J-S66036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
                   v.                    :
                                         :
ROBERT A. BOGDAN,                        :
                                         :
                    Appellant            :    No. 812 WDA 2015

          Appeal from the Judgment of Sentence October 4, 2012
            in the Court of Common Pleas of Lawrence County,
           Criminal Division at No(s): CP-37-CR-0000487-2011

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 12, 2016

     Robert A. Bogdan (Appellant) appeals nunc pro tunc from the

judgment of sentence entered on October 4, 2012. Upon review, we affirm.

     On March 10, 2010, Appellant was arrested and charged at CP-37-CR-

0000303-2010 (303 of 2010) with two counts of terroristic threats, two

counts of obstruction of justice, and two counts of intimidation of a

witness/victim. On June 18, 2010, Appellant entered an open guilty plea to

one count of terroristic threats and one count of obstruction of justice. He

was sentenced to an aggregate term of three years of probation.

     While serving his term of probation, Appellant was arrested and

charged at docket number CP-37-CR-0000487-2011 (487 of 2011) with a



* Retired Senior Judge assigned to the Superior Court.
J-S66036-15


number of crimes, including aggravated assault.     These charges stemmed

from a “home invasion in which [Appellant and another male] allegedly

entered a home on Smithfield Street in Union Township and struck the

residents several times in the head with a pistol after they were ordered to

give [them] all their money and pills.” Trial Court Opinion, 8/15/2012, at 2.

One of the victims identified Appellant as one of the individuals involved in

the incident. Police interviewed Appellant and he provided an oral statement

wherein he “admitted to smashing the gun cabinet and taking the guns out

of the gun cabinet that were stolen from the residence.” N.T., 5/4/2011 at

10. The interview lasted approximately two to three hours; and, according

to the police, Appellant was informed of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966). N.T., 8/26/2011, at 9-10.

     On July 25, 2011, Appellant filed a motion to suppress the statements

he made to police.     Specifically, Appellant argued that his incriminating

statements should be suppressed because they were obtained in violation of

Miranda. Motion to Suppress, 7/25/2011, at ¶ 6.

     A hearing on the motion was held on August 26, 2011. Trooper Henry

Gustafson testified that Appellant was read his Miranda warnings and

Appellant asked to speak to an attorney. Then, according to the Trooper,

Appellant changed his mind and made a “partial confession.” N.T.,

8/26/2011, at 10. Specifically, Appellant told police he was part of the Crips

gang and other members were forcing him to do things.           According to


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Appellant, another other gang member, Moosh, was the only one who pistol-

whipped the victims.

         After that hearing, Appellant was permitted to amend his motion to

suppress to include a petition for writ of habeas corpus.      The amended

motion was filed on August 30, 2011, and a hearing was rescheduled to

February of 2012.    Shortly before the hearing, Appellant filed a motion to

continue the hearing because he wished to have “additional time to consider

the plea offer.” Motion for Continuance, 2/8/2012.

        The second day of the suppression hearing occurred on March 29,

2012. The trial court did not have enough time to finish the hearing that

day.    Before hearings were complete or a decision was rendered on the

motion to suppress, Appellant appeared before the trial court to plead guilty

to one count of aggravated assault on April 20, 2012. The Commonwealth

agreed to recommend a sentence of four to ten years of incarceration in

exchange for Appellant’s guilty plea. N.T., 4/20/2012, at 2-3. The trial court

accepted the plea, and sentencing was scheduled for June 29, 2012.

Appellant then filed a motion to expedite sentencing,1 and sentencing was

rescheduled to June 7, 2012. Although a transcript of this hearing does not

appear in the record before us, the order entered that day states that

Appellant “orally” moved to withdraw his guilty plea. Order, 6/12/2012. A

hearing on that motion was scheduled for July 5, 2012. Id. At the hearing


1
    The Commonwealth did not oppose this motion.
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on July 5, 2012, counsel for Appellant set forth Appellant’s reasons for

wishing to withdraw his guilty plea, which included, inter alia, that Appellant

would like to find out the trial court’s ruling on the suppression motion and

preserve any associated appellate rights.

