Commonwealth v. Weir
Commonwealth v. Weir
Opinion
Christopher Robert Weir appeals from the judgment of sentence imposed following his convictions of criminal mischief and harassment. We affirm.
The trial court summarized the relevant facts as follows:
On April 13, 2016, Jacob Korimko was working as a mechanic at a garage he operated. While he was working on a vehicle, [Appellant] entered the garage and began shouting at Mr. Korimko, claiming that Mr. Korimko owed him money. Mr. Korimko vehemently denied that he owed [Appellant] any money. [Appellant] became agitated and took a very aggressive stance toward Mr. Korimko. [Appellant] continued shouting at Mr. Korimko in a threatening manner and Mr. Korimko feared that [Appellant] was about to physically assault him. Mr. Korimko stepped back away from [Appellant] and [Appellant] then swung his fist and contacted the front headlight/cowl area of Mr. Korimko's 2012 Kawasaki 600 motorcycle. As a result, the entire headlight assembly was damaged. The cowl was caved in. The headlight was broken and the two side frames were destroyed. The main support for the headlight was also broken along with the entire gauge cluster. Mr. Korimko paid $1,4[92] [ 1 ] to have the parts replaced. He testified that he had received an additional estimate of $1,000 to have the parts painted to match the motorcycle's color. However, he could not afford to pay the additional $1,000 so he did not have the work done prior to the trial.
Trial Court Opinion, 6/22/17, at 2. 2
After a non-jury trial, Appellant was found guilty of criminal mischief and the *167 summary offense of harassment. The court sentenced him to serve one to two years probation for criminal mischief, and a consecutive ninety-day term of probation for harassment. The sentencing court also ordered Appellant to pay Mr. Korimko $2,000 in restitution. 3 Appellant filed a timely post-sentence motion claiming, inter alia , that (1) the verdict of criminal mischief was against the weight of the evidence because Appellant testified that he did not touch the motorcycle; and (2) the $2,000 award of restitution exceeded the $1,492 amount of loss paid by Mr. Korimko as of the date of trial. The trial court denied the post-sentence motion on October 27, 2016. Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant raises the following issues for our review:
I. Were the guilty verdicts of criminal mischief and harassment rendered against the weight of the evidence?
II. Alternatively, was the sentencing order imposing restitution in the amount of $2,000 speculative and unsupported by the record?
Appellant's brief at 5.
In his first issue, Appellant challenges the weight of the evidence supporting his convictions for criminal mischief and harassment. Initially, we determine whether Appellant preserved his weight challenges for our review.
A challenge to the weight of the evidence must be preserved either in a timely post-sentence motion, a written motion before sentencing, or orally prior to sentencing.
See
Pa.R.Crim.P. 607(A)(1)-(3) ;
see also id.
, cmt. ("The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived."). A claim challenging the weight of the evidence cannot be raised for the first time on appeal.
Commonwealth v. Wilson
,
On appeal, Appellant argues that the guilty verdicts for both criminal mischief and harassment were against the weight of the evidence. Our review of the record indicates that Appellant's challenge to the weight of the evidence, as presented in his post-sentence motion, was limited to his criminal mischief conviction. See Post-Sentence Motion, 10/26/16, at 1-3. Thus, we deem his challenge to the weight of his harassment conviction waived. See Pa.R.Crim.P. 607 ; Wilson , supra at 713.
