J-S11008-20

                                  2020 PA Super 174

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
 CHRISTOPHER S. LECLAIR                     :
                                            :
                      Appellant             :    No. 381 WDA 2019

    Appeal from the Judgment of Sentence Entered December 11, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0002693-2017


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

OPINION BY NICHOLS, J.:                                   FILED JULY 24, 2020

      Appellant Christopher S. LeClair appeals from the judgment of sentence

imposed after a jury found him guilty of first-degree murder and related

offenses. On appeal, Appellant challenges the sufficiency and weight of the

evidence, the trial court’s evidentiary rulings, and the restitution he was

ordered to pay the United States Coast Guard (USCG). We affirm Appellant’s

convictions,    but   vacate   the   judgment   of   sentence   and   remand   for

resentencing.

      We adopt the factual summary set forth by the trial court. See Trial Ct.

Op., 7/19/19, at 4-13. Briefly, Appellant was arrested and charged with the

murder of his wife, Karen LeClair (Wife), based on evidence that he took her

out to Lake Erie on his boat, shot her in the head, and then disposed of her

body in the lake by weighing it down with an anchor. Appellant then contacted

the USCG to falsely report that Wife had fallen overboard.
J-S11008-20



       The trial court set forth the relevant procedural history as follows:

       On October 12, 2018, after a four-day jury trial, Appellant was
       found guilty of first-degree murder, abuse of a corpse, tampering
       or fabricating physical evidence, possessing instruments of a
       crime, firearms not to be carried without a license, and false
       reports to law enforcement authorities.[1]

       On December 11, 2018, after consideration of the presentence
       report, sentencing guidelines, witness statements, the safety of
       the public, the impact of the crime on the community, and
       Appellant’s rehabilitation potential, the [trial court imposed an
       aggregate sentence of life in prison.] Further, Appellant was
       ordered to pay restitution to certain parties, including
       $705,974.80 to the [United States Coast Guard] (USCG).
       However, after legal argument and reconsideration by th[e trial
       c]ourt, this amount was reduced to $424,180.20.

       On December 12, 2018, Appellant filed a post-sentence motion,
       raising issues of the weight of the evidence, sufficiency of the
       evidence, and [challenging] the imposition of restitution to the
       USCG. Argument regarding the issues raised in the post-sentence
       motion, particularly the matter of restitution, was held on January
       9, 2019. On January 10, 2019, the [trial c]ourt issued an order
       denying Appellant’s motion for [a] new trial and arrest of
       judgment. Following arguments, the [trial c]ourt reconsidered the
       amounts of restitution and found Appellant to be responsible for
       $1,952.00 to the Pennsylvania State Police as costs of prosecution
       and $4,443.46 to the Crime Victim’s Compensation Board for
       [Wife’s] funeral expenses. These amounts were never contested
       by Appellant and were deemed legally sufficient for restitution.
       However, due to the complexity of the restitution issue, the [trial
       c]ourt gave counsel until January 23, 2019 to provide . . . legal
       authority regarding whether the USCG qualified as a “victim” for
       the purposes of restitution.

       On February 12, 2019, the [trial c]ourt issued its memorandum
       opinion and order, finding the USCG was in fact a “victim” for the
       purposes of 18 Pa.C.S. § 1106, the restitution statute in effect on
       the date of the murder. The [trial c]ourt also determined that
____________________________________________
1 18 Pa.C.S. §§ 2501(a), 5510, 4910(1), 907(a), 6106(a)(1), and 4906(b)(1),
respectively.


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        restitution to the USCG would only be granted for the expenses
        that were incurred as a direct result of Appellant’s criminal
        conduct. In fact, the [trial c]ourt determined that many of the
        invoiced expenses submitted by the USCG were [duplicative] fees
        and not incurred as a direct consequence of Appellant’s criminal
        act. Once the [trial c]ourt determined [that] the USCG was a
        “victim,” a second hearing was scheduled and conducted on
        February 26, 2018 to address the single issue of what expenses
        the USCG had actually incurred as a direct result of Appellant’s
        criminal act. At the time of the hearing on February 26, 2019,
        Appellant and the Commonwealth came to an agreement as to the
        amount of restitution directly resulting from Appellant’s criminal
        act. The terms of the agreement were placed on the record and
        the [trial c]ourt amended the sentencing order to reflect
        $424,180.20 as the amount of restitution payable to the USCG.

Trial Ct. Op., 7/19/19, at 1-2 (some formatting altered and footnote omitted).

        Appellant filed a timely notice of appeal and subsequently filed a court-

ordered Pa.R.A.P. 1925(b) statement.2,3 The trial court issued a Rule 1925(a)



____________________________________________
2 Appellant initially failed to comply with the trial court’s deadline to file a Rule
1925(b) statement. However, on June 11, 2019, this Court remanded the
matter to the trial court for Appellant to file a Rule 1925(b) statement and for
the trial court to issue a Rule 1925(a) opinion addressing Appellant’s claims.
See Order, 6/11/19.

