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COMMONWEALTH PENNSYLVANIA v. THOMAS HARRY KERR (04/16/82)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 16, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS HARRY KERR, APPELLANT

No. 178 Pittsburgh, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mercer County, No. 419 Criminal 1980.

COUNSEL

Robert G. Kochems, Public Defender, Mercer, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Wieand, Johnson and Montemuro, JJ. Johnson, J., concurs in the result.

Author: Wieand

[ 298 Pa. Super. Page 258]

This is an appeal from a judgment of sentence imposed following entry of a plea of guilty to theft by unlawful taking. Thomas Harry Kerr, the appellant, contends that because the victim was insured and received compensation from his insurer for the loss sustained, appellant could not properly be directed, as a part of his sentence, to make restitution.*fn1 We disagree and affirm the judgment of sentence.

[ 298 Pa. Super. Page 259]

The Commonwealth contends that the issue of restitution has been waived by appellant's failure to file a motion to "modify" his sentence in accordance with Pa.R.Crim.P. 1410. Appellant's contention, however, is that the sentence imposed by the trial court is unauthorized and illegal. An illegal sentence cannot be waived. Commonwealth v. Walker, 468 Pa. 323, 330, 362 A.2d 227, 230 (1976); Commonwealth v. Brazzle, 272 Pa. Superior Ct. 438, 442, 416 A.2d 536, 539 (1979); Commonwealth v. Albertson, 269 Pa. Superior Ct. 505, 510 n.7, 410 A.2d 815, 817 n.7 (1979); Commonwealth v. Young, 256 Pa. Superior Ct. 392, 394, 389 A.2d 1180, 1181 (1978); Commonwealth v. Stouffer, 241 Pa. Superior Ct. 142, 146 n.2, 359 A.2d 829, 831 n.2 (1976). But cf. Commonwealth v. Lauer, 265 Pa. Superior Ct. 542, 402 A.2d 678 (1979). Thus, we are required to consider the merits of appellant's argument.

"In Pennsylvania restitution can be imposed either as a condition of probation or as a direct sentence." Commonwealth v. Erb, 286 Pa. Superior Ct. 65, 73, 428 A.2d 574, 578 (1981) quoting Commonwealth v. Fuqua, 267 Pa. Superior Ct. 504, 509, 407 A.2d 24, 26 (1979). Authority for ordering restitution as a direct sentence is contained in Section 9721(c) of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9721,*fn2 which provides:

(c) Restitution. -- In addition to the alternatives set forth in subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.

Authority to order restitution as a sentence is also conferred by Section 1106 of the Crimes Code, Act of June 18, 1976, P.L. 394, No. 86, § 1, as amended, Act of April 28,

[ 298 Pa. Super. Page 2601978]

, P.L. 202, No. 53, § 7(5), 18 Pa.C.S.A. § 1106, which provides:

§ 1106. Restitution for injuries or property

(a) General rule. -- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.

(b) Condition of probation or parole. -- Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.

Appellant and one Walter Gramsky removed $2,683.67 from the safe of appellant's employer, after having broken a window in the place of business and having drilled a hole in the safe to divert suspicion from appellant. The loss and damages caused were in the total amount of $3,271.68. It was this amount for which appellant was directed to make restitution. Appellant contends that the victim's only loss was $600.00 because all amounts in excess thereof were covered by insurance. He argues that restitution in excess of $600.00 is in reality a payment to an insurance company. Inasmuch as the insurer was not the victim of his crime, he argues, the order of restitution was improper. We reject this argument for several reasons.

In the first place, appellant's argument misconstrues the purpose and intent of the statutes authorizing restitution. "As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages. 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." Commonwealth v. Erb, supra, 286 Pa. Super. at 77-79, 428 A.2d 574, 580-581 (1981) quoting

[ 298 Pa. Super. Page 261]

    sentence into an order directing payment to one who was not the victim of the crime. Appellant has no standing to question contractual or subrogation rights which govern disposition of moneys paid via restitution to the victim. As the court of a sister state observed in State v. Rose, 45 Or.App. 879, 881, 609 P.2d 875, 876 (1980), "[t]he owner of the stolen vehicle is the 'victim' and restitution will be paid to him. The fact that the owner may be contractually bound to pass on the payments to his insurer does not alter the validity of the order; '[t]he reparation statute is a rehabilitative tool of the criminal law; its applicability should not be affected by the happenstance of whether the owner carries insurance.'"

The judgment of sentence is affirmed.


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