J-A13030-19

                                    2019 PA Super 294



    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    YAHYA ASAAD MUHAMMED                       :
                                               :
                        Appellant              :     No. 1087 EDA 2018

             Appeal from the Judgment of Sentence March 6, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004632-2017


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

CONCURRING & DISSENTING OPINION BY SHOGAN, J.:

                                                     FILED SEPTEMBER 30, 2019

        I agree with the learned Majority that we must vacate Appellant’s

sentence and remand because “the trial court had no authority to impose

restitution while deferring the amount and method of payment for decision at

a later date.”       Majority Opinion at 8 (citing 18 Pa.C.S. § 1106(c)(2) and

Commonwealth v. Ramos, 197 A.3d 766 (Pa. Super. 2018)). I also agree

with the Majority’s conclusion that the imposition of restitution for the victim’s

damaged property was proper.            Id. at 12.    However, I disagree with the

Majority’s conclusion that the imposition of restitution for the victim’s missing

property resulted in an illegal sentence. Id.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A13030-19


      As defined in the restitution statute, “Injury to property” is “[l]oss of

real or personal property, including negotiable instruments, or decrease in its

value, directly resulting from the crime.” 18 Pa.C.S. § 1106(h). “Property”

includes “real and personal property . . . of the victim.” Id. “Restitution”

means: “The return of the property of the victim or payments in cash or the

equivalent thereof pursuant to an order of the court.” Id.

      Here, Appellant pled guilty to criminal trespass.      N.T. Guilty Plea,

3/5/18, at 6–10. Specifically, Appellant acknowledged that he entered the

victim’s residence, “remained inside, that items were removed and/or

damaged, and that [he] knew that [he] didn’t have any license or any lease

or any legal right to be there[.]” Id. at 9. The factual basis for Appellant’s

plea supports an order of restitution for the return of the victim’s missing

property in the form of cash payments. 18 Pa.C.S. § 1106(h).

      Additionally, at the restitution hearing, the victim’s granddaughter

(“Granddaughter”) provided testimonial and documentary evidence as to the

value of property that she knew was missing from the residence.              N.T.

Restitution, 3/12/18, at 9–40.      The trial court found Granddaughter’s

testimony credible and “that the loss or damages sustained were a direct

result of the Appellant’s and his co-defendant’s criminal conduct.” Trial Court

Opinion, 6/12/18, at 9.     Thus, the trial court ordered Appellant to pay

$8,825.98 in restitution, jointly and severally with his co-defendant. Id.




                                     -2-
J-A13030-19


      The record clearly supports the trial court’s order of restitution as to the

missing property.    Appellant and his sister were squatters in the victim’s

residence. They gained entry by breaking a glass door and window. They

changed the door locks, opened utility accounts, and paid the property taxes.

They removed carpeting and padding from two rooms and part of a wall in the

bathroom.     They pillaged furniture and boxes packed with the victim’s

property, discarding some items on the driveway. By the time Granddaughter

regained access to the residence, much of the victim’s property was missing.

      The   trial   court    acknowledged—and      the   record   confirms—that

Granddaughter could only identify a fraction of the victim’s missing property.

N.T., 3/12/18, at 80.       Nonetheless, Granddaughter provided replacement

values for “those items that could be very specifically identified,” which the

trial court accepted in determining the amount of restitution.        Id. at 82.

Because “the actual loss incurred by the victim [was] far greater than the

amount of restitution . . . requested,” id., the trial court’s value for the known

missing items was neither speculative nor excessive, but limited to the loss of

property sustained as a direct result of Appellant’s criminal conduct.

Accordingly, I would affirm the amount of restitution imposed as to the

missing property.




                                      -3-
