J-A11010-19
2019 PA Super 296
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN F. HUNT :
:
Appellant : No. 911 MDA 2018
Appeal from the Order Entered May 4, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004356-2016
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY BOWES, J.: FILED OCTOBER 01, 2019
Brian F. Hunt appeals from the May 4, 2018 order denying his request
for the modification of restitution imposed pursuant to 18 Pa.C.S. § 1106.
After careful review, we reverse and remand for resentencing.
The order of restitution at issue in this case stems from Appellant’s guilty
pleas to two felonies in connection with his misappropriation of funds from his
former employer, Bass Pallets LLC (“Bass Pallets”), a Pennsylvania limited
liability company that purchases and repurposes used pallets. While employed
by Bass Pallets, Appellant had the authority to write checks on behalf of the
company, and used that authority to initiate a series of sham transactions by
writing checks from Bass Pallets to two unindicted co-conspirators, Jeff Stickle
and Johanna Rodriguez-Cruz, in exchange for illusory sales of pallets. The co-
conspirators then cashed these fraudulent instruments and split the resulting
proceeds with Appellant. On July 27, 2016, Appellant was charged by criminal
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complaint with theft by unlawful taking, 18 Pa.C.S.
§ 3921(a), and forgery, 18 Pa.C.S. 4101(a)(2), following surveillance and
investigation conducted by the Pennsylvania State Police. See Trial Court
Opinion, 10/17/18, at 1-3.
On February 1, 2018, Appellant pleaded guilty to both charges and was
sentenced to sixty months of intermediate punishment, with the first nine
months to be served under house arrest. See February 1, 2018 Guilty Plea
Order at 1. As part of his sentence, Appellant was directed to pay restitution
in the amount of $37,625 to Bass Pallets pursuant to § 1106. This restitution
reflected the total amount of all checks written to Stickle and Rodriguez-Cruz
that “had no supportive documents legitimizing the transactions.” See Trial
Court Opinion, 10/17/18, at 2-3; see also February 1, 2018 Restitution
Information at 1. During his guilty plea colloquy, Appellant requested a
hearing to modify the restitution imposed by the trial court, which was
granted. See February 1, 2018 Order.
On May 4, 2018, the trial court held a modification hearing, at which
Appellant argued that the trial court was not statutorily empowered to impose
restitution upon him under § 1106 with respect to a limited liability company,
citing our Supreme Court’s holding in Commonwealth v. Veon, 150 A.3d
435 (Pa. 2016) in support of his position. See N.T. Modification Hearing,
5/4/18, at 4. An off-the-record sidebar took place concerning the legal
specifics of Appellant’s claims and the Commonwealth adduced factual
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testimony from Jeffrey L. Stoner, one of the co-owners of Bass Pallets. Id. at
3-24. At the conclusion of the hearing, the trial court declined to modify its
restitution order, notwithstanding Appellant’s argument that Bass Pallets was
not a proper “victim” for the purposes of § 1106 under Veon. Id. at 24-25
(emphasis added). An order denying Appellant’s request for modification of
restitution was entered the same day. On June 4, 2018, Appellant timely filed
a notice of appeal.1 On June 6, 2018, the trial court directed Appellant to file
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellant timely complied.
Appellant essentially argues that it was “illegal for the court to order
restitution to a victim who is a limited liability company because the definition
of ‘victim’ in the version of Pennsylvania’s restitution statute (18 Pa.C.S.
§ 1106) applicable on the offense dates of the instant prosecution failed to
include any non-human business entity other than an insurance
company . . . .” See Appellant’s brief at 4; see also Appellant’s Rule 1925(b)
Statement at ¶ 6 (“As the restitution in this matter was ordered to compensate
a business entity that is neither an enumerated victim under the statute nor
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1 Facially, the timing of Appellant’s Notice of Appeal appears to violate
Pennsylvania Rule of Appellate Procedure 903(a), which provides that “the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken.” Appellant’s notice was not filed until thirtyone (31) days after the entry of the appealed-from order. However, because
the last day of Appellant’s window to appeal originally fell on a Sunday, i.e.,
June 3, 2018, the filing is considered timely. See Pa.R.A.P. 107 (“Rules of
Construction”); 1 Pa.C.S. § 1908 (“Computation of time.”).
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an actual person, [the trial court] erred in ordering restitution in this matter.”).
