Com. v. Dahl, M.

J-A29016-22
2023 PA Super 104COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY KATHERINE DAHL :
:
Appellant : No. 309 WDA 2022
Appeal from the Judgment of Sentence Entered November 1, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000174-2020
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
OPINION BY OLSON, J.: FILED: June 12, 2023
Appellant, Mary Katherine Dahl, appeals from the judgment of sentence
entered on November 1, 2021, as made final by the denial of Appellant’s
post-sentence motion on February 15, 2022. We vacate Appellant’s judgment
of sentence and remand for resentencing.
The Commonwealth charged Appellant with committing a number of
crimes, including three counts of theft by deception and one count of securing
the execution of documents by deception.1 The charges related to Appellant’s
theft of a 2012 Jeep Grand Cherokee that was owned by her former
son-in-law, Samuel Donelly (hereinafter “Donelly”); Appellant accomplished
this theft by filing a “Motion for Involuntary Transfer of Vehicle Ownership” in
____________________________________________
1 18 Pa.C.S.A. §§ 3922(a)(1)-(3) and 4114, respectively.
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the Butler County Court of Common Pleas, wherein she falsely claimed that
Donelly abandoned the vehicle on her property.
The case proceeded to a jury trial in August 2021. During this trial, the
following evidence was presented.
Donelly testified that, in 2016, he was married to Appellant’s daughter,
Katherine, and working for businesses that were owned by Appellant. Donelly
and Katherine lived at 307 East Second Street, in Clarion County,
Pennsylvania, in a multi-generational household that was owned by Appellant.
At the time, approximately 20 people lived on Appellant’s Clarion County
property: Donelly, Katherine, Appellant, Appellant’s husband, and five
families of Appellant’s children. N.T. Trial, 8/9-11/21, at 65 and 67.
In August 2016, Katherine gave birth to a baby girl. However, “six hours
after [their] daughter was born, . . . Katherine had an aneurysm and for the
next year she was in a vegetive state.” Id. at 66. Sadly, Katherine passed
away in December 2017. Id. at 67.
Following Katherine’s death, Donelly decided that he and his daughter
would move away from Appellant’s Clarion County property. Id. at 68.
Donelly testified that, in June 2018, “about a day or two before [he] tried to
leave:”
I was presented in the morning with a family meeting where
[Appellant and her family (hereinafter, collectively, “the
Dahls”)] . . . presented me with this paperwork. . . . And
they told me that they wanted me to sign custody of my
daughter to them. And if I did, everything would be fine,
keep living there, keep working with them. And if I didn’t
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that they would fight me through the legal system to obtain
custody of my daughter, they would make my life miserable
and there would be an accident and something would happen
to me.
Id.
Donelly testified that he “asked for them to give me some time to think
about it.” Id. at 69. However, that day, he contacted a friend to help him
move away from the property. Id.
As Donelly testified, his friend arrived on the property at approximately
9:00 p.m. on June 23, 2018. Id. at 70. Donelly then took his daughter out
of the house, placed her in the back of his 2012 Jeep Grand Cherokee
(hereinafter “Jeep”), and asked his friend to watch his daughter while he
retrieved his belongings. Id. Donelly testified:
I was just collecting things from the house, and I heard some
screaming. And when I moved back outside I saw that one
of [Appellant’s] daughters had moved [Appellant’s] car
behind [the Jeep,] blocking it in so that I couldn’t leave with
it.
And I went out and I put my things in my car and I tried to
reason with them. [Appellant’s husband] came out with a
bunch of his sons and started barking orders. . . .
[O]ne of the sons removed my daughter from my car and a
couple of the other sons forcibly removed [my friend] from
the property. And at that time[, I] had started to try to
reason with them further because I wanted my daughter back
but I didn’t feel it was safe to run after her.
And when I realized there was no reasoning with them, I
dialed 9-1-1 and I was instructed by the 9-1-1 operator to
disarm myself, place my firearms in my car, lock the car and
get off the property where I can still see everything but just
off the property.
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Id. at 71-72.
Donelly testified that he did as the 911 operator instructed and,
eventually, the police arrived on scene. Id. at 73. However, Donelly was
forced to leave the property that night without his daughter and without his
Jeep. Id. at 74 and 76.
On Monday, June 25, 2018, Appellant and her husband filed for custody
of Donelly’s child. Following court proceedings, the trial court awarded Donelly
primary custody of his daughter and granted Appellant and her husband
visitation rights. Id. at 75.
Donelly testified that he was forced to sue the Dahls to recover his
belongings. Id. at 79. He testified:
I [] mentioned during the hearing that they had my Jeep.
And at the time [I] had been forced to finance a new Jeep
because the Jeep that I owned outright was in their
possession. And [Appellant] . . . pointed out the window to
my [new] Jeep that I had been financing and saying: His
Jeep is right there. And I had to explain that that’s the Jeep
that I am financing because she has my Jeep.
Id.
As Donelly testified, when Appellant pointed out the window and told
the court that his Jeep “is right there,” Donelly became “a little confused and
uncomfortable.” Id. at 80. He testified that he then drove by the Dahls’
property to “see if [his] Jeep was still there.” Donelly testified that he saw his
Jeep on the Dahls’ property, “but with a different license plate.” Id.
