J-S67025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATTHEW DAVIDOFF

                            Appellant                 No. 386 MDA 2015


                    Appeal from the Order January 30, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000707-2014


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED MARCH 01, 2016

        Appellant, Matthew Davidoff, appeals from the order denying his

motion to modify restitution.1 Davidoff does not contest the computation of

restitution, but rather whether the Commonwealth presented sufficient

evidence of a causal nexus between his conduct and injury suffered by the

victim. We conclude that the explicit reasoning employed by the trial court

in setting restitution is erroneous, and therefore reverse and remand.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Though Davidoff’s motion is entitled “Motion to Determine Restitution,” the
trial court included restitution of $41,103.95 when it imposed sentence. See
N.T., Sentencing, 7/17/14, at 6.          The procedure employed therefore
complies with the requirements of 18 Pa.C.S.A. § 1106(c).                See
Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009).
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      Davidoff pled, pursuant to a plea agreement with the Commonwealth,

no contest to a charge of simple assault. The factual predicate for this plea

was set forth as follows.

      Your Honor, the allegations are that Matthew was here in State
      College in Centre County with his entire family for a wedding of a
      family member.       They were at the Phyrst bar when the
      altercation broke out. Matthew’s side and his family’s side of the
      case is it was the bouncers who precipitated the altercation. The
      bouncers, of course, said that they were trying to get Matthew
      out of the bar, he resisted, and an altercation broke out.

      In the course of the altercation it was alleged by one of the
      bouncers that he was pushed, fell down, hurt his knee. He had a
      preexisting knee injury but when he fell down he reinjured his
      knee and created a significant medical expense. I believe the
      Commonwealth is saying up to $40,000. But the evidence is
      that Matthew had nothing to do with that injury and the
      evidence would be from our side had we gone to trial that his
      family members only came to his assistance because he was
      being beaten by three or four bar employees.

      As a result that charge ultimately was filed against Matthew and
      his cousin, who is here today also, but the family and Matthew
      have presented they have a self-defense issue.          This was
      compromised because the Commonwealth has made it clear that
      if we do not resolve this case today they are contemplating
      adding an aggravated assault charge.

N.T., Sentencing, 7/17/14, at 4-5.      When asked for any additions, the

Commonwealth declined. See id., at 5. As part of the plea agreement, the

Commonwealth agreed that the amount of restitution was subject to

litigation at a subsequent hearing. See id., at 2.

      At the subsequent hearing, the victim (“the Bouncer”) testified as part

of the Commonwealth’s case-in-chief. He stated that he was working at the

Phyrst near 2 a.m. on the morning in question when Davidoff approached

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him and asked him to move. See N.T., Restitution Hearing, 11/17/14, at 5-

6. When he informed Davidoff to wait while he performed his job, Davidoff

“kind of shouldered me out of the way and walked towards the bar.” Id., at

6.

      The Bouncer followed Davidoff to the bar and indicated to the

bartender that Davidoff was not to be served. See id. He then informed

Davidoff that he was visibly intoxicated and that he had to leave the

premises. See id., at 6-7. After Davidoff indicated that he would not leave,

the Bouncer testified that

      I said, “No, it’s time for you to go, start walking,” and I put my
      hand up and he smacked my hand down. And that’s when I
      looked at him again and said “Start walking.” And he went, like,
      moved his hand up again and that’s when I thought he was
      going to smack my hand so I grabbed his hand and pushed it,
      because I didn’t know what exactly he was going to do with it,
      and that’s when we engaged in our altercation of, like, a pushing
      shoving match.

      …

      And then we kind of almost grabbed each other at the same
      time. Like, I reached forward to grab him as he came forward to
      grab me. And that’s when we got – I would say just more of like
      – I mean it wasn’t no punches were thrown or anything like that.

      And by that time, we were right up against the bar and Zach,
      one of the other bouncers, came from the door and he came
      over. And as he came over, one of the fathers had also came
      over at the same time and pushed me from the side. I turned
      around, pushed him off of me, and then I felt like being choked
      from behind and it pulled me away from Zach and Mr. Davidoff.

      …




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      I was being choked from behind [by Davidoff’s cousin, Kelly
      Meenan]. I pulled his hands off. And as soon as I pulled his
      hands off, he kind of bear hugged me from behind, lower
      towards my waist. And at that time, I was trying to reach
      around to grab him and his head was right here around under
      my arm and I couldn’t gain control. So, I started to pry his
      hands off from around my waist. Got his hands off my waist and
      then I felt an extreme, like, pressure in my back and shoulders
      like he had jumped on my back. And then as soon as that
      happened, we both just wiped out on the ground.

