Com. v. Moss, C.

J-S65037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG E. MOSS :
:
Appellant : No. 811 MDA 2019
Appeal from the Order Entered April 16, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001036-1996
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 06, 2020
Appellant, Craig E. Moss, pro se, appeals from the order entered
April 16, 2019, denying his Motion to Vacate and Correct Illegal Sentence
(“the Motion”). We reverse the order, vacate the underlying judgment of
sentence in part, and remand for resentencing on the issue of restitution.
On April 15, 1996, Appellant set a fire “in the apartment of an individual
with whom he had had a violent argument.” Commonwealth v. Moss, 706
A.2d 1256, No. 326 Harrisburg 1997, unpublished memorandum at 2 n.6 (Pa.
Super. filed December 5, 1997).
On July 30, 1996, the Waynesboro Police Department filed a criminal
complaint against Appellant charging him with: one count of arson placing
another person in danger of death or bodily injury; one count of criminal
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S65037-19
mischief damaging tangible property of another intentionally, recklessly, or by
negligence; and eight counts of recklessly endangering another person
(“REAP”).1 Criminal Complaint, 7/30/1996, at 1-4 (not paginated). According
to the complaint, the victims of both Counts 1 and 2, the arson and the
criminal mischief charges, were listed as Lillian Stevens and Robert Eyler, and
the victims of Counts 3-10, the REAP charges, were Jesse Osborne,
Paul Henson, Nelson Egolf, Leroy Hess, Dan Hill, Charles Hintermeyer,
John Meixner, and Robert Eyler, respectively. Id. The charges for this
criminal complaint later received Docket Number CP-28-CR-0001036-1996
(“No. 1036”).
In the Information filed on December 4, 1996, the victims of Count 1 –
arson -- were listed as: Stevens; “a firefighter, police officer or other person
actively engaged in fighting the fire”; and “the residents who lived inside” the
apartment building. Information, 12/4/1996.
On January 13, 1997, Appellant pleaded nolo contendere to arson only;
in exchange, the remaining charges at No. 1036 were nolle prossed, as were
two additional charges of robbery and theft by unlawful taking 2 at Docket
Number CP-XX-XXXXXXX-1996 (“No. 776”). At the plea hearing, the
____________________________________________
1 18 Pa.C.S. §§ 3301(a)(1)(i), 3304(a)(1), and 2705, respectively.
Subsections 3301(a)(1)(i) and 3304(a)(1), and Section 2705 have not been
amended between the date of Appellant’s offense (April 15, 1996) and their
current versions.
2 18 Pa.C.S. § 3701(a)(1) (effective June 24, 1976, to May 16, 2010) and
§ 3921(a) (effective June 6, 1973 to present), respectively.
-2-
J-S65037-19
Commonwealth stated that No. “776 is a robbery at the Best Western Hotel[.]”
N.T., 1/13/1997, at 2. Sentencing was deferred for the preparation of a
presentence investigation report (“PSI”) by the Franklin County Probation
Department. Id. at 6.
The PSI, dated February 24, 1997, recommended that the trial court
order restitution totaling $81,959.01, distributed as follows: $10,500.00 to
Stevens, $4,305.00 to Eyler, $66,730.51 to Penn National Insurance, 3 and
$423.50 to Best Western of Waynesboro. PSI at 11-12 (not paginated). The
PSI included a “[b]reak-down of Lillian Stevens’ restitution[.]” Id. at 12. For
Penn Mutual Insurance, the PSI provided a claim number (#02447151) and
stated that the suggested restitution award was for “numerous victims who
lived in building” but did not provide any specifics, such as these victims’
names. Id. at 2, 12 (unnecessary capitalization omitted). No explanation
was provided for the suggested restitution figures for Eyler or Best Western.
At Appellant’s sentencing hearing on March 5, 1997, the trial court
asserted that it “considered what’s in the presentence report” and sentenced
Appellant to 42 to 240 months of confinement. N.T., 3/5/1997, at 5. The
Commonwealth stated: “There is restitution due, and we’re going to request
that probation determine the amount of restitution.” Id. at 2. The trial court
replied, “Okay.” Id.
____________________________________________
3Penn National Insurance was not mentioned during either Appellant’s plea
hearing or sentencing. See generally N.T., 1/13/1997; N.T., 3/5/1997.
