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                                  2018 PA Super 342

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER ROBERT WEIR,                   :
                                               :
                       Appellant.              :   No. 1799 WDA 2016


           Appeal from the Judgment of Sentence, October 17, 2016,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0005483-2016.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

CONCURRING OPINION BY KUNSELMAN, J.:                FILED DECEMBER 17, 2018

       I concur with the Majority on Weir’s weight of the evidence claim, but I

write separately because I would affirm Weir’s restitution claim for different

reasons.

       In Weir’s second issue, he challenges the court’s restitution award of

$2,000. The Majority finds his challenge implicates the discretionary aspects

of his sentence and that Weir failed to preserve and therefore waived this

claim.1 I disagree. I believe this claim implicates the legality of sentence,


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1 The Majority correctly cites most of the law in this area. However, the
Majority believes that any claim challenging the amount of restitution as
excessive is a challenge to the discretionary aspects of sentence. Majority
Opinion, at 18. This may be true with respect to restitution ordered as a
condition or probation or parole, or in a case involving juvenile delinquency,
where the court has discretion to enter an award. This also may have been
true for restitution awarded as part of a sentence before the amendments to
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which is non-waivable, and I would address the claim on the merits.

Nonetheless, I find the record supports the award of restitution for $2,000,

and I would affirm on that basis.

       In reviewing cases involving a restitution award on appeal, this Court

first must determine whether restitution was imposed as part of the sentence,

or as a condition of probation or as a condition for intermediate punishment.

Each of these three scenarios implicates a different statutory authority. Here,

the court imposed restitution as part of Weir’s sentence. Thus, restitution is

governed by 18 Pa. C.S.A. § 1106 and 42 Pa. C.S.A. § 9271(c), and not 42 Pa

C.S.A. § 9754 (c)(8) or 42 Pa. C.S.A. § 9763(b)(10). 2

       Mandatory restitution, as part of a defendant's sentence, is now required

for certain crimes under 18 Pa.C.S.A. § 1106, which states, in relevant part:

       § 1106. Restitution for injuries to person or property

              (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
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section 1106, which changed the language from “may” to “shall”, making an
award under this section mandatory, instead of discretionary as it used to be.
Here, however, Weir is not challenging the award as excessive, but rather that
there was no support in the record for the amount awarded.

2 Before ordering restitution under the other sections (probation or parole),
the court must determine the defendant’s ability to pay.           See e.g.
Commonwealth v. Harner, 617 A.2d 702, 707 (Pa. Super. 1992). That is
not the case when awarding restitution as part of a direct sentence. 18 Pa.
C.S.A. § 1106(c)(1); Commonwealth v. Colon, 708 A.2d 1279 (Pa. Super.
1998).

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       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:

                    (i) Shall consider the extent of injury suffered by the
              victim, the victim's request for restitution ... and such other
              matters as it deems appropriate.

                     (ii) May order restitution in a lump sum, by monthly
              installments or according to such other schedule as it deems
              just.

                                     ***
              (4) (i) It shall be the responsibility of the district attorneys
              of the respective counties to make a recommendation to the
              court at or prior to the time of sentencing as to the amount
              of restitution to be ordered. This recommendation shall be
              based upon information solicited by the district attorney and
              received from the victim.

18 Pa.C.S.A. § 1106 (emphasis added).3

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3 Pennsylvania’s mandatory restitution statute, section 1106 of the Crimes
Code, is similar to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A.
§3663A, which began requiring federal courts to order restitution for certain
crimes in 1996. Congress's primary motivation in enacting the MVRA was the
belief that the restitution framework of the prior act, (the Victim Witness
Protection Act of 1982), had not adequately compensated crime victims. By



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       The Commonwealth has the burden to prove the amount of “full

restitution.”   18. Pa. C.S.A. §1106 (c)(1),(4).     Although section 1106(c)

mandates an award of full restitution, it is still necessary that the amount “be

determined under the adversarial system with consideration of due process.”

Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004) (en banc).

Additionally, the amount cannot be speculative.      The trial court must also

ensure that the record contains a factual basis for the appropriate amount of

restitution.”   Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. Super.

2007).