        The Commonwealth argued that it had been contacted pro se by

Appellant prior to this hearing and Appellant “advised [the assistant district

attorney] that he intended to proceed with his acceptance of the plea offer

and proceed to sentencing.” N.T., 7/5/2012, at 4. Thus, the Commonwealth

requested time to file a responsive brief to the motion to withdraw the guilty

plea. That response was filed on July 11, 2012.

        On August 1, 2012, Appellant sent a letter to the trial court requesting

new counsel due to plea counsel’s purported ineffective assistance.           On

August 9, 2012, plea counsel filed a motion to withdraw his appearance

based on Appellant’s letter. The trial court denied that motion stating that

Appellant “is not entitled to choice of counsel to be appointed and has not

identified any ineffectiveness of present counsel.” Order, 8/9/2012.2

         On August 15, 2012, the trial court denied Appellant’s motion to

withdraw his guilty plea.      On October 4, 2012, the trial court sentenced

Appellant at case number 487 of 2011 to four to ten years of incarceration,

in accordance with the Commonwealth’s recommendation.             The trial court

also revoked Appellant’s probation at case number 303 of 2010, and

2
    Plea counsel was Appellant’s fifth appointed counsel at this point.

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sentenced Appellant to two to four years of incarceration to run concurrently

with the sentence at case number 787 of 2011. The sentence also included

credit for time served, a restitution amount of one dollar to be modified upon

receipt of supporting documentation, and laboratory fees.

        Appellant filed a post-sentence motion requesting recalculation of his

credit time, recalculation of restitution, and, once again, to withdraw his

guilty plea.   Hearings were held on the post-sentence motion on January 11

and 31, 2013. On March 11, 2013, the trial court denied in part and granted

in part the post-sentence motion.3       On April 13, 2013, Appellant filed a

notice of appeal.     On August 1, 2013, this Court quashed that appeal as

untimely-filed because it was filed more than 30 days after the denial of the

post-sentence motion.4 Additionally, plea counsel filed a motion to withdraw

as counsel and requested new counsel be appointed as he had failed to

perfect Appellant’s direct appeal.

        Subsequently, Appellant filed a pro se PCRA petition requesting, inter

alia, reinstatement of his direct appeal rights. New counsel was appointed

and an amended petition was filed on August 15, 2014. A hearing was held

on November 18, 2014. On April 1, 2015, the PCRA court granted in part

3
  The trial court granted the Commonwealth’s request to amend the order of
restitution to $1,130.30, and denied Appellant’s request to eliminate
restitution. The trial court also eliminated a requirement that Appellant pay
laboratory fees, as there were no fees incurred. The trial court denied the
motion to withdraw the guilty plea and recalculate credit for time served.
4
    The notice of appeal was filed one day late.

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and denied in part Appellant’s PCRA petition.      Specifically, the PCRA court

reinstated Appellant’s right to file a direct appeal nunc pro tunc at case

number 487 of 2011.        The PCRA court denied all relief with respect to

Appellant’s sentence at case number 303 of 2010. Appellant filed a notice of

appeal from that order, which we will treat as Appellant’s direct appeal nunc

pro tunc from his October 4, 2012 judgment of sentence at case number 487

of 2011. Both Appellant and the lower court complied with Pa.R.A.P. 1925.