3   In his Rule 1925(b) statement, Appellant set forth the following claims:

        1. Was the weight of the evidence supported by the evidence?

        2. Was the verdict of the jury supported by the weight of the
           evidence?

        3. Should the witnesses who heard statements by [Appellant]
           before the alleged homicide have been excluded as violating
           Rule 404(b) of the Pennsylvania Rules of Criminal Procedure?

        4. Should the testimony of Thomas Foye, Alexandra Shuler, Keith
           Love and any other testimony regarding alleged statements of
           the defendant made prior to June 2017 before the alleged



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opinion addressing Appellant’s issues, but concluding that Appellant had

waived his weight and sufficiency claims by failing to specify which convictions

or elements he intended to challenge on appeal. See Trial Ct. Op. at 14-15.

       On appeal, Appellant raises the following issues, which we have

reordered as follows:

       1. Was the verdict of the jury supported by the sufficiency of the
          evidence?

       2. Was the verdict supported by the weight of the evidence?

       3. Should the witnesses who heard statements by Appellant
          before the alleged homicide have been excluded as not
          relevant?

       4. Should the witnesses who heard statements by Appellant
          before the alleged homicide have been excluded as violating
          Rule 404(b) of the Pennsylvania Rules of Criminal Procedure?

       5. Was the USCG a victim for purposes of restitution and should
          it have received restitution?

Appellant’s Brief at 3.

       Initially, we agree with the trial court that Appellant failed to preserve

his challenges to the sufficiency and weight of the evidence. See Trial Ct. Op.
____________________________________________

          homicide have been excluded as violating Rule 404(b) of the
          Pennsylvania Rules of Criminal Procedure.

       5. Was it proper for the [USCG] to have been ruled a victim for
          purposes of restitution?

       6. Was the [USCG] a victim for purposes of restitution and should
          it have received restitution?


Appellant’s Rule 1925(b) Statement, 6/17/19, 1-2 (unpaginated).




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at 14-15. Although Appellant was convicted of multiple crimes, Appellant’s

sufficiency claim did not specify which elements or even which conviction he

sought to challenge on appeal. Commonwealth v. Garland, 63 A.3d 339,

344 (Pa. Super. 2013) (reiterating that an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient and noting that “[s]uch specificity is

of particular importance in cases where . . . the appellant was convicted of

multiple crimes each of which contains numerous elements that the

Commonwealth must prove beyond a reasonable doubt”). Further, Appellant

did not indicate which verdict or verdicts were contrary to the weight of the

evidence, and did not offer a specific reason to support his generalized claim.

See Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super.

2015) (holding that the appellant waived his challenge to the weight of the

evidence where his Rule 1925(b) statement failed to specify which verdicts

were against the weight of the evidence and did not offer specific reasons as

to why the verdicts were against the weight of the evidence).

       Under these circumstances, we are constrained to conclude that

Appellant waived his challenges to the sufficiency and weight of the evidence.

See Garland, 63 A.3d at 344; see also Freeman, 128 A.3d at 1248-49.

Further, the trial court’s decision to address the weight and sufficiency of the

evidence does not affect our finding of waiver. 4     See Commonwealth v.
____________________________________________
4In any event, the trial court thoroughly addressed the sufficiency and the
weight of the evidence supporting Appellant’s convictions. See Trial Ct. Op.



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Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008) (reiterating that “when the

trial court has to guess what issues an appellant is appealing, that is not

enough for meaningful review” and stating that a vague Rule 1925(b)

statement may result in waiver, even if the trial court correctly guesses the

issues an appellant seeks to raise on appeal. (citations and quotation marks

omitted)).

       In his next two issues, Appellant argues that the trial court erred by

allowing Thomas Foye, Alexandra Schuler, and Keith Love to testify about

statements that Appellant made about his wife prior to her murder.

Appellant’s Brief at 16.        Appellant asserts that the testimony was both

irrelevant and inadmissible under Rule 404(b).5

       By way of further background to Appellant’s claims, the trial court

summarized the witnesses’ testimony as follows:

____________________________________________

at 15-27. The trial court concluded that “the testimony and evidence
presented at trial clearly demonstrates that the Commonwealth proved each
element of each crime beyond a reasonable doubt.” Id. at 17. Further, the
trial court found that “considering the overwhelming weight of the evidence,
the verdicts do not ‘shock one’s sense of justice.’” Id. Therefore, even if
Appellant properly preserved these claims, he would not be entitled to relief.

5 We note that Appellant initially raised these objections in a pre-trial motion
in limine, which the trial court denied. N.T. Pre-trial Mot. Hr’g, 10/4/18, at
29-55. Therefore, Appellant properly preserved his claims for appeal. See
Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (applying
Pa.R.E. 103 and noting that “a motion in limine may preserve an objection for
appeal without any need to renew the objection at trial, but only if the trial
court clearly and definitively rules on the motion. . . . [o]nce the trial court
enters a definitive ruling on the record, either prior to or during trial, ‘a party
need not renew an objection or offer of proof to preserve a claim of error for
appeal’” (citations omitted)).