-3-
J-S65037-19
A written court order was entered that same day and stated:
“[R]estitution shall be made in the amount of $10,500 to Lillian Stevens[,
$]4,305 to Robert Eyler[, $]66,730.51 to Penn National Insurance[, and
$]423.50 to Best Western of Waynesboro” for a total of $81,959.01. Order of
Court, 3/5/1997, at 2 (not paginated).4 That order only listed No. 1036, not
No. 776. Id. at 1-2.
Appellant filed a timely appeal, and this Court affirmed his
judgment of sentence on December 5, 1997. See
Commonwealth v. Moss, 706 A.2d 1256 (Pa. Super. 1997)
(unpublished memorandum). Appellant did not file a petition for
allowance of appeal with our Supreme Court and, thus, his
judgment of sentence became final on January 5, 1998. See 42
Pa.C.S. § 9545(b)(3) (directing that a judgment of sentence
becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 1113(a) (stating
that “a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days of the entry of
the order of the Superior Court sought to be reviewed").
Between 1998 and 2005, Appellant filed six PCRA petitions, all of
which were denied. Then, on September 29, 2017, he filed [the
Motion,] which underlies the present appeal. Therein, Appellant
requested that the trial court modify or vacate allegedly illegal
aspects of his sentence of restitution under 18 Pa.C.S. § 1106.
Additionally, Appellant averred that he was not given adequate
credit for time served prior to his sentencing hearing in March of
1997. Accordingly, he requested that the court vacate his illegal
sentence and conduct a new sentencing hearing.
The court treated this document as a PCRA petition and issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss it. Appellant filed
a pro se response, but on July 6, 2018, the PCRA court entered
____________________________________________
4 At the end of the Pennsylvania Commission on Sentencing Guideline
Sentence Form - Offender and Court Information Sheet listing No. 1036 only,
Appellant’s total restitution is listed as $81,959.01. Both the deputy clerk and
the trial court judge signed the form.
-4-
J-S65037-19
an order formally dismissing his petition as being untimely filed.
Appellant filed a timely, pro se notice of appeal[.]
Commonwealth v. Moss, No. 1210 MDA 2018, unpublished memorandum
at 1-2 (Pa. Super. filed January 3, 2019). On appeal, this Court --
agree[d] with Appellant that the trial court erred by treating his
restitution claim as cognizable under the PCRA and deeming it
untimely. Accordingly, we vacate[d] the court’s order to the
extent that it denied Appellant’s motion for restitution
modification, and we remand[ed] for the court to assess the
merits of that issue. However, we affirm[ed] the court’s order in
regard to Appellant’s time-credit claim.
Id. at 4-5.
Following remand, the trial court held a hearing on February 25, 2019.
On April 16, 2019, the trial court, “[a]fter careful and diligent consideration of
the record and the law in this case,” found that Appellant was “not entitled to
relief” and denied his motion. Trial Court Opinion, filed April 16, 2019, at 11;
see also Order of Court, filed April 16, 2019. Appellant filed this timely appeal
on May 15, 2019.5
Appellant presents the following issues for our review:
[I.] Was the trial court’s decision not to correct a patent and
obvious error that is apparent from the . . . docket without resort
to third party information contrary to both United [S]tates and
Pennsylvania Supreme Court precedent?
[II.] Was the trial court’s decision not to vacate [Appellant’s]
illegal sentence of restitution an abuse of discretion as well as
contrary to both U.S. and Pennsylvania appellate court precedent?
____________________________________________
5 On May 24, 2019, Appellant filed his statement of errors complained of on
appeal. On June 13, 2019, the trial court entered an opinion recapitulating
this case’s procedural history, then stating that the analysis in its opinion that
accompanied its order dated April 16, 2019, would serve as its opinion
pursuant to Pa.R.A.P. 1925(a). Trial Court Opinion, filed June 13, 2019, at 9.
-5-
J-S65037-19
Appellant’s Brief at 3 (issues re-ordered to facilitate disposition).
In the argument section of his brief, Appellant clarifies that the “patent
and obvious error” mentioned in his statement of questions involved is actually
his allegation that he was not given adequate credit for time served prior to
his sentencing hearing in March 1997. Id. at 3, 9. However, this Court
already rejected Appellant’s time-credit claim, and this action was remanded
solely on Appellant’s motion for restitution modification. Moss, No. 1210 MDA
2018, at 5. “[U]pon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same appellate
court[.]” Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282
(Pa. Super. 2016). Accordingly, we cannot and will not reassess Appellant’s
time-credit claim.
Appellant’s remaining challenge is that the trial court’s decision not to
vacate his allegedly “illegal sentence of restitution was an abuse of discretion
as well as contrary to both U.S. and Pennsylvania appellate court precedent.”
