COMMONWEALTH OF PENNSYLVANIA v. CLAIRE A. RISOLDI
No. 1487 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED AUGUST 18, 2020
2020 PA Super 199
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
Appeal from the Judgment of Sentence Entered May 17, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002487-2015
Claire A. Risoldi (Risoldi) appeals from the May 17, 2019 judgment of sentence imposed by the Court of Common Pleas of Bucks County (trial court) following her conviction by jury of dealing in unlawful proceeds, two counts of insurance fraud, theft by deception, criminal attempt—theft by deception, and conspiracy—theft by deception.1 After careful review, we affirm in part and vacate in part and remand for resentencing.
* Retired Senior Judge assigned to the Superior Court.
We glean the following facts from the certified record.2 On October 22, 2013, Risoldi‘s home, known as “Clairemont,” caught fire.3 This was the third fire at Clairemont in five years, with one prior fire in 2009 and one in 2010. No one was home when the 2013 fire began, though members of the Risoldi family returned to Clairemont during the firefighting efforts. Four fire departments responded to extinguish the fire and additional fire companies provided water to the efforts. The fire was concentrated in the attic of the home with many firefighters from the various companies coming in and out of the home to fight the fire.
After the fire, the Buckingham Police Department stationed several patrol officers outside of Clairemont overnight to ensure that there was no unauthorized entry into the building. However, restoration crews began working immediately to remove contents from the house and prevent further damage, including during that night.
Clairemont suffered significant damages from fire and water that required costly rebuilding as well as replacement or refurbishment of much of its contents. Clairemont and its contents were insured through AIG Insurance
During the course of investigating the Risoldis’ claims, AIG became suspicious that some of the costs for which the Risoldis sought reimbursement were inflated. Relevant to this appeal, AIG believed that the Risoldis had falsely claimed that they spent $1.2 million to replace drapes following the 2010 fire and were seeking an even higher amount to replace the drapes again after the 2013 fire. In addition, AIG was skeptical of the Risoldis’ allegation that over $10 million worth of jewelry had been stolen from Clairemont during the firefighting efforts. After a lengthy investigation by the Office of the Attorney General (OAG), Risoldi was charged on January 22, 2015, with
The Commonwealth filed a motion seeking to bypass the preliminary hearing on February 4, 2015, and it was denied on March 3, 2015. The preliminary hearing was subsequently held from March 30 through April 7, 2015. After numerous pre-trial motions and proceedings, the Commonwealth filed a motion to recuse the trial court on April 18, 2016. The trial court denied the motion to recuse on August 1, 2016, to which the Commonwealth filed an appeal from that decision on August 23, 2016. Upon review, we affirmed the trial court‘s decision and subsequently denied reconsideration. See Commonwealth v. Risoldi, 2677 EDA 2017 (Pa. Super. Aug. 15, 2017), recons. denied, Oct. 19, 2017 (”Risoldi I“). The case was remanded to the trial court on December 1, 2017.
On remand, co-defendant Carl Risoldi (Carl) filed a motion to dismiss pursuant to Rule 600 and Risoldi filed a motion to adopt that motion to dismiss. The trial court decided the issues based on the briefs of the parties and denied the motion on April 23, 2018. Risoldi proceeded to trial on January
The verdict form allowed the jury to make specific factual findings regarding the criminal conduct supporting the convictions for count 2, insurance fraud, and count 4, theft by deception. The verdict form appeared as follows:
Count 2 – Insurance Fraud
Fire of October 22, 2013
Period from October 22, 2013 forward
If you find the defendant guilty of Count 2, circle what the fraudulent conduct was:
a. drapery claim and/or
b. mural claim and/or
c. alternative living expense claim and/or
d. guaranteed rebuilding cost submittal
Count 4 – Theft by Deception
Fire of October 22, 2013
Period from February 22, 2014 forward
If you find the defendant guilty of Count 4, circle what the fraudulent conduct was:
a. drapery claim and/or
b. alternative living expense claim
We now turn to a more detailed recitation of the evidence adduced at trial, particularly with regard to the jewelry and drapes claims.
A.
Risoldi resided at Clairemont with her son, Carl, his wife, Sheila, and their children.6 On October 16, 2013, less than a week before the fire, Risoldi was married at a wedding ceremony held at Clairemont. Risoldi had a collection of jewelry that she stored in a safe-deposit box at a local bank. On the day of the wedding, Carl retrieved the collection from the bank and brought it back to Clairemont so that Risoldi could wear some of the pieces.
Notably, Risoldi had left Clairemont to run errands shortly before the fire broke out. Even though she left the jewelry sitting in the foyer at Clairemont, she did not arm her alarm system when she left the house. She said that she never armed the alarm system when she ran errands. Additionally, when investigators asked where Risoldi had gone that morning, they learned that her errands had taken her to an area only a couple minutes from the bank where her safety-deposit boxes were located.
Lieutenant John R. Landis of the Buckingham Police Department, a long-time friend of the Risoldi family, was one of the officers to respond to the scene of the 2013 fire. He arrived on scene and stayed for approximately two hours, during which he spoke with all of the members of the family. While he was at the scene, none of the Risoldis told Lieutenant Landis about the jewelry in the foyer or asked him to retrieve it. A couple of days after the fire, Risoldi called Lieutenant Landis upset that items in the house had been moved and that the house was a mess but did not report any missing jewelry at that time.
Risoldi called Lieutenant Landis a third time and asked him to meet with her at her daughter‘s law office to review some interviews her private investigator had conducted with neighbors following the fire. At that meeting, Risoldi again did not report the missing jewelry and Lieutenant Landis told her that he could not be involved with any investigation related to the fire because of his personal relationship with the family.
Finally, Risoldi called Lieutenant Landis once again on the day before Thanksgiving, approximately one month after the fire, and asked how to report a theft. For the first time, Risoldi told Lieutenant Landis that she was missing $2.8 to $3 million in jewelry after the fire, but had not reported it sooner because her private investigator and insurance company had told her not to report the theft until she was sure she could not find the jewelry herself.