Turning to Appellant's criminal mischief conviction, the following legal principles apply when a challenge to the weight of the evidence supporting a conviction is presented to the trial court:
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because *168 the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that "notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer
,
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay
,
Appellant contends that the trial court abused its discretion in finding him guilty of criminal mischief because Mr. Korimko's testimony was "incredible, unreliable, and self-serving," and "wholly inconsistent and unreliable." Appellant's brief at 12-13. According to Appellant, his own "testimony presented a more coherent, reasonable and likely account of what happened ...." Id. at 13. He additionally claims that "the contradictions that riddled [Mr.] Kori[m]ko's testimony ... shock one's sense of justice." Id. Appellant points to the police incident report which indicates that Mr. Korimko told police that repairs to his motorcycle would cost an estimated $250. Id. (citing Affidavit of Probable Cause, 4/16/16). He contrasts Mr. Korimko's initial estimate with his trial testimony that, without paint, the actual cost of the repairs to the frame of his motorcycle totaled $1,492. Id. Appellant argues that Mr. Korimko's explanation for the discrepancy ( i.e. , that he initially believed only the headlight was damaged) was incredible, considering Mr. Korimko's contention "that he observed the caved-in nature of the cowl immediately after impact. " Id. at 14 (emphasis in original). He further discredits Mr. Korimko's testimony because he described his motorcycle to police as a 2014 Kawasaki, yet testified at trial that it was a 2012 model. Id. at 15. Appellant also claims that "[t]o believe that one single punch by [Appellant] to [Mr.] Kori[m]ko's motorcycle caused *169 $2,000 worth of significant damage, including damage to the entire body of the motorcycle, strains the bounds of credibility." Id.
According to Appellant, the "most indicative and self-serving" aspect of Mr. Korimko's testimony was the deal they struck for Mr. Korimko to remove a vehicle from Appellant's property. Id. at 15-16. Appellant asserts that, although Mr. Korimko indicated that he ended up slowly dismantling the vehicle because a junkyard would not accept it without a title, "his testimony left unclear whether the parts were in a junkyard, or in his garage having been rejected by the junkyard." Id. at 16. He further contends that "[t]he disagreement over the vehicle parts provided [Mr.] Kori[m]ko with an opportunity to fabricate a story painting [Appellant] as an angry and physical aggressor." Id. at 17. Finally, Appellant argues that Mr. Korimko's "testimonial contradictions and inconsistencies, coupled with his motivation for testifying as he did against [Appellant]," render the guilty verdicts against the weight of the evidence. Id. at 17-18.
When, as in the instant case, the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited.
Se
Commonwealth v. Gibbs
,
In order to convict Appellant of criminal mischief, the Commonwealth was required to prove that Appellant "intentionally damage[d] ... personal property of another." 18 Pa.C.S. § 3304(a)(5). Mr. Korimko testified that Appellant punched his motorcycle, causing damage. Appellant essentially asks this Court to reassess the credibility of the witnesses. However, this Court cannot substitute its judgment for that of the trier of fact. Gibbs , supra . The trial court, as fact-finder, was free to believe the testimony of Mr. Korimko and to disbelieve the testimony of Appellant. Boyd , supra . The trial court rejected Appellant's testimony that he did not hit the motorcycle to be non-credible, and instead credited Mr. Korimko's testimony that Appellant intentionally struck the vehicle. Trial Court Opinion, 6/22/17, at 4 (finding the Commonwealth's evidence to be "credible, competent and reliable"); see also 18 Pa.C.S. § 3304(a)(5), ("A person is guilty of criminal mischief if he: ... intentionally damages ... personal property of another."). The court further determined that the verdict of guilt for criminal mischief "does not shock any rational sense of justice." Id. Having given due consideration to the findings and reasons advanced by the trial judge, we discern no abuse of discretion. Accordingly, the denial of Appellant's weight of the evidence challenge was not an abuse of discretion, and his first claim merits no relief.
In his second issue, Appellant contends that the $2,000 restitution award is "speculative and not supported by the record." Appellant's brief at 18. Appellant concedes *170 Mr. Korimko testified that, "without paint, the damaged motorcycle parts cost $1,492 to repair" and "it would have cost him around $1,000 for the bike to get repainted[.]" Id. at 19. He argues, however, that the Commonwealth did not produce any photographs, receipts or the name of the repair shop to corroborate Mr. Korimko's trial testimony. Id. at 19-20. Finally, Appellant asserts that "[e]ven if the [sentencing] court were to take [Mr.] Kori[m]ko's unreliable testimony as reliable and determine that the [motorcycle's] plastic body alone did cost $1,492 to repair, [the] $2,000 [restitution order] exceeds the amount of loss suffered by [Mr.] Kori[m]ko in repairing the damage to his motorcycle." Id. at 20.
