J-S28024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SCOTT DOUGLAS KOENIG,

                            Appellant               No. 1612 MDA 2014


       Appeal from the Judgment of Sentence entered March 25, 2014,
               in the Court of Common Pleas of Centre County,
            Criminal Division, at No(s): CP-14-CR-0001319-2013



BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED MAY 14, 2015

       Scott Douglas Koenig (“Appellant”) appeals from the judgment of

sentence imposed after he pled guilty to harassment.1 We affirm.

       The trial court summarized the pertinent facts and procedural history

as follows:

             On July 22, 2013, a Criminal Complaint was filed against
       [Appellant] charging him with Count 1, Aggravated Assault, a
       felony of the first degree and violation of 18 Pa.C.S.A. §
       2702(a)(1), Count 2, Simple Assault, a misdemeanor of the
       second degree and a violation of 18 Pa.C.S.A. § 2701(a)(1), and
       Count 3, Harassment, a summary offense and a violation of 18
       Pa.C.S.A. § 2709(a)(1). The charges filed against [Appellant]
       stem from a July 14, 2013 altercation outside of a bar.
       [Appellant] and Mr. Kenneth Laich engaged in a heated
       discussion that eventually led to [Appellant] threatening to harm
       Mr. Laich if he continued to engage in certain conduct. The
____________________________________________


1
    18 Pa.C.S.A. § 2709(a)(1).
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      testimony at oral argument was conflicting as to who threw the
      first punch during the ensuing altercation, however, it is clear
      that [Appellant] walked away from the fight while Mr. Laich was
      left on the ground bleeding from his nose and mouth.

Trial Court Opinion, 8/29/14, at 1-2.

      On December 9, 2013, [Appellant] pled guilty to Count 3, Harassment,

and the remaining charges against him were nol prossed.         On March 25,

2014, the trial court sentenced Appellant to pay a fine of $75.00 and

restitution in the amount of $28,089.07.     Appellant filed a post-sentence

motion on April 3, 2014, and the trial court convened a hearing on August

28, 2014.   By opinion and order dated August 29, 2014, the trial court

denied Appellant’s post-sentence motion. Appellant filed a timely notice of

appeal on September 22, 2014.       Both Appellant and the trial court have

complied with Pa.R.A.P 1925.

      Appellant presents the following issues for our review:


      1. WHETHER APPELLANT, SCOTT D. KOENIG’S GUILTY PLEA TO
         ONE COUNT OF 18 Pa.C.S.A. § 2709(A) (HARASSMENT) WAS
         NOT VOLUNTARILY, KNOWINGLY, UNDERSTANDABLY, OR
         INTELLIGENTLY ENTERED IN THE ABSENCE OF AN ORAL OR
         WRITTEN COLLOQUY SUCH THAT HE SHOULD BE PERMITTED
         TO WITHDRAW HIS GUILTY PLEA?

      2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         IMPOSING A REQUIREMENT THAT APPELLANT, SCOTT D.
         KOENIG PHYSICALLY STRIKE SUPERFLUOUS LANGUAGE
         FROM THE CONTENT OF THE CRIMINAL INFORMATION TO
         WHICH HE PLED GUILTY AS A PRECONDITION TO
         CHALLENGING RESTITUTION?

      3. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
         THE TRIAL COURT’S AWARD OF RESTITUTION IN THE
         AMOUNT OF TWENTY EIGHT THOUSAND EIGHTY-NINE
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         ($28,089.07) AND 07/100 DOLLARS SINCE A DIRECT NEXUS
         BETWEEN THE CRIMINAL CONDUCT FOR WHICH [APPELLANT]
         WAS SENTENCED AND THE LOSS OR INJURY FOR WHICH
         RESTITUTION WAS ORDERED WAS NOT ESTABLISHED OF
         RECORD?

Appellant’s Brief at 5.

      In his first issue, Appellant argues that his guilty plea was invalid.

Appellant’s Brief at 14-18. Specifically, Appellant asserts that the trial court

never conducted a guilty plea colloquy. Id. He thus maintains that his plea

was not tendered knowingly, intelligently and voluntarily, and that he should

have been permitted to withdraw his plea.

      Before we address the merits of this claim, we must determine

whether Appellant has preserved it for appellate review. “Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). Moreover, “[a] party cannot rectify the failure to

preserve an issue by proffering it in response to a Rule 1925(b) order.”

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). Where

the appellant fails to preserve his challenge to the validity of the guilty plea

by objecting at the sentencing colloquy or otherwise raising the issue at the

sentencing hearing or through a post-sentence motion, the claim is waived.

Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002).

      Here, Appellant failed to file a post-sentence motion seeking to

withdraw his guilty plea and did not otherwise seek to withdraw his plea

either at the sentencing hearing or the hearing on his post-sentence motion.


