Com. v. Holmes, N.

J-E01007-16

2017 PA Super 2

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NORMA JEAN HOLMES

Appellant No. 305 MDA 2014

Appeal from the Order Entered January 21, 2014

In the Court of Common Pleas of 39th District

Fulton County Branch

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

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

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

OPINION IN SUPPORT OF AFFIRMANCE BY STABILE, J.:FILED JANUARY 04, 2017

Appellant Norma Jean Holmes appeals from the order entered January

21, 2014 in the Court of Common Pleas of the 39th Judicial District, Fulton

County Branch (“trial court”), affirming a prior order denying Appellant’s

request to modify the amount of restitution imposed at sentencing.

Appellant entered a plea of nolo contendere to one count of recklessly

endangering another person (“REAP”) in connection with the death of the

victim, Bryan S. Nave. The trial court ordered Appellant to pay restitution to

the victim’s parents, Joseph and Laura Nave, in the amount of $12,794.50,

for the victim’s funeral expenses. Upon review, we affirm in part and vacate

in part.

The facts and procedural history underlying this case are not in

dispute. In the early morning hours of November 20, 2011, Appellant and

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the victim left the Log Cabin Bar in Hancock, Maryland. The victim was

driving Appellant’s vehicle, with her permission. Both the victim and

Appellant had been drinking heavily that night. They were returning home

to Greencastle, Pennsylvania, when the victim lost control of the vehicle on

State Route 70, westbound. The victim was killed in the single-vehicle

accident; Appellant, who was asleep in the passenger seat, survived the

crash.

Appellant was charged with one count of REAP1 and two summary

counts of Permitting Violation of Title.2 On October 9, 2012, Appellant pled

nolo contendere to the charge of REAP and the Commonwealth nolle prossed

the remaining charges. Appellant appeared for sentencing on November 5,

2012, before the Honorable Douglas W. Herman. At sentencing, defense

counsel remarked that there was no agreement as to restitution. N.T.,

Hearing, 11/5/12, at 5. The trial court stated, “[b]ut we will put the

amounts in the restitution order, and that’s the starting point for it and then,

Mr. Keller, I think the procedure is for you to request a hearing at some

point.” Id. The trial court imposed a sentence of two years’ probation, plus

costs and restitution:

You’re placed on probation for a period of 24 months, pay the

court costs, pay $200 to the Fulton County Law Library. You’ll

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1

18 Pa.C.S.A. § 2705.

2

75 Pa.C.S.A. § 1575(a) (permitting reckless driving and permitting

unlicensed operation).

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undergo a drug and alcohol assessment and following any

recommendations for treatment, 50 hours of community service.

You may not consume alcohol or any controlled substance and

you’ll [be] subject to random testing to insure compliance with

that condition. You’ll pay the restitution as determined by the

district attorney and, of course, there’s an issue with that that

the courts with [sic] deal with at some point, and finally you

have a supervision fee of $25 per month to defray the cost of

the supervision that the court has ordered in this case.

Id. at 9-10.

The November 6, 2012 sentencing order, under “Financials,” provided

that Appellant shall pay all court costs, a $25 per month supervision fee, and

restitution as determined by the district attorney in the amount of

$12,794.503 to the victim’s parents, Joseph and Laura Nave. (Docket #21.)

On July 31, 2013, Appellant filed a “motion for restitution hearing,” arguing

that restitution was improper where the victim’s death was caused by his

own criminal conduct of driving under the influence of alcohol. The

Commonwealth filed an answer on August 14, 2013, responding that

Appellant’s recklessness in allowing the victim to drive her car caused the

victim’s death, and that the victim’s parents, as his personal

representatives, stand in his shoes as victims pursuant to 18 Pa.C.S.A.

§ 1106(h).4 (Docket #19.)

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3

This amount represented a funeral bill of $11,134.00 and a monument bill

of $1,660.50.

4

In this case, there was no estate raised for Bryan Nave. The record

indicates that the victim’s parents paid for his funeral expenses

out-of-pocket.

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On September 16, 2013, the parties filed a “stipulation of facts in lieu

of hearing,” which set forth the operative facts as follows:

1. [Appellant] Norma Jean Holmes and Bryan S. Nave, sui

juris adults, agreed that he would pick her up at her home

in Greencastle, Pennsylvania on November 19, 2011 to go

together to the Log Cabin in Hancock, Maryland.

2. Mr. Nave drove his vehicle to Greencastle, where it

became inoperable and [Appellant] allowed him thereafter

to drive her car. Both Mr. Nave and [Appellant] consumed

alcoholic beverages on the night of November 19,

2011/early morning of November 20, 2011. The attached

handwritten statement of [Appellant] on Pennsylvania

State Police Victim/Witness Statement Form, dated

12/21/11 and the attached two page handwritten

statement of [Appellant] on Pennsylvania State Police

Noncustodial Written Statement Form dated 12/21/11 may

be considered as her testimony.

3. After they got into her vehicle at the Log Cabin,

[Appellant] fell asleep and Mr. Nave apparently drove

westbound on SR 70 instead of eastbound which would

have taken him in the direction of Greencastle.

4. Mr. Nave crashed the vehicle along the left lane of SR 70

westbound and died as a result of his injuries, while

[Appellant] suffered bodily injury which resulted in her

transport to and treatment in Conemaugh Hospital in

Johnstown, Pennsylvania.

5. The claim for restitution[,] set forth by the Commonwealth

at sentencing, is in keeping with the letter by Fulton

County Victim Services Coordinator Carolyn Kerlin, which

is attached hereto.

“Stipulation of facts in lieu of hearing,” 9/16/13 at 1-2; Docket #17

(reformatted for ease of reading).

Appellant’s statements to police, attached to the stipulation of facts,

are as follows:

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Bryan Nave asked me out. After convincing me (was opposed

because of his age) I finally agreed to go with him (Bryan) to the

Log Cabin in Hancock, MD. I told Bryan the only stipulation was

he (Bryan) had to pick me up at home. Bryan said “no

problem!” Bryan arrived approx. 8:10-8:15 [p.m.] on 11-19-11.

