trial court was permitted to rely on documentation submitted by victim’s employer to substantiate restitution for lost wages
How later courts described this case
- trial court was permitted to rely on documentation submitted by victim’s employer to substantiate restitution for lost wages
- “The court must also ensure that the record contains the factual basis for the appropriate amount of restitution.”
Written by the judges who cited it.
The opinion
CONCURRING AND DISSENTING OPINION BY
PANELLA, J.
I agree with the Majority’s opinion affirming Burwell’s judgment of sentence for aggravated assault, and, specifically, its thorough analysis of the restitution issue. However, I respectfully disagree with the Majority’s finding of “harmless error” in footnote 8. The Majority properly finds Burwell’s challenge to the jury instruction waived on appeal due to his failure to lodge a specific objection thereto on the record. For the reasons that follow, I find no error in relation to the trial court’s commentary during its jury instructions.
In its jury instruction, the trial court, in explaining the definition of serious bodily injury to the jury, made the following remark: “[n]ow, under the circumstances, it appears that the injuries suffered by [the victim] constitute serious bodily injury. But that is a decision for you to make.” N.T., Jury Trial, 3/18/09, at 73-74. While I am cognizant that, in instructing the jury on the applicable law, the trial court must not usurp the power of the jury to be the sole judge of the evidence, the law in this Commonwealth is clear:
[T]he court may summarize the evidence and note possible inferences to be drawn from it. In doing so, the court may ... express [its] own opinion on the evidence, including the weight and effect to be accorded it and its points of strength and weakness, providing that the statements have a reasonable basis and it is clearly left to the jury to decide the facts regardless of any opinion expressed by the judge.
*796 Commonwealth v. Meadows, 567 Pa. 344, 354 , 787 A.2d 312, 318 (2001), quoting Commonwealth v. Leonhard, 336 Pa.Super. 90 , 485 A.2d 444, 446 (1984) (internal quotations and citations omitted). A review of the entirety of the trial court’s jury instruction reveals that it was merely summarizing and expressing a brief observation on the issue of serious bodily injury, which was supported by substantial evidence at trial. This statement was immediately qualified by the trial court’s instruction that the jury was not bound by it. As such, I would find the trial court’s expression of its observation permissible and not harmless error as the Majority concludes, albeit in pure dicta.