Com. v. Leclair, C.

J-S11008-20
2020 Pa. Super. 174
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER S. LECLAIR :
:
Appellant : No. 381 WDA 2019
Appeal from the Judgment of Sentence Entered December 11, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002693-2017
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
OPINION BY NICHOLS, J.: FILED JULY 24, 2020
Appellant Christopher S. LeClair appeals from the judgment of sentence
imposed after a jury found him guilty of first-degree murder and related
offenses. On appeal, Appellant challenges the sufficiency and weight of the
evidence, the trial court’s evidentiary rulings, and the restitution he was
ordered to pay the United States Coast Guard (USCG). We affirm Appellant’s
convictions, but vacate the judgment of sentence and remand for
resentencing.
We adopt the factual summary set forth by the trial court. See Trial Ct.
Op., 7/19/19, at 4-13. Briefly, Appellant was arrested and charged with the
murder of his wife, Karen LeClair (Wife), based on evidence that he took her
out to Lake Erie on his boat, shot her in the head, and then disposed of her
body in the lake by weighing it down with an anchor. Appellant then contacted
the USCG to falsely report that Wife had fallen overboard.
J-S11008-20
The trial court set forth the relevant procedural history as follows:
On October 12, 2018, after a four-day jury trial, Appellant was
found guilty of first-degree murder, abuse of a corpse, tampering
or fabricating physical evidence, possessing instruments of a
crime, firearms not to be carried without a license, and false
reports to law enforcement authorities.[1]
On December 11, 2018, after consideration of the presentence
report, sentencing guidelines, witness statements, the safety of
the public, the impact of the crime on the community, and
Appellant’s rehabilitation potential, the [trial court imposed an
aggregate sentence of life in prison.] Further, Appellant was
ordered to pay restitution to certain parties, including
$705,974.80 to the [United States Coast Guard] (USCG).
However, after legal argument and reconsideration by th[e trial
c]ourt, this amount was reduced to $424,180.20.
On December 12, 2018, Appellant filed a post-sentence motion,
raising issues of the weight of the evidence, sufficiency of the
evidence, and [challenging] the imposition of restitution to the
USCG. Argument regarding the issues raised in the post-sentence
motion, particularly the matter of restitution, was held on January
9, 2019. On January 10, 2019, the [trial c]ourt issued an order
denying Appellant’s motion for [a] new trial and arrest of
judgment. Following arguments, the [trial c]ourt reconsidered the
amounts of restitution and found Appellant to be responsible for
$1,952.00 to the Pennsylvania State Police as costs of prosecution
and $4,443.46 to the Crime Victim’s Compensation Board for
[Wife’s] funeral expenses. These amounts were never contested
by Appellant and were deemed legally sufficient for restitution.
However, due to the complexity of the restitution issue, the [trial
c]ourt gave counsel until January 23, 2019 to provide . . . legal
authority regarding whether the USCG qualified as a “victim” for
the purposes of restitution.
On February 12, 2019, the [trial c]ourt issued its memorandum
opinion and order, finding the USCG was in fact a “victim” for the
purposes of 18 Pa.C.S. § 1106, the restitution statute in effect on
the date of the murder. The [trial c]ourt also determined that
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1 18 Pa.C.S. §§ 2501(a), 5510, 4910(1), 907(a), 6106(a)(1), and 4906(b)(1),
respectively.
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restitution to the USCG would only be granted for the expenses
that were incurred as a direct result of Appellant’s criminal
conduct. In fact, the [trial c]ourt determined that many of the
invoiced expenses submitted by the USCG were [duplicative] fees
and not incurred as a direct consequence of Appellant’s criminal
act. Once the [trial c]ourt determined [that] the USCG was a
“victim,” a second hearing was scheduled and conducted on
February 26, 2018 to address the single issue of what expenses
the USCG had actually incurred as a direct result of Appellant’s
criminal act. At the time of the hearing on February 26, 2019,
Appellant and the Commonwealth came to an agreement as to the
amount of restitution directly resulting from Appellant’s criminal
act. The terms of the agreement were placed on the record and
the [trial c]ourt amended the sentencing order to reflect
$424,180.20 as the amount of restitution payable to the USCG.
Trial Ct. Op., 7/19/19, at 1-2 (some formatting altered and footnote omitted).
Appellant filed a timely notice of appeal and subsequently filed a court-
ordered Pa.R.A.P. 1925(b) statement.2,3 The trial court issued a Rule 1925(a)
____________________________________________
2 Appellant initially failed to comply with the trial court’s deadline to file a Rule
1925(b) statement. However, on June 11, 2019, this Court remanded the
matter to the trial court for Appellant to file a Rule 1925(b) statement and for
the trial court to issue a Rule 1925(a) opinion addressing Appellant’s claims.