       Here, Weir claims the restitution award of $2,000 was speculative and

not supported by the record. Appellant’s Brief at 18. Because he questions

the court’s authority to enter this award, unlike the Majority, I believe his

claim attacks the legality of his sentence.




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mandating that judges order restitution in the full amount of victims' losses,
Congress aspired to ensure that victims “receive the restitution that they are
due,” and thereby increase victim satisfaction with restitution orders.
Matthew Dickman, Should Crime Pay?: A Critical Assessment of the Mandatory
Victims Restitution Act of 1996, 97 Cal. L. Rev. 1687, 1689 (2009). The MVRA
made restitution mandatory in almost all cases in which the victim suffered
an identifiable loss, and removed judicial discretion from restitution orders.
Id.    Many states, including Pennsylvania, now have similar statutes.
Pennsylvania’s statute likewise removed judicial discretion from sentences of
restitution; the only discretion remaining is the method of payment. See 18
Pa.C.S.A. §1106(c)(2)(ii).




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       In Commonwealth v. Crosey, 180 A.3d 761 (Pa. Super. 2018), the

appellant similarly attacked the lack of evidentiary support for a restitution

award. There, the appellant claimed the court could not award restitution of

$7,864.72, because the amount was not supported by the record.                We

observed, “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; as such, it is a non-waivable matter.”

Id. at 771 (quoting Commonwealth v. Rotola, 173 A.3d 831, 834-35 (Pa.

Super. 2017))4.


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4 The Majority notes that our Supreme Court, in In the Interest of M.W.,
725 A.2d 729, 731 n.4 (Pa. 1999), sought to clarify whether an appeal of an
order of restitution implicates the legality or the discretionary aspects of a
particular sentence. Majority at 13. There, the Supreme Court held “where
such a challenge is directed to the trial court’s authority to impose restitution,
it concerns the legality of the sentence; however, where the challenge is
premised upon a claim that the restitution order is excessive, it involves a
discretionary aspect of sentencing.” M.W., 725. A. 2d. at 731 n.4.
       The Majority then takes issue with cases following In the interest of
M.W., where an appellant claims the award is “unsupported by the record”
and the courts found such challenges implicate the legality of the sentence.
Majority at 14. I find no such conflict.
       I note that those cases after In in the interest of M.W., where the
defendant has made a claim that restitution was ”unsupported by the record”,
all involve the mandatory imposition of restitution, where the court lacked
discretion to award anything other than full restitution, under the revised
section 1106 of the Crimes Code. They involve challenges to claims where
the amount was not itemized, see e.g. Crosey, supra, or there was no nexus
between the amount ordered and the crime itself, see e.g. Rotola, supra
and Atanasio, infra, or, this case, where the amount ordered did not appear
anywhere in the record. In my view, these cases all challenge the court’s
authority to award restitution for the amount chosen by the court. They



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       Other recent cases have also held such attacks challenge the legality of

sentence. See Commonweatlh v. Holmes, 155 A.3d 69 (Pa. Super. 2017)

(per curiam) (en banc). In an equally divided court, on an issue involving

mandatory restitution for a victim’s parents, both opinions in Holmes stated

that “an appeal from an order of restitution based upon a claim that a

restitution order is unsupported by the record challenges the legality, rather

than the discretionary aspects, of the sentencing. See Holmes, Opinion in

Support of Affirmance, 155 A.3d at 78 (Stabile, J.); see also Holmes, Opinion



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implicate legality of the sentence and are in accordance with In the Interest
of M.W.
       I also note that some cases, which seem to suggest that these
challenges involve the discretionary aspects of sentencing, were decided prior
to the 1998 changes to the Crimes Code. See e.g. Commonwealth v.
Penrod, 578 A.2d 486, 490 n.1 (Pa. Super. 1990). One case was decided
after the amendments to the Crimes Code, but relied on cases decided prior
to the amendments and did not discuss or recognize the change in the law
requiring mandatory restitution after 1998. Commonwealth v. Pappas, 845
A.2d 829, 841 (Pa. Super. 2004) (relying on cases decided from 1984 through
1992 to find that challenges to restitution, where specific amounts were not
established during the trial, implicated the discretionary aspects of
sentencing). Other cases involved restitution awarded under the juvenile act
or as a condition or probation or parole, where the court still has broad
discretion in fashioning a restitution award. See e.g. In the interest of
Dublinski, 695 A.2d 827 (Pa. Super. 1997) (noting that some of our opinions
find these cases challenged the legality of sentence and some opinions find
they challenged the discretionary aspects of sentence, but holding that under
either analysis, the court could consider the merits; vacating the award of
restitution against a juvenile and remanding for consideration of relevant
factors) .
       To the extent any conflict still exists, I would invite this Court en banc,
or the Supreme Court of Pennsylvania, to clarify any confusion in our
precedents regarding this issue.


