J-S80042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WALTER EDWARD LANGSTON II,                 :
                                               :
                      Appellant                :      No. 1295 EDA 2017

           Appeal from the Judgment of Sentence February 10, 2017
              in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0005535-2016

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

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 27, 2018

        Walter Edward Langston II (“Langston”) appeals from the judgment of

sentence entered following his guilty plea to driving under the influence of

alcohol (“DUI”) - general impairment, and driving while operating privilege is

suspended or revoked.1 We affirm.

        During the evening of July 12, 2016, Langston’s vehicle struck a

vehicle being driven by Aisha Anderson (“Anderson”).         Although Langston

fled the scene, his license plate number was reported to police.          Police

officers followed a trail of fluid from the accident scene to 139 Oakley Road

in Upper Darby, Pennsylvania, where they found Langston and his vehicle.

Langston was placed in custody for leaving the scene of the accident.

Because officers observed a strong smell of alcohol emanating from

____________________________________________


1   See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)(1).
J-S80042-17



Langston, they asked that he submit to a blood alcohol test.        Langston

refused.   Later, at the police station, officers discovered that Langston’s

driver’s license had been suspended for DUI-related offenses.

     Langston subsequently entered a negotiated guilty plea to the above-

described charges on February 10, 2017.        In accordance with his plea

agreement the trial court sentenced Langston to time served to 23 months

in jail, plus three years of consecutive probation.   In addition to fees and

fines, the trial court sentenced Langston to pay restitution in the amount of

$962.53 to Anderson, and $22,222.24 to Anderson’s insurer, USAA. As part

of his plea agreement, Langston had agreed to the payment of restitution.

Langston subsequently filed a post-sentence Motion, which the trial court

denied. Thereafter, Langston filed the instant timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

     Langston presents the following claims for our review:

     [I.] Whether the restitution [O]rder survives review because
     property damage to an automobile struck by a drunk driver is
     not a loss that flows from the conduct which forms the basis of
     the crime for which a defendant is held criminally accountable or
     wherein the victim suffered personal injury directly resulting
     from the crime?

     [II.] Whether the victim’s insurer, the putative beneficiary of
     $22,222.24 restitution for a subrogation claim, is a victim under
     the Crime Victim’s Act [(“CVA”), 18 Pa.C.S.A. §§ 11.101 et
     seq.,] despite statutory conflict, and despite the fact that the
     supporting Vehicle Code offenses do not have elements or
     contemplate conduct that directly caused the property damage?



                                    -2-
J-S80042-17


Brief for Appellant at 5.

      Langston first claims that the trial court’s restitution Order is

unenforceable.    Id. at 8.    According to Langston, for restitution to be

authorized under the section 1106 of the Crimes Code, the criminal conduct

specified as the elements of the criminal offense must directly cause the

loss. Id. Langston states that he pled guilty to DUI-general impairment and

driving with a suspended license.    Id. at 8-9.   Langston contends that no

conduct, demonstrated by the statutory elements of those offenses, caused

the loss forming the basis of the restitution Order.      Id. at 9.   Langston

further asserts that, at the plea hearing, no causation was established. Id.

Langston states that “[w]hen the victim suffers fiscal loss that is not directly

connected to the criminal conduct of the defendant[,] then that defendant is

not responsible monetarily to the victim in Pennsylvania criminal [c]ourt.”

Id.

      When a defendant enters a guilty plea, he or she waives all defects

and defenses except those concerning the validity of the plea, the

jurisdiction of the trial court, and the legality of the sentence imposed.

Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012).               “An

appeal from an order of restitution[,] based upon a claim that a restitution

order is unsupported by the record[,] challenges the legality … of




                                     -3-
J-S80042-17


sentencing.”2     Id. at 771-72.         “The 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.”3 Id. at 772.

       Restitution, as part of a direct sentence, must be based upon statutory

authority. Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992).

Mandatory restitution, as a part of a defendant’s sentence, is authorized by

18 Pa.C.S.A. § 1106. Commonwealth v. Burwell, 58 A.3d 790 (Pa. Super.

2012). Section 1106 provides, in relevant part, as follows:

       (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, … 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:
____________________________________________


2 “The 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) (citation omitted).