I had to stop at my local Legion to let a friend know I wouldn’t

be there that evening, that my plans changed! Bryan and I went

to [Greencastle] Legion for one drink. Bryan and I left [the]

Legion and went to [the] gas station. Got gas, Bryan wanted

liquor for [the] ride to [the] Log Cabin so I directed Bryan to

[the] liquor store. Bryan and I left [the] liquor store and headed

to [the] Log Cabin. Bryan and I drank, talked, and danced that

evening. I was tired so I asked Bryan if Bryan was ready to

leave (approx. 1 AM 11-20-11). Bryan said yes. Bryan and I

got into my car (Bryan still driving). I layed [sic] my seat back

and went to sleep. I woke up after [the] accident. I found my

way out of my car, flagged down help. I remember being in and

out of [sic]. I briefly remember [the] ride in [the] ambulance. I

remember hearing [the] rotors of [the] helicopter and then woke

up in [the] hospital when they were cutting my clothes off. I

found out that after noon that Bryan didn’t make it.

Pennsylvania State Police Victim/Witness Statement Form, 12/21/11 at 1.

Bryan Nave met [Appellant] and went to Greencastle Legion. He

had (1) beer believes Budweiser. Bryan drove [Appellant’s] car

to Sheetz in Greencastle. He then drove the car to [the] liquor

store. He bought a pt. of Cpt. Morgan. [Appellant] made Bryan

and herself a mixed drink in the car. They then went to the Log

Cabin in Hancock. Bryan bought all the drinks that night. He

drank approx. 10+ drinks. [Appellant] thinks she drank 6-7

mixed drinks. [Appellant] told Bryan that she don’t [sic] drink

and drive because she has a CDL [(Commercial Driver’s

License)] and she don’t [sic] want to lose them. Bryan drank (3)

straight shots of whiskey back to back. [Appellant] related she

believes they left [the] bar around 0100 hours due to the time of

the accident. [Appellant] related she got into the passenger seat

and went to sleep.

Pennsylvania State Police Noncustodial Written Statement, 12/21/11 at 2.

In a letter dated October 26, 2012, Carolyn Kerlin, Victim Services

Coordinator, opined that Appellant’s actions of permitting the victim to drive

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her vehicle knowing that he had consumed at least ten drinks caused the

victim’s death and that Appellant should be required to make restitution to

the victim’s parents for funeral expenses. However, Ms. Kerlin

acknowledged that if a victim’s compensation claim were filed, it would likely

be viewed as a DUI case for purposes of determining the victim’s eligibility

for compensation: “If the victim was driving, or the evidence seems to

support that he was, then the claim would be denied since he was driving a

vehicle while intoxicated, which is against the law and directly caused his

death.”

By order entered October 29, 2013, the trial court denied Appellant’s

request to modify the restitution award. (Docket #14.) The trial court

found that restitution was appropriate both as a condition of Appellant’s

probation under 42 Pa.C.S.A. § 9754(c)(8) of the Sentencing Code, and as

part of her sentence under 18 Pa.C.S.A. § 1106(a) of the Crimes Code,

which provides for mandatory restitution where a defendant’s actions

directly resulted in personal injury to the victim:

In light of these two standards for imposing restitution, we

believe that both have been satisfied. In regards to the “direct

causation” standard, we find that the reckless endangerment of

Bryan Nave directly resulted in his death. Therefore, the funeral

costs which were imposed as restitution were the direct result of

[Appellant’s] engaging in reckless conduct which placed Mr. Nave

in danger of death. Additionally, a sentence of probation was

imposed. Even if the sentence of probation did not rise to the

level of direct causation, the restitution would easily fall under

the standard of restitution as a condition of [Appellant’s]

probation.

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Order, 10/29/13 at 2.

On November 21, 2013, Appellant filed an application for

reconsideration, arguing that the record did not support a finding that

restitution was ordered as a condition of probation. Even if it had been,

Appellant argued, the trial court failed to inquire into Appellant’s ability to

pay, as required by 42 Pa.C.S.A. § 9754. According to Appellant, restitution

was imposed under 18 Pa.C.S.A. § 1106(a), which is improper when the

victim’s injuries are an indirect, rather than direct, result of the defendant’s

criminal actions. Appellant contended that her actions were not the sole or

direct cause of the victim’s death, where he was driving under the influence

of alcohol at the time of the fatal accident. Furthermore, Appellant argued

that even if restitution was appropriate under 18 Pa.C.S.A. § 1106(a), the

trial court was required to apportion damages where Appellant’s actions

were not the sole cause of the victim’s injuries. (Docket #13.)

On November 22, 2013, Appellant filed a notice of appeal from the

trial court’s October 29, 2013 order denying Appellant’s request to modify

restitution. (Docket #12.) On November 26, 2013, the trial court granted

Appellant’s application for reconsideration and ordered that all appeal

proceedings be stayed pending reconsideration of its October 29, 2013

order. (Docket #11.) On January 21, 2014, following receipt of the

Commonwealth’s response, Appellant’s application for reconsideration was

denied. (Docket #8.) In its January 21, 2014 order, the trial court

reiterated that the record fully supported restitution under 18 Pa.C.S.A.

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§ 1106(a); however, the trial court stated that restitution was imposed as a

condition of Appellant’s probation under 42 Pa.C.S.A. § 9754.

[Appellant] argues that the [c]ourt’s sentencing Order of

November 6, 2012 did not make restitution a condition of

probation. The Commonwealth appears to support this

contention, however, the [c]ourt strongly disagrees with both

the Commonwealth and [Appellant]. After review of the Order of

November 6, 2012, we conclude that Order specifically calls for a

24 month sentence of probation and language requiring

[Appellant] to pay restitution in the amount of $12,794.50 to

Joseph and Laura Nave. It is of no consequence that the

directive to pay restitution did [not] fit into the special conditions

section of the formatted sentencing order. The Order clearly

directs restitution as a condition of probation.

