Com. v. Holmes, N.

J-E01007-16
2017 PA Super 2COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMA JEAN HOLMES
Appellant No. 305 MDA 2014
Appeal from the Order Entered January 21, 2014
In the Court of Common Pleas of 39th District
Fulton County Branch
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 AFFIRMANCE BY STABILE, J.:FILED JANUARY 04, 2017
Appellant Norma Jean Holmes appeals from the order entered January
21, 2014 in the Court of Common Pleas of the 39th Judicial District, Fulton
County Branch (“trial court”), affirming a prior order denying Appellant’s
request to modify the amount of restitution imposed at sentencing.
Appellant entered a plea of nolo contendere to one count of recklessly
endangering another person (“REAP”) in connection with the death of the
victim, Bryan S. Nave. The trial court ordered Appellant to pay restitution to
the victim’s parents, Joseph and Laura Nave, in the amount of $12,794.50,
for the victim’s funeral expenses. Upon review, we affirm in part and vacate
in part.
The facts and procedural history underlying this case are not in
dispute. In the early morning hours of November 20, 2011, Appellant and
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the victim left the Log Cabin Bar in Hancock, Maryland. The victim was
driving Appellant’s vehicle, with her permission. Both the victim and
Appellant had been drinking heavily that night. They were returning home
to Greencastle, Pennsylvania, when the victim lost control of the vehicle on
State Route 70, westbound. The victim was killed in the single-vehicle
accident; Appellant, who was asleep in the passenger seat, survived the
crash.
Appellant was charged with one count of REAP1 and two summary
counts of Permitting Violation of Title.2 On October 9, 2012, Appellant pled
nolo contendere to the charge of REAP and the Commonwealth nolle prossed
the remaining charges. Appellant appeared for sentencing on November 5,
2012, before the Honorable Douglas W. Herman. At sentencing, defense
counsel remarked that there was no agreement as to restitution. N.T.,
Hearing, 11/5/12, at 5. The trial court stated, “[b]ut we will put the
amounts in the restitution order, and that’s the starting point for it and then,
Mr. Keller, I think the procedure is for you to request a hearing at some
point.” Id. The trial court imposed a sentence of two years’ probation, plus
costs and restitution:
You’re placed on probation for a period of 24 months, pay the
court costs, pay $200 to the Fulton County Law Library. You’ll
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1
18 Pa.C.S.A. § 2705.
2
75 Pa.C.S.A. § 1575(a) (permitting reckless driving and permitting
unlicensed operation).
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undergo a drug and alcohol assessment and following any
recommendations for treatment, 50 hours of community service.
You may not consume alcohol or any controlled substance and
you’ll [be] subject to random testing to insure compliance with
that condition. You’ll pay the restitution as determined by the
district attorney and, of course, there’s an issue with that that
the courts with [sic] deal with at some point, and finally you
have a supervision fee of $25 per month to defray the cost of
the supervision that the court has ordered in this case.
Id. at 9-10.
The November 6, 2012 sentencing order, under “Financials,” provided
that Appellant shall pay all court costs, a $25 per month supervision fee, and
restitution as determined by the district attorney in the amount of
$12,794.503 to the victim’s parents, Joseph and Laura Nave. (Docket #21.)
On July 31, 2013, Appellant filed a “motion for restitution hearing,” arguing
that restitution was improper where the victim’s death was caused by his
own criminal conduct of driving under the influence of alcohol. The
Commonwealth filed an answer on August 14, 2013, responding that
Appellant’s recklessness in allowing the victim to drive her car caused the
victim’s death, and that the victim’s parents, as his personal
representatives, stand in his shoes as victims pursuant to 18 Pa.C.S.A.
§ 1106(h).4 (Docket #19.)
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3
This amount represented a funeral bill of $11,134.00 and a monument bill
of $1,660.50.
4
In this case, there was no estate raised for Bryan Nave. The record
indicates that the victim’s parents paid for his funeral expenses
out-of-pocket.
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On September 16, 2013, the parties filed a “stipulation of facts in lieu
of hearing,” which set forth the operative facts as follows:
1. [Appellant] Norma Jean Holmes and Bryan S. Nave, sui
juris adults, agreed that he would pick her up at her home
in Greencastle, Pennsylvania on November 19, 2011 to go
together to the Log Cabin in Hancock, Maryland.
2. Mr. Nave drove his vehicle to Greencastle, where it
became inoperable and [Appellant] allowed him thereafter
to drive her car. Both Mr. Nave and [Appellant] consumed
alcoholic beverages on the night of November 19,
2011/early morning of November 20, 2011. The attached
handwritten statement of [Appellant] on Pennsylvania
State Police Victim/Witness Statement Form, dated
12/21/11 and the attached two page handwritten
statement of [Appellant] on Pennsylvania State Police
Noncustodial Written Statement Form dated 12/21/11 may
be considered as her testimony.
3. After they got into her vehicle at the Log Cabin,
[Appellant] fell asleep and Mr. Nave apparently drove
westbound on SR 70 instead of eastbound which would
have taken him in the direction of Greencastle.
