J-S79035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
              v.                             :
                                             :
STACY L. SALTZER,                            :
                                             :
                    Appellant                :             No. 96 EDA 2016

           Appeal from the Judgment of Sentence November 30, 2015
             in the Court of Common Pleas of Montgomery County,
               Criminal Division, No(s): CP-46-CR-0004765-2014

BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED NOVEMBER 23, 2016

        Stacy L. Saltzer (“Saltzer”) appeals from the judgment of sentence

imposed following her entry of an open guilty plea to one count each of

driving under the influence of a controlled substance (“DUI”), accidents

involving damage to unattended vehicle, disregarding a lane of traffic, and

operating a vehicle without financial responsibility.1 We affirm.

        The trial court set forth the relevant factual and procedural history,

which we adopt for the purpose of this appeal.          See Trial Court Opinion,

3/1/16, at 1-3.

        On appeal, Saltzer raises the following question for our review:

        Did the [trial] court err in ordering [Saltzer] to pay restitution to
        PECO [Energy Company (“PECO”)] in the amount of $19,463.70
        for allegedly damaging a PECO utility pole, where no affiant
        claimed[,] through competent testimony or report[,] that any
        contact occurred between [Saltzer’s] car and the pole[,] and



1
    75 Pa.C.S.A. §§ 3802(d)(2), 3745(a), 3309(1), 1786(f).
J-S79035-16


      [Saltzer] was never charged [with,] nor [pled] guilty to[,]
      striking the pole[?]

Brief for Appellant at 9 (unnumbered).

      Saltzer argues that the trial court erred by ordering Saltzer to pay

restitution for the damaged PECO utility pole. Id. at 12. Saltzer cites to this

Court’s decision in Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super.

2007), and asserts that, to impose an order of restitution, there must be a

specific nexus between the crime committed and the amount of restitution

ordered. Brief for Appellant at 12. Saltzer argues that such a nexus was not

present in this case, because she was never charged with damaging the

utility pole. Id. at 13.2

      “When a court’s authority to impose restitution is challenged, it

concerns the legality of the sentence; however, when the challenge is based

on excessiveness, it concerns the discretionary aspects of the sentence.”

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006).                 Here,

Saltzer asserts that the restitution for the PECO utility pole is illegal because

2
  Additionally, Saltzer claims that the PECO utility pole was never mentioned
at her guilty plea hearing. Brief for Appellant at 13. Saltzer further
contends that the trial court’s determination was based merely on
speculative, circumstantial evidence that had not been presented at the
guilty plea hearing. Id. at 14. However, we note that the prosecutor
referred to PECO’s restitution claim during both the guilty plea hearing and
the sentencing and restitution hearing. See N.T., 7/8/15, at 3; see also
N.T., 11/30/15, at 3. After the guilty plea hearing, the trial court postponed
sentencing to consider restitution.        See N.T., 7/8/15, at 4-5, 21.
Additionally, after the sentencing and restitution hearing, the trial court left
open the issue of restitution as to the PECO utility pole, and subsequently
conducted a hearing to determine whether Saltzer should be held
responsible for the damage. See N.T., 11/30/15, at 16.


                                   -2-
J-S79035-16


there was an insufficient nexus between her actions and the damage.

Therefore, Saltzer’s claim challenges the legality of her sentence.                  See

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010)

(stating that “a claim that a restitution order is unsupported by the record

challenges   the    legality,    rather   than    the   discretionary     aspects,    of

sentencing.”). “Issues relating to the legality of a sentence are questions of

law. Our standard of review over such questions is de novo and our scope of

review is plenary.”     Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.

Super.   2014)     (citations,   brackets   and    ellipses   omitted);    see   also

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

      Saltzer characterizes the restitution as a direct sentence imposed

under Section 1106(a) of the Crimes Code. However, the trial court ordered

Saltzer to pay restitution as a condition of her DUI sentence. Accordingly,

the restitution is a condition of intermediate punishment imposed under 42

Pa.C.S.A. § 9763, which provides, in relevant part, as follows:

      42 Pa.C.S.A. § 9763. Sentence of county intermediate
      punishment.
                              ***

      (b) Conditions generally.—The court may attach any of the
      following conditions upon the defendant as it deems necessary:

                                          ***




                                     -3-
J-S79035-16


            (10) To make restitution of the fruits of the crime or
            to make reparations, in an affordable amount, for
            the loss or damage caused by the crime.