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After some investigation, Donelly discovered that Appellant’s company,
Interstate Builders, took ownership of his Jeep through the filing of a Motion
for Involuntary Transfer of Vehicle Ownership. Id. This motion was filed by
Appellant, in the Butler County Court of Common Pleas, on September 18,
2018. It declared:
MOTION FOR INVOLUNTARY TRANSFER OF VEHICLE
OWNERSHIP
AND NOW COMES, the Petitioner; [Appellant] t/d/b/a
Interstate Builders and respectfully avers the following:
1. Interstate Builders is a registered business entity operating
in the Commonwealth with the principal business address of
. . . 154 Kittanning St. Butler, Pa 16001.
2. Interstate Builders is bringing the instant action for the
purposes of obtaining title of ownership for an abandoned
vehicle.
3. The vehicle is identified as follows: 2012 Jeep Grand
Cherokee. . . .
4. On or about June 26th 2018, I obtained possession of the
abandoned vehicle described in paragraph 2, at my private
property.
5. The individuals or entities and addresses who have or
assert an interest in the above property are as follows:
Samuel Adam Donelly 123 North Main Street Chicora, Pa
16025 (first address)[;] Samuel Adam Donelly 307 East
Second Street East Brady, Pa 16025 (Second Address). . . .
6. I am petitioning to obtain a Certificate of Title from the
Commonwealth of Pennsylvania, Department of
Transportation for the following reasons:
(i) An “abandoned vehicle” in the context of private
property is defined under Pennsylvania law 75 Pa.C.S.A.
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§ 102 as (1) A vehicle (other than a pedacycle) shall be
presumed to be abandoned under any of the following
circumstances, (iv) The vehicle has remained on private
property without the consent of the owner or person in
control of the property for more than 24 hours.
(ii) The vehicle has been abandoned on my private
property for a time period exceeding that which is
outlined by statute in accordance with Title 75 Pa.C.S.A.
Vehicles § 102(iv).
(iii) As evidenced by proof of mailing, and the copies of
the public notices, I have made the required attempts to
contact the individuals or entities whom have or assert an
interest in the above property and provide them with
notice of this action. No response has been received.
WHEREFORE, it is respectfully requested that the Court grant
the above motion and award ownership of the
above-referenced vehicle to the petitioner.
Respectfully submitted,
____________________________ /s
[Appellant] t/d/b/a Interstate Builders
Appellant’s Motion, 9/18/18, at 1-2; Commonwealth’s Exhibit 1.
Appellant attached a sworn verification to her motion, where she
averred:
I, [Appellant], verify that the facts set forth in the Motion for
Involuntary Transfer of Vehicle Ownership are true and
correct to the best of my knowledge, information and belief.
I understand that the statements herein are made subject to
the penalties of 18 [Pa.C.S.A. §] 4904 relating to unsworn
falsification to authorities.
Appellant’s Motion, 9/18/18, at 3; Commonwealth’s Exhibit 1.
Appellant averred that she served Donelly with the motion at the
following addresses: “123 North Main Street, Chicora, Pa 16025” and “307
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East Second Street, East Brady, Pa 16025.” However, Donelly testified that
the Chicora address was to Appellant’s sporting goods store and the East
Brady address was to Appellant’s residence – and, at the time of the alleged
service, Donelly did not live or accept mail at either address. N.T. Trial,
8/9-11/21, at 82-83. Indeed, Donelly testified, Appellant “served the
paperwork to their own address where they lived where they knew I didn’t.”
Id. at 111.
On November 29, 2018, the Honorable S. Michael Yeager, of the Butler
County Court of Common Pleas, granted Appellant’s Motion for Involuntary
Transfer of Vehicle Ownership and transferred ownership of the Jeep from
Donelly to Appellant. Id. at 84. Donelly testified that, from July 2018 until
the time Judge Yeager granted Appellant’s Motion for Involuntary Transfer of
Vehicle Ownership, there were bi-weekly custody exchanges of Donelly’s
daughter. The exchanges occurred between Donelly and Appellant – and
Appellant “was there for all but one of” the exchanges. Donelly testified that,
during these many exchanges, Appellant never told him that she filed the
Motion for Involuntary Transfer of Vehicle Ownership or that Judge Yeager
granted the motion and involuntarily transferred ownership of Donelly’s Jeep
to Appellant’s company. Id. at 97-98.
During the trial, Donelly read Appellant’s former testimony from an
emergency hearing on a custody petition, which related to Donelly’s daughter.
Appellant’s testimony was given on September 4, 2018 – or two weeks before
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Appellant filed the Motion for Involuntary Transfer of Vehicle Ownership.
During cross-examination, Appellant testified:
Q: You mentioned transportation as one of your concerns.
[Appellant:] Uh-huh (yes).
Q: Isn’t it true that Mr. Donelly has a vehicle?
[Appellant:] Uh-huh (yes).
Q: Isn’t it true that that vehicle is currently at your residence?
[Appellant:] Yes, it is.
Q: Isn’t it true that, although he has the vehicle, you have or
your husband have refused to provide that vehicle to him?
[Appellant:] If [Donelly] would like to come get his vehicle,
he’s welcome to do that, but he needs to work to do that.