See Order, 6/11/19.
3 In his Rule 1925(b) statement, Appellant set forth the following claims:
1. Was the weight of the evidence supported by the evidence?
2. Was the verdict of the jury supported by the weight of the
evidence?
3. Should the witnesses who heard statements by [Appellant]
before the alleged homicide have been excluded as violating
Rule 404(b) of the Pennsylvania Rules of Criminal Procedure?
4. Should the testimony of Thomas Foye, Alexandra Shuler, Keith
Love and any other testimony regarding alleged statements of
the defendant made prior to June 2017 before the alleged
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opinion addressing Appellant’s issues, but concluding that Appellant had
waived his weight and sufficiency claims by failing to specify which convictions
or elements he intended to challenge on appeal. See Trial Ct. Op. at 14-15.
On appeal, Appellant raises the following issues, which we have
reordered as follows:
1. Was the verdict of the jury supported by the sufficiency of the
evidence?
2. Was the verdict supported by the weight of the evidence?
3. Should the witnesses who heard statements by Appellant
before the alleged homicide have been excluded as not
relevant?
4. Should the witnesses who heard statements by Appellant
before the alleged homicide have been excluded as violating
Rule 404(b) of the Pennsylvania Rules of Criminal Procedure?
5. Was the USCG a victim for purposes of restitution and should
it have received restitution?
Appellant’s Brief at 3.
Initially, we agree with the trial court that Appellant failed to preserve
his challenges to the sufficiency and weight of the evidence. See Trial Ct. Op.
____________________________________________
homicide have been excluded as violating Rule 404(b) of the
Pennsylvania Rules of Criminal Procedure.
5. Was it proper for the [USCG] to have been ruled a victim for
purposes of restitution?
6. Was the [USCG] a victim for purposes of restitution and should
it have received restitution?
Appellant’s Rule 1925(b) Statement, 6/17/19, 1-2 (unpaginated).
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at 14-15. Although Appellant was convicted of multiple crimes, Appellant’s
sufficiency claim did not specify which elements or even which conviction he
sought to challenge on appeal. Commonwealth v. Garland, 63 A.3d 339,
344 (Pa. Super. 2013) (reiterating that an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient and noting that “[s]uch specificity is
of particular importance in cases where . . . the appellant was convicted of
multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt”). Further, Appellant
did not indicate which verdict or verdicts were contrary to the weight of the
evidence, and did not offer a specific reason to support his generalized claim.
See Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super.
2015) (holding that the appellant waived his challenge to the weight of the
evidence where his Rule 1925(b) statement failed to specify which verdicts
were against the weight of the evidence and did not offer specific reasons as
to why the verdicts were against the weight of the evidence).
Under these circumstances, we are constrained to conclude that
Appellant waived his challenges to the sufficiency and weight of the evidence.
See Garland, 63 A.3d at 344; see also Freeman, 128 A.3d at 1248-49.
Further, the trial court’s decision to address the weight and sufficiency of the
evidence does not affect our finding of waiver. 4 See Commonwealth v.
____________________________________________
4In any event, the trial court thoroughly addressed the sufficiency and the
weight of the evidence supporting Appellant’s convictions. See Trial Ct. Op.
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Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008) (reiterating that “when the
trial court has to guess what issues an appellant is appealing, that is not
enough for meaningful review” and stating that a vague Rule 1925(b)
statement may result in waiver, even if the trial court correctly guesses the
issues an appellant seeks to raise on appeal. (citations and quotation marks
omitted)).
In his next two issues, Appellant argues that the trial court erred by
allowing Thomas Foye, Alexandra Schuler, and Keith Love to testify about
statements that Appellant made about his wife prior to her murder.
Appellant’s Brief at 16. Appellant asserts that the testimony was both
irrelevant and inadmissible under Rule 404(b).5
By way of further background to Appellant’s claims, the trial court
summarized the witnesses’ testimony as follows:
____________________________________________
at 15-27. The trial court concluded that “the testimony and evidence
presented at trial clearly demonstrates that the Commonwealth proved each
element of each crime beyond a reasonable doubt.” Id. at 17. Further, the
trial court found that “considering the overwhelming weight of the evidence,
the verdicts do not ‘shock one’s sense of justice.’” Id. Therefore, even if
Appellant properly preserved these claims, he would not be entitled to relief.
