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decided: June 27, 1979.


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.


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 P.2d 22 (1972). Thus a court's concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant. See Best & Birzon, Conditions of Probation; An Analysis, 51 Geo.L.J. 809 (1963); Merceret, Sentencing Alternatives to Fine & Imprisonment, 31 U.Miami L.Rev. 387 (1977).

In accordance with its primary duty to promote the rehabilitation of the defendant, the court in imposing restitution

[ 267 Pa. Super. Page 509]

    must make sure that the amount awarded not only does not exceed the victim's damages but also does not exceed the defendant's ability to pay. See State v. Garner, supra; State v. Harris, supra. If the amount of restitution imposed exceeds the defendant's ability to pay, the rehabilitative purpose of the order is disserved, especially where the restitution payment is a condition of probation, for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy.*fn7 As one court has stated:

Restitution can aid an offender's rehabilitation by strengthening the individual's sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community's interest in having the victims of crime made whole. However, conditioning probation on the satisfaction of requirements which are beyond the probationer's control undermines the probationer's sense of responsibility.

Huggett v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978).

In Pennsylvania restitution can be imposed either as a condition of probation or as a direct sentence.*fn8 The order of restitution in this case was a direct sentence imposed by authority of Section 1106 of the Crimes Code, which provides that "[u]pon conviction for any crime wherein property has

[ 267 Pa. Super. Page 510]

    been stolen . . . or its value substantially decreased as a direct result of the crime . . . the offender may be sentenced to make restitution in addition to the punishment prescribed therefor." 18 Pa.C.S. § 1106(a). See also 18 Pa.C.S. §§ 1106(b), 1354(c)(8) (condition of probation).

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Among the things the sentencing court must consider on the record are: the extent of the injury suffered,*fn9 see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant's action caused the injury and that he will be able to pay for it, see State v. Harris, supra ; and the type of payment -- lump sum or installment -- that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). Appellant argues*fn10 that here the order of

[ 267 Pa. Super. Page 511]

    restitution is not supported by the record because the lower court failed to make a specific finding that the property damage sustained by Ms. Powell was a direct result of appellant's crime of driving while under the influence.

[ 267 Pa. Super. Page 512]

Our own review of the record discloses that the court below did indeed fail to make such a finding on the record. Normally, where the lower court fails to support its sentence on the record, we will vacate the sentence and remand for resentencing. See Commonwealth v. Riggins, supra; Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978). In this case, however, the evidence is clear that the order of restitution was for the damages to the Powell house; the lower court did find that appellant did in fact collide with the house and cause the damage to the front porch and foundation. While the lower court should have specifically found that this damage was a direct result of appellant's crime of driving while under the influence, to remand for resentencing would be a useless procedural exercise. The missing specific finding is unmistakeably implied in the findings that the court did make.


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