Q: What do you mean he needs to work to get that?
[Appellant:] [Donelly] owes money to us for some things that
he needs to settle what he owes before he moved out. And
it’s just not a matter of taking the vehicle. He can’t dump
the rest of his belongings on us. It’s not our position to take
care of or storing them.
Q: Isn’t it true he provided the keys to the vehicle and asked
that you bring the vehicle to the exchange point?
[Appellant:] He never gave me the keys to his car, no.
Q: Isn’t it true that he provided keys during one of the
exchanges, whether or not that means you or one of your
relatives?
[Appellant:] I have no knowledge of him providing keys at
any of the exchanges.
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Q: If he were to provide the keys to the vehicle, would you
bring that vehicle to him at the exchange?
[Appellant:] No.
Q: But you would admit that that vehicle is his?
...
[Appellant:] Yes.
Q: And you raised concerns that his girlfriend is transporting
the child?
[Appellant:] I raise concerns that there have been vehicle
accidents within the time period that I’ve known [Appellant’s
girlfriend], which is probably within the last four months. . . .
Q: So you looked into whether or not there was an accident
involving [Appellant’s girlfriend]?
[Appellant:] Sure. It’s my granddaughter.
Q: And although you have concerns with her driving, and
although we’ve remedied that situation by asking for Mr.
Donelly’s vehicle back, you chose to retain the vehicle at your
property, correct?
[Appellant:] I don’t believe it’s my position to give [Donelly]
anything.
N.T. Emergency Custody Hearing, 9/4/18, at 19-22; N.T. Trial, 8/9-11/21, at
87-91; Commonwealth’s Exhibit 3.
As noted above, two weeks after Appellant gave this testimony,
Appellant filed the Motion for Involuntary Transfer of Vehicle Ownership in the
Butler County Court of Common Pleas.
Donelly testified that after he learned Appellant had involuntarily
transferred the ownership of his Jeep to her business, he retained a Butler
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County attorney to recover his Jeep. N.T. Trial, 8/9-11/21, at 104. On May
3, 2019, Donelly filed a petition to strike off and open the November 29, 2018
judgment. Id. at 180; Commonwealth’s Exhibit 5. Within the petition,
Donelly claimed that the trial court’s order must be opened because the Jeep
was not abandoned and Appellant failed to provide proper notice to him of the
Motion for Involuntary Transfer of Vehicle Ownership. See Donelly’s Petition
to Open, 5/3/19, at 1-3; Commonwealth’s Exhibit 5. “After that proceeding
was done, [Judge Yeager of the Butler County Court of Common Pleas]
reversed [the November 29, 2018] order and signed the Jeep back over to”
Donelly. N.T. Trial, 8/9-11/21, at 273.
The jury found Appellant guilty of three counts of theft by deception and
one count of securing the execution of documents by deception. On October
15, 2021, the trial court sentenced Appellant to serve an aggregate term of
18 months of probation, with the following restrictive conditions: Appellant
must serve seven days in the Butler County Prison and then serve 90 days of
house arrest with electronic monitoring. See Sentencing Order, 10/15/21, at
1-3. Specifically, the trial court sentenced Appellant in the following manner:
at Count 1 (claiming that Appellant committed theft of the Jeep by deception,
under 18 Pa.C.S.A. § 3922(a)(2)), the trial court ordered that Appellant serve
the above-quoted sentence; at Count 2 (claiming that Appellant committed
theft of the Jeep by deception, under 18 Pa.C.S.A. § 3922(a)(1)), the trial
court ordered that Appellant serve “the same sentence” as at Count 1, “to run
concurrent” to the sentence imposed at Count 1; at Count 3 (claiming that
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Appellant committed theft of the Jeep by deception, under 18 Pa.C.S.A.
§ 3922(a)(3)), the trial court ordered that Appellant serve “the same”
sentence as at Count 2; and, at Count 4 (claiming that Appellant committed
the crime of securing the execution of documents by deception, in violation of
18 Pa.C.S.A. § 4114), the trial court ordered that Appellant serve a term of
12 months of probation, to run concurrent to Count 1. See Sentencing Order,
10/15/21, at 1-3.
On October 21, 2021, Appellant filed a post-sentence motion, where she
claimed that the evidence was insufficient to support her convictions. See
Appellant’s Post-Sentence Motion, 10/21/21, at ¶¶ 1-49. Moreover, on
October 25, 2021, the Commonwealth filed a “Motion to Modify Sentence to
Include Restitution.” See Commonwealth’s Motion to Modify Sentence,
10/25/21, at 1-2. Within the Commonwealth’s motion, the Commonwealth
requested that the trial court “amend the sentenc[ing] order to include
restitution owed to” Donelly. Id. at 1.
On November 1, 2021, the trial court entered an order, which declared
that its October 15, 2021 sentencing order was amended “to include
restitution to [Donelly] of $1.00.” Trial Court Order, 11/1/21, at 1; see also
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, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or allowed”).
Further, the trial court scheduled a restitution hearing for January 7, 2022.
Id.