The gravamen of Appellant’s argument is that the definition of “victim” set
forth at 18 Pa.C.S. § 1106 does not include corporate entities like Bass Pallets,
rendering the restitution portion of Appellant’s sentence illegal under
Pennsylvania law.
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.’”
Commonwealth v. Atanasio, 997 A.2d 1181, 1182-83 (Pa.Super. 2010)
(quoting Commonwealth v. C.L.,
963 A.2d 489, 494 (Pa.Super. 2008)). As
such, “[a]n 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.”
Id. at 1183 (citing
Commonwealth v. Redman,
864 A.2d 566, 569 (Pa.Super. 2004)).
Accordingly, “‘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.’”
Id. (quoting Commonwealth v. Hughes,
986 A.2d 159, 160 (Pa.Super. 2009)). This case will also necessarily call upon
us to engage in statutory construction, which similarly presents a pure
question of law and also implicates the legality of Appellant’s sentence.
Commonwealth v. Shiffler,
879 A.2d 185, 189 (Pa. 2005) (citing
Commonwealth v. Bradley,
834 A.2d 1127, 1131 (Pa. 2003)). Thus, our
standard of review is de novo and our scope of review is plenary.
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Section 1106 was amended on October 24, 2018 by the Pennsylvania
General Assembly during the pendency of this appeal but long after Appellant’s
criminal actions, guilty plea, and sentencing were completed. See 2018 Pa.
Legis. Serv. Act 2018-145 (S.B. 897). Preliminarily, we observe that Appellant
did not argue the retroactive application of § 1106 in his Rule 1925(b) concise
statement. See Appellant’s Rule 1925(b) Statement at ¶¶ 1-6. Nonetheless,
both Appellant and the Commonwealth have devoted significant space in their
respective briefs addressing which iteration of 18 Pa.C.S. § 1106 should be
applicable to Appellant’s sentence. See, e.g., Appellant’s brief at 23-27;
Commonwealth’s brief at 8-10. However, the trial court did not apply the
“new” version of § 1106 in crafting the restitution portion of Appellant’s direct
sentence.2 Rather, as we discuss infra, the trial court properly applied the
pre-amendment version of § 1106 in fashioning Appellant’s sentence, but in
doing so, it erroneously enlarged the definition of victim to include a corporate
entity. See Trial Court Opinion, 10/17/18, at 6-9, 10-11.
Instead, the retroactive application of the amendments to § 1106 is
presented by the Commonwealth as a type of “savings” argument:
____________________________________________
2 Given the instant procedural chronology, it would have been functionally
impossible for the trial court to apply the amendments to § 1106 to Appellant’s
case during the initial proceedings. Appellant pleaded guilty and was
sentenced on February 1, 2018, and the hearing on Appellant’s request for
modification of his sentence was held on May 4, 2018. See Trial Court Opinion
at 1-3. The amendments to § 1106 were not passed and promulgated by the
General Assembly until October 24, 2018, or nearly six months later. See
2018 Pa. Legis. Serv. Act 2018-145 (S.B. 897).
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[A]fter the lower court in this instance filed its memorandum
opinion, the General Assembly rewrote the definition of “victim” in
18 Pa.C.S. § 1106(h) on October 24, 2018. The new definition,
as [Appellant] concedes, includes limited liability companies as
victims. This new definition applies to [Appellant] as his judgment
of sentence is not yet final and the General Assembly indicated
that the 2018 amendment was effective immediately.
Commonwealth’s brief at 8. In apparent anticipation of the Commonwealth’s
claim, Appellant argues that the ex post facto application of the amended
version of § 1106 would violate Article I, § 10 of the U.S. Constitution (“No
State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts, or grant any title of Nobility.”) and Article I, § 17
of the Pennsylvania Constitution (“No ex post facto law, nor any law impairing
the obligation of contracts, or making irrevocable any grant of special
privileges or immunities, shall be passed.”). See Appellant’s brief at 23-27.
We decline to give retroactive effect to the October 24, 2018
amendments to § 1106. While Pennsylvania’s rules of statutory construction
clearly provide that the General Assembly may give retroactive effect to
legislation, it requires that the legislature do so unambiguously. See 1 Pa.C.S.