3  Our review of the record discloses that, in his Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal, Langston preserved only the
following claim for appellate review: “Whether the restitution [O]rder is
illegal because an insurance company, the putative beneficiary of restitution
here, is not a victim pursuant to the Crime Victim’s Act.” Statement of
Errors Complained of on Appeal, 6/7/17.




                                            -4-
J-S80042-17



          (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 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.

18 Pa.C.S.A. § 1106(a), (c)(1)(i) (emphasis added).     Our Supreme Court

has held that section 1106 “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. Barger, 956 A.2d 458, 465

(Pa. Super. 2008) (quoting Harner, 617 A.2d at 706).

     This Court previously has addressed situations where the legality of a

restitution order is challenged in a similar way.    In Commonwealth v.

Fuqua, 407 A.2d 24 (Pa. Super. 1979), the defendant lost control of his car

and crashed into the victim’s house. Id. at 25. The defendant was found

guilty of DUI, following a non-jury trial during which he denied being

intoxicated and testified that he had not crashed into the home.    Id. The

trial court convicted the defendant of DUI and sentenced him to one year of

probation. Id. The trial court additionally ordered the defendant to make

restitution to the victim. Fuqua, 407 A.2d at 25. The defendant argued the

record did not support the order of restitution, because the court had failed

to make a specific finding that the property damage sustained by the victim


                                    -5-
J-S80042-17


was a direct result of the defendant’s crime of DUI.       Id. at 27-28.     On

appeal, this Court affirmed the sentence of restitution:

      Our own review of the record discloses that the court below did
      indeed fail to make such a finding on the record. Normally,
      where the lower court fails to support its sentence on the record,
      we will vacate the sentence and remand for resentencing. In
      this case, however, the evidence is clear that the order of
      restitution was for the damages to the [victim’s] house; the
      lower court did find that [the defendant] did in fact collide with
      the house and cause the damage to the front porch and
      foundation. While the lower court should have specifically found
      that this damage was a direct result of [the defendant]’s crime
      of driving while under the influence, to remand for resentencing
      would be a useless procedural exercise. The missing specific
      finding is unmistakeably [sic] implied in the findings that the
      court did make.

Id. at 28 (citations omitted).

      Subsequently, in Commonwealth v. Walker, 666 A.2d 301 (Pa.

Super. 1995), the defendant pled guilty to two counts of DUI. Id. at 303.

The charges arose from a two-car collision in which two occupants of the

other vehicle were severely injured.       Id.   The trial court ordered the

defendant to pay restitution as a part of the sentence.       Id. at 304.    On

appeal, he argued, in pertinent part, that “restitution is not proper where

there is insufficient evidence that the victim’s injuries directly resulted from

the crime[.]” Id. at 307. Finding Fuqua controlling, a panel of this Court

concluded as follows:

      Although the evidence relied upon by the trial court did not arise
      during trial because of [the defendant]’s guilty plea,
      nevertheless, in language … at the sentencing hearing, the court
      found that [the defendant]’s driving while under the influence
      was a substantial factor in causing the injuries to the victims.

                                     -6-
J-S80042-17


      Just as this finding of causation supports the sentencing court’s
      decision to apply the enhanced sentencing guideline, it likewise
      supports the court’s decision to impose restitution.

Id. at 309 (citation omitted).    Thus, in Walker, the trial court expressly

found, at the sentencing hearing, that the defendant’s driving under the

influence was a substantial factor in causing the victims’ injuries. See id.

      At the sentencing hearing in the instant case, the trial court stated the

factual bases for Langston’s guilty plea as follows:

      In this case as to Count 1, the Commonwealth would have to
      prove that on the date charged—that on the date charged[,] you
      operated or were in physical control of a vehicle on the highways
      of the Commonwealth of Pennsylvania at a time when you were
      under the influence of alcohol or a controlled substance to the
      point that it rendered you incapable of safe driving[,] and that
      you refused to submit to a blood or breath test ….

                             *      *         *

      On count 4[,] [the Commonwealth has] to prove that on the
      date charged, you operated or were in physical control of a
      vehicle at a time when your suspension was—when your license
      was under suspension for a DUI-related offense….