Risoldi waited to report the missing jewelry to the police department until December 16, 2013, nearly two months after the fire. Chief Steven Daniels of the Buckingham Police Department took the report. She initially reported that the estimated value of the stolen jewelry was $7 million, but at subsequent meetings, reported the value of the jewelry at $8-10 million and then $12 million. Risoldi provided Chief Daniels with a list of jewelry that had been stolen. She said that the jewelry had been in two tote bags in the foyer, and she had not been allowed into the house to retrieve the bags while the firefighting efforts were ongoing. She reported that she and her husband had later found one of the bags behind a grandfather clock in the house and the other was found in one of the bathtubs. They found some pieces of jewelry in various spots throughout the house and some pieces still in the tote bags, but many of the jewelry boxes had been emptied.
Prior to reporting the theft to the police department, Risoldi and her family members spoke with O‘Keefe on multiple occasions. According to O‘Keefe, the Risoldis’ collections policy provided coverage for over $10 million worth of jewelry at the time of the fire. Upon reviewing a history of the collections policy, O‘Keefe found that that between July and September of 2013, the Risoldis had increased the number of items covered by the collections policy from two items, valued at $105,000, to 55 items, valued at approximately $10.9 million.
O‘Keefe met with the Risoldis at Clairemont around October 28, 2013, to look at the damage caused by the fire and the water. At that time, the Risoldis mentioned that some jewelry was missing but said that they were still
In late November 2013, approximately one month after the fire, Carl emailed O‘Keefe to notify him that the Risoldis would be filing a claim of loss under the collections policy. O‘Keefe initiated the claim, but the Risoldis did not provide him with an exact list of the missing items until the end of December 2013. Because the Risoldis then reported a $9-10 million loss, O‘Keefe became concerned about whether an investigation into the alleged theft was taking place. He contacted the Buckingham Police Department and the Bucks County District Attorney and learned that both entities had a conflict of interest that prevented them from investigating the loss.8 The District Attorney had referred the matter to the state police, which in turn referred the case to the OAG.
In an Examination Under Oath (EUO) conducted by AIG as part of its investigation in March 2014, Risoldi told O‘Keefe that she had been the last person to leave Clairemont before the fire and that she believed that the firefighters had taken the jewelry. She said several loose pieces of jewelry were found strewn about the home after the fire, and she believed that a firefighter removed jewelry from the boxes to conceal it when smuggling it out of the home. Risoldi showed O‘Keefe the two Risoldi Law Offices tote bags that she had used to hold the jewelry and which she had found hidden in the
Risoldi and her family submitted a formal proof of loss under the collections policy in September 2014, claiming over $10 million for the missing jewelry that had been covered under the policy.9 Of the 55 items that were covered by the collections policy, Risoldi filed her claim for 25 items. AIG subsequently gave the OAG the documentation Risoldi had submitted when she initially sought coverage for these pieces. When Risoldi added scheduled jewelry to the collections policy, she submitted appraisals to establish the value of the scheduled pieces. Some of appraisals were from Lauria Jewelers and had been conducted in April 2013. However, many of the appraisal forms misspelled the word “jewelry” as “jewelery.” Id. at 258a-59a. Some of the appraisals also misspelled Risoldi‘s first name. Risoldi told AIG that the Lauria Jewelers appraisals had taken place at Clairemont, and she had taken the jewelry out of her safety-deposit boxes to allow the appraiser to inspect them. However, bank records revealed that Risoldi had not visited the safety-deposit boxes in April 2013.
Agent Steven Gray of the FBI also executed search warrants at Fox Chase Bank and Lauria Jewelers during the course of the investigation into the insurance claims. At the bank, Agent Gray recovered deposit paperwork and signature cards associated with the Risoldis’ safety deposit boxes, as well as jewelry that was located in the boxes. In the list of items that Risoldi reported stolen in her insurance claim under the collections policy, she included a
In her EUO following the 2013 fire, Risoldi told AIG that all of the stolen jewelry had been given to her by her late husband. At trial, the Commonwealth presented testimony regarding three insurance claims for stolen jewelry that Risoldi had filed in the past.10 The first claim related to a burglary in 1983, and the insurance company had paid Risoldi $120,000 for stolen jewelry. The second claim related to a theft that occurred in 1993. Risoldi had filed a claim seeking $111,000 for jewelry, and the company ultimately paid her $80,000. The third claim for stolen jewelry was filed in 2000, and Risoldi was paid $136,000 for the jewelry. In these past claims, Risoldi had participated in EUOs and told the insurance companies that the stolen pieces were irreplaceable heirlooms and gifts from her husband, and that all of the jewelry in her home had been stolen.
The Commonwealth then presented testimony from accredited appraiser Donald Palmieri (Palmieri), who testified at trial as an expert gemologist.
Palmieri also visited Lauria Jewelers to inspect its equipment, as it had issued many of the jewelry appraisals Risoldi submitted in support of her claim. After viewing the equipment at Lauria Jewelers, Palmieri opined that the business did not have adequate equipment to perform accurate jewelry appraisals. He also noted that many of the appraisals issued by Lauria Jewelers did not include photos of the pieces that were appraised.
Palmieri inspected the jewelry that had been in Risoldis’ possession and compared the pieces to documents identifying jewelry that had previously been reported stolen. He used the weights and descriptions of the jewelry from the appraisals to determine if any of the pieces were among those seized from Risoldi. He also tested the metal in the pieces to determine the precious metal content and counted the gemstones in each piece. Through his inspection of the jewelry and documents, Palmieri found a total of 42 pieces
On cross-examination, Palmieri admitted that there were some discrepancies between the descriptions of items that were previously reported stolen and items he examined. For example, Palmieri inspected a bracelet that had 139 brilliant cut diamonds which he believed had been previously claimed as stolen. However, paperwork associated with the claim listed a bracelet with 138 full-cut round diamonds. Despite the discrepancy, Palmieri opined based on the weight of the bracelet and the information in the prior appraisal that the bracelet he inspected was the one reported stolen in a previous claim. Palmieri also conceded that some of the items could have been repurchased in the years following the thefts, and he could not say with certainty that the items he examined were the ones that had been reported stolen previously.
