J-S80035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
ROBERT J. KEARNS,                       :
                                        :
                  Appellant             :         No. 3132 EDA 2017

                Appeal from the PCRA Order August 31, 2017
           in the Court of Common Pleas of Northampton County,
            Criminal Division at No(s): CP-48-CR-0000829-2012

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 13, 2018

      Robert J. Kearns (“Kearns”) appeals from the Order (hereinafter “PCRA

Order”) denying his first Petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).     See 42 Pa.C.S.A. §§ 9541-9546.        We

reverse the PCRA Order, vacate Kearns’s underlying judgment of sentence,

and remand for resentencing.

      The PCRA court set forth the history underlying this appeal in its PCRA

Order, which we incorporate herein by reference. See PCRA Order, 8/31/17,

at 1-5.

      On August 31, 2017, the PCRA court entered the PCRA Order,

concomitantly with a Statement of Reasons thoroughly explaining its reasons

for denying PCRA relief. Kearns timely filed a Notice of Appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of
J-S80035-17



on appeal. The PCRA court thereafter issued a Rule 1925(a) Opinion, relying

upon the reasoning it had advanced in its Statement of Reasons.

        Kearns now presents the following issues for our review:

        1. Whether the restitution component of [Kearns’s] sentence on
           December 11, 2015, ordering restitution in the amount of
           $832,460.00[,] payable to Bethlehem Township[,] is illegal
           because the Township of Bethlehem cannot be a victim under
           the subject criminal statutes, and therefore, [Kearns’s]
           sentence must be vacated?

        2. Whether the [PCRA] court’s denial of [Kearns’s PCRA]
           Petition … was unlawful and an abuse of discretion where the
           restitution Order in this case is illegal because the Township
           of Bethlehem cannot be a victim under the subject criminal
           statutes?

Brief for Appellant at 4 (capitalization omitted).    We will address Kearns’s

issues together, as they are related.

        We begin by noting our standard of review: “In reviewing the denial

of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted).              “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Id. (citation omitted).

        Relying   upon     the    Pennsylvania   Supreme   Court’s     decision   in

Commonwealth v. Veon, 150 A.3d 435, 450 (Pa. 2016),1 Kearns argues
____________________________________________


1   Kearns direct appeal was pending when Veon was decided.



                                           -2-
J-S80035-17



that “the restitution portion of his sentence[,] requiring payment of

$832,460.00[,]      is   illegal   and   must    be   vacated   because   Bethlehem

Township[2] cannot be considered a direct victim nor a reimbursable

compensating government agency, under 18 Pa.C.S.A. § 1106[,3] for

purposes of restitution.”      Brief for Appellant at 15 (footnotes added); see

also Veon, 150 A.3d at 454-55 (holding that a restitution order directing

payment to a Commonwealth agency,4 as the “victim” of a crime under

Section 1106, constitutes an illegal sentence).5

       The PCRA court, in its PCRA Order and Statement of Reasons,

summarized (1) the Veon decision; (2) the arguments of both parties in the

instant case as to whether Veon applies here and invalidates Kearns’s

restitution Order; and (3) the court’s reasons for determining that Veon is
____________________________________________


2 Bethlehem Township is incorporated as a Pennsylvania municipality under
the First Class Township Code. See 53 Pa.C.S.A. § 55101, et seq.

3 Section 1106 provides, in relevant part, that a “court shall order full
restitution … [r]egardless of the current financial resources of the defendant,
so as to provide the victim with the fullest compensation for the loss.” 18
Pa.C.S.A. § 1106(c)(1)(i) (emphasis supplied). The definition of “victim,”
set forth in 18 Pa.C.S.A. § 1106(h), references the definition of “victim”
contained in the Crime Victims Act (“the CVA”), see 18 Pa.C.S.A. § 11.103
(discussed infra).

4  The trial court ordered Veon to pay restitution to the Pennsylvania
Department of Community and Economic Development (“DCED”) following
his conviction for unlawfully diverting public resources.