42 Pa.C.S.A. § 9763(b)(10).

      In Harriott, this Court held that,

      to impose restitution as a condition of [intermediate
      punishment] pursuant to 42 Pa.C.S.A. § 9763(b)(10), there need
      not be a direct nexus between the conduct and the loss. Rather,
      an indirect connection between an offender’s activity and the
      victim’s damage will justify the restitution order. A sentencing
      court must have the latitude to include such restitution as a
      condition of [intermediate punishment] if restitution serves the
      various purposes of [intermediate punishment].

Harriott, 919 A.2d at 239; see also Commonwealth v. Pleger, 934 A.2d

715, 720 (stating that “[w]hether imposed as a direct sentence or as a

condition thereof …, the primary purpose of restitution is the rehabilitation of

the offender.”).

      In its Opinion, the trial court set forth the relevant evidence underlying

Saltzer’s DUI conviction, as well as the evidence establishing a nexus

between Saltzer’s actions and the damage to the PECO utility pole.         See

Trial Court Opinion, 3/1/16, at 4-7.       The trial court determined that “the

damages to the utility pole stem from [Saltzer’s] overall conduct that

night[,] which resulted in the charge of DUI, to which she has pled guilty.”

Id. at 7; see also Harriott, 919 A.2d at 240 (finding that, for the purpose

of ordering restitution as part of an intermediate punishment for DUI, the act

of spitting on police officers was part of appellant’s overall conduct). Upon

review, we agree that the record supports the relaxed nexus applicable when


                                  -4-
J-S79035-16


restitution is imposed as a condition of intermediate punishment, and we

adopt the trial court’s analysis, as set forth in its Opinion, for the purpose of

this appeal. See Trial Court Opinion, 3/1/16, at 4-7. Accordingly, Saltzer is

not entitled to relief on her claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




                                   -5-
                                                                                                Circulated 10/31/2016 03:51 PM




    IN THE COURT OF.(;OMMON                      PLEAS OF MONTGOMERY                COUNTY, PENNSYLVANIA
                                                  CRIMINAL DlVISJON

COMMONWEALTH                 or          PENNSYLVANIA
                                                                              4765-2014
         v,
                                                                              2018 EDA 2015
STACY SALTZER

                             I '
                                                        OPINION



INTRODUCTION

         Appellant,    StacySaltzer,          ("Appellant") appeals to the Superior Court of Pennsylvania

from this Court's Disposition              imposed on November         30, 2015, as a result of an open guilty plea
                             I


entered on July 8, 2015.             A   restitution hearing was held thereafter on December       10, 2015.

FACTS AND PROCEl)URAL                         HISTORY
                                 i
         On April 10, 2014 at approximately              8:56 p.m.,     Officer Andrew Licwinko or the

Pottstown     Borough Police Department             responded       to the area of Beech Street and Penn Street for

the report of' a vehicle accident.            Upon his arrival, he observed one vehicle crashed into two

parked vehicles.


         Officer Licwinko spoke with witnesses at the scene who saw the defendant's                      vehicle,

traveling cast on Beech Street, swerve into the East bound lanes and back into the west bound

lanes with the rear bumper dragging behind the defendant's                    vehicle. The defendant's    vehicle

was observed drifting intb the West bound lane before striking the two parked vehicles.

Thereafter,    witnesses observed the defendant            trying to restart her car and when it would not start

she tried unsuccessfully     to exit her car. Officer Licwinko observed this behavior, noting that the

defendant     appeared disoriented          and did not know what was going on. She kept stating that "he

stole my kids". She would only repeat herself when asked to whom she was referring.

