Commonwealth v. Holmes

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2017 PA Super 2COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NORMA JEAN HOLMES, : No. 305 MDA 2014
:
Appellant :
Appeal from the Order Entered January 21, 2014,
in the Court of Common Pleas of Fulton County
Criminal Division at No. CP-29-CR-0000103-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
OPINION IN SUPPORT OF REVERSAL BY FORD ELLIOTT, P.J.E.:
FILED JANUARY 04, 2017
We agree that the trial court erred to the extent it ordered restitution
as a condition of appellant’s probation under Section 9754(c)(8) of the
Sentencing Code. As explained in the Opinion in Support of Affirmance,
restitution cannot be imposed as both a condition of probation and as part of
a defendant’s sentence under Section 1106(a) of the Crimes Code.
Furthermore, the trial court did not determine appellant’s ability to pay as
required under Section 9754(c)(8). However, we are constrained to
disagree that the victim’s parents were entitled to mandatory restitution
under Section 1106(a) for their son’s funeral expenses.
Initially, we note that
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[i]n the context of criminal proceedings,
an order of restitution is not simply an
award of damages, but, rather, a
sentence. An appeal from an order of
restitution based upon a claim that a
restitution order is unsupported by the
record challenges the legality, rather
than the discretionary aspects, of
sentencing. The determination as to
whether the trial court imposed an illegal
sentence is a question of law; our
standard of review in cases dealing with
questions of law is plenary.
Commonwealth v. Stradley, 50 A.3d 769, 771-72
(Pa.Super. 2012) (citations and quotation marks
omitted); see also id. (stating that because “[the
appellant’s] claim on appeal challenges the legality
of his sentence, its review is not abrogated by the
entry of his guilty plea.”).
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013).
Restitution is a creature of statute and, without
express legislative direction, a court is powerless to
direct a defendant to make restitution as part of his
sentence. Commonwealth v. Harner, 533 Pa. 14,
617 A.2d 702, 704 (1992). Where that statutory
authority exists, however, the imposition of
restitution is vested within the sound discretion of
the sentencing judge. Commonwealth v. Keenan,
853 A.2d 381, 383 (Pa.Super. 2004); see also id.(stating that “[t]he primary purpose of restitution is
rehabilitation of the offender by impressing upon him
that his criminal conduct caused the victim’s
personal injury and that it is his responsibility to
repair the injury as far as possible.”).
Id. “The court is required to specify the amount of restitution at sentencing,
but may modify its order at any time provided that it states its reasons for
any modification on the record.” Commonwealth v. Solomon, 25 A.3d
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380, 389-390 (Pa.Super. 2011), appeal denied, 40 A.3d 1236 (Pa. 2012),
citing Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009).
In the context of a criminal case, restitution may be
imposed either as a direct sentence, 18 Pa.C.S.
§ 1106(a), or as a condition of probation, 42 Pa.C.S.
§ 9754. When imposed as a sentence, the injury to
property or person for which restitution is ordered
must directly result from the crime. See
18 Pa.C.S.A. § 1106(a); Harner, 533 Pa. at 21, 617
A.2d at 704. However, when restitution is ordered
as a condition of probation, the sentencing court is
accorded the latitude to fashion probationary
conditions designed to rehabilitate the defendant and
provide some measure of redress to the victim.
Harner, 533 Pa. at 21-22, 617 A.2d at 706. As this
Court stated in Harner:
Such sentences are encouraged and give
the trial court the flexibility to determine
all the direct and indirect damages
caused by a defendant and then permit
the court to order restitution so that the
defendant will understand the
egregiousness of his conduct, be
deterred from repeating this conduct,
and be encouraged to live in a
responsible way.
Harner, 533 Pa. at 22, 617 A.2d at 707; see also
Commonwealth v. Walton, 483 Pa. 588, 599, 397
A.2d 1179, 1185 (1979). Thus, the requirement of a
nexus between the damage and the offense is
relaxed where restitution is ordered as a condition of
probation. See Harner, 533 Pa. at 22-23 & n. 3,
617 A.2d at 707 & n. 3; see also 42 Pa.C.S.
§ 9754(c)(8).
In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).