5 We note that Appellant initially raised these objections in a pre-trial motion
in limine, which the trial court denied. N.T. Pre-trial Mot. Hr’g, 10/4/18, at
29-55. Therefore, Appellant properly preserved his claims for appeal. See
Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (applying
Pa.R.E. 103 and noting that “a motion in limine may preserve an objection for
appeal without any need to renew the objection at trial, but only if the trial
court clearly and definitively rules on the motion. . . . [o]nce the trial court
enters a definitive ruling on the record, either prior to or during trial, ‘a party
need not renew an objection or offer of proof to preserve a claim of error for
appeal’” (citations omitted)).
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[Alexandra Schuler testified that] in approximately 2004, during
a social gathering at a local boating club, Appellant volunteered to
[Ms.] Schuler: “[I]’m going to put her on a boat, I’m going to drive
out into the middle of the lake to the deepest part of the lake,
she’s going to fall off the boat and no one will ever find her body.”
When Ms. Schuler tried to uncomfortably laugh the statement off
as a joke, Appellant said he was not joking and repeated the
statement. Despite hearing the statement thirteen years ago,
when the news media reported a woman falling overboard on a
boat in the middle of Lake Erie, Ms. Schuler immediately called
the Pennsylvania State Police to report [Appellant].
Thomas Foye, a local fisherman and acquaintance of Appellant,
testified about a statement Appellant made in 2011 during a
conversation about a news story about a man who had killed his
wife. Appellant told Mr. Foye how he would kill his wife;
specifically, Mr. Foye testified that Appellant stated “that what he
would do was he would take and raise the life insurance policies,
take out a loan and put her on the policies, and then he would
take and wait a year, year and a half, take her out to the lake,
wrap her up in a fishing net or rope, and they would never find
her.” Appellant said this with a straight face and Mr. Foye did not
get the impression it was a joke.
Keith Love testified regarding conversations with Appellant that
occurred in the months prior to June 2017. Appellant advised Mr.
Love that [his wife] was dying from cancer, and one day when Mr.
Love asked how [Appellant’s wife] was doing, Appellant
responded: “Once the bitch is dead, I’ll be set for life.”
Trial Ct. Op. at 29.
Appellant argues that the witness testimony was not relevant to his case
“because of the remoteness of time to the events of this case and the context
of the conversation” in which Appellant made the statements about Wife.
Appellant’s Brief at 16-17. With respect to Schuler, Appellant asserts that the
alleged statement was made thirteen years before Wife’s murder and that it
did not “reference any sort of plan” but was instead “a response to a joke.”
Id. at 18-19. As to Foye, Appellant argues that the statement was six years
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before Wife’s murder, and that he “was commenting on a television show that
was playing at the time. . . . [which] did not show any sort of plan” or establish
his intent to murder Wife. Id. at 17. Finally, as to his statement to Love,
Appellant contends that “it in no way references anything regarding this case”
and “was also months prior” to Wife’s murder. Id. at 18.
The Commonwealth responds that Appellant’s statements to Foye,
Schuler, and Love were relevant because they made “the fact of Appellant’s
contempt and hatred towards [Wife] and his motive to kill her more probable.”
Commonwealth’s Brief at 21. The Commonwealth further contends that the
statements “are highly probative based on the unnervingly similar facts of his
prior statements to the facts of this case.” Id.
In reviewing a challenge to the admissibility of evidence, our standard
of review is as follows:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court and we will not reverse a trial
court’s decision concerning admissibility of evidence absent an
abuse of the trial court’s discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations
omitted and formatting altered)
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“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation omitted).
Evidence is relevant if it logically tends to establish a material fact
in the case, tends to make a fact at issue more or less probable,
or tends to support a reasonable inference or proposition
regarding a material fact. Relevant evidence may nevertheless be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation
and quotation marks omitted), appeal denied, 219 A.3d 597 (Pa. 2019).
Here, the trial court addressed Appellant’s claim as follows:
In the present case, there was no error in the admission of
Appellant’s statements made prior to June 2017 before the
murder. The statements made multiple times over the years
about Appellant’s plans to kill his wife prior to actually killing his
wife were absolutely relevant because of their haunting factual
similarity to the murder of [Wife]. Appellant’s comments that he
would get rid of [Wife] by taking her out on the boat and dumping
her body in the lake were eerily similar to the actual method by
which Appellant did kill her. These statements logically tended to
establish the material facts in the case, tended to make the facts
more probable, and supported a reasonable inference or
presumption about the material facts. Further, the probative
value of Appellant’s statements outweighed the prejudicial value,
especially in consideration of the other overwhelming evidence of
Appellant’s guilt. The statements, standing alone, would not
inflame the jury to make a decision contrary to the relevant legal
propositions. Admitting the statements was not unfairly
prejudicial simply because they were harmful to Appellant’s
contrived defense that [Wife] had shot herself. Rather, the
statements formed a part of the history and natural development
of the events leading up to Appellant’s charges and were properly
admitted.
