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                               2017 PA Super 2

COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                   v.                  :
                                       :
NORMA JEAN HOLMES,                     :          No. 305 MDA 2014
                                       :
                        Appellant      :


               Appeal from the Order Entered January 21, 2014,
                in the Court of Common Pleas of Fulton County
               Criminal Division at No. CP-29-CR-0000103-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.


OPINION IN SUPPORT OF REVERSAL BY FORD ELLIOTT, P.J.E.:

                                                 FILED JANUARY 04, 2017

     We agree that the trial court erred to the extent it ordered restitution

as a condition of appellant’s probation under Section 9754(c)(8) of the

Sentencing Code.     As explained in the Opinion in Support of Affirmance,

restitution cannot be imposed as both a condition of probation and as part of

a defendant’s sentence under Section 1106(a) of the Crimes Code.

Furthermore, the trial court did not determine appellant’s ability to pay as

required under Section 9754(c)(8).         However, we are constrained to

disagree that the victim’s parents were entitled to mandatory restitution

under Section 1106(a) for their son’s funeral expenses.

           Initially, we note that
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                  [i]n the context of criminal proceedings,
                  an order of restitution is not simply an
                  award of damages, but, rather, a
                  sentence. 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
                  sentencing.    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.

            Commonwealth v. Stradley, 50 A.3d 769, 771-72
            (Pa.Super. 2012) (citations and quotation marks
            omitted); see also id. (stating that because “[the
            appellant’s] claim on appeal challenges the legality
            of his sentence, its review is not abrogated by the
            entry of his guilty plea.”).

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013).

            Restitution is a creature of statute and, without
            express legislative direction, a court is powerless to
            direct a defendant to make restitution as part of his
            sentence. Commonwealth v. Harner, 533 Pa. 14,
            617 A.2d 702, 704 (1992). Where that statutory
            authority exists, however, the imposition of
            restitution is vested within the sound discretion of
            the sentencing judge. Commonwealth v. Keenan,
            853 A.2d 381, 383 (Pa.Super. 2004); see also id.
            (stating that “[t]he primary purpose of restitution is
            rehabilitation of the offender by impressing upon him
            that his criminal conduct caused the victim’s
            personal injury and that it is his responsibility to
            repair the injury as far as possible.”).

Id. “The court is required to specify the amount of restitution at sentencing,

but may modify its order at any time provided that it states its reasons for

any modification on the record.”    Commonwealth v. Solomon, 25 A.3d



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380, 389-390 (Pa.Super. 2011), appeal denied, 40 A.3d 1236 (Pa. 2012),

citing Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009).

           In the context of a criminal case, restitution may be
           imposed either as a direct sentence, 18 Pa.C.S.
           § 1106(a), or as a condition of probation, 42 Pa.C.S.
           § 9754. When imposed as a sentence, the injury to
           property or person for which restitution is ordered
           must directly result from the crime.              See
           18 Pa.C.S.A. § 1106(a); Harner, 533 Pa. at 21, 617
           A.2d at 704. However, when restitution is ordered
           as a condition of probation, the sentencing court is
           accorded the latitude to fashion probationary
           conditions designed to rehabilitate the defendant and
           provide some measure of redress to the victim.
           Harner, 533 Pa. at 21-22, 617 A.2d at 706. As this
           Court stated in Harner:

                 Such sentences are encouraged and give
                 the trial court the flexibility to determine
                 all the direct and indirect damages
                 caused by a defendant and then permit
                 the court to order restitution so that the
                 defendant       will    understand       the
                 egregiousness of his conduct, be
                 deterred from repeating this conduct,
                 and be encouraged to live in a
                 responsible way.

           Harner, 533 Pa. at 22, 617 A.2d at 707; see also
           Commonwealth v. Walton, 483 Pa. 588, 599, 397
           A.2d 1179, 1185 (1979). Thus, the requirement of a
           nexus between the damage and the offense is
           relaxed where restitution is ordered as a condition of
           probation. See Harner, 533 Pa. at 22-23 & n. 3,
           617 A.2d at 707 & n. 3; see also 42 Pa.C.S.
           § 9754(c)(8).

In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).