4. Mr. Nave crashed the vehicle along the left lane of SR 70
westbound and died as a result of his injuries, while
[Appellant] suffered bodily injury which resulted in her
transport to and treatment in Conemaugh Hospital in
Johnstown, Pennsylvania.
5. The claim for restitution[,] set forth by the Commonwealth
at sentencing, is in keeping with the letter by Fulton
County Victim Services Coordinator Carolyn Kerlin, which
is attached hereto.
“Stipulation of facts in lieu of hearing,” 9/16/13 at 1-2; Docket #17
(reformatted for ease of reading).
Appellant’s statements to police, attached to the stipulation of facts,
are as follows:
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Bryan Nave asked me out. After convincing me (was opposed
because of his age) I finally agreed to go with him (Bryan) to the
Log Cabin in Hancock, MD. I told Bryan the only stipulation was
he (Bryan) had to pick me up at home. Bryan said “no
problem!” Bryan arrived approx. 8:10-8:15 [p.m.] on 11-19-11.
I had to stop at my local Legion to let a friend know I wouldn’t
be there that evening, that my plans changed! Bryan and I went
to [Greencastle] Legion for one drink. Bryan and I left [the]
Legion and went to [the] gas station. Got gas, Bryan wanted
liquor for [the] ride to [the] Log Cabin so I directed Bryan to
[the] liquor store. Bryan and I left [the] liquor store and headed
to [the] Log Cabin. Bryan and I drank, talked, and danced that
evening. I was tired so I asked Bryan if Bryan was ready to
leave (approx. 1 AM 11-20-11). Bryan said yes. Bryan and I
got into my car (Bryan still driving). I layed [sic] my seat back
and went to sleep. I woke up after [the] accident. I found my
way out of my car, flagged down help. I remember being in and
out of [sic]. I briefly remember [the] ride in [the] ambulance. I
remember hearing [the] rotors of [the] helicopter and then woke
up in [the] hospital when they were cutting my clothes off. I
found out that after noon that Bryan didn’t make it.
Pennsylvania State Police Victim/Witness Statement Form, 12/21/11 at 1.
Bryan Nave met [Appellant] and went to Greencastle Legion. He
had (1) beer believes Budweiser. Bryan drove [Appellant’s] car
to Sheetz in Greencastle. He then drove the car to [the] liquor
store. He bought a pt. of Cpt. Morgan. [Appellant] made Bryan
and herself a mixed drink in the car. They then went to the Log
Cabin in Hancock. Bryan bought all the drinks that night. He
drank approx. 10+ drinks. [Appellant] thinks she drank 6-7
mixed drinks. [Appellant] told Bryan that she don’t [sic] drink
and drive because she has a CDL [(Commercial Driver’s
License)] and she don’t [sic] want to lose them. Bryan drank (3)
straight shots of whiskey back to back. [Appellant] related she
believes they left [the] bar around 0100 hours due to the time of
the accident. [Appellant] related she got into the passenger seat
and went to sleep.
Pennsylvania State Police Noncustodial Written Statement, 12/21/11 at 2.
In a letter dated October 26, 2012, Carolyn Kerlin, Victim Services
Coordinator, opined that Appellant’s actions of permitting the victim to drive
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her vehicle knowing that he had consumed at least ten drinks caused the
victim’s death and that Appellant should be required to make restitution to
the victim’s parents for funeral expenses. However, Ms. Kerlin
acknowledged that if a victim’s compensation claim were filed, it would likely
be viewed as a DUI case for purposes of determining the victim’s eligibility
for compensation: “If the victim was driving, or the evidence seems to
support that he was, then the claim would be denied since he was driving a
vehicle while intoxicated, which is against the law and directly caused his
death.”
By order entered October 29, 2013, the trial court denied Appellant’s
request to modify the restitution award. (Docket #14.) The trial court
found that restitution was appropriate both as a condition of Appellant’s
probation under 42 Pa.C.S.A. § 9754(c)(8) of the Sentencing Code, and as
part of her sentence under 18 Pa.C.S.A. § 1106(a) of the Crimes Code,
which provides for mandatory restitution where a defendant’s actions
directly resulted in personal injury to the victim:
In light of these two standards for imposing restitution, we
believe that both have been satisfied. In regards to the “direct
causation” standard, we find that the reckless endangerment of
Bryan Nave directly resulted in his death. Therefore, the funeral
costs which were imposed as restitution were the direct result of
[Appellant’s] engaging in reckless conduct which placed Mr. Nave
in danger of death. Additionally, a sentence of probation was
imposed. Even if the sentence of probation did not rise to the
level of direct causation, the restitution would easily fall under
the standard of restitution as a condition of [Appellant’s]
probation.
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Order, 10/29/13 at 2.