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While it is clear the remoteness of the statements can be
considered in determining whether prejudice occurred, in the
present case the manner in which Appellant spoke, although
remote in time, became highly relevant and the probative value
of the statements outweighed any prejudicial effect. See
Commonwealth v. Smith, 808 A.2d 215, 225 (Pa. Super. 2002)
(“In determining whether the evidence is so remote that the
prejudicial effect outweighs the probative value, the court has no
fixed standard on which to rely, but must instead consider the
nature of the crime, the evidence being offered, and all attendant
circumstances.”) Pennsylvania Courts have specifically addressed
the admission of evidence of the prior marital relationship
between a defendant and a homicide victim in conjunction with
remoteness: “[E]vidence concerning the nature of the marital
relationship is admissible for the purpose of proving ill will, motive
or malice. . . . [I]t is generally true that remoteness of the prior
instances of hostility and strained affects the weight of that
evidence and not its admissibility. . . . [N]o rigid rule can be
formulated for determining when such evidence is no longer
relevant.” Commonwealth v. Showers, 681 A.2d 746, 754 (Pa.
Super. 1996) (citing Commonwealth v. Ulatoski, 371 A.2d 186,
190-191 (Pa. 1977)).
In the case sub judice, Appellant’s prior statements clearly
demonstrated Appellant’s ill will and malice against his wife and
his manifest purpose to kill her. The witnesses distinctly recalled
the statements precisely because they were so chilling. Ms.
Schuler testified Appellant’s statement “was very creepily specific,
very detailed, very much more than just a one-liner, throw-away”
and left such an impact on her she immediately told her husband
about it and contacted law enforcement when she learned [Wife]
was missing. Appellant’s statements so closely paralleled his
actions that they were indeed relevant to show the nature of his
relationship with [Wife]. On cross-examination, Appellant was
given ample opportunity to test the witnesses’ memories and test
the context of the statements and did so thoroughly. Any issues
regarding the remoteness of the statements to the time of the
murder go to the weight of the evidence and not their
admissibility; therefore, it was in the purview of the jury to
consider the evidence and give each statement the appropriate
weight.[fn1]
[fn1] In fact, out of an abundance of caution and deference to
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Appellant, during the charge conference on October 11,
2018, the [trial c]ourt offered to provide a jury charge
regarding the testimony of Foye, Schuler, and Love.
However, defense counsel declined this offer.
Trial Ct. Op. at 30-32.
Based on our review of the record, we discern no abuse of discretion or
error of law in the trial court’s ruling. See Belknap, 105 A.3d at 9-10. The
trial court thoroughly addressed the relevance of the witnesses’ testimony and
concluded that the danger of unfair prejudice did not outweigh its probative
value. See Danzey, 210 A.3d at 342. Therefore, we affirm on the basis of
the trial court’s analysis of this issue. See Trial Ct. Op. at 30-32.
Appellant next argues that the trial court erred by admitting the
witnesses’ testimony about Appellant’s prior statements under Rule 404(b) of
the Pennsylvania Rules of Evidence. Appellant’s Brief at 19. In support,
Appellant claims that his alleged statements were admitted as “the equivalent
of bad acts by [Appellant] to show he had a long-standing plan to kill [Wife]
or desire to see her killed.” Id. at 20. Appellant argues that his statements
were too remote to establish that he had a plan to kill Wife. Id. Further, he
claims that his statements “were made generally in jest according to Schuler
and Foye, and Love did not testify that the statement made to him was
anything but a crude comment.” Id. Therefore, Appellant argues that his
“statements were not made to show a future plan to kill [Wife],” and were
instead “used to show [that] Appellant had bad character.” Id.
The Commonwealth responds that “[t]he trial court did not err in
allowing the Commonwealth to establish motive and intent [through] the
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relevant testimony of [the witnesses] to whom Appellant made incriminating
statements relative to his contempt against [Wife].” Commonwealth’s Brief
at 1, 21. Further, the Commonwealth contends that the “probative value of
[the witnesses’ testimony] evidence outweigh[ed] the prejudicial impact.” Id.
at 20.
Rule 404(b) of the Pennsylvania Rules of Evidence provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1), (2).