In her defense, Risoldi presented testimony from Norbert Neumeister (Neumeister), an expert in forensic analysis of photographs. As noted supra,
Orlando Alcantara (Alcantara), a general contractor who worked on the restoration efforts at Clairemont following the fire, also testified on behalf of Risoldi. He testified that Risoldi was upset about the missing jewelry after the fire and spoke to him about it on several occasions. While Alcantara was working in the attic of Clairemont, he recovered several empty Rolex boxes and a Ferrari watch, which he immediately reported to Risoldi. In addition, one of the other workers at Clairemont recovered a diamond ring on the floor in the sitting room. Carl later testified that the Ferrari watch that Alcantara had recovered in the attic had been sitting on the dresser in his bedroom before the fire.
Finally, Carl testified on his mother‘s behalf. Carl recalled that on the day of Risoldi‘s wedding in 2013, Risoldi asked him to retrieve all of the jewelry from the family‘s safe-deposit box at the bank. Carl went to the bank and filled two white Risoldi Law Offices tote bags with jewelry boxes and jewelry to bring back to Clairemont. Less than a week later, on Monday, October 21,
Carl testified that when he learned of the fire, he rushed home and arrived at Clairemont while the fire departments were still working on extinguishing the fire. He testified that he and Risoldi informed the fire chief and Sergeant Landis that there was a lot of expensive jewelry in the foyer, but they were told that they were not allowed to retrieve it. Carl then attempted to enter Clairemont through a back door to get the jewelry, but was again stopped by police. The police did help Carl move some of his expensive collectible vehicles out of the garage, as they could have been harmed by the fire.
Carl testified that once the family was permitted to reenter Clairemont, the house was chaotic and there was “total destruction” from the water damage. Id. at 2471a-75a. The tote bags were no longer in the foyer and he and Risoldi‘s husband searched the house for them. They located one bag in a bathtub and another behind a grandfather clock. Some, but not all, of the jewelry had been taken out of the tote bags and the jewelry boxes that were inside. Carl gave the bags to Risoldi and eventually O‘Keefe inspected them as well. AIG did not perform any testing for DNA or fingerprints on the bags. Carl confirmed that he did not make a formal claim to AIG until the end
Carl testified that the Risoldis did not add all of their jewelry to the collections policy because it would have been cost prohibitive. They identified certain pieces that were worn more often to be added to the policy. AIG accepted their premium and bound the insurance policy based on the information that Carl and the Risoldis provided. Claire provided some appraisals for the pieces, but Carl testified that the insurance company had not requested them and did not ask to view or photograph the jewelry before binding the policy.
B.
After all three fires at Clairemont, Risoldi filed insurance claims for replacement of a significant amount of drapery, asserting that she had purchased the drapes from Summerdale Mills Fabric and Home Decorating Center (Summerdale). AIG had paid the Risoldis a total of approximately $1.8 million for damage following the 2009 fire and $8.9 million following the 2010 fire. Id. at 165a. Of those amounts, $250,000 in 2009 was paid to cover damage to drapes at Clairemont, and $1.2 million was paid in 2010 to cover damage to the drapes. Id. at 166a. After the fire in 2010, Amoroso repeatedly requested receipts for the drapes that were replaced after the 2009 fire. Risoldi complained to Amoroso that she had not been paid the full
Following the 2013 fire and prior to the initiation of charges against Risoldi and her family, AIG paid the Risoldis approximately $7.5 million for damage to the structure of Clairemont, $2 million for the contents, and almost $1 million for ALE. Id. at 170a-71a. In January 2015, Risoldi and her family submitted a proof of loss binder, including a verified statement, enumerating the various losses to Clairemont and its contents that they wished to claim under their policies. The binder included voluminous receipts documenting what the Risoldis had spent in various areas, including on replacement drapes from Summerdale. The Risoldis requested an additional $5.2 million in their homeowners’ claim to cover damage to the structure of Clairemont, and an additional $3.4 million to cover damage to the contents. Id. at 175a. They specifically requested approximately $2.3 million to cover damage to drapes. Id. at 166a.
When Risoldi requested $2.3 million following the 2013 fire to again replace the drapes through Summerdale, AIG and the OAG began investigating whether Risoldi had, in fact, replaced the drapes in 2010 for the amount she had claimed from AIG. In the course of the investigation, Special Agent Gomez served a search warrant on Summerdale seeking receipts for all
When Risoldi submitted her proof of loss in 2015 for the homeowners’ policy claims, she included numerous receipts for the drapes that were allegedly purchased from Summerdale after the 2010 fire. However, the header on the receipts misspelled “Summerdale” as “Summerdal.” Id. at 241a. Upon reviewing these receipts, Special Agent Gomez determined that they did not match any of the documents recovered directly from Summerdale. In addition to the misspelling of “Summerdale,” the receipts provided by Risoldi differed from the documents seized from Summerdale because they did not contain order numbers, order dates, installation information, transaction numbers or the name of the salesperson.
Carl also testified that all of the drapes that were damaged during the 2010 fire were replaced by Summerdale. The drapes had been destroyed and could not have been cleaned and rehung. Carl reviewed photographs that depicted various rooms in Clairemont before and after the fire, showing the differences in the drapes. He testified that following the 2013 fire, the contents of Clairemont had been boxed and stored in a large warehouse by individuals working in the house. Carl attempted to find Summerdale receipts
C.
In further investigating the insurance claims, the OAG sought to establish that Risoldi‘s spending was extravagant and unsustainable without the insurance proceeds that she had received over the years. A forensic accountant at the OAG, Monique Ericson (Ericson), testified as an expert at trial. She testified that she analyzed 47 accounts across eight banks as well as numerous Risoldi family credit cards and loan statements. Ericson first determined that Risoldi‘s ordinary income, meaning the income that she received on a regular basis, was $1,500 per month from Social Security and $160 per month from a pension account. In addition, Carl had an ordinary income of $70,000 annually. These ordinary incomes accounted for approximately 3.84% of the Risoldis’ spending. Ericson confirmed that Risoldi received $1.7 million from AIG after the 2009 fire and a total of $8.8 million from AIG over the course of several years after the 2010 fire. Ericson conceded that her analysis of Risoldi‘s income and spending only accounted for the money that was deposited into and spent from the bank accounts and that she had no knowledge of any large stores of cash that the Risoldis might have had access to.
