J-S08033-17

                              2017 PA Super 144


COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
DONALD BIAUCE                           :
                                        :
                  Appellant             :         No. 926 WDA 2016

                    Appeal from the Order June 10, 2016
              In the Court of Common Pleas of McKean County
                  Criminal Division at No(s): 261 CR 1984


BEFORE:    GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

OPINION BY GANTMAN, P.J.:                              FILED MAY 15, 2017

      Appellant, Donald Biauce, appeals from the order entered in the

McKean County Court of Common Pleas, which granted the Commonwealth’s

petition to change the payee of mandatory restitution from Ralph Porch

(“Victim”) to the estate of the deceased Victim. We affirm.

      The relevant facts and procedural history of this case are as follows.

Victim was driving his vehicle on November 15, 1984, with his wife, Jean

Porch, who was a passenger. Victim noticed Appellant standing on the side

of the road, next to a stopped vehicle. Victim began to slow down until he

saw that Appellant had a rifle on his person. After seeing the rifle, Victim

increased his speed. Appellant fired shots at Victim’s vehicle, which directly

struck Victim; the shattered glass from the windshield injured Victim’s wife.
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Victim continued driving until he located the police and reported the

incident. Victim’s injuries were part of a two-day crime spree by Appellant.

      As a result of the crime spree, a jury convicted Appellant on April 30,

1985, of four counts of attempted murder, two counts each of aggravated

assault, unlawful restraint, burglary, and theft, and one count each of

robbery and resisting arrest. On September 27, 1985, the court sentenced

Appellant to forty-four (44) to eighty-eight (88) years’ incarceration and

ordered Appellant to pay restitution to three (3) victims. Regarding Victim

Ralph Porch, the court ordered Appellant to pay restitution in the amount of

$9,975.68, plus future medical expenses.

      On April 15, 2016, the McKean County Adult Probation Department

received   correspondence   from   Francis   Porch,   Trustee,   regarding   the

establishment of Victim Ralph Porch’s estate and the creation of a trust. The

Commonwealth filed a petition on April 22, 2016, to amend the payee of the

restitution order from Ralph Porch to the Estate of Jean and Ralph Porch,

with the Trustee of Francis Porch.      Appellant filed a pro se answer in

opposition on June 1, 2016.     On June 10, 2016, the court granted the

Commonwealth’s petition with explanation and changed the payee of the

restitution to the Estate of Jean and Ralph Porch, with the Trustee of Francis

Porch. The amount of restitution remained the same. Appellant filed a pro

se notice of appeal on June 28, 2016. The trial court ordered Appellant on

July 6, 2016, to file a concise statement of errors complained of on appeal,


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pursuant to Pa.R.A.P. 1925(b).      The order was served on July 7, 2016.

Appellant deposited his Rule 1925(b) statement in the prison mail on July

26, 2016, within the twenty-one day period.         See Commonwealth v.

Jones, 549 Pa. 58, 700 A.2d 423 (1997) (holding the prison mailbox rule

applies to all appeals by pro se prisoners).

      Appellant raises the following issues for our review:

         DID THE TRIAL COURT ER[R] WHEN IT GRANTED A
         MOTION TO MODIFY A RESTITUTION ORDER GRANTING
         PAYMENT TO A THIRD PARTY OR ESTATE WHO IS NOT THE
         VICTIM OF THE CRIME?

         DID THE TRIAL COURT ER[R] WHEN IT GRANTED A
         MOTION TO MODIFY A RESTITUTION ORDER AFTER 30
         YEARS   WITHOUT   A   HEARING  WHICH   VIOLATED
         [APPELLANT’S] DUE PROCESS RIGHTS IN ACCORDANCE
         WITH THE CONSTITUTION OF THE COMMONWEALTH OF
         PENNSYLVANIA     AND    THE    UNITED    STATES
         CONSTITUTION?

         DID THE TRIAL COURT ER[R] WHEN IT ORDERED THE
         ENTIRE RESTITUTION AMOUNT OF $9,975.68 WHEN
         [APPELLANT] HAS BEEN MAKING ACT 84 PAYMENTS SINCE
         2000?

         DID THE TRIAL COURT ER[R] WHEN IT ORDERED
         RESTITUTION TO AN ESTATE WHEN AN ESTATE DOES NOT
         QUALIFY FOR OR IS DEFINED AS A VICTIM UNDER 18
         PA.C.S.A [§] 1106(H)?

         DID THE TRIAL COURT ER[R] WHEN IT GRANTED A
         MOTION TO MODIFY A RESTITUTION ORDER WHEN IT
         LACKED THE JURISDICTION UNDER 42 PA.C.S.A. [§] 5505
         AND THE DISTRICT ATTORNEY NEVER ARGUED ANY JUST
         CAUSE FOR THE MODIFICATION?