Here, the trial court addressed Appellant’s claim as follows:
At the outset, [the trial c]ourt believes [that] Appellant’s reliance
on Pa.R.E. 404(b) is misplaced. Rather, th[e trial c]ourt thinks
the proper legal analysis of the statements made prior to June
2017 before the alleged homicide is as admissible hearsay
exceptions pursuant to Pa.R.E. 803. This conclusion is supported
by the recent Pennsylvania Supreme Court case Commonwealth
v. Johnson, 160 A.3d 127 (Pa. 2017). In Johnson, the
defendant was on trial for the murder of his friend, her unborn
child, and her four-year-old daughter. The Commonwealth
presented defendant’s brother[,] who testified that days before
the murders[,] the defendant had stated “I’m willing to do
anything to make a come up” which was interpreted by the
brother to mean [that the] defendant was willing to shoot
someone to make money. Over [the] defendant’s objections
[that] the testimony was irrelevant and inadmissible “prior bad
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act” evidence pursuant to Pa.R.E. 404(b), the trial court admitted
the testimony as an exception to Pa.R.E. 404(b) because it
established motive, identity, intent and premeditation. On appeal,
the Supreme Court held [that] Pa.R.E. 404(b) was not implicated
because the “alleged statements were not evidence of any
particular ‘crime, wrong or act’ . . . [r]ather, they constituted mere
statements of [the defendant’s] desire to make money (or, more
generally, to attain success) and his willingness to do anything
(even to kill) to accomplish this end.” The Court further held that
“. . . [e]vidence that merely advances an inference of a material
fact may be admissible” and [the] defendant’s statements to his
brother were an example of such an inference.
In the case sub judice, Pa.R.E. 404(b) is likewise not implicated.
Appellant’s extrajudicial statements to the witnesses that he
would take his wife out on his boat, drive out to the deepest part
of Lake Erie, wrap her in fishing net or rope, and dump her body
so they would never find her and he would be set for life were not
evidence of a particular crime, wrong, or act.
Rather, they were mere statements demonstrating Appellant’s
longstanding desire to get rid of [Wife]. The statements merely
advanced the inference that Appellant’s plans to kill [Wife] and
dispose of her body finally came to fruition on June 10, 2017, and
were thus admissible.
Even in the most tortured and extreme interpretation of Pa.R.E.
404(b), the evidence was still admissible to demonstrate
Appellant’s plan, motive, intent, malice, and ill will toward [Wife].
“[E]vidence of prior occurrences (e.g., previous threats) and prior
offenses, if they are related to the offense for which the defendant
is on trial, may be admitted to show malice, motive, or intent.”
Commonwealth v. Glover, 286 A.2d 349, 351 (Pa. 1972).
Pennsylvania Rule of Evidence 404 provides, in part, that evidence
of a crime, wrong, or other act “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident.” Pa.R.E. 404(b); see also Glover, 286 A.2d at 351
(testimony about defendant’s threat to get a weapon and “to kill
this M.F.” made three weeks prior to the murder was admissible
as it demonstrated defendant’s ill feelings and motive against the
victim); Commonwealth v. Ulatoski, 371 A.2d 186, 192 (Pa.
1977) (permitting evidence of prior bruising on [the] defendant’s
wife before her death[,] as it tended to indicate a pattern of
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physical abuse); Commonwealth v. Chamberlain, 30 A.3d 381,
419-20 (Pa. 2011) (finding testimony by a witness that [the]
defendant had asked about contacting a hitman to break up his
wife’s extramarital affair approximately [eighteen] months before
her murder was relevant to demonstrate motive, design, planning,
ill will, and malice).
Here, the Commonwealth did not admit the witnesses’ testimony
regarding Appellant’s statements to demonstrate Appellant’s bad
character and his propensity for committing criminal acts in
violation of Pa.R.E. 404(b). Instead, Appellant’s statements
regarding his plan to murder and dispose of his wife were prior
statements of his future intent and threats against the life of
[Wife]. The statements were so specific and so closely paralleled
the actual crime, they tended to show Appellant’s plan, motive,
intent, malice, and ill will in committing the murder of his wife.
They also evidence lack of mistake or accident. However, as
previously indicated, the [trial c]ourt again emphasizes [that] the
admission of statements is more appropriately assessed pursuant
to Pa.R.E. 803.
Trial Ct. Op. at 33-35 (some formatting and citations omitted).
Based on our review of the record, we discern no abuse of discretion in
the trial court’s ruling. See Belknap, 105 A.3d at 9-10. The trial court
thoroughly addressed this issue and concluded that Rule 404(b) did not
preclude the witnesses from testifying about Appellant’s prior statements.
Therefore, we affirm on the basis of the trial court’s analysis of this issue. See
Trial Ct. Op. at 33-35.
