The opinion
J-S49027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BREONNA LASHAE SWEENEY :
:
Appellant : No. 1878 WDA 2019
Appeal from the Judgment of Sentence Entered November 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011186-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 30, 2020
Appellant, Breonna Lashae Sweeney, appeals from the November 13,
2019 Judgment of Sentence entered in the Allegheny County Court of
Common Pleas following remand from this Court for resentencing. Appellant
challenges the restitution portion of her Judgment of Sentence that directed
her to pay restitution to Equian, LLC. After careful review, we reverse and
remand for resentencing.
The relevant facts and procedural history are as follows. On May 20,
2017, Appellant and her co-defendant, Roneese Davis, assaulted a former co-
worker while the three women were riding a Pittsburgh Port Authority bus.
Video surveillance footage recorded the assault and showed Appellant and Ms.
Davis repeatedly punching and slapping the victim on the face. Immediately
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* Former Justice specially assigned to the Superior Court.
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following the attack, the victim complained of head and facial pain, vision
problems, and reported that her eyeglasses had been broken in the assault.
The victim immediately sought medical treatment at Magee Women’s Hospital
and, on June 7, 2017, underwent surgery at UPMC to repair a detached retina.
The Commonwealth charged Appellant and Ms. Davis with one count each of
Simple Assault, Disorderly Conduct, Criminal Mischief, and Harassment 1
arising from the assault.
On March 12, 2018, Appellant and Ms. Davis entered guilty pleas to
those offenses. That same day, the trial court sentenced Appellant and Ms.
Davis to two years of probation for the Simple Assault convictions followed by
one year of probation for the Disorderly Conduct convictions. At sentencing,
the Commonwealth submitted a restitution request for $5,383.88 payable to
Equian, LLC (“Equian”), a third party collection agency.2 The Commonwealth
also sought restitution of $1,300 for ambulance and hospital expenses paid
by the Victim’s Compensation Assistance Program and $149 paid by the victim
to Family Vision Care to replace her eyeglasses. The court noted that it would
order Appellant and Ms. Davis to pay restitution jointly and severally, but
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1 18 Pa.C.S. §§ 2701(a)(1), 5503(a)(4), 3304(a)(5), and 2709(a)(1),
respectively.
2 The Commonwealth explained UPMC “sent to the debt collector” the costs
associated with surgery to repair the victim’s detached retina because the
victim was uninsured. N.T. Restitution Hr’g, 4/13/18, at 6-7. According to
the trial court, “UPMC contracted with Equian, a third party collection agency,
to administer [UPMC’s] claim.” N.T. Restitution Hr’g, 6/21/18, at 4.
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deferred determining the amount of the restitution award pending a restitution
hearing.
On April 13, 2018, May 8, 2018, and June 21, 2018, the trial court held
hearings to establish the amount of the restitution owed by Appellant and Ms.
Davis. The Commonwealth submitted to the court copies of the victim’s
medical records, an itemized statement of expenses from the Victim’s
Compensation Assistance Program, a statement of charges and payments
from Family Vision Care, and a “consolidated statement of benefits”3 and letter
from Equian in support of its restitution claim. Defense counsel conceded that
the medical expenses incurred by the victim arose from surgery to repair the
victim’s detached retina, but argued that the Commonwealth had not
presented any evidence that the criminal assault perpetrated by Appellant and
Ms. Davis caused the victim’s detached retina. Defense counsel also averred
that Equian is not an enumerated “victim” under the applicable restitution
statute, 18 Pa.C.S. § 1106 (the “Restitution Statute”), or an actual person,
and, thus, is not entitled to restitution. The Commonwealth asserted that the
victim’s medical records and her impact statement at the guilty plea and
sentencing hearing supported the claim for restitution payable to Equian. The
Commonwealth also argued that Equian is a “victim” under the Restitution
Statute because the statute’s enumerated list of victims is non-exhaustive and
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3 N.T. Restitution Hr’g, 4/13/17, at 12. The “consolidated statement of
benefits” detailed the procedures performed on the victim at UPMC and the
dates of service. Id. at 13.
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denying Equian restitution would frustrate the purpose of the restitution
statute.
The sentencing court agreed with the Commonwealth that there was,
beyond a reasonable doubt, a direct causal link between the assault and the
victim’s detached retina,4 and that Equian was a “victim” under the Restitution
Statute. Thus, on June 21, 2018, the court ordered Appellant and Ms. Davis
to pay $5,383.88 in restitution jointly and severally to Equian, $1,296.71 to
the Victim’s Compensation Assistance Program, and $149 to the victim.
On June 29, 2018, Appellant filed a Post-Sentence Motion to Reconsider
Restitution Order in which she reasserted her arguments that Equian was not
a “victim” entitled to receive restitution and that the Commonwealth had failed
to prove a causal nexus between the victim’s detached retina and the crimes
committed by Appellant. The court denied Appellant’s Motion.