N.T., 2/10/17, at 14, 15. At the hearing, the trial court additionally asked

whether Langston stipulated to the facts set forth in the “affidavit.” Id. at

18. Through his counsel, Langston so stipulated. Id.

      Our review of the record discloses only one “affidavit” of record, the

Affidavit of Probable Cause.     The Affidavit, to which Langston stipulated,

states that Police Officer Joseph Mazzone (“Officer Mazzone”) was dispatched

to the scene of an accident, where a vehicle had struck an unoccupied

vehicle, then fled the scene.    Affidavit of Probable Cause, 7/13/16.     The

                                        -7-
J-S80042-17


Affidavit further identified Langston’s license plate number as the license

plate number of the fleeing vehicle, as reported by a witness, and a

description of the driver. Id. Officer Mazzone followed a vehicle fluid trail

from the accident scene to 139 Oakley Road, at which time he found a

heavily damaged vehicle, matching the license plate and description given at

the accident scene. Id. Officer Mazzone also found Langston, who matched

the description provided at the accident scene.      Id.   Langston was placed

into custody for leaving the scene of an accident, where an unoccupied

vehicle had been struck. Id.

      Finally, we note that at the sentencing hearing, as a part of his

negotiated sentence, Langston expressly agreed to pay restitution of

$22,222.24 to USAA, and $962.53 to Anderson. N.T., 2/10/17, at 12, 14.

      We conclude that Langston’s agreement to restitution, the amount of

the restitution, and the person and entity receiving restitution, coupled with

Langston’s stipulation to the facts of the Affidavit, are sufficient to establish

that the restitution sentence is for damages that were the direct result of

Langston operating his vehicle “after imbibing a sufficient amount of alcohol

such that [he was] rendered incapable of safely driving.”          75 Pa.C.S.A.

§ 3802(a)(1).   Thus, it is impossible to separate Langston’s driving under

the influence from the damages sustained by the Anderson and USAA. See

Walker, 666 A.2d at 310. For these reasons, we conclude that Langston’s

claim is without merit.


                                      -8-
J-S80042-17


       Langston next claims that his sentence of restitution is illegal, as

USAA’s subrogee is not a “victim” under the CVA.4 Brief for Appellant at 12.

Langston acknowledges that USAA paid money to Anderson.            Id. at 14.

Langston relies upon the definitions of victim set forth in 18 Pa.C.S.A. §§

11.103 and 11.701 in arguing that USAA is not a statutory victim.         Id.

Langston asserts that USAA could be a victim only if the record is developed

to prove the loss and the value of that loss. Id. at 15.

       In its Opinion, the trial court addressed this claim and concluded that

it lacks merit. See Trial Court Opinion, 6/28/17, at 3-6. We agree with the

sound reasoning of the trial court, as set forth in its Opinion, and affirm on

this basis as to Langston’s second claim. See id.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




____________________________________________


4 As part of this claim, Langston again asserts that the underlying Vehicle
Code offenses “do not have elements that directly caused the property
damage.” Id. As we explained supra, this claim lacks merit.



                                           -9-
                                                                                     ORIGINAL
                                                                                Circulated 02/02/2018 04:15 PM




    IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                       1295 EDA 2017
                       v.
                                                          NO. CP-23-CR-0005535-2016
WALTER EDWARD LANGSTON II

Kimberly Riley, Esquire, Attorney for the Commonwealth
Rich Blasetti, Esquire, Attorney for the Appellant

                                           OPINION

Nilon, J.                                                                   Filed: June 26, 2017

        Walter Edward Langston, II, hereinafter "Appellant," argues that he is entitled to relief

from the portion of his negotiated guilty plea sentence imposing restitution to USAA Insurance

Company because said beneficiary is not a victim pursuant to the Crime Victims Act.

Appellant's contention is meritless.

FACTUAL IDSTORY:

        On July 12, 2016, Officer Joseph Mazzone of the Upper Darby Police Department

responded to a call from dispatch reporting an accident in the area of State Road and Parkview

A venue. The officer, in the Affidavit of Probable Cause, set forth the following:

        Dispatch informed the responding officers that the striking vehicle was fleeing the scene

of the accident, and gave the officers the vehicle's license plate number. A witness also

described the driver of the striking vehicle as a tall white male with tattoos on his·arms and neck,

who was wearing a red t-shirt. The witness further described the vehicle as having a flat front

driver's side tire and heavy damage to the driver's side; information gathered from the license

plate number informed officers that the vehicle in question was a Buick LeSabre registered to

139 Oakley Road, Upper Darby, Pennsylvania. Upon his arrival at the scene of the accident,


                                                 1
l,




     Officer Mazzone observed a "fluid and scrape trail" leading from the scene to 139 Oakley Road

     (about 0.25 miles), where a Buick LeSabre was parked. The vehicle had damage matching that

     described by the witness, and the license plant number matched that given by dispatch.