        On appeal, Appellant presents three issues for review: 1) a challenge

to the denial of his pre-sentence motion to withdraw his guilty plea; 2) a

challenge to the calculation of Appellant’s credit for time served; and 3) a

challenge to the process for calculating restitution. Appellant’s Brief at 9.5

        We begin with Appellant’s challenge to the denial of his pre-sentence

motion to withdraw his guilty plea and set forth the relevant law on this

matter.6

              There is a clear distinction between requests to withdraw a
        guilty plea made prior to sentencing and those that are made

5
    The Commonwealth has not filed a brief in this Court.
6
  We observe that, at this juncture, we consider only Appellant’s claims that
were available to him had his direct appeal been timely filed. “[C]laims of
ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.”
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Accordingly, we
cannot consider claims made during the course of the PCRA process.
Moreover, to the extent Appellant is arguing that counsel provided
ineffective representation at Appellant’s guilty plea hearing by failing to
inform the trial court of Appellant’s innocence, that claim cannot be
reviewed.
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     after sentencing. In our seminal decision of Commonwealth v.
     Forbes, 450 Pa. 185, 299 A.2d 268 (1973), we set forth the
     parameters for determining when, as here, a request to
     withdraw a guilty plea made prior to sentencing should be
     granted. We stated that “although there is no absolute right to
     withdraw a guilty plea, properly received by the trial court, it is
     clear that a request made before sentencing … should be
     liberally allowed.”

           In Forbes, the appellant pled guilty to various crimes
     stemming from an assault and robbery of the victim in her
     home, which resulted in her death. An on-the-record colloquy
     was conducted prior to the court’s entrance of appellant’s pleas.
     Having concluded that the pleas were made “voluntarily and
     understandingly,” the court concluded that the evidence
     presented revealed that a case of first degree murder had been
     made out. The court deferred further ruling on the matter until a
     three-judge panel could be convened.

           On the day of the scheduled hearing before the three-
     judge panel, appellant stated that he wished to withdraw his
     guilty pleas because he did not “want to plead guilty to nothing
     [he] didn’t do.” Appellant later abandoned this request, but it
     became clear that his decision was based upon defense counsel’s
     threat to withdraw from the case. The court nevertheless
     proceeded to sentence appellant to life imprisonment based
     upon a finding that appellant was guilty of first degree murder.

            The appellant in Forbes asserted that the court erred in
     failing to permit him to withdraw his guilty pleas made pursuant
     to his original request and prior to sentencing, once it became
     clear that he abandoned this request based on his counsel’s
     coercion. We agreed and found the appellant’s withdrawal of his
     original request to be invalid. In reversing the judgment of
     sentence and granting a new trial, we again stated that “a
     request [to withdraw] made before sentencing has been
     generally construed liberally in favor of the accused.” We then
     set forth the following test regarding when such a request should
     be permitted:

                  [I]n determining whether to grant a pre-
           sentence motion for withdrawal of a guilty plea, “the
           test to be applied by the trial courts is fairness and
           justice.” If the trial court finds “any fair and just

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            reason”, withdrawal of the plea before sentence
            should be freely permitted, unless the prosecution
            had been “substantially prejudiced.”

      Applying this test to the facts of Forbes, we held that the trial
      court should have allowed withdrawal of appellant’s guilty pleas.
      We noted that the basis for the appellant’s requested withdrawal
      was that he did not “want to plead guilty to nothing [he] didn't
      do.” Accordingly, we found that

            appellant, by this assertion of innocence-so early in
            the proceedings-offered a “fair and just” reason for
            withdrawal of his plea. Moreover, on this record
            there is not even the slightest suggestion that the
            prosecution was in any sense “substantially
            prejudiced by reliance upon the defendant’s plea.”

Commonwealth v. Randolph, 718 A.2d 1242, 1244 (Pa. 1998) (some

citations omitted; emphasis in original).

      Recently, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015), our Supreme Court re-examined the test set forth in Forbes.

      [T]his Court’s Forbes decision reflects that: there is no absolute
      right to withdraw a guilty plea; trial courts have discretion in
      determining whether a withdrawal request will be granted; such
      discretion is to be administered liberally in favor of the accused;
      and any demonstration by a defendant of a fair-and-just reason
      will suffice to support a grant, unless withdrawal would work
      substantial prejudice to the Commonwealth. See Forbes, 450
      Pa. at 190–91, 299 A.2d at 271. The perfunctory fashion in
      which these principles were applied to the circumstances
      presented in Forbes, … lent the impression that this Court had
      required acceptance of a bare assertion of innocence as a fair-
      and-just reason. See, e.g., Forbes, 450 Pa. at 192, 299 A.2d at
      272 (“Obviously, [the] appellant, by [his] assertion of
      innocence—so early in the proceedings[, i.e., one month after
      the initial tender of a plea,]—offered a ‘fair and just’ reason for
      withdrawal of the plea.”).