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On January 7, 2022, the trial court held the scheduled restitution
hearing. During this hearing Donelly testified that he spent $780.40 to re-title
the Jeep in his name. N.T. Restitution Hearing, 1/7/22, at 11-12. Further,
Donelly testified that his girlfriend, Jamie Wagner, paid a total of $2,445.34
to rent a car for him, during the period from August 15, 2018 until November
6, 2018. See id. at 4-12.
On February 14, 2022, the trial court entered an order declaring:
“[Appellant] shall as part of [her] sentence and prior to any fines and cost[s]
make restitution to [Donelly] in the amount of $780.40 and once that [is] paid
in full she shall make restitution to [Donelly] in the amount of $2445.34 so
that he may reimburse Jamie Wagner.” Trial Court Order, 2/14/22, at 3. The
trial court further specified that it was ordering restitution as part of
Appellant’s direct sentence, in accordance with 18 Pa.C.S.A. § 1106. Id. at
1-3. The next day, the trial court denied Appellant’s post-sentence motion.
Trial Court Order, 2/15/22, at 1.
Appellant filed a timely notice of appeal and simultaneously filed a
concise statement of errors complained of on appeal, pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b). Appellant numbers five claims on
appeal:
[1.] Did the Commonwealth adduce[] sufficient evidence to
prove Appellant’s guilt of 18 [Pa.C.S.A.] § 3922(a)(1)?
[2.] Did the Commonwealth adduce[] sufficient evidence to
prove Appellant’s guilt of 18 [Pa.C.S.A.] § 3922(a)(2)?
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[3.] Did the Commonwealth adduce[] sufficient evidence to
prove Appellant’s guilt of 18 [Pa.C.S.A.] § 3922(a)(3)?
[4.] Did the Commonwealth adduce[] sufficient evidence to
prove Appellant’s guilt of 18 [Pa.C.S.A.] § 4114?
[5.] Should the trial court’s restitution order include rental
car[] fees [not] incurred by Donelly?
Appellant’s Brief at 4 (some capitalization omitted).
Appellant’s initially claims that the evidence was insufficient to convict
her of any of the crimes. We review Appellant’s sufficiency of the evidence
challenges under the following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for [that of] the fact-finder. In addition, we
note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations
and quotation marks omitted).
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Appellant’s first three claims contend that the evidence was insufficient
to convict her of theft by deception. Theft by deception is defined as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including
false impressions as to law, value, intention or other state
of mind; but deception as to a person's intention to
perform a promise shall not be inferred from the fact
alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which
would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom he stands in a
fiduciary or confidential relationship.
(b) Exception.--The term “deceive” does not, however,
include falsity as to matters having no pecuniary significance,
or puffing by statements unlikely to deceive ordinary persons
in the group addressed.
18 Pa.C.S.A. § 3922.
Viewing the evidence in the light most favorable to the Commonwealth,
the evidence clearly establishes that Appellant intentionally withheld Donelly’s
Jeep and then falsely claimed to Judge Yeager that Donelly had abandoned
the Jeep on her property, so that Appellant could obtain ownership of Donelly’s
Jeep. See 18 Pa.C.S.A. § 3922(a). Indeed, the evidence demonstrates that
Appellant and her family initially blocked Donelly’s Jeep on their property and
would not allow Donelly to drive his Jeep off of their property. N.T. Trial,
8/9-11/21, at 71-76. Further, two weeks before Appellant filed her Motion for
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Involuntary Transfer of Vehicle Ownership, Appellant admitted, in court, that
she was withholding Donelly’s Jeep at her residence and that, if Donelly
wanted to recover his Jeep, Donelly “needs to work to do that” and “settle
what he owes before he moved out.” N.T. Emergency Custody Hearing,
9/4/18, at 19-22; N.T. Trial, 8/9-11/21, at 87-91; Commonwealth’s Exhibit 3.
Viewing this evidence in the light most favorable to the Commonwealth,
Appellant’s testimony demonstrates that Donelly did not abandon his Jeep on
her property – but, rather, that Appellant was holding Donelly’s Jeep ransom,
so that Donelly would pay her money. N.T. Emergency Custody Hearing,
9/4/18, at 19-22
The evidence also demonstrates that Judge Yeager initially granted
Appellant’s Motion for Involuntary Transfer of Vehicle Ownership, thus
transferring ownership of the Jeep from Donelly to Appellant. This evidence
proves that Appellant deceived Judge Yeager by intentionally: “creat[ing] or
reinforc[ing] a false impression” in Judge Yeager’s mind that Donelly had
abandoned the Jeep on Appellant’s property; preventing Judge Yeager from
acquiring information that would demonstrate the Jeep was not abandoned;
and, failing to correct the false impression, that Appellant created in Judge
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Yeager, that the Jeep was not, in fact, abandoned.2, 3 See 18 Pa.C.S.A.
§ 3922(a)(1)-(3). Appellant’s claims to the contrary are meritless and, thus,
Appellant’s first three claims on appeal fail.
Next, Appellant claims that the evidence was insufficient to establish
that she committed the crime of securing the execution of documents by
deception. This crime is defined in the following manner:
A person commits a misdemeanor of the second degree if by
deception he causes another to execute any instrument
affecting or purporting to affect or likely to affect the
pecuniary interest of any person.