5We note that legality of sentence claims are always subject to review if the
PCRA petition is timely filed. See Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999).



                                           -3-
J-S80035-17



inapplicable. See PCRA Order, 8/31/17, at 5-13.6 We incorporate the PCRA

court’s recitation herein by reference. See id. at 5-13.

       In distinguishing Veon, the PCRA court emphasized that Veon

“involved an imprecise amount of restitution calculated to punish the non-

pecuniary gains realized by the defendant as a result of his criminal conduct,

[whereas] the restitution ordered in this case represents a specific amount

of money taken from a specific victim.”          PCRA Order, 8/31/17, at 11.

Contrary to the PCRA court’s finding, however, these different facts do not

affect the applicability of Veon’s holding to the instant case.             The

applicability of Veon to any given case does not turn on whether (1) the

victim’s loss was “precisely ascertainable”; (2) the victim is “specific” and/or

direct; or (3) the defendant’s criminal conduct served his or her pecuniary

versus non-pecuniary interest. Rather, the critical determination is whether

the person/entity designated to receive the restitution ordered is a “victim”

for purposes of Section 1106 and Section 11.103 of the CVA. See Veon,

150 A.3d at 454. The Veon Court explained as follows:



____________________________________________


6 To the extent that the PCRA court, on page 11 of its PCRA Order, states
that a political subdivision is defined as a “person” under the Statutory
Construction Act, the court is referring to the following passage from Veon:
“[T]he Statutory Construction Act … defined ‘person’ to include ‘a
corporation, partnership, limited liability company, business trust, other
association, government entity (other than the Commonwealth), estate,
trust, foundation or natural person.’ 1 Pa.C.S. § 1991.” Veon, 150 A.3d at
450.



                                           -4-
J-S80035-17


            Notwithstanding any legislative expansion of the definition
     of “victim,” it is clear that the plain text of Section 11.103 still
     envisages “victims” as “persons” commonly understood.            A
     “victim” under Section 11.103 must be “a direct victim,” i.e., an
     “individual” who has suffered injury, death, or loss of earnings;
     or a “child,” “parent,” “guardian,” or “family member.” Every
     relevant noun unequivocally describes a human being, not a
     government agency, and nowhere else is there a relevant
     definition that persuades us to broaden the common
     understanding of these words. There can be no serious doubt
     that DCED, the agency designated to receive the restitution
     ordered in this case, does not qualify as a direct victim. And
     neither, of course, is DCED a parent, guardian, child, or family
     member of a homicide victim.                 Although Subsection
     1106(c)(1)(i)’s provisions regarding “victims” and “other
     government agenc[ies]” reveals that the General Assembly
     intended that restitution reach certain Commonwealth agencies
     in a manner that did not depend upon identifying such agencies
     as “victims,” it nonetheless required first that the agency in
     question have provided compensation to a victim so defined.
     That is what necessitates our determination that DCED is not
     entitled to restitution in this case.

            In short, to qualify for restitution under Subsection
     1106(c)(1)(i), a Commonwealth agency either must be a victim
     as that term is used in that subsection or must have reimbursed
     a victim[,] as defined by Section 11.103, directly or by paying a
     third party on behalf of the victim. DCED, itself, cannot be a
     victim under Section 11.103.

Veon, 150 A.3d at 454 (emphasis added).

     In the instant case, pursuant to the reasoning of Veon, Bethlehem

Township, a municipality, is not a “victim” under Subsection 1106(c)(1)(i),

nor an entity that has reimbursed a victim as defined by Section 11.103.

See id. at 454-55; see also W. Indies Mission Appeal, 128 A.2d 773,

778 (Pa. 1957) (observing that a “municipality is a governmental agency of

the State, vested by the State with a part of its sovereignty, and employed


                                    -5-
J-S80035-17


in aiding the State in matters of government and the execution of its

laws[.]”). Moreover, though Bethlehem Township, unlike the DCED in Veon,

was the direct victim of Kearns’s criminal conduct, the Veon Court

emphasized that the definition of “direct victim” contained in 18 Pa.C.S.A.