                                     ***


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           As with other such bright-line rules, however, the principle
     is subject to the axiom that the holding of a decision is to be
     determined according to the facts under consideration … and
     continuing evaluation as experience with new fact patterns offers
     further insight into the wisdom of a per se approach. Indeed, we
     recently observed, that, “for better or for worse, the experience
     with broadly stated prophylactic rules often has been that they
     cannot be sustained on their original terms.” Commonwealth v.
     Henderson, 616 Pa. 277, 287, 47 A.3d 797, 803 (2012).

            Presently, we are persuaded by the approach of other
     jurisdictions which require that a defendant’s innocence claim
     must be at least plausible to demonstrate, in and of itself, a fair
     and just reason for presentence withdrawal of a plea. More
     broadly, the proper inquiry on consideration of such a withdrawal
     motion is whether the accused has made some colorable
     demonstration, under the circumstances, such that permitting
     withdrawal of the plea would promote fairness and justice. The
     policy of liberality remains extant but has its limits, consistent
     with the affordance of a degree of discretion to the common
     pleas courts.

Carrasquillo, 115 A.3d at 1291-92 (some citations omitted).

     We now apply this standard to the facts of this case.      The certified

record reveals that Appellant became aware of the Commonwealth’s offer

not later than February of 2012 when he requested a continuance of the

suppression hearing. Then, Appellant pled guilty on April 20, 2012, and that

guilty plea included a colloquy where he acknowledged, inter alia, that his

maximum term of imprisonment could be up to 120 years.            Guilty Plea

Colloquy, 4/20/2012, at ¶ 16. Shortly thereafter, Appellant filed a motion to

expedite sentencing where he stated that he “would like to begin serving his

sentence as soon as possible” and that he would like to become established




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in a “home” prison in the state system as soon as possible.7 Motion to

Expedite    Sentencing,    6/4/2012.      The   trial   court   moved   Appellant’s

sentencing from June 29, 2012 to June 7, 2012 to comply with Appellant’s

request. Then, at the June 7, 2012 specially-requested sentencing hearing,

Appellant, through counsel orally, moved to withdraw his guilty plea, forcing

the trial court to schedule a hearing for July 5, 2012.

        At that hearing, counsel for Appellant set forth the following.

               [Appellant] seeks to withdraw his guilty plea, because he
        wishes to proceed with the suppression hearing. He also is
        concerned that the Commonwealth has yet to obtain the results
        of the DNA testing that was done on certain evidence acquired at
        the alleged scene of the crime with which he is charged.

               Also, [Appellant] wishes to preserve certain appeal rights
        that I believe -- excuse me, he wishes to preserve certain rights
        that I believe only exist for him prior to sentencing, and should
        he be sentenced, his rights to appeal would be limited to
        appealing his sentencing seeking modification by the Court or
        whatever PCRA rights he might have.            I don’t think that
        [Appellant] believes these are sufficient to preserve, you know,
        the rights that he believes he has at this stage of this proceeding
        now.

              And, lastly, at the time that [Appellant] entered his plea
        and we then proceeded to sentencing, we had only recently
        discussed the maximum time limits that he would be facing
        should he be found guilty on all charges, and I believe that,
        according to [Appellant] that discussion of what he might be
        facing created some duress at that time, which upon
        reconsideration, he is willing to take on that risk in order to
        proceed with item number one, which is proceeding with his
        suppression hearing.

N.T., 7/5/2012, at 2-3.


