Com. v. Bernarsky, S.

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

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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].

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2 Appellant also has a sister, Sonya. His mother, Mary Scarpetta (Ms.

Scarpetta), and Father later separated.

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[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.

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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.

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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.

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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]

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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)

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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)

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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.

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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.

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… 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

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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.

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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

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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.

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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.

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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

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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.

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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

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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)

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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

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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)

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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.

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[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

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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.

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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.

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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).

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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

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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”).

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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).

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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.”

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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).

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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.

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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…”).

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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

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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

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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

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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.

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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

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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

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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

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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,

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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

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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

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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.”).

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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

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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).

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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)

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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.

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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.

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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).

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“[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.

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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).

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“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.

***

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(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

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[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.

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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).

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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

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