Order, 1/21/14 at 2, ¶4. In addition, the trial court opined that Appellant’s

ability to pay can be assessed at any time, by the court sua sponte, or on

Appellant’s own motion. Id. at 3, ¶ 5. The trial court also found this issue

to be waived, as it was not raised previously. Id. The trial court advised

Appellant that she had 30 days to appeal the ruling.

Appellant filed a notice of appeal on February 18, 2014. (Docket #7.)

On February 25, 2014, Appellant was ordered to file a concise statement of

errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b); Appellant complied on March 17, 2014, and on April 28,

2014, the trial court filed a Rule 1925(a) opinion. The trial court opined that

restitution was appropriate under 18 Pa.C.S.A. § 1106(a) because the loss

was the direct result of Appellant’s criminal actions. Trial Court Opinion,

4/28/14 at 3. The trial court stated that “[a]s a direct result of [Appellant’s]

conscious disregard of the known risk of death or great bodily harm caused

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by driving while under the influence, the victim died.” Id. The trial court

also found that the victim’s conduct in driving while under the influence of

alcohol was not an intervening cause of his death. Id. However, the trial

court insisted that, “[f]rom the sentencing hearing of November 5, 2012, it

is clear that restitution was a condition of probation.” Id. at 5. The trial

court observed that when restitution is imposed as a condition of probation,

rather than as a direct sentence under the Crimes Code, an indirect

connection between the criminal activity and the victim’s loss is sufficient.

Id. at 4-5 (citing Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.

Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007)). With regard to

Appellant’s ability to pay, the trial court determined that a defendant’s ability

to pay costs, fines, or restitution does not need to be assessed prior to

sentencing.

The court only needs to assess a defendant’s ability to pay costs,

fines, or restitution in the event that the defendant will be

confined for failure to pay said costs, fines, or restitution.

Because [Appellant] is not in danger of confinement, there was

no error when the Court did not address [Appellant’s] ability to

pay restitution.

Id. at 5 (citing Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super.

2013), appeal denied, 70 A.3d 808 (Pa. 2013); Pa.R.Crim.P. 706).

Appellant raised the following issues on appeal:

1. Did the court err by finding that restitution was imposed as

a condition of probation and applying an indirect causation

standard under 42 Pa.C.S. § 9754(c)(8) when the

sentencing proceedings did not indicate that it was a

condition of probation and the court did not make a

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determination regarding what loss had been caused by

[Appellant] and/or the amount [Appellant] could afford to

pay?

2. If restitution was ordered as a condition of probation, did

the court err by failing to make a determination under 42

Pa.C.S. § 9754(c)(8) regarding the loss or damage caused

by [Appellant] or assess [Appellant’s] ability to pay

restitution?

3. Did the court err by finding that restitution was proper as a

direct sentence under 18 Pa.C.S. § 1106 when the funeral

and memorial costs for the victim, on which the restitution

was based, were not the direct result of [Appellant’s]

reckless endangerment of the victim and [Appellant] was

not held criminally liable for causing the accident in which

the victim was killed?

4. Did the court err when it failed to consider the extent of

the victim’s injury and the damage caused by [Appellant’s]

conduct and to apportion restitution when [Appellant’s]

actions were not the sole cause of the victim’s injuries?

Appellant’s Brief at 8-9.

This Court certified this case for en banc review to address the

following issue: “Whether parents may be considered ‘victims’ for purposes

of determining restitution under 18 Pa.C.S.A. § 1106(a)?” The parties have

filed supplemental briefs addressing this issue.

Initially, we must address a procedural matter. Appellant was

sentenced on November 5, 2012, but did not request modification of

restitution until July 31, 2013, nearly nine months later. Ordinarily, of

course, post-sentence motions must be filed no later than 10 days after

imposition of sentence. Pa.R.Crim.P. 720(A)(1). However, a motion

requesting modification of restitution is not considered a typical

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post-sentence motion subject to timeliness constraints. See

Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (citing

18 Pa.C.S.A. § 1106(c)(3) (a defendant may seek a modification or

amendment of the restitution order at any time directly from the trial

court)).

Following the trial court’s October 29, 2013 denial of modification,

Appellant filed a motion for reconsideration on November 21, 2013, 23 days

later. It is unclear whether the November 21 filing was timely, as it would

not appear to fall under Pa.R.Crim.P. 720. Appellant also filed a notice of

appeal from the October 29, 2013 order on November 22, 2013. The trial

court granted reconsideration on November 26, 2013, within 30 days of the

October 29, 2013 order, apparently for purposes of permitting the

Commonwealth to file an answer. 42 Pa.C.S.A. § 5505 (“a court upon notice

to the parties may modify or rescind any order within 30 days after its entry

. . . if no appeal from such an order has been taken or allowed.”);

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007)

(“Under section 5505, the trial court has broad discretion to modify or

rescind an order, and this power may be exercised sua sponte or invoked

pursuant to a party’s motion for reconsideration.”) (citation omitted);

Pa.R.A.P. 1701 (tolling the time for taking an appeal only when the court

files “an order expressly granting reconsideration . . . within the time

prescribed by these rules for the filing of a notice of appeal.”). The trial

court also ordered that the appeal be stayed pending reconsideration. The

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November 22, 2013 appeal was later stricken pursuant to Pa.R.A.P. 1701 (“A

timely order granting reconsideration under this paragraph shall render

inoperative any such notice of appeal or petition for review of a quasijudicial

order theretofore or thereafter filed or docketed with respect to the prior

order.”).

On January 24, 2014, the trial court denied reconsideration and

informed Appellant of her rights pursuant to Pa.R.Crim.P. 720 and

Pa.R.A.P. 903(a), including that she had 30 days to file a timely appeal. See

Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989) (citing

Pa.R.A.P. 1701(b)(3)(ii) (where the court expressly grants reconsideration

within 30 days, the time for filing a notice of appeal begins to run anew after

entry of the decision on reconsideration, regardless of whether or not the

court’s decision amounts to a reaffirmation of its prior determination)).