On November 21, 2013, Appellant filed an application for
reconsideration, arguing that the record did not support a finding that
restitution was ordered as a condition of probation. Even if it had been,
Appellant argued, the trial court failed to inquire into Appellant’s ability to
pay, as required by 42 Pa.C.S.A. § 9754. According to Appellant, restitution
was imposed under 18 Pa.C.S.A. § 1106(a), which is improper when the
victim’s injuries are an indirect, rather than direct, result of the defendant’s
criminal actions. Appellant contended that her actions were not the sole or
direct cause of the victim’s death, where he was driving under the influence
of alcohol at the time of the fatal accident. Furthermore, Appellant argued
that even if restitution was appropriate under 18 Pa.C.S.A. § 1106(a), the
trial court was required to apportion damages where Appellant’s actions
were not the sole cause of the victim’s injuries. (Docket #13.)
On November 22, 2013, Appellant filed a notice of appeal from the
trial court’s October 29, 2013 order denying Appellant’s request to modify
restitution. (Docket #12.) On November 26, 2013, the trial court granted
Appellant’s application for reconsideration and ordered that all appeal
proceedings be stayed pending reconsideration of its October 29, 2013
order. (Docket #11.) On January 21, 2014, following receipt of the
Commonwealth’s response, Appellant’s application for reconsideration was
denied. (Docket #8.) In its January 21, 2014 order, the trial court
reiterated that the record fully supported restitution under 18 Pa.C.S.A.
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§ 1106(a); however, the trial court stated that restitution was imposed as a
condition of Appellant’s probation under 42 Pa.C.S.A. § 9754.
[Appellant] argues that the [c]ourt’s sentencing Order of
November 6, 2012 did not make restitution a condition of
probation. The Commonwealth appears to support this
contention, however, the [c]ourt strongly disagrees with both
the Commonwealth and [Appellant]. After review of the Order of
November 6, 2012, we conclude that Order specifically calls for a
24 month sentence of probation and language requiring
[Appellant] to pay restitution in the amount of $12,794.50 to
Joseph and Laura Nave. It is of no consequence that the
directive to pay restitution did [not] fit into the special conditions
section of the formatted sentencing order. The Order clearly
directs restitution as a condition of probation.
Order, 1/21/14 at 2, ¶4. In addition, the trial court opined that Appellant’s
ability to pay can be assessed at any time, by the court sua sponte, or on
Appellant’s own motion. Id. at 3, ¶ 5. The trial court also found this issue
to be waived, as it was not raised previously. Id. The trial court advised
Appellant that she had 30 days to appeal the ruling.
Appellant filed a notice of appeal on February 18, 2014. (Docket #7.)
On February 25, 2014, Appellant was ordered to file a concise statement of
errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b); Appellant complied on March 17, 2014, and on April 28,
2014, the trial court filed a Rule 1925(a) opinion. The trial court opined that
restitution was appropriate under 18 Pa.C.S.A. § 1106(a) because the loss
was the direct result of Appellant’s criminal actions. Trial Court Opinion,
4/28/14 at 3. The trial court stated that “[a]s a direct result of [Appellant’s]
conscious disregard of the known risk of death or great bodily harm caused
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by driving while under the influence, the victim died.” Id. The trial court
also found that the victim’s conduct in driving while under the influence of
alcohol was not an intervening cause of his death. Id. However, the trial
court insisted that, “[f]rom the sentencing hearing of November 5, 2012, it
is clear that restitution was a condition of probation.” Id. at 5. The trial
court observed that when restitution is imposed as a condition of probation,
rather than as a direct sentence under the Crimes Code, an indirect
connection between the criminal activity and the victim’s loss is sufficient.
Id. at 4-5 (citing Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.
Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007)). With regard to
Appellant’s ability to pay, the trial court determined that a defendant’s ability
to pay costs, fines, or restitution does not need to be assessed prior to
sentencing.
The court only needs to assess a defendant’s ability to pay costs,
fines, or restitution in the event that the defendant will be
confined for failure to pay said costs, fines, or restitution.
Because [Appellant] is not in danger of confinement, there was
no error when the Court did not address [Appellant’s] ability to
pay restitution.
Id. at 5 (citing Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super.
2013), appeal denied, 70 A.3d 808 (Pa. 2013); Pa.R.Crim.P. 706).
Appellant raised the following issues on appeal:
1. Did the court err by finding that restitution was imposed as
a condition of probation and applying an indirect causation
standard under 42 Pa.C.S. § 9754(c)(8) when the
sentencing proceedings did not indicate that it was a
condition of probation and the court did not make a
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determination regarding what loss had been caused by
[Appellant] and/or the amount [Appellant] could afford to
pay?
2. If restitution was ordered as a condition of probation, did
the court err by failing to make a determination under 42
Pa.C.S. § 9754(c)(8) regarding the loss or damage caused
by [Appellant] or assess [Appellant’s] ability to pay
restitution?
3. Did the court err by finding that restitution was proper as a
direct sentence under 18 Pa.C.S. § 1106 when the funeral
and memorial costs for the victim, on which the restitution
was based, were not the direct result of [Appellant’s]
reckless endangerment of the victim and [Appellant] was
not held criminally liable for causing the accident in which
the victim was killed?