7
    Appellant was being housed at the Lawrence County Jail.
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      In response, the Commonwealth argued that because Appellant “has

not asserted his innocence … [Appellant has not made] a proper assertion of

[a] ‘fair and just’ [reason.]” Commonwealth’s Answer, 7/11/2012, at 5

(unnumbered). The trial court denied Appellant’s motion because Appellant

“did not assert his innocence at any time during the hearing on his motion to

withdraw his guilty plea.” Trial Court Opinion, 8/15/2012, at 7.    Thus, the

trial court concluded that Appellant did not offer a fair and just reason

permitting the pre-sentence withdrawal of the guilty plea.

      We agree with the trial court that the reasons offered by Appellant did

not amount to a fair and just reason to withdraw his guilty plea. Not only

did Appellant in no way assert his innocence, but his bald assertions about

his evidentiary issues are belied by the record. Appellant was aware of this

plea offer in February of 2012 at the latest.       At some point between

February and April of 2012, Appellant abandoned his desire to finish the

suppression hearing and accept the Commonwealth’s offer.            Moreover,

Appellant represented to the trial court that he wished to expedite

sentencing, not delay it further. The trial court even granted that request.

      Moreover, the reasons offered by Appellant amounted to no more than

buyer’s remorse and appeared to be only an attempt to delay the inevitable.

See also Commonwealth v. Dorian, 460 A.2d 1121 (Pa. Super. 1983)

(holding that a request to proceed with a suppression motion did not amount

to an “assertion of innocence” and therefore Dorian has not offered a fair


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and just reason for withdrawal of his guilty plea). Accordingly, we cannot

see how permitting Appellant to withdraw his guilty plea at that juncture

“would promote fairness and justice.” Carrasquillo, 115 A.3d at 1292.

Thus, we affirm the order of the trial court denying Appellant’s pre-sentence

motion to withdraw his guilty plea.

      We now turn to Appellant’s second issue on appeal, wherein he argues

that the trial court erred in its calculation of credit for time served.

Appellant’s Brief at 19-20. Specifically, Appellant argues that the trial court

should have applied all time spent in custody to his sentence at case number

487 of 2011.

      We set forth our well-settled standard of review.

      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. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

      We also bear in mind that “there is no constitutional right to credit for

time served prior to trial or sentence. Statutes which afford pre-sentence

confinement credit are founded upon the recognition that an indigent

offender, unable to furnish bail, should serve no more and no less time in

confinement than an otherwise identically situated offender who succeeds in

furnishing bail.” Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa.

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Super. 2009) (citations and quotations omitted). The statute that governs

credit time provides the following.

             Credit against the maximum term and any minimum term
      shall be given to the defendant for all time spent in custody as a
      result of the criminal charge for which a prison sentence is
      imposed or as a result of the conduct on which such a charge is
      based. Credit shall include credit for time spent in custody prior
      to trial, during trial, pending sentence, and pending the
      resolution of an appeal.

42 Pa.C.S. § 9760(1).

      “Where an offender is incarcerated on both a Board [of Probation and

Parole] detainer and new criminal charges, all time spent in confinement

must be credited to either the new sentence or the original sentence.”

Mann, 957 A.2d at 749 (emphasis in original).

      Instantly, Appellant was incarcerated on the charges at case number

487 of 2011 on April 17, 2011, and bail was set at $100,000. On the same

day, the Board of Probation and Parole lodged a detainer against Appellant

at case number 303 of 2010. Thus, Appellant was incarcerated pursuant to

both a detainer and new criminal charges.         Accordingly, consistent with

Mann, the trial court could credit Appellant’s pre-trial incarceration to either

sentence. The trial court divided pre-trial credit time in a logical fashion. For

the 424 days Appellant spent incarcerated between his arrest and guilty

plea, the trial court credited the time to Appellant’s revocation sentence. For

the 136 days between Appellant’s guilty plea and sentencing, the trial court

credited that time to Appellant’s new sentence.       We discern no abuse of


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discretion in that reasoning or result. Accordingly, Appellant is not entitled

to relief on this basis.