§ 1926 (“No statute shall be construed to be retroactive unless clearly and
manifestly so intended by the General Assembly.”). In relevant part, the
legislation adopted by the General Assembly provides only that “[t]his act shall
take effect immediately,” see 2018 Pa. Legis. Serv. Act 2018-145 (S.B. 897)
at § 3, and no provision therein explicitly calls for its retroactive
implementation. Moreover, this Court has already held that these specific
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amendments to § 1106 should not be effective in criminal cases that began
before the effective date of the legislation, holding that “[b]ecause the events
that led to [a]ppellant’s conviction occurred before October 24, 2018, [the
since-repealed] version of the statute applies.” Commonwealth v. Tanner,
205 A.3d 388, 396 n.7 (Pa.Super. 2019).3 In Tanner, the appellant
challenged the portion of his direct sentence requiring him to pay substantial
restitution to Shenango Township in Lawrence County, Pennsylvania under
§ 1106. Id. at 395-96. Ultimately, this Court concluded this restitution was
illegal because Shenango Township was not considered a “victim” under the
relevant statutory provisions, relying directly upon our Supreme Court’s
guidance in Commonwealth v. Veon,
150 A.3d 435 (Pa. 2016). Id. at 398.
Turning to the factual background of this case, we note that: (1) the
events that formed the basis for Appellant’s guilty plea took place during or
about July 2016; (2) Appellant pleaded guilty and was sentenced on February
____________________________________________
3 This same general principle is also found in case law interpreting § 1926’s
proscription against retroactivity in the context of criminal sentencing
statutes. See Commonwealth v. Story, 440 A.2d 488, 489-90 (Pa. 1981)
(holding that retroactive application of a criminal sentencing statute years
after the crime was committed was impermissible under Pennsylvania law);
Commonwealth v. McKenna,
383 A.2d 174, 180 n.13 (Pa. 1978) (holding
that newly promulgated portions of the Sentencing Code were inapplicable to
a case involving an underlying crime committed before the effective date of
the new statutory scheme); Commonwealth ex rel. Lyons v. Day,
110 A.2d
871, 872 (Pa.Super. 1955) (holding amendment of criminal sentencing statute
was not retroactive such that it applied to a person who committed a crime
and was sentenced prior to the statute’s effective date).
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1, 2018; and (3) Appellant’s challenge to the trial court’s sentence of
restitution was denied on May 4, 2018. See Trial Court Opinion, 10/17/18, at
1-3. Thus, all of the relevant events predate the effective date of the at-issue
amendments to § 1106 by months (or years). In light of our previous holding
in Tanner and the command of § 1926, we conclude that the October 24,
2018 amendments to § 1106 are not applicable in the instant case.
Accordingly, we decline to address the constitutionality of ex post facto
application of the amendments to § 1106 in this memorandum.4/5
____________________________________________
4 Beyond adhering to stare decisis, such an interpretation of the amendments
to § 1106 also effectively avoids the constitutional arguments concerning the
ex post facto application of the amendments to § 1106. In constructing a
Pennsylvania statute, “[t]he ‘canon of constitutional avoidance’ provides that
when a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.” Veon, supra at 455
(citing Harris v. U.S.,
536 U.S. 545, 555 (2002)); see also 1 Pa.C.S. § 1922.
5 We are also unpersuaded by the Commonwealth’s discussion of this Court’s
prior holding in Commonwealth v. Kline,
695 A.2d 872 (Pa. Super. 1997)
for the broad proposition that amendments to Pennsylvania’s restitution
statutes are generally applied retroactively. See Commonwealth’s brief at 9-
10. In Kline, the trial court imposed a direct sentence of restitution upon the
appellant-defendant under a version of § 1106 that became law after the
commission of the appellant-defendant’s crime. Id. at 873. In this instance,
§ 1106 was amended to include insurance companies under the definition of
“victims.” Id. The issue in Kline pertained solely to whether Article I, § 10 of
the U.S. Constitution permitted such an ex post facto application of
amendatory law. Id. at 873-74. Ultimately, Kline affirmed the trial court’s
imposition of restitution after finding it was not sufficiently punitive to violate
the Ex Post Facto Clause of the U.S. Constitution. Id. at 877. The instant
case is readily distinguishable. As noted above, the trial court did not apply
the amended version of § 1106 to Appellant’s case and, thus, there is no
constitutional issue to adjudicate. The only ex post facto concern in this case
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Turning to the discrete issue of statutory interpretation, we must
determine whether the trial court was properly empowered to sentence
Appellant to pay restitution to a limited liability company under the pre-
amendment version of § 1106. It is well-established under Pennsylvania law
that “[r]estitution 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. Kinnan, 71 A.3d 983, 986 (Pa.Super.
