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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    GLORIA ROMAN                               :
                                               :   No. 2998 EDA 2017
                       Appellant               :

                 Appeal from the Order Entered August 31, 2017
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0005231-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 20, 2018

        Gloria Roman appeals from the order, entered in the Court of Common

Pleas of Lehigh County, denying her motion disputing the Commonwealth’s

modification of restitution.1      Following her guilty plea to driving under the

influence (DUI) of a controlled substance (marijuana),2 Roman was ordered

to serve seventy-two hours to six months’ incarceration in county jail and to

pay restitution in the amount of $13,956.82 for damages to two vehicles as a



____________________________________________


1 This Court has held that the restitution statute, section 1106 of the Crimes
Code, “permit[s] a defendant to seek a modification or amendment of the
restitution order at any time directly from the trial court.” Commonwealth
v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012), citing Commonwealth v.
Mitsdarfer, 837 A.2d 1203, 1205 (Pa. Super. 2003).

2   75 Pa.C.S.A. § 3802(d)(1)(i).
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result of a car accident that occurred at the time of the offense. After our

review, we vacate the restitution order.

       The history of the case is as follows:

       On April 10, 2017, . . . [a]t the time of sentencing, the
       Commonwealth requested restitution in the amount of $1.00 for
       any damages that occurred to the motor vehicles involved in the
       accident with [Roman’s] vehicle at the time of the offense.
       Thereafter, on May 31, 2017, a Restitution Order [with supporting
       documentation] was signed by this [c]ourt [and entered on June
       2, 2017,] which ordered restitution be paid by [Roman] in the
       amount of $9,657.75 to Maikel Hernandez, as well as to Mark
       Brownlee in the sum of $4,299.07, for damage sustained to their
       vehicles.[3] On June 29, 2017, [Roman] filed a motion Disputing
       Commonwealth’s Modification of Restitution. A hearing on [that
       motion] was conducted before this Court on August 29, 2017.

Trial Court Opinion, 10/6/17, at 1-2.

       In her motion, Roman disputed that the DUI was the cause of the

accident, and instead claimed the accident was caused by the hood of her

vehicle “suddenly flying open and blocking her view.” See Motion Disputing

Commonwealth’s Modification of Restitution, 6/29/17, at ¶ 4.      Roman also

claimed that the marijuana in her system amounted to an insignificant amount


____________________________________________


3 There is no indication in the record that the Commonwealth filed a motion to
modify the restitution order, although the court accepted the Commonwealth’s
statement on the record at the guilty plea/sentencing hearing that it would
seek further restitution depending on whether “insurance takes care of it.”
See N.T. Sentencing, 4/10/17, at 9. Although both victims indicated in their
restitution claim forms that the loss was not covered by insurance, see
Restitution Order, 5/31/17 (supporting documentation), there is nothing in
the record indicating whether Roman’s insurance carrier was contacted or had
denied the claims.



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of active THC,4 5.8 nanograms, and that although constituting a DUI, it was

not the cause of the accident. Id. at ¶¶ 5, 8.

       At the restitution hearing, Corporal Michael Irons of the Pennsylvania

State Police testified that on September 14, 2016, at approximately 10:50

a.m., he was dispatched to the scene of a four-car accident on I-78 west. He

testified that when he arrived, he saw that the hood of Roman’s vehicle was

unlatched and positioned against the windshield of her car. After investigating

the scene, Corporal Irons concluded that the accident was caused when

Roman slammed on her brakes in the right lane after the hood of her vehicle

became unlatched and flew up in front of her. The car traveling behind her

vehicle then hit her, caused her vehicle to enter the left lane, causing the

driver of a tractor-trailer to veer from his lane, and pinning another vehicle

against the concrete barrier. N.T. Restitution Hearing, 8/29/17, at 6-8. No

one was injured.

       Corporal Irons testified that when he approached Roman’s vehicle he

noticed a faint odor of marijuana. Id. at 7. Corporal Irons did not conduct a

field sobriety test because Roman had to be extricated from her vehicle;

however, Roman consented to a drug screening when she was taken to the

hospital after the accident. Id. at 9.



____________________________________________


4 Tetrahydrocannabinol (THC) is the active principal of cannabis, occurring in
two isomeric forms, both considered psychomimetically active. Dorland's
Medical Dictionary for Health Consumers, Saunders (2007).

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      On August 31, 2017, the trial court denied Roman’s motion disputing

the modification of the restitution order.   Roman filed a timely appeal on

September 8, 2017, and on September 12, 2017, the trial court instructed

Roman to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). Roman timely complied with the order.

      Roman raises one issue for our review: “Did the trial court illegally

impose restitution where property damages were not a direct result of

[Roman’s] DUI?” Appellant’s Brief, at 4.

