J-A18001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    MALACHI THOMAS

                             Appellant                No. 3601 EDA 2017


       Appeal from the Judgment of Sentence Entered September 6, 2017
               In the Court of Common Pleas of Delaware County
                Criminal Division at No: CP-23-CR-0007749-2016


BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 31, 2018

        Appellant, Malachi Thomas, appeals from the September 6, 2017

judgment of sentence imposing four to twelve months of incarceration

followed by an aggregate five years of probation for simple assault, recklessly

endangering another person (“REAP”), and two counts of conspiracy. 1 The

trial court also ordered Appellant to pay restitution of $167,082.96. We affirm.

        The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

              On October 12, 2016, 49-year-old James Cawthorn
        (hereinafter victim) was going to a concert with a friend at the
        Tower Theater in Upper Darby, Delaware County. Upon arrival at
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*   Former Justice specially assigned to the Superior Court.

**   Retired Senior Judge assigned to the Superior Court.

1    18 Pa.C.S.A. § 2701, 2705, and 903, respectively.
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      the venue, his friend began to feel ill and realized his medication
      was back in his hotel room. Victim’s friend took a cab back to
      their hotel in order to grab his medication while the victim went
      to grab a soda and slice of pizza and then headed back in the
      direction of the Theatre [sic]. While innocently walking down the
      street, the victim was struck from behind in the area of the 500
      block of South 69th Street. The next thing the victim recalled was
      waking up in Lankenau Hospital the following day. Doctors told
      the victim that he had been robbed and came into the Emergency
      Room as a “John Doe” patient because he had no wallet or cell
      phone. The victim came to learn that he had a large hematoma,
      or bleeding in his brain, and that his left eye socket was broken
      and the bones in the left side of his face were also broken, all the
      way to his upper jawbone. As a result of the bleeding, the victim
      underwent craniotomy surgery the week of Thanksgiving; a drain
      had to be placed into his skull in order to release the fluids from
      the surgery. The drain was removed Thanksgiving morning. The
      procedure required twenty-six stiches.

Trial Court Opinion, 1/23/18, at 1-2 (record citations omitted).

      An eyewitness to the assault identified Appellant as the perpetrator and

stated that Appellant punched the victim in the back of the head. Surveillance

footage obtained from a nearby restaurant showed Appellant and several

companions approaching the victim from behind, and Appellant fleeing in the

opposite direction. The assault took place out of the camera’s field of view.

Police found the victim unconscious on the sidewalk with a large lump on his

head. The victim testified that he continued to suffer from seizures, short-

term memory loss, and inability to drive, live alone, or work to support himself

or pay his medical expenses.

      A jury found Appellant guilty of the aforementioned offenses (but not

guilty of robbery or aggravated assault) after a two day trial. The trial court

imposed sentence as set forth above and this timely appeal followed.

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Appellant raises a single issue:         whether the trial court erred in imposing

restitution because the victim’s injury was not a direct result of Appellant’s

criminal act. Appellant’s Brief at 5.

       A challenge to the trial court’s authority to impose restitution is a

challenge to the legality of the sentence. Commonwealth v. Gentry, 101

A.3d 813, 816 (Pa. Super. 2014). Therefore, our standard of review is de

novo and our scope of review is plenary. Id. at 817. Here, Appellant claims

that Section 1106 of the Crimes Code did not authorize restitution because

there is not a direct link between the victim’s injuries and the crimes for which

Appellant was convicted.        Section 1106 provides in relevant part:     “Upon

conviction for any crime wherein property has been stolen [. . .] 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.” 18 Pa.C.S.A. § 1106(a) (emphasis added).2

       Instantly, Appellant relies on four cases that he believes support his

argument that the victim’s injuries were not a direct result of his convictions.

First, in Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983), the

defendant, whose car struck and killed a 12-year-old boy, pled guilty to

leaving the scene of an accident pursuant to 75 Pa.C.S.A. § 3742. The trial



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2  We have quoted from the version of § 1106 in effect at the time of
Appellant’s sentencing. Section 1106 has been amended effective October
24, 2018. 2018 Pa. Laws ___, No. 145, § 1.

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court ordered the defendant to make restitution to the victim’s family for all

costs directly associated with the victim’s death.   Id. at 196.   This Court

vacated judgment of sentence insofar as it ordered restitution, because the

act for which the defendant pled guilty—leaving the scene of an accident—was

not directly related to the victim’s death. Id. at 196-97. The defendant did

not admit that he was criminally responsible for the victim’s death, nor was

he charged with any offense that would have held him criminally responsible

for the death. Id. at 197.

     Appellant also relies on Commonwealth v. Reed, 543 A.2d 587 (Pa.

Super. 1988), wherein the defendant was convicted of receiving stolen

property worth not more than $480.00, but was not charged with the burglary

in which the stolen items had been taken. Id. at 588-89. The trial court

imposed restitution of more than $12,000.00, representing the total loss

sustained by the victim of the underlying burglaries. We held the restitution

award was improper, as there was no causal connection between the victim’s

total losses and the small amount of stolen property the defendant received.

Id. at 589.

     In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008) (en

banc), the victim accused the defendant of raping her. A jury acquitted the

defendant of all felony and misdemeanor charges, but the trial court found

Appellant guilty of harassment.   Id. at 460.    The trial court also ordered

Appellant to pay $600.00 in restitution to the victim to compensate her for


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replacing the couch on which the assault allegedly occurred. Id. This Court

held the restitution portion of the sentence illegal because there was no direct

nexus between the harassment conviction (for slapping the victim) and the

victim’s disposal of the couch. Id. at 465.

       Finally, in Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992), the

defendant pled guilty to two counts of interfering with the custody of children.

She took her children from their father’s custody in Harrisburg, Pennsylvania

to Louisiana. Id. at 703. The sentencing court ordered her to make restitution

for the expenses the father incurred for investigators, legal fees, and travel.

Id. Our Supreme Court noted that Section 1106 applies only where property

is stolen, converted, unlawfully obtained, or where its value is substantially

decreased. Id. at 705. The defendant was not convicted of any crime that

involved stealing or damaging her husband’s property, and therefore

restitution was improper under Section 1106.3

       We find each of the foregoing cases inapposite. Instantly, the jury found

Appellant guilty of simple assault and REAP. Simple assault occurs where the

defendant “attempts to cause or knowingly, intentionally or recklessly causes

bodily injury to another.”       18 Pa.C.S.A. § 2701(a)(1).   In response to an

interrogatory, the jury found that the victim suffered serious bodily injury.



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3  The Supreme Court found the restitution order supportable as a condition
of probation or parole pursuant to 42 Pa.C.S.A. § 9754. Id. at 707. Section
9754 is not at issue in the present matter.

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Given the facts of record—that Appellant approached the victim from behind

and punched him in the back of the head, leaving him unconscious and lying

on the sidewalk—there is an obvious direct causal connection between

Appellant’s simple assault conviction and the victim’s injury.     Appellant’s

reliance on Cooper, Reed, Barger, and Harner is therefore misplaced.

      Moreover, Appellant’s acquittal on the robbery and aggravated assault

charges does not undermine our conclusion. The acquittal on the more serious

charges do not eliminate the direct causal connection between the simple

assault conviction and the victim’s injuries. Appellant’s argument lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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