§ 11.103 is “an ‘individual’ who has suffered injury, death, or loss of

earnings ….”      Veon, 150 A.3d at 454 (emphasis added); see also id.

(stating that the definition of “direct victim” “unequivocally describes a

human being, not a government agency ….”).

       Accordingly, we are constrained to rule that Kearns’s sentence of

restitution to Bethlehem Township is illegal, and must be vacated.7,   8   See

____________________________________________


7 In so holding, we recognize the PCRA court’s frustration that “to absolve
[Kearns] of his criminal responsibility for the theft perpetrated on Bethlehem
Township[,] simply because the victim, a recognized ‘person’ under the law,
is not in human form,” PCRA Order, 8/31/17, at 12, seems unjust.
Nevertheless, we are bound by Veon. Accord Veon, 150 A.3d at 454-55
(stating that although “those who unabashedly divert public monies to serve
their own [] interests may not be subject to the same restitutionary
obligations imposed upon those who victimize individuals[,] … to rule
otherwise would require us to discard the language of the statute in pursuit
of its spirit. Should the General Assembly wish to rectify this apparent gap
in its restitution scheme, it may do so.”).

8 We additionally note that the Commonwealth is seeking to recoup the
stolen funds from Kearns and his co-defendant via civil actions. See
Commonwealth v. Kearns, 150 A.3d 79, 86 (Pa. Super. 2016); but see
also id. (wherein this Court explained that, at Kearns’s resentencing
hearing, the prosecutor represented as follows concerning the ordered
restitution:   “Future restitution [] seemed doubtful, the prosecutor
concluded, given the defendants’ bankruptcy filings and the defensive
postures they assumed in various civil actions filed against them, where they
have made no offers of settlement.”).



                                           -6-
J-S80035-17


Veon, 150 A.3d at 455-56; see also Commonwealth v. Berry, 167 A.3d

100, 110 (Pa. Super. 2017) (applying Veon and ruling that the defendant’s

sentence was illegal insofar as it ordered him to pay restitution to the

Commonwealth, where he, a former court of common pleas judge, had

unlawfully used his judicial staff and court resources to further his own

pecuniary interests).   Moreover, because Kearns’s restitution was a critical

component of the trial court’s overall sentencing scheme, we vacate his

judgment of sentence and remand for resentencing. See Veon, 150 A.3d at

456; see also Berry, 167 A.3d at 110.

      Based on the foregoing, we vacate Kearns’s judgment of sentence and

remand for resentencing consistent with this Memorandum.

      PCRA Order reversed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/18




                                     -7-
        r1ug. JI, LV If    I: l'trlVI                                                     IV U , I O O '.)r, J
                                                                                               Circulated 01/25/2018 10:41 AM

I   •




                  IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY,
                                      PENNSYLVANIA

                                                   CRIMINAL DIVISION                                                                                             l


              COMMONWEALTH OF PENNSYLVANIA :

                      v.                                              c .. 004s .. cR.. os29-2012

              ROBERT :J. KEARf'iS,
                                            Defendant.

                                                     ORDER OF COURT
                                                  ,:, JJ"'
                      AND NOW, this               �/,,,.     day of August 2017, Defendant Robert J.

             Kearns' "Post-Convtctlon Relief Act Petition Pursuant to Title 42 Pa.C.S. §9501
                                        .                                                            .' • . ',
                                                                                                                        !     I
                                                                                                                                   t-:7�
             et seq." is DENIEDw                                                                  ..   I       •
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                                                                                                                                                   . ·:·:�... ,
                                                 STATEMENT OF REASONS                            •     '   o


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                                                                                                 t-:               •              ;.-:":I          ::     ,; :
                                                  Procedural Background                          :,.��··::'::'                    --
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                      On February 6, 2012, Defendant Robert J. Keams was arrestietf alid

             charqed with Theft by Failure to Make Required Disposition of Funds Received                                                                     ;;·
                                                                                                                                                              .,.


             at 18 Pa. C.S.A. § 3927(a), conspiracy to commit the same at 18 Pa. C.S.A. §

             903(c), and Misapplication of Entrusted Property and Property of Government

             or Financial Institutions at 18 Pa. C.S.A. § 4113(a). The charges arose out of

             allegations stemming from an agreement executed on or about July 2, 2007

             between Bethlehem Township (''Township") and Municipal Energy Managers,

             Inc. ("MEM") fn whlch Defendant and his co-defendant were sole shareholders.

