291 A.3d 38
Pa. Super. Ct.2023Background
- John Michael Perzel pleaded guilty in 2011 to restricted-activities, conspiracy, and theft-related offenses arising from misuse of legislative resources; his plea acknowledged restitution could be imposed.
- In 2012 the trial court sentenced Perzel to prison, probation, fines, and $1,000,000 in restitution to the Commonwealth; Perzel did not directly appeal that sentence.
- Perzel filed a PCRA petition challenging restitution as illegal because the Commonwealth was not a "victim;" after appeals and Commonwealth v. Veon, the restitution portion was vacated and the case was remanded for resentencing.
- The Commonwealth sought restitution under alternative statutes (notably the Public Employee Pension Forfeiture Act, 43 P.S. §1314); the trial court again ordered $1,000,000 in 2018 but this was vacated and the case remanded for a new hearing on the amount, requiring non-speculative proof of loss.
- At the September 2, 2020 resentencing hearing the Commonwealth introduced documentary exhibits but offered no witness or expert; on December 31, 2020 the trial court denied restitution (set restitution to $0).
- On appeal the Commonwealth argued the record established at least $7.6 million in loss and that denial was error; the Superior Court held the Commonwealth’s challenge attacked the discretionary amount of restitution, was not preserved under Pa.R.Crim.P. 721 or by post-sentence motion, and lacked the required Pa.R.A.P. 2119(f) statement — therefore the claim was waived and the order was affirmed.
Issues
| Issue | Commonwealth's Argument | Perzel's Argument | Held |
|---|---|---|---|
| Nature of claim: legality vs. discretionary | The court’s failure to impose mandatory restitution under §1314 implicates legality of sentence | The Commonwealth challenges only the amount, not the court’s authority to order restitution | Court: Commonwealth challenged only amount (discretionary aspects), not statutory authority; Weir applied (discretionary) |
| Preservation of claim at trial (Pa.R.Crim.P. 721) | No post-sentence motion was required because this Court’s remand directed only a restitution hearing, not a new sentence; Rule 721 makes Commonwealth’s post-sentence motion optional | Resentencing occurred on 9/2/20; because sentence was imposed, Commonwealth needed to preserve objection at sentencing or file post-sentence motion | Court: September 2, 2020 proceeding was a resentencing; Commonwealth failed to preserve the discretionary challenge because no timely objection/post-sentence motion was made |
| Sufficiency of evidence for restitution amount | Documentary exhibits (grand jury presentment, guilty plea, spreadsheet) established at least $7.6 million loss without need for witness testimony | Commonwealth failed to present non-speculative testimony/evidence as required on remand (no witnesses or expert) | Court: documentary exhibits alone insufficient under remand’s non-speculative-evidence requirement; trial court properly declined restitution |
| Appellate technical requirement (Pa.R.A.P. 2119(f)) | No separate 2119(f) statement necessary | Commonwealth failed to include 2119(f) statement; Perzel objected | Court: omission of 2119(f) further supports waiver; court declines to reach merits |
Key Cases Cited
- Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016) (Commonwealth cannot be treated as a "victim" under former restitution statute)
- Commonwealth v. Weir, 239 A.3d 25 (Pa. 2020) (distinguishes non-waivable legality-of-sentence restitution challenges from discretionary challenges to the amount)
- Commonwealth v. Perzel, 209 A.3d 1074 (Pa.Super. 2019) (remand requiring non-speculative proof of loss for restitution amount)
- Commonwealth v. Boone, 862 A.2d 639 (Pa.Super. 2004) (an order of restitution is part of the sentence)
- Commonwealth v. Kiesel, 854 A.2d 530 (Pa.Super. 2004) (requirements and consequences of failing to include Pa.R.A.P. 2119(f) statement)