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Rather, for the first time on appeal, Appellant argues that his guilty plea was

invalid, and seeks to withdraw it.       Because Appellant has not properly

preserved this challenge to the validity of his plea, it is waived.

      Appellant’s second and third issues are interrelated. Appellant argues

that the trial court erred by ordering him to pay restitution of $28,089.07

representing the cost of the victim’s medical expenses incurred as a result of

his injuries. “In 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).             “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.

Where that statutory authority exists, however, the imposition of restitution

is   vested   within   the   sound   discretion   of   the   sentencing   judge.”

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

      Appellant initially contends that the Commonwealth failed to establish

the requisite elements of the crime of harassment pursuant to 18 Pa.C.S.A.

§ 2709(a)(1), to show a causal link between Appellant’s crime and the


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victim’s injuries, which would entitle the victim to $28,089.07 in restitution.

See e.g., Appellant’s Brief at 24. “When restitution is imposed as part of

the defendant's sentence, a direct causal connection between the damage to

person or property and the crime must exist.”      Commonwealth v. Nuse,

976 A.2d 1191, 1193 (Pa. Super. 2009); see also Commonwealth v.

Pleger, 934 A.2d 715, 720 (Pa. Super. 2007) (“The court must also ensure

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

restitution[;] [i]n that way, the record will support the sentence”).

      Appellant was convicted of harassment, which is defined in 18

Pa.C.S.A. § 2709(a)(1) as follows:


      (a)   Offense defined.--A person commits the crime of
            harassment when, with intent to harass, annoy or alarm
            another, the person:

      (1)   strikes, shoves, kicks or otherwise subjects the other
            person to physical contact, or attempts or threatens to do
            the same ...

(emphasis added).

      Appellant asserts that when he entered his plea of guilty to

harassment, he plead only to threatening to harm the victim, but did not

plead guilty to striking, shoving or kicking the victim, because any such

actions in striking or shoving the victim were made in self-defense.

Appellant’s Brief at 25.   Therefore, Appellant argues that because he only

pled guilty to threatening the victim, he is not required to pay restitution of




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$28,089.07 for injuries sustained when he struck and injured the victim in

justifiable self-defense.

      Our review of the record reveals that at the guilty plea hearing, the

parties set forth on the record the factual basis for the plea, and discussed

potential restitution as follows:

      Appellant’s Counsel:     On July 14, 2013, [Appellant] and Mr.
                               [Laich] were outside the Amvets in
                               Philipsburg.    It was a Sunday about
                               5:30. These two gentlemen knew each
                               other.    The subject of their heated
                               discussion was a man who had
                               contracted Scarlet Fever in Philipsburg in
                               the early seventies and had irreversible
                               brain damage. He was a slow man out in
                               Philipsburg. [Appellant] was offering him
                               employment with the summer turnover
                               in State College, with an electrical
                               company and some subcontractors. ...
                               Two men in Philipsburg who knew the
                               gentleman got into a bet and tried to get
                               this man who is slow intoxicated to the
                               point where he would not show up for
                               work, and they were betting over
                               whether he would lose his job, so it was
                               some really depraved and nefarious
                               activity on behalf of Mr. [Laich] and the
                               other individual, and [Appellant] was the
                               one responsible for bringing Jimmy over
                               and giving him some employment so he
                               could feel some sort of self-worth and
                               make some money.            They had a
                               conversation, [with Appellant] saying,
                               “Mr. [Laich] don’t bet and don’t give him
                               alcohol, specifically Jack Daniels, before
                               I’m trying to take him to work the next
                               day, and don’t bet on him losing his job.
                               It’s depraved.”




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                               They had some words exchanged. We
                               suggest that Mr. [Laich] threw the first
                               punch. Punches were thrown. It was a
                               harassment.        ...      There’s some
                               restitution. Currently it’s $1,400 due.
                               We’re willing to pay that, but it’s still
                               outstanding. We don’t have the final
                               medical bills in yet, so we’d like to offer a
                               summary plea to harassment. ... We
                               think it’s fair and in the interest of
                               justice. If you sentence him in February,
                               after we have had a chance to review all
                               of his medical records, and we may, if
                               they’re too high, reserve the right to
                               have some restitution hearing, but we do
                               want to enter the summary harassment
                               plea today.

Assistant District Attorney:   The only thing, to qualify some of the
                               stuff that [Appellant] said, is we are not
                               stipulating to the background that
                               [Appellant’s] counsel said, but the
                               specific facts at issue – there was a fight
                               outside of Amvets in which the victim
                               suffered a broken jaw. He had his mouth
                               wired shut.