Thus, Appellant timely appealed to this Court.

We now proceed to the issues raised on appeal. First, we consider

whether restitution was proper under Section 1106(a) of the Crimes Code.

Initially, we note that

[i]n the context of criminal proceedings, an order of

restitution is not simply an award of damages, but,

rather, a sentence. An appeal from an order of

restitution based upon a claim that a restitution

order is unsupported by the record challenges the

legality, rather than the discretionary aspects, of

sentencing. The determination as to whether the

trial court imposed an illegal sentence is a question

of law; our standard of review in cases dealing with

questions of law is plenary.

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[]Stradley, 50 A.3d [at] 771-72 . . . (citations and quotation

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

appellant’s] claim on appeal challenges the legality of his

sentence, its review is not abrogated by the entry of his guilty

plea.”).

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

Restitution is a creature of statute and, without express

legislative direction, a court is powerless to direct a defendant to

make restitution as part of his sentence. Commonwealth v.

Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that

statutory authority exists, however, the imposition of restitution

is vested within the sound discretion of the sentencing judge.

Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa. Super.

2004); see also id. (stating that “[t]he primary purpose of

restitution is rehabilitation of the offender by impressing upon

him that his criminal conduct caused the victim’s personal injury

and that it is his responsibility to repair the injury as far as

possible.”).

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

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

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

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

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

In the context of a criminal case, restitution may be imposed

either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a

condition of probation, 42 Pa.C.S. § 9754. When imposed as a

sentence, the injury to property or person for which restitution is

ordered must directly result from the crime. See 18 Pa.C.S.A.

§ 1106(a); Harner, 533 Pa. at 21, 617 A.2d at 704. However,

when restitution is ordered as a condition of probation, the

sentencing court is accorded the latitude to fashion probationary

conditions designed to rehabilitate the defendant and provide

some measure of redress to the victim. Harner, 533 Pa. at 21-

22, 617 A.2d at 706. As this Court stated in Harner:

Such sentences are encouraged and give the trial

court the flexibility to determine all the direct and

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indirect damages caused by a defendant and then

permit the court to order restitution so that the

defendant will understand the egregiousness of his

conduct, be deterred from repeating this conduct,

and be encouraged to live in a responsible way.

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

Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179,

1185 (1979). Thus, the requirement of a nexus between the

damage and the offense is relaxed where restitution is ordered

as a condition of probation. See Harner, 533 Pa. at 22-23 & n.

3, 617 A.2d at 707 & n. 3; see also 42 Pa.C.S. § 9754(c)(8).

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

Section 1106 of the Crimes Code provides in relevant part:

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

property has been stolen, converted or otherwise unlawfully

obtained, or its value substantially decreased as a direct result of

the crime, or wherein the victim suffered personal injury directly

resulting from the crime, the offender shall be sentenced to

make restitution in addition to the punishment prescribed

therefor.

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

has been ordered pursuant to subsection (a) and the offender

has been placed on probation or parole, his compliance with such

order may be made a condition of such probation or parole.

(c) Mandatory restitution.--

(1) The court shall order full restitution:

(i) Regardless of the current financial resources of

the defendant, so as to provide the victim with the

fullest compensation for the loss. The court shall not

reduce a restitution award by any amount that the

victim has received from the Crime Victim’s

Compensation Board or other governmental agency

but shall order the defendant to pay any restitution

ordered for loss previously compensated by the

board to the Crime Victim’s Compensation Fund or

other designated account when the claim involves a

government agency in addition to or in place of the

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board. The court shall not reduce a restitution award

by any amount that the victim has received from an

insurance company but shall order the defendant to

pay any restitution ordered for loss previously

compensated by an insurance company to the

insurance company.

(ii) If restitution to more than one person is set at

the same time, the court shall set priorities of

payment. However, when establishing priorities, the

court shall order payment in the following order:

(A) The victim.

(B) The Crime Victim’s Compensation

Board.

(C) Any other government agency which

has provided reimbursement to the

victim as a result of the defendant’s

criminal conduct.

(D) Any insurance company which has

provided reimbursement to the victim as

a result of the defendant’s criminal

conduct.

(2) At the time of sentencing the court

shall specify the amount and method of

restitution. In determining the amount

and method of restitution, the court:

(i) Shall consider the extent

of injury suffered by the

victim, the victim’s request

for restitution as presented

to the district attorney in

accordance with paragraph

(4) and such other matters

as it deems appropriate.

(ii) May order restitution in a

lump sum, by monthly

installments or according to

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such other schedule as it

deems just.

(iii) Shall not order

incarceration of a defendant

for failure to pay restitution if

the failure results from the

offender’s inability to pay.

(iv) Shall consider any other

preexisting orders imposed

on the defendant, including,

but not limited to, orders

imposed under this title or

any other title.

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

and phrases shall have the meanings given to them in this

subsection:

“Crime.” Any offense punishable under this title or by a

magisterial district judge.

“Injury to property.” Loss of real or personal property,

including negotiable instruments, or decrease in its value,

directly resulting from the crime.

“Offender.” Any person who has been found guilty of any

crime.

“Personal injury.” Actual bodily harm, including pregnancy,

directly resulting from the crime.

“Property.” Any real or personal property, including currency

and negotiable instruments, of the victim.

“Restitution.” The return of the property of the victim or

payments in cash or the equivalent thereof pursuant to an order

of the court.

“Victim.” As defined in section 479.1 of the act of April 9, 1929

(P.L. 177, No. 175), known as The Administrative Code of

1929.[FN:1] The term includes the Crime Victim’s

Compensation Fund if compensation has been paid by the Crime

Victim’s Compensation Fund to the victim and any insurance

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company that has compensated the victim for loss under an

insurance contract.