In his final claim, Appellant argues that the trial court erred by ordering
him to pay restitution to the USCG. Appellant’s Brief at 21. Specifically,
Appellant argues that the USCG does not qualify as a “victim” under 18 Pa.C.S.
§ 1106(a). Id. Relying on Commonwealth v. Veon, 150 A.3d 435 (Pa.
2016), and Commonwealth v. Tanner, 205 A.3d 388 (Pa. Super. 2019),
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Appellant contends that a government entity is only entitled to restitution if
“the legislature included it as a potential victim and also whether it provided
reimbursement to the victim.” Id. at 23. Appellant asserts that “the
legislature has never stated that a part of the United States Armed Forces
should be defined as a government agency eligible for restitution.” Id. at 22.
Further, Appellant contends that “the USCG was not providing compensation
to any victim of a crime but was performing its statutory duties of executing
search and rescue operations.” Id. at 22-23. Therefore, Appellant concludes
that the trial court erred by ordering him to pay restitution to the USCG.
The Commonwealth responds that “the [USCG] is not a Commonwealth
entity and therefore the plain language of [Section 1106] would clearly direct
that they are a ‘governmental entity’ to whom the term ‘victim’ should apply.”
Commonwealth’s Brief at 22. In support, the Commonwealth relies on this
Court’s unpublished decision in Commonwealth v. Steffey, 1158 WDA 2017,
2018 WL 4140624, 2018 Pa. Super. Unpub. LEXIS 3215 (Pa. Super. Aug. 30,
2018), which applied the definition of “person” set forth in 1 Pa.C.S. § 1991
to conclude that non-profit agencies were direct victims under the pre-
amendment version of Section 1106. Finally, the Commonwealth argues that
“Veon did not prohibit restitution to all governmental entities, only to those
of the Commonwealth.” Id.
In reviewing a restitution order, our standard and scope of review are
as follows:
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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. As such,
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.
Accordingly, 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. This case
will also necessarily call upon us to engage in statutory
construction, which similarly presents a pure question of law and
also implicates the legality of [the] sentence. Thus, our standard
of review is de novo and our scope of review is plenary.
Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa. Super. 2019) (citations
and internal alterations omitted).
The version of Section 1106 in effect at the time of Appellant’s offenses
provided,6 in pertinent part, as follows:
(a) General rule.―Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, . . . 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.
* * *
(c) Mandatory restitution.—
(1) The court shall order full restitution:
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6 Section 1106 of the Crimes Code governs the imposition of restitution.
Effective October 24, 2018, the Pennsylvania General Assembly amended the
statute to reflect that a “business entity” could be a “victim” entitled to
restitution. See 18 Pa.C.S. § 1106(h). We emphasize that “this Court has
already held that these specific amendments to [Section] 1106 should not be
effective in criminal cases that began before the effective date of the
legislation . . . .” Hunt, 220 A.3d at 586 (emphasis in original and footnote
omitted) (citing Commonwealth v. Tanner, 205 A.3d 388, 396 n.7 (Pa.
Super. 2019)).
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(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. . . .
(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.
* * *
(h) Definitions.―As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
* * *
“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.
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.
18 Pa.C.S. § 1106(a), (c), and (h) (footnote omitted) (repealed Oct. 24, 2018,
P.L. 891, No. 145, § 1).
Regarding the statutory reference in the definitions section, “Section
479.1, formerly codified at 71 P.S. § 180–9.1, since has been recodified in the
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Crime Victims Act, 18 P.S. §§ 11.101, et seq. (the ‘CVA’).” Veon, 150 A.3d
at 449 (citation omitted). The CVA defines “victim” as follows:
(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 fiancé, 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. “A ‘direct victim’ is defined by the same section as ‘an
individual against whom a crime has been committed or attempted and who
as a direct result of the criminal act or attempt suffers physical or mental
injury, death or the loss of earnings under this act.’” Veon, 150 A.3d at
449 (alterations omitted and emphases in original).
In Veon, the defendant was convicted of misappropriating funds from
the Department of Community and Economic Development (DCED). Id.
Initially, the trial court ordered the defendant to pay restitution to the DCED,
finding that the agency was a direct victim of the defendant’s crimes. Id. On
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appeal, our Supreme Court’s review of the relevant statutes, legislative
histories, and prior case law led to its holding that the DCED was “neither a
‘direct victim’ nor a reimbursable compensating government agency under
Section 1106.” Id. at 455 (footnote omitted).
