Commonwealth v. Holmes

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2017 PA Super 2

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

NORMA JEAN HOLMES, : No. 305 MDA 2014

:

Appellant :

Appeal from the Order Entered January 21, 2014,

in the Court of Common Pleas of Fulton County

Criminal Division at No. CP-29-CR-0000103-2012

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,

LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.

OPINION IN SUPPORT OF REVERSAL BY FORD ELLIOTT, P.J.E.:

FILED JANUARY 04, 2017

We agree that the trial court erred to the extent it ordered restitution

as a condition of appellant’s probation under Section 9754(c)(8) of the

Sentencing Code. As explained in the Opinion in Support of Affirmance,

restitution cannot be imposed as both a condition of probation and as part of

a defendant’s sentence under Section 1106(a) of the Crimes Code.

Furthermore, the trial court did not determine appellant’s ability to pay as

required under Section 9754(c)(8). However, we are constrained to

disagree that the victim’s parents were entitled to mandatory restitution

under Section 1106(a) for their son’s funeral expenses.

Initially, we note that

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[i]n the context of criminal proceedings,

an order of restitution is not simply an

award of damages, but, rather, a

sentence. An appeal from an order of

restitution based upon a claim that a

restitution order is unsupported by the

record challenges the legality, rather

than the discretionary aspects, of

sentencing. The determination as to

whether the trial court imposed an illegal

sentence is a question of law; our

standard of review in cases dealing with

questions of law is plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72

(Pa.Super. 2012) (citations and quotation marks

omitted); see also id. (stating that because “[the

appellant’s] claim on appeal challenges the legality

of his sentence, its review is not abrogated by the

entry of his guilty plea.”).

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013).

Restitution is a creature of statute and, without

express legislative direction, a court is powerless to

direct a defendant to make restitution as part of his

sentence. Commonwealth v. Harner, 533 Pa. 14,

617 A.2d 702, 704 (1992). Where that statutory

authority exists, however, the imposition of

restitution is vested within the sound discretion of

the sentencing judge. Commonwealth v. Keenan,

853 A.2d 381, 383 (Pa.Super. 2004); see also id.

(stating that “[t]he primary purpose of restitution is

rehabilitation of the offender by impressing upon him

that his criminal conduct caused the victim’s

personal injury and that it is his responsibility to

repair the injury as far as possible.”).

Id. “The court is required to specify the amount of restitution at sentencing,

but may modify its order at any time provided that it states its reasons for

any modification on the record.” Commonwealth v. Solomon, 25 A.3d

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380, 389-390 (Pa.Super. 2011), appeal denied, 40 A.3d 1236 (Pa. 2012),

citing Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009).

In the context of a criminal case, restitution may be

imposed either as a direct sentence, 18 Pa.C.S.

§ 1106(a), or as a condition of probation, 42 Pa.C.S.

§ 9754. When imposed as a sentence, the injury to

property or person for which restitution is ordered

must directly result from the crime. See

18 Pa.C.S.A. § 1106(a); Harner, 533 Pa. at 21, 617

A.2d at 704. However, when restitution is ordered

as a condition of probation, the sentencing court is

accorded the latitude to fashion probationary

conditions designed to rehabilitate the defendant and

provide some measure of redress to the victim.

Harner, 533 Pa. at 21-22, 617 A.2d at 706. As this

Court stated in Harner:

Such sentences are encouraged and give

the trial court the flexibility to determine

all the direct and indirect damages

caused by a defendant and then permit

the court to order restitution so that the

defendant will understand the

egregiousness of his conduct, be

deterred from repeating this conduct,

and be encouraged to live in a

responsible way.

Harner, 533 Pa. at 22, 617 A.2d at 707; see also

Commonwealth v. Walton, 483 Pa. 588, 599, 397

A.2d 1179, 1185 (1979). Thus, the requirement of a

nexus between the damage and the offense is

relaxed where restitution is ordered as a condition of

probation. See Harner, 533 Pa. at 22-23 & n. 3,

617 A.2d at 707 & n. 3; see also 42 Pa.C.S.

§ 9754(c)(8).