The Commonwealth counters that Appellant's restitution claim implicates the discretionary aspects of his sentence, and is waived based on his failure to comply with Pa.R.A.P. 2119(f). 4 In response, Appellant argues that his restitution claim presents a non-waivable challenge to the legality of his sentence. For the reasons that follow, we conclude that Appellant's restitution claim presents a challenge to the discretionary aspects of his sentence which must be preserved for our review; and, further, that it was not so preserved.
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 a sentence.
Commonwealth v. Harner
,
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 ... the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.
18 Pa.C.S. § 1106(a). Because of the statutory language "directly resulting from the crime," restitution under § 1106(a) is proper only if there is a direct causal connection between the crime and the loss.
Harner
,
supra
at 706 (stating that § 1106(a)"is clear on its face and 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"). Thus, the sentencing court is statutorily required to impose restitution under § 1106(a) when the Commonwealth has established that the defendant committed a crime, the victim suffered injury to person or property, and there exists a direct causal nexus between the crime of which defendant was convicted and the loss or damage suffered by the victim.
See
18 Pa.C.S. § 1106(a) ;
see also
Commonwealth v. Pappas
,
In fashioning an award of restitution, the sentencing court must consider the extent of injury suffered by the victim, the victim's request for restitution, and such other matters as it deems appropriate.
See
18 Pa.C.S. § 1106(c)(2)(i). To determine the correct amount of restitution, a "but-for" test is used to identify damages which occurred as a direct result of the crime and which should not have occurred but for the defendant's criminal conduct.
Commonwealth v. Gerulis
,
In
In the Interest of Dublinski
,
In
In the Interest of M.W.
,
*172 We recognize that there has been some confusion as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. Where such a challenge is directed to the trial court's authority to impose restitution, it concerns the legality of the sentence; however, where the challenge is premised upon a claim that the restitution order is excessive, it involves a discretionary aspect of sentencing.
Despite the clarity afforded by our High Court in
In re M.W.
, this Court continues to include boilerplate language to the effect that a challenge to the legality of sentence is presented when the defendant claims that the sentence of restitution is "unsupported by the record."
See e.g.,
Commonwealth v. Rotola
,
We are bound to follow the reasoned approach of our Supreme Court in In re M.W. , wherein it drew a distinction between claims that challenge the sentencing court's statutory authority to impose restitution, and those which seemingly concede such authority, but challenge the court's exercise of discretion in determining the appropriate amount of restitution. In re M.W. , supra at 731 n.4. Accordingly, in determining whether a particular claim implicates the legality or discretionary aspects of sentencing, we do not merely look at the manner in which a restitution challenge is phrased; we must instead examine the specific nature of the claim presented to determine whether it challenges the sentencing court's statutory authority to impose restitution, or its discretion in determining the amount of restitution.
According to the High Court, when a challenge is directed to the trial court's statutory authority to impose restitution, it concerns the legality of the sentence.
Id.
at 731. A sentencing court has statutory authority to impose restitution under § 1106(a) when the defendant committed a crime, the victim suffered damage to person or property, and there exists a direct causal nexus between the crime of which defendant was convicted and the loss or damage suffered by the victim.
See
18 Pa.C.S. § 1106(a). Thus, a challenge to the legality of sentence is presented when the defendant claims that the trial court lacked statutory authority to impose restitution because the Commonwealth failed to establish one or more of the requirements of section 1106(a).
See e.g.
,
In re M.W.
,
supra
at 731 (holding that a claim that the juvenile court lacked statutory authority to impose restitution in light of the Commonwealth's failure to prove that M.W. caused any property damage implicated the legality of sentence);
Rotola
,
supra
at 835 (holding
*173
that legality of sentence was implicated where defendant claimed that there was no causal nexus between the offense for which the defendant pled guilty and the amount of restitution ordered, where he was not responsible for the burglary that led to the victim's loss);
Commonwealth v. Poplawski
,
Conversely, where the Commonwealth has established each element of § 1106(a),
i.e.