             Pursuant to that agreement, MEM was to provide the Township with a

            municipal street lighting system. Attendant with the agreement, the Township
/'\ u g.   J   r. L v I   I   r ; I 'tr IVI                                          nu.   IUU:J   I,   't




           issued a check to MEM in the amount of Eight Hundred Thlrty-Two Thousand

           Four Hundred Sixty Dollars ($832,460.00) on July 3, 2007. The check was

           deposited into MEM's corporate account two days later.

                          On October 1, 2007, the Defendants wrote personal checks to

           themselves from the MEM account, totaling Nine Hundred Seventy-Five

           Thousand Six Hundred Four Dollars ($975,604.00). Over the next two years,

           little work was done In furtherance of MEM's contractual responsibilities, and

           on February 23, 2010, the Solicitor for the Township filed a civil suit against

           MEM, which revealed the personal checks written to Defendant and his co-

           defendant in October 2007.

                          In January 2010, with performance on the contract still undelivered, the

           Honorable Kimberly McFadden entered an order submitting· the matter to a

           grand jury. An investigation ensued, and on January 26, 2012, the grand jury

           returned a presentment recommending that Defendant and his co-defendant                           ;!.i.. .



           be arrested and charged.

                      The presentment was accepted on January 30, 20'12, and on February

           6, 2012, the Commonwealth filed a criminal complaint, and an arrest warrant

           was Issued and executed. Pretrlal motions were filed and disposed of, and on

       January 11, 2013, following a trial by a jury of hrs peers, the Defendant was

       found guilty of the charge of Theft by Failure to Make Required Disposition of

       Funds Received at 18 Pa. C.S.A. § 3927(a) and acquitted on the remaining

       charges. Following serial                requests for continuation of his sentencing


                                                          2
f\Ug.Jl,LVlf   1:l'HJVI                                              no.   I 00'.}   r. '.}




    proceeding, the Defendant was sentenced on April 19, 2013, at which time he

    was ordered to serve a term of sixteen (16) to sixty (60) months' incarceration

    in a state correctional institution, followed by a period of sixty (60) months

    state probation, and he was ordered to pay restitution to Bethlehem Township

    in the amount of Eight Hundred Thlrty-Two Thousand Four Hundred Sixty

    Dollars ($832,460.00).

           The Defendant fled a timely post-sentence motion, the motion was

    granted, and on June 4, 2013, the undersigned resentenced the Defendant to

    a period of six (6) to twelve (12) months incarceration followed by sixty (GO)

    months' probation, a Two Thousand Five Hundred Dollar ($2500) fine, and

    restitution payable to Bethlehem Township in the amount of Eight Hundred

   Thirty-Two Thousand Four Hundred Sixty Dollars ($832,460.00). Defendant

   flied an appeal to the Superior Court on June 7, 2013, and a motion for

    reconsideration of sentence on June 13, 2013. On July 31, 2013, the motion

   for reconsideration was granted, and the undersigned amended 'the

   probationary portion of Defendant's sentence to a period of twelve (12)

   months. On August 1, 2013, Defendant filed an appeal from the July 31, 2013

   sentence.

          On review, the Superior Court held in. separate opinions from the

   respective appeals that the undersigned had properly vacated the original

   sentence and properly resentenced the Defendant on July 31, 2013, but rt

   vacated probationary portion of the sentence and remanded for resentencing.