2013) (citing Commonwealth v. Harner,
617 A.2d 702, 704 (Pa. 1992)).
While Pennsylvania statutes generally should be construed liberally, “penal
statutes are always to be construed strictly, and any ambiguity in a penal
statute should be interpreted in favor of the defendant.”
Shiffler, supra at
189 (citing Commonwealth v. Driscoll,
401 A.2d 312, 316 (Pa. 1979)); see
also 1 Pa.C.S. § 1928(b)(1). Finally, “where restitution is imposed in addition
to a statutory punishment, such as imprisonment, the order must be strictly
scrutinized since its purpose is primarily punitive.”
Harner, supra at 704 (Pa.
1992) (citing Commonwealth v. Walton,
397 A.2d 1179, 1184 (Pa. 1979)).
The pre-amendment version of § 1106 provides as follows:
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
____________________________________________
is purely prospective and, as discussed above, is ultimately foreclosed by
Tanner and the General Assembly’s drafting of the amendments to § 1106.
Due to these factual and legal distinctions, Kline is inapposite. We make no
pronouncement regarding the arguable constitutionality of the retroactive
application of § 1106, specifically, or Pennsylvania statutes, generally.
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obtained, . . . 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.
....
(c) Mandatory restitution.—
(1) The court shall order full restitution:
(i) Regardless of the financial resources of the defendant,
so as to provide the victim with the fullest compensation for
the loss. . . .
(ii) If restitution to more than one person is set at the 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.
....
(h) Definitions.--As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
....
“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.
The term includes the Crime Victim’s Compensation Fund if
compensation has been paid by the Crime Victim’s Compensation
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Fund to the victim and any insurance company that has
compensated the victim for loss under an insurance contract.
18 Pa.C.S. §§ 1106(a), (c), and (h) (repealed Oct. 24, 2018, P.L. 891, No.
145, § 1, effective Jan. 31, 2005) (internal footnote omitted).
Under this version of the statute, the term “victim” is largely defined by
reference to The Administrative Code of 1929. The Administrative Code of
1929 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 fiancé, one of whom
is to be identified to receive communication as provided for in this
act.
Commonwealth v. Holmes, 155 A.3d 69, 80 (Pa.Super. 2017) (en banc)
(quoting 71 P.S. § 180-9.1). However, the definition of “victim” set forth in
the Administrative Code of 1929 was itself repealed in 1998, and the operative
definition of the term “victim” under the Crime Victims Act (“CVA”) at 18 P.S.
§ 11.103 took its place. See Commonwealth v. Brown,
981 A.2d 893, 896
n.9 (Pa. 2009); Commonwealth v. Hall,
80 A.3d 1204, 1214 n.5 (Pa. 2013)
(same). Under the CVA, victim is defined as follows:
“Victim.” The term means the following:
(1) A direct victim.
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(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 fiancé, one of whom
is identified to receive communication as provided for in this act,
except where the family member is the alleged offender.
18 P.S. § 11.103. The term “direct victim” set forth under § 11.103 is defined
under the same section 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.
The trial court’s memorandum opinion concludes that both the repealed
definition of “victim” set forth in the Administrative Code of 1929 and the
definition in the CVA may co-exist as concurrent definitions of the same word.
See Trial Court Opinion, 10/17/18, at 6-7 (citing Holmes, supra at 80; 18
P.S. § 11.103; 18 P.S. § 11.5102). In relevant part, the CVA provides that
“[t]his act is a codification of the statutory provisions repealed in section 5103
and, except where clearly different from current law, shall be deemed
to be a continuation of prior law.” 18 P.S. § 11.5102 (emphasis added); see
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also 1 Pa.C.S. § 1962 (“Whenever 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)).