Appellant and Ms. Davis jointly appealed to this Court challenging the
portion of the sentencing court’s June 21, 2018 Order awarding restitution to
Equian. On August 29, 2019, this Court vacated Appellant’s and Ms. Davis’s
Judgment of Sentence and remanded for resentencing concluding that the trial
court erred as a matter of law by failing to determine the amount of restitution
at the original time of sentencing. See Commonwealth v. Sweeney, 2019
WL 4072332 at *2 (Pa. Super. filed Aug. 29, 2019) (unpublished
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4 N.T. Restitution Hr’g, 5/8/18, at 10; N.T. Restitution Hr’g, 6/21/18, at 7-9.
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memorandum). This Court did not reach the merits of Appellant’s and Ms.
Davis’s claims.
Following remand from this Court, on November 13, 2019, the
sentencing court reimposed the same sentence and restitution order.
Appellant filed a timely Post-Sentence Motion in which she raised the same
arguments as in her prior Post-Sentence Motion. On December 4, 2019, the
sentencing court denied Appellant’s Motion.
This timely appeal followed.5 Appellant has complied with the
sentencing court’s Order to file a Pa.R.A.P. 1925(b) Statement. The
sentencing court has filed a Statement in Lieu of Opinion referring this Court
to the November 6, 2018 Rule 1925(a) Opinion prepared in conjunction with
Appellant’s prior appeal.
Appellant raises the following issues on appeal:
1. [A]ssuming a debt collector is an entity entitled to restitution
under Section 1106, whether the trial court still imposed an illegal
sentence in ordering restitution to Equian where Section 1106
requires a direct causal nexus between the defendant’s crime and
the requested damages for restitution, but the Commonwealth
failed to demonstrate such nexus between [Appellant’s] criminal
conduct (Simple Assault) and the individual’s loss (detached
retina)[?]
2. Whether the trial court imposed an illegal sentence in ordering
restitution to Equian, a debt collector, where restitution was
entered pursuant to 18 Pa.C.S.[] § 1106 (Restitution for Injuries
to Persons or Property) but a debt collector is not an entity that is
entitled to restitution under Section 1106?
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5Ms. Davis filed a separate appeal, which is currently pending at No. 13 WDA
2020.
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Appellant’s Brief at 6 (reordered for ease of disposition).
In her first issue, Appellant claims the Commonwealth failed to prove a
causal nexus between Appellant’s crime and the victim’s detached retina. Id.
at 36-37. Appellant argues, in particular, that the victim’s medical records
from the date of the incident do not reflect that the victim suffered any trauma
to her eyes, and do not show that her doctor referred her to an eye specialist
for follow-up treatment. Id. at 36. Appellant concedes that the victim visited
an eye clinic 12 days after the assault, whereupon her doctor diagnosed her
with a retinal detachment, but asserts that none of the medical records or
treatment notes in the Commonwealth’s exhibits concluded, to a reasonable
degree of medical certainty, that the assault caused the victim’s retinal
detachment. Id. Appellant avers that the evidence presented by the
Commonwealth over the course of the three restitution hearings established
only that the victim suffered bruising and the loss of her eyeglasses. Id.
The imposition of restitution is mandatory where a victim has “suffered
personal injury directly resulting from” a crime. 18 Pa.C.S. § 1106(a)(2).
Because restitution pursuant to 18 Pa.C.S. § 1106 is “penal in nature,” there
must be a direct link between the defendant’s crime and the ordered
restitution. Commonwealth v. Brown, 981 A.2d 893, 895 (Pa. 2009);
Commonwealth v. Hall, 80 A.3d 1204, 1215 (Pa. 2013).
The Commonwealth bears the burden of proving the entitlement to
restitution. Commonwealth v. Atansio, 997 A.2d 1181, 1183 (Pa. Super.
2010). A claim that a restitution order is unsupported by the record challenges
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the legality of a defendant’s sentence. Commonwealth v. Hunt, 220 A.3d
582, 585 (Pa. Super. 2019). Our standard of review is, therefore, de novo,
and our scope of review is plenary. Id.
At her guilty plea hearing, Appellant stipulated to the Affidavit of
Probable Cause that detailed that she and Ms. Davis repeatedly struck or
punched the victim in the head and face resulting in immediate vision
problems and visible facial injuries to the victim. N.T. Guilty Plea Hr’g,
3/12/18, at 14. See also Affidavit of Probable Cause, 5/20/17, at 2. The
Affidavit of Probable Cause also reflects that the victim told police that she
had head and face pain, and was having difficulty seeing because her glasses
had been broken during the assault. Affidavit of Probable Cause at 2.
The medical records submitted by the Commonwealth demonstrated
that the victim sought treatment immediately after the assault and pursued
follow-up care to address continued vision loss. The records also confirm that
twelve days after the assault, on June 1, 2017, a doctor diagnosed the victim
with a detached retina of her right eye and, on June 7, 2017, a specialist
performed corrective surgery. N.T. Restitution Hr’g, 4/13/18, at 13.
Last, the victim detailed her pain and trauma in her sworn victim impact
statement and recounted that she “went completely blind in [her] right eye
and went partially blind in [her] left. This has been a long and painful ride.”