      The Crimes Code, 18 Pa.C.S.A. § 1106, provides, in relevant part, as

follows:


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          (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.

          (b) Condition of probation or parole.--Whenever
          restitution has been ordered pursuant to subsection
          (a) and the offender has been placed on probation or
          parole, his compliance with such order may be made
          a condition of such probation or parole.

          (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


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                   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:

                      (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



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                    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.

          (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.

          “Injury to property.” Loss of real or personal
          property, including negotiable instruments, or
          decrease in its value, directly resulting from the
          crime.

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

          “Personal injury.” Actual bodily harm, including
          pregnancy, directly resulting from the crime.

          “Property.”      Any real or personal property,
          including currency and negotiable instruments, of the
          victim.



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             “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.[Footnote 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.

                   [Footnote 1] 71 P.S. § 180-9.1.

18 Pa.C.S.A. § 1106(a)-(c), (h) (emphasis added).

      What is abundantly clear from a literal reading of Section 1106 is that

the victim, for purposes of mandatory restitution, is the person who suffered

the injury to property or personal bodily injury as a direct result of the

offender’s actions.    Under this reading, the parents in this case are not

entitled to restitution.

      The issue created by this case and the reason for this court’s en banc

review is whether, under the Section 1106(h) definition of “victim,” the

phrase “[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,” broadens the

definition of victim to include one who is not a direct victim of the offender’s

conduct.

      Section 479.1 of the Administrative Code of 1929, 71 P.S. § 180-9.1,

was repealed by the Act of November 24, 1998, P.L. 882, No. 111 (Act 111),

§ 5103, effective immediately.    The statutory notes to Section 180-9.1 of


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the Administrative Code indicate, “For subject matter of the repealed

sections, see now, 18 P.S. § 11.101 et seq.” 18 P.S. § 11.101 et seq. is

the current codification of the Crimes Victims Act (“CVA”), which defines

“victim” as follows:

            “Victim.” The term means the following:

                   (1) A direct victim.

                   (2) A parent or legal guardian of a child who is
                   a direct victim, except when the parent or legal
                   guardian of the child is the alleged offender.

                   (3) A minor child who is a material witness to
                   any of the following crimes and offenses under
                   18 Pa.C.S. (relating to crimes and offenses)
                   committed or attempted against a member of
                   the child’s family:

                         Chapter 25 (relating to criminal
                         homicide).

                         Section 2702 (relating to aggravated
                         assault).

                         Section 3121 (relating to rape).

                   (4) A family member of a homicide victim,
                   including    stepbrothers    or    stepsisters,
                   stepchildren, stepparents or a fiance, one of
                   whom is to be identified to receive
                   communication as provided for in this act,
                   except where the family member is the alleged
                   offender.

18 P.S. § 11.103.         Consistent with Section 1106, the CVA defines

“direct victim,” in pertinent part, as follows:

            “Direct victim.” An individual against whom a
            crime has been committed or attempted and who as


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            a direct result of the criminal act or attempt suffers
            physical or mental injury, death or the loss of
            earnings under this act. The term shall not include
            the alleged offender.

18 P.S. § 11.103.

      Clearly, under the CVA, a parent may be compensated as a

“family member” or as the parent/legal guardian of a minor child in a

representative capacity.    The intent of the CVA is to compensate family

members for their loss relative to their relationship to the direct victim. 1

      Admittedly, some confusion has occurred because 18 Pa.C.S.A. § 1106

specifically references Section 479.1 of the Administrative Code of 1929,

which is the former codification of the CVA.2       We addressed this issue in



1
  Unfortunately, as explained by Ms. Kerlin from the Office of Victims’
Services, Bryan’s parents would not be entitled to compensation because of
his criminal conduct in driving a vehicle while intoxicated. If Bryan had been
a passenger, rather than the driver, his parents would be entitled to
compensation for funeral expenses under the CVA.
2
  Similarly, the Sentencing Code, 42 Pa.C.S.A. § 9721, references the
Administrative Code:

            (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 his criminal conduct for the damage or
            injury that he sustained.       For purposes of this
            subsection, the term “victim” shall be 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.