[FN:1] 71 P.S. § 180-9.1.

18 Pa.C.S.A. § 1106(a)-(c), (h).

As noted in subsection (h) above, the term “Victim” is defined as

provided under Section 479.1 of the Administrative Code of 1929. Section

479.1, however, was repealed in 1998 by Act 111,5 the Crime Victims Act

(“CVA”). Prior to its repeal, Section 479.1 defined “victim” as:

(1) A person against whom a crime is being or has been

perpetrated or attempted.

(2) A parent or legal guardian of a child so victimized, except

when the parent or legal guardian of the child is the alleged

offender.

(3) A family member of a homicide victim, including stepbrothers

or stepsisters, stepchildren, stepparents or a fiance, one of

whom is to be identified to receive communication as provided

for in this act.

See Commonwealth. v. Colon, 708 A.2d 1279 (Pa. Super. 1998).

Section 5102 of the CVA (Act 111), 18 P.S. § 11.5102, provides that the “act

is a codification of the statutory provisions repealed in [S]ection 5103 and,

except where clearly different from current law, shall be deemed to be a

continuation of prior law.” (Emphasis added). Section 51036 of the CVA

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5

Act of November 24, 1998, P.L. 882, No. 111, § 5103.

6

The text of Section 5103 does not appear in Purdon’s Pennsylvania

Statutes. Resort must be made to the text of the public law, Act No. 1998-

111, for the text of this statute that identifies section 479.1 as one of the

statutes repealed at the time Act 111 was enacted.

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

at the time Section 479.1 was repealed, the legislature concomitantly

enacted Section 5102, which, as stated, continued all consistent provisions

of the prior law. This legislative provision is also in accord with Section 1962

of the Statutory Construction Act, 1 Pa.C.S.A. § 1962, that provides,

“[w]henever a statute is repealed and its provisions are at the same time

reenacted in the same or substantially the same terms by the repealing

statute, the earlier statute shall be construed as continued in active

operation.” (Emphasis added).

Act 111, passed in 1998, deemed by Section 5102 to be a continuation

of the consistent provisions of the prior law, including Section 479.1, is the

current CVA. “Victim” under the CVA is defined as:

(1) A direct victim.

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

except when the parent or legal guardian of the child is the

alleged offender.

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

following crimes and offenses under 18 Pa.C.S. (relating to

crimes and offenses) committed or attempted against a

member of the child’s family:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim, including

stepbrothers or stepsisters, stepchildren, stepparents or a

fiance, one of whom is to be identified to receive

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communication as provided for in this act, except where the

family member is the alleged offender.

18 P.S. § 11.103. A comparison of the “victim” definitions under the now-

repealed Section 479.1 and the current CVA reveals that they are consistent

with each other and that the current CVA includes the same or substantially

the same terms for the definition of “victim” as previously contained under

Section 479.1. Therefore, as a matter of law and statutory construction, the

current definition of “victim” under the CVA is, as intended, a part of the

definition of “victim” under Section 1106(h). Having resolved what

definitions apply to the term “victim” under Section 1106, the question as to

whether the parents here are victims for purposes of ordering restitution

under Section 1106(a) can now be addressed.

Section 1106(h) by incorporation of the CVA, defines a “victim”, in

part, as “[a] parent or legal guardian of a child who was a direct victim. . . .”

18 Pa.C.S.A. § 11.103. There is no dispute that the restitution ordered by

the trial court was to compensate the parents of the victim, their child, in

this case. Section 1106(a) provides “upon conviction for any crime . . .

wherein the victim suffered personal injury directly resulting from the crime,

the offender shall be sentenced to make restitution in addition to the

punishment prescribed therefor.” 18 Pa.C.S.A. § 1106(a). Thus, we easily

conclude that restitution under Section 1106(a) had to be ordered as a part

of the sentence imposed upon Appellant to be paid to the parents of the

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victim here.7 Construing Section 1106(a) in this manner not only is

consistent with the express incorporation by reference of the definitions

under Section 1106(h), but also is consistent with our obligation under

Section 1921(a) of the Statutory Construction Act, 1 Pa.C.S.A. § 1921(a), to

construe statutes to effectuate the intention of the General Assembly. It is

abundantly clear that the expressed intent behind Section 1106(a) is to fully

compensate victims for losses sustained as a direct result of the actions of a

criminal offender. Moreover, this construction is consistent with those parts

____________________________________________

7

It cannot be disputed that reference to a “child” under the definition of

“victim” in the CVA applies equally to adult and minor children alike. The

term “child”, as defined in Section 11.103 of the CVA, is not preceded by any

qualifying adjectives. This is not a mere oversight by the General Assembly,

because a different provision in the same section of the CVA defines “victim”

as “[a] minor child who is a material witness to any of the following crimes

and offenses[.]” 18 P.S. § 11.103 (emphasis added). Thus, the General

Assembly clearly chose to qualify the term “child” with the adjective “minor”

in one subsection of Section 11.103 of the CVA but not the other. A

presumption exists that the legislature placed every word, sentence and

provision in the statute for some purpose and therefore, courts must give

effect to every word. Commonwealth v. Ostrosky, 909 A.2d 1224, 1232

(Pa. 2006). Accordingly, the term “child” when it is not preceded by a

qualifying adjective in Section 11.103 applies to both minors and adults.

See Pa.C.S.A. § 1922(2) (“the General Assembly intends the entire statute

to be effective and certain.”). Additionally, construing the term “child” as

not including adult children would be inconsistent with case law that has

interpreted the term “child” to include parents of adult children who are

victims. See, e.g., Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997) (approving restitution to a victim’s parents for funeral

expenses), appeal denied, 699 A.2d 735 (Pa. 1997).

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of the CVA that may be read in pari materia with Section 1106,8 expressly

providing that victims should be restored through provision of restitution,

and that any person who assumes the obligation to pay for the funeral or

burial expenses as a direct result of a crime be compensated. See 18 P.S.