The Crimes Code, 18 Pa.C.S.A. § 1106, provides, in relevant part, as
follows:
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(a) General rule.--Upon conviction for any crime
wherein property has been stolen, converted or
otherwise unlawfully obtained, or its value
substantially decreased as a direct result of the
crime, or wherein the victim suffered personal
injury directly resulting from the crime, the
offender shall be sentenced to make restitution in
addition to the punishment prescribed therefor.
(b) Condition of probation or parole.--Whenever
restitution has been ordered pursuant to subsection
(a) and the offender has been placed on probation or
parole, his compliance with such order may be made
a condition of such probation or parole.
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current
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
governmental 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 board. 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
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ordered for loss previously
compensated by an insurance
company to the insurance
company.
(ii) If restitution to more than
one person is set at the same
time, the court shall set
priorities of payment. However,
when establishing priorities, the
court shall order payment in the
following order:
(A) The victim.
(B) The Crime Victim’s
Compensation Board.
(C) Any other government
agency which has
provided reimbursement
to the victim as a result of
the defendant’s criminal
conduct.
(D) Any insurance
company which has
provided reimbursement
to the victim as a result of
the defendant’s criminal
conduct.
(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
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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.
(h) Definitions.--As used in this section, the
following words and phrases shall have the meanings
given to them in this subsection:
“Crime.” Any offense punishable under this title or
by a magisterial district judge.
“Injury to property.” Loss of real or personal
property, including negotiable instruments, or
decrease in its value, directly resulting from the
crime.
“Offender.” Any person who has been found guilty
of any crime.
“Personal injury.” Actual bodily harm, including
pregnancy, directly resulting from the crime.
“Property.” Any real or personal property,
including currency and negotiable instruments, of the
victim.
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“Restitution.” The return of the property of the
victim or payments in cash or the equivalent thereof
pursuant to an order of the court.
“Victim.” As defined in section 479.1 of the act of
April 9, 1929 (P.L. 177, No. 175), known as The
Administrative Code of 1929.[Footnote 1] The term
includes the Crime Victim’s Compensation Fund if
compensation has been paid by the Crime Victim’s
Compensation Fund to the victim and any insurance
company that has compensated the victim for loss
under an insurance contract.
[Footnote 1] 71 P.S. § 180-9.1.
18 Pa.C.S.A. § 1106(a)-(c), (h) (emphasis added).
What is abundantly clear from a literal reading of Section 1106 is that
the victim, for purposes of mandatory restitution, is the person who suffered
the injury to property or personal bodily injury as a direct result of the
offender’s actions. Under this reading, the parents in this case are not
entitled to restitution.
The issue created by this case and the reason for this court’s en banc
review is whether, under the Section 1106(h) definition of “victim,” the
phrase “[as] defined in section 479.1 of the act of April 9, 1929 (P.L. 177,
No. 175), known as The Administrative Code of 1929,” broadens the
definition of victim to include one who is not a direct victim of the offender’s
conduct.
Section 479.1 of the Administrative Code of 1929, 71 P.S. § 180-9.1,
was repealed by the Act of November 24, 1998, P.L. 882, No. 111 (Act 111),
§ 5103, effective immediately. The statutory notes to Section 180-9.1 of
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the Administrative Code indicate, “For subject matter of the repealed
sections, see now, 18 P.S. § 11.101 et seq.” 18 P.S. § 11.101 et seq. is
the current codification of the Crimes Victims Act (“CVA”), which defines
“victim” as follows:
“Victim.” The term means the following:
(1) A direct victim.
(2) A parent or legal guardian of a child who is
a direct victim, except when the parent or legal
guardian of the child is the alleged offender.
(3) A minor child who is a material witness to
any of the following crimes and offenses under
18 Pa.C.S. (relating to crimes and offenses)
committed or attempted against a member of
the child’s family:
Chapter 25 (relating to criminal
homicide).
Section 2702 (relating to aggravated
assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim,
including stepbrothers or stepsisters,
stepchildren, stepparents or a fiance, one of
whom is to be identified to receive
communication as provided for in this act,
except where the family member is the alleged
offender.
18 P.S. § 11.103. Consistent with Section 1106, the CVA defines
“direct victim,” in pertinent part, as follows:
“Direct victim.” An individual against whom a
crime has been committed or attempted and who as
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a direct result of the criminal act or attempt suffers
physical or mental injury, death or the loss of
earnings under this act. The term shall not include
the alleged offender.