4. Did the court err when it failed to consider the extent of
the victim’s injury and the damage caused by [Appellant’s]
conduct and to apportion restitution when [Appellant’s]
actions were not the sole cause of the victim’s injuries?
Appellant’s Brief at 8-9.
This Court certified this case for en banc review to address the
following issue: “Whether parents may be considered ‘victims’ for purposes
of determining restitution under 18 Pa.C.S.A. § 1106(a)?” The parties have
filed supplemental briefs addressing this issue.
Initially, we must address a procedural matter. Appellant was
sentenced on November 5, 2012, but did not request modification of
restitution until July 31, 2013, nearly nine months later. Ordinarily, of
course, post-sentence motions must be filed no later than 10 days after
imposition of sentence. Pa.R.Crim.P. 720(A)(1). However, a motion
requesting modification of restitution is not considered a typical
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post-sentence motion subject to timeliness constraints. See
Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (citing
18 Pa.C.S.A. § 1106(c)(3) (a defendant may seek a modification or
amendment of the restitution order at any time directly from the trial
court)).
Following the trial court’s October 29, 2013 denial of modification,
Appellant filed a motion for reconsideration on November 21, 2013, 23 days
later. It is unclear whether the November 21 filing was timely, as it would
not appear to fall under Pa.R.Crim.P. 720. Appellant also filed a notice of
appeal from the October 29, 2013 order on November 22, 2013. The trial
court granted reconsideration on November 26, 2013, within 30 days of the
October 29, 2013 order, apparently for purposes of permitting the
Commonwealth to file an answer. 42 Pa.C.S.A. § 5505 (“a court upon notice
to the parties may modify or rescind any order within 30 days after its entry
. . . if no appeal from such an order has been taken or allowed.”);
PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007)
(“Under section 5505, the trial court has broad discretion to modify or
rescind an order, and this power may be exercised sua sponte or invoked
pursuant to a party’s motion for reconsideration.”) (citation omitted);
Pa.R.A.P. 1701 (tolling the time for taking an appeal only when the court
files “an order expressly granting reconsideration . . . within the time
prescribed by these rules for the filing of a notice of appeal.”). The trial
court also ordered that the appeal be stayed pending reconsideration. The
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November 22, 2013 appeal was later stricken pursuant to Pa.R.A.P. 1701 (“A
timely order granting reconsideration under this paragraph shall render
inoperative any such notice of appeal or petition for review of a quasijudicial
order theretofore or thereafter filed or docketed with respect to the prior
order.”).
On January 24, 2014, the trial court denied reconsideration and
informed Appellant of her rights pursuant to Pa.R.Crim.P. 720 and
Pa.R.A.P. 903(a), including that she had 30 days to file a timely appeal. See
Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989) (citing
Pa.R.A.P. 1701(b)(3)(ii) (where the court expressly grants reconsideration
within 30 days, the time for filing a notice of appeal begins to run anew after
entry of the decision on reconsideration, regardless of whether or not the
court’s decision amounts to a reaffirmation of its prior determination)).
Thus, Appellant timely appealed to this Court.
We now proceed to the issues raised on appeal. First, we consider
whether restitution was proper under Section 1106(a) of the Crimes Code.
Initially, we note that
[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.
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[]Stradley, 50 A.3d [at] 771-72 . . . (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
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
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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).
Section 1106 of the Crimes Code provides in relevant part:
(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
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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 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 other matters
as it deems appropriate.
(ii) May order restitution in a
lump sum, by monthly
installments or according to
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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.
“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.[FN: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
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company that has compensated the victim for loss under an
insurance contract.
[FN:1] 71 P.S. § 180-9.1.
18 Pa.C.S.A. § 1106(a)-(c), (h).
As noted in subsection (h) above, the term “Victim” is defined as
provided under Section 479.1 of the Administrative Code of 1929. Section
479.1, however, was repealed in 1998 by Act 111,5 the Crime Victims Act
(“CVA”). Prior to its repeal, Section 479.1 defined “victim” as:
(1) A person against whom a crime is being or has been
perpetrated or attempted.
(2) A parent or legal guardian of a child so victimized, except
when the parent or legal guardian of the child is the alleged
offender.
(3) 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.
See Commonwealth. v. Colon, 708 A.2d 1279 (Pa. Super. 1998).
Section 5102 of the CVA (Act 111), 18 P.S. § 11.5102, provides that the “act
is a codification of the statutory provisions repealed in [S]ection 5103 and,
except where clearly different from current law, shall be deemed to be a
continuation of prior law.” (Emphasis added). Section 51036 of the CVA
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5
Act of November 24, 1998, P.L. 882, No. 111, § 5103.
6
The text of Section 5103 does not appear in Purdon’s Pennsylvania
Statutes. Resort must be made to the text of the public law, Act No. 1998-
111, for the text of this statute that identifies section 479.1 as one of the
statutes repealed at the time Act 111 was enacted.