In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).

The Crimes Code, 18 Pa.C.S.A. § 1106, provides, in relevant part, as

follows:

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(a) General rule.--Upon conviction for any crime

wherein property has been stolen, converted or

otherwise unlawfully obtained, or its value

substantially decreased as a direct result of the

crime, or wherein the victim suffered personal

injury directly resulting from the crime, the

offender shall be sentenced to make restitution in

addition to the punishment prescribed therefor.

(b) Condition of probation or parole.--Whenever

restitution has been ordered pursuant to subsection

(a) and the offender has been placed on probation or

parole, his compliance with such order may be made

a condition of such probation or parole.

(c) Mandatory restitution.--

(1) The court shall order full restitution:

(i) Regardless of the current

financial resources of the

defendant, so as to provide the

victim with the fullest

compensation for the loss. The

court shall not reduce a

restitution award by any

amount that the victim has

received from the Crime Victim’s

Compensation Board or other

governmental agency but shall

order the defendant to pay any

restitution ordered for loss

previously compensated by the

board to the Crime Victim’s

Compensation Fund or other

designated account when the

claim involves a government

agency in addition to or in place

of the board. The court shall

not reduce a restitution award

by any amount that the victim

has received from an insurance

company but shall order the

defendant to pay any restitution

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ordered for loss previously

compensated by an insurance

company to the insurance

company.

(ii) If restitution to more than

one person is set at the same

time, the court shall set

priorities of payment. However,

when establishing priorities, the

court shall order payment in the

following order:

(A) The victim.

(B) The Crime Victim’s

Compensation Board.

(C) Any other government

agency which has

provided reimbursement

to the victim as a result of

the defendant’s criminal

conduct.

(D) Any insurance

company which has

provided reimbursement

to the victim as a result of

the defendant’s criminal

conduct.

(2) At the time of sentencing the court

shall specify the amount and method of

restitution. In determining the amount

and method of restitution, the court:

(i) Shall consider the extent

of injury suffered by the

victim, the victim’s request for

restitution as presented to the

district attorney in accordance

with paragraph (4) and such

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other matters as it deems

appropriate.

(ii) May order restitution in a

lump sum, by monthly

installments or according to

such other schedule as it deems

just.

(iii) Shall not order incarceration

of a defendant for failure to pay

restitution if the failure results

from the offender’s inability to

pay.

(iv) Shall consider any other

preexisting orders imposed on

the defendant, including, but

not limited to, orders imposed

under this title or any other

title.

(h) Definitions.--As used in this section, the

following words and phrases shall have the meanings

given to them in this subsection:

“Crime.” Any offense punishable under this title or

by a magisterial district judge.

“Injury to property.” Loss of real or personal

property, including negotiable instruments, or

decrease in its value, directly resulting from the

crime.

“Offender.” Any person who has been found guilty

of any crime.

“Personal injury.” Actual bodily harm, including

pregnancy, directly resulting from the crime.

“Property.” Any real or personal property,

including currency and negotiable instruments, of the

victim.

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“Restitution.” The return of the property of the

victim or payments in cash or the equivalent thereof

pursuant to an order of the court.

“Victim.” As defined in section 479.1 of the act of

April 9, 1929 (P.L. 177, No. 175), known as The

Administrative Code of 1929.[Footnote 1] The term

includes the Crime Victim’s Compensation Fund if

compensation has been paid by the Crime Victim’s

Compensation Fund to the victim and any insurance

company that has compensated the victim for loss

under an insurance contract.

[Footnote 1] 71 P.S. § 180-9.1.