18 P.S. § 11.103.
Clearly, under the CVA, a parent may be compensated as a
“family member” or as the parent/legal guardian of a minor child in a
representative capacity. The intent of the CVA is to compensate family
members for their loss relative to their relationship to the direct victim. 1
Admittedly, some confusion has occurred because 18 Pa.C.S.A. § 1106
specifically references Section 479.1 of the Administrative Code of 1929,
which is the former codification of the CVA.2 We addressed this issue in
1
Unfortunately, as explained by Ms. Kerlin from the Office of Victims’
Services, Bryan’s parents would not be entitled to compensation because of
his criminal conduct in driving a vehicle while intoxicated. If Bryan had been
a passenger, rather than the driver, his parents would be entitled to
compensation for funeral expenses under the CVA.
2
Similarly, the Sentencing Code, 42 Pa.C.S.A. § 9721, references the
Administrative Code:
(c) Mandatory restitution.--In addition to the
alternatives set forth in subsection (a) of this section
the court shall order the defendant to compensate
the victim of his criminal conduct for the damage or
injury that he sustained. For purposes of this
subsection, the term “victim” shall be as defined in
section 479.1 of the act of April 9, 1929 (P.L. 177,
No. 175), known as The Administrative Code of
1929.
42 Pa.C.S.A. § 9721(c) (footnote omitted). Section 5103 of Act 111
repealed, inter alia, Section 479.1 of the Administrative Code of 1929.
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Commonwealth v. Opperman, 780 A.2d 714 (Pa.Super. 2001), appeal
denied, 792 A.2d 1253 (Pa. 2001). In Opperman, the appellant pled guilty
to driving under the influence (“DUI”) and homicide by vehicle while DUI.
State Farm Mutual Automobile Insurance Company (“State Farm”) sought
restitution for the $45,000 it paid pursuant to the wrongful death and
survival actions, alleging that it was one of the appellant’s victims under
18 Pa.C.S.A. § 1106(h), which defines victim to include “any insurance
company that has compensated the victim for loss under an insurance
contract.” Id. at 717. Prior to the entry of the appellant’s guilty plea,
State Farm entered into a release with the victim’s parents whereby
State Farm agreed to pay the uninsured limits of three separate automobile
insurance policies held by the victim’s mother. Id. The persons who were
to receive payments included the victim’s parents and various attorneys.
Id. The appellant argued that the proceeds by State Farm were direct
payments to third parties, not the victim, pursuant to the insurance
contracts held by the victim’s mother.
This court agreed that the trial court erred in ordering the appellant to
pay restitution to State Farm for the wrongful death action, because the
definition of “victim” under Section 1106 was repealed by the legislature and
no longer includes parents as provided for under the CVA:
As our decision is driven by the definition of a victim,
we are compelled to discuss the application of The
Administrative Code, supra as both 42 Pa.C.S.A.
§ 9721(c) and 18 Pa.C.S.A. § 1106(h) reference it.
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As we have previously indicated, the references to
The Administrative Code were accompanied by
footnotes, which refer the reader to 71 P.S.
§ 180-9.1. This section, which contains The
Administrative Code § 479.1, defines victim as “a
person against whom a crime is being or has been
perpetrated or attempted.” However, this section
was repealed on November 24, 1998, effective
immediately. 1998, Nov. 24, P.L. 882, No. 111,
§ 5103, imd. effective. While we are cognizant of
the fact that the subject matter of 71 P.S. 180-9.0
through 9.11 is now contained in the Crime Victims
Act, 18 P.S. § 11.101 et seq., this statute does not
formally adopt, subsume or recodify the subject
matter. It is also persuasive that 18 Pa.C.S.A.
§ 1106 was amended on December 3, 1998
subsequent to the repeal of 71 P.S. 180-9.1 and yet
continued to incorporate the definition of victim as
found in the Administrative Code of 1929. It would
appear that since 18 Pa.C.S.A. § 1106 was amended
after the effective date of the Crimes Victims Act and
the repeal of the 71 P.S. § 180-9-9.11, the
legislature had the opportunity to include the
definition of victim as contained in the Crime Victims
Act, if they so chose. Having not done so, we are
constrained to find that the definition of victim as
provided for in The Administrative Code of 1929 no
longer exists as the most recent statute
incorporating that definition has been abolished. As
a result, our review of this case is limited to the
definition of victim as it [is] set forth in the Crimes
Code and the Sentencing Code.