             Officers Mazzone and Tarozzi attempted to make contact with the residents of 139

     Oakley Road and a male matching the witness's description answered the door. During

     conversation with the male, identified as Appellant, the officers observed the strong smell of

     alcohol on Appellant's breath. When asked who was operating the vehicle at the time the

     accident occurred, Appellant responded that he did not know. The witness from the accident

     scene was brought to 139 Oakley Road and identified Appellant as the individual operating the

     vehicle at the time of the accident. Appellant was then placed into custody for leaving the scene

     of an accident where an occupied vehicle was struck. Appellant was read verbatim the PennDOT

     DL-268(6-16) form, and asked to submit to a chemical blood test. Appellant refused the blood

     test and also refused to sign the form stating that he refused the test. Appellant was then brought

     to Upper Darby Police Headquarters where he was processed; it was then discovered that

     Appellant' s driver's license was suspended for DUI-related offenses.

     PROCEDURAL HISTORY:

             Appellant was arrested on July 12, 2016. Informations were filed by the Commonwealth

     on September 28, 2016, charging Appellant with: (1) DUI: General Impairment/Incapable of

     Driving Safely, Second Offense'; (2) Accident Involving Damage to an Attended Vehicle or

     Property"; (3) Not Yielding at a Roadway'; and (4)                 Driving with a Suspended




     1
       75 Pa. C. S. §380l(a)(1)
     2
       75 Pa. C. S. §3743(a)
     3
       75 Pa. C. S. §3324

                                                      2
License/Revocation Pursuant to Section 3802/1547(b)(1)4. Appellant entered into a negotiated

guilty plea with the Commonwealth to Counts One and Four on February 10, 2017.

           Appellant's sentence included incarceration time, fines, and restitution. The restitution

was to be paid to USAA Insurance in the amount of $22,222.24 and to the direct victim in the

amount of $962.53. (N. T. 2/10/17, p. 12). Appellant filed a timely Motion for Reconsideration of

Sentence, which was heard on March 17, 2017 and denied on the grounds that the restitution was

part of the negotiated guilty plea and not eligible for reconsideration of sentence in this context.

(N.T. 3/17/17, p. 9). Appellant was advised he could submit an appeal on the matter. (N.T.

3/17/17, pp 14-15). Appellant subsequently filed this timely appeal.

DISCUSSION:

           Appellant raises one sole issue in this appeal; Whether the restitution order is illegal

because an insurance company, the putative beneficiary of restitution here, is not a victim

pursuant to the Crime Victims Act.

           There are three inherent flaws in Appellant's argument: (1) 18 Pa. C. S. §1106 is

explicitly clear in the requirement that a court shall order a defendant to pay restitution to an

insurance company if that insurance company has compensated the victim of a crime for her

loss; (2) under 18 P. S. §11.701, to which Appellant's plea counsel cites during the hearing on

the Motion for Reconsideration of Sentence, the insurance company in question is a party

qualified to receive benefit; and (3) Appellant agreed to the terms of the restitution as he entered

into a negotiated guilty plea. (N.T. 3/17/17, pp. 16-17). ·

           The Pennsylvania Superior Court interpreted the language of 18 Pa. C. S. § 1106 in

Commonwealth v. Stradley, 50 A.3d 769 (Pa. Super. 2012). There, a defendant charged with the

same DUI charges to which Appellant pleaded guilty also entered into a negotiated guilty plea

4
    75 Pa. C. S. §1543(b)(l)