                                         3

                                                                                              ..:,;..
MU ll· J I• L V I I   I , I :H IVI                                            no.   I 00'.l   r.   0




        That resentencing occurred on December 11, 2015, at which time the

        undersigned amended the sentence to six (6) to twelve (12) months'

        Incarceration, and payment of restitution as previously ordered. The

        Defendant filed a motion for reconsideration of sentence on December 21,

        2015, and the same was denied by an order entered on December 23, 2015.

        Thereafter, Defendant once again appealed to the Superior Court, which

        affirmed this Court's sentence on November 7, 2016. On November 28, 2016,

        the Defendant filed petition for allowance of appeal to the Supreme Court of

        Pennsylvania, which was denied on April 20, 2017.

                 With the exception of periods from April 19, 2012 through May 8, 2013

        and June 12, 2013, the Defendant was on ball pending the disposition of his

        appeals. However, followlng the Supreme Court's April 20, 2017 denial of

        Defendant's petition for allowance of appeal,1 on or about May 1, 2017, the

        Commonwealth filed a motion to revoke Defendant's ball. The Defendant

        responded to the motion on May 11, 2017, with an answer and new matter,

     alleging the illegality of the restitution portion of his sentencing order.

     Concurrently, the Defendant filed a "Motion to Vacate Sentence and Vacate

     $832,460.00 Restitution Payable to Bethlehem Township" and a brief in

    support of the same.




    1
           Two separate Supreme Court orders bearing the same appellate docket number and a
    date of Aprll 20, 2017 Order were filed in this Court on May 15, 2017 and May 19, 2017
    respectlvely.

                                               4
.   •   l'I U   g, J I, LU I f   I ; I '.Jr IVI                                         J�O. I 00'.l   r.   I




                             The Court heard the motions on May 12, 2017, granting the

                   Commonwealth's motion to revoke bail, and denying Defendant's motion to

                   vacate sentence. Accordingly, the Defendant was remanded to Northampton

                   County Prison to serve his sentence.

                             On June 1, 2017, the Defendant filed the "Post-Conviction Relief Act

                   Petition Pursuant to Title 42 Pa. C.S.A. § 9501 et seq," C'PCRA'') now before

                   the Court. The sole issue raised fn the PCRA is the legality of the restitution

                   portion of the Defendant's sentence pursuant to prevailing case law. A

                   conference was held on June 23, 2017, and the matter was praeclped to the

                  Argument Court list of August 29, 2017. Argument having been heard and

                   briefs having been filed, the PCRA is now ready for disposition.

                                                           Discussion

                            By the Instant petition, the Defendant urges that the restitution portion

                  of his sentence, pursuant to which he Is ordered to pay fn the amount of Eight

                  Hundred Thirty-Two Thousand four Hundred Sixty Dollars ($832,460.00) to

                  Bethlehem Township, is illegal because the Township is not a victim eligible to .

                  receive restitution under the law. In furtherance of this assertion, Defendant

                  relies on a series of statutes and the Pennsylvania Supreme Court's decision

                  in Commw.            v. Veon, 150 A.3d 435 (Pa. 2016).
                            In Veon, the defendant, a member of the Pennsylvania House of

                 Representatives representing Beaver County, was charged and convicted on

                 one count of restricted activities under 65 Pa. C.?,A, § 1103(a);· two counts


                                                               5
l'\Ug,Jl,LVII   1:1:JflVI                                               IYO. I   oo,   t'.   0




     of theft by unlawful taking at 18 Pa. C.S.A. § 3921(a); two counts of theft by

     deception at 18 Pa. C.S.A. § 3922(a)(1); two counts of theft by failure to make

     required disposition of funds received at 18 Pa. C.S.A. § 3927(a); two counts

     of misapplication of entrusted property and property of government or

    financial institutions at 18 Pa. C.S.A. § 4113(a), and one count of conspiracy

    incident to the theft by unlawful taking at 18 Pa. C.S.A. § 903 arising out of a

    scheme involving his legislative offices and a shell non-profit organlzatfon he

    ran. Commw. v. Veen, 150 A.3d 435, 440-1 (Pa. 2016).