Opperman, 780 A.2d at 718-719. This court concluded that the victim’s
parents were not “victims” entitled to restitution under 18 Pa.C.S.A. § 1106
and 42 Pa.C.S.A. § 9721:
While reality dictates that the victim’s parents were,
in fact, victimized when their son was killed by
Appellant’s criminal act, they are not victims as
provided for by our legislature in the Crimes and
Sentencing Codes. Furthermore, while the Crimes
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Code does allow for an insurance company to be
considered a victim, this is only so when it provides
reimbursement to the victim as a result of the
perpetrator’s conduct. 18 Pa.C.S.A.
§ 1106(c)(1)(ii)(D).
Id. at 719-720.
[I]n the case sub judice, the insurance company
paid damages pursuant to insurance contracts held
by the victim’s mother for damages she and her
husband sustained as a result of the victim’s death.
The contract was not with the victim himself. Nor
are the parents’ damages awarded through the
estate, but they are their own damages as a result of
their son’s death. Thus, we agree with Appellant’s
assertion that the monies State Farm attempts to
collect from him were actually tendered to third
parties not contemplated by the definition of victim
in 18 Pa.C.S.A. § 1106 nor 42 Pa.C.S.A. [§] 9721.
Accordingly, it was an error for the trial court to
order Appellant to pay restitution to State Farm.
Id. at 720 (emphasis in original) (footnote omitted). Compare
Commonwealth v. Solomon, 25 A.3d 380, 390-391 (Pa.Super. 2011),
appeal denied, 40 A.3d 1236 (Pa. 2012) (trial court did not err in ordering
defendant to pay restitution under Section 1106 to the complainant rather
than the treating hospital to which the money was owed; “restitution is not
meant to be a reimbursement system to third parties but rather a
compensation system to ‘victims’ as that term is defined by the statute”),
quoting Keenan, 853 A.2d at 384.
Following Opperman’s lead, in Commonwealth v. Langston, 904
A.2d 917 (Pa.Super. 2006), this court determined that the CVA and
18 Pa.C.S.A. § 1106 are separate and distinct statutes, with different
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definitions of who qualifies as a “victim.” In Langston, the defendant’s
pick-up truck crossed the center line and struck Glenn Clark’s vehicle
head-on, killing him and injuring his wife, Annette Clark. The defendant pled
guilty to homicide by vehicle, recklessly endangering another person, and
summary offenses. Id. at 919. At the time of the accident, Mrs. Clark was
pregnant. Id. She gave birth to a healthy son, Michael Clark, while in a
persistent vegetative state. Id. As part of her sentence, the trial court
ordered the defendant to pay restitution in the amount of $20,000 to the
Crime Victim’s Compensation Fund (“the Fund”) for money it paid out to
Michael Clark’s guardians, to be held in trust for Michael Clark. Id. at 920.
Under 18 Pa.C.S.A. § 1106(h), the Fund may be substituted as the “victim”
to receive mandatory restitution where compensation has been paid by
the Fund to the victim as defined by Section 1106. Id. at 922-923.
This court in Langston concluded that while Michael Clark was a
“claimant” entitled to loss of support under Section 11.103 of the CVA
(family member of a homicide victim), he was not a “direct victim” of the
crime entitled to restitution under 18 Pa.C.S.A. § 1106. There was no
evidence that Michael Clark sustained any physical injuries as a result of the
defendant’s conduct. Id. at 923. After analyzing Opperman, this court in
Langston decided that Michael Clark was not a “direct victim” of the crime
entitled to restitution under 18 Pa.C.S.A. § 1106:
Similarly, here, although Michael Clark has been
undoubtedly “victimized” by appellant in the tragic
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loss of his parents, he is not a victim for restitution
purposes as provided by statute. The mandatory
payment of restitution pursuant to Section 1106 of
the Crimes Code is limited to the direct victim and
not to third parties, including family members, who
shoulder the burden of the victim’s losses. Keenan,
supra at 384, citing Commonwealth v. Balisteri,
329 Pa.Super. 148, 478 A.2d 5, 10 (1984);
Opperman, supra.Langston, 904 A.2d at 924. Since the Fund did not make any payments to
the direct victims of the defendant’s crimes, the defendant could not be
required to reimburse the Fund under 18 Pa.C.S.A. § 1106(c)(1)(i). The
CVA and Section 1106 have different definitions of who qualifies as a
“victim”; a “claimant” for purposes of the CVA is not necessarily a “victim” of
the crime entitled to mandatory restitution under Section 1106. Id. at 925.