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in Support of Reversal, 155 A.3d at 88 (Ford Elliott, J.) (both opinions citing

this Court’s decision in Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.

Super. 2013)).   See also Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa. Super. 2010) (holding that an appeal claiming that a restitution

order is unsupported by the record challenges the legality, rather than the

discretionary aspects of the sentence).

      Because I believe Weir’s issue is a challenge to the legality of his

sentence, I would decide it on the merits.

      Issues related to the legality of sentence are questions of law; as a

result, our standard of review over such questions is de novo and our scope

of review is plenary. Commonwealth v. Gentry, 191 A.3d 813, 817 (Pa.

Super. 2014).

      I find this case analogous to Commonwealth v. Crosey, supra. There,

the appellant similarly claimed the Commonwealth provided inadequate

evidence at sentencing to support its claim of restitution. Crosey, 180 A.3d

at 772. The trial court awarded restitution of $7,864.72, the exact amount

requested by the district attorney. In affirming the award, the court noted

there was a clear nexus between the crime and the victim’s expenses that

reasonably followed. Id. Specifically, the court acknowledged that although

an itemized accounting of expenditures was not supplied to the court, the

amount awarded was not excessive under the circumstances. Id.




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       There was no dispute the defendant’s crimes required the victim’s

transport to the hospital by ambulance, and that the hospital rendered surgical

efforts in an attempt to save his life. Id. Also, there could be no reasonable

objection that burial expenses inevitably followed. Id. Additionally, the court

noted that “an appropriate factual record supporting restitution was made in

the presence of both parties during adversarial proceedings.” Id. This Court

agreed that the restitution award was reasonable and the facts of record

supported the award. Id.

       Here, Weir claims the Commonwealth offered no evidence to support

the court’s restitution award of $2,000.5 Although he acknowledges that the

victim testified that the cost of the repairs to his motorcycle was $1,492, Weir

claims because the Commonwealth offered no corroboration for this amount,

the court was not authorized to impose restitution for this amount. Appellant’s

Brief at 19.    Similarly, Weir acknowledges that the victim testified that the

cost to paint the bike would be $1,000. Id. However, Weir claims, again,

because the victim offered nothing to corroborate the amount, such as

receipts, the name of the repair shop, or photographs, the court had no

authority to impose the amount of $2,000. Id. at 19-20.



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5 I note that the award of restitution came after a sentencing hearing where
the victim testified. Thus, Weir has not challenged due process. Although he
had an opportunity, Weir offered no testimony as to the cost of the repairs,
other than his cross-examination of the victim, where he pointed out that on
the day of the incident, the victim estimated the total repair cost to be $250.

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      I agree with Weir, that there was no testimony that the victim’s losses

were exactly $2,000. However, I believe the record supported a factual basis

for awarding the reasonable cost of the repairs, including the paint. First, the

record clearly supports an award of $1,492, the cost of the repairs to the

motorcycle.   The record also contains evidence that the cost to paint the

motorcycle was an additional $1,000.

      Here, the victim claimed his 2012 Kawasaki 600 Motorcycle was

damaged when Weir struck the headlight assembly during an altercation with

him. On direct examination, the victim testified as follows:

      A. Whenever [Weir] struck it, it broke the main support and it
      busted off all the side taps for the side frames. And basically the
      whole gauge cluster, the headlight itself, nothing was supported.
      It was all broken.
      Q. How much do those parts cost to you?
      A. Without paint it was $1,400. Fourteen hundred ninety and
      some change. That's without paint. The original estimate that I
      gave [] that was with paint, but I couldn't afford it . . . But I didn't
      get the paint for the plastic done. I couldn't afford it. That's why
      it is only fourteen hundred ninety and some change.
N.T., 10/17/16 at 17.
      On cross-examination, the victim confirmed the exact amounts:
      Q. And your testimony today was the restitution amount was
      about or the amount that you had to pay to fix the bike was about
      $1,400, I believe?
      A. $1,492, correct. The original estimate was with paint, but I
      couldn't afford it. It was almost $1,000 they wanted to paint it.
      So I just got the plastic repaired.
Id. at 25.