                                           -6-
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      [Alexandra Schuler testified that] in approximately 2004, during
      a social gathering at a local boating club, Appellant volunteered to
      [Ms.] Schuler: “[I]’m going to put her on a boat, I’m going to drive
      out into the middle of the lake to the deepest part of the lake,
      she’s going to fall off the boat and no one will ever find her body.”
      When Ms. Schuler tried to uncomfortably laugh the statement off
      as a joke, Appellant said he was not joking and repeated the
      statement. Despite hearing the statement thirteen years ago,
      when the news media reported a woman falling overboard on a
      boat in the middle of Lake Erie, Ms. Schuler immediately called
      the Pennsylvania State Police to report [Appellant].

      Thomas Foye, a local fisherman and acquaintance of Appellant,
      testified about a statement Appellant made in 2011 during a
      conversation about a news story about a man who had killed his
      wife.    Appellant told Mr. Foye how he would kill his wife;
      specifically, Mr. Foye testified that Appellant stated “that what he
      would do was he would take and raise the life insurance policies,
      take out a loan and put her on the policies, and then he would
      take and wait a year, year and a half, take her out to the lake,
      wrap her up in a fishing net or rope, and they would never find
      her.” Appellant said this with a straight face and Mr. Foye did not
      get the impression it was a joke.

      Keith Love testified regarding conversations with Appellant that
      occurred in the months prior to June 2017. Appellant advised Mr.
      Love that [his wife] was dying from cancer, and one day when Mr.
      Love asked how [Appellant’s wife] was doing, Appellant
      responded: “Once the bitch is dead, I’ll be set for life.”

Trial Ct. Op. at 29.

      Appellant argues that the witness testimony was not relevant to his case

“because of the remoteness of time to the events of this case and the context

of the conversation” in which Appellant made the statements about Wife.

Appellant’s Brief at 16-17. With respect to Schuler, Appellant asserts that the

alleged statement was made thirteen years before Wife’s murder and that it

did not “reference any sort of plan” but was instead “a response to a joke.”

Id. at 18-19. As to Foye, Appellant argues that the statement was six years


                                      -7-
J-S11008-20



before Wife’s murder, and that he “was commenting on a television show that

was playing at the time. . . . [which] did not show any sort of plan” or establish

his intent to murder Wife. Id. at 17. Finally, as to his statement to Love,

Appellant contends that “it in no way references anything regarding this case”

and “was also months prior” to Wife’s murder. Id. at 18.

      The Commonwealth responds that Appellant’s statements to Foye,

Schuler, and Love were relevant because they made “the fact of Appellant’s

contempt and hatred towards [Wife] and his motive to kill her more probable.”

Commonwealth’s Brief at 21. The Commonwealth further contends that the

statements “are highly probative based on the unnervingly similar facts of his

prior statements to the facts of this case.” Id.

      In reviewing a challenge to the admissibility of evidence, our standard

of review is as follows:

      Questions concerning the admissibility of evidence are within the
      sound discretion of the trial court and we will not reverse a trial
      court’s decision concerning admissibility of evidence absent an
      abuse of the trial court’s discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record. If in reaching a
      conclusion the trial court overrides or misapplies the law,
      discretion is then abused and it is the duty of the appellate court
      to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations

omitted and formatting altered)




                                      -8-
J-S11008-20



      “Relevance      is   the   threshold   for   admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)

(citation omitted).

      Evidence is relevant if it logically tends to establish a material fact
      in the case, tends to make a fact at issue more or less probable,
      or tends to support a reasonable inference or proposition
      regarding a material fact. Relevant evidence may nevertheless be
      excluded if its probative value is outweighed by the danger of
      unfair prejudice, confusion of the issues, or misleading the jury,
      or by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation

and quotation marks omitted), appeal denied, 219 A.3d 597 (Pa. 2019).

      Here, the trial court addressed Appellant’s claim as follows:

      In the present case, there was no error in the admission of
      Appellant’s statements made prior to June 2017 before the
      murder. The statements made multiple times over the years
      about Appellant’s plans to kill his wife prior to actually killing his
      wife were absolutely relevant because of their haunting factual
      similarity to the murder of [Wife]. Appellant’s comments that he
      would get rid of [Wife] by taking her out on the boat and dumping
      her body in the lake were eerily similar to the actual method by
      which Appellant did kill her. These statements logically tended to
      establish the material facts in the case, tended to make the facts
      more probable, and supported a reasonable inference or
      presumption about the material facts. Further, the probative
      value of Appellant’s statements outweighed the prejudicial value,
      especially in consideration of the other overwhelming evidence of
      Appellant’s guilt. The statements, standing alone, would not
      inflame the jury to make a decision contrary to the relevant legal
      propositions.     Admitting the statements was not unfairly
      prejudicial simply because they were harmful to Appellant’s
      contrived defense that [Wife] had shot herself. Rather, the
      statements formed a part of the history and natural development
      of the events leading up to Appellant’s charges and were properly
      admitted.