                                                                1
i'..•J
f.l                                      I

~I
~I                Defendant      was t1ransportcd          to Reading Hospital. Officer Licwinko              read her the DL-26

         form and the defendant          submitted        to a blood test for suspicion of DUI. The defendant's blood

         was drawn al 10:30 p.mi' by an Emergency                     Room nurse and was sent to NMS labs for testing.

11,I
.....             Officer Licwinko               received the lab results on Apri I 25, 2014, which showed that the

         defendant      had 55 ng/ml         ,of Lorazepam,     48 ng/ml of Clonazepam             and 16 ng/ml of 7 Amino-

         Clonazcparn      in her system, all of which arc schedule                 IV controlled      substances.


                  Based upon the foregoing, Officer Licwinko issued a summons,                             sent by mail, to the

         defendant,     Stacy Seltzer,


                  On May 8, 20141 Appellant                was charged with one count of driving under the influence of

         a controlled    substance,     cine count of accidents            involving damage to unattended           vehicle, one
                                             '

         count of disregarding        a lane of' traffic and one count of operating                a vehicle without financial

         responsibi I ity.


                  On July 8, 2015, the defendant               entered a knowing,       intelligent     and voluntary open guilty

         plea on the record to all four counts. N.T., Open Guilty Plea, 7/8/15, pp. 6- 20. A restitution

         hearing was requested         arid sentencing         was deferred.


                  On November         30,, 2015, the Defendant,              Stacy Saltzer was sentenced        on Count one,

         Driving Under the lnfluence                of a Controlled    Substance,     to ten days of incarceration,      to be served

         in the Montgomery        County Correctional             Facility; fifty-nine months and twenty days of

         Intermediate     Punishment,            with the first ninety days to be served under house arrest; and to pay

         costs of prosecution      and Ia fine of$ J ,500.00.              With regard to Counts 2, 3, and 4, the defendant

         was sentenced       lo pay court costs.          In addition, the defendant's       sentence was subject to special

         conditions,    including the'payrnent            or restitution     in the amount of $8,866.98,        the total cost of

                                                                             2
r.·1~·l
t:I t;1
f;li ~I
~:I ~;:I        damages to the two automobiles            the defendant collided with. N.T., Sentencing                Hearing,

";(ii'          I l /30/15, p. 14-17.      The tommonwcalth          requested that restitution      remain open for an additional
lilf!l,i;:I
1-,J.,,1        30 days so that the parties have adequate time to prepare and address the restitution claim of
.,.'4 ..."'·~                                    I
lifl~l
i-,.lls,•
                PECO for damage to a telephone             pole in close proximity         lo where the defendant       hit the two
ff\.,....",
1\,1\l          parked vehicles.       N.T., Sentencing     Hearing,        I 1/30/15, p. 16.
~ti,ll
. ,.~ ...
tlll~l
            ·             A restitution     hearing was held on December              I 0, 2015 regarding     PECO's claim for

                damages to a telephone         P?l'e. After hearing testimony           from Officer Licwinko,         Kimberly Yocum,

                a representative      of PECO( and the Defendant,            this Court granted restitution       in the sum 01·

                $19,463.70     for the cost ofrepairs to the PECO pole. NT, Restitution                     Hearing,   12/10/15, p. 27.


                          On December        29, '.2015, Appellant     filed a Notice of Appeal. This Court ordered Appellant

                to tile and serve a Concise Statement          within 21 days of January 7, 2016.
                                                 I
                                                 I


                                                 !
                          On Januarv . 19.. 2016,
                                              '   a Concise Statement was Ii led in the Clerk of Courts and served

                upon the Commonwealth,


                ISSUES

                          By way of Concise Statement,          Appellant raises three issues on appeal.               The issues are

                reproduced     below verbati]n, with citations         LO   the record omitted:


                     I.   Appellant       plead guilty to Count I, DU I of a controlled          substance,      second offense, M-1;

                          Count 2, Damage.to attended vehicles, Summary offense; Count [3], Disregard Traffic

                          Lane, Summary         Offense; Count 4, Operating without a license, Summary Offense.