            At the time of his sentencing, Mr. Veen was ordered In pertinent part to

    pay One Hundred Nineteen Thousand Dollars ($119,000.00) in restitution. At

    a subsequent proceeding, the amount of restitution as adjusted upward, and

    it was made payable to the Pennsylvanla Department of Community and

    Economic Development ("DCED"), which had provided the shell non-profit

    with the bulk of its funding. Veen appealed his sentence, which the Superior

    Court affirmed in part and remanded in part with respect to the amount of the

   restitution.

           Veen then filed a timely appeal to the Supreme Court of Pennsylvania,

   which granted review, in part to determine whether the DCED was legally

   entitled to receive the ordered restitution. In resolving that question, the Court

   began by closely examining§ 1106 of the Crimes Code, relating to restitution.

   In particular, the Court examined subsections (a), (c), and (h) of § 1106,

   providing as follows:


                                           6
.   twg.   JI, LV 11   I: 1:.ir1v1                                                 NO. IOO,   r. �




                   {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 restltutlon.c-

                   ( 1) Toe 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. The court shall not reduce a
                            restitution award by any amount that the victim has
                            received from the Crime Victim1s Compensation Board or
                            other governmental agency but shall order the defendant to
                            pay any restitution ordered for loss previously compensated
                            by the board to the Crime Victim's Compensation Fund or
                           other designated account when the claim Involves a
                           government agency in addition to or in place of the board.
                           The court shall not reduce a restitution award by any
                           amount that the victim has received from an insurance
                           company but shall order the defendant to pay any
                           restitution ordered for loss previously compensated by an
                           insurance. company to the insurance company.

                            (ii) If restitution to more than one person Is set at the same
                            time, the court shall set priorities of payment. However,
                            when establishing priorities, the court shall order payment
                            in the following order:

                                     (A) The victim.
                                     (B) The Crime Victim's Compensation Board.
                                     (C) Any other government agency which has provided
                                     reimbursement to the victim as a result of the
                                     defendant's crtrnlnal conduct.
                                     (D) Any Insurance company which has provided
                                     reimbursement to the vlctfm as a result of the
                                     defendant's criminal conduct.



                                                       7
•   � U g, J I, L V I I     I ; IO r1v1                                              NO. IO o,   r.   IU




                          (h) Definitlons.--As used In this section, the following words and
                          phrases shall have the meanings given to them in this subsection:

                       "Victim." As defined in section 479.1 of the act of April 9, 1929
                      (P.L. 177, No. 175), known as The Administrative Code of 1929.1
                      The term includes the Crime Vlctlrn's Compensation Fund if
                      compensation has been paid by the Crime Victim's Compensation
                      Fund to the victim and any Insurance company that has
                      compensated the victim for loss under an insurance contract.

           18 Pa. C.S.A. § 1106(a), (c), (h).

                     The Court then examined former§ 479.1, set forth ln the Crime Victims

          Act at 18 P.S. § 11.103, which defines "victim" as:

                     (1) A direct victim.

                     (2) A parent or legal guardian of a child who is a direct victim,
                     except when the parent or legal guardian of the child is the alleged
                     offender.

                    (3) A minor child who is a material witness to any of the following
                    crimes and offenses under 18 Pa.C.S. (relating to crimes and
                    offens.es) committed or attempted against a member of the child's
                    family:
                    Chapter 25 (relating to criminal homicide).
                    Section 2702 (relating to aggravated assault),
                    Section 3121 (relating to rape).

                    (4) A family member of a homicide victim, tncludlng stepbrothers
                    or stepsisters, stepchildren, stepparents or a fiance, one of whom
                    is to be identified to receive communication as provided for in this
                    act, except where the family member is the alleged offender.