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repealed, inter alia, Section 479.1 of the Administrative Code of 1929. Thus,
at the time Section 479.1 was repealed, the legislature concomitantly
enacted Section 5102, which, as stated, continued all consistent provisions
of the prior law. This legislative provision is also in accord with Section 1962
of the Statutory Construction Act, 1 Pa.C.S.A. § 1962, that provides,
“[w]henever a statute is repealed and its provisions are at the same time
reenacted in the same or substantially the same terms by the repealing
statute, the earlier statute shall be construed as continued in active
operation.” (Emphasis added).
Act 111, passed in 1998, deemed by Section 5102 to be a continuation
of the consistent provisions of the prior law, including Section 479.1, is the
current CVA. “Victim” under the CVA is defined as:
(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
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communication as provided for in this act, except where the
family member is the alleged offender.
18 P.S. § 11.103. A comparison of the “victim” definitions under the now-
repealed Section 479.1 and the current CVA reveals that they are consistent
with each other and that the current CVA includes the same or substantially
the same terms for the definition of “victim” as previously contained under
Section 479.1. Therefore, as a matter of law and statutory construction, the
current definition of “victim” under the CVA is, as intended, a part of the
definition of “victim” under Section 1106(h). Having resolved what
definitions apply to the term “victim” under Section 1106, the question as to
whether the parents here are victims for purposes of ordering restitution
under Section 1106(a) can now be addressed.
Section 1106(h) by incorporation of the CVA, defines a “victim”, in
part, as “[a] parent or legal guardian of a child who was a direct victim. . . .”
18 Pa.C.S.A. § 11.103. There is no dispute that the restitution ordered by
the trial court was to compensate the parents of the victim, their child, in
this case. Section 1106(a) provides “upon conviction for any crime . . .
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.” 18 Pa.C.S.A. § 1106(a). Thus, we easily
conclude that restitution under Section 1106(a) had to be ordered as a part
of the sentence imposed upon Appellant to be paid to the parents of the
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victim here.7 Construing Section 1106(a) in this manner not only is
consistent with the express incorporation by reference of the definitions
under Section 1106(h), but also is consistent with our obligation under
Section 1921(a) of the Statutory Construction Act, 1 Pa.C.S.A. § 1921(a), to
construe statutes to effectuate the intention of the General Assembly. It is
abundantly clear that the expressed intent behind Section 1106(a) is to fully
compensate victims for losses sustained as a direct result of the actions of a
criminal offender. Moreover, this construction is consistent with those parts
____________________________________________
7
It cannot be disputed that reference to a “child” under the definition of
“victim” in the CVA applies equally to adult and minor children alike. The
term “child”, as defined in Section 11.103 of the CVA, is not preceded by any
qualifying adjectives. This is not a mere oversight by the General Assembly,
because a different provision in the same section of the CVA defines “victim”
as “[a] minor child who is a material witness to any of the following crimes
and offenses[.]” 18 P.S. § 11.103 (emphasis added). Thus, the General
Assembly clearly chose to qualify the term “child” with the adjective “minor”
in one subsection of Section 11.103 of the CVA but not the other. A
presumption exists that the legislature placed every word, sentence and
provision in the statute for some purpose and therefore, courts must give
effect to every word. Commonwealth v. Ostrosky, 909 A.2d 1224, 1232
(Pa. 2006). Accordingly, the term “child” when it is not preceded by a
qualifying adjective in Section 11.103 applies to both minors and adults.
See Pa.C.S.A. § 1922(2) (“the General Assembly intends the entire statute
to be effective and certain.”). Additionally, construing the term “child” as
not including adult children would be inconsistent with case law that has
interpreted the term “child” to include parents of adult children who are
victims. See, e.g., Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.
Super. 1997) (approving restitution to a victim’s parents for funeral
expenses), appeal denied, 699 A.2d 735 (Pa. 1997).
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of the CVA that may be read in pari materia with Section 1106,8 expressly
providing that victims should be restored through provision of restitution,
and that any person who assumes the obligation to pay for the funeral or
burial expenses as a direct result of a crime be compensated. See 18 P.S.
§§ 11.201(6) and 11.701(a)(6).
The Opinion in Support of Reversal (“OISR”) errs by focusing on that
part of the CVA definition of “victim” that includes “a direct victim,” as
opposed to that part of the definition most applicable here that includes “a
parent or legal guardian of a child who was a direct victim . . . .” The OISR
reaches this position by transposing the adjective “direct” under Section
1106(a) from a modifier of an offender’s criminal conduct to a modifier of
the term “victim.” The OISR concedes that it is abundantly clear from a
literal reading of Section 1106 that the victim, for purposes of mandatory
restitution, is a person “who suffered personal bodily injury as a direct
result of an offender’s action.” OISR at 7 (emphasis added). Yet, the
OISR then states the issue is whether under Section 1106(h) the definition
____________________________________________
8
In Commonwealth v. Langston, 904 A.2d 917 (Pa. Super. 2006), we
pointed out that the CVA and Section 1106 are separate and distinct statutes
with different purposes and definitions and are not interchangeable for
purposes of defining recipients of restitution. We disagree with this
characterization because it is an an overly broad generalization of the
statutes. To the extent parts of the statutes relate to the same things, they
are to be construed together as one statute, if possible. 1 Pa.C.S.A. § 1932.
