed to include the requisite Pa.R.A.P. 2119(f)
statement of reasons relied upon for allowance of appeal. Nevertheless, as
the Commonwealth did not object to this defect, we may overlook the
omission and determine whether Appellant raised a substantial question. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“[W]hen
the appellant has not included a Rule 2119(f) statement and the appellee has
not objected, this Court may ignore the omission and determine if there is a
substantial question that the sentence imposed was not appropriate, or
enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance
of appeal.”). Finally, we have concluded that a challenge to the amount of
restitution imposed by the trial court raises a substantial question. See
Solomon, 247 A.3d at 1167. Thus, we will address the merits of Appellant’s
claim.
We observe the following standard of review:
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. 2014) (citation
omitted).
- 47 -
J-S35020-25
“Restitution” is “[t]he return of the property of the victim or payments
in cash or the equivalent thereof pursuant to an order of the court.” 18
Pa.C.S.A. § 1106(h); see also Solomon, 247 A.3d at 1168 (“Restitution is
not a fine, but is an equitable remedy under which a person is restored to his
… original position prior to loss or injury; it is the restoration of anything to its
rightful owner or the act of making good or giving equivalent for any loss,
damage or injury.” (citation omitted)). The Sentencing Code directs the
sentencing court to “order the defendant to compensate the victim of his
criminal conduct for the damage or injury that he sustained.” 42 Pa.C.S.A. §
9721(c).
Section 1106 of the Crimes Codes (governing restitution for injuries to
person or property) provides, in pertinent part, as follows:
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the financial resources of the defendant, so as to
provide the victim with the fullest compensation for the loss. The
court shall not reduce a restitution award by any amount that the
victim has received from the Crime Victim’s Compensation Board
or other government agency but shall order the defendant to pay
any restitution ordered for loss previously compensated by the
board to the Crime Victim’s Compensation Fund or other
designated account when the claim involves a government agency
in addition to or in place of the bard. The court shall not reduce
a restitution award by any amount that the victim has received
from an insurance company but shall order the defendant to pay
any restitution ordered for loss previously compensated by an
insurance company to the insurance company.
…
- 48 -
J-S35020-25
(2) At the time of sentencing the court shall specify the amount and
method of restitution. In determining the amount and method of
restitution, the court:
(i) Shall 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.
(ii) May order restitution in a lump sum, by monthly installments
or according to such other schedule as it deems just.
(iii) Shall not order incarceration of a defendant for failure to pay
restitution if the failure results from the offender’s inability to pay.
(iv) Shall consider any other preexisting orders imposed on the
defendant, including, but not limited to, orders imposed under this
title or any other title.
…
(4)(i) It shall be the responsibility of the district attorneys of the
respective counties to make a recommendation to the court at or
prior to the time of sentencing as to the amount of restitution to be
ordered. This recommendation shall be based upon information
solicited by the district attorney and received from the victim.
(ii) Where the district attorney has solicited information from the
victims as provided in subparagraph (i) and has received no
response, the district attorney shall, based on other available
information, make a recommendation to the court for restitution.
(iii) The district attorney may, as appropriate, recommend to the
court that the restitution order be altered or amended as provided
in paragraph (3).
18 Pa.C.S.A. § 1106(c)(1), (2), (4).
Section 1106 does not set forth a particular quantum of evidence
necessary to establish the value of a victim’s loss. See Solomon, 247 A.3d
at 1170. Nonetheless, we have explained that
- 49 -
J-S35020-25
[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 convicted. In other words, when restitution [i]s part of a
sentence, there must be a direct nexus between the restitution
ordered and the crime for which the defendant was convicted.
Further, the amount ordered must be supported by the
record; it may not be speculative or excessive.
Id. (emphasis added; citations and quotation marks omitted).
Here, at the start of the sentencing hearing, the assistant district
attorney (ADA) requested restitution in the amount of $200,322.77, to be
divided evenly between Father and Uncle. N.T., 1/30/24, at 2. The ADA
explained:
I would rely on Commonwealth’s Exhibit 10 from trial. It’s the
report of [Mr.] Moretti. That was the total amount of withdrawals
made from the [T]rust that went into [Appellant’s] account,
minus the amount that was provided for the care of his
[G]randparents.
Id. (emphasis added).
In response, defense counsel directed the court’s attention to Schedule
G of Mr. Moretti’s report:
It shows a total of $79,001 was paid to the beneficiaries. Ten
thousand of that would have been monies that had been
apparently forwarded by the [T]rust and then paid back when the
beneficiaries received the insurance check.
….
So the amount should be [$]250[,000] minus [$]79,000 and then
there was an additional $8,500 paid … by [Appellant] post[-]death
of [Betty,] from the business.
Id. at 8-9. The trial court set restitution at $200,322.77. Id. at 9.
- 50 -
J-S35020-25
In its opinion, the trial court explained its reasoning regarding the
amount of restitution imposed:
[A]t the time of imposition of sentence, the Commonwealth
recommended … ordering Appellant pay $200,322.77 in
restitution, which would be divided equally between [Father and
Uncle] as victims because they were the named beneficiaries of
the Trust and stood to receive the funds distributed from the Trust
after its termination. The Commonwealth indicated to this [c]ourt
that it arrived at that amount of restitution utilizing Mr. Moretti’s
forensic accounting report[,] wherein Mr. Moretti determined that
that was the total net amount of funds that Appellant withdrew
from the Trust and deposited into either his personal bank or E-
Trade accounts[,] or accounts associated with Boston Seafood
Direct.
Appellant, through counsel, indicated that the amount
should have been reduced by $8,500.00 due to Appellant’s
testimony at trial that he paid that amount into the Trust in 2017
after he collected upon certain accounts receivable as he wound
down the business prior to its final closure. However, Appellant
neither at the time of trial nor at or after his sentencing
hearing, provided any documentation to demonstrate that
he remitted an $8,500.00 payment from his business to the
Trust.
Similarly[,] at a hearing held on March 12, 2024, related to
Appellant’s post-sentence motions, Appellant put forth the same
assertion related to the repayment to the Trust of $8,500.00, but
failed to provide any evidence to demonstrate its repayment. At
the same hearing, the Commonwealth again indicated that the
$200,322.77 represented the amount of funds that Appellant
withdrew from the Trust account and [paid] into either his
personal accounts or business, as demonstrated at the time of
trial.
Therefore, because the Commonwealth recommended that
this [c]ourt order restitution in the amount of $200,322.77[,] to
be divided equally between the victims, and provided
documentation demonstrated the accuracy of that amount, this
[c]ourt so ordered Appellant to repay restitution in that amount.
Trial Court Opinion, 3/19/25, at 36-37 (emphasis added).
- 51 -
J-S35020-25
Upon review, we conclude the amount of restitution is supported by the
record, and the trial court’s reasoning is sound. There is a clear and direct
nexus between the restitution ordered and the crimes for which Appellant was
convicted. Further, the amount ordered is not speculative, and is instead
supported by a forensic accounting (as detailed in Mr. Moretti’s expert report).
Because the amount of restitution is supported by the evidence of record, we
discern no abuse of the trial court’s discretion. Appellant’s final claim entitles
him to no relief.
Based upon the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Lane joins the opinion.
Judge Olson concurs in the result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/24/2025
- 52 -