42 Pa.C.S.A. § 9721(c) (footnote omitted).        Section 5103 of Act 111
repealed, inter alia, Section 479.1 of the Administrative Code of 1929.


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Commonwealth v. Opperman, 780 A.2d 714 (Pa.Super. 2001), appeal

denied, 792 A.2d 1253 (Pa. 2001). In Opperman, the appellant pled guilty

to driving under the influence (“DUI”) and homicide by vehicle while DUI.

State Farm Mutual Automobile Insurance Company (“State Farm”) sought

restitution for the $45,000 it paid pursuant to the wrongful death and

survival actions, alleging that it was one of the appellant’s victims under

18 Pa.C.S.A. § 1106(h), which defines victim to include “any insurance

company that has compensated the victim for loss under an insurance

contract.”   Id. at 717.    Prior to the entry of the appellant’s guilty plea,

State Farm entered into a release with the victim’s parents whereby

State Farm agreed to pay the uninsured limits of three separate automobile

insurance policies held by the victim’s mother. Id. The persons who were

to receive payments included the victim’s parents and various attorneys.

Id.   The appellant argued that the proceeds by State Farm were direct

payments to third parties, not the victim, pursuant to the insurance

contracts held by the victim’s mother.

      This court agreed that the trial court erred in ordering the appellant to

pay restitution to State Farm for the wrongful death action, because the

definition of “victim” under Section 1106 was repealed by the legislature and

no longer includes parents as provided for under the CVA:

             As our decision is driven by the definition of a victim,
             we are compelled to discuss the application of The
             Administrative Code, supra as both 42 Pa.C.S.A.
             § 9721(c) and 18 Pa.C.S.A. § 1106(h) reference it.


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           As we have previously indicated, the references to
           The Administrative Code were accompanied by
           footnotes, which refer the reader to 71 P.S.
           § 180-9.1.       This section, which contains The
           Administrative Code § 479.1, defines victim as “a
           person against whom a crime is being or has been
           perpetrated or attempted.” However, this section
           was repealed on November 24, 1998, effective
           immediately. 1998, Nov. 24, P.L. 882, No. 111,
           § 5103, imd. effective. While we are cognizant of
           the fact that the subject matter of 71 P.S. 180-9.0
           through 9.11 is now contained in the Crime Victims
           Act, 18 P.S. § 11.101 et seq., this statute does not
           formally adopt, subsume or recodify the subject
           matter.    It is also persuasive that 18 Pa.C.S.A.
           § 1106 was amended on December 3, 1998
           subsequent to the repeal of 71 P.S. 180-9.1 and yet
           continued to incorporate the definition of victim as
           found in the Administrative Code of 1929. It would
           appear that since 18 Pa.C.S.A. § 1106 was amended
           after the effective date of the Crimes Victims Act and
           the repeal of the 71 P.S. § 180-9-9.11, the
           legislature had the opportunity to include the
           definition of victim as contained in the Crime Victims
           Act, if they so chose. Having not done so, we are
           constrained to find that the definition of victim as
           provided for in The Administrative Code of 1929 no
           longer    exists as      the   most recent statute
           incorporating that definition has been abolished. As
           a result, our review of this case is limited to the
           definition of victim as it [is] set forth in the Crimes
           Code and the Sentencing Code.

Opperman, 780 A.2d at 718-719.       This court concluded that the victim’s

parents were not “victims” entitled to restitution under 18 Pa.C.S.A. § 1106

and 42 Pa.C.S.A. § 9721:

           While reality dictates that the victim’s parents were,
           in fact, victimized when their son was killed by
           Appellant’s criminal act, they are not victims as
           provided for by our legislature in the Crimes and
           Sentencing Codes. Furthermore, while the Crimes


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            Code does allow for an insurance company to be
            considered a victim, this is only so when it provides
            reimbursement to the victim as a result of the
            perpetrator’s     conduct.           18     Pa.C.S.A.
            § 1106(c)(1)(ii)(D).

Id. at 719-720.