Both statutes express an intent that parents who have to pay for funeral
expenses as a direct result of another’s criminal actions are to be
compensated.
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of victim is broadened to include the parents here as “one who is not a
direct victim of the offender’s conduct.” Id. (emphasis added). This subtle
transposition by the OISR removes the statutory focus of “direct” from the
criminal action that results in mandatory restitution and places the focus of
the modifier “direct” upon the victim. Had the legislature intended only to
compensate a “direct victim,” it clearly could have done so. Instead, the
legislature determined that several categories of victims, as defined under
the CVA, should be compensated if their loss directly results from
criminal action. Rather than focusing on the victim, restitution under
Section 1106(a) applies where there has been a loss “that flows from the
conduct which forms the basis of the crime for which a defendant is held
criminally accountable.” Yanoff, 690 A.2d at 266 (Pa. Super. 1997) (citing
Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992)). Restitution
under Section 1106 for a loss suffered by a victim must be directly
connected to the offender’s criminal conduct, as opposed to only providing
restitution to the victim himself as a “direct victim.” It would make little
sense given the purpose of this restitution statute to narrow the scope of
victims to only “direct victims” as done by the OISR, when the purpose of
this restitution statute is to be certain that an offender makes full restitution
for all direct losses resulting from his crime. This purpose is not fulfilled by
limiting mandatory restitution to only a “direct victim” when other persons
defined as “victims” by the legislature, like the parents here, also suffer
losses as a direct result of an offender’s criminal action.
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Furthermore, we reject Appellant’s argument that restitution could not
be ordered under Section 1106(a) because her conduct was not the direct
cause of the victim’s death. As stated, our Supreme Court has held that
Section 1106(a) “applies only for those crimes to property or person where
there has been a loss that flows from the conduct which forms the basis of
the crime for which a defendant is held criminally accountable.” Harner,
617 A.2d at 706. To determine the correct amount of restitution, a “but-for”
test is used—damages which occur as a result of the crime are those which
should not have occurred but for the defendant’s criminal conduct.
Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. 2006), appeal
denied, 918 A.2d 744 (Pa. 2007). Thus, there must be a direct link between
the crime and the requested damages for restitution to be ordered under
Section 1106(a). See Commonwealth v. Barger, 956 A.2d 458, 465 (Pa.
Super. 2008) (en banc), appeal denied, 980 A.2d 109 (Pa. 2009); see also
Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007)
(explaining that restitution ordered under Section 1106 is “proper only if
there is a direct causal connection between the crime and the loss”), appeal
denied, 934 A.2d 72 (Pa. 2007). As the undisputed facts in this case
establish, Appellant pled guilty to REAP under Section 2705 of the Crimes
Code in connection with the victim’s death.
We have held that a person is guilty of this crime when it is
shown that the person (1) possessed “a mens rea recklessness,”
(2) committed a wrongful deed or guilty act (“actus reus”), and
(3) created by such wrongful deed the danger of death or
serious bodily injury to another person. The element of “mens
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rea recklessness” has been defined as a conscious disregard of a
known risk of death or great bodily harm to another person.
“Serious bodily injury” is defined as bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ. We have further held that
Section 2705 was directed against reckless conduct entailing a
serious risk to life or limb out of proportion to any utility the
conduct might have had. Finally, the perpetrator must create an
actual condition of danger, not merely an apprehension of
danger.
Commonwealth. v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)
(internal citations and quotation marks omitted). As the trial court found
sub judice:
In the instant matter, [Appellant] recklessly endangered the
victim by allowing the victim to drive [Appellant’s] vehicle after
[the victim had] consum[ed] numerous alcoholic beverages.
Recklessness is defined as a conscious disregard of a known risk
of death or great bodily harm to another person. Because
[Appellant] knew that the victim had consumed numerous
alcoholic beverages, she disregarded a known risk of death or
great bodily harm to the victim by allowing him to drive while
intoxicated. As a direct result of her conscious disregard of the
known risk of death or great bodily harm caused by driving while
under the influence, the victim died. Therefore, the loss in the
instant matter, the funeral costs and expenses of the victim,
were the direct result of [Appellant’s] reckless endangerment of
another person.
Trial Court Opinion, 4/28/14, at 3 (internal citations omitted). Based on the
evidence of record, we discern no error in the trial court’s imposition of
restitution under Section 1106(a) because the victim’s death was the direct
result of Appellant’s criminal conduct (REAP). Put differently, but for
Appellant’s criminal conduct of allowing the victim to drive her vehicle while
under the influence of alcohol, the victim would not have died. See Oree,
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supra. Accordingly, the trial court did not err to the extent it ordered
restitution under Section 1106(a) for the victim’s funeral costs and expenses
paid by his parents.
