J-S92025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN S. PLACEK

                            Appellant                  No. 729 WDA 2016


               Appeal from the Judgment of Sentence April 21, 2016
              In the Court of Common Pleas of Westmoreland County
                Criminal Division at No(s): CP-65-SA-0000502-2015


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                               FILED MAY 01, 2017

       John S. Placek appeals from the April 21, 2016 judgment of sentence

imposed by the Westmoreland County Court of Common Pleas following his

conviction for harassment.1 We affirm in part and vacate in part.

       This appeal arose from an altercation on September 4, 2015 between

Placek and the victim, Kim Schacher, in which Placek shoved Schacher,

slapped Schacher’s phone from his hand, and slammed Schacher’s arm in a

metal door. On April 21, 2016, after a summary appeal trial, the trial court

convicted Placek of one count of harassment and sentenced him to pay a



____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. § 2709(a)(1).
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$200.00 fine and $233.91 in restitution.    On May 16, 2016, Placek timely

appealed to this Court.

      Placek presents one question for our review:
         WHETHER THE TRIAL COURT ERRED IN ALLOWING AN
         INSURANCE DOCUMENT TO BE INTRODUCED TO
         ESTABLISH THE OUT OF POCKET EXPENSES OR MEDICAL
         BILLS INCURRED BY THE ALLEGED VICTIM AND IN
         ORDERING RESTITUTION IN THE AMOUNT OF $233.91
         BASED ON SUCH DOCUMENT[.]

Placek’s Br. at 4.

      An allegation that a restitution order is unsupported by the record is a

challenge to the legality, rather than the discretionary aspects, of a

sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa.Super.

2010).   The determination of whether the trial court imposed an illegal

sentence is a question of law, and our standard of review is plenary. Id.

      Section 1106 of the Crimes Code authorizes mandatory restitution as

part of a defendant’s sentence. The statute provides that “[u]pon conviction

for any crime . . . wherein the victim suffered personal injury directly

resulting from the crime, the [defendant] shall be sentenced to make

restitution in addition to the punishment described therefor.”    18 Pa.C.S.

§ 1106(a). The statute further mandates that the trial “court shall order full

restitution . . . [r]egardless of the current financial resources of the

defendant, so as to provide the victim with the fullest compensation for the

loss.” Id. § 1106(c)(1)(i).




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      The Commonwealth bears the burden of proving its entitlement to

restitution.    Atanasio, 997 A.2d at 1183.             The amount of restitution is

limited by the loss or damages directly resulting “from the defendant’s

criminal     conduct   and     by   the    amount      supported    by    the   record.”

Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999).
           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.   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. The court must also ensure that the
           record contains the factual basis for the appropriate
           amount of restitution. In that way, the record will support
           the sentence.

Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.Super. 2007) (internal

citations omitted).

      Here, the trial court’s restitution order was based solely on a

September 11, 2015 explanation of benefits (“EOB”) issued to Schacher by

his insurer, Anthem Blue Cross.            See Cmwlth.’s Ex. 7 at 1.            The EOB

identifies     the   medical   provider         as   MedExpress    Urgent    Care,   PC

(“MedExpress”) and the date of service as September 4, 2015. Id. The EOB

provides, “It is your responsibility to pay:             $233.91[.]      It is not your

responsibility to pay: $139.09.”          Id.    It also provides, “Member’s Medical

Deductible Applied to Date: $233.91.” Id. A line at the bottom of the EOB

states, “THIS IS NOT A BILL.” Id. (capitalization in original).



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     At trial, Schacher testified that shortly after the altercation with

Placek, he went to MedExpress to have his arm examined.        According to

Schacher, “[t]hey took X-rays and so forth, and said there was no fracture.

And they gave me a prescription for medication and said wrap it and put ice

on it.” N.T., 4/21/16, at 16. The Commonwealth then sought to introduce

two documents: a treatment record from MedExpress and the September

11, 2015 EOB. The following exchange occurred on the record:

        [COMMONWEALTH]: Okay. If I could, Your Honor, have
        this marked as Commonwealth’s 6 and 7?

        THE COURT: Which are?

        [COMMONWEALTH]: This would be the medical [record]
        that stated that [Schacher] received treatment on
        [September] 4th at MedExpress, and this is a bill.
        Number 7 would be the bill.

        THE COURT: All right. They may be marked.          Do you
        have any objection to their admission?