            [I]n the case sub judice, the insurance company
            paid damages pursuant to insurance contracts held
            by the victim’s mother for damages she and her
            husband sustained as a result of the victim’s death.
            The contract was not with the victim himself. Nor
            are the parents’ damages awarded through the
            estate, but they are their own damages as a result of
            their son’s death. Thus, we agree with Appellant’s
            assertion that the monies State Farm attempts to
            collect from him were actually tendered to third
            parties not contemplated by the definition of victim
            in 18 Pa.C.S.A. § 1106 nor 42 Pa.C.S.A. [§] 9721.
            Accordingly, it was an error for the trial court to
            order Appellant to pay restitution to State Farm.

Id.   at   720   (emphasis   in   original)    (footnote   omitted).   Compare

Commonwealth v. Solomon, 25 A.3d 380, 390-391 (Pa.Super. 2011),

appeal denied, 40 A.3d 1236 (Pa. 2012) (trial court did not err in ordering

defendant to pay restitution under Section 1106 to the complainant rather

than the treating hospital to which the money was owed; “restitution is not

meant to be a reimbursement system to third parties but rather a

compensation system to ‘victims’ as that term is defined by the statute”),

quoting Keenan, 853 A.2d at 384.

      Following Opperman’s lead, in Commonwealth v. Langston, 904

A.2d 917 (Pa.Super. 2006), this court determined that the CVA and

18 Pa.C.S.A. § 1106 are separate and distinct statutes, with different


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definitions of who qualifies as a “victim.”   In Langston, the defendant’s

pick-up truck crossed the center line and struck Glenn Clark’s vehicle

head-on, killing him and injuring his wife, Annette Clark. The defendant pled

guilty to homicide by vehicle, recklessly endangering another person, and

summary offenses. Id. at 919. At the time of the accident, Mrs. Clark was

pregnant.   Id.   She gave birth to a healthy son, Michael Clark, while in a

persistent vegetative state.   Id.   As part of her sentence, the trial court

ordered the defendant to pay restitution in the amount of $20,000 to the

Crime Victim’s Compensation Fund (“the Fund”) for money it paid out to

Michael Clark’s guardians, to be held in trust for Michael Clark. Id. at 920.

Under 18 Pa.C.S.A. § 1106(h), the Fund may be substituted as the “victim”

to receive mandatory restitution where compensation has been paid by

the Fund to the victim as defined by Section 1106. Id. at 922-923.

      This court in Langston concluded that while Michael Clark was a

“claimant” entitled to loss of support under Section 11.103 of the CVA

(family member of a homicide victim), he was not a “direct victim” of the

crime entitled to restitution under 18 Pa.C.S.A. § 1106.       There was no

evidence that Michael Clark sustained any physical injuries as a result of the

defendant’s conduct. Id. at 923. After analyzing Opperman, this court in

Langston decided that Michael Clark was not a “direct victim” of the crime

entitled to restitution under 18 Pa.C.S.A. § 1106:

            Similarly, here, although Michael Clark has been
            undoubtedly “victimized” by appellant in the tragic


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            loss of his parents, he is not a victim for restitution
            purposes as provided by statute. The mandatory
            payment of restitution pursuant to Section 1106 of
            the Crimes Code is limited to the direct victim and
            not to third parties, including family members, who
            shoulder the burden of the victim’s losses. Keenan,
            supra at 384, citing Commonwealth v. Balisteri,
            329 Pa.Super. 148, 478 A.2d 5, 10 (1984);
            Opperman, supra.

Langston, 904 A.2d at 924. Since the Fund did not make any payments to

the direct victims of the defendant’s crimes, the defendant could not be

required to reimburse the Fund under 18 Pa.C.S.A. § 1106(c)(1)(i).         The

CVA and Section 1106 have different definitions of who qualifies as a

“victim”; a “claimant” for purposes of the CVA is not necessarily a “victim” of

the crime entitled to mandatory restitution under Section 1106. Id. at 925.

      Langston’s discussion of who is a “victim” under the CVA and

Section 1106 was cited favorably by the Pennsylvania Supreme Court in the

recent case of Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013). In Hall,

the court considered whether the trial court could order the defendant to pay

child support for the victim’s children, as a condition of his probation under

42 Pa.C.S.A. § 9754.     Section 9754 does not expressly authorize future

financial support to a homicide victim’s surviving minor children, nor would

the victim’s children be considered “direct victims” of the crime under

Section 1106 of the Crimes Code.