, the victim suffered loss to person or property directly caused by the specific crime committed by the defendant, a claim that the restitution order is
excessive
implicates the discretionary aspect of sentencing.
See
In re M.W.
,
supra
at 731 n.4 ;
see also
Holmes
,
supra
at 78 ("Where ... statutory authority exists, however, the imposition of restitution is vested within the sound discretion of the sentencing judge.");
Pappas
,
supra
at 842-43 (holding defendant's claim that the restitution order was "not supported by the record" implicated the discretionary aspects of his sentence based on his assertion that the court could not rely on the pre-sentence investigation report in determining the amount of restitution to impose);
Commonwealth v. Penrod
,
Here, although Appellant frames his challenge to the restitution order as "unsupported by the record," ostensibly in an attempt to suggest that it is a legality of sentence claim, his brief lacks any viable claim that the sentencing court did not have statutory authority to impose restitution under § 1106(a). Appellant was convicted of criminal mischief as a result of the damage he intentionally caused to Mr. Korimko's motorcycle. See 18 Pa.C.S. § 3304(a)(5) ("A person is guilty of criminal mischief if he: ... intentionally damages ... personal property of another."). Appellant concedes that the Commonwealth presented Mr. Korimko's testimony that he paid $1,492 to replace the damaged parts of the motorcycle, and that it would cost an estimated additional $1,000 to have it repainted. Appellant does not claim that there is no direct causal connection between his conviction of criminal mischief and the costs to repair and repaint Mr. Korimko's motorcycle. As there is no dispute that the Commonwealth satisfied each element of § 1106(a), the sentencing court possessed the statutory authority necessary to impose restitution. Consequently, despite Appellant's use of the phrase "unsupported by the record," the legality of his sentence of restitution is not implicated.
The crux of Appellant's argument is that, because Mr. Korimko paid $1,492 in repair costs, but had not yet paid the estimated $1,000 cost to repaint the motorcycle as of the date of sentencing, the $2,000 restitution award exceeded the amount of Mr. Korimko's actual losses, and was therefore excessive. See Appellant's brief at 19-20. As Appellant's claim concerns the amount of restitution ordered, rather than the propriety of restitution, his claim implicates the discretionary aspects of his sentence.
Having concluded that Appellant presents a challenge the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal.
See
Commonwealth v. Yanoff
,
*175 (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, [ see ] Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [ see ] 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury
,
In the instant case, Appellant filed a timely post-sentence motion and a timely notice of appeal. However, he failed to include in his brief a separate Rule 2119(f) statement, and the Commonwealth has objected. We are precluded from reaching the merits of his discretionary sentencing claim when the Commonwealth lodges an objection to the omission of the statement.
Commonwealth v. Roser
,
Judgment of sentence affirmed.
Judge Olson joins the opinion.
Judge Kunselman files a concurring opinion.
CONCURRING OPINION BY KUNSELMAN, J.:
I concur with the Majority on Weir's weight of the evidence claim, but I write separately because I would affirm Weir's restitution claim for different reasons.
In Weir's second issue, he challenges the court's restitution award of $2,000. The Majority finds his challenge implicates the discretionary aspects of his sentence and that Weir failed to preserve and therefore waived this claim. 1 I disagree. I believe this claim implicates the legality of sentence, which is non-waivable, and I would address the claim on the merits. Nonetheless, I find the record supports the award of restitution for $2,000, and I would affirm on that basis.