Importantly, the Veon Court scrutinized the language in Section 11.103
and determined that the term “victim” applied to human beings only:
Notwithstanding any legislative expansion of the definition of
“victim,” it is clear that the plain text of Section 11.103 still
envisages “victims” as “persons” commonly understood. A
“victim” under Section 11.103 must be “a direct victim,” i.e., an
“individual” who has suffered injury, death, or loss of earnings; or
a “child,” “parent,” “guardian,” or “family member.” Every
relevant noun unequivocally describes a human being, not a
government agency, and nowhere else is there a relevant
definition that persuades us to broaden the common
understanding of these words.
Id. at 454.
Further, the Court explained that
[a]lthough Subsection 1106(c)(1)(i)’s provisions regarding
“victims” and “other government agencies” reveals that the
General Assembly intended that restitution reach certain
Commonwealth agencies in a manner that did not depend upon
identifying such agencies as “victims,” it nonetheless required first
that the agency in question have provided compensation to a
victim so defined.
Id. (alterations omitted). Therefore, the Veon Court held that “to qualify for
restitution under Subsection 1106(c)(1)(i), a Commonwealth agency either
must be a victim as that term is used in that subsection or must have
reimbursed a victim as defined by Section 11.103, directly or by paying a third
party on behalf of the victim.” Id.; see also Tanner, 205 A.3d at 398.
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More recently, in Hunt, this Court reiterated that under the version of
Section 1106 in effect at the time, the term “victim” exclusively referred to
individuals. Hunt, 220 A.3d at 590 (discussing Veon, 150 A.3d at 449).
Further, we noted that the repealed definition of “victim” set forth in the
Administrative Code of 1929 did not apply to Section 1106. Id. at 589-90.
Specifically, we explained that
the CVA’s definition introduces an entirely new term of art (“direct
victim”) and explicitly includes certain categories of minor,
material witnesses who would not be included under any plain
reading of the Administrative Code of 1929’s parallel provisions.
Furthermore, the new term “direct victim” is limited in applicability
to those individuals who suffer “physical or mental injury, death
or the loss of earnings” as result of the crime committed. See 18
P.S. § 11.103. By contrast, the definitions set forth in the
Administrative Code of 1929 contain no similar limitations. . . .
Accordingly, we conclude that the definition of “victim” under the
CVA that entered force in 1998 is the sole definition for our
purposes under [Section] 1106.
Id. (some citations omitted).
Here, in concluding that the USCG was a direct victim entitled to
restitution, the trial court reasoned as follows:
Section 479.1 of the Administrative Code of 1929, formerly
codified at 71 P.S. §180-9.1, originally defined a victim as “a
person against whom a crime is being or has been perpetrated or
attempted.” However, because the Administrative Code of 1929
gave no definition of “person”, th[e trial c]ourt is compelled to
turn to the Statutory Construction Act, 1 Pa.C.S. § 1991 for the
definition. In the Act, “person” is defined as “a corporation,
partnership, limited liability company, business trust, other
association, government entity (other than the Commonwealth),
estate, trust, foundation or natural person.” Id. A plain reading
therefore compels the conclusion that the USCG, as a federal
agency, is “a government entity that is other than the
Commonwealth.” See § 479.1 of the Administrative Code and 71
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P.S. §180-9.1. Therefore, the USCG would be a victim under this
version of [Section] 1106.
The plain language of the statute as written, without importing
any definitions from statutes not specifically referenced by the
legislature, would include the USCG as a “person” because it is a
“government entity” which is not a Commonwealth agency. As
such, the [USCG] fits within the definition of “victim” as explicitly
provided by the Legislature.
The [trial c]ourt is also persuaded by the reasoning in Steffey,
2018 WL 4140624, although it is recognized that this authority is
not binding. In Steffey, three non-profit agencies, who were the
object of the defendant’s criminal theft and forgery, were included
in the definition of “person” pursuant to the Statutory Construction
Act, 1 Pa.C.S. § 1991. Therefore, the court concluded [that no]
further statutory construction analysis was necessary, and the
non-profit entities were entitled to restitution.
The [trial c]ourt is cognizant that the conclusion that the USCG is
a direct victim of [Appellant’s] criminal conduct is buffeted by
multifaceted, artful arguments to the contrary based on the fact
that in 1998, § 479.1 of the Administrative Code was repealed and
recodified in the Crime Victims Act, 18 P.S. § 11.103. Under the
CVA, the definition of victim is drastically different. The CVA
defines “victim,” inter alia, as “a direct victim,” which the CVA
defines as “an individual.” 18 P.S. §11.103. The Statutory
Construction Act defines “individual” as a “natural person.” 1
Pa.C.S. § 1991. However, notably, even after § 479.1 of the
Administrative Code was repealed in 1998 and recodified in the
CVA, the legislature specifically used § 479.1 of the Administrative
Code’s definition in subsequent versions of [Section] 1106.[fn1]
After the Administrative Code was repealed in November
[fn1]
of 1998, the Restitution Statute at 18 Pa.C.S. § 1106 was
amended on December 3, 1998 and again on November 30,
2004. § 1106 continued to reference § 479.1 of the
Administrative Code and its definition of “victim” as a person
and “person” is further defined at 1 Pa.C.S. § 1991 to
include a “corporation . . . or government entity (other than
the Commonwealth).”