         18 P.S. § 11.103.

                   The same ·section defines "direct victim'' as \\[aJn individual against

        whom a crime has been committed or attempted and who as a direct result of

        the criminal act or attempt suffers physical or mental injury, death or the loss

        of earnings under this act." Id.

                                                        8
MU !! , J I, L V I I     I ; I U f IVI                                              IVO. 100,   r.   11




                       Pursuant to these definitions, the Court took the position that restitution

        was only available to individual victims, which they interpreted as human

        beings, and government agencies and insurance companies that have

        provided reimbursement to a human victim for their losses. Accordingly,

       because the DCED did not fall into one of these categories, the Court

       determined that it was not entitled to restitution. In support of ·his PCRA, the

       Defendant In the instant case argues that the holding of Veon requires that

       the restitution portion of hrs sentence be vacated.

                  By way of opposition, the Commonwealth arg.ues that Veon is a narrow

       ruling based on a set of facts that are readily distinguishable from the instant

      case, and therefore inapplicable. Initially, the Commonwealth first notes that

      In framing the question before it, the Court in Veon stated that they were

      charged with determining "whether the Commonwealth was eligible to receive

      restitution under the              circumstances of [the] case." Commw. v. Veon,   150 A.3d

      435, 448 (Pa. 2016) (emphasis added).

                 In an effort to draw a clear dlstlnctlon between Veon and the instant

     case, the Commonwealth notes that the restitution ordered in Veen was based

     on an estimated calculation of intangible pofltlcal gain inuring to Veon as a

     result of his criminal activity. By contrast, in the instant case, the amount of

     restitution was the exact amount of money lost by Bethlehem Township as a

     result of their contract with MEM. Essentially, the Commonwealth is arguing

    that Bethlehem Township's loss was the root of, and not incident to, the


                                                        9
f\U!l,,Jl,LVII   1;1ur1V1                                                IVO.   loo,   r.   IL




      charge upon which Defendant was convicted, and they were the specific

     victim. Whereas in Veon, as the Commonwealth notes in their brief, "the

     restitution amount did not represent an ascertainable figure of monetary gain

     to the defendant ... [n]either was it an ascertainable loss to a specific

     ''victim.''u Commonwealth's Memorandum of Law Contra Petitioner's Petition

     for Post Conviction Relief Pursuant to Pa. C.S. §9501 et seq. at 4.

             The Commonwealth further asserts that Veon is distinguishable because

     It involved restitution to a Commonwealth Agency; whereas, in the instant

     case, the victim in this case is a political subdivision. The Commonwealth

     suggests that this distinction is dispositive of the restitution issue because the

    former Is specifically excluded, and the latter is specifically included in the

    definition of "person" under the Statutory Construction Act, The Act defines

    a "person" as including "a corporation, partnership, limlted liabilrty company,

    business trust, other association, government entity (other than the

    Commonwealth), estate, trust, foundanon or natural person." 1 Pa. C.S.A. §

    1991.

            Alternatively, the ·Commonwealth urges. while Veon was decided under

    the mandatory restitution provisions of 18 Pa. C.S.A. §1106(c) which appear

    to turn on the definition of a "victim," the Court may order restitution under

    §1106(b) relating to restitution as a condition of probation or parole, which,

   like the general rule set forth at §1106(a), makes no reference to a "victim."

   See �ommw. v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (Stating that


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•   MU�- J I, L V I I   I , I IJ r IVI                                        IVO.   Joo,   r.   lj




           "when restitution is ordered as a condition of probation, the sentencing court

           is accorded the latitude to fashion probationary conditions designed to

           rehabilitate the defendant and provide some measure of redress to the victim

           ... Such sentences are encouraged and give the trial court the flexibility to

           determine all the direct and indirect damages caused by a defendant and then

          permit the court to order restrtution 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 .•. Thus, the requirement of a nexus

          between the damage and the offense is relaxed where restitution Is ordered

          as a condltion of probation.")