18 Pa.C.S.A. § 1106(a)-(c), (h) (emphasis added).

What is abundantly clear from a literal reading of Section 1106 is that

the victim, for purposes of mandatory restitution, is the person who suffered

the injury to property or personal bodily injury as a direct result of the

offender’s actions. Under this reading, the parents in this case are not

entitled to restitution.

The issue created by this case and the reason for this court’s en banc

review is whether, under the Section 1106(h) definition of “victim,” the

phrase “[as] defined in section 479.1 of the act of April 9, 1929 (P.L. 177,

No. 175), known as The Administrative Code of 1929,” broadens the

definition of victim to include one who is not a direct victim of the offender’s

conduct.

Section 479.1 of the Administrative Code of 1929, 71 P.S. § 180-9.1,

was repealed by the Act of November 24, 1998, P.L. 882, No. 111 (Act 111),

§ 5103, effective immediately. The statutory notes to Section 180-9.1 of

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the Administrative Code indicate, “For subject matter of the repealed

sections, see now, 18 P.S. § 11.101 et seq.” 18 P.S. § 11.101 et seq. is

the current codification of the Crimes Victims Act (“CVA”), which defines

“victim” as follows:

“Victim.” The term means the following:

(1) A direct victim.

(2) A parent or legal guardian of a child who is

a direct victim, except when the parent or legal

guardian of the child is the alleged offender.

(3) A minor child who is a material witness to

any of the following crimes and offenses under

18 Pa.C.S. (relating to crimes and offenses)

committed or attempted against a member of

the child’s family:

Chapter 25 (relating to criminal

homicide).

Section 2702 (relating to aggravated

assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim,

including stepbrothers or stepsisters,

stepchildren, stepparents or a fiance, one of

whom is to be identified to receive

communication as provided for in this act,

except where the family member is the alleged

offender.

18 P.S. § 11.103. Consistent with Section 1106, the CVA defines

“direct victim,” in pertinent part, as follows:

“Direct victim.” An individual against whom a

crime has been committed or attempted and who as

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a direct result of the criminal act or attempt suffers

physical or mental injury, death or the loss of

earnings under this act. The term shall not include

the alleged offender.

18 P.S. § 11.103.

Clearly, under the CVA, a parent may be compensated as a

“family member” or as the parent/legal guardian of a minor child in a

representative capacity. The intent of the CVA is to compensate family

members for their loss relative to their relationship to the direct victim. 1

Admittedly, some confusion has occurred because 18 Pa.C.S.A. § 1106

specifically references Section 479.1 of the Administrative Code of 1929,

which is the former codification of the CVA.2 We addressed this issue in

1

Unfortunately, as explained by Ms. Kerlin from the Office of Victims’

Services, Bryan’s parents would not be entitled to compensation because of

his criminal conduct in driving a vehicle while intoxicated. If Bryan had been

a passenger, rather than the driver, his parents would be entitled to

compensation for funeral expenses under the CVA.

2

Similarly, the Sentencing Code, 42 Pa.C.S.A. § 9721, references the

Administrative Code:

(c) Mandatory restitution.--In addition to the

alternatives set forth in subsection (a) of this section

the court shall order the defendant to compensate

the victim of his criminal conduct for the damage or

injury that he sustained. For purposes of this

subsection, the term “victim” shall be as defined in

section 479.1 of the act of April 9, 1929 (P.L. 177,

No. 175), known as The Administrative Code of

1929.

42 Pa.C.S.A. § 9721(c) (footnote omitted). Section 5103 of Act 111

repealed, inter alia, Section 479.1 of the Administrative Code of 1929.

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Commonwealth v. Opperman, 780 A.2d 714 (Pa.Super. 2001), appeal

denied, 792 A.2d 1253 (Pa. 2001). In Opperman, the appellant pled guilty

to driving under the influence (“DUI”) and homicide by vehicle while DUI.