                                                   3
with the Commonwealth, the sentence for which included restitution. Id. at 770. The restitution

was in the amount of $7900.00, but the sentencing court did not specify the beneficiary. Id. In

response, the defendant filed a motion to vacate the restitution order, including exhibits from the

insurance company in the case showing that it had already paid the victim the $7900.00 to cover

her property damage incurred as a result of the accident. Id. The Superior Court remanded the

case to the sentencing court for it to enter a restitution award in favor of the insurance company,

holding that 18 Pa. C. S. §1106 unambiguously states that the court must order restitution to be

paid to an insurance company by a defendant in any amount that the insurance company has

already paid to the victim. Id at 774. The statutory language, as noted by the Court, is clear that

the sentencing court must order restitution in an amount to make the victim whole of her actual

loss, and this amount is not to be reduced by any amount paid to her by her insurance company;

instead, any amount paid by her insurance company is to be reimbursed to the company by the

defendant. Id. at 773. Further, the Court notes that a sentencing court has no discretion on the

matter; the statutory language requires restitution on these terms. Id. The Court did, however,

note that the insurance company in Stradley never requested the defendant compensate it; the

sentencing court was required to make defendant do so, but there was nothing in the statute to

prevent the insurance company from returning the funds paid to the defendant, and it could do so

if it wished. Id. at 774.

        The facts of Stradley are so similar to the instant case that parallels need not be drawn;

instead, Appellant can be substituted directly for the defendant in Stradley and the determination

will be the same. Under 18 Pa. C. S. § 1106, this Court had no discretion over how to order

Appellant to pay restitution, but instead was required to order Appellant to reimburse USAA




                                                 4
Insurance in the amount of $22,222.24. (N.T. 2/10/17, p. 12). The restitution order is not illegal
                                                                                      5
as Appellant claims, but is exactly aligned with the statute as written.

         During the hearing on the Motion for Reconsideration of Sentence, Appellant's counsel

conceded that the law firm about which they were speaking, and which represents the

aforementioned insurance company, is a subrogee of the victim in this case. (N.T. 3/17/17, p. 4).

Counsel argued that, under 18 P. S. § 11.701, such a subrogee is not a victim as the Crime

Victims Act would outline. (N.T. 3/17/17, p. 5). Specifically, counsel stated that "there is no

mention in [the statute] specifically that an insurance company is a named victim. A victim here

is a direct victim or an intervenor in a criminal case." (N.T. 3/17/17, p. 5). Counsel was partially

correct; the statute to which he referred does not directly name insurance companies as

beneficiaries under these circumstances, and direct victims and intervenors are listed as (a)(l)

and (2), respectively.6 However, subsection (a)(6) of the same lists as a person eligible for

compensation "any person who assumes the obligation .. .incurred as a direct result of the

crime.?" In the case sub Judice, the insurance company has assumed the obligation to pay the

direct victim for property losses suffered as a result of the crimes committed by Appellant.

Additionally, 18 Pa. C. S. § 1106 defines "victim" to include "any insurance company that has

compensated the victim for loss under an insurance contract.i"

         In Appellant's plea hearing, the Commonwealth outlined the terms. of the negotiated

guilty plea, including the restitution in two amounts, that which was to be paid to USAA

Insurance and that which was to be paid to the direct victim. (N.T. 2/10/17, p. 12). After the



518 Pa. C. S. § 1106( c )( 1 )(i) reads: " ... 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. (emphasis added).
6
  18 P. S. §11.701
7
  18 P. S. §ll.70l(a)(6)
8
  18 Pa. C. S. §l106(h)

                                                            5
Commonwealth went over the terms, plea counsel and Appellant both agreed that those are the

terms to which they agreed. (N.T. 2/10/17, p. 12). In Appellant's hearing on his Motion for

Reconsideration of Sentence, this Court confirmed with Appellant that he entered into a

negotiated plea agreement, and that at the time he entered into the agreement he understood the

terms, including the amount to be paid in restitution and to whom it was to be paid. (N.T.

3/17/17, p. 14). Appellant admitted, clearly, that he did enter into the agreement understanding

the terms. (N.T. 3/17/17, p. 14).

       The terms of the negotiated plea agreement are legal, and were entered into with full

understanding by Appellant.

CONCLUSION:

       · The Judgment of Sentence, including the order to pay restitution to USAA Insurance in

the amount of $22,222.24, is legal. This Court abided by the language of the statute 18 Pa. C. S.

§ 1106 and properly sentenced Appellant. The Judgment of Sentence should be affirmed.


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                                                     JAMES F. NILON, JR., J.




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