Appellant’s Brief at 4. He continues that “[i]t is beyond dispute that[] the
burden of demonstrating the amount of loss sustained by a victim as a[]result
of the offense shall be on the attorney for the government.” Id. He argues
that the trial court erred by entering an order of restitution that was not
supported by the record, including that the record contained no factual basis
for the appropriate amount of restitution. Id. at 5. He adds that “the
Commonwealth failed to produce any evidence” during the sentencing
-6-
J-S65037-19
hearing, such as “receipts [or] records” “to justify the restitution order.” Id.
at 5, 8.
We consider the law concerning restitution as of the date of Appellant’s
crime (in 1996), as the controlling statute and procedural requirements for
the imposition of restitution have evolved significantly over the past two
decades. Shortly before Appellant’s crime, this Court provided a thorough
review of restitution law in Commonwealth v. Walker, 666 A.2d 301 (Pa.
Super. 1995). This Court explained that “challenges to the appropriateness
of a sentence of restitution are generally challenges to the legality of the
sentence.” Id. at 307 (citing Commonwealth v. Balisteri, 478 A.2d 5 (Pa.
Super. 1984) (the legality of a sentence of restitution “is not a waivable issue”
and therefore, we must address appellant’s contention)) (additional citations
omitted).6 The appellant in Walker, id. at 310 -- like Appellant in the current
appeal -- urged this Court to find that the sentencing court erred in imposing
restitution without first determining the actual amount of the victims’ loss.
Relying upon Commonwealth v. Reed, 543 A.2d 587, 589 (Pa. Super.
____________________________________________
6 This Court noted an exception for “challenges alleging that a sentence of
restitution is excessive under the circumstance[,]” which would, instead, be
considered “challenges to the discretionary aspects of sentencing.” Walker,
666 A.2d at 307 (citations omitted). Although Appellant’s brief, at 5, uses the
word “excessive” in a quote from Commonwealth v. Atanasio, 997 A.2d
1181, 1183 (Pa. Super. 2010), the brief does not otherwise argue that the
amount of restitution was excessive, and nothing else in the brief implies that
Appellant is challenging the discretionary aspects of his sentence of
restitution. See Appellant’s Brief at 4-8.
-7-
J-S65037-19
1988), and Balisteri, 478 A.2d 5, this Court “held that an order of restitution
that was not supported by the record was illegal.” Walker, 666 A.2d at 310.
Accordingly, we hold that Appellant’s claim challenges the legality of his
sentence and, consequently, cannot be waived.7 Ergo, we will consider its
merits.
“When reviewing the legality of a sentence, our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Lekka, 210
A.3d 343, 355 (Pa. Super. 2019) (citation omitted).
____________________________________________
7 In its opinion, the trial court stated that the award of restitution cannot be
reviewed, because it was part of a plea bargain. Trial Court Opinion, filed
April 16, 2019, at 10. The Commonwealth sent a letter to this Court stating
that it did not intend to file a brief, as it “agrees with the Opinion of the trial
[c]ourt[.]” Letter from Jens C. Wagner, Assistant District Attorney, to
Jennifer Traxler, Esquire, Deputy Prothonotary (August 9, 2019).
Both the trial court and the Commonwealth are incorrect. Under current case
law and case law as of the date of Appellant’s crime, where an appellant’s
underlying claim on appeal challenges the legality of his sentence, its review
is not precluded by a plea, including a plea entered pursuant to a negotiated
plea bargain. See, e.g., Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa.
Super.) (en banc) (quoting Commonwealth v. Gentry, 101 A.3d 813, 819
(Pa. Super. 2014) (“Our cases clearly state that a criminal defendant cannot
agree to an illegal sentence, so the fact that the illegality was a term of his
plea bargain is of no legal significance.”)), appeal denied, 169 A.3d 1072 (Pa.
2017); Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012);
Commonwealth v. Dalberto, 648 A.2d 16, 18 (Pa. Super. 1994) (“It is firmly
established that a plea of guilty generally amounts to a waiver of all defects
and defenses except those concerning the jurisdiction of the court, the legality
of sentence, and the validity of the guilty plea.” (emphasis in original)
(citations omitted)), appeal denied, 655 A.2d 983 (Pa.), cert. denied, 516 U.S.
818 (1995); see also Commonwealth v. Harvey, 595 A.2d 1280 (Pa.