      …

      And when I went to stand up, I couldn’t. Kind of looked at my
      leg, … I felt, like, an extreme pressure and pain around my knee.

Id., at 6-9.

      On cross-examination, the Bouncer admitted that he was no longer in

contact with Davidoff when the injury occurred. See id., at 14. In fact, the

Bouncer testified that Davidoff’s cousin, Kelly Meenan, had caused his injury.

See id., at 14-15.    On re-direct, the Bouncer testified that he did not fall

due to his “pushing match” with Davidoff.        Id., at 24.   Several other

witnesses testified, and although the particulars of their testimony varied,

none offered a story that indicated Davidoff did anything other than push the

Bouncer and refuse to leave.

      After the hearing, but before a decision on the motion was rendered,

the trial judge was removed from the case. Another judge was appointed to

resolve this issue.   The substitute judge—in his 2 paragraph discussion of

the issue—observed that Davidoff had pled no contest to the charge of

simple assault, and therefore had “agreed to be treated as if he caused


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bodily injury to” the Bouncer, and therefore imposed restitution in the

amount of $83,915.95. This timely appeal followed.

      Davidoff raises several arguments, but we will address only one, as it

is dispositive. Davidoff contends that the trial court erred in concluding that

his nolo contendere plea precluded him from contesting that he had caused

the injury suffered by the Bouncer. We agree.

      Initially, we note that Davidoff pled no contest to a charge of simple

assault.   In the criminal information filed by the Commonwealth, Davidoff

was alleged to have “attempt[ed] to cause or intentionally, knowingly or

recklessly cause[d] bodily injury to another, to-wit: [the Bouncer.]” As set

forth above, the factual predicate for Davidoff’s no contest plea did not

contain any reference that he had, or that the Commonwealth could prove,

that he had, caused injury to anyone.      Since the information includes the

disjunctive “or,” and Davidoff explicitly reserved the right to contest

restitution, there is no indication in the record that Davidoff had conceded

that he was the cause of the Bouncer’s injury.

      “[T]he   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.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa. Super. 2010) (citation omitted). A sentence of restitution must be

based upon statutory authority. See Commonwealth v. Harner, 617 A.2d

702, 704 (Pa. 1992). Mandatory restitution, as part of a defendant’s


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sentence, is authorized by 18 Pa.C.S.A. § 1106 and states, in relevant part,

the following:

      § 1106. Restitution for injuries to person or property

      (a) General rule.—Upon conviction for any crime … wherein the
      victim suffered personal injury directly resulting from the
      crime the offender shall be sentenced to make restitution in
      addition to punished prescribed therefor.

18 Pa.C.S.A. § 1106(a) (emphasis added). The statute evidences the intent

to provide the victim with the fullest compensation for his losses incurred as

a direct result of the defendant’s criminal conduct. See Commonwealth v.

Burwell, 58 A.3d 790, 794 (Pa. Super. 2012); Commonwealth v.

Stradley, 50 A.3d 769, 773 (Pa. Super. 2012).

      The defendant is only responsible for restitution as to the “losses

flowing from the conduct for which the defendant has been held criminally

accountable.” Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa. Super.

1983) (citations omitted); see also Harner, 617 A.2d at 706. Furthermore,

because of the explicit language in § 1106, restitution is a proper sentence

under that the Crimes Code only if there is a “direct causal connection

between the crime and the loss.” Commonwealth v. Barger, 956 A.2d

458, 465 (Pa. Super. 2008) (en banc) (citation omitted).

      For instance, in Cooper, we vacated the trial court’s order that

required the defendant to pay restitution for the costs of a victim’s death

borne by the victim’s family because the defendant only pled guilty to

leaving the scene of the accident and not was not found criminally


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responsible for having struck the victim. See 466 A.2d at 197. Similarly, in

Barger, we vacated a restitution order based upon the value of a couch that

was allegedly lost due to conduct for which the defendant was not found

criminally responsible. See 956 A.2d at 464-465.

     “It is the Commonwealth’s burden of proving its entitlement to

restitution.” Atanasio, 997 A.2d at 1183 (citation omitted). “Although it is

mandatory under section 1106(c) to award full restitution, it is still

necessary that the amount of the ‘full restitution’ be determined under the

adversarial system with considerations of due process.”      Id.   (citation

omitted).

     Here, Davidoff has presented a colorable argument and evidence that

he was not directly responsible for the injury suffered by the Bouncer. The

Commonwealth bore the burden of proving otherwise. It was error for the

trial court to decide the issue based solely upon Davidoff’s plea of no

contest. We therefore reverse and remand.




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     Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

     Judge Platt joins the memorandum.

     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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