                                       -9-
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     While it is clear the remoteness of the statements can be
     considered in determining whether prejudice occurred, in the
     present case the manner in which Appellant spoke, although
     remote in time, became highly relevant and the probative value
     of the statements outweighed any prejudicial effect.              See
     Commonwealth v. Smith, 808 A.2d 215, 225 (Pa. Super. 2002)
     (“In determining whether the evidence is so remote that the
     prejudicial effect outweighs the probative value, the court has no
     fixed standard on which to rely, but must instead consider the
     nature of the crime, the evidence being offered, and all attendant
     circumstances.”) Pennsylvania Courts have specifically addressed
     the admission of evidence of the prior marital relationship
     between a defendant and a homicide victim in conjunction with
     remoteness: “[E]vidence concerning the nature of the marital
     relationship is admissible for the purpose of proving ill will, motive
     or malice. . . . [I]t is generally true that remoteness of the prior
     instances of hostility and strained affects the weight of that
     evidence and not its admissibility. . . . [N]o rigid rule can be
     formulated for determining when such evidence is no longer
     relevant.” Commonwealth v. Showers, 681 A.2d 746, 754 (Pa.
     Super. 1996) (citing Commonwealth v. Ulatoski, 371 A.2d 186,
     190-191 (Pa. 1977)).

     In the case sub judice, Appellant’s prior statements clearly
     demonstrated Appellant’s ill will and malice against his wife and
     his manifest purpose to kill her. The witnesses distinctly recalled
     the statements precisely because they were so chilling. Ms.
     Schuler testified Appellant’s statement “was very creepily specific,
     very detailed, very much more than just a one-liner, throw-away”
     and left such an impact on her she immediately told her husband
     about it and contacted law enforcement when she learned [Wife]
     was missing. Appellant’s statements so closely paralleled his
     actions that they were indeed relevant to show the nature of his
     relationship with [Wife]. On cross-examination, Appellant was
     given ample opportunity to test the witnesses’ memories and test
     the context of the statements and did so thoroughly. Any issues
     regarding the remoteness of the statements to the time of the
     murder go to the weight of the evidence and not their
     admissibility; therefore, it was in the purview of the jury to
     consider the evidence and give each statement the appropriate
     weight.[fn1]

        [fn1]   In fact, out of an abundance of caution and deference to


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         Appellant, during the charge conference on October 11,
         2018, the [trial c]ourt offered to provide a jury charge
         regarding the testimony of Foye, Schuler, and Love.
         However, defense counsel declined this offer.

Trial Ct. Op. at 30-32.

      Based on our review of the record, we discern no abuse of discretion or

error of law in the trial court’s ruling. See Belknap, 105 A.3d at 9-10. The

trial court thoroughly addressed the relevance of the witnesses’ testimony and

concluded that the danger of unfair prejudice did not outweigh its probative

value. See Danzey, 210 A.3d at 342. Therefore, we affirm on the basis of

the trial court’s analysis of this issue. See Trial Ct. Op. at 30-32.

      Appellant next argues that the trial court erred by admitting the

witnesses’ testimony about Appellant’s prior statements under Rule 404(b) of

the Pennsylvania Rules of Evidence.      Appellant’s Brief at 19.       In support,

Appellant claims that his alleged statements were admitted as “the equivalent

of bad acts by [Appellant] to show he had a long-standing plan to kill [Wife]

or desire to see her killed.” Id. at 20. Appellant argues that his statements

were too remote to establish that he had a plan to kill Wife. Id. Further, he

claims that his statements “were made generally in jest according to Schuler

and Foye, and Love did not testify that the statement made to him was

anything but a crude comment.” Id. Therefore, Appellant argues that his

“statements were not made to show a future plan to kill [Wife],” and were

instead “used to show [that] Appellant had bad character.” Id.

      The Commonwealth responds that “[t]he trial court did not err in

allowing the Commonwealth to establish motive and intent [through] the


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relevant testimony of [the witnesses] to whom Appellant made incriminating

statements relative to his contempt against [Wife].” Commonwealth’s Brief

at 1, 21. Further, the Commonwealth contends that the “probative value of

[the witnesses’ testimony] evidence outweigh[ed] the prejudicial impact.” Id.

at 20.

         Rule 404(b) of the Pennsylvania Rules of Evidence provides:

         (b) Crimes, Wrongs or Other Acts.

         (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
         not admissible to prove a person’s character in order to show that
         on a particular occasion the person acted in accordance with the
         character.

         (2) Permitted Uses. This evidence may be admissible for another
         purpose, such as proving motive, opportunity, intent, preparation,
         plan, knowledge, identity, absence of mistake, or lack of accident.
         In a criminal case this evidence is admissible only if the probative
         value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1), (2).