            Nevertheless, both the dissent below and the
            Commonwealth advert to the Crime Victims Act,
            noting that the definition of victim in that statute is
            much broader than the definition of victim in


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          Section 1106, and specifically embraces the child or
          children of a homicide victim. 18 P.S. § 11.103.
          This is true so far as it goes, but the statute
          obviously is of tangential relevance at best. The
          Crime Victims Act provides a scheme for protecting
          victims’ rights and establishing remedies, such as
          compensation from various funds.            However,
          compensation under the Act is made on the basis of
          claims filed by individual victims of crimes and
          determined by the Office of Victims’ Services, 18 P.S.
          §§    11.702,    11.704,     rather   than    through
          court-ordered restitution by the defendant, although
          the amount of victim compensation under the Act
          may be reduced by amounts separately paid by the
          defendant as restitution. 18 P.S. §§ 11.707(e)(1),
          11.1302. Accord Langston, supra (holding that
          court-ordered restitution was not supportable
          by     fact    that     victim’s    son     was      a
          “victim/claimant” for purposes of Crime
          Victims Act; reasoning that Section 1106 and
          Crime Victims Act are two separate and distinct
          statutes, with different purposes and differing
          definitions of who qualifies as “victim,” and are
          not interchangeable for purposes of defining
          proper recipients of restitution).[Footnote 5]

               [Footnote 5] We are not persuaded by
               the Commonwealth’s suggestion that the
               Crime Victims Act specifically authorizes
               the Section 9754 restitution in this case
               based on the Act’s broad definition of the
               term “victim.” In making this argument,
               the Commonwealth notes that the
               Superior      Court’s      decision      in
               [Commonwealth v. Lebarre, 961 A.2d
               176 (Pa.Super. 2008)], which approved
               Section 1106 restitution for the benefit of
               a deceased victim’s child, is at odds with
               the en banc court’s decision in this case.
               In Lebarre, the three judge panel
               concluded that the definition of “victim”
               in the Crime Victims Act applies to
               Section 1106 restitution, through a
               general cross-reference to a repealed


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                     Administrative    Code      provision    in
                     18 Pa.C.S. § 1106(h) (defining “victim”
                     for purposes of restitution by referring to
                     section 479.1 of Administrative Code of
                     1929, 71 P.S. § 180–9.1). 961 A.2d at
                     179 n. 9.       The repealed provision
                     indicates generally that its subject
                     matter, “which related to rights of and
                     services for crime victims,” is now
                     located in the Crime Victims Act, 18 P.S.
                     § 11.101 et seq. 71 P.S. § 180-9.1.

             To properly decide this case, we need not resolve the
             question of the interplay, if any, between the Crime
             Victims Act and Section 1106 of the Crimes Code.
             As we have already determined, the plain meaning of
             Section 9754, which is actually at issue here, allows
             for a broader range of “victims” for purposes of
             fashioning probationary conditions.

Hall, 80 A.3d at 1214 (emphasis added). Whether considered as dicta or

an integral part of its rationale, the Pennsylvania Supreme Court clearly

recognized    with    approval    Langston’s    analysis   that    the   CVA   and

Section 1106 are not interchangeable for purposes of determining who

qualifies as a “victim,” but are separate and distinct statutes with different

underlying purposes and legislative rationales.       Ultimately, the Hall court

determined that the trial court’s award of $200/month of child support was

speculative and not supported by the record. Id. at 1216-1217.

      As this court observed in Opperman, the legislature had the

opportunity to include the definition of “victim” as contained in the CVA, if it

so chose, when it amended Section 1106 on December 3, 1998, subsequent

to the repeal of 71 P.S. § 180-9.1.         Opperman, 780 A.2d at 718-719.



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Section 1106 was amended again on November 30, 2004, after this court’s

decision in Opperman. 2004, Nov. 30, P.L. 1618, No. 207, § 3, effective in

60 days (January 31, 2005).      The legislature continued to incorporate the

definition of “victim” as found in the Administrative Code of 1929.        “The

failure of the General Assembly to change the law which has been

interpreted by the courts creates a presumption that the interpretation was

in accordance with the legislative intent; otherwise the General Assembly

would have changed the law in a subsequent amendment.”              Kenney v.