We cannot agree with the trial court’s conclusion that these two
definitions are similar enough so as to render them interchangeable. In
relevant part, the CVA’s definition introduces an entirely new term of art
(“direct victim”) and explicitly includes certain categories of minor, material
witnesses who would not be included under any plain reading of the
Administrative Code of 1929’s parallel provisions. Compare 18 P.S. § 11.103
with 71 P.S. § 180-9.1. Furthermore, the new term “direct victim” is limited
in applicability to those individuals who suffer “physical or mental injury, death
or the loss of earnings” as result of the crime committed. See 18 P.S.
§ 11.103. By contrast, the definitions set forth in the Administrative Code of
1929 contain no similar limitations. Finally, the trial court’s invocation of our
holding in Holmes is not persuasive because there was no majority opinion
rendered by that equally-divided, en banc panel and, thus, no controlling
precedent resulted. See Commonwealth v. Davis, 188 A.3d 454, 457 n.2
(Pa.Super. 2018) (“‘When a court is faced with a plurality opinion, usually only
the result carries precedential weight; the reasoning does not.’”) (quoting
Commonwealth v. Bethea,
828 A.2d 1066, 1073 (Pa. 2003)). Accordingly,
we conclude that the definition of “victim” under the CVA that entered force
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in 1998 is the sole definition for our purposes under § 1106. See Brown,
supra at 896 n.9;
Veon, supra at 449.
Reviewing the applicable statutory definition under the CVA, it is beyond
dispute that Bass Pallets does not qualify as a “parent or legal guardian,” a
“minor child,” or as a “family member of a homicide victim.” See 18 P.S.
§ 11.103. Thus, Bass Pallets may be eligible for restitution via Appellant
pursuant to § 1106 only if it can qualify as a “direct victim” under the CVA.
Id. In relevant part, the definition of “direct victim” is bipartite in nature, and
requires both that an “individual” be the subject of a crime that has either
been committed or attempted and suffer a physical or mental injury, death,
or a loss of earnings as a direct result of that criminal act or attempt. Id.
These statutory restrictions upon the definition of “victim” under § 1106
raise immediate concerns regarding the trial court’s imposition of restitution
as a component of Appellant’s sentence under § 1106. It is not clear that
Bass Pallets qualifies as an “individual” under § 11.103 (and, therefore, as a
“direct victim”). In its discussion of this issue in Veon, our Supreme Court
concluded that this language refers exclusively to human beings:
Notwithstanding any legislative expansion of the definition of
“victim,” it is clear that the plain text of Section 11.103 still
envisages “victims” as “persons” commonly understood. A
“victim” under Section 11.103 must be “a direct victim,” i.e., an
“individual” who has suffered injury, death, or loss of earnings; or
a “child,” “parent,” “guardian,” or “family member.” Every
relevant noun unequivocally describes a human being, . . ., and
nowhere else is there a relevant definition that persuades us to
broaden the common understanding of these words.
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Veon, supra at 453; see also
Tanner, supra at 397-98 (same). The
holdings in Veon and Tanner are not in perfect parity with the present factual
situation, as Bass Pallets is a Pennsylvania corporate entity as opposed to a
Commonwealth agency. The trial court maintains this distinction is
dispositive, and that the catch-all definitions set forth at 1 Pa.C.S. § 1991 of
the Statutory Construction Act of 1972 include corporate entities under the
definition of “individual.” See Trial Court Opinion, 10/17/18, at 7.
Again, we must disagree. The definitions at § 1991 apply to the statutes
discussed above “unless the context clearly indicates otherwise, . . .” 1
Pa.C.S. § 1991. Even assuming, arguendo, that these definitions are
applicable, the trial court’s treatment of this issue bespeaks an inappropriately
selective interpretation of the terms described throughout § 1991. To wit, the
definition of “individual” under § 1991 is given as “[a] natural person,” which
the trial court treats as merely interchangeable with the separate definition of
“person” under the same statute. Id. (quoting 1 Pa.C.S. § 1991) (emphasis
added). Yet, the distinction under Pennsylvania law is quite clear: “An
‘individual’ is a ‘natural person,’ while the broader term ‘person’ includes both
natural persons and other types of entities, such as corporations. See 1
Pa.C.S. § 1991. Under those definitions, a corporation is a person, but
it is not an ‘individual.’” Calif. Univ. of Penna. v. Bradshaw, __ A.3d __,
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2019 WL 2305947, at *3 (Pa.Cmwlth. May 31, 2019) (emphasis added).6
Even the definition of “person” under § 1991 draws a clear demarcation
between any number of corporate entities (including limited liability
companies) and a “natural person.” 1 Pa.C.S. § 1991. Therefore, we conclude
that the inter-related definitions of “direct victim,” “individual,” and “natural
person” pursuant to the pre-amendment version of § 1106 do not include
corporate entities as discussed above.7 Such a conclusion is necessitated by
a plain reading of these statutes, and has the additional virtue of giving full
weight to the Supreme Court’s discussion of these same provisions in Veon.8
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6 Our settled precedent permits us to cite the holdings of our brethren in the