N.T. Guilty Plea at 20. The victim also indicated that she will need to undergo
additional surgery to address continuing vision problems. Id. at 20-21
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The foregoing belies Appellant’s claim that the Commonwealth did not
establish a causal relationship between the Appellant’s criminal assault of the
victim and the victim’s detached retina. Accordingly, Appellant is not entitled
to relief on this claim.
In her second issue, Appellant challenges the sentencing court’s award
of restitution to Equian, a third-party debt collector.6 In support, Appellant
relies on Hunt, supra, to argue that the definition of “victim,” provided in the
version of the Restitution Statute applicable on the date of her offense does
not include corporate entities like Equian, rendering the restitution portion of
Appellant’s sentence illegal under Pennsylvania law.7
A challenge to the sentencing court’s authority to impose restitution
implicates the legality of sentence. Commonwealth v. Oree, 911 A.2d 169,
173 (Pa. Super. 2006). Moreover, it is well-established that “if no statutory
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6Appellant does not challenge the award of restitution to the victim or to the
Victim’s Compensation Assistance Program.
7 The Commonwealth urges this Court to affirm the Order of restitution
pertaining to Equian. In support, the Commonwealth baldly asserts that the
victim’s medical provider, UPMC, on behalf of whom the Commonwealth did
not request and the trial court did not order the payment of restitution, was
acting as the victim’s insurer, which somehow rendered Equian, as UMPC’s
ostensible agent, entitled to restitution. The Commonwealth also suggests we
apply the holding in Brown, supra, to the instant case. In Brown, our
Supreme Court interpreted 18 Pa.C.S. § 1106(c)(1)(ii)(C) and held that
Medicare, as a government agency who made payments to the victim’s
medical provider on behalf of the victim, was entitled to restitution. Brown,
981 A.2d 893, 895. Brown is inapposite. Here, no government agency is
involved and UPMC provided medical, not insurance, services to the victim,
who the parties agree was uninsured. The Commonwealth’s tortured
argument is lacking legal and factual support. We, thus, reject it.
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authorization exists for a particular sentence, that sentence is illegal and . . .
must be vacated.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.
2014) (citation omitted). As noted supra, our standard of review of illegal
sentence claims is de novo and our scope of review is plenary. Hunt, 220
A.3d at 584.
Relevant to the instant appeal, on October 24, 2018, the Legislature
amended the Restitution Statute, 18 Pa.C.S § 1106. However, Appellant’s
criminal actions and the entry of her guilty plea predated the statute’s
amendment. Accordingly, the pre-amendment version of the Restitution
Statute applies to her sentence. Hunt, 220 A.3 at 585-87; Commonwealth
v. Tanner, 205 A.3d 388, 396 n.7 (Pa. Super. 2019).
The applicable version of the statute provides, in relevant part, as
follows:
(a) General Rule.—Upon conviction of 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.
***
(c) Mandatory Restitution.—
(1)The court shall order full restitution[.]
***
(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:
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(A) The victim.
(B) The Crime Victim’s Compensation Board.
(C) Any 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.
18 Pa.C.S. § 1106(a), (c)(1)(ii).
The applicable version of the statute defines the term “victim” largely
by reference to The Administrative Code of 1929. However, in 1998, the
Legislature repealed the definition of “victim” set forth in The Administrative
Code of 1929, and replaced it with the definition of the term “victim” under
the Crime Victims Act (“CVA”), 18 P.S. 11.103. The CVA defined “victim” 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 [enumerated
offenses under 18 Pa.C.S. not applicable here] committed or
attempted against a member of the child’s family[.]
(4) A family member of a homicide victim[.]
18 P.S. § 11.103. The CVA further defines “direct victim” as “[a]n individual
against whom a crime has been committed or attempted and who as a direct
result of the criminal act or attempt suffers physical or mental injury, death
or the loss of earnings under this act.” Id. (emphasis added).
In Hunt, this Court considered the same pre-amendment version of the
Restitution Statute that is applicable in the instant case. There, the defendant
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had embezzled funds from his corporate employer. As part of his sentence,
the court ordered that he pay restitution to that corporation. The defendant
filed a Motion to Modify Restitution, which the trial court denied. In reversing
the restitution order, the Hunt Court held that, because an “individual” is a
“natural person,” the definition of “direct victim” in the CVA did not include
the corporate entity to which the trial court had ordered the defendant to pay
restitution. Id. at 590-91. The Court, thus, concluded that because the
defendant’s employer was not authorized to receive restitution under the
Restitution Statute, the sentencing court’s restitution order was illegal. Id. at
591. The Hunt court, therefore, vacated the appellant’s judgment of
sentence, and remanded the case with instructions to the court to resentence
the appellant. Id. at 592.
The Hunt holding is dispositive. As noted supra, the sentencing court
here ordered Appellant to pay restitution to a corporate entity, just as the trial
court did in Hunt. Pursuant to Hunt, under the applicable provision of the
Restitution Statute, a corporate entity is not a “victim” to whom the sentencing
court is authorized to order payment of restitution. Accordingly, the
sentencing court erred as a matter of law in directing that Appellant pay
restitution to Equian. This error renders Appellant’s sentence illegal and we,
thus, vacate the Judgment of Sentence and remand for resentencing.
Order reversed. Judgment of Sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2020
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