Jeanes Hosp., 769 A.2d 492, 497 (Pa.Super. 2001), appeal denied, 786

A.2d 988 (Pa. 2001), quoting Fonner v. Shandon, Inc., 724 A.2d 903, 906

(Pa. 1999).

      We reaffirm our holdings in Opperman and Langston that mandatory

restitution under 18 Pa.C.S.A. § 1106 is limited to the direct victim and not

third parties, including family members.      Further, Section 1106(a) of the

Crimes Code and the CVA, 18 P.S. § 11.103, must be read together, in

pari materia, to give effect to the different purposes of the two statutes.

In re Trust Under Deed of Kulig, 131 A.3d 494, 497 (Pa.Super. 2015)

(“Statutory provisions relating to the same subject must be read in

pari materia.”) (citations omitted); Casiano v. Casiano, 815 A.2d 638,

642 (Pa.Super. 2002), appeal denied, 829 A.2d 1156 (Pa. 2003) (“statutes

or parts of statutes that relate to the same persons or things or to the same

class of persons or things are to be construed together, if possible”) (citation



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omitted); In re Peplinski's Estate, 39 A.2d 271, 275 (Pa.Super. 1944)

(“Statutes are to be construed in connection and in harmony with the

existing law, and as a part of a general and uniform system of

jurisprudence.”) (citations and quotation marks omitted).                 “Moreover,

individual provisions of a statute should not be read in the abstract, but

must be construed with a view to its place in the entire legislative structure

of the [statute].” Casiano, 815 A.2d at 642 (quotation marks and citation

omitted).

      This   interpretation   is   completely   consistent   with   the    statutory

framework of both Section 1106 and the CVA. Both Section 1106 and the

CVA consistently define direct victim as the person directly injured by the

offender’s actions.   While the facts of this case are tragic and Joseph and

Laura Nave undoubtedly have suffered a grave loss and been victimized by

appellant’s actions, they are not victims as provided for by our legislature in

the Crimes and Sentencing Codes. As such, we are constrained to conclude

that the trial court erred, as a matter of law, when it ordered appellant to

pay restitution to the victim’s parents as part of her sentence under

18 Pa.C.S.A. § 1106.     This resulted in an illegal sentence.        Nor are we

inclined to unnecessarily broaden the legislature’s clear definition of a victim

entitled to restitution under 18 Pa.C.S.A. § 1106.

      Since we determine that the victim’s parents were not themselves

“victims” for purposes of 18 Pa.C.S.A. § 1106, it is unnecessary to address



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appellant’s argument that the victim’s death was not directly caused by her

criminal actions.    In addition, it is unnecessary to address appellant’s

argument that the trial court should have apportioned damages, as she was

not the sole cause of the accident.

      We also observe that appellant was sentenced to two years’ probation

on November 6, 2012. Appellant’s probationary term should have expired

on or about November 6, 2014.           When appellant’s probationary period

expired, the trial court lost the authority to impose conditions of probation,

including restitution.   Commonwealth v. Karth, 994 A.2d 606, 610

(Pa.Super. 2010) (“Once the term of probation expires, so, too, must any

conditions attached thereto.”). As there is no indication that appellant is still

serving her sentence, remand would be pointless. Cf. Commonwealth v.

Popow, 844 A.2d 13, 20 (Pa.Super. 2004) (vacating the judgment of

sentence and remanding for resentencing where the trial court improperly

ordered restitution as part of the appellant’s sentence under 18 Pa.C.S.A.

§ 1106(a), but restitution could be ordered as a condition of probation under

42 Pa.C.S.A. § 9754(c)(8)).

      For these reasons, we would reverse the order of January 21, 2014,

denying appellant’s motion for reconsideration, and vacate that part of

appellant’s sentence ordering restitution in the amount of $12,794.50 to the

victim’s parents, Joseph and Laura Nave.




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        Bender, P.J.E., Lazarus and Ott, JJ. join this Opinion in Support of

Reversal.

        Mundy, J. did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2017




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