* * *
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Presently, [Appellant] advocates that Veon precludes the USCG
from obtaining restitution in this case as a government entity.
However, we find Veon clearly distinguishable because it
addresses the question of whether a Commonwealth agency can
be entitled to restitution, not whether a federal agency such as
the USCG is entitled to restitution as a direct victim. The long
history of judicial and statutory interpretation of restitution clearly
supports the fact that a Commonwealth agency is, and always has
been, explicitly barred from receiving restitution. This is true
whether one employs the Administrative Code version of the
definition of “victim” as “person,” which includes government
entities other than the Commonwealth or whether one employs
the CVA definition of victim as an “individual” or “natural person.”
Consequently, the holding in Veon must be restricted to the facts
of Veon excluding restitution to a Commonwealth agency. Any
pronouncements beyond that are not applicable to the case at
hand. To exclude consideration of §479.1 of the Administrative
Code is distorted and clearly disproportionally restricts the class
of “victims” for restitution purposes. Also, the post October 24,
2018 §1106 appears to be a Veon “fix” by now including the
Commonwealth as a victim when it is an “affected government
agency.” See [18 Pa.C.S. §1106(c)(1)(ii)(A.1), as amended
October 24, 2018].
Noting the persuasive decision in Steffey, distinguishing Veon as
limited to its particular facts, and recognizing the strong legislative
intent in favor of awarding restitution, and the statute in effect at
the time of the crime, [the trial c]ourt finds that the USCG falls
within the definition of victim as a “person” which specifically
includes “government entities (other than the Commonwealth).”
This reasoning results in an award of restitution for the USCG as
a “government entity” other than the Commonwealth.
Trial Ct. Mem. Op. and Order, 2/12/19, at 12-14 (some citations and footnotes
omitted).
Based on our review, we disagree with the trial court’s conclusion that
the USCG was entitled to restitution as a direct victim under Section 1106. As
noted previously, our Supreme Court has explicitly stated that the term “direct
victim” refers exclusively to individuals, not government agencies. Veon, 150
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A.3d at 454; see also Tanner, 205 A.3d at 398 (stating that Section 11.103
“defines a ‘victim’ as an individual who has been harmed by the offender” and
noting that “a government agency is not entitled to restitution because it is
[not] an individual victim . . . .”). Further, we are bound by the Hunt Court’s
holding that the CVA precludes using the now-repealed definition of “victim”
set forth in the Administrative Code of 1929 or the definition of “person” in 1
Pa.C.S. § 1991 to interpret the meaning of “victim” under the restitution
statute.7 See Hunt, 220 A.3d at 589-90 (stating that the CVA’s definition of
‘victim’ “is the sole definition” for purposes of Section 1106); see also 18
Pa.C.S. § 1106(h); 18 P.S. § 11.103. Therefore, based on our governing case
law, because the USCG cannot be classified as a ‘direct victim’ under the CVA,
the restitution portion of Appellant’s sentence is illegal and must be vacated.
See Veon, 150 A.3d at 454.
____________________________________________
7 The trial court’s reliance on this Court’s unpublished decision in Steffey does
not affect our analysis. Although the amended version of Pa.R.A.P. 126 allows
parties to rely on non-precedential unpublished decisions of this Court as
persuasive authority, the amendment only applies to decisions filed after May
1, 2019. See Pa.R.A.P. 126(b)(1). As Steffey was filed on August 30, 2018,
it cannot serve as persuasive authority. See id. We also note that after this
Court’s decision in Steffey, our Supreme Court granted allowance of appeal
to determine “[w]hether, in a case of first impression after and in light of [the
Supreme] Court’s decision in Veon, the Superior Court erred in holding that
a sentence to pay restitution to a nonprofit corporation may be ordered.” See
Commonwealth v. Steffey, 2019 WL 761214 (Pa. filed Feb. 21, 2019) (per
curiam order). However, the appeal was discontinued on April 16, 2019. Until
such time our Supreme Court limits or clarifies its holding in Veon, it remains
binding precedent. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.
Super. 2014) (stating that we are bound by existing precedent until such time
it is overturned).
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Judgment of sentence vacated. Case remanded for a new sentencing
hearing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2020
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