To rebut testimony regarding her finances, Risoldi called Edmondo Crimi (Crimi), an antique dealer, to testify on her behalf. Crimi testified that he had known Risoldi and her family for approximately 40 years and had sold her antiques throughout that period. He estimated that he had sold her between $4 and $7 million worth of antiques in total and he had participated in restoration work for Clairemont through AIG after the 2009 and 2010 fires. Crimi said it was not uncommon for Risoldi to pay for pieces in cash, and that over the years, she had paid him between half a million and a million dollars in cash for various items.
Finally, Carl testified that his father, Risoldi‘s late husband, had been a successful commercial contractor for many years. As a result, the family was well off and his father and Risoldi had kept a significant amount of cash in a safe in their home. While he did not know how much money was kept in the safe, he testified that it was “a lot” and had “filled a safe.” Id. at 2416a-17a.
D.
Following her convictions, the trial court sentenced Risoldi on count 1, dealing in unlawful proceeds, to 11.5 to 23 months’ incarceration. On count 4, theft by deception, and count 5, criminal attempt—theft by deception, the trial court sentenced Risoldi to 11.5 to 23 months’ incarceration to be served concurrently to the sentence at count 1. On counts 2 and 3, insurance fraud, the trial court sentenced Risoldi to 3 years of probation, with each sentence to be served consecutively to the period of incarceration. On count 9, criminal conspiracy, the trial court imposed an additional consecutive sentence of 2 years’ probation. Thus, Risoldi was sentenced to an aggregate term of 11.5 to 23 months’ incarceration, followed by eight years of probation. The trial court also imposed fines and court costs and ordered Risoldi to pay restitution to AIG of $10,428,428.13, which was the full amount that AIG had paid to Risoldi for her all of claims following the 2013 fire.12 Risoldi filed a timely motion to reconsider the restitution portion of her sentence and a notice of
The trial court and Risoldi have complied with
Risoldi raises five issues on appeal, which we have renumbered for ease of disposition:
- Whether Mrs. Risoldi‘s right to a speedy trial was denied by the Commonwealth taking an appeal to this Court seeking recusal of the trial court judge for no valid reason?
- Whether the evidence was insufficient as a matter of law to sustain the convictions in connection with the drapes claim, as the Commonwealth failed to call an essential witness and as a result the conviction based on surmise, theory and conjecture?
- Whether the evidence was insufficient as to the jewelry claim conviction as there was no evidence presented that the jewelry, as stated by defense witnesses, was not placed on a chair in the house and gone after the fire, therefore, the conviction was based on theory, conjecture and surmise?
- Whether the Trial Court erred in denying the defense motion for a mistrial after the Commonwealth impermissibly shifted and commented on the burden of proof by asking defense witness, Thomas [Kiosewski], on cross examination if the defense had witnesses ready to testify that the drapes were purchased?
- Whether the restitution portion of the sentence was illegal, because it was unauthorized by statute, and the trial court used contractual (civil) law to determine criminal restitution?
II.
Risoldi first argues that the trial court abused its discretion in denying her motion to dismiss the charges against her pursuant to
Under Rule 600, a case must be called to trial or a plea must be tendered within 365 days from the date on which the criminal complaint was filed.
Excusable time, or periods of Commonwealth delay during which the Commonwealth exercised due diligence, is also added to the mechanical run date to calculate the adjusted run date. Commonwealth v. Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019);
When reviewing a Rule 600 claim, we first calculate the mechanical run date, which is 365 days from the date the complaint was filed. Id. We then add the excludable and excusable time to the mechanical run date to calculate
Rule 600 serves two equally important functions: (1) the protection of the accused‘s speedy trial rights, and (2) the protection of society. In determining whether an accused‘s right to a speedy trial has been violated, consideration must be given to society‘s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
Commonwealth v. Martz, __ A.3d __, at *5 (Pa. Super. April 28, 2020) (citations omitted).
Here, a criminal complaint was filed against Risoldi on January 22, 2015. As a result, the mechanical run date was January 22, 2016.
With these principles in mind, we turn to the merits of Risoldi‘s claim.16
B.
First, we address the period of delay following the Commonwealth‘s filing of its motion to bypass the preliminary hearing. On February 4, 2015, the Commonwealth filed a Petition to File Bills of Information Without a Preliminary Hearing. Risoldi filed her objections to the petition on February 18, 2015, and the trial court denied the petition on March 3, 2015. The preliminary hearing, which lasted seven days, subsequently took place and all charges were held for court on March 30, 2015. Risoldi argues that 49 days
In its response to the Motion to Dismiss Pursuant to Rule 600, the Commonwealth attached a letter from all defense counsel dated January 27, 2015. See Commonwealth‘s Response to Motion to Dismiss Under Rule 600, 3/6/18, Exhibit A. In the letter, all co-defendants, including Risoldi, requested that the preliminary hearing be scheduled no earlier than March 10, 2015, as that was the earliest date on which all counsel would be available. Id. Because the Commonwealth‘s motion to bypass the preliminary hearing was filed and denied prior to the earliest date on which the preliminary hearing could have been held, the motion did not cause any delay in the proceedings. To the contrary, the preliminary hearing, which was originally scheduled for February 9, 2015, was continued based on the unavailability of the defendants before the Commonwealth filed its motion. As such, this period is excludable as delay caused by the defendants.
C.
Next, Risoldi argues that 648 days of non-excusable delay occurred when the Commonwealth motioned for the trial court‘s recusal and appealed from the denial of that motion. Again, Risoldi argues that the recusal motion and subsequent appeal were entirely frivolous, such that the time attributed to those proceedings cannot be excusable delay under Rule 600.