         Here, the trial court addressed Appellant’s claim as follows:

         At the outset, [the trial c]ourt believes [that] Appellant’s reliance
         on Pa.R.E. 404(b) is misplaced. Rather, th[e trial c]ourt thinks
         the proper legal analysis of the statements made prior to June
         2017 before the alleged homicide is as admissible hearsay
         exceptions pursuant to Pa.R.E. 803. This conclusion is supported
         by the recent Pennsylvania Supreme Court case Commonwealth
         v. Johnson, 160 A.3d 127 (Pa. 2017).              In Johnson, the
         defendant was on trial for the murder of his friend, her unborn
         child, and her four-year-old daughter.         The Commonwealth
         presented defendant’s brother[,] who testified that days before
         the murders[,] the defendant had stated “I’m willing to do
         anything to make a come up” which was interpreted by the
         brother to mean [that the] defendant was willing to shoot
         someone to make money. Over [the] defendant’s objections
         [that] the testimony was irrelevant and inadmissible “prior bad


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     act” evidence pursuant to Pa.R.E. 404(b), the trial court admitted
     the testimony as an exception to Pa.R.E. 404(b) because it
     established motive, identity, intent and premeditation. On appeal,
     the Supreme Court held [that] Pa.R.E. 404(b) was not implicated
     because the “alleged statements were not evidence of any
     particular ‘crime, wrong or act’ . . . [r]ather, they constituted mere
     statements of [the defendant’s] desire to make money (or, more
     generally, to attain success) and his willingness to do anything
     (even to kill) to accomplish this end.” The Court further held that
     “. . . [e]vidence that merely advances an inference of a material
     fact may be admissible” and [the] defendant’s statements to his
     brother were an example of such an inference.

     In the case sub judice, Pa.R.E. 404(b) is likewise not implicated.
     Appellant’s extrajudicial statements to the witnesses that he
     would take his wife out on his boat, drive out to the deepest part
     of Lake Erie, wrap her in fishing net or rope, and dump her body
     so they would never find her and he would be set for life were not
     evidence of a particular crime, wrong, or act.

     Rather, they were mere statements demonstrating Appellant’s
     longstanding desire to get rid of [Wife]. The statements merely
     advanced the inference that Appellant’s plans to kill [Wife] and
     dispose of her body finally came to fruition on June 10, 2017, and
     were thus admissible.

     Even in the most tortured and extreme interpretation of Pa.R.E.
     404(b), the evidence was still admissible to demonstrate
     Appellant’s plan, motive, intent, malice, and ill will toward [Wife].
     “[E]vidence of prior occurrences (e.g., previous threats) and prior
     offenses, if they are related to the offense for which the defendant
     is on trial, may be admitted to show malice, motive, or intent.”
     Commonwealth v. Glover, 286 A.2d 349, 351 (Pa. 1972).
     Pennsylvania Rule of Evidence 404 provides, in part, that evidence
     of a crime, wrong, or other act “may be admissible for another
     purpose, such as proving motive, opportunity, intent, preparation,
     plan, knowledge, identity, absence of mistake, or lack of
     accident.” Pa.R.E. 404(b); see also Glover, 286 A.2d at 351
     (testimony about defendant’s threat to get a weapon and “to kill
     this M.F.” made three weeks prior to the murder was admissible
     as it demonstrated defendant’s ill feelings and motive against the
     victim); Commonwealth v. Ulatoski, 371 A.2d 186, 192 (Pa.
     1977) (permitting evidence of prior bruising on [the] defendant’s
     wife before her death[,] as it tended to indicate a pattern of


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      physical abuse); Commonwealth v. Chamberlain, 30 A.3d 381,
      419-20 (Pa. 2011) (finding testimony by a witness that [the]
      defendant had asked about contacting a hitman to break up his
      wife’s extramarital affair approximately [eighteen] months before
      her murder was relevant to demonstrate motive, design, planning,
      ill will, and malice).

      Here, the Commonwealth did not admit the witnesses’ testimony
      regarding Appellant’s statements to demonstrate Appellant’s bad
      character and his propensity for committing criminal acts in
      violation of Pa.R.E. 404(b). Instead, Appellant’s statements
      regarding his plan to murder and dispose of his wife were prior
      statements of his future intent and threats against the life of
      [Wife]. The statements were so specific and so closely paralleled
      the actual crime, they tended to show Appellant’s plan, motive,
      intent, malice, and ill will in committing the murder of his wife.
      They also evidence lack of mistake or accident. However, as
      previously indicated, the [trial c]ourt again emphasizes [that] the
      admission of statements is more appropriately assessed pursuant
      to Pa.R.E. 803.

Trial Ct. Op. at 33-35 (some formatting and citations omitted).

      Based on our review of the record, we discern no abuse of discretion in

the trial court’s ruling.   See Belknap, 105 A.3d at 9-10.        The trial court

thoroughly addressed this issue and concluded that Rule 404(b) did not

preclude the witnesses from testifying about Appellant’s prior statements.