Super. 1991) (where defendant entered into a negotiated guilty plea and no
direct appeal was taken, nor post-sentence motions filed, he could still
challenge the validity of his plea in post-conviction collateral proceedings),
appeal denied, 608 A.2d 28 (Pa. 1992).
-8-
J-S65037-19
“Since an order of restitution is a sentence, whether it is imposed as a
direct sentence or as a condition of probation or parole, it must be
supported by the record.” Commonwealth v. Torres, 579 A.2d 398 (Pa.
Super. 1990) (emphasis added) (citations omitted).
In Walker, 666 A.2d at 310, this Court agreed with the appellant that
the trial court erred “by failing to determine for itself the extent of the victims’
losses.”
A careful review of the sentencing hearing transcript reveals that
the sentencing court improperly relied upon the adult probation
officer’s findings as to the expenses for which the victims had not
been compensated, in contravention of our holding in
Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420
(1985) (trial court may not delegate to the county adult probation
department the final determination as to any disputed amounts to
be paid by defendant as restitution). . . . As a result, we find that
the sentencing court failed to comply with the mandate . . . that
the sentencing court determine the amount of loss or damage
caused . . . and how [restitution] should be paid. Id. at 22-23,
617 A.2d at 707.
Id. at 310–11.8 Hence, in Walker, id. at 311, this Court vacated the
judgment of sentence in part and remanded the case for resentencing on the
____________________________________________
8 Walker had also stated that “the sentencing court [must] determine . . . the
amount of restitution appellant can afford to pay[.]” 666 A.2d at 311
(citations omitted). However, the appellant in Walker had committed his
crimes prior to the 1995 amendment to the statute regulating restitution,
discussed in more detail below. By the time Appellant committed his crime in
1996, the statute had been amended so that the trial court “shall order full
restitution [r]egardless of the current financial resources of the defendant[.]”
18 Pa.C.S. § 1106(c)(1)(i) (effective July 2, 1995). See also
Commonwealth v. Christian Ford, 217 A.3d 824, 829–30 n.11 (Pa. 2019)
(“The General Assembly has since abolished that requirement [that trial courts
consider a defendant's ‘ability to pay’ before ordering restitution] by statute.
-9-
J-S65037-19
issue of restitution. This Court noted that, on remand, in addition to fulfilling
the mandates of Kioske, “the trial court must [also] determine whether the
amounts the victim was compensated by her medical insurance or appellant’s
automobile insurance were properly excluded from the restitution.” Id.
(citations omitted).
Analogously, our review of the sentencing hearing transcript in the
current action reveals that the trial court improperly deferred to the probation
department to determine the amount to be paid by Appellant as restitution in
contravention of Walker, id. at 310-11, and Kioske, 487 A.2d 420. N.T.,
3/5/1997, at 2. The trial court thereby failed to comply with the mandate of
those two cases that the court must determine the amount of loss or damage
caused, the amount of restitution Appellant can afford to pay, and how it
should be paid. As this Court did in Walker, 666 A.2d at 311, we are
compelled to reverse the trial court’s order denying the Motion, to vacate the
underlying judgment of sentence in part, and to remand the case for
resentencing on the issue of restitution. At that time, the trial court must
determine the amount of loss or damage caused, how it should be paid, and
whether the amounts the victims were compensated by insurance were
properly excluded from the restitution.9 See id. at 310-11.
____________________________________________
See 18 Pa.C.S. § 1106(c)(1)(i) (providing that courts must order full
restitution “[r]egardless of the current financial resources of the defendant”).
9 The amount that Stevens was compensated by insurance appears to have
been excluded from the original calculation of restitution awarded to her. PSI
at 12.
- 10 -
J-S65037-19
Furthermore, we observe that, in the trial court, Appellant raised the
additional issue that the trial court should have only ordered restitution for
damages that flowed directly from the crime for which he was convicted –
arson. See Trial Court Opinion, filed April 16, 2019, at 8. However, Appellant
failed to include this challenge in his brief to this Court. See Appellant’s Brief
at 4-8. Nevertheless, “legality of sentence issues may be reviewed sua sponte
by this Court[,]” including legality of sentence issues relating to “an award of
restitution[.]” Commonwealth v. Tanner, 205 A.3d 388, 398 (Pa. Super.
2019) (citation and internal quotation marks omitted); see also
Commonwealth v. Hoffman, 198 A.3d 1112, 1123 (Pa. Super. 2018)
(“challenge to the legality of sentence is never waived”); Walker, 666 A.2d
at 307 (citing Balisteri, 478 A.2d 5 (the legality of a sentence of restitution
is not a waivable issue and therefore, we must address appellant’s
contention)); Commonwealth v. Thaddeus Ford, 461 A.2d 1281, 1289 (Pa.