The trial court granted the motion, finding that while the Commonwealth had not acted in bad faith, it did not exercise due diligence in bringing the
Thus, notwithstanding the fact that this court had quashed the Commonwealth‘s interlocutory appeal, the Supreme Court in Matis held that the time period during which the interlocutory appeal had been pending was excusable delay during which the Commonwealth had exercised due diligence. Id. at 19. Moreover, since the trial court had found that the Commonwealth did not act in bad faith in filing the appeal, it was a valid interlocutory appeal. Id. Because the Commonwealth exercised due diligence in certifying the interlocutory appeal, the Supreme Court affirmed this court‘s reversal of the order discharging the defendant. Id.; compare Commonwealth v. Malinowski, 671 A.2d 674, 679-80 (Pa. 1996) (holding that the Commonwealth failed to exercise due diligence in filing an interlocutory appeal
Matis is consistent with prior holdings of this court that the Commonwealth‘s good-faith interlocutory appeal constituted excusable delay under Rule 600, even if the Commonwealth was unsuccessful on the merits of its claim. See, e.g., Commonwealth v. Ferri, 599 A.2d 208, 210 (Pa. Super. 1991) (holding that four-year delay for Commonwealth‘s appeal of a denied motion for severance did not violate Rule 600); Commonwealth v. Coleman, 491 A.2d 200, 202 (Pa. Super. 1985) (holding that Commonwealth‘s interlocutory appeal did not violate Rule 600 when the Commonwealth had a right to appeal that would be moot after trial and there was no evidence that the Commonwealth took the appeal as a delay tactic). Thus, the Commonwealth need not be successful in its interlocutory appeal to establish due diligence for the purposes of Rule 600.
The Commonwealth is entitled to a pre-trial appeal in some circumstances in a criminal case. See
appellate process, this right would be largely illusory if the Commonwealth could not exercise it without certainty that it would succeed on the merits. This court has previously recognized that the Commonwealth may appeal an order denying its recusal motion pursuant to
Under all of these circumstances, the Commonwealth in this case was entitled to appeal from the trial court‘s order denying its motion to recuse, regardless of the fact that this court ultimately affirmed the trial court‘s order. There is no indication in the record that the Commonwealth took the appeal in bad faith or as a means to delay trial. Matis, supra. Even though the Commonwealth was unsuccessful on appeal, it had a legitimate interest in ensuring the fairness and impartiality of the trial court and it was entitled to protect that interest through appellate review. As such, the Commonwealth
III.
Next, we turn to Risoldi‘s challenges to the sufficiency of the evidence.19 Risoldi argues that the evidence was insufficient to support her convictions for insurance fraud and theft by deception related to the drapes claim, and her convictions for insurance fraud and criminal attempt—theft by deception related to the jewelry claim.20 We find the evidence insufficient to support her
A person commits the crime of insurance fraud if he or she “[k]nowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim.”
A person commits the crime of theft by deception if he or she “intentionally obtains or withholds property of another by deception.”
We note that “[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Gause, 164 A.3d 532, 541 (Pa. Super. 2017) (citation omitted). “Finally, the trier 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.” Id. “Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). On appeal, this court evaluates the full record to determine whether sufficiency evidence was presented to support each element of the crime charged; however, we do not second-guess the jury‘s factual determinations.
A.
We first address the sufficiency of the evidence to sustain the convictions for insurance fraud and theft by deception related to the drapes. Risoldi argues that the Commonwealth‘s case was fatally flawed because it did not call a witness from Summerdale to testify regarding Risoldi‘s purchases.
In contravention of our well-settled standard of review, Risoldi‘s argument views the evidence in the light most favorable to her. Risoldi presented evidence to the jury regarding the receipts Carl recovered from the warehouse where her belongings were stored, as well as testimony by an employee from Summerdale who described the complexity and cost of the work he performed at Clairemont. Risoldi also vigorously cross-examined the Commonwealth‘s witnesses regarding the receipts that were recovered directly from Summerdale and whether these documents represented all of Risoldi‘s purchases over the year. Much of Risoldi‘s cross-examination and closing argument focused on Summerdale‘s organizational system, arguing to the jury that the OAG had not performed an adequate search of all the paperwork at Summerdale to ensure that it collected everything related to Clairemont. However, the jury rejected these arguments. On review, we accept the jury‘s factual and credibility determinations.
Even without testimony from an employee of Summerdale, the Commonwealth presented sufficient evidence for the jury to conclude that Risoldi did not spend $1.2 million on drapes at Summerdale. Special Agent Gomez, who executed a search warrant at Summerdale and seized all
Summerdale,
Risoldi’s receipts did not contain order numbers, order dates, installation information, transaction numbers or the name of the salesperson. These receipts clearly fell within the definition of a statement
under the insurance fraud statute, Summerdal
in support of her verified proof of loss were not legitimate.
In addition, the receipts that Special Agent Gomez seized directly from Summerdale did not substantiate Risoldi’s claim that she had spent over a million dollars on drapery at any point in time. While one estimate from
Common sense[] suggests that there would be a paper or electronic trail in a business transaction where 1.2 million dollars changed hands. Common sense suggests that a business would spell its name CONSISTENTLY and CORRECTLY in its dealings with customers. Common sense suggests a business would retain its records and be able to produce them when requested. Common sense suggests that when the OAG and AIG looked in all the places where such records should exist and did not find them, that they didn’t exist. Defendant’s explanation that all her records were destroyed in the fire could have been viewed by the jury as too convenient an explanation and therefore not credible.
Trial Court Opinion, 7/23/19, at 10-11 (footnote omitted). We agree. The jury was entitled to conclude that the receipts recovered from Summerdale were the only legitimate receipts from Risoldi’s transactions with the company, and that the receipts she submitted in support of her claim were fabricated.
Finally, the OAG’s forensic accountant testified that her review of the Risoldis’ finances from 2009 through 2018 revealed only approximately $191,000 in spending on draperies and fabrics, even though this period encompassed all three of the fires at Clairemont. Again, even though Risoldi presented evidence that she had substantial stores of cash that she could have used to purchase the drapes, the jury was entitled to credit the Commonwealth’s evidence and find that she had spent far less than she represented to AIG on drapes over the years. In total, this evidence is
However, the evidence was insufficient for the jury to conclude that Risoldi actually obtained payments on her homeowners’ insurance claim through deception, in violation of the theft by deception statute, when she submitted fabricated receipts in support of her claim.
While Risoldi could have appropriately been charged with criminal attempt—theft by deception for the drapes claim, the evidence is insufficient to establish, beyond a reasonable doubt, that she actually obtained or withheld AIG’s property by deception under the statute.
B.