State Farm Mutual Automobile Insurance Company (“State Farm”) sought

restitution for the $45,000 it paid pursuant to the wrongful death and

survival actions, alleging that it was one of the appellant’s victims under

18 Pa.C.S.A. § 1106(h), which defines victim to include “any insurance

company that has compensated the victim for loss under an insurance

contract.” Id. at 717. Prior to the entry of the appellant’s guilty plea,

State Farm entered into a release with the victim’s parents whereby

State Farm agreed to pay the uninsured limits of three separate automobile

insurance policies held by the victim’s mother. Id. The persons who were

to receive payments included the victim’s parents and various attorneys.

Id. The appellant argued that the proceeds by State Farm were direct

payments to third parties, not the victim, pursuant to the insurance

contracts held by the victim’s mother.

This court agreed that the trial court erred in ordering the appellant to

pay restitution to State Farm for the wrongful death action, because the

definition of “victim” under Section 1106 was repealed by the legislature and

no longer includes parents as provided for under the CVA:

As our decision is driven by the definition of a victim,

we are compelled to discuss the application of The

Administrative Code, supra as both 42 Pa.C.S.A.

§ 9721(c) and 18 Pa.C.S.A. § 1106(h) reference it.

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As we have previously indicated, the references to

The Administrative Code were accompanied by

footnotes, which refer the reader to 71 P.S.

§ 180-9.1. This section, which contains The

Administrative Code § 479.1, defines victim as “a

person against whom a crime is being or has been

perpetrated or attempted.” However, this section

was repealed on November 24, 1998, effective

immediately. 1998, Nov. 24, P.L. 882, No. 111,

§ 5103, imd. effective. While we are cognizant of

the fact that the subject matter of 71 P.S. 180-9.0

through 9.11 is now contained in the Crime Victims

Act, 18 P.S. § 11.101 et seq., this statute does not

formally adopt, subsume or recodify the subject

matter. It is also persuasive that 18 Pa.C.S.A.

§ 1106 was amended on December 3, 1998

subsequent to the repeal of 71 P.S. 180-9.1 and yet

continued to incorporate the definition of victim as

found in the Administrative Code of 1929. It would

appear that since 18 Pa.C.S.A. § 1106 was amended

after the effective date of the Crimes Victims Act and

the repeal of the 71 P.S. § 180-9-9.11, the

legislature had the opportunity to include the

definition of victim as contained in the Crime Victims

Act, if they so chose. Having not done so, we are

constrained to find that the definition of victim as

provided for in The Administrative Code of 1929 no

longer exists as the most recent statute

incorporating that definition has been abolished. As

a result, our review of this case is limited to the

definition of victim as it [is] set forth in the Crimes

Code and the Sentencing Code.

Opperman, 780 A.2d at 718-719. This court concluded that the victim’s

parents were not “victims” entitled to restitution under 18 Pa.C.S.A. § 1106

and 42 Pa.C.S.A. § 9721:

While reality dictates that the victim’s parents were,

in fact, victimized when their son was killed by

Appellant’s criminal act, they are not victims as

provided for by our legislature in the Crimes and

Sentencing Codes. Furthermore, while the Crimes

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Code does allow for an insurance company to be

considered a victim, this is only so when it provides

reimbursement to the victim as a result of the

perpetrator’s conduct. 18 Pa.C.S.A.

§ 1106(c)(1)(ii)(D).

Id. at 719-720.

[I]n the case sub judice, the insurance company

paid damages pursuant to insurance contracts held

by the victim’s mother for damages she and her

husband sustained as a result of the victim’s death.

The contract was not with the victim himself. Nor

are the parents’ damages awarded through the

estate, but they are their own damages as a result of

their son’s death. Thus, we agree with Appellant’s

assertion that the monies State Farm attempts to

collect from him were actually tendered to third

parties not contemplated by the definition of victim

in 18 Pa.C.S.A. § 1106 nor 42 Pa.C.S.A. [§] 9721.

Accordingly, it was an error for the trial court to

order Appellant to pay restitution to State Farm.