18 Pa.C.S.A. § 4114.
On appeal, Appellant claims that the Commonwealth failed to prove she
violated Section 4114 because “it presented no evidence as to any false
information Appellant presented to [Judge] Yeager as to be deceptive.”
Appellant’s Brief at 32.
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2 Moreover, since the Jeep has pecuniary value, the exception in Section
3922(b) does not apply.
3 Appellant claims that, since Judge Yeager did not testify at trial, the
Commonwealth could not have proven she committed theft by deception. See
Appellant’s Brief at 11. Appellant’s claim lacks merit because her Motion for
Involuntary Transfer of Vehicle Ownership was based solely upon her
averment that Donelly abandoned the vehicle on her property. See
Appellant’s Motion for Involuntary Transfer of Vehicle Ownership, 9/18/18, at
1-2. Since Judge Yeager could have only granted Appellant’s motion on the
basis of abandonment – and since the Commonwealth proved that Appellant’s
claim of abandonment was intentionally false and deceptive – Judge Yeager’s
testimony was unnecessary to prove Appellant committed the crime of theft
by deception.
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Appellant’s claim fails for the same reasons explained above. In
particular, the Commonwealth presented sufficient evidence to establish that
Appellant falsely and deceptively averred to Judge Yeager that Donelly had
abandoned the Jeep, thus causing Judge Yeager to grant Appellant’s Motion
for Involuntary Transfer of Vehicle Ownership. Appellant’s claim to the
contrary fails.
Finally, Appellant claims that the trial court erred when it ordered that
she pay restitution to Donelly for “rental car[] fees [not] incurred by Donelly.”
Appellant’s Brief at 4. We conclude that the trial court’s entire order of
restitution is illegal. Therefore, we must vacate Appellant’s judgment of
sentence and remand for resentencing.
Our Supreme Court has explained:
in the criminal context, generally speaking, restitution is the
requirement that the criminal offender repay, as a condition
of his sentence, the victim or society, in money or services.
It is well established that the primary purpose of restitution
is rehabilitation of the offender by impressing upon him or
her that his [or her] criminal conduct caused the victim's loss
or personal injury and that it is his [or her] responsibility to
repair the loss or injury as far as possible. Thus, recompense
to the victim is only a secondary benefit, as restitution is not
an award of damages. Although restitution is penal in nature,
it is highly favored in the law and encouraged so that the
criminal will understand the egregiousness of his or her
conduct, be deterred from repeating the conduct, and be
encouraged to live in a responsible way.
Commonwealth v. Brown, 981 A.2d 893, 895-896 (Pa. 2009) (footnotes
and citations omitted).
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In this case, the trial court ordered restitution as a part of Appellant's
direct sentence, in accordance with 18 Pa.C.S.A. § 1106. See, e.g., Trial Court
Order, 2/14/21, at 1-3. In relevant part, Section 1106 reads:
(a) General rule.--Upon conviction for any crime wherein:
(1) property of a victim has been stolen, converted or
otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime; or
(2) the victim, if an individual, suffered personal injury
directly resulting from the crime,
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:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. . . .
...
(2) At the time of sentencing the court shall specify the
amount and method of restitution. . . .
...
(4)(i) It shall be the responsibility of the district attorneys
of the respective counties to make a recommendation to
the court at or prior to the time of sentencing as to the
amount of restitution to be ordered. This recommendation
shall be based upon information solicited by the district
attorney and received from the victim.
18 Pa.C.S.A. § 1106.
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In discerning the nature of a challenge to the imposition of restitution,
we have held:
the appellate courts have drawn a distinction between those
cases where the challenge is directed to the trial court's
[statutory] authority to impose restitution and those cases
where the challenge is premised upon a claim that the
restitution order is excessive. When the court's authority to
impose restitution is challenged, it concerns the legality of
the sentence; however, when the challenge is based on
excessiveness, it concerns the discretionary aspects of the
sentence.
Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006); see also
In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when an issue
“centers upon [the court's] statutory authority” to impose the sentence, as
opposed to the “court's exercise of discretion in fashioning” the sentence, the
issue implicates the legality of the sentence); Commonwealth v. Walker,
666 A.2d 301, 307 (Pa. Super. 1995) (“challenges alleging that a sentence of
restitution is excessive under the circumstances have been held by this court
to be challenges to the discretionary aspects of sentencing”);
Commonwealth v. Weir, 239 A.3d 25, 37 (Pa. 2020) (“the failure of a trial
court to impose restitution where the circumstances described in Section
1106(a)(1) or (2) are established results in an illegal sentence. Conversely, .
. . if the statutory circumstances are not established and the sentencing court
orders restitution, the challenge to the sentence implicates its legality”).
“Legality of sentence questions are not waivable and may be raised sua
sponte [on direct review] by this Court.” Commonwealth v. Watley, 81
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A.3d 108, 118 (Pa. Super. 2013) (en banc). A question concerning the legality
of a sentence, “presents a pure question of law.” Commonwealth v. Petrick,
217 A.3d 1217, 1224 (Pa. 2019). Thus, “our scope of review [over such a
claim] is plenary and our standard of review de novo.” Id.The trial court ordered that Appellant pay restitution as a part of her
direct sentence, in accordance with 18 Pa.C.S.A. § 1106. Trial Court Order,
2/14/22, at 1-3. However, Section 1106(c)(2) demands that the trial court
“specify the amount and method of restitution” at the time of sentencing.