Super. 1983) (“[t]he illegality of sentence is not a waivable matter and may
be considered by the appellate courts of the Commonwealth sua sponte”). In
Walker, the appellant additionally argued that the trial court ordered
restitution without making “a determination of criminal responsibility for the
injuries sustained[,]” and this Court concluded that this claim “pose[d] a
challenge to the legality of the sentence of restitution[.]” 666 A.2d at 308
(citing Reed, 543 A.2d 587 (order of restitution requiring a defendant to make
restitution for a loss which, according to the record, he did not cause, is
illegal)). Since a challenge to whether the restitution award ordered by the
- 11 -
J-S65037-19
trial court flows directly from the crime of which the appellant was convicted
is a challenge to the legality of a sentence and since a challenge to the legality
of a sentence is not waivable and may be raised by this Court sua sponte, we
thereby have chosen to review this issue sua sponte.
Again, turning to the law of restitution as it existed in 1996, we find
Commonwealth v. Cooper, 466 A.2d 195, 196 (Pa. Super. 1983), in which
the appellant had been ordered to pay restitution to the family of the victim
of a traffic collision, even though the appellant had “not been found criminally
responsible for the act which resulted in the accident victim’s death.”
In pleading guilty appellant admitted only that he violated the law
when he left the scene of the accident without rendering aid or
providing the information required by 75 Pa.C.S.A. § 3744. He
did not admit that he was in any way criminally responsible for
having struck the accident victim. Nor was appellant charged with
any offense purporting to hold him criminally responsible for the
victim’s death. Indeed a review of the guilty plea record suggests
that such charges may well have been considered and found
unsupportable. Thus, the death of the victim stemmed from the
collision itself, not appellant’s act of leaving the scene of the
accident, and appellant was not charged or convicted of any crime
holding him criminally responsible for having struck and killed the
victim.
Id. at 196-97 (footnote omitted). Cooper relied upon 18 Pa.C.S. § 1106(a),
“the Crimes Code provision that . . . defines the sentencing court’s power to
impose restitution. In pertinent part, it provides:
(a) General rule-Upon conviction for any crime ... wherein the
victim suffered personal injury directly resulting from the crime,
the offender may be sentenced to make restitution in addition to
the punishment prescribed therefore.
- 12 -
J-S65037-19
466 A.2d at 196 (emphasis in original) (footnote omitted). This same version
of Section 1106(a) was still in place in 1996.10 After Cooper noted that the
“Crimes Code provision authoriz[es] a sentencing court to impose restitution”
for a loss “directly [resulting] from the crime[,]” it concluded that the appellant
could not be ordered to pay restitution to the victim’s family for the victim’s
death where the crime to which he had pleaded guilty did not actually hold
him criminally responsible for the victim’s death. Id. at 197-98. See also
Commonwealth v. Harner, 617 A.2d 702, 705-06 (Pa. 1992) (“restitution
can be permitted under 18 Pa.C.S. § 1106 only as to losses for which the
defendant has been held criminally accountable”; “this statute is clear on its
face and 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”); Commonwealth v.
Yanoff, 690 A.2d 260, 265-66 (Pa. Super. 1997) (for murder committed in
1994, appellant was ordered to make restitution to victim’s parents for funeral
expenses; this restitution award was affirmed, in part because “[r]estitution
applies only for those crimes to property or person where there has been a
____________________________________________
10 Appellant was sentenced pursuant to the version of 18 Pa.C.S. § 1106 in
effect between July 2, 1995, and December 3, 1998. See 1995, May 3, P.L.
999, No. 12 (Spec. Sess. No. 1), § 1, effective in 60 days; 1998, Dec. 3, P.L.
933, No. 121, § 1, imd. effective. Nonetheless, although the text of other
subsections of 18 Pa.C.S § 1106 would be amended repeatedly, except for the
1998 amendment changing “may” to “shall”, the text of subsection (a) did not
alter between its initial passage until October 24, 2018. See 2018, Oct. 24,
P.L. 891, No. 145, § 1, imd. effective.
- 13 -
J-S65037-19
loss that flows from the conduct which forms the basis of the crime for which
a defendant is held criminally accountable”).