                               With respect to restitution ... the only
                               definite figure that the Commonwealth
                               has     is  the    Victim     Compensation
                               Assistance Program paid around $1,400
                               out to medical providers, but ...
                               additional restitution is to be owed. It is
                               just a matter of getting those figures
                               finalized with respect to the Victims
                               Compensation Assistance Program and
                               the hospital.

N.T., 12/9/13, at 3-5. Accordingly, the record reflects that at the guilty plea

hearing, the factual basis of the plea established that Appellant engaged in a

physical altercation with the victim, in which “punches were thrown.” Id.


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        The trial court convened a sentencing hearing on March 25, 2014, at

which the parties informed the trial court that the total amount of restitution

claimed by the victim was $28,089.07, and that Appellant was objecting to

that figure and requesting a restitution hearing. N.T., 3/25/14, at 3. That

same day, the trial court, at Appellant’s request, ordered Appellant to pay

$28,089.07,      and   scheduled      a   subsequent   post-sentence   hearing   on

Appellant’s challenge to the restitution amount.

        In his post-sentence motion challenging the restitution amount, and at

the August 28, 2014 post-sentence hearing, Appellant for the first time

asserted that he had pled guilty only to threatening the victim, and that he

did not accept guilt for striking or shoving the victim because those actions

were made in self-defense. Post-Sentence Motion, 4/3/14; N.T., 8/28/14, at

4-5.2    Appellant maintained that he was not responsible for restitution for

the medical costs incurred as a result of the victim’s injuries, given that he

did not plead guilty to physically injuring the victim, but only to threatening

him. Id. The Commonwealth objected, countering that “there is nothing in

the record to support [Appellant’s] argument that he pled only to

threatening [the victim].” N.T., 8/28/14, at 6.
____________________________________________


2
  Notably, at the sentencing hearing and the hearing on the post-sentence
motion, while Appellant asserted that the sentence of restitution was
improper because he did not plead guilty to harming the victim, Appellant
did not seek to withdraw his plea on the basis that his plea was not knowing,
voluntary and intelligently entered because he intended only to plead guilty
to threatening the victim.


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      Upon review, we agree with the Commonwealth that the record does

not support Appellant’s argument that he only pled guilty to threatening the

victim. At the guilty plea hearing, both Appellant and the Commonwealth in

their stipulated facts, acknowledged that Appellant and the victim engaged

in a physical altercation in which “punches were thrown.” N.T., 12/9/13, at

4. Moreover, as the trial court explained in its Pa.R.A.P. 1925 opinion:

      Count 3 of the Criminal Information to which [Appellant] pled
      guilty states, “did with intent to harass, annoy or alarm another
      person, strike, shove, kick or otherwise subject him to physical
      contact, or attempt or threaten to do the same, to-wit, Kenneth
      Laich.” Consistent with the language of § 2709(a)(1), Count 3
      does not separate the crime of threatening to harm another
      person and actually striking, shoving, or kicking that person.
      Furthermore, the word “threaten” does not in any way modify
      those verbs which appear before it in the statute.

             On December 9, 2013, when [Appellant] signed his guilty
      plea, he did not strike out any language of Count 3 to indicate he
      was only pleading to a threat to harm, nor was any mention of
      such an intention made at the guilty plea hearing. Rather,
      [Appellant] indicated his willingness to pay the restitution known
      at that time, around $1,400.00, when he entered his plea. It
      was only after [Appellant] was aware of the full extent of the
      restitution owed that he began to argue he only pled guilty to a
      threat of harm rather than any actual harm inflicted. Based
      upon the clear language of § 2709(a)(1), the language in Count
      3 of the Criminal Information, and no demonstration of an intent
      by [Appellant] to plead guilty to a mere threat of harm, [the trial
      court] finds that a direct nexus does exist between the crime to
      which [Appellant] pled guilty and the injuries suffered by Mr.
      Laich for which the restitution was ordered.         As such, the
      Restitution ordered on March 25, 2014 was legal and proper
      under 18 Pa.C.S.A § 1106(a).

Trial Court Opinion, 8/29/14, at 2-3 (emphasis in original) (citation to notes

of testimony omitted).


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      Our review of the record confirms that at the guilty plea hearing,

Appellant admitted to a physical altercation with the victim in which

“punches were thrown”. N.T., 12/9/13, at 4. We therefore agree with the

trial court’s determination that Appellant did not plead guilty only to

threatening the victim, and that a causal nexus between Appellant’s criminal

actions and the victim’s injuries was established.

      While Appellant argues that it was not his burden to alter or amend

the criminal information to state only that he threatened the victim, it is not

the language of the criminal information alone which establishes that

Appellant pled guilty to punching the victim; rather, the record as a whole,

including the recitation of facts at the guilty plea hearing, reflect that

Appellant did not plead guilty only to threatening the victim.