(Appellant’s Brief at 8).

      For purposes of this disposition, we combine Appellant’s issues.

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Appellant argues payment of restitution originally ordered as part of a direct

sentence for a crime involving personal injury is limited to the direct victim

of the crime, and the victim’s estate does not qualify as a victim.

Specifically, Appellant contends the Commonwealth committed fraud upon

the court when the Commonwealth asked the court to change the restitution

payee to the Estate of Jean and Ralph Porch, because Jean Porch was not a

“victim,” and the original restitution order did not include her name.

Appellant avers information for modification of a restitution order must come

straight from the victim, and here, the Trustee of Victim’s estate presented

the estate information to the Commonwealth. Appellant also maintains he

has already made restitution payments, and the court should have modified

the restitution amount to reflect those partial payments. Appellant further

insists the court had no jurisdiction to modify the original restitution

sentencing order, because it was over thirty years old. Appellant concludes

the trial court improperly modified the restitution order, and this Court must

vacate the modified order and restore the original order.      Appellant also

requests this Court to order an accounting of the money Appellant previously

paid toward restitution. We disagree.

      The court’s power to impose restitution is a matter of statutory

construction, which poses questions of law, over which our review is plenary.

Commonwealth v. Hall, 622 Pa. 396, 409, 80 A.3d 1204, 1211 (2013).




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The primary statute at issue in this appeal is the statute governing

restitution, which provides in pertinent part as follows:

         § 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 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. The court shall not
               reduce a restitution award by any amount that the
               victim has received from the Crime Victim’s
               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:


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               (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 criminal conduct.

               (D) Any insurance company which has provided
               reimbursement to the victim as a result of the
               defendant's criminal conduct.

         (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 as presented
              to the district attorney in accordance with paragraph
              (4) 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.

              (iii) Shall not order incarceration of a defendant for
              failure to pay restitution if the failure results from the
              offender’s inability to pay.

              (iv) Shall consider any other preexisting orders
              imposed on the defendant, including, but not limited
              to, orders imposed under this title or any other title.

         (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 and conclusions as a matter of


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         record for any change or amendment to any
         previous order.

              (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.

              (ii)    Where the district attorney has solicited
              information from the victims as provided in
              subparagraph (i) and has received no response, the
              district attorney shall, based on other available
              information, make a recommendation to the court for
              restitution.

              (iii)  The district attorney may, as appropriate,
              recommend to the court that the restitution order be
              altered or amended as provided in paragraph (3).

                                 *    *    *

       (e) Restitution payments and records.‒Restitution,
       when ordered by a judge, shall be made by the offender to
       the probation section of the county in which he was
       convicted or to another agent designated by the county
       commissioners with the approval of the president judge of
       the county to collect restitution according to the order of
       the court or, when ordered by a magisterial district judge,
       shall be made to the magisterial district judge.           The
       probation section or other agent designated by the county
       commissioners of the county with the approval of the
       president judge to collect restitution and the magisterial
       district judge shall maintain records of the restitution order
       and its satisfaction and shall forward to the victim the
       property or payments made pursuant to the restitution
       order.

                                 *    *    *




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

          “Crime.” Any offense punishable under this title or by a
          magisterial district judge.

                                       *       *   *

          “Offender.” Any person who has been found guilty of any
          crime.

                                       *       *   *

          “Restitution.” The return of the property of the victim or
          payments in cash or the equivalent thereof pursuant to an
          order of the court.

          “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. [71 P.S. § 180-9.1] The term includes the
          Crime Victim’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 (emphasis added).1 The Sentencing Code provides for

restitution as follows:

          § 9721. Sentencing generally

                                       *       *   *
____________________________________________


1
  Whether the definition of “victim” under Section 1106 includes the more
expansive definition of “victim” under the Crime Victim’s Act, at 18 P.S. §
11.103, remains subject to disagreement. See, e.g., Commonwealth v.
Holmes, 155 A.3d 69 (Pa.Super. 2017), which is a recent, evenly divided
en banc decision of this Court. We do not have to address that matter,
however, because Ralph Porch was a direct victim of Appellant’s crime and
entitled to mandatory restitution under 18 Pa.C.S.A. § 1106(c) and 42
Pa.C.S.A. § 9721(c).



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         (c) Mandatory         restitution.–In   addition   to    the
         alternatives set forth in subsection (a) of this section the
         court shall order the defendant to compensate the victim
         of [the defendant’s] criminal conduct for the damage or
         injury that [the victim] sustained. …

42   Pa.C.S.A. §   9721(c).     “[T]he   primary purpose    of restitution is

rehabilitation of the offender by impressing upon him that his criminal

conduct caused the victim’s loss or personal injury and that it is [the

offender’s] responsibility to repair the loss or injury as far as possible.”