§§ 11.201(6) and 11.701(a)(6).

The Opinion in Support of Reversal (“OISR”) errs by focusing on that

part of the CVA definition of “victim” that includes “a direct victim,” as

opposed to that part of the definition most applicable here that includes “a

parent or legal guardian of a child who was a direct victim . . . .” The OISR

reaches this position by transposing the adjective “direct” under Section

1106(a) from a modifier of an offender’s criminal conduct to a modifier of

the term “victim.” The OISR concedes that it is abundantly clear from a

literal reading of Section 1106 that the victim, for purposes of mandatory

restitution, is a person “who suffered personal bodily injury as a direct

result of an offender’s action.” OISR at 7 (emphasis added). Yet, the

OISR then states the issue is whether under Section 1106(h) the definition

____________________________________________

8

In Commonwealth v. Langston, 904 A.2d 917 (Pa. Super. 2006), we

pointed out that the CVA and Section 1106 are separate and distinct statutes

with different purposes and definitions and are not interchangeable for

purposes of defining recipients of restitution. We disagree with this

characterization because it is an an overly broad generalization of the

statutes. To the extent parts of the statutes relate to the same things, they

are to be construed together as one statute, if possible. 1 Pa.C.S.A. § 1932.

Both statutes express an intent that parents who have to pay for funeral

expenses as a direct result of another’s criminal actions are to be

compensated.

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of victim is broadened to include the parents here as “one who is not a

direct victim of the offender’s conduct.” Id. (emphasis added). This subtle

transposition by the OISR removes the statutory focus of “direct” from the

criminal action that results in mandatory restitution and places the focus of

the modifier “direct” upon the victim. Had the legislature intended only to

compensate a “direct victim,” it clearly could have done so. Instead, the

legislature determined that several categories of victims, as defined under

the CVA, should be compensated if their loss directly results from

criminal action. Rather than focusing on the victim, restitution under

Section 1106(a) applies where there has been a loss “that flows from the

conduct which forms the basis of the crime for which a defendant is held

criminally accountable.” Yanoff, 690 A.2d at 266 (Pa. Super. 1997) (citing

Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992)). Restitution

under Section 1106 for a loss suffered by a victim must be directly

connected to the offender’s criminal conduct, as opposed to only providing

restitution to the victim himself as a “direct victim.” It would make little

sense given the purpose of this restitution statute to narrow the scope of

victims to only “direct victims” as done by the OISR, when the purpose of

this restitution statute is to be certain that an offender makes full restitution

for all direct losses resulting from his crime. This purpose is not fulfilled by

limiting mandatory restitution to only a “direct victim” when other persons

defined as “victims” by the legislature, like the parents here, also suffer

losses as a direct result of an offender’s criminal action.

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Furthermore, we reject Appellant’s argument that restitution could not

be ordered under Section 1106(a) because her conduct was not the direct

cause of the victim’s death. As stated, our Supreme Court has held that

Section 1106(a) “applies only for those crimes to property or person where

there has been a loss that flows from the conduct which forms the basis of

the crime for which a defendant is held criminally accountable.” Harner,

617 A.2d at 706. To determine the correct amount of restitution, a “but-for”

test is used—damages which occur as a result of the crime are those which

should not have occurred but for the defendant’s criminal conduct.

Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. 2006), appeal

denied, 918 A.2d 744 (Pa. 2007). Thus, there must be a direct link between

the crime and the requested damages for restitution to be ordered under

Section 1106(a). See Commonwealth v. Barger, 956 A.2d 458, 465 (Pa.

Super. 2008) (en banc), appeal denied, 980 A.2d 109 (Pa. 2009); see also

Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007)

(explaining that restitution ordered under Section 1106 is “proper only if

there is a direct causal connection between the crime and the loss”), appeal

denied, 934 A.2d 72 (Pa. 2007). As the undisputed facts in this case

establish, Appellant pled guilty to REAP under Section 2705 of the Crimes

Code in connection with the victim’s death.

We have held that a person is guilty of this crime when it is

shown that the person (1) possessed “a mens rea recklessness,”

(2) committed a wrongful deed or guilty act (“actus reus”), and

(3) created by such wrongful deed the danger of death or

serious bodily injury to another person. The element of “mens

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rea recklessness” has been defined as a conscious disregard of a

known risk of death or great bodily harm to another person.

“Serious bodily injury” is defined as bodily injury which creates a

substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function

of any bodily member or organ. We have further held that

Section 2705 was directed against reckless conduct entailing a

serious risk to life or limb out of proportion to any utility the

conduct might have had. Finally, the perpetrator must create an

actual condition of danger, not merely an apprehension of

danger.

Commonwealth. v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)

(internal citations and quotation marks omitted). As the trial court found

sub judice:

In the instant matter, [Appellant] recklessly endangered the

victim by allowing the victim to drive [Appellant’s] vehicle after

[the victim had] consum[ed] numerous alcoholic beverages.

Recklessness is defined as a conscious disregard of a known risk

of death or great bodily harm to another person. Because

[Appellant] knew that the victim had consumed numerous

alcoholic beverages, she disregarded a known risk of death or

great bodily harm to the victim by allowing him to drive while

intoxicated. As a direct result of her conscious disregard of the

known risk of death or great bodily harm caused by driving while

under the influence, the victim died. Therefore, the loss in the

instant matter, the funeral costs and expenses of the victim,

were the direct result of [Appellant’s] reckless endangerment of

another person.

Trial Court Opinion, 4/28/14, at 3 (internal citations omitted). Based on the

evidence of record, we discern no error in the trial court’s imposition of

restitution under Section 1106(a) because the victim’s death was the direct

result of Appellant’s criminal conduct (REAP). Put differently, but for

Appellant’s criminal conduct of allowing the victim to drive her vehicle while

under the influence of alcohol, the victim would not have died. See Oree,

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supra. Accordingly, the trial court did not err to the extent it ordered

restitution under Section 1106(a) for the victim’s funeral costs and expenses

paid by his parents.