Id. at 720 (emphasis in original) (footnote omitted). Compare

Commonwealth v. Solomon, 25 A.3d 380, 390-391 (Pa.Super. 2011),

appeal denied, 40 A.3d 1236 (Pa. 2012) (trial court did not err in ordering

defendant to pay restitution under Section 1106 to the complainant rather

than the treating hospital to which the money was owed; “restitution is not

meant to be a reimbursement system to third parties but rather a

compensation system to ‘victims’ as that term is defined by the statute”),

quoting Keenan, 853 A.2d at 384.

Following Opperman’s lead, in Commonwealth v. Langston, 904

A.2d 917 (Pa.Super. 2006), this court determined that the CVA and

18 Pa.C.S.A. § 1106 are separate and distinct statutes, with different

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definitions of who qualifies as a “victim.” In Langston, the defendant’s

pick-up truck crossed the center line and struck Glenn Clark’s vehicle

head-on, killing him and injuring his wife, Annette Clark. The defendant pled

guilty to homicide by vehicle, recklessly endangering another person, and

summary offenses. Id. at 919. At the time of the accident, Mrs. Clark was

pregnant. Id. She gave birth to a healthy son, Michael Clark, while in a

persistent vegetative state. Id. As part of her sentence, the trial court

ordered the defendant to pay restitution in the amount of $20,000 to the

Crime Victim’s Compensation Fund (“the Fund”) for money it paid out to

Michael Clark’s guardians, to be held in trust for Michael Clark. Id. at 920.

Under 18 Pa.C.S.A. § 1106(h), the Fund may be substituted as the “victim”

to receive mandatory restitution where compensation has been paid by

the Fund to the victim as defined by Section 1106. Id. at 922-923.

This court in Langston concluded that while Michael Clark was a

“claimant” entitled to loss of support under Section 11.103 of the CVA

(family member of a homicide victim), he was not a “direct victim” of the

crime entitled to restitution under 18 Pa.C.S.A. § 1106. There was no

evidence that Michael Clark sustained any physical injuries as a result of the

defendant’s conduct. Id. at 923. After analyzing Opperman, this court in

Langston decided that Michael Clark was not a “direct victim” of the crime

entitled to restitution under 18 Pa.C.S.A. § 1106:

Similarly, here, although Michael Clark has been

undoubtedly “victimized” by appellant in the tragic

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loss of his parents, he is not a victim for restitution

purposes as provided by statute. The mandatory

payment of restitution pursuant to Section 1106 of

the Crimes Code is limited to the direct victim and

not to third parties, including family members, who

shoulder the burden of the victim’s losses. Keenan,

supra at 384, citing Commonwealth v. Balisteri,

329 Pa.Super. 148, 478 A.2d 5, 10 (1984);

Opperman, supra.

Langston, 904 A.2d at 924. Since the Fund did not make any payments to

the direct victims of the defendant’s crimes, the defendant could not be

required to reimburse the Fund under 18 Pa.C.S.A. § 1106(c)(1)(i). The

CVA and Section 1106 have different definitions of who qualifies as a

“victim”; a “claimant” for purposes of the CVA is not necessarily a “victim” of

the crime entitled to mandatory restitution under Section 1106. Id. at 925.

Langston’s discussion of who is a “victim” under the CVA and

Section 1106 was cited favorably by the Pennsylvania Supreme Court in the

recent case of Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). In Hall,

the court considered whether the trial court could order the defendant to pay

child support for the victim’s children, as a condition of his probation under

42 Pa.C.S.A. § 9754. Section 9754 does not expressly authorize future

financial support to a homicide victim’s surviving minor children, nor would

the victim’s children be considered “direct victims” of the crime under

Section 1106 of the Crimes Code.

Nevertheless, both the dissent below and the

Commonwealth advert to the Crime Victims Act,

noting that the definition of victim in that statute is

much broader than the definition of victim in

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Section 1106, and specifically embraces the child or

children of a homicide victim. 18 P.S. § 11.103.