In reviewing cases involving a restitution award on appeal, this Court first must determine whether restitution was imposed as part of the sentence, or as a condition of probation or as a condition for intermediate punishment. Each of these three scenarios implicates a different statutory authority. Here, the court imposed restitution as part of Weir's sentence. Thus, restitution is governed by 18 Pa. C.S.A. § 1106 and 42 Pa. C.S.A. § 9271(c), and not 42 Pa C.S.A. § 9754 (c)(8) or 42 Pa. C.S.A. § 9763(b)(10). 2
*176 Mandatory restitution, as part of a defendant's sentence, is now required for certain crimes under 18 Pa.C.S.A. § 1106, which states, in relevant part:
§ 1106. Restitution for injuries to person or property
(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.
* * *
(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.
* * *
(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 ... and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.
* * *
(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.
18 Pa.C.S.A. § 1106 (emphasis added). 3
The Commonwealth has the burden to prove the amount of "full restitution." 18. Pa. C.S.A. § 1106 (c)(1),(4). Although section 1106(c) mandates an award of full restitution, it is still necessary that the amount "be determined under the adversarial system with consideration of due process."
Commonwealth v. Ortiz
,
Here, Weir claims the restitution award of $2,000 was speculative and not supported by the record. Appellant's Brief at 18. Because he questions the court's authority to enter this award, unlike the Majority, I believe his claim attacks the legality of his sentence.
In
Commonwealth v. Crosey
,
Other recent cases have also held such attacks challenge the legality of sentence.
*178
See
Commonwealth v. Holmes,
Because I believe Weir's issue is a challenge to the legality of his sentence, I would decide it on the merits.
Issues related to the legality of sentence are questions of law; as a result, our standard of review over such questions is
de novo
and our scope of review is plenary.
Commonwealth v. Gentry
,
I find this case analogous to
Commonwealth v. Crosey,
There was no dispute the defendant's crimes required the victim's transport to the hospital by ambulance, and that the hospital rendered surgical efforts in an attempt to save his life.
Here, Weir claims the Commonwealth offered no evidence to support the court's restitution award of $2,000.
5
Although he acknowledges that the victim testified that the cost of the repairs to his motorcycle was $1,492, Weir claims because the Commonwealth offered no corroboration for this amount, the court was not authorized to impose restitution for this amount. Appellant's Brief at 19. Similarly, Weir acknowledges that the victim testified that the cost to paint the bike would be $1,000.
I agree with Weir, that there was no testimony that the victim's losses were exactly *179 $2,000. However, I believe the record supported a factual basis for awarding the reasonable cost of the repairs, including the paint. First, the record clearly supports an award of $1,492, the cost of the repairs to the motorcycle. The record also contains evidence that the cost to paint the motorcycle was an additional $1,000.
Here, the victim claimed his 2012 Kawasaki 600 Motorcycle was damaged when Weir struck the headlight assembly during an altercation with him. On direct examination, the victim testified as follows:
A. Whenever [Weir] struck it, it broke the main support and it busted off all the side taps for the side frames. And basically the whole gauge cluster, the headlight itself, nothing was supported. It was all broken.
Q. How much do those parts cost to you?
A. Without paint it was $1,400. Fourteen hundred ninety and some change. That's without paint. The original estimate that I gave [ ] that was with paint, but I couldn't afford it ... But I didn't get the paint for the plastic done. I couldn't afford it. That's why it is only fourteen hundred ninety and some change.
N.T., 10/17/16 at 17.
On cross-examination, the victim confirmed the exact amounts:
Q. And your testimony today was the restitution amount was about or the amount that you had to pay to fix the bike was about $1,400, I believe?
A. $1,492, correct. The original estimate was with paint, but I couldn't afford it. It was almost $1,000 they wanted to paint it. So I just got the plastic repaired.
Id. at 25.
Weir's attorney further questioned the victim about whether he told the officer that the amount of damage to the motorcycle was only $250, but the victim denied saying this. 6 Id. at 25-26.