        We now turn to Appellant’s final issue on appeal, wherein he argues

that the trial court erred in ordering him to pay restitution of $1,131.30

because “he did not receive adequate notice of proof of this amount … to

allow him to amount an effective defense on this issue.” Appellant’s Brief at

21.

        The statute governing restitution provides the following, in relevant

part.

        (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.--

                                        ***

              (2) At the time of sentencing the court shall specify
              the amount and method of restitution.

              (3) The court may, at any time or upon the
              recommendation of the district attorney that is based
              on information received from the victim and the
              probation section of the county or other agent
              designated by the county commissioners of the
              county with the approval of the president judge to
              collect restitution, alter or amend any order of
              restitution made pursuant to paragraph (2),
              provided, however, that the court states its reasons

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                and conclusions as a matter of record for any change
                or amendment to any previous order.

42 Pa.C.S. § 1106.

        At sentencing, the Commonwealth stated that “there does not appear

to be any restitution as of yet, but I would ask that one dollar be set as

restitution to the victim.” N.T., 10/4/2012, at 2.8 Appellant did not object at

that time to the inclusion of restitution.

        In his post-sentence motion, Appellant argued that the inclusion of one

dollar as a restitution amount was “sufficiently vague such that he is denied

the due process of law.” Post-Sentence Motion, 10/15/2012, at ¶ 23.              On

November 15, 2012, the Commonwealth filed a motion to amend restitution.

Specifically,    the   Commonwealth      requested    amendment      of   restitution

because it received notice from the Department of Public Welfare that it paid

$1,130.30 for injuries to the victim.

        At the hearing on the post-sentence motion and the motion to amend,

the Commonwealth presented a letter outlining the medical expenses for the

victim in the aforementioned amount. N.T., 1/11/2013, at 9.9              Appellant

objected to this letter on two bases. First, Appellant argued that while he

received notice of the amount on November 15, 2012, he only received the

breakdown of expenses on the day of the hearing, and thus he did not have


8
  As part of Appellant’s plea agreement, he agreed to pay restitution to the
victims. N.T. 4/20/2012, at 3.
9
    A copy of this letter is not included in the certified record.
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the opportunity to respond.        Appellant also objected to this letter on the

basis that it was “not a properly certified business record.” Id. at 10. The

hearing was then continued to January 31, 2013 to consider the restitution

issues as well as an issue with regard to Appellant’s credit time.

          At the January 31, 2013 hearing, the issue of restitution was not

addressed by Appellant, the Commonwealth, or the trial court.           On March

11, 2013, the trial court entered the order including the restitution amount

provided in the Commonwealth’s letter. Based on the foregoing, any issue

regarding adequate notice of the amount of restitution is waived. Appellant

had the opportunity to raise it at the trial court on January 31, 2013, and did

not do so.

          Even if Appellant did not waive this issue, he would not be entitled to

relief.

                 Here, the information received by the Commonwealth from
          the Pennsylvania Department of Public Welfare was not known at
          the time of sentencing and could not be reasonably ascertained.
          [Appellant] was given notice of the amount on November 15,
          2012, after the date of sentencing, and official documentation
          was provided on January 11th, 2013. The Court has broad
          authority under 18 Pa.C.S. § 1106(c)(2) to alter or amend an
          order of restitution at any time, so long as it states its reasons
          for doing so as a matter of record. Therefore, [Appellant’s]
          objection to timeliness must be overruled, and the [trial court’s
          sentencing order] of October 4th, 2012 at Case. No. 487 of 2011,
          shall be amended to reflect $1,13[0].30 for medical bills incurred
          by the victims[.]

Trial Court Opinion, 3/11/2013, at 4 (some citations omitted).




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      Based on the parameters set forth in section 42 Pa.C.S. § 1106, it is

evident that the trial court properly modified the restitution. Accordingly, we

affirm Appellant’s judgment of sentence with respect to restitution.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2016




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