The conclusion that the parents are entitled to restitution for funeral

expenses directly resulting from the death of a son because of Appellant’s

criminal conduct in fact was settled prior to the repeal of Section 479.1 and

the concomitant enactment of Act 111, the CVA, in 1998. In Yanoff, the

trial court ordered the defendant to make restitution to the parents of the

victim in the amount of $6,396.00 for funeral expenses incurred as a result

of the defendant’s conviction of third-degree murder and aggravated assault

of their son. Restitution was ordered for funeral expenses because the

parents’ loss flowed from the defendant’s conduct for which he was

held criminally accountable. Yanoff, 690 A.2d at 266. At the time

Yanoff was decided, restitution as a part of a sentence under Section

1106(a) was not mandatory as it is today. In 1998, the legislature amended

the reference from “may” to “shall” to make restitution mandatory. The

remainder of Section 1106(a) remained unchanged. Had this case been

decided prior to the repeal of Section 479.1 in 1998, there is little doubt that

precedent would have supported mandatory restitution to the parents in this

case. The OISR reaches a different conclusion today based upon this Court’s

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decisions in Opperman9 and Langston that viewed the repeal of Section

479.1 as eliminating the definition of “victim” under the CVA from Section

1106.

Opperman reached the conclusion that the definition of “victim” as

provided for under Section 479.1 of the Administrative Code of 1929 no

longer exists because the legislature failed to continue to incorporate that

definition under Section 1106 when it was amended in 1998.10 This was in

error. The Opperman Court explained:

As we have previously indicated, the references to The

Administrative Code were accompanied by footnotes, which refer

the reader to 71 P.S. § 180-9.1. This section, which contains

The Administrative Code § 479.1, defines victim as “a person

against whom a crime is being or has been perpetrated or

attempted.” However, this section was repealed on November

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

111, § 5103, imd. effective. While we are cognizant of the fact

that the subject matter of 71 P.S. 180-9.0 through 9.11 is now

contained in the Crime Victims Act, 18 P.S. § 11.101 et seq., this

statute does not formally adopt, subsume or recodify the subject

matter. It is also persuasive that 18 Pa.C.S.A. § 1106 was

amended on December 3, 1998 subsequent to the repeal of 71

P.S. 180-9.1 and yet continued to incorporate the definition of

victim as found in the Administrative Code of 1929. It would

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

effective date of the Crimes Victims Act and the repeal of the 71

P.S. § 180-9-9.11, the legislature had the opportunity to include

the definition of victim as contained in the Crime Victims Act, if

____________________________________________

9

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

denied, 792 A.2d 1253 (Pa. 2001).

10

Curiously, the OSIR relies upon the definitions under the CVA to reaffirm

Opperman and Langston that expressly hold that the definitions under the

CVA do not apply to Section 1106 of the Crimes Code.

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they so chose. Having not done so, we are constrained to find

that the definition of victim as provided for in The Administrative

Code of 1929 no longer exists as the most recent statute

incorporating that definition has been abolished.

Id. 780 A.2d at 718-719. Opperman’s conclusion that the definition of

“victim” under Section 479.1 of the Administrative Code of 1929 was no

longer a part of Section 1106, was premised entirely upon the language of

the historical and statutory notes in the repealer to Section 5103 of Act 111

that simply refers the reader for the subject matter of the repealed section

to 18 P.S. § 11.101 et seq., the CVA concomitantly enacted in 1998. For

whatever reason, the Opperman Court failed to take notice of Section 5102

of the CVA, which as stated, provides that except where clearly different

from current law, the statutory provisions repealed under Section 5103 shall

be deemed to be a continuation of prior law. The repealed provisions under

Section 5103 contained the definitions under Section 479.1 of the

Administrative Code of 1929, which also as stated, contained the multi-part

definition for the term “victim” that is the same or substantially the same as

that contained in the CVA. Thus, Opperman was incorrectly decided due to

its oversight of these important legislative provisions.

Langston, relying upon Opperman’s holding that an insurance

company that paid damages under insurance contracts held by a victim’s

mother did not qualify as a victim under Section 1106, concluded that a child

victimized by a defendant in the tragic loss of his parents was not a victim

for restitution purposes under Section 1106. Langston did not discuss, like

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Opperman, the relationship between the definitions of “victim” under the

CVA and Section 1106 as affected by the various repealer and enactment

provisions discussed above. Langston instead simply relied upon the legal

conclusion reached in Opperman. Nonetheless, to the extent that

Langston is dependent upon Opperman’s legislative analysis, we conclude

that Langston too was decided in error.

The OISR is mistaken insofar as it claims that our Supreme Court’s

citation to Langston in the recent case of Commonwealth v. Hall, 80 A.3d

1204 (Pa. 2013), sufficiently lends support to the statutory interpretation

question presently before us. In Langston, this Court stated that the CVA

and Section 1106 are two separate and distinct statutes with different

purposes and definitions of who qualifies as a “victim,” and are not

interchangeable for purposes of defining recipients of restitution. Hall held

that compensation paid under the CVA is made on the basis of claims filed

by individual victims as determined by the Office of Victim Services rather

than through court-ordered restitution by a defendant. The Supreme Court

cited Langston in support of this statement and parenthetically summarized

Langston’s holding as above described. The Supreme Court’s citation of

Langston was in support of the point made that compensation and

restitution are handled differently under the CVA and Section 1106. It did

not decide the statutory interpretive question presently before us despite the

Commonwealth’s argument to the Court that the Superior Court’s decision in

Commonwealth v. Lebarre, 961 A.2d 176 (Pa. Super. 2008), which found

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that restitution was properly ordered to a child’s estate under Section 1106,

was at odds with the Superior Court’s en banc decision in Hall. In refusing

to address this alleged inconsistency, the Supreme Court stated:

To properly decide this case, we need not resolve the question of

the interplay, if any, between the Crime Victims Act and Section

1106 of the Crimes Code. As we have already determined, the

plain meaning of Section 9754, which is actually at issue here,

allows for a broader range of “victims” for purposes of fashioning

probationary conditions.