I believe, under
Crosey,
Regarding the portion of the restitution award for painting the motorcycle, $508, I note that the record supported an award of $1,000 for this damage. Additionally, I note that the Commonwealth did not challenge the award of $508 for painting the motorcycle as less than "full restitution" to the victim. In his Opinion, the trial court indicated that it could have awarded the sum of $2,400 had it chosen to do so. T.C.O., 6/22/17, at 5. At the conclusion of the restitution hearing, the court stated, "At the criminal mischief [Weir] is ordered to pay restitution in the amount of $2,000. I'm splitting the paint job cost only because we don't have accurate detailed information in that regard. And it is an M2, so I'm staying with $2,000. Pay that through the court." N.T., 10/17/16, at 59.
I believe the record supported an award up to $2,492. Because the evidence suggested that Weir damaged the motorcycle during the commission of the crime, the trial court had the authority, and the duty, to award something for the cost to repair it in order to achieve "full restitution." 18 Pa. C.S.A. § 1106. That amount could be any reasonable amount, up to and including the amount requested by the district attorney or the victim. 8 Here, the court awarded approximately half of what the victim indicated the cost would be to repaint the motorcycle. This amount was reasonable and did not exceed the amount requested by the Commonwealth.
I believe the amount was not speculative and was supported by the record. As such, I conclude the court had the authority to enter such an award, and I would not disturb it.
See Crosey,
At trial, Mr. Korimko initially testified that the cost to repair his motorcycle was $1,400. See N.T., 10/17/16, at 17. He thereafter clarified to the trial court that the repair amount was $1,492. Id. at 25. In his brief, Appellant alternately refers to the repair amount as either $1,400 or $1,492. For consistency, we shall hereinafter refer to the damage amount as $1,492.
The trial court and the Commonwealth refer to the victim as "Korimko," whereas Appellant refers to him as "Korinko." The record reveals that "Korimko" is the proper spelling. See N.T., 10/17/16, at 8.
The sentencing court acknowledged that the record supported an award of restitution of up to $2,500, but reasoned, "I'm splitting the paint job cost only because we don't have accurate detailed information in that regard." See N.T., 10/17/16, at 63.
Pursuant to Pa.R.A.P. 2119(f), "[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.").
The Dissent relies on Poplawski , supra , in support of its position that Appellant's restitution claim implicates the legality of his sentence. In Poplawski , the jury found Poplawski guilty of home improvement fraud for receiving an advance payment of $2,000 for work he did not perform. The victim ultimately paid another contractor $41,637 to perform work. The sentencing court ordered restitution in the amount of $41,637. On appeal, Poplawski challenged the restitution award on the basis that (1) "there was no causal connection between the crime for which [Poplawski] was convicted ... and the amount of said restitution[;]" and (2) the "amount was speculative and not supported by the record." Id. at 673. Without any analysis, the Poplawski court determined the claim constituted an attack on the legality of sentence. Id. at 674. Under the reasoning of In re M.W. , the Poplawski court's determination was correct. The essence of Poplawski's claim was that the sentencing court lacked statutory authority to impose restitution because the Commonwealth had not established one of the requirements of § 1106(a), namely, a direct causal connection between the crime of which Poplawski was convicted and the $41,637 in loss claimed by the victim. As such, Poplawski's claim presented a challenge to the legality of his sentence of restitution. See In re M.W. , supra at 731 (when a challenge is directed to the trial court's statutory authority to impose restitution, it concerns the legality of the sentence).
Ultimately, the Poplawski court determined that the restitution order was illegal since the Commonwealth failed to establish a direct causal connection between the crime committed and the loss claimed by the victim. The record was unclear as to whether some portion of the $41,637 represented payment for work beyond that which Poplawski was requested and paid to perform. As explained by the Poplawski court, "we cannot determine whether this $41,637 ... was money [the complainant] would have had to expend to complete the project regardless of [Poplawski's] involvement." Poplawski , supra at 674-75. Thus, in Poplawski , the Commonwealth failed to establish that the victim's losses were directly caused by the particular crime committed by Poplawski.