                          However, at the Inst minute the Commonwealth                    tried to saddle appellant with the cost of
                                                 i
                          damage to a tclep:h?ne pole which she did not hit. The Commonwealth                           was given ninety

                          days to prove Appellant
                                           ,              was responsible          for the damage to the telephone pole.

                                                                               3
        2.   With regard to the I factual basis, the Commonwealth                              indicated the following: you
                                                  I
             understand    by pleading guilty you're admitting that on April 10, 2014, you were driving

             a motor vehicle i~ Pottstown,                         Montgomery       County, and you did so while you had levels
                                              I
             of Lorazcparn and Clonazazeparn,                           which arc scheduled       IV drugs, in your system

             exceeding    prescription                   levels, and that rendered you impaired to drive?

        3.   Appellant    never pied guilty to hitting a PECO pole and nothing in the Police report or
                                          i
             Bills of lnformation                     indicated she hit a PECO pole. The Commonwealth                failed to prove

             Appellant    shouldlbe responsible                       for paying restitution    to PECO.   The trial court therefore
                                          i

             erred in ordering Appellant                         to pay restitution in the amount of $20,418.751 to PECO for

             an accident she     \,:as not                involved in.


DISCUSSION


             A. THIS COUHJf PROPERLY SENTENCED DEFENDANT TO PAY
                RESTJTUTION FOR DAMAGE TO TJIE PECO ENERGY POLE.

             While the Appellant's                     Concise Statement consists of three paragraphs,          it appears that
                                      '
only one issue is raised o1n appeal, that being the propriety of the restitution                              order against the

defendant       for damages     19 the                PECO Energy utility pole.
                                  '

             When Officer Licwinko arrived at the accident scene on the night of' April 10, 2014, he

found the defendant         in her vehicle, which had stopped after hitting two parked vehicles.

Witnesses to this accident I .informed the Officer that the defendant's                               vehicle was swerving back

and forth over the double yellow line and struck a parked car head-on and then struck another

vehicle. NT, Restitution         Hearing,                   12/10/15, p. 7.        Officer Licwinko also observed that the


1
    Th is Court Ordered Restitution in the amount of SI 9,<163 .70, which is the amount of damages               rcsti   ficd lo by PECO
1::nergy's witness.   NT, Restit~lfon                 Heuring,   12/10/15, p. 11, 27.


                                                                               4




                                 I .
       bumper of the defendant ':scar was hanging off the back. NT, Restitution                                    Hearing,    12/10/15, p.
                                       I

       5-6. Officer Licwinko's1 Criminal Complaint identifies the defendant's                                     vehicle as a

       silver/aluminum       Nissan Sentra,
                                    ' .
                                            with a license plate number of FHM0824.                                  See. Criminal
                                       '
                                        I
       Complaint,      filed June 301 '.?014.

I\)                                     I
~,               At 8:53 p.m., approximately                       three minutes prior to Officer Licwinkos             response to the
r"''
l~l    accident involving         the defendant and the two parked cars, a report of a hit and run in the 200
                                           I
       block of York Street wascalled in to the Pottstown Police Station.                                 The caller described       the

       vehicle as a gray or silver Nissan, with a Pennsylvania                          registration     number of FHM0824.              NT,
                                           I
       Restitution     Hearing,     12110/15, pp. 7-10.


                 Kimberly    Yocum[ .i senior claims case manager                         for PECO Energy testified that she was

       contacted  by the Pottstown Police Department to report a damaged utility pole at 264 North York
                                  I
       Street in Pottstown. NT,!Restitution Hearing, 12/10/15, p. 11, 26. She testified that PECO's

       troubleman,      Howard Green was dispatched                         to the site to determine      the amount of damage.            He
                                               I
                                                       '
       determined      that pole number 520 was hit by a vehicle and it was cracked at the bottom, at the

       secondary      level and at th~ cross arms at the top. NT, Restitution                          Hearing,    12/J 0/15, p. 21-22.
                                               '
       The damages       were calculated                   to be $19,463. 70. NT, Restitution          Hearing, I 2/ I 0/ 15, p. 11. The

       defendant     spoke with a representative                     of PECO on a couple of occasions regarding the amount of
                                               I


       damages       PECO incurred ~$ a result of the damaged                        utility pole.     NT, Restitution        Hearing,
                                                   i
       12/10/15, p. 12-15; Exhi~il'C-3.