The conclusion that the parents are entitled to restitution for funeral
expenses directly resulting from the death of a son because of Appellant’s
criminal conduct in fact was settled prior to the repeal of Section 479.1 and
the concomitant enactment of Act 111, the CVA, in 1998. In Yanoff, the
trial court ordered the defendant to make restitution to the parents of the
victim in the amount of $6,396.00 for funeral expenses incurred as a result
of the defendant’s conviction of third-degree murder and aggravated assault
of their son. Restitution was ordered for funeral expenses because the
parents’ loss flowed from the defendant’s conduct for which he was
held criminally accountable. Yanoff, 690 A.2d at 266. At the time
Yanoff was decided, restitution as a part of a sentence under Section
1106(a) was not mandatory as it is today. In 1998, the legislature amended
the reference from “may” to “shall” to make restitution mandatory. The
remainder of Section 1106(a) remained unchanged. Had this case been
decided prior to the repeal of Section 479.1 in 1998, there is little doubt that
precedent would have supported mandatory restitution to the parents in this
case. The OISR reaches a different conclusion today based upon this Court’s
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decisions in Opperman9 and Langston that viewed the repeal of Section
479.1 as eliminating the definition of “victim” under the CVA from Section
1106.
Opperman reached the conclusion that the definition of “victim” as
provided for under Section 479.1 of the Administrative Code of 1929 no
longer exists because the legislature failed to continue to incorporate that
definition under Section 1106 when it was amended in 1998.10 This was in
error. The Opperman Court explained:
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
____________________________________________
9
Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. 2001), appeal
denied, 792 A.2d 1253 (Pa. 2001).
10
Curiously, the OSIR relies upon the definitions under the CVA to reaffirm
Opperman and Langston that expressly hold that the definitions under the
CVA do not apply to Section 1106 of the Crimes Code.
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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.
Id. 780 A.2d at 718-719. Opperman’s conclusion that the definition of
“victim” under Section 479.1 of the Administrative Code of 1929 was no
longer a part of Section 1106, was premised entirely upon the language of
the historical and statutory notes in the repealer to Section 5103 of Act 111
that simply refers the reader for the subject matter of the repealed section
to 18 P.S. § 11.101 et seq., the CVA concomitantly enacted in 1998. For
whatever reason, the Opperman Court failed to take notice of Section 5102
of the CVA, which as stated, provides that except where clearly different
from current law, the statutory provisions repealed under Section 5103 shall
be deemed to be a continuation of prior law. The repealed provisions under
Section 5103 contained the definitions under Section 479.1 of the
Administrative Code of 1929, which also as stated, contained the multi-part
definition for the term “victim” that is the same or substantially the same as
that contained in the CVA. Thus, Opperman was incorrectly decided due to
its oversight of these important legislative provisions.
Langston, relying upon Opperman’s holding that an insurance
company that paid damages under insurance contracts held by a victim’s
mother did not qualify as a victim under Section 1106, concluded that a child
victimized by a defendant in the tragic loss of his parents was not a victim
for restitution purposes under Section 1106. Langston did not discuss, like
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Opperman, the relationship between the definitions of “victim” under the
CVA and Section 1106 as affected by the various repealer and enactment
provisions discussed above. Langston instead simply relied upon the legal
conclusion reached in Opperman. Nonetheless, to the extent that
Langston is dependent upon Opperman’s legislative analysis, we conclude
that Langston too was decided in error.
The OISR is mistaken insofar as it claims that our Supreme Court’s
citation to Langston in the recent case of Commonwealth v. Hall, 80 A.3d
1204 (Pa. 2013), sufficiently lends support to the statutory interpretation
question presently before us. In Langston, this Court stated that the CVA
and Section 1106 are two separate and distinct statutes with different
purposes and definitions of who qualifies as a “victim,” and are not
interchangeable for purposes of defining recipients of restitution. Hall held
that compensation paid under the CVA is made on the basis of claims filed
by individual victims as determined by the Office of Victim Services rather
than through court-ordered restitution by a defendant. The Supreme Court
cited Langston in support of this statement and parenthetically summarized
Langston’s holding as above described. The Supreme Court’s citation of
Langston was in support of the point made that compensation and
restitution are handled differently under the CVA and Section 1106. It did
not decide the statutory interpretive question presently before us despite the
Commonwealth’s argument to the Court that the Superior Court’s decision in
Commonwealth v. Lebarre, 961 A.2d 176 (Pa. Super. 2008), which found
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that restitution was properly ordered to a child’s estate under Section 1106,
was at odds with the Superior Court’s en banc decision in Hall. In refusing
to address this alleged inconsistency, the Supreme Court stated:
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.2d at n.5. Thus, as of 2013, the Supreme Court reserved
decision on the interplay between Section 1106 and the CVA for purposes of
defining “victims” under those statutes. In light of Opperman’s and
Langston’s omission to recognize the effect of Section 5102 and to apply
the “victim” definitions under the CVA to Section 1106, we conclude that
Opperman and Langston were decided wrongly. Consequently, we hold
that the definition of “victim” under the CVA is indeed applicable to Section
1106 of the Crimes Code. We, unlike the OSIR, therefore decline to reaffirm
those decisions.