Poplawski is factually and legally distinguishable from the case sub judice . The instant appeal does not involve a challenge to the sentencing court's statutory authority to impose restitution. Appellant was convicted of criminal mischief for the damage he caused to Mr. Korimko's motorcycle. Mr. Korimko testified that he paid $1,492 to repair the motorcycle and that it would cost an additional estimated $1,000 to repaint it. Unlike in Poplawski , there is no argument that any aspect of loss claimed by Mr. Korimko was not directly caused by Appellant. Instead, the Commonwealth established a direct causal connection between the crime for which Appellant was convicted and the costs to repair and repaint the motorcycle. As each of the requirements of section 1106(a) were satisfied, the sentencing court was authorized to impose restitution for the repair and painting costs. Therefore, the legality of Appellant's sentence of restitution is not implicated.
The Majority correctly cites most of the law in this area. However, the Majority believes that any claim challenging the amount of restitution as excessive is a challenge to the discretionary aspects of sentence. Majority Opinion, at 173-74. This may be true with respect to restitution ordered as a condition or probation or parole, or in a case involving juvenile delinquency, where the court has discretion to enter an award. This also may have been true for restitution awarded as part of a sentence before the amendments to section 1106, which changed the language from "may" to "shall", making an award under this section mandatory, instead of discretionary as it used to be. Here, however, Weir is not challenging the award as excessive, but rather that there was no support in the record for the amount awarded.
Before ordering restitution under the other sections (probation or parole), the court must determine the defendant's ability to pay.
See e.g.
Commonwealth v. Harner
,
Pennsylvania's mandatory restitution statute, section 1106 of the Crimes Code, is similar to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A. § 3663A, which began requiring federal courts to order restitution for certain crimes in 1996. Congress's primary motivation in enacting the MVRA was the belief that the restitution framework of the prior act, (the Victim Witness Protection Act of 1982), had not adequately compensated crime victims. By mandating that judges order restitution in the full amount of victims' losses, Congress aspired to ensure that victims "receive the restitution that they are due," and thereby increase victim satisfaction with restitution orders. Matthew Dickman,
Should Crime Pay?: A Critical Assessment of the Mandatory Victims Restitution Act of 1996
,
The Majority notes that our Supreme Court, in
In the Interest of M.W.,
The Majority then takes issue with cases following In the I nterest of M.W. , where an appellant claims the award is "unsupported by the record" and the courts found such challenges implicate the legality of the sentence. Majority at 172. I find no such conflict.
I note that those cases after in
In the Interest of M.W.
, where the defendant has made a claim that restitution was "unsupported by the record", all involve the mandatory imposition of restitution, where the court lacked discretion to award anything other than full restitution, under the revised section 1106 of the Crimes Code. They involve challenges to claims where the amount was not itemized,
see e.g. Crosey,
I also note that some cases, which seem to suggest that these challenges involve the discretionary aspects of sentencing, were decided prior to the 1998 changes to the Crimes Code.
See e.g.
Commonwealth v. Penrod
,
To the extent any conflict still exists, I would invite this Court en banc , or the Supreme Court of Pennsylvania, to clarify any confusion in our precedents regarding this issue.
I note that the award of restitution came after a sentencing hearing where the victim testified. Thus, Weir has not challenged due process. Although he had an opportunity, Weir offered no testimony as to the cost of the repairs, other than his cross-examination of the victim, where he pointed out that on the day of the incident, the victim estimated the total repair cost to be $250.
Conceivably, the trial court could have believed the $250 figure as a total amount of damages that and ordered restitution for that amount.
Weir did not object to the amounts offered by the victim as hearsay or non-expert testimony. I note that a property owner is generally competent to provide his opinion concerning the value of his property because of a "presumption of special knowledge arising out of such ownership."
Baldassari v. Baldassari
,
I analogize an award of "full restitution" to an award for attorneys' fees. Even when a party is obligated to pay the other side's counsel fees, the court can still determine whether the amount incurred is reasonable, and may reduce the amount claimed when appropriate.
McMullen v. Kutz
,
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Christopher Robert WEIR, Appellant
- Cited By
- 56 cases
- Status
- Published