Commonwealth Court where it is persuasive and expedient: “This Court is not
bound by the decisions of the Commonwealth Court. However, such decisions
provide persuasive authority, and we may turn to our colleagues on the
Commonwealth Court for guidance when appropriate.” Petow v. Warehime,
996 A.2d 1083, 1088 n.1 (Pa.Super. 2010) (quoting Maryland Cas. Co. v.
Odyssey,s
894 A.2d 750, 756 n.2 (Pa.Super. 2006)).
7 We also note that our reading of § 1106 indicates that the pre-amendment
statute was not drafted to encompass “victims” of property crimes. See
Veon, supra at 463 (“Section 1106, as it is currently written, has no provision
requiring or permitting restitution for a crime where the victim suffers only a
loss of money or property, . . . .”) (Donohue, J.) (concurring & dissenting
opinion). It seems unlikely that Bass Pallets would be able to establish a “loss
of earnings” for the purposes of this definition. See 18 P.S. § 11.103 (defining
“loss of earnings” as “the loss of the cash equivalent of one month’s worth of
Social Security, railroad retirement, pension plan, retirement plan, disability,
veteran’s retirement, court-ordered child support or court-ordered spousal
support payments if the payments are the primary source of the victims
income and the victim is deprived of money as a direct result of a crime.”).
8 Our conclusion that corporations are not included within the statutory
definitions applicable to § 1106 prior to October 24, 2018 is further buttressed
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Based on the above discussion, we are constrained to conclude that the
definition of “direct victim” under the CVA (and, consequently, the definition
of “victim” under the pre-amendment version of § 1106) does not include
corporate entities like Bass Pallets. Therefore, the restitution portion of
Appellant’s sentence is illegal, and must be vacated. See Veon, supra at
453;
Tanner, supra at 397-98; see also 18 Pa.C.S. § 1106(h); 18 P.S.
§ 11.103; 1 Pa.C.S. § 1991. On remand, we direct the trial court to
resentence Appellant in conformity with the principles and precedents
discussed in this opinion.9
____________________________________________
by the legislative history undergirding these amendments. In particular, a
memorandum from two of the amendatory bill’s co-sponsors (Senators Patrick
J. Stefano & Lisa M. Boscola) clearly identify the effect of our Supreme Court’s
holding in Veon: “Due to a recent decision by the Pennsylvania Supreme
Court, . . . entities such as local governments or businesses cannot be
reimbursed in a case where, if the victim were an individual, it would be within
the boundaries of the court to order restitution.” Sen. Patrick J. Stefano, et
al., “Memorandum,” August 21, 2017, available at
https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?cham
ber=S&SPick=20170&cosponId=24413.
9 While the trial court will be statutorily estopped from including restitution
as a component of Appellant’s direct sentence on remand, we note that the
provisions of 42 Pa.C.S. § 9754(c)(8) may offer an alternative to restitution
ordered as a condition of a direct sentence. Under that subparagraph, “[t]he
court may as a condition of its order require the defendant to 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.” 42 Pa.C.S.
§ 9754(c)(8); see also
Harner, supra at 706 (“Restitution may also be
imposed as a condition of probation and, under such circumstances, the courts
are traditionally and properly vested with a broader measure of discretion in
fashioning conditions of probation appropriate to the circumstances of the
individual case.”). Including restitution as a probation requirement would
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J-A11010-19
Order reversed. Sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/01/2019
____________________________________________
afford the trial court greater flexibility, as it is “considerably different than the
language of 18 Pa.C.S. § 1106 which permits restitution only for losses that
are a direct result of the crime.” Id. at 707 n.3. If the trial court opts to
proceed under § 9754(c)(8), it would have a concomitant obligation “to
determine what loss or damage has been caused, and what amount of
restitution Appellant can afford to pay, and how it should be paid.” Id. at
707.
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