Therefore, we affirm on the basis of the trial court’s analysis of this issue. See

Trial Ct. Op. at 33-35.

      In his final claim, Appellant argues that the trial court erred by ordering

him to pay restitution to the USCG.      Appellant’s Brief at 21.    Specifically,

Appellant argues that the USCG does not qualify as a “victim” under 18 Pa.C.S.

§ 1106(a). Id. Relying on Commonwealth v. Veon, 150 A.3d 435 (Pa.

2016), and Commonwealth v. Tanner, 205 A.3d 388 (Pa. Super. 2019),



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Appellant contends that a government entity is only entitled to restitution if

“the legislature included it as a potential victim and also whether it provided

reimbursement to the victim.”      Id. at 23.    Appellant asserts that “the

legislature has never stated that a part of the United States Armed Forces

should be defined as a government agency eligible for restitution.” Id. at 22.

Further, Appellant contends that “the USCG was not providing compensation

to any victim of a crime but was performing its statutory duties of executing

search and rescue operations.” Id. at 22-23. Therefore, Appellant concludes

that the trial court erred by ordering him to pay restitution to the USCG.

      The Commonwealth responds that “the [USCG] is not a Commonwealth

entity and therefore the plain language of [Section 1106] would clearly direct

that they are a ‘governmental entity’ to whom the term ‘victim’ should apply.”

Commonwealth’s Brief at 22. In support, the Commonwealth relies on this

Court’s unpublished decision in Commonwealth v. Steffey, 1158 WDA 2017,

2018 WL 4140624, 2018 Pa. Super. Unpub. LEXIS 3215 (Pa. Super. Aug. 30,

2018), which applied the definition of “person” set forth in 1 Pa.C.S. § 1991

to conclude that non-profit agencies were direct victims under the pre-

amendment version of Section 1106. Finally, the Commonwealth argues that

“Veon did not prohibit restitution to all governmental entities, only to those

of the Commonwealth.” Id.

      In reviewing a restitution order, our standard and scope of review are

as follows:




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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. As such,
       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.
       Accordingly, 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. This case
       will also necessarily call upon us to engage in statutory
       construction, which similarly presents a pure question of law and
       also implicates the legality of [the] sentence. Thus, our standard
       of review is de novo and our scope of review is plenary.

Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa. Super. 2019) (citations

and internal alterations omitted).

       The version of Section 1106 in effect at the time of Appellant’s offenses

provided,6 in pertinent part, as follows:

       (a) General rule.―Upon conviction for any crime wherein
       property has been stolen, converted or otherwise unlawfully
       obtained, . . . 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:


____________________________________________
6 Section 1106 of the Crimes Code governs the imposition of restitution.
Effective October 24, 2018, the Pennsylvania General Assembly amended the
statute to reflect that a “business entity” could be a “victim” entitled to
restitution. See 18 Pa.C.S. § 1106(h). We emphasize that “this Court has
already held that these specific amendments to [Section] 1106 should not be
effective in criminal cases that began before the effective date of the
legislation . . . .” Hunt, 220 A.3d at 586 (emphasis in original and footnote
omitted) (citing Commonwealth v. Tanner, 205 A.3d 388, 396 n.7 (Pa.
Super. 2019)).


                                           - 16 -
J-S11008-20


                  (i) Regardless of the current financial resources of the
                  defendant, so as to provide the victim with the fullest
                  compensation for the loss. . . .

                  (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.

                                    *     *      *

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

                                    *     *      *

      “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.
      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. § 1106(a), (c), and (h) (footnote omitted) (repealed Oct. 24, 2018,

P.L. 891, No. 145, § 1).

      Regarding the statutory reference in the definitions section, “Section

479.1, formerly codified at 71 P.S. § 180–9.1, since has been recodified in the




                                        - 17 -
J-S11008-20



Crime Victims Act, 18 P.S. §§ 11.101, et seq. (the ‘CVA’).” Veon, 150 A.3d

at 449 (citation omitted). The CVA defines “victim” as follows:

      (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 fiancé, 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. “A ‘direct victim’ is defined by the same section as ‘an

individual against whom a crime has been committed or attempted and who

as a direct result of the criminal act or attempt suffers physical or mental

injury, death or the loss of earnings under this act.’” Veon, 150 A.3d at

449 (alterations omitted and emphases in original).

      In Veon, the defendant was convicted of misappropriating funds from

the Department of Community and Economic Development (DCED).                 Id.

Initially, the trial court ordered the defendant to pay restitution to the DCED,

finding that the agency was a direct victim of the defendant’s crimes. Id. On



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J-S11008-20



appeal, our Supreme Court’s review of the relevant statutes, legislative

histories, and prior case law led to its holding that the DCED was “neither a

‘direct victim’ nor a reimbursable compensating government agency under

Section 1106.” Id. at 455 (footnote omitted).

