J-S13042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC J. ALEXIS                             :
                                               :
                       Appellant               :   No. 1650 MDA 2019

      Appeal from the Judgment of Sentence Entered September 20, 2019
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0000229-2019


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           FILED MARCH 27, 2020

        Eric J. Alexis (Alexis) appeals from the judgment of sentence imposed

by the Court of Common Pleas of Lackawanna County (trial court) after his

bench conviction of violating Accidents Involving Damage to Attended Vehicle

or Property, 75 Pa.C.S. § 3743(a).1 After our careful review, we affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Section 3743(a) provides:

        (a) General rule.—The driver of any vehicle involved in an
        accident resulting only in damage to a vehicle or other property
        which is driven or attended by any person shall immediately stop
        the vehicle at the scene of the accident or as close thereto as
        possible but shall forthwith return to and in every event shall
        remain at the scene of the accident until he has fulfilled the
        requirements of section 3744 (relating to duty to give information
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       We take the following factual background and procedural history from

the trial court’s November 26, 2019 opinion and our independent review of

the record.

                                               I.

       On September 6, 2018, Alexis backed his vehicle out of his driveway

and into traffic, striking the vehicle driven by Caitlyn Addley (Addley). Addley

testified that immediately thereafter, when she saw Alexis driving away, she

pulled into an alley to check her car for any damage and discovered that the

passenger side back bumper had a dent.              Addley did not immediately call

police because she had to attend her college class and she reported the

accident to the Blakely police two to three hours later.           (See N.T. Trial,

6/10/19, at 12, 25).

       The investigating officer, Officer Anthony Marcado, testified that he was

dispatched to the scene where the accident had occurred and he met with

Addley nearby. He testified that he observed damage on Addley’s car. Addley

advised him that Alexis’s car was parked at his home. When the officer went

to the residence, he observed light damage to the rear driver’s side bumper

on the car parked in the driveway. Officer Marcado testified that Alexis was



____________________________________________


       and render aid). Every stop shall be made without obstructing
       traffic more than is necessary.

75 Pa.C.S. § 3743(a).


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not at home at the time, so he asked Alexis’s wife to advise Alexis to call him

that day to give the relevant information. Approximately a week-and-a-half

later, Alexis contacted Officer Marcado, provided him with the requested

information, and advised him that he had not called the police after the

accident because he did not think it was necessary where he saw no damage

to his vehicle.

       Alexis testified that the cars “tapped” each other and that, when he saw

Addley’s car pulling away, he returned to his driveway to check his car, which

had only suffered a scratch. He and his wife testified that they stood on their

porch for a few minutes to see if someone would come back, but no one did.

Contrary to Officer Marcado’s testimony, they testified that both of them spoke

with the officer the same day, several hours later.

       The parties stipulated that there was an accident and that there was

damage to Addley’s car’s rear quarter panel.           Addley’s counsel provided

evidence that the damage estimate was $1,008.70. (See id. at 20).

       At the conclusion of trial, the trial court convicted Alexis of one count of

failure to stop at the scene of an accident involving damage to an attended

vehicle, 75 Pa.C.S. § 3743(a).2           On September 20, 2019, the trial court

sentenced him to nine months of probation and ordered him to pay $1,008.70


____________________________________________


2 The Commonwealth withdrew a charge of Operating Vehicle Without
Required Financial Responsibility, 75 Pa.C.S. § 1786(f), because Alexis did not
own the car he was driving on the date of the incident.


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in restitution as a condition of probation.      It denied Alexis’s motion for

reconsideration of sentence and he timely appealed. Both he and the trial

court have complied with Rule 1925. See Pa.R.A.P. 1925.

                                       II.

      On appeal, Alexis challenges the court’s imposition of the restitution for

the damages to Addley’s vehicle as an error of law because there was no direct

connection between his failure to stop at the scene of the accident and the

damages to her vehicle without a determination that he was at fault and,

without that determination, did not serve a rehabilitative purpose to so order.

                                       A.

      Restitution awards for property crimes are mandatory pursuant to 18

Pa.C.S. § 1106, which provides, in relevant part, as follows:

      (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 ... 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:


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                    (i) Shall consider the extent of injury suffered by the
      victim, the victim’s request for restitution as presented to the
      district attorney in accordance with paragraph (4) and such other
      matters as it deems appropriate.


18 Pa.C.S. § 1106. Restitution is imposed as a direct sentence, a direct causal

connection between the damage to property, and the crime must exist.

Commonwealth v. Harriott, 919 A.2d 234, 237–38 (Pa. Super. 2007).

      However, restitution may also be imposed as a condition of probation

pursuant to 42 Pa.C.S. § 9754, which provides, in relevant part, as follows:

      (a) General rule.—In imposing an order of probation[,] the court
      shall specify at the time of sentencing[,] the length of any term
      during which the defendant is to be supervised, which term may
      not exceed the maximum term for which the defendant could be
      confined, and the authority that shall conduct the supervision.

      (b) Conditions generally.—The court shall attach such of the
      reasonable conditions authorized by subsection (c) of this section
      as it deems necessary to [e]nsure or assist the defendant in
      leading a law-abiding life.

      (c) Specific conditions.—The court may as a condition of its
      order require the defendant:

                                  *    *    *

            (8) 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.

      When restitution is imposed as a condition of probation, the requirement

of a nexus between the defendant’s criminal conduct and the victim’s loss is

relaxed. Harriott, 919 A.2d at 238; see Commonwealth v. Harner, 617

A.2d 702, 707 (Pa. 1992) (“[T]the practice of ordering restitution or reparation



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as such a condition is widely established and highly favored in the law, as an

aid both to the criminal in achieving rehabilitation and to his victim in obtaining

some measure of redress.”) (citation omitted). “Additionally, to the extent a

sentence of probation is imposed to make restitution for losses caused by the

defendant’s criminal conduct, there should be proof of the damages suffered.