      Appellant also argues that the trial court’s award of restitution was

improper because the specific amount of the medical costs incurred by the

victim resulting was not sufficiently established to support restitution in the

amount of $28,089.07. Appellant’s Brief at 25-27. Appellant contends that

the medical bills submitted by the victim were deficient, and that the

Commonwealth presented no expert testimony to demonstrate that medical

bills actually represented the injuries caused by Appellant. Id. Accordingly,

Appellant asserts that the restitution amount of $28,089.07 was based on

unsupported speculation, that it was excessive, and that because the

Commonwealth failed to provide the trial court with sufficient evidence to


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determine the victim’s medical costs with any certainty, the sentence of

restitution should be vacated. Id.

      18 Pa.C.S.A. § 1106 authorizes sentences of restitution “for any crime

... wherein the victim suffered personal injury directly resulting from the

crime.” “[R]estitution can be permitted under 18 Pa.C.S. § 1106 only as to

losses for which the defendant has been held criminally accountable.”

Commonwealth v. Harner, 617 A.2d 702, 705 (Pa. 1992).                      “The

imposition of ... restitution [is] not considered punishment. [R]estitution [is]

designed to have the defendant make the government and the victim whole.

Restitution compensates the victim for his loss and rehabilitates the

defendant by impressing upon him that his criminal conduct caused the

victim’s loss and he is responsible to repair that loss.” Commonwealth v.

Wall, 867 A.2d 578, 582 (Pa. Super. 2005).          “Although it is mandatory

under section 1106(c) to award full restitution, it is still necessary that the

amount of the ‘full restitution’ be determined under the adversarial system

with considerations of due process.”    Commonwealth v. Ortiz, 854 A.2d

1280, 1282 (Pa. Super. 2004) (explaining that the defendant may challenge

the accuracy of the bills and has the right to bring in his own expert to

assess whether the amount should be less).

      The Crimes Code provides that “[a]ny insurance company which has

provided reimbursement to the victim as a result of the defendant's criminal




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conduct” is entitled to restitution. 18 Pa.C.S.A. § 1106(c)(1)(ii)(D).        In

Pleger, supra, we explained:


     Although restitution does not seek, by its essential nature, the
     compensation of the victim, the dollar value of the injury
     suffered by the victim as a result of the crime assists the court in
     calculating the appropriate amount of restitution. 18 Pa.C.S.A. §
     1106(a), (c). A restitution award must not exceed the victim’s
     losses. A sentencing court must consider the victim’s injuries,
     the victim’s request as presented by the district attorney, and
     such other matters as the court deems appropriate.               18
     Pa.C.S.A. § 1106(c)(2)(i).

Pleger, 934 A.2d at 720.

     Here, in support of the restitution award, the Commonwealth

presented Mr. Laich as a witness at the post-sentence hearing; he testified

that Appellant broke his jaw in two places, and broke his nose.             N.T.,

8/28/14, at 13-14. Mr. Laich testified that he endured “extensive surgery”

with “plates and screws” being inserted and a tooth removed.                 Id.

Additionally, the Commonwealth provided the trial court with various

“Explanation of Benefits” forms setting forth the costs of medical services

rendered to Mr. Laich between July 14, 2013 (the date of the incident) and

October 1, 2013, as well as a letter from a claims recovery entity, Socrates




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Inc., reflecting an amount owed $28,089.07, and an itemized list of the

victim’s medical bills.3

       Although Appellant now argues that the $28,089.07 restitution amount

is speculative because “the record is devoid of the introduction of [the

victim’s] contemporaneous medical records” and contains “no expert report”,

Appellant was free to call his own expert witness to challenge the

Commonwealth’s accounting of the medical bills, but did not do so. Neither

at the sentencing hearing, nor the hearing on his post-sentence motion, did

Appellant object to any particular medical bill as improperly calculated or

factored into the $28,089.07 amount, or object to any of the medical bills as

being inaccurate. While Appellant had the opportunity to do so, at neither

hearing did Appellant specifically challenge the calculations set forth in the

documentation and itemized bills provided by the Commonwealth, and the

trial court expressly approved the Commonwealth’s calculations based on

the documentation provided.            Further, our review does not reveal any

discrepancy between the $28,089.07 restitution amount and the amount

reflected on the bills and other documentation provided. We thus conclude

that the Commonwealth presented sufficient documentation to support a

restitution award of $28,089.07.

____________________________________________


3
 The bulk of the medical costs appear to stem from the costs incurred in the
emergency room, and costs of surgery, anesthesia and attendant medical
services on July 14 and 15, 2013. See Commonwealth Exhibits 2, 3, and 4.


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     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




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