                    Whfle the Court agrees with the Commonwealth that it could set aside

          the parties' arguments under Veon and order restitution under 18 Pa. C.S.A,

          § 1106(b), upon consideration of the foregoing arguments, the relevant case

          law, and the relevant statutory provisions, the Court finds that Bethlehem

         Township is eligible to receive'1restitution under 18 Pa. C.S.A. § 1106(c).

                   In contrast to Veen, which involved an Imprecise amount of restitution

         calculated to punish the non-pecuniary gains realized by the defendant as a

         result of hrs criminal conduct, the restitution ordered in this case represents a

         specific amount of money taken from a specific victim, As per the Statutory

         Construction Act, a political subdivision is a 'person,' with the legal rights and

         duties that attach. It ls pursuant to those rlghts and duties that Bethlehem

        Township entered into a contract with MEM, that it paid funds to MEM which


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flUg.Jl,LVII   1;1onv1                                                 NO.   Joo,   r.   14




    were subsequently criminally misappropriated by Defendant and his co-

    defendant, and which resulted Bethlehem Township sustaining a defined loss

    in the amount of Eight Hundred Thirty-Two Thousand Four Hundred Sixty

    Dollars ($832,460.00). The Court believes that to absolve the Defendant of

    his criminal responsibility for the theft he perpetrated on Bethlehem Township

    simply because the victim, a recognized 'person' under the law, is not in

    human form, would be a gross misconstruction of the Iegislatfve intent of the

    statutory provisions impllcated rn this matter, and it would be a broad

    overreading of Veon, which involved an imprecise restitution amount to a third

    party not contemplated as entitled to restitution under 18 Pa. C.S.A. § 1106.

           Veon is certainly applicable to restitution cases generally insofar as it

    made clear that the current statutory scheme provides for mandatory

    restitution to victims, The Crime Victim's Compensation            Board, and
    government agencies       or   insurance   companies   which   have      provided

   reimbursement to a· victim as the result of a defendant's 'criminal conduct.

   Moreover, it correctly applied the statutory scheme to the facts of that case In

   determining that the DCED was not entitled to restitution because it was

   neither a direct victim nor had it provided reimbursement to a direct victim.

   Veon clearly illustrates that the statutory scheme draws a clear line between

   providing restitution personal injury and property loss occasioned on victlms




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    of crime and the third parties that compensate them directly for those losses,

    and losses which are incidental or tangential to criminal conduct.2

          However, this being a case where a direct victim has suffered a precisely

    ascertainable loss, the denial of restitution In this matter would require a

    strained reading of Veon, and would yield an absurd result. Commw. v. Allied

    Bldg. Credits, Inct., 123 A.2d 686, 692 (Pa. 1956) ("In construing a statute

 the courts must keep in mind that the Legislature is not presumed to have

 intended an absurd or unreasonable result ... good sense and practical util1ty

 must be considered .•. [and] statutes should receive a sensible construction

and should be construed, if possible, so that absurdity and mischief may be

avoided.") Consequently, Defendant's "Post-Conviction Relief Act Petition

Pursuant to Title 42 Pa.C.S. §9501 et seq." is DENIED.




                                                                                             S.J.

2      In recognition of th ls distinction, the Court In� took special care to cite to the 1997
decision of the Superior Court in Commw. v. Figu�roa, 691 A.2d 487 {Pa, Super. 1997),
wherein the Court denied restitution to the Department of Corrections for medical care
provided to an inmate who ultimately died at the hands of another inmate, and noted that:

 [t]o Implicate the myriad of govemmental agencies which provide services to people ... as
being entitled to reimbursement would create chaos in an already difficult restitution system
. • • Children and Youth Services, mental health agencies, every hospital and clinic in
Pennsylvania, the Departments of Welfare, Education and Corrections, the Department of
Health and others of the more than 230 departments under state control in Pennsylvania[,]
[a]II of these agencies, in one form or another, receive state and/or federal aid and art, at one
tlrna or another, may be impacted by additional costs to service a victim.

Commw. v. Figueroa, 691 A.2d 487, 490 (Pa. Super. 1997).


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