Next, Risoldi argues that the evidence was insufficient to support her convictions for insurance fraud and criminal attempt—theft by deception for the insurance claim she filed under the collections policy seeking reimbursement for $10 million worth of jewelry she alleged had been stolen from Clairemont during the fire. Risoldi argues that the OAG failed to prove that she had not left the jewelry on the chair in the foyer where it was stolen during the firefighting efforts. She contends that if this statement was not false beyond a reasonable doubt, then her convictions related to the jewelry claim cannot be sustained.
This argument misconstrues the claim. There is no doubt that Risoldi owned a significant amount of jewelry; indeed, the OAG seized hundreds of pieces from the Risoldi family for inspection by its expert. However, the insurance fraud and criminal attempt—theft by deception charges were based on Risoldi’s claims that she lost jewelry valued at $10 million during the fire.
In addition, in her verified proof of loss, Risoldi claimed that a diamond engagement ring purchased at Lauria Jewelers had gone missing after the fire. Agent Gray’s search of Lauria Jewelers did not uncover any receipts for such a ring. Thus, the jury could have concluded that Risoldi submitted a false insurance claim for a diamond ring that she did not own. Additionally, when adding jewelry to the collections policy, Risoldi had submitted multiple appraisals that were purportedly conducted by Lauria Jewelers. In contrast to the appraisals seized directly from Lauria Jewelers, the appraisal forms submitted by Risoldi misspelled jewelry
as jewelery,
and the search of Lauria Jewelers only turned up a single appraisal conducted for Risoldi. One of the appraisals from Lauria Jewelers that Risoldi submitted to AIG had allegedly been completed in April 2013. However, all of the jewelry had been stored in the Risoldis’ safe deposit boxes and bank records revealed that no one had accessed the boxes in April 2013. appraisal
glued to the bottom, and photocopies of the form made it appear as if appraisal
was printed on the form. On another form, the signature at the bottom had been cut off. Pictures of pieces of jewelry that had been cut out from another source were located with the forms, and some appraisals had areas that had been covered with whiteout. The blank and doctored appraisal forms and the Lauria Jewelry appraisals initially submitted by Risoldi when she sought to add pieces to her collections policy were strong circumstantial evidence that Risoldi had sought insurance coverage for expensive pieces of jewelry that did not actually exist and later filed a claim for these pieces.
The jury was also entitled to consider the circumstantial evidence of Risoldi’s behavior immediately following the fire, when she delayed for nearly two months before reporting the alleged theft to the authorities. Sergeant Landis testified that Risoldi did not mention the jewelry at the scene of the fire, and that if she had, he would have gone into Clairemont to retrieve it. Additionally, Sergeant Landis and O’Keefe both spoke with Risoldi multiple
Finally, the forensic accountant testified that Risoldi did not spend $10 million on jewelry during the period she investigated, nor could she afford to. As Risoldi had claimed that all her jewelry had been stolen in her previous insurance claims, the jury could conclude that Risoldi did not have the means to replace $10 million worth of jewelry, but had instead submitted a fraudulent claim for expensive pieces that she did not own. Under the totality of the circumstances and viewing the evidence in the light most favorable to the Commonwealth, the evidence was sufficient for the jury to conclude that Risoldi made multiple false statements in support of a fraudulent insurance claim, attempting to recover for jewelry she either did not own or which was not worth the $10 million. These facts are sufficient to support her convictions for insurance fraud and criminal attempt—theft by deception, and this issue merits no relief.
IV.
Next, Risoldi contends that the trial court abused its discretion by denying her motion for a mistrial after the Commonwealth, when cross-
Initially, we note that
the remedy of a mistrial is an extreme one. . . . It is primarily within the trial court’s discretion to determine whether Appellant was prejudiced by the event that forms the substance of the motion. Finally, it must be remembered that a mistrial is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial.
Commonwealth v. Lease, 703 A.2d 506, 508 (Pa. Super. 1997) (citations omitted). Thus, a mistrial is an extreme remedy only warranted when the
A mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.
Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016) (citation omitted). Finally, juries are presumed to follow the trial court’s cautionary instructions. Commonwealth v. Fletcher, 41 A.3d 892, 896 (Pa. Super. 2012) (holding that a mistrial was properly denied when, during a two-day jury trial with multiple eyewitnesses, the Commonwealth asked an improper question on cross-examination and a cautionary instruction was issued).
As noted supra, Risoldi called Kiosewski, an installer from Summerdale, to testify that he had performed a significant amount of work with expensive drapes and fabrics at Clairemont after the 2010 fire. On cross-examination, the Commonwealth asked Kiosewski to review receipts it had seized from Summerdale and confirm whether they totaled over $1 million worth of drapes and labor. Risoldi objected to this line of questioning on the basis that Kiosewski did not work in billing at Summerdale, and the trial court allowed Kiosewski to confirm that the receipts appeared genuine and reflected specific amount of billing. Following this discussion, the Commonwealth asked Kiosewski the following question: Those who handle the money at Summerdale, do you know if they’re coming in to testify?
Id. at 2305a.
Kiosewski did not answer the question, as Risoldi immediately objected and requested a mistrial, arguing that the Commonwealth had improperly
The trial court issued the following cautionary instruction to the jury:
I remind you that the defendant has absolutely no obligation to call any witness, let alone a particular witness. The defendant has no burden to disprove the Commonwealth’s case. Rather, the Commonwealth has the unshifting burden of proof to prove its case and each element of its case beyond a reasonable doubt by presenting whatever evidence the Commonwealth wishes to do and by calling whatever witnesses the Commonwealth wishes to call.
The defendant has absolutely no obligation to call any witness whatsoever. The fact that the defendant calls a particular witness, that’s the defendant’s choice. Once the witness is up here, they can be asked relevant questions. But the suggestion that they have to call any particular witness or any witnesses whatsoever is absolutely improper.
Id. at 2325a-26a. In addition, in both its opening charge and its final charge to the jury, the trial court reiterated that the Commonwealth bore the burden of proving each element of the crimes charged beyond a reasonable doubt, and that Risoldi had no obligation to present any evidence refuting the charges. Id. at 97a-99a; 3068a-71a.