      Importantly, the Veon Court scrutinized the language in Section 11.103

and determined that the term “victim” applied to human beings only:

      Notwithstanding any legislative expansion of the definition of
      “victim,” it is clear that the plain text of Section 11.103 still
      envisages “victims” as “persons” commonly understood.              A
      “victim” under Section 11.103 must be “a direct victim,” i.e., an
      “individual” who has suffered injury, death, or loss of earnings; or
      a “child,” “parent,” “guardian,” or “family member.”          Every
      relevant noun unequivocally describes a human being, not a
      government agency, and nowhere else is there a relevant
      definition that persuades us to broaden the common
      understanding of these words.

Id. at 454.

      Further, the Court explained that

      [a]lthough Subsection 1106(c)(1)(i)’s provisions regarding
      “victims” and “other government agencies” reveals that the
      General Assembly intended that restitution reach certain
      Commonwealth agencies in a manner that did not depend upon
      identifying such agencies as “victims,” it nonetheless required first
      that the agency in question have provided compensation to a
      victim so defined.

Id. (alterations omitted). Therefore, the Veon Court held that “to qualify for

restitution under Subsection 1106(c)(1)(i), a Commonwealth agency either

must be a victim as that term is used in that subsection or must have

reimbursed a victim as defined by Section 11.103, directly or by paying a third

party on behalf of the victim.” Id.; see also Tanner, 205 A.3d at 398.



                                     - 19 -
J-S11008-20



      More recently, in Hunt, this Court reiterated that under the version of

Section 1106 in effect at the time, the term “victim” exclusively referred to

individuals.   Hunt, 220 A.3d at 590 (discussing Veon, 150 A.3d at 449).

Further, we noted that the repealed definition of “victim” set forth in the

Administrative Code of 1929 did not apply to Section 1106. Id. at 589-90.

Specifically, we explained that

      the CVA’s definition introduces an entirely new term of art (“direct
      victim”) and explicitly includes certain categories of minor,
      material witnesses who would not be included under any plain
      reading of the Administrative Code of 1929’s parallel provisions.
      Furthermore, the new term “direct victim” is limited in applicability
      to those individuals who suffer “physical or mental injury, death
      or the loss of earnings” as result of the crime committed. See 18
      P.S. § 11.103. By contrast, the definitions set forth in the
      Administrative Code of 1929 contain no similar limitations. . . .
      Accordingly, we conclude that the definition of “victim” under the
      CVA that entered force in 1998 is the sole definition for our
      purposes under [Section] 1106.

Id. (some citations omitted).

      Here, in concluding that the USCG was a direct victim entitled to

restitution, the trial court reasoned as follows:

      Section 479.1 of the Administrative Code of 1929, formerly
      codified at 71 P.S. §180-9.1, originally defined a victim as “a
      person against whom a crime is being or has been perpetrated or
      attempted.” However, because the Administrative Code of 1929
      gave no definition of “person”, th[e trial c]ourt is compelled to
      turn to the Statutory Construction Act, 1 Pa.C.S. § 1991 for the
      definition. In the Act, “person” is defined as “a corporation,
      partnership, limited liability company, business trust, other
      association, government entity (other than the Commonwealth),
      estate, trust, foundation or natural person.” Id. A plain reading
      therefore compels the conclusion that the USCG, as a federal
      agency, is “a government entity that is other than the
      Commonwealth.” See § 479.1 of the Administrative Code and 71


                                     - 20 -
J-S11008-20


     P.S. §180-9.1. Therefore, the USCG would be a victim under this
     version of [Section] 1106.

     The plain language of the statute as written, without importing
     any definitions from statutes not specifically referenced by the
     legislature, would include the USCG as a “person” because it is a
     “government entity” which is not a Commonwealth agency. As
     such, the [USCG] fits within the definition of “victim” as explicitly
     provided by the Legislature.

     The [trial c]ourt is also persuaded by the reasoning in Steffey,
     2018 WL 4140624, although it is recognized that this authority is
     not binding. In Steffey, three non-profit agencies, who were the
     object of the defendant’s criminal theft and forgery, were included
     in the definition of “person” pursuant to the Statutory Construction
     Act, 1 Pa.C.S. § 1991. Therefore, the court concluded [that no]
     further statutory construction analysis was necessary, and the
     non-profit entities were entitled to restitution.

     The [trial c]ourt is cognizant that the conclusion that the USCG is
     a direct victim of [Appellant’s] criminal conduct is buffeted by
     multifaceted, artful arguments to the contrary based on the fact
     that in 1998, § 479.1 of the Administrative Code was repealed and
     recodified in the Crime Victims Act, 18 P.S. § 11.103. Under the
     CVA, the definition of victim is drastically different. The CVA
     defines “victim,” inter alia, as “a direct victim,” which the CVA
     defines as “an individual.” 18 P.S. §11.103. The Statutory
     Construction Act defines “individual” as a “natural person.” 1
     Pa.C.S. § 1991. However, notably, even after § 479.1 of the
     Administrative Code was repealed in 1998 and recodified in the
     CVA, the legislature specifically used § 479.1 of the Administrative
     Code’s definition in subsequent versions of [Section] 1106.[fn1]

            After the Administrative Code was repealed in November
        [fn1]

        of 1998, the Restitution Statute at 18 Pa.C.S. § 1106 was
        amended on December 3, 1998 and again on November 30,
        2004. § 1106 continued to reference § 479.1 of the
        Administrative Code and its definition of “victim” as a person
        and “person” is further defined at 1 Pa.C.S. § 1991 to
        include a “corporation . . . or government entity (other than
        the Commonwealth).”