Langston’s discussion of who is a “victim” under the CVA and
Section 1106 was cited favorably by the Pennsylvania Supreme Court in the
recent case of Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). In Hall,
the court considered whether the trial court could order the defendant to pay
child support for the victim’s children, as a condition of his probation under
42 Pa.C.S.A. § 9754. Section 9754 does not expressly authorize future
financial support to a homicide victim’s surviving minor children, nor would
the victim’s children be considered “direct victims” of the crime under
Section 1106 of the Crimes Code.
Nevertheless, both the dissent below and the
Commonwealth advert to the Crime Victims Act,
noting that the definition of victim in that statute is
much broader than the definition of victim in
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Section 1106, and specifically embraces the child or
children of a homicide victim. 18 P.S. § 11.103.
This is true so far as it goes, but the statute
obviously is of tangential relevance at best. The
Crime Victims Act provides a scheme for protecting
victims’ rights and establishing remedies, such as
compensation from various funds. However,
compensation under the Act is made on the basis of
claims filed by individual victims of crimes and
determined by the Office of Victims’ Services, 18 P.S.
§§ 11.702, 11.704, rather than through
court-ordered restitution by the defendant, although
the amount of victim compensation under the Act
may be reduced by amounts separately paid by the
defendant as restitution. 18 P.S. §§ 11.707(e)(1),
11.1302. Accord Langston, supra (holding that
court-ordered restitution was not supportable
by fact that victim’s son was a
“victim/claimant” for purposes of Crime
Victims Act; reasoning that Section 1106 and
Crime Victims Act are two separate and distinct
statutes, with different purposes and differing
definitions of who qualifies as “victim,” and are
not interchangeable for purposes of defining
proper recipients of restitution).[Footnote 5]
[Footnote 5] We are not persuaded by
the Commonwealth’s suggestion that the
Crime Victims Act specifically authorizes
the Section 9754 restitution in this case
based on the Act’s broad definition of the
term “victim.” In making this argument,
the Commonwealth notes that the
Superior Court’s decision in
[Commonwealth v. Lebarre, 961 A.2d
176 (Pa.Super. 2008)], which approved
Section 1106 restitution for the benefit of
a deceased victim’s child, is at odds with
the en banc court’s decision in this case.
In Lebarre, the three judge panel
concluded that the definition of “victim”
in the Crime Victims Act applies to
Section 1106 restitution, through a
general cross-reference to a repealed
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Administrative Code provision in
18 Pa.C.S. § 1106(h) (defining “victim”
for purposes of restitution by referring to
section 479.1 of Administrative Code of
1929, 71 P.S. § 180–9.1). 961 A.2d at
179 n. 9. The repealed provision
indicates generally that its subject
matter, “which related to rights of and
services for crime victims,” is now
located in the Crime Victims Act, 18 P.S.
§ 11.101 et seq. 71 P.S. § 180-9.1.
To properly decide this case, we need not resolve the
question of the interplay, if any, between the Crime
Victims Act and Section 1106 of the Crimes Code.
As we have already determined, the plain meaning of
Section 9754, which is actually at issue here, allows
for a broader range of “victims” for purposes of
fashioning probationary conditions.
Hall, 80 A.3d at 1214 (emphasis added). Whether considered as dicta or
an integral part of its rationale, the Pennsylvania Supreme Court clearly
recognized with approval Langston’s analysis that the CVA and
Section 1106 are not interchangeable for purposes of determining who
qualifies as a “victim,” but are separate and distinct statutes with different
underlying purposes and legislative rationales. Ultimately, the Hall court
determined that the trial court’s award of $200/month of child support was
speculative and not supported by the record. Id. at 1216-1217.
As this court observed in Opperman, the legislature had the
opportunity to include the definition of “victim” as contained in the CVA, if it
so chose, when it amended Section 1106 on December 3, 1998, subsequent
to the repeal of 71 P.S. § 180-9.1. Opperman, 780 A.2d at 718-719.