Because we find restitution had to be ordered under Section 1106(a),
we need not reach the question as to whether the trial court erred in failing
first to determine Appellant’s ability to pay restitution under Section 9754 of
the Sentencing Code, 42 Pa.C.S.A. § 9754, which permits restitution to be
imposed as a condition of probation. If we were to reach this question, we
would conclude that the trial court erred in ordering restitution as a condition
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of probation under Section 9754 without first determining Appellant’s ability
to pay the restitution. See Harner, infra.
We also conclude that the trial court erred in ordering restitution under
both Section 1106(a) of the Crimes Code and Section 9754(c)(8) of the
Sentencing Code. When a victim suffers injury to person or property, a
sentencing court is mandated under Section 1106(a) to enter an order of
restitution. Restitution under Section 1106(a), as part of a sentence, is
penal in character and is imposed for losses for which a defendant has been
held criminally accountable. Harner, 617 A.2d at 706. When restitution is
issued under Section 1106(a), a sentencing court is obligated to order full
restitution regardless of the current financial resources of a defendant.
18 Pa.C.S.A. § 1106(c)(1)(i). Once an order of restitution has been made as
part of a defendant’s sentence under Section 1106(a), it is enforceable until
paid. 18 Pa.C.S.A. § 1106(c)(2)(ii); Commonwealth v. Griffiths, 15 A.3d
73, 75 (Pa. Super. 2010).
In contrast, restitution may be ordered under Section 9754(c)(8) as a
condition of probation. 42 Pa.C.S.A. § 9754(c)(8). When ordered as a
condition of probation a court may order a defendant “[t]o make restitution
of the fruits of his crime or to make reparations, in an amount he can afford
to pay, for the loss or damage caused thereby.” Id. Unlike restitution
under Section 1106(a) that serves a punitive purpose, restitution ordered as
a condition of probation under Section 9754(c)(8) is primarily aimed at
rehabilitating and integrating a defendant into society as a law-abiding
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citizen and is deemed a constructive alternative to imprisonment. Harner,
617 A.2d at 706; Hall, supra. Additionally, a sentencing court, when
ordering restitution under Section 9754(c)(8), also must determine what
amount of restitution a defendant can afford to pay, and how the restitution
is to be paid. Harner, 617 A.2d at 707. Unlike restitution under Section
1106(a), the obligation to pay restitution under Section 9754(c)(8), as a
condition of probation, expires upon the end of the term of probation, even if
the amount of restitution ordered has not been paid in full.
Commonwealth v. Karth, 994 A.2d 606, 610 (Pa. Super. 2010).
When restitution is ordered under Section 1106(a), it is a part of an
offender’s sentence. A sentence of restitution is mandatory when there has
been injury to person or property by an offender’s criminal conduct.
Restitution as a part of a sentence is not satisfied until paid in full,
regardless of a defendant’s financial resources. In contrast, ordering
restitution as a condition of probation under Section 9754(c)(8) must be
based upon an offender’s ability to pay and also, as stated, is discharged
upon the expiration of the term of probation regardless of whether the
obligation has been paid in full. It is inconsistent to order restitution as a
sentence, regardless of an ability to pay and without discharge until paid in
full, and at the same time order restitution as a condition of probation where
the ability to pay must be determined and the restitution obligation is
discharged upon the expiration of the term of probation. If restitution must
be ordered and paid in full under Section 1106(a), it cannot at the same
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time also be a condition of probation that can be discharged upon
completion of probation.
Restitution is a creature of statute. Harner, 617 A.2d at 704. It
would be impermissible for this Court to interpret Sections 1106(a) and
9754(c)(8) in a manner that would create conflicts between these two
statutory provisions. See 1 Pa.C.S.A. § 1921(a) (every statute to be
construed to give effect to all its provisions); see also 1 Pa.C.S.A.
§ 1932(b) (statutes in pari materia to be construed together, if possible, as
one statute). Simply put, if restitution must be ordered as part of a
sentence under Section 1106(a), it cannot at the same time also be ordered
merely as a condition under Section 9754(c)(8).11 The trial court, therefore,
erred in ordering restitution simultaneously under Section 1106 of the
Crimes Code and Section 9754 of the Sentencing Code. Accordingly, we
vacate the trial court’s order as it relates to restitution under Section
9754(c)(8).
In sum, we affirm the trial court’s order of restitution under Section
1106(a), and vacate the order to the extent it ordered restitution under
Section 9754(c)(8).
____________________________________________
11
When restitution is ordered under Section 1106(a) and an offender has
been placed on probation or parole, restitution also may be ordered as a
condition of such probation or parole. 18 Pa.C.S.A. § 1106(b). This
restitution, however, is still a condition of an offender’s sentence as opposed
to a condition of probation under Section 9754(c)(8).
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Order affirmed in part and vacated in part. Jurisdiction relinquished.
Judge Bowes, Judge Shogan, and Judge Olson join this Opinion in
Support of Affirmance.
President Judge Emeritus Ford Elliott files an Opinion in Support of
Reversal in which President Judge Emeritus Bender, Judge Lazarus and
Judge Ott join.
Judge Mundy 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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