This is true so far as it goes, but the statute

obviously is of tangential relevance at best. The

Crime Victims Act provides a scheme for protecting

victims’ rights and establishing remedies, such as

compensation from various funds. However,

compensation under the Act is made on the basis of

claims filed by individual victims of crimes and

determined by the Office of Victims’ Services, 18 P.S.

§§ 11.702, 11.704, rather than through

court-ordered restitution by the defendant, although

the amount of victim compensation under the Act

may be reduced by amounts separately paid by the

defendant as restitution. 18 P.S. §§ 11.707(e)(1),

11.1302. Accord Langston, supra (holding that

court-ordered restitution was not supportable

by fact that victim’s son was a

“victim/claimant” for purposes of Crime

Victims Act; reasoning that Section 1106 and

Crime Victims Act are two separate and distinct

statutes, with different purposes and differing

definitions of who qualifies as “victim,” and are

not interchangeable for purposes of defining

proper recipients of restitution).[Footnote 5]

[Footnote 5] We are not persuaded by

the Commonwealth’s suggestion that the

Crime Victims Act specifically authorizes

the Section 9754 restitution in this case

based on the Act’s broad definition of the

term “victim.” In making this argument,

the Commonwealth notes that the

Superior Court’s decision in

[Commonwealth v. Lebarre, 961 A.2d

176 (Pa.Super. 2008)], which approved

Section 1106 restitution for the benefit of

a deceased victim’s child, is at odds with

the en banc court’s decision in this case.

In Lebarre, the three judge panel

concluded that the definition of “victim”

in the Crime Victims Act applies to

Section 1106 restitution, through a

general cross-reference to a repealed

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Administrative Code provision in

18 Pa.C.S. § 1106(h) (defining “victim”

for purposes of restitution by referring to

section 479.1 of Administrative Code of

1929, 71 P.S. § 180–9.1). 961 A.2d at

179 n. 9. The repealed provision

indicates generally that its subject

matter, “which related to rights of and

services for crime victims,” is now

located in the Crime Victims Act, 18 P.S.

§ 11.101 et seq. 71 P.S. § 180-9.1.

To properly decide this case, we need not resolve the

question of the interplay, if any, between the Crime

Victims Act and Section 1106 of the Crimes Code.

As we have already determined, the plain meaning of

Section 9754, which is actually at issue here, allows

for a broader range of “victims” for purposes of

fashioning probationary conditions.

Hall, 80 A.3d at 1214 (emphasis added). Whether considered as dicta or

an integral part of its rationale, the Pennsylvania Supreme Court clearly

recognized with approval Langston’s analysis that the CVA and

Section 1106 are not interchangeable for purposes of determining who

qualifies as a “victim,” but are separate and distinct statutes with different

underlying purposes and legislative rationales. Ultimately, the Hall court

determined that the trial court’s award of $200/month of child support was

speculative and not supported by the record. Id. at 1216-1217.

As this court observed in Opperman, the legislature had the

opportunity to include the definition of “victim” as contained in the CVA, if it

so chose, when it amended Section 1106 on December 3, 1998, subsequent

to the repeal of 71 P.S. § 180-9.1. Opperman, 780 A.2d at 718-719.

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Section 1106 was amended again on November 30, 2004, after this court’s

decision in Opperman. 2004, Nov. 30, P.L. 1618, No. 207, § 3, effective in

60 days (January 31, 2005). The legislature continued to incorporate the

definition of “victim” as found in the Administrative Code of 1929. “The

failure of the General Assembly to change the law which has been

interpreted by the courts creates a presumption that the interpretation was

in accordance with the legislative intent; otherwise the General Assembly

would have changed the law in a subsequent amendment.” Kenney v.