Commonwealth v. Solomon, 25 A.3d 380, 389 (Pa.Super. 2011), appeal

denied, 615 Pa. 766, 40 A.3d 1236 (2012) (quoting Commonwealth v.

Mariani, 869 A.2d 484, 486 (Pa.Super. 2005)).

      “An order of restitution is a sentence, …thus, the amount awarded is

within the sound discretion of the trial court and must be supported by the

record.” Commonwealth v. Boone, 862 A.2d 639, 644 (Pa.Super. 2004).

The trial court is required to specify the amount of restitution at sentencing,

but it may modify the restitution order at any time if the court explains its

reasons for modification on the record. Commonwealth v. Dietrich, 601

Pa. 58, 65, 970 A.2d 1131, 1135 (2009).           See also 18 Pa.C.S.A. §

1106(c)(3). If the sentencing court sets some restitution at sentencing, the

court can later modify the restitution as long as the court meets the

requirements of Section 1106(c)(3). Dietrich, supra at 1135. The broad

language of Section 1106(c)(3) indicates the court has jurisdiction to modify

a restitution order at any time without regard to when information should

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have been available for consideration. Id.

      “A   personal   representative    in   the   person   of   the   executor   or

administrator of [the victim’s] estate stands in the shoes of the deceased

victim as far as entitlement to benefits is concerned.” Commonwealth v.

Lebarre, 961 A.2d 176, 180 (Pa.Super. 2008) (quoting Freeze v. Donegal

Mut. Ins. Co., 504 Pa. 218, 224, 470 A.2d 958, 961 (1983)).                  If the

legislature wanted to extinguish a victim’s right to benefits upon death, the

legislature would have specifically provided this language in the statute. Id.

“[B]ecause an estate stands in the shoes of the victim under the restitution

statute, it is the ‘victim’ within the meaning of that statute.”        Id. at 181.

See also Hall, supra (noting court can order restitution payable to crime

victim’s estate).

      In the instant case, Appellant fired gunshots at Victim’s vehicle. The

shots directly struck Victim.   A jury convicted Appellant of multiple crimes

related to this shooting, and the court sentenced Appellant to a term of

incarceration and ordered Appellant to pay restitution to Victim Ralph Porch,

in the amount of $9,975.68, plus future medical expenses. More than thirty

years later, the Commonwealth received correspondence from the Trustee of

Victim’s estate. The Commonwealth filed a petition to change the payee of

the restitution aspect of the sentencing order to the Estate of Jean and Ralph

Porch, with the Trustee of Francis Porch.              The court granted the

Commonwealth’s petition and changed only the payee of the restitution to


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the Estate of Jean and Ralph Porch, with the Trustee of Francis Porch; the

court did not alter the amount of restitution.

      Here, Victim Ralph Porch suffered personal injury as a direct result of

Appellant’s crime; and the court correctly awarded restitution.      See 18

Pa.C.S.A. § 1106(a); 42 Pa.C.S.A. § 9721(c).          The court specified the

amount of restitution at sentencing as required.         See 18 Pa.C.S.A. §

1106(c)(2); Dietrich, supra. When the court later modified the restitution

order to change the name of the payee to the payee’s estate, as Section

1106 authorizes, the court explained its decision for the record.     See 18

Pa.C.S.A. § 1106(c)(3); Dietrich, supra.         Section 1106 did not require

Ralph Porch or his estate to provide the information underlying this

modification to the court. According to Section 1106, that information can

come from the Commonwealth, based on material submitted to the

Commonwealth on behalf of the victim.         See 18 Pa.C.S.A. § 1106(c)(4).

Likewise, Section 1106 does not require a hearing to amend the order of

restitution in this manner. See 18 Pa.C.S.A. § 1106(c)(3). Thus, the court

followed proper procedure when it changed the payee of the original

restitution order.

      Although the original restitution order did not include Jean Porch, the

inclusion of her name in the Estate does not invalidate the amended

restitution order. The Estate of Jean and Ralph Porch stands in the shoes of

the deceased Victim. See Lebarre, supra. As the bona fide estate of the


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original payee, it does not matter how the estate is nominated. Appellant

cites no law to support his contrary contention.       Changing the payee to

Victim’s estate serves the purpose of restitution, which is to repair Victim’s

injury as far as possible, and nothing in the statute indicates Victim’s right to

benefits extinguishes upon his death.         See Solomon, supra; Lebarre,

supra.   Furthermore, all payments made to the Estate of Jean and Ralph

Porch, together with all previous payments made to Victim Ralph Porch, shall

be credited toward the total amount of restitution Appellant was sentenced

to pay. Accordingly, we affirm the order changing the payee of restitution

from Ralph Porch to the Estate of Jean and Ralph Porch.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2017




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