Finally, where a sentencing court imposes restitution as a probationary

condition, sub-section 9754(c)(8) obligates the court to determine what loss

or damage has been caused and what amount of restitution the defendant can

afford to pay.” Commonwealth v. Kinnan, 71 A.3d 983, 986-87 (Pa. Super.

2013) (citation omitted).

      Here, in spite of noting that the court originally expressed an intention

to impose restitution as a part of his sentence, Alexis concedes that, in fact,

“the trial court ordered restitution as part of probation.” (Alexis’s Brief, at

14). After observing that Alexis had a “consistent pattern” of motor vehicle

violations “that has stretched over a number of years,” the court pointed out

that “a little bit more respect for the law is certainly appropriate.”       (N.T.

Sentencing, 9/20/19, at 5). It then imposed nine months of probation, the

conditions of which included a prohibition on consuming drugs or alcohol,

random drug and alcohol testing, 50 hours of community service, and

restitution in the total amount of $1,008.70, to be paid in $50 monthly

increments. (See id. at 4-6).




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                                      B.

      Because the record clearly reflects that the trial court imposed

restitution as a condition of probation, Alexis’s issue challenges the

discretionary aspects of sentence. See Commonwealth v. Fenton, 750 A.2d

863, 867 n.4 (Pa. Super. 2000) (“[C]hallenge to conditions of probation

challenges discretionary aspects of sentencing.”) (citation omitted).      “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018), appeal

denied, 206 A.3d 1029 (Pa. 2019) (citation omitted).

      To be allowed to appeal, a defendant challenging the discretionary

aspects of sentencing must satisfy a four-part test to determine whether: “(1)

the appellant preserved the issue either by raising it at the time of sentencing

or in a post[-]sentence motion; (2) the appellant filed a timely notice of

appeal; (3) the appellant set forth a concise statement of reasons relied upon

for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the

appellant raises a substantial question for our review.” Id. (citation omitted).

“A defendant presents a substantial question when he sets forth a plausible

argument that the sentence violates a provision of the sentencing code or is

contrary    to   the   fundamental   norms    of   the   sentencing   process.”

Commonwealth v. Nevels, 203 A.3d 229, 246 (Pa. Super. 2019) (citation

omitted).


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       Here, Alexis has complied with the first three prongs of the four-part

test, i.e., he raised this argument at sentencing and in a post-sentence

motion, filed a timely notice of appeal, and set forth a Rule 2119(f) statement

in his brief. Further, his claim that the order of restitution is not supported by

the record raises a substantial question.        (See Alexis’s Brief, at 10-11);

Commonwealth v. Pappas, 845 A.2d 829, 842 (Pa. Super. 2004)

(substantial question raised where appellant argued restitution not supported

by record). Because he has raised a substantial question, we will consider the

merits of Alexis’s discretionary aspects of sentence claim.3

       In Harner, our Supreme Court explained that:

       [T]he practice of ordering restitution or reparation as [] a
       condition [of probation] is . . . encouraged and give[s] the trial
       court the flexibility to determine all the direct and indirect
       damages caused by a defendant and then permit the court to
       order restitution so that the defendant will understand the
       egregiousness of his conduct, be deterred from repeating this
       conduct, and be encouraged to live in a responsible way.

617 A.2d at 706-07. (citations omitted).




____________________________________________


3  “Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion. In this context, an abuse of discretion is not shown merely by
an error in judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Commonwealth v. Antidormi, 84 A.3d
736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation
omitted).

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      As acknowledged by Alexis, “where restitution is imposed as a condition

of probation, the required nexus is relaxed and [] and an ‘indirect connection

between the criminal activity and the loss is sufficient.’” (Alexis’s Brief, at 14)

(citing Commonwealth v. Nuse, 976 A.2d 1191, 1993 (Pa. Super. 2013));

see also Kinnan, supra at 986-87. However, Alexis argues that there is not

even an indirect nexus between his criminal conduct and the restitution

because he was only charged with and found guilty of violating Section 3743

by leaving the scene of the accident, not an offense that he was responsible

for the damages to Addley’s car. Because who caused the accident was not

addressed in the criminal trial, the purpose of restitution would not be served.

      What that argument ignores is that the restitution imposed as a

condition of probation does not require that Alexis caused the underlying

accident.    The restitution amount imposed was related to it and the

restitution’s purpose is to deter Alexis from engaging in the criminal conduct

of leaving the scene again. Further, the requirement that a person not leave

the scene of an accident is not modified by a requirement that a certain

amount of damage be incurred, only that if an accident occurs, an individual

involved in the situation must stay at the scene to provide driver information

to the police. See 75 Pa.C.S. § 3743. That is especially so when the car

involved is not insured.

      Neither are we persuaded by Alexis’s allegation that he cannot be held

indirectly liable because, unlike in Nuse, his criminal act occurred after the


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accident, not before it. The criminal act of leaving the scene of the accident

was necessarily related to there being an accident in the first place. Again,

the court’s discretion in awarding restitution as a condition of probation is to

deter Alexis from any other driving-related criminal conduct.       There is no

temporal requirement about when the related criminal conduct must have

occurred.

      Accordingly, based on all of the foregoing, as well as because the

restitution amount ordered by the trial court was the same as the quote for

Addley’s damage repair admitted at trial and in the Pre-Sentence Investigation

Report, the trial court did not abuse its discretion in ordering restitution as a

condition of probation.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




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