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COMMONWEALTH PENNSYLVANIA v. CLEO FUQUA (06/27/79)

decided: June 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
CLEO FUQUA, APPELLANT



No. 615 April Term 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on January 9, 1978, at No. CC7706877.

COUNSEL

Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Spaeth

[ 267 Pa. Super. Page 506]

Appellant was tried by a judge sitting without a jury and was convicted of driving while under the influence of alcohol.*fn1 No post-verdict motions were filed*fn2 and appellant was sentenced to probation for one year and directed to make restitution. On this appeal appellant argues that the order of restitution was improper.

The evidence was to the following effect. In the early morning of October 15, 1977, appellant lost control of the

[ 267 Pa. Super. Page 507]

    automobile he was driving*fn3 with the result that it went off the road and struck the front of a house owned by Elvira Powell. Ms. Powell testified that she was awakened at approximately 4:50 A.M. on October 15 by a great impact against her house. She ran to her front door and tried to open it, but had some difficulty doing so as the door had jammed. When she finally succeeded in opening the door, she discovered that her front porch and part of the foundation of her house had been damaged. After placing a call to police, she went over to appellant, who was parked on a lot next door to the house and requested his license and information about his insurance. Appellant's speech was slurred and he was stumbling. The police soon arrived. Officer Stephan Kardell testified that appellant seemed to be intoxicated and that two half-pint bottles of gin were found on the front seat of the automobile. He further testified that the front of the automobile was damaged, as was the front of Ms. Powell's house. Appellant testified in his own behalf, and while he admitted that he had had a few drinks, he denied being intoxicated. He also testified that he had not crashed into Ms. Powell's house but had been forced off the road by another automobile, and that the damage done to the automobile he was driving had occurred when he had run into some boulders on the empty lot next door to the Powell house. Appellant was found guilty and was ordered to make restitution to Ms. Powell in the amount of $942.50.*fn4

An order of restitution or reparation*fn5 imposed either as a direct sentence or as a condition of probation

[ 267 Pa. Super. Page 508]

    constitutes a "constructive tool[ ] in the criminal justice jurisprudence." State v. Gerner, 115 Ariz. 579, 566 P.2d 1057 (1977); see Schafer, Restitution to Victims of Crime -- An Old Correctional Aim Modernized, 50 Minn.L.Rev. 243 (1965). Such sentences are to be encouraged as they constitute "an aid both to the criminal in achieving rehabilitation and to his victim in obtaining some measure of redress." Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 1185 (1979); see State v. Harris, 70 N.J. 586, 363 A.2d 32 (1976); Annotation, Propriety of Condition of Probation which Requires Defendant Convicted of Crimes of Violence to Make Reparation to Injured Victim, 79 A.L.R.3d 976 (1977). As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages.*fn6 See generally Rothstein, How the Uniform Crime Victims Reparation Act Works, 60 ABA J. 1531 (1974). While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by "impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so." State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976); see State v. Mottola, 84 N.M. 414, 504 ...


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