                 The defendant       testified that after taking the prescribed                  medication        she does not remember

       two days of her life, let alone hitting the utility pole that night. NT, Open Guilty Plea, 7/8/15, p.

       18; NT, Restitution        Hearipg,                 12/10/ l 5, p. 25.



                                                                                5




                                                   I t
c,,1
f.l
~I
~I                 It is the Commonwealth's                             burden or proving its entitlement        to restitution.     When

(ill   fashioning      an order of restituuon, the lower court must ensure that the record contains the factual
                                       I

       basis for the appropriate       'amount of restitution. The dollar value of the injury suffered by the

       victim as a result or the crime assists the court in calculating                                  the appropriate       amount of
                                       !
       restitution. The amount 9f the restitution                                  award may not be excessive       or speculative.

       Commonwealth v. AlcmaLo, 997 A.2d l 181, 1183 (Pa. Super. 20 I O)(cifCltions omitted).


                          can be imposed by the Courts in one of three ways, as a direct sentence under
                   Restitution
                                I
       18 Pa. C.S. § 1106(a); as a condition or probation under 42 Pa. C.S. § 9754(c)(8); or as a
                                           I

                                           I
       condition     of intermediate                           punishment     under 42 Pa. C.S. § 9763(b)( I 0). See, Commonwealth v.
                                           I                   .
       Harriott, 919 A.2d 234, 23 7-38 (Pa. Super. 2007).

                                               I
                   In the instant matter, the defendant                               was ordered to serve intermediate         punishment   as part

       of her DUI sentence and                 as such,                 restitution    for damage to the utility pole was imposed upon the

       defendant      under Section 9763(b )( I 0).


                Circumstantial     evidence                            presented      by the Commonwealth       established     that the defendant

       struck the utility pole on the 200 block of York Street in Pottstown. The defendant's                                             vehicle had
                                               I
                                                                                                   or a hit
                                               I

       rear end damage with its bumper hanging off. A report                                                  and run on York Street was
                                                   I
       called into the Pottstown                       Police Station three minutes before the defendant                      hit the two parked

       vehicles, a short distance :a\vay. The description                                   of the hit and run vehicle matches the make and

       color of the defendant's \)chicle, as well as the license plate number.
                                                       I           .
                                                                                                                    While it was never

       identified     what precisely was hit on York Street, there were no reports of any other properly

       damage in that area, other than the utility pole. These facts considered                                       collectively     with the

       damage to the rear of the defendant 's vehicle leads this Court to conclude that the defendant

       struck the utility pole wit!~ her vehicle shortly before she struck the two parked vehicles.
                                                                                           6



                                                           I
                                                           I       1
       Accordingly, based upon the foregoing, this Court concludes that the damages to the utility pole

       stem from the defcndant+s      overall conduct that night which resulted in the charge of DUI, to
~,
L.,J   which she has pied guiltr The restitution will provide reimbursement to PECO, who is a victim
·~•,
       in this matter for restitution
                                   I .
                                       purposes.
"•,
       CONCLUSION

                Based on the reasons above, the undersigned respectively requests that this Court's

       sentence imposing restitution upon the Defendant for damage to the PECO Energy utility pole, in

       the amount of$19,463.70        be AFFIRMED.




                                                                   BY THE COURT:




       Copies of the abo'l Or<j<;r
       Mailed on:     olj ;;;_9// l{)
       By trucrofflce ~lall to:       ;
       Montgomery County District Attorney's Office -Appellate Div.
       Raymond Roberts, Esq. (Assistant Public Defender, Chief of Appeals)
       Clerk ofCourts        .


       ~::~

                                                              7




                                     I I