Having dealt with [the prosecutor] over the course of many months, I had/have no hesitation in concluding that this was an error on her part, not an attempt to shift the burden of proof to the defense. Not every error warrants the draconian response of a mistrial. In framing my response, I was well aware of the case law governing mistrials having had to address same many times previously. Like obscenity, one instinctively knows what conduct warrants a mistrial.
[The prosecutor] was engaging, in my view, in an unfortunate
tit for tatresponse to [the defense’s] questions and certainly was not seeking to provoke him into requesting a mistrial. We were in our twelfth day of testimony and there had been the expected number of clashes between counsel, as well as the expectedpushing the envelopetype exchanges. However, I do not believe her question was asked to prejudice [Risoldi] to the point of denying her a fair trial and/or to suggest that she had any burden of proof whatsoever. This question and conduct is at the opposite extreme from that in [Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)] and [Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1991)] where mistrials were warranted. I also considered that I had addressed the jury as to the burden of proof in my opening and would do so again in my closing. I considered that this was a single instance, not something that had been ongoing and pervasive throughout the trial. Accordingly, I believed a curative instruction was the appropriate relief. As such, a mistrial was not warranted and [Risoldi] is not entitled to relief on this ground.
Trial Court Opinion, 7/23/19, at 120-21. We agree.
There is no indication in the record that the Commonwealth asked Kiosewski this question with the intent to provoke a mistrial or deprive Risoldi of a fair trial. Within the scope of a three-week trial, this single question, while improper, was not so prejudicial as to have the unavoidable effect of depriving Risoldi of a fair trial. Risoldi immediately objected to the question
V.
Finally, Risoldi challenges the legality of the restitution portion of her sentence.23 The trial court ordered Risoldi to pay restitution to AIG of $10,428,428.13, which was the full amount that AIG paid to Risoldi pursuant to her homeowners’ insurance policy following the 2013 fire. Risoldi argues that because not all of her insurance claims were fraudulent, the trial court was not empowered to sentence her to pay restitution in the full amount of the money she received because of the non-fraudulent claims. We agree.
Restitution is a mandatory component of the sentence24 for any crime in which a victim’s property is stolen, converted or otherwise unlawfully obtained.
In determining the amount and method of restitution, the court: [s]hall consider the extent of the injury suffered by the victim.
No judgment or order of restitution shall debar the victim, by appropriate action, to recover from the offender as otherwise provided by law, provided
When determining the amount of restitution to be imposed as part of a defendant’s sentence, the trial court must look to the losses the victim would not have suffered but for the defendant’s criminal conduct.
Because of the statutory language
directly resulting from the crime,restitution under § 1106(a) is proper only if there is a direct causal connection between the crime and the loss. . . . Thus, the sentencing court is statutorily required to impose restitution under § 1106(a) when the Commonwealth has established that the defendant committed a crime, the victim suffered injury to person or property, and there exists a direct causal nexus between the crime of which defendant was convicted and the loss or damage suffered by the victim.
Commonwealth v. Weir, 201 A.3d 163, 170 (Pa. Super. 2018) (citations omitted), appeal granted, 215 A.3d 966 (Pa. 2019). The amount of restitution must be determined under the adversarial system with considerations of due process.
Id. at 171.
When imposing restitution as part of a sentence, there must be a direct nexus between the restitution ordered and the crime for which the defendant was convicted. Commonwealth v. Zrncic, 167 A.3d 149, 152-53 (Pa. Super. 2017). The trial court may not impose restitution if the victim’s loss did not flow from the behavior for which the [defendant] was held criminally accountable.
Id. at 153 (citation omitted). Thus, in Zrncic, this court held that the defendant could not be sentenced to pay restitution for the cost of replacing the victim’s laptop when the laptop was seized in support of the
Similarly, in Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008) (en banc), this court held that defendant could not be sentenced to pay for the replacement of the victim’s couch when the jury acquitted him of criminal conduct related to the couch. After the jury acquitted him of the sexual offenses that were alleged to have occurred on the couch, the trial court found the defendant guilty of a summary offense of harassment for slapping the victim during the incident in question. Even though the harassment charge arose out of the same course of criminal conduct as the charges for which he was acquitted, this court held that there was no direct nexus between the harassment and the restitution for the victim’s couch. Id. Because the defendant could not be sentenced to pay restitution related to conduct for which he was acquitted, the sentence was illegal. Id.
The parties direct us to Commonwealth v. Oree, 911 A.2d 169 (Pa. Super. 2006), and Commonwealth v. Poplawski, 158 A.3d 671 (Pa. Super. 2017), for interpretation of the but-for test for setting criminal restitution. In Oree, the defendant was convicted of simple assault and recklessly endangering another person and acquitted of aggravated assault. Oree, supra, at 172. The trial court sentenced the defendant to pay restitution
In Poplawski, the defendant was convicted of home improvement fraud but acquitted of theft by deception and deceptive or fraudulent business practices. Poplawski, supra, at 672. The jury specifically found that the victim paid the defendant $2,000 or less. The victim testified that he paid another contractor approximately $41,000 to complete the remaining work, but it was unclear whether this sum represented the amount it would have cost to complete the project initially or whether it included more extensive work as a result of the defendant’s involvement. Id. at 674-75. We concluded that the jury had heard the testimony regarding the cost of continuing the project following the defendant’s fraud, but it specifically acquitted him of charges related to the quality and quantity of his services. Id. at 675. Under those circumstances, the restitution constituted an illegal sentence because it was not a direct result of the criminal conduct as found by the jury. Id. Importantly, we noted that the victim was still entitled to seek redress by filing a civil lawsuit against the defendant. Id.
B.