                                *     *      *




                                    - 21 -
J-S11008-20


      Presently, [Appellant] advocates that Veon precludes the USCG
      from obtaining restitution in this case as a government entity.
      However, we find Veon clearly distinguishable because it
      addresses the question of whether a Commonwealth agency can
      be entitled to restitution, not whether a federal agency such as
      the USCG is entitled to restitution as a direct victim. The long
      history of judicial and statutory interpretation of restitution clearly
      supports the fact that a Commonwealth agency is, and always has
      been, explicitly barred from receiving restitution. This is true
      whether one employs the Administrative Code version of the
      definition of “victim” as “person,” which includes government
      entities other than the Commonwealth or whether one employs
      the CVA definition of victim as an “individual” or “natural person.”
      Consequently, the holding in Veon must be restricted to the facts
      of Veon excluding restitution to a Commonwealth agency. Any
      pronouncements beyond that are not applicable to the case at
      hand. To exclude consideration of §479.1 of the Administrative
      Code is distorted and clearly disproportionally restricts the class
      of “victims” for restitution purposes. Also, the post October 24,
      2018 §1106 appears to be a Veon “fix” by now including the
      Commonwealth as a victim when it is an “affected government
      agency.” See [18 Pa.C.S. §1106(c)(1)(ii)(A.1), as amended
      October 24, 2018].

      Noting the persuasive decision in Steffey, distinguishing Veon as
      limited to its particular facts, and recognizing the strong legislative
      intent in favor of awarding restitution, and the statute in effect at
      the time of the crime, [the trial c]ourt finds that the USCG falls
      within the definition of victim as a “person” which specifically
      includes “government entities (other than the Commonwealth).”
      This reasoning results in an award of restitution for the USCG as
      a “government entity” other than the Commonwealth.

Trial Ct. Mem. Op. and Order, 2/12/19, at 12-14 (some citations and footnotes

omitted).

      Based on our review, we disagree with the trial court’s conclusion that

the USCG was entitled to restitution as a direct victim under Section 1106. As

noted previously, our Supreme Court has explicitly stated that the term “direct

victim” refers exclusively to individuals, not government agencies. Veon, 150



                                      - 22 -
J-S11008-20



A.3d at 454; see also Tanner, 205 A.3d at 398 (stating that Section 11.103

“defines a ‘victim’ as an individual who has been harmed by the offender” and

noting that “a government agency is not entitled to restitution because it is

[not] an individual victim . . . .”). Further, we are bound by the Hunt Court’s

holding that the CVA precludes using the now-repealed definition of “victim”

set forth in the Administrative Code of 1929 or the definition of “person” in 1

Pa.C.S. § 1991 to interpret the meaning of “victim” under the restitution

statute.7 See Hunt, 220 A.3d at 589-90 (stating that the CVA’s definition of

‘victim’ “is the sole definition” for purposes of Section 1106); see also 18

Pa.C.S. § 1106(h); 18 P.S. § 11.103. Therefore, based on our governing case

law, because the USCG cannot be classified as a ‘direct victim’ under the CVA,

the restitution portion of Appellant’s sentence is illegal and must be vacated.

See Veon, 150 A.3d at 454.



____________________________________________
7 The trial court’s reliance on this Court’s unpublished decision in Steffey does
not affect our analysis. Although the amended version of Pa.R.A.P. 126 allows
parties to rely on non-precedential unpublished decisions of this Court as
persuasive authority, the amendment only applies to decisions filed after May
1, 2019. See Pa.R.A.P. 126(b)(1). As Steffey was filed on August 30, 2018,
it cannot serve as persuasive authority. See id. We also note that after this
Court’s decision in Steffey, our Supreme Court granted allowance of appeal
to determine “[w]hether, in a case of first impression after and in light of [the
Supreme] Court’s decision in Veon, the Superior Court erred in holding that
a sentence to pay restitution to a nonprofit corporation may be ordered.” See
Commonwealth v. Steffey, 2019 WL 761214 (Pa. filed Feb. 21, 2019) (per
curiam order). However, the appeal was discontinued on April 16, 2019. Until
such time our Supreme Court limits or clarifies its holding in Veon, it remains
binding precedent. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.
Super. 2014) (stating that we are bound by existing precedent until such time
it is overturned).


                                          - 23 -
J-S11008-20



      Judgment of sentence vacated. Case remanded for a new sentencing

hearing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2020




                                      - 24 -