Similarly, in the current action, the restitution that Appellant was
ordered to pay to Best Western11 was not “a direct result of the crime” to
which he pleaded guilty. 18 Pa.C.S. § 1106(a). As Appellant was not held
“criminally accountable” or “criminally responsible” for any crime at Best
Western, he cannot be ordered to pay restitution to that entity. Harner, 617
A.2d at 705-06; Yanoff, 690 A.2d at 266; Cooper, 466 A.2d at 196.12 Thus,
____________________________________________
11According to the Order of Court dated March 5, 1997, and the Pennsylvania
Commission on Sentencing Guideline Sentence Form - Offender and Court
Information Sheet, the restitution for Best Western was awarded pursuant to
No. 1036, not No. 776. Hence, we may address the award of restitution to
Best Western as part of this appeal from No. 1036.
12 This would be the result pursuant to any version of 18 Pa.C.S. § 1106(a)
prior to the amendment October 24, 2018. (As of the date of this decision,
there is no precedential case law interpreting the post-amendment version of
Section 1106(a), and, as we need not reach that issue to determine the
current action, we will not speculate as to the result of any such appeal.)
For example, in Commonwealth v. Zrncic, 167 A.3d 149 (Pa. Super. 2017),
this Court considered whether an award of restitution was possible as part of
a direct sentence under 18 Pa.C.S. § 1106, where the related crime had been
nolle prossed. The appellant in Zrncic had pleaded guilty to aggravated
indecent assault, and the Commonwealth had nolle prossed a charge of
unlawful contact with a minor. 167 A.3d at 152. The trial court ordered the
appellant to pay for a notebook computer that was confiscated by police during
the investigation, even though the computer only contained evidence related
to the unlawful contact with a minor charge. Id. “The question, then, [was]
whether the trial court may properly impose restitution for the laptop where
the loss claimed flows from crimes other than the crime to which Appellant
pled guilty.” Id.
- 14 -
J-S65037-19
on remand, the trial court may not re-impose an award of restitution to Best
Western.13
____________________________________________
The authority to impose restitution comes from Section 1106 of
the Crimes Code. Commonwealth v. Barger, 956 A.2d 458, 465
(Pa. Super. 2008) (en banc).
Section 1106 provides that “[u]pon 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.” 18 Pa.C.S. § 1106(a) (emphasis added).
This section “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.” Barger, 956 A.2d at 465 (quoting
Harner, 617 A.2d at 706). . . . Section 1106 requires a “direct
nexus” between the loss claimed and the crime “for which
Appellant was convicted[.]” Barger, 956 A.2d at 465.
Id. at 152-53 (emphasis in original). This Court concluded that, as the
appellant was not convicted of unlawful contact with a minor, the trial court
could not impose restitution for the computer, because the computer did not
contain any evidence of aggravated indecent assault, the crime to which the
appellant pleaded guilty. Id. at 153.
Accordingly, even under recent case law, the pivotal question remains whether
the restitution that Appellant was ordered to pay to Best Western was “a direct
result of the crime” to which he pleaded nolo contendere. 18 Pa.C.S.
§ 1106(a). As Appellant was not “held criminally accountable” for any crime
at Best Western, he cannot be ordered to pay restitution to that entity.
Zrncic, 167 A.3d at 152. Ergo, we would still be constrained to vacate the
portion of Appellant’s sentence awarding restitution to Best Western.
13 Upon remand, the trial court should determine on the record whether the
restitution award to Penn National Insurance was paid to compensate the
insurance company for payments it made pursuant to the arson and not
pursuant to any of the counts that were nolle prossed. The charge of arson
placing another person in danger of death or bodily injury, listed as Count 1
- 15 -
J-S65037-19
For the reasons set forth above, we reverse the order of the trial court
denying the Motion and vacate the portion of the underlying judgment of
sentence relating to restitution. We remand for resentencing on the issue of
restitution only, during which the trial court may not reinstate an award of
restitution to Best Western.
Order reversed. Judgment of sentence vacated in part. Case remanded
for resentencing on the issue of restitution. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2020
____________________________________________
of No. 1036, was the only count for which Appellant was held “criminally
accountable” or “criminally responsible.” Harner, 617 A.2d at 705-06;
Yanoff, 690 A.2d at 266; Cooper, 466 A.2d at 196.
We further observe that the criminal complaint only listed Stevens and Eyler
as victims under Count 1, whereas the subsequently filed Information
catalogued the victims as: Stevens; “a firefighter, police officer or other
person actively engaged in fighting the fire”; and “the residents who lived
inside” the apartment building. Criminal Complaint, 7/30/1996, at 1;
Information, 12/4/1996.
- 16 -