See 18 Pa.C.S.A. § 1106(c)(2). The trial court did not do so here. Instead,
as explained above, on October 15, 2021, the trial court sentenced Appellant
to serve an aggregate term of 18 months of probation, with restrictive
conditions. Thus, the trial court did not order Appellant to pay any restitution
at the initial sentencing. See Sentencing Order, 10/15/21, at 1-3. Ten days
later, the Commonwealth filed a “Motion to Modify Sentence to Include
Restitution” and requested that the trial court “amend the sentenc[ing] order
to include restitution owed to” Donelly. See Commonwealth’s Motion to
Modify Sentence, 10/25/21, at 1.
On November 1, 2021, the trial court entered an order, which declared
that its October 15, 2021 sentencing order was amended “to include
restitution to [Donelly] of $1.00.” Trial Court Order, 11/1/21, at 1. The trial
court also scheduled a restitution hearing for January 7, 2022. Id. Following
the restitution hearing – and three months after the trial court entered its
amended sentencing order in the matter – the trial court entered an order
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declaring: “[Appellant] shall as part of [her] sentence and prior to any fines
and cost[s] make restitution to [Donelly] in the amount of $780.40 and once
that [is] paid in full she shall make restitution to [Donelly] in the amount of
$2445.34 so that he may reimburse Jamie Wagner.” Trial Court Order,
2/14/22, at 3. Within its order, the trial court specified that it was ordering
restitution as part of Appellant’s direct sentence, pursuant to 18 Pa.C.S.A.
§ 1106. Id. at 1-3.
As this Court has held, where a trial court orders a defendant to pay
restitution as a direct sentence under Section 1106, the trial court must
“specify the amount and method of restitution” at the time of sentencing.
See 18 Pa.C.S.A. § 1106(c)(2). The trial court may not sentence a defendant
to pay restitution “in an amount to be determined later.” Indeed, this Court
has held that “an order of restitution to be determined later is ipso facto
illegal.” Commonwealth v. Mariani, 869 A.2d 484, 487 (Pa. Super. 2005).
In this case, the trial court’s amended sentencing order declared that
Appellant was required to pay restitution to Donelly in the amount of $1.00.
However, this amount was not a bona fide placeholder, as the amount bore
no relationship to the record evidence of Donelly’s property damages and the
nominal restitution amount was substantively akin to an order declaring that
Appellant pay restitution “in an amount to be determined later.” Therefore,
Appellant’s sentence is illegal. Certainly, as this Court explained in Mariani:
Section [1106(c)(2)] . . . has two, inextricable components:
the time at which a restitution sentence must be imposed,
that is, at the sentencing hearing; and the specific nature of
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such a sentence, that is, definite as to amount and method
of payment. Thus it is not the order entered after the delayed
restitution proceeding which rendered the restitution
sentence illegal, but the order “restitution to be determined,”
which, entered from the bench at sentencing, failed in both
respects to meet the criteria of the statute.
Id. at 486-487 (citations omitted); see also Commonwealth v. Gentry,
101 A.3d 813, 818 (Pa. Super. 2014) (holding: where “the trial court imposed
a restitution order of $1.00 as an interim value for [p]robation to determine
at a later date,” the trial court’s sentence was illegal); Commonwealth v.
Dinoia, 801 A.2d 1254, 1255 (Pa. Super. 2002) (“a sentencing court may not
leave the amount of restitution open for determination at a later date”);
Commonwealth v. Smith, 956 A.2d 1029, 1033 (Pa. Super. 2008)
(“[c]onsistent with the plain language of § 1106(c)(2), our [c]ourts have held
that the trial court may not impose a general order of restitution at sentencing
and then ‘work out the details’ and amounts at a later date”).
Since the trial court’s “original restitution order was itself illegal[,] . . .
there was no valid restitution for the trial court to amend” in February 2022.
Gentry, 101 A.3d at 819; see also Mariani, 869 A.2d at 486-487 (“it is not
the order entered after the delayed restitution proceeding which rendered the
restitution sentence illegal, but the order ‘restitution to be determined,’ which,
entered from the bench at sentencing, failed in both respects to meet the
criteria of the statute”) (citations omitted). Further, since the trial court’s
amended sentencing order contained both a probationary sentence and a
restitution component, our disposition has potentially altered the trial court’s
sentencing scheme. Therefore, we must vacate Appellant’s entire judgment
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of sentence and remand for resentencing. See Commonwealth v.
Deshong, 850 A.2d 712, 716-717 (Pa. Super. 2004) (“without the restitution,
we are not confident that the trial court would have imposed probation.
Therefore, because the sentencing scheme has been upset, we vacate the
entire sentence and remand for complete resentencing”); see also Mariani,
869 A.2d at 487 (“[b]ecause the sentence here was an integrated one
intended from the outset to consist of both confinement and monetary
elements, and because both were not imposed contemporaneously, the
illegality of one part invalidates the whole”).4
Finally, we note that the case at bar falls outside our Supreme Court’s
recent ruling in Commonwealth v. Cochran, 244 A.3d 413 (Pa. 2021). In
that case, Cochran assaulted his grandmother and caused damage to his
grandparents’ property. As a result, on June 29, 2017, Cochran pleaded guilty
to various crimes, including simple assault and criminal mischief. Id. at 415.