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       Weir’s attorney further questioned the victim about whether he told the

officer that the amount of damage to the motorcycle was only $250, but the

victim denied saying this.6 Id. at 25-26.

       I believe, under Crosey, supra, the fact that there was no corroboration

of these amounts is of no consequence.             All that is necessary is that the

amounts were offered into evidence, at a hearing in the presence of both

parties, and that the expenses were caused by the crime committed by the

defendant and were reasonable.7 Weir had an opportunity at the hearing to

introduce his own evidence regarding damages to the motorcycle. Moreover,

Weir did not dispute that the motorcycle was damaged as a direct result of his

criminal actions. Thus, there was a nexus between the amount ordered and

the damage caused to the motorcycle.                Compare Commonwealth v.

Poplawski, 158 A.3d. 671, 674-75 (Pa. Super. 2017) (vacating an award of


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6Conceivably, the trial court could have believed the $250 figure as a total
amount of damages that and ordered restitution for that amount.

7  Weir did not object to the amounts offered by the victim as hearsay or non-
expert testimony. I note that a property owner is generally competent to
provide his opinion concerning the value of his property because of a
“presumption of special knowledge arising out of such ownership.” Baldassari
v. Baldassari, 420 A.2d 556, 560 (Pa. Super. 1980). However, I found no
authority to support an extension of this rule to allow opinions by property
owners concerning the cost of repairs. See Narehood v. Keiter, 22 Pa. D.
& C.3d 391, 393 (Pa. Com. Pl. 1981), aff'd, 443 A.2d 408 (Pa. Super. 1982)
(involving cost of repairs for defective construction). The restitution statute
does not require expert testimony to support a claim for cost of repairs, but
the rules of evidence may, depending on the situation and whether the
opposing party objects. We need not address this issue because Weir did not
object to the admissibility of the victim’s testimony regarding the repair costs.

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restitution when the Commonwealth failed to establish that the victim’s losses

were directly caused by the crime committed by Poplawski).

       Regarding the portion of the restitution award for painting the

motorcycle, $508, I note that the record supported an award of $1,000 for

this damage. Additionally, I note that the Commonwealth did not challenge

the award of $508 for painting the motorcycle as less than “full restitution” to

the victim. In his Opinion, the trial court indicated that it could have awarded

the sum of $2,400 had it chosen to do so. T.C.O., 6/22/17, at 5. At the

conclusion of the restitution hearing, the court stated, “At the criminal mischief

[Weir] is ordered to pay restitution in the amount of $2,000. I'm splitting the

paint job cost only because we don't have accurate detailed information in

that regard. And it is an M2, so I'm staying with $2,000. Pay that through the

court.” N.T., 10/17/16, at 59.

       I believe the record supported an award up to $2,492. Because the

evidence suggested that Weir damaged the motorcycle during the commission

of the crime, the trial court had the authority, and the duty, to award

something for the cost to repair it in order to achieve “full restitution.” 18 Pa.

C.S.A. § 1106.      That amount could be any reasonable amount, up to and

including the amount requested by the district attorney or the victim. 8 Here,

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8 I analogize an award of “full restitution” to an award for attorneys’ fees.
Even when a party is obligated to pay the other side’s counsel fees, the court
can still determine whether the amount incurred is reasonable, and may



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the court awarded approximately half of what the victim indicated the cost

would be to repaint the motorcycle. This amount was reasonable and did not

exceed the amount requested by the Commonwealth.

       I believe the amount was not speculative and was supported by the

record.   As such, I conclude the court had the authority to enter such an

award, and I would not disturb it. See Crosey, supra.




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reduce the amount claimed when appropriate. McMullen v. Kutz, 985 A.2d
769,776-77 (Pa. 2009). Thus, I see no fault in the court reducing the amount
claimed for painting the motorcycle to what it deemed to be a reasonable
amount.

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