      An appeal from an order of restitution based upon a claim that it is

unsupported by the record challenges the legality, rather than the

discretionary aspects, of sentencing. Commonwealth v. Redman, 864 A.2d

566, 569 (Pa. Super. 2004). “[T]he determination as to whether the trial

court imposed an illegal sentence is a question of law; our standard of review

in cases dealing with questions of law is plenary.” Commonwealth v. Akbar,

91 A.3d 227, 238 (Pa. Super. 2014). See also Commonwealth v. Atanasio,

997 A.2d 1181, 1183 (Pa. Super. 2010).


      Section 1106(a) of the Crimes Code provides, 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, or wherein
            the victim suffered personal injury directly resulting from
            the crime, the offender shall be sentenced to make



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            restitution   in   addition    to   the   punishment   prescribed
            therefor.

18 Pa.C.S.A. § 1106(a) (emphasis added).

      Roman argues the court illegally imposed restitution where the record

lacks any evidence to establish causation between the DUI and the property

damages. Appellant's Brief, at 18. As a result, Roman contends, the victims

are not entitled to restitution. Appellant's Brief at 20–21. We agree.

      There is nothing in the record before us to support a conclusion that the

car accident was a direct result of Roman’s offense.          See 18 Pa.C.S.A. §

1106(a). In fact, it is quite clear from the undisputed and uncontradicted

evidence that the direct cause of the accident was the fact that Roman’s hood

unlatched and completely blocked her vision. The Commonwealth made much

of the fact that Roman braked suddenly instead of pulling off to the side of the

road when the hood of her car flew up. N.T. Restitution Hearing, 8/29/17 at

13-14. There is no evidence, however, that marijuana impacted her ability to

do anything under those circumstances.           Notably, at the conclusion of the

hearing, the court stated: “I would imagine my first reaction would be the

same, to slam on my brakes, you know, if my hood came flying up [.]” Id. at

15.

      Thereafter, however, the trial court denied Roman’s motion challenging

the restitution order. The court stated:

      She made no effort to pull off to the side of the road. As a
      direct and proximate cause of the Defendant[’s] actions,
      the car traveling behind the Defendant impacted her
      vehicle and pushed her into the left lane, thereby causing

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      the driver of a tractor trailer to veer from his lane of travel
      and to pin a fourth vehicle against the concrete barrier.
      This Court finds that the Defendant’s conduct in stopping abruptly
      on a busy highway when the hood of her vehicle became unlatched
      and with marijuana in her system produced a chain reaction,
      directly causing the subsequent damage to the vehicles involved.
      . . . The Defendant’s faulty driving with a quantity of marijuana
      in her system, . . . while not necessarily the sole cause, was a
      substantial factor in causing the accident and the resultant
      damage.

Order, 8/31/17.

      The trial court found that Roman’s inability to pull her car over to the

shoulder of the highway after her hood became unlatched, with marijuana in

her system, was a “substantial factor” in causing the accident and resulting

damages. We cannot agree.

      The Supreme Court has held that section 1106’s language “is clear on

its face and applies only for those crimes to property or person where there

has been a loss that flows from the conduct which forms the basis of the

crime for     which    a   defendant    is held criminally accountable.”

Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992) (emphasis

added). Moreover, this Court has held that in light of the language of section

1106, restitution is a proper sentence under the Crimes Code only if there is

a   “direct   causal   connection      between   the   crime   and   the   loss.”

Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super. 2007) (emphasis

added).

      Without evidence that Roman’s offense caused her car hood to unlatch,

or some evidence that Roman’s reaction to brake suddenly rather than pull


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over was over was a direct result of her offense, we are unable to conclude

that the Commonwealth met its burden of proving a causal connection

between the presence of marijuana in Roman’s system and the damage to the

victims’ vehicles.     See Commonwealth v. Balisteri, 478 A.2d 5, 9 (Pa.

Super. 1984) (stating that “[t]o order a defendant to pay restitution, his or

her criminal conduct must have caused the loss or injury being compensated

for.”).    Accord Harriott, supra at 238 (Pa. Super. 2007) (“Due to the

language ‘directly resulting from the crime,’ restitution is proper only if there

is a direct causal connection between the crime and the loss.”). The

Commonwealth offered no evidence at the hearing in support of its restitution

order or to rebut the allegations raised in Roman’s motion challenging the

order. The court’s implication that Roman was unable to pull over to the side

of the road due to marijuana in her system is not supported by the evidence

presented at the hearing.

      We conclude, therefore, that the record fails to establish a clear nexus

between      Roman’s    offense   and   the   accident   and   vehicle   damage.

Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004) (amount of

restitution must be supported by the record). Accordingly, we are constrained

to vacate the restitution order. Commonwealth v. Rotola, 173 A.2d 831

(Pa. Super. 2017) (award of restitution must be vacated if not supported by

record).

      Order vacated. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/18




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