During the plea hearing, Cochran and the Commonwealth agreed that
restitution exceeded $65,000.00, but Cochran disputed the total amount of
restitution. Thus, during the plea hearing, defense counsel requested a
____________________________________________
4 The trial court sentenced Appellant to serve 18 months of probation at Count
1, for committing theft of the Jeep by deception. The trial court then
sentenced Appellant to serve concurrent terms of probation at Counts 2 and
3, for committing theft of the same Jeep by deception. See Sentencing Order,
10/15/21, at 1-3. We note that the trial court’s sentence at Counts 2 and 3
also renders Appellant’s sentence illegal, as Appellant “may receive but one
sentence on the theft offense.” Commonwealth v. Shaffer, 420 A.2d 722,
727 n.2 (Pa. Super. 1980); 18 Pa.C.S.A. § 3902 (“[c]onduct denominated
theft in this chapter constitutes a single offense”).
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further hearing to determine the proper amount of restitution. The trial court
granted Cochran’s request, accepted his guilty plea, and, that day, sentenced
Cochran to serve a term of three to 23 months in jail. The trial court’s “June
29, 2017 order included a provision scheduling the requested restitution
hearing for August 28, 2017.” Id.
The trial court held the first half of the restitution hearing on August 28,
2017 and the second half of the hearing on September 15, 2017. At the
conclusion of the hearing, the trial court ordered Cochran to pay restitution in
the approximate amount of $71,000.00. Id. at 416.
On appeal, Cochran claimed that the trial court did not have jurisdiction
to “enter a restitution order or amend the sentencing order because more than
30 days had passed since the June 29, 2017 order.” Id. Our Supreme Court
disagreed, reasoning that “the sentencing court proceeded with a segmented
or bifurcated sentencing hearing, resulting in a complete and final order only
on September 15, 2017.” Id. at 421. The Cochran Court explained:
the “time of sentencing” in this case [did not occur] solely on
June 29, 2017, after the trial court accepted [Cochran’s] plea
and the terms of the plea agreement. . . . The circumstances
of this particular case are unique in that defense counsel at
the time of sentencing agreed to proceed with sentencing but
disputed the restitution amount and requested an additional
hearing. There is nothing in the Rules of Criminal Procedure
or the Judicial Code that precludes a sentencing court from
conducting a sentencing proceeding over multiple days as the
needs of the parties and the court's schedule may
necessitate. Accordingly, the trial court announced the
incarceration portion of the sentence with other conditions in
an order dated June 29, 2017. In response to [Cochran’s]
request, the order included setting a date for a further
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hearing on August 28, 2017 to address certain factual issues
about the ownership of the damaged property included in the
Commonwealth's valuation of restitution. On this record, it
is apparent the sentencing court proceeded with a segmented
or bifurcated sentencing hearing, resulting in a complete and
final order only on September 15, 2017.
Id. at 420-421 (citations and footnotes omitted).
The case at bar is not controlled by Cochran. Here, the trial court
initially sentenced Appellant on October 15, 2021 to serve a term of probation.
The trial court included no restitution component in its initial sentence. See
Sentencing Order, 10/15/21, at 1-3. The Commonwealth then filed a timely
post-sentence motion and requested that the trial court “amend the
sentenc[ing] order to include restitution owed to” Donelly. Commonwealth’s
Motion to Modify Sentence, 10/25/21, at 1-2. In response to the
Commonwealth’s request (and without Appellant’s consent), the trial court
entered an amended sentencing order on November 1, 2021, which declared
that its October 15, 2021 sentencing order was amended “to include
restitution to [Donelly] of $1.00” and scheduled a restitution hearing for
January 7, 2022. Trial Court Order, 11/1/21, at 1; see also 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, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed”).
The trial court held the restitution hearing and, on February 14, 2022,
the trial court entered an order declaring: “[Appellant] shall as part of [her]
sentence and prior to any fines and cost[s] make restitution to [Donelly] in
the amount of $780.40 and once that [is] paid in full she shall make restitution
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to [Donelly] in the amount of $2445.34 so that he may reimburse Jamie
Wagner.” Trial Court Order, 2/14/22, at 3.
The case at bar is thus very different from Cochran. At the outset,
during the first day of sentencing in Cochran, Cochran agreed that he would
have to pay more than $65,000.00 in restitution, but disagreed as to the total
amount of restitution owed and specifically requested that the trial court
schedule a further hearing to determine the final amount of restitution.
Cochran, 244 A.3d at 415. Here, however, restitution was not requested,
ordered, or even contemplated at Appellant’s initial sentencing hearing. See
Sentencing Order, 10/15/21, at 1-3. Further, in the case at bar, the initial
request for a restitution hearing came at the behest of the Commonwealth –
not Appellant – and occurred ten days after Appellant’s sentencing hearing.
