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submitted: March 23, 1983.


No. 2918 Philadelphia 1981, Appeal from the Judgment of Sentence, October 14, 1981, Court of Common Pleas, Luzerne County, Criminal Division at No. 752 of 1981.


Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Johnson

[ 319 Pa. Super. Page 353]

This appeal presents the question of whether a sentencing court may order a defendant to make restitution of the costs and expenses related to the death of an accident victim when the defendant has not been found criminally responsible for the act which resulted in the accident victim's death. We think not and therefore vacate that portion of the judgment of sentence providing for restitution, and affirm the sentence of imprisonment.

On September 8, 1981, Paul J. Cooper, Sr., appellant herein, entered a counseled plea of guilty to a charge of Accident Involving Death or Personal Injury following the death of a twelve-year-old boy who was struck by appellant's automobile on January 28, 1981 in Newport Township, Luzerne County. The offense of Accidents Involving Death or Personal Injury is defined in the Motor Vehicle Code as follows:

§ 3742. Accidents involving death or personal injury

(a) General rule. -- The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements

[ 319 Pa. Super. Page 354]

    of section 3744 (relating to duty to give information and render aid.)*fn1 Every stop shall be made without obstructing traffic more than is necessary.

75 Pa.C.S.A. § 3742. Following the acceptance of appellant's guilty plea, he was sentenced to undergo imprisonment in the Luzerne County Prison for a minimum of six (6) months and a maximum of twelve (12) months. In addition, appellant was ordered to pay the costs of prosecution and to "pay the family of the victim all costs and expenses incurred by them directly connected with the death of [the victim]."*fn2

As support for the imposition of restitution, the sentencing court relied upon Section 1321(c) of the Sentencing Code*fn3 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 [sic] sustained.

In interpreting the authority to impose restitution found in the Sentencing Code, we are guided by the Crimes Code provision*fn4 that further defines the sentencing court's power to impose restitution. In pertinent part, it provides:

(a) General rule -- Upon conviction for any crime . . . 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 therefore.

18 Pa.C.S.A. § 1106(a) (1982 Supplement) (emphasis added).

The difficulty we have with the restitution imposed by the sentencing court is that the death of the victim was

[ 319 Pa. Super. Page 355]

    not the result of the actions for which appellant has been held criminally responsible. The summary of facts at the guilty plea hearing indicated that appellant struck the victim and inflicted fatal injuries. In pleading guilty appellant admitted only that he violated the law when he left the scene of the accident without rendering aid or providing the information required by 75 Pa.C.S.A. § 3744.*fn5 He did not admit that he was in any way criminally responsible for having struck the accident victim. Nor was appellant charged with any offense purporting to hold him criminally responsible for the victim's death. Indeed a review of the guilty plea record suggests that such charges may well have been considered and found unsupportable.*fn6 Thus, the death of the victim stemmed from the collision itself, not

[ 319 Pa. Super. Page 356]

    appellant's act of leaving the scene of the accident, and appellant was not charged or convicted of any crime holding him criminally responsible for having struck and killed the victim.

In other jurisdictions where this problem has arisen, it has been held that restitution is permissible only as to losses flowing from the conduct for which the defendant has been held criminally accountable. See e.g. Fresneda v. State, 347 So.2d 1021 (Supreme Court of Fla. 1977); People v. Becker, 349 Mich. 476, 84 N.W.2d 833 (1957); State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939). In the Michigan case of People v. Becker, supra, a case similar to the instant case, the defendant pled guilty to unlawfully leaving the scene of an accident involving personal injury to two pedestrians. As a condition to the probation imposed by the court, it was ordered that defendant make restitution of $1,244.48 to the injured pedestrians. On appeal the Supreme Court of Michigan describing the facts before it related that "the criminal has been convicted of one charge, but his freedom from incarceration [i.e. the restitution condition attached to his probation] is related to another act, precedent in time, with respect to which neither criminal nor civil complaint has been made." The court vacated the restitution holding that:

[E]ven where imposition of the restitution requirement is held to be proper under the circumstances of the particular case before the court, it can be imposed only as to loss caused by the very offense for which defendant [sic] was tried and convicted. As to other crimes or offenses there has been no fixing of his liability therefore in a constitutional sense.

Id. at 486, 84 N.W.2d at 838. The holding of the Becker court is grounded upon the rationale that a defendant is denied due process of law when the losses for which restitution has been imposed did not arise from the action for which defendant has been held criminally accountable. We share the constitutional concern of the Becker court as to the restitution before us, because appellant has not been

[ 319 Pa. Super. Page 357]

    held criminally accountable for the actions which resulted in the death of the accident victim.*fn7

We are convinced that the holdings in Becker and similar cases from other jurisdictions are consistent with our Crimes Code provision authorizing a sentencing court to impose restitution when the injuries to the victim "directly [ result ] from the crime." We therefore are constrained to vacate that portion of judgment of sentence which commanded appellant to pay restitution to the family of the victim.*fn8

As a second issue raised on this appeal, it is alleged that the sentence of imprisonment was "excessive and without regard to the circumstances of the offense and the character of the defendant."

A sentencing judge in Pennsylvania is vested with broad discretion in determining an appropriate sentence for a defendant. This court will not reverse a judgment of sentence unless a manifest abuse of discretion is shown. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Michenfelder, 268 Pa. Super. 424, 408 A.2d 860 (1979). In imposing confinement, the sentencing judge must consider whether his sentence is the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Martin 466 Pa. 118, 351 A.2d 650 (1976); 42 Pa.C.S.A. § 9721.

[ 319 Pa. Super. Page 358]

We have examined the sentencing record. Evidence was presented to the sentencing judge concerning appellant's health, character, employment status, contrition, and the circumstances of the offense. A pre-sentence report was considered by the sentencing judge. From this evidence, the sentencing judge concluded that appellant should receive a sentence of imprisonment. The reasons expressed by the sentencing judge for the sentence were that a life had been taken as a result of the occurrence, the pre-sentence report, the gravity of the offense, and that appellant was in need of correctional treatment. These reasons are sufficient to justify the sentence imposed on appellant. That the sentencing judge did not assign weight to appellant's character evidence and mitigative arguments regarding the circumstances of the offense, does not require the conclusion that the sentence was manifestly excessive.

That portion of the judgment of sentence ordering restitution to the family of the victim is vacated. The sentence of imprisonment of six to twelve months is affirmed.

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