Jeanes Hosp., 769 A.2d 492, 497 (Pa.Super. 2001), appeal denied, 786

A.2d 988 (Pa. 2001), quoting Fonner v. Shandon, Inc., 724 A.2d 903, 906

(Pa. 1999).

We reaffirm our holdings in Opperman and Langston that mandatory

restitution under 18 Pa.C.S.A. § 1106 is limited to the direct victim and not

third parties, including family members. Further, Section 1106(a) of the

Crimes Code and the CVA, 18 P.S. § 11.103, must be read together, in

pari materia, to give effect to the different purposes of the two statutes.

In re Trust Under Deed of Kulig, 131 A.3d 494, 497 (Pa.Super. 2015)

(“Statutory provisions relating to the same subject must be read in

pari materia.”) (citations omitted); Casiano v. Casiano, 815 A.2d 638,

642 (Pa.Super. 2002), appeal denied, 829 A.2d 1156 (Pa. 2003) (“statutes

or parts of statutes that relate to the same persons or things or to the same

class of persons or things are to be construed together, if possible”) (citation

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omitted); In re Peplinski's Estate, 39 A.2d 271, 275 (Pa.Super. 1944)

(“Statutes are to be construed in connection and in harmony with the

existing law, and as a part of a general and uniform system of

jurisprudence.”) (citations and quotation marks omitted). “Moreover,

individual provisions of a statute should not be read in the abstract, but

must be construed with a view to its place in the entire legislative structure

of the [statute].” Casiano, 815 A.2d at 642 (quotation marks and citation

omitted).

This interpretation is completely consistent with the statutory

framework of both Section 1106 and the CVA. Both Section 1106 and the

CVA consistently define direct victim as the person directly injured by the

offender’s actions. While the facts of this case are tragic and Joseph and

Laura Nave undoubtedly have suffered a grave loss and been victimized by

appellant’s actions, they are not victims as provided for by our legislature in

the Crimes and Sentencing Codes. As such, we are constrained to conclude

that the trial court erred, as a matter of law, when it ordered appellant to

pay restitution to the victim’s parents as part of her sentence under

18 Pa.C.S.A. § 1106. This resulted in an illegal sentence. Nor are we

inclined to unnecessarily broaden the legislature’s clear definition of a victim

entitled to restitution under 18 Pa.C.S.A. § 1106.

Since we determine that the victim’s parents were not themselves

“victims” for purposes of 18 Pa.C.S.A. § 1106, it is unnecessary to address

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appellant’s argument that the victim’s death was not directly caused by her

criminal actions. In addition, it is unnecessary to address appellant’s

argument that the trial court should have apportioned damages, as she was

not the sole cause of the accident.

We also observe that appellant was sentenced to two years’ probation

on November 6, 2012. Appellant’s probationary term should have expired

on or about November 6, 2014. When appellant’s probationary period

expired, the trial court lost the authority to impose conditions of probation,

including restitution. Commonwealth v. Karth, 994 A.2d 606, 610

(Pa.Super. 2010) (“Once the term of probation expires, so, too, must any

conditions attached thereto.”). As there is no indication that appellant is still

serving her sentence, remand would be pointless. Cf. Commonwealth v.

Popow, 844 A.2d 13, 20 (Pa.Super. 2004) (vacating the judgment of

sentence and remanding for resentencing where the trial court improperly

ordered restitution as part of the appellant’s sentence under 18 Pa.C.S.A.

§ 1106(a), but restitution could be ordered as a condition of probation under

42 Pa.C.S.A. § 9754(c)(8)).

For these reasons, we would reverse the order of January 21, 2014,

denying appellant’s motion for reconsideration, and vacate that part of

appellant’s sentence ordering restitution in the amount of $12,794.50 to the

victim’s parents, Joseph and Laura Nave.

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J. E01007/16

Bender, P.J.E., Lazarus and Ott, JJ. join this Opinion in Support of

Reversal.

Mundy, J. did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2017

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