There is also no evidence that Appellant consented to the trial court’s stated
procedure to hold a separate restitution hearing before it was ordered. See
Cochran, 244 A.3d at 420-421 (declaring that the circumstances of Cochran
“are unique” and support the conclusion that “the sentencing court proceeded
with a segmented or bifurcated sentencing hearing” because “defense
counsel at the time of sentencing agreed to proceed with sentencing
but disputed the restitution amount and requested an additional
hearing”) (emphasis added); see also Commonwealth v. McCabe, 265
A.3d 1279 (Pa. 2021) (Wecht, J., concurring) (in a concurrence, Justice Wecht
noted that the facts of the McCabe case support the conclusion that the
sentencing hearing was bifurcated because “McCabe consented to the
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unique, bifurcated restitution procedure”) (emphasis added);
Commonwealth v. Laur, ___ A.3d ___, 2023 WL 2880119 (Pa. Super.
2023), at *2 n.3 (citing Cochran and holding: “[b]ecause [the defendant]
expressly consented to the trial court holding a separate restitution hearing
subsequent to its imposition of his sentence of probation, this was a lawful
bifurcated sentencing proceeding and [the defendant’s] sentence became final
when the last part of the sentence, the restitution order, was imposed”)
(emphasis added).
Second, in Cochran, the trial court’s initial sentencing order “included
a provision scheduling the requested restitution hearing for” a specific date –
thus further demonstrating that the trial court intended for a “segmented or
bifurcated sentencing hearing.” See Cochran, 244 A.3d at 420-421. This
differs from the case at bar in that, here, the trial court did not indicate any
intention to bifurcate the sentencing hearing in the initial sentencing order. It
was only in response to the Commonwealth’s post-sentence request for
restitution that the trial court amended the original sentencing order to include
the illegal term that Appellant pay $1.00 in restitution and schedule a separate
restitution hearing for a later date.5
____________________________________________
5 Justice Wecht dissented in Cochran and explained his belief that “the trial
court lacked jurisdiction to impose restitution” in that case. Cochran, 244
A.3d at 422 (Wecht, J., dissenting). Justice Wecht noted that, when Cochran
initially appealed to the Superior Court, we held that Cochran’s sentence was
illegal because “the trial court improperly ordered restitution after the time of
sentencing, in violation of Section 1106(c)(2)’s plain language.” Id. at 423
(Footnote Continued Next Page)
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The facts of the case at bar thus fall outside of Cochran’s holding. As
such, Cochran does not sanction the procedure that occurred in this case.
____________________________________________
(Wecht, J., dissenting) (emphasis and quotation marks omitted). He further
noted that, to correct this error, we vacated not just the restitution component
of the sentence, but the entire judgment of sentence. Id. (Wecht, J.,
dissenting).
According to Justice Wecht, this Court erred in Cochran when we vacated the
entire judgment of sentence, as “nothing about Cochran’s sentence was
illegal.” Id. at 424 (Wecht, J., dissenting) (emphasis in original). According
to Justice Wecht, we should have simply vacated the order of restitution, since
the trial court “plainly lacked jurisdiction to alter the judgment of sentence in
any manner more than thirty days beyond the date of its imposition.” Id.
(Wecht, J., dissenting). Justice Wecht argued that, by vacating the entire
judgment of sentence, we “essentially provid[ed] the trial court with a
mulligan.” Id. at 423 (Wecht, J., dissenting).
The case at bar differs from Justice Wecht’s view of Cochran in that, here,
the trial court had jurisdiction to amend the initial sentencing order and
include restitution. See 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,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed”). Further, where Justice Wecht
believed “nothing about Cochran’s sentence was illegal,” in the case at bar,
the trial court’s amended sentencing order contained an illegal component,
as the $1.00 order of restitution was not a bona fide placeholder and was
substantively akin to an order declaring that Appellant pay restitution “in an
amount to be determined later.” Cochran, 244 A.3d at 424 (Wecht, J.,
dissenting) (emphasis in original); see also supra at **21-23. Thus, since
the amended sentencing order in the case at bar was integrated and contained
both a probationary term and a restitution component, we are required to
vacate Appellant’s entire judgment of sentence and remand for resentencing,
as “the illegality of one part invalidates the whole.” Mariani, 869 A.2d at 487.
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We must therefore vacate Appellant’s judgment of sentence and remand for
resentencing.6
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
____________________________________________
6 On remand, the trial court should consider whether it is appropriate to
impose restitution as a condition of Appellant’s probation, in accordance with
42 Pa.C.S.A. § 9763(b)(10). As the Pennsylvania Supreme Court explained:
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. § [9763]. When imposed as a sentence,
the injury to property or person for which restitution is ordered
must directly result from the crime. 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. As [the Pennsylvania Supreme Court]
stated in Harner:
Such sentences [of ordering restitution as a condition of
probation] are encouraged and give the trial court the
flexibility to determine all the direct and indirect damages
caused by a defendant and then permit the court to order
restitution so that the defendant will understand the
egregiousness of his conduct, be deterred from repeating this
conduct, and be encouraged to live in a responsible way.
Harner, 617 A.2d at 707.
Thus, the requirement of a nexus between the damage and the
offense is relaxed where restitution is ordered as a condition of
probation.
In re M.W., 725 A.2d at 732 (footnotes and some citations omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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