        [DEFENSE COUNSEL]: I have no objection to the actual
        medical record as corroborative that he went and
        somebody noted a contusion, but with respect to
        Number 7, it’s actually not a bill. It’s an insurance
        claim form. Again, that my problem here. I don’t even
        know what that – I mean, I could speculate that [it]
        represents possibly a co-pay or deductible, but it’s not a
        “bill” bill. It’s an insurance . . . summary kind of form.

                                   ...

        THE COURT: I’m going to admit both of those, but admit
        7 subject to review as to its relevance.




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Id. at 16-17 (emphases added).        The Commonwealth offered no further

evidence regarding Schacher’s medical expenses, nor did it offer any

testimony to explain the information on the EOB.

      At the conclusion of the trial, after finding Placek guilty of harassment,

the trial court stated, “I’m ordering that you pay a fine of $200.00, and that

you pay medical restitution in the amount of $233.91.” Id. at 50. Defense

counsel again objected:

         [DEFENSE COUNSEL]:     I object to that restitution
         order, Your Honor, just so you note it. That’s not a
         bill.

         THE COURT: Your objection is noted, but the Exhibit
         Number 7 states, “It is your responsibility to pay $233.91.”

         [DEFENSE COUNSEL]: Correct.

         THE COURT: Based on that, I’m suggesting that – I’m
         finding that the victim has a legal responsibility to pay that
         amount.

                                      ...

         [DEFENSE COUNSEL]: Okay, Your Honor.

             And just to be clear, my objection is more than that
         that’s not a bill. My objection is there’s really no, like,
         testimony as to, you know, the relation of that document –
         I think that’s Number 7 – to the document, Number 6,
         [it’s] a bunch of billing codes. My objection is not only
         that that document is not a bill, but the
         Commonwealth did not establish a $233.00 loss,
         Your Honor.

Id. at 50-51 (emphases added).

      Based on our review of the record, we agree with Placek that the trial

court erred in relying on the EOB in ordering restitution.      First, the EOB


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plainly states, “THIS IS NOT A BILL.” Cmwlth.’s Ex. 7 at 1. Because the

EOB is not a bill, Schacher had no obligation to pay MedExpress based on

the information in the EOB.        Second, the EOB indicates only the insurer’s

anticipated payment of benefits to MedExpress, not its actual payment. See

id. (“[Your] local Blue Cross and/or Blue Shield plan is responsible for the

payment of the claim.         Because of this, actual payment to your provider

might occur after you receive this [EOB].”)            As is often the case with

insurance claims, the amount indicated on an EOB as the patient’s potential

responsibility may differ from the amount for which the provider ultimately

bills the patient due to, among other reasons, the patient’s filing of an

appeal or secondary insurance coverage.           After the insurer (or insurers)

processes the claim, the medical provider will bill the patient for the

remaining balance, if any. For these reasons, we agree with Placek that the

EOB is speculative regarding the medical expenses Schacher incurred as a

result of his injury.

      It is well settled that “[a]n award for restitution should not be

speculative or excessive.       The general rule is that if the record does not

support the order of restitution[,] then such sentence should be vacated.”

Commonwealth            v.   Balisteri,   478   A.2d   5,   9   (Pa.Super.   1984).

Furthermore, the restitution statute “require[s] the Commonwealth to

exercise due diligence to ascertain the amount of restitution prior to the time




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of sentencing.” Commonwealth v. Ortiz, 854 A.2d 1280, 1283 (Pa.Super.

2004) (en banc) (citing 18 Pa.C.S. §1106(c)(4)).

       Here, the Commonwealth produced no evidence other than the EOB to

support its request for restitution.           The Commonwealth did not offer into

evidence an invoice from MedExpress or a receipt or canceled check

indicating that Schacher had paid $233.91 to MedExpress.                       Schacher

presented no testimony about the amount he was billed by, or paid to,

MedExpress.        Absent competent evidence of Schacher’s out-of-pocket

medical expenses, the Commonwealth failed to satisfy its burden of proving

its entitlement to restitution. See Atanasio, 997 A.2d at 1183.2

       Accordingly, because the restitution order is unsupported by the

record, we vacate that portion of Placek’s judgment of sentence imposing

restitution in the amount of $233.91. We affirm the remainder of Placek’s

judgment of sentence.

       Judgment      of   sentence    affirmed     in   part   and   vacated   in   part.

Jurisdiction relinquished.




____________________________________________


       2
       Placek does not dispute that MedExpress treated Schacher on
September 4, 2015, nor does he challenge the validity of the EOB. Rather,
Placek contends, and we agree, that the EOB alone does not prove
Schacher’s out-of-pocket medical expenses.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2017




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