Risoldi contends that the vast majority of the proceeds she received from AIG were in payment for rebuilding and restoration of Clairemont. The cause of the fire was accidental and the jury found her not guilty of insurance fraud related to guarantee replacement costs. She concedes that AIG is entitled to partial restitution for the ALE,26 but argues that there was no direct link between the criminal conduct for which she was convicted and the total amount of restitution ordered to AIG. She contends that the trial court exceeded its authority in imposing restitution that covered the payments made for the damage to the structure and contents of Clairemont, as it erroneously applied civil law in a criminal proceeding to determine that her insurance contract with AIG was void. She argues that the criminal proceeding was the incorrect venue for AIG to recover based on a breach of contract
In contrast, the Commonwealth argues that the homeowners’ insurance policy contained a provision stating that the entire policy would be void if the insured intentionally concealed or misrepresented any material fact, engaged in fraudulent conduct, or made false representations. R.R. at 3209a. The Commonwealth further argues that Risoldi submitted fraudulent claims to AIG before AIG made payments for the undisputed damage to Clairemont. Thus, if AIG had known about the fraud at the time that it occurred, the policy would have been void in its entirety and AIG would not have made these payments. The Commonwealth argues that because the jury found that Risoldi had committed insurance fraud with regard to certain claims, the policy was void, and AIG is entitled to the $10,428,428.13 it would not have paid but for Risoldi’s fraud and misrepresentations.
The trial court found that Risoldi’s convictions for insurance fraud in her criminal trial would have per se satisfied any burden of proof AIG had to establish fraud if it filed a civil suit against her to recover the funds it had paid under the homeowners’ policy. The trial court agreed that the fraud vitiated the insurance contract and AIG’s obligation to pay for the legitimate losses at Clairemont. It concluded that but for the fraud, AIG would not have paid Risoldi for the homeowners’ claims and, as a result, AIG was entitled to restitution of the full amount it had paid on those claims.
Importantly, the fact that the 2013 fire at Clairemont was accidental was not disputed. The trial court repeatedly instructed the jury that Risoldi had not been charged with arson and there was no allegation that she was responsible for the fire. At trial, O’Keefe agreed that because the cause of the fire was accidental, the homeowners’ insurance policy covered the rebuilding
Much like Zrncic and Barger, the jury in this case acquitted Risoldi of certain criminal conduct and made specific findings of fact regarding what conduct was fraudulent, in addition to finding the total loss suffered by AIG because of the fraudulent conduct. The Commonwealth attempted to prove at trial that Risoldi’s claim for guaranteed rebuilding costs of Clairemont was fraudulent; however, there is no doubt that the jury rejected this argument in its verdict. The Commonwealth never attempted to prove fraud or wrongdoing related to the damage that arose because of the fire, which was not disputed that it was accidental. Nevertheless, the trial court ordered Risoldi to pay restitution that encompassed the payments AIG made to the Risoldis based on the undisputed, accidental damage to Clairemont and its contents. Based on the special interrogatories and the charges filed, there is no direct nexus between restitution for the payments on the policy limits and the criminal conduct for which Risoldi was actually convicted. As her convictions did not encompass the payments for damage to the structure and contents that
Likewise, we find these circumstances distinguishable from Oree, relied upon by the Commonwealth. There, the defendant was convicted of simple assault but acquitted of aggravated assault, and he was sentenced to pay restitution that accounted for the victim’s care and medical expenses throughout the rest of his life. Oree, supra. The direct nexus between the criminal conduct and the restitution was clear: but for the simple assault, the victim would not have sustained the injuries resulting in his need for long term care. While the jury acquitted the defendant of the more serious aggravated assault charge, it nonetheless concluded that the defendant had engaged in conduct causing the victim’s injuries. Id. Here, however, the jury reached the opposite conclusion as to the guaranteed replacement costs and specifically found that Risoldi had not engaged in insurance fraud as to those claims. The jury was never presented with the option of finding that Risoldi committed fraud as to the structural and contents damage at Clairemont as the Commonwealth had agreed that this damage was accidental. There was no direct nexus between the fraudulent conduct for which the jury convicted Risoldi and the payments for damage to the structure and contents of Clairemont.
The Commonwealth attempts to circumvent the jury’s verdict by arguing that the insurance policy’s fraud and misrepresentation provision rendered the [t]his is a situation where a victim has options for recovering its loss. It can rely on the criminal justice system to protect its interests or submit its claim to the civil courts for resolution. These options can be pursued individually and/or jointly.
Trial Court Opinion, 7/23/19, at 6. While it is true that a restitution order does not preclude a victim from seeking further redress in a civil forum, see
Because the parties’ stipulation that the fire at Clairemont was accidental, we find that AIG’s payments under the insurance contract, made for the undisputed damage to the structure and contents of Clairemont, were attenuated from Risoldi’s criminal conduct such that restitution for those payments constitutes an illegal sentence. Here, the Commonwealth proved the criminal conduct with regard to the drapes, mural, ALE and jewelry, but not as it related to the guaranteed replacement costs. Further, the Commonwealth did not allege any fraud or wrongdoing as to the damage to Clairemont resulting from the accidental fire. O’Keefe testified that AIG disputed the total amount of guaranteed replacement costs requested by Risoldi, but had agreed that she was entitled to, at minimum, the policy limit for the structural damage.
The victim is not precluded from seeking civil damages if unsatisfied with the restitution award.
). In that forum, AIG could present its arguments related to the fraud and misrepresentation provision of the policy in the context of the language of the contract as a whole, and Risoldi could present any relevant defenses to AIG’s claim. However, it is not the duty of the criminal court to resolve a breach of contract claim resulting in damages that do not flow directly from the criminal conduct for which the defendant was convicted.
In light of our disposition, we must remand for resentencing only as to the restitution portion of Risoldi’s sentence. As we have found the evidence insufficient to support Risoldi’s conviction for theft by deception as to the drapes, the restitution award related to the theft by deception claim should not reflect reimbursement for the drapes claim. However, her conviction for theft by deception remains intact because the drapes claim was only one basis to support the count of theft by deception and the charge is supported by her proper conviction for theft by deception as to the ALE. On remand, the trial court should set a restitution amount that reflects AIG’s losses for the specific insurance fraud and theft by deception charges for which Risoldi was properly convicted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
Notes
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 [this] 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.Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation omitted).
statementcontaining
false, incomplete or misleading information concerning any fact or thing material to the claim.
The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion.Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000) (citation omitted).
the required nexus is relaxedand the court
is accorded latitude in fashioning probationary conditions designed to rehabilitate the defendant and to provide some measure of redress to the victim.Id. Here, it appears the trial court imposed restitution as part of the sentence pursuant to the mandatory restitution statute, as Risoldi was convicted of theft offenses.