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Section 1106 was amended again on November 30, 2004, after this court’s
decision in Opperman. 2004, Nov. 30, P.L. 1618, No. 207, § 3, effective in
60 days (January 31, 2005). The legislature continued to incorporate the
definition of “victim” as found in the Administrative Code of 1929. “The
failure of the General Assembly to change the law which has been
interpreted by the courts creates a presumption that the interpretation was
in accordance with the legislative intent; otherwise the General Assembly
would have changed the law in a subsequent amendment.” Kenney v.
Jeanes Hosp., 769 A.2d 492, 497 (Pa.Super. 2001), appeal denied, 786
A.2d 988 (Pa. 2001), quoting Fonner v. Shandon, Inc., 724 A.2d 903, 906
(Pa. 1999).
We reaffirm our holdings in Opperman and Langston that mandatory
restitution under 18 Pa.C.S.A. § 1106 is limited to the direct victim and not
third parties, including family members. Further, Section 1106(a) of the
Crimes Code and the CVA, 18 P.S. § 11.103, must be read together, in
pari materia, to give effect to the different purposes of the two statutes.
In re Trust Under Deed of Kulig, 131 A.3d 494, 497 (Pa.Super. 2015)
(“Statutory provisions relating to the same subject must be read in
pari materia.”) (citations omitted); Casiano v. Casiano, 815 A.2d 638,
642 (Pa.Super. 2002), appeal denied, 829 A.2d 1156 (Pa. 2003) (“statutes
or parts of statutes that relate to the same persons or things or to the same
class of persons or things are to be construed together, if possible”) (citation
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omitted); In re Peplinski's Estate, 39 A.2d 271, 275 (Pa.Super. 1944)
(“Statutes are to be construed in connection and in harmony with the
existing law, and as a part of a general and uniform system of
jurisprudence.”) (citations and quotation marks omitted). “Moreover,
individual provisions of a statute should not be read in the abstract, but
must be construed with a view to its place in the entire legislative structure
of the [statute].” Casiano, 815 A.2d at 642 (quotation marks and citation
omitted).
This interpretation is completely consistent with the statutory
framework of both Section 1106 and the CVA. Both Section 1106 and the
CVA consistently define direct victim as the person directly injured by the
offender’s actions. While the facts of this case are tragic and Joseph and
Laura Nave undoubtedly have suffered a grave loss and been victimized by
appellant’s actions, they are not victims as provided for by our legislature in
the Crimes and Sentencing Codes. As such, we are constrained to conclude
that the trial court erred, as a matter of law, when it ordered appellant to
pay restitution to the victim’s parents as part of her sentence under
18 Pa.C.S.A. § 1106. This resulted in an illegal sentence. Nor are we
inclined to unnecessarily broaden the legislature’s clear definition of a victim
entitled to restitution under 18 Pa.C.S.A. § 1106.
Since we determine that the victim’s parents were not themselves
“victims” for purposes of 18 Pa.C.S.A. § 1106, it is unnecessary to address
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appellant’s argument that the victim’s death was not directly caused by her
criminal actions. In addition, it is unnecessary to address appellant’s
argument that the trial court should have apportioned damages, as she was
not the sole cause of the accident.
We also observe that appellant was sentenced to two years’ probation
on November 6, 2012. Appellant’s probationary term should have expired
on or about November 6, 2014. When appellant’s probationary period
expired, the trial court lost the authority to impose conditions of probation,
including restitution. Commonwealth v. Karth, 994 A.2d 606, 610
(Pa.Super. 2010) (“Once the term of probation expires, so, too, must any
conditions attached thereto.”). As there is no indication that appellant is still
serving her sentence, remand would be pointless. Cf. Commonwealth v.
Popow, 844 A.2d 13, 20 (Pa.Super. 2004) (vacating the judgment of
sentence and remanding for resentencing where the trial court improperly
ordered restitution as part of the appellant’s sentence under 18 Pa.C.S.A.
§ 1106(a), but restitution could be ordered as a condition of probation under
42 Pa.C.S.A. § 9754(c)(8)).
For these reasons, we would reverse the order of January 21, 2014,
denying appellant’s motion for reconsideration, and vacate that part of
appellant’s sentence ordering restitution in the amount of $12,794.50 to the
victim’s parents, Joseph and Laura Nave.
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J. E01007/16
Bender, P.J.E., Lazarus and Ott, JJ. join this Opinion in Support of
Reversal.
Mundy, J. did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2017
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