Hall, 80 A.2d at n.5. Thus, as of 2013, the Supreme Court reserved

decision on the interplay between Section 1106 and the CVA for purposes of

defining “victims” under those statutes. In light of Opperman’s and

Langston’s omission to recognize the effect of Section 5102 and to apply

the “victim” definitions under the CVA to Section 1106, we conclude that

Opperman and Langston were decided wrongly. Consequently, we hold

that the definition of “victim” under the CVA is indeed applicable to Section

1106 of the Crimes Code. We, unlike the OSIR, therefore decline to reaffirm

those decisions.

Because we find restitution had to be ordered under Section 1106(a),

we need not reach the question as to whether the trial court erred in failing

first to determine Appellant’s ability to pay restitution under Section 9754 of

the Sentencing Code, 42 Pa.C.S.A. § 9754, which permits restitution to be

imposed as a condition of probation. If we were to reach this question, we

would conclude that the trial court erred in ordering restitution as a condition

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of probation under Section 9754 without first determining Appellant’s ability

to pay the restitution. See Harner, infra.

We also conclude that the trial court erred in ordering restitution under

both Section 1106(a) of the Crimes Code and Section 9754(c)(8) of the

Sentencing Code. When a victim suffers injury to person or property, a

sentencing court is mandated under Section 1106(a) to enter an order of

restitution. Restitution under Section 1106(a), as part of a sentence, is

penal in character and is imposed for losses for which a defendant has been

held criminally accountable. Harner, 617 A.2d at 706. When restitution is

issued under Section 1106(a), a sentencing court is obligated to order full

restitution regardless of the current financial resources of a defendant.

18 Pa.C.S.A. § 1106(c)(1)(i). Once an order of restitution has been made as

part of a defendant’s sentence under Section 1106(a), it is enforceable until

paid. 18 Pa.C.S.A. § 1106(c)(2)(ii); Commonwealth v. Griffiths, 15 A.3d

73, 75 (Pa. Super. 2010).

In contrast, restitution may be ordered under Section 9754(c)(8) as a

condition of probation. 42 Pa.C.S.A. § 9754(c)(8). When ordered as a

condition of probation a court may order a defendant “[t]o make restitution

of the fruits of his crime or to make reparations, in an amount he can afford

to pay, for the loss or damage caused thereby.” Id. Unlike restitution

under Section 1106(a) that serves a punitive purpose, restitution ordered as

a condition of probation under Section 9754(c)(8) is primarily aimed at

rehabilitating and integrating a defendant into society as a law-abiding

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citizen and is deemed a constructive alternative to imprisonment. Harner,

617 A.2d at 706; Hall, supra. Additionally, a sentencing court, when

ordering restitution under Section 9754(c)(8), also must determine what

amount of restitution a defendant can afford to pay, and how the restitution

is to be paid. Harner, 617 A.2d at 707. Unlike restitution under Section

1106(a), the obligation to pay restitution under Section 9754(c)(8), as a

condition of probation, expires upon the end of the term of probation, even if

the amount of restitution ordered has not been paid in full.

Commonwealth v. Karth, 994 A.2d 606, 610 (Pa. Super. 2010).

When restitution is ordered under Section 1106(a), it is a part of an

offender’s sentence. A sentence of restitution is mandatory when there has

been injury to person or property by an offender’s criminal conduct.

Restitution as a part of a sentence is not satisfied until paid in full,

regardless of a defendant’s financial resources. In contrast, ordering

restitution as a condition of probation under Section 9754(c)(8) must be

based upon an offender’s ability to pay and also, as stated, is discharged

upon the expiration of the term of probation regardless of whether the

obligation has been paid in full. It is inconsistent to order restitution as a

sentence, regardless of an ability to pay and without discharge until paid in

full, and at the same time order restitution as a condition of probation where

the ability to pay must be determined and the restitution obligation is

discharged upon the expiration of the term of probation. If restitution must

be ordered and paid in full under Section 1106(a), it cannot at the same

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time also be a condition of probation that can be discharged upon

completion of probation.

Restitution is a creature of statute. Harner, 617 A.2d at 704. It

would be impermissible for this Court to interpret Sections 1106(a) and

9754(c)(8) in a manner that would create conflicts between these two

statutory provisions. See 1 Pa.C.S.A. § 1921(a) (every statute to be

construed to give effect to all its provisions); see also 1 Pa.C.S.A.

§ 1932(b) (statutes in pari materia to be construed together, if possible, as

one statute). Simply put, if restitution must be ordered as part of a

sentence under Section 1106(a), it cannot at the same time also be ordered

merely as a condition under Section 9754(c)(8).11 The trial court, therefore,

erred in ordering restitution simultaneously under Section 1106 of the

Crimes Code and Section 9754 of the Sentencing Code. Accordingly, we

vacate the trial court’s order as it relates to restitution under Section

9754(c)(8).

In sum, we affirm the trial court’s order of restitution under Section

1106(a), and vacate the order to the extent it ordered restitution under

Section 9754(c)(8).

____________________________________________

11

When restitution is ordered under Section 1106(a) and an offender has

been placed on probation or parole, restitution also may be ordered as a

condition of such probation or parole. 18 Pa.C.S.A. § 1106(b). This

restitution, however, is still a condition of an offender’s sentence as opposed

to a condition of probation under Section 9754(c)(8).

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Order affirmed in part and vacated in part. Jurisdiction relinquished.

Judge Bowes, Judge Shogan, and Judge Olson join this Opinion in

Support of Affirmance.

President Judge Emeritus Ford Elliott files an Opinion in Support of

Reversal in which President Judge Emeritus Bender, Judge Lazarus and

Judge Ott join.

Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2017

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