No. 2725 Philadelphia 1981, Appeal from the Order of October 5, 1981 in the Court of Common Pleas of Bucks County, Criminal Division at No. 2889 of 1979.
Nancy Virginia Larkin, Assistant Public Defender, Doylestown, for appellant.
Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.
Wickersham, Rowley and Watkins, JJ.
[ 317 Pa. Super. Page 147]
This is an appeal from a restitution order in a burglary case. Under Commonwealth v. Fuqua, 267 Pa. Superior Ct. 504, 407 A.2d 24 (1979), the court imposing restitution must be sure that the amount awarded does not exceed the defendant's ability to pay. Concluding that the record below does not support the award made, we vacate and remand this matter for a full hearing on appellant's ability to pay, including his ability to acquire work, inter alia, as a model.
The appellant and his brother, Michael Valent, were arrested for the June 20, 1979 burglary of a home in Levit-town, Bucks County, Pennsylvania. Appellant entered a plea of guilty to burglary, 18 Pa.C.S.A. 3502, and other releted charges on January 22, 1980. His brother entered a plea of guilty to the same charges on April 1, 1980. Appellant was then sentenced to five years probation plus costs conditioned upon restitution. However, at the times the guilty pleas were entered, the value of the items taken were disputed by the defendants.
A joint restitution hearing was held for appellant and his brother on May 30, 1980 before the Honorable Harriet M. Mims and the Honorable William Hart Rufe, III, in the Court of Common Pleas of Bucks County, wherein the victims, Irving Kaplan and his wife, Yetta, claimed that $58,250.00 was the value of the items taken in the burglary. At the conclusion of this hearing, the appellant and his brother denied taking all of the items alleged to have been stolen. Subsequently, the Honorable Harriet M. Mims ordered appellant's brother to reimburse the Kaplans in the amount of $4,000.00 in thirty-six (36) periodic installments of $112.00 each. No restitution order was issued in the appellant's case, however, until a hearing on August 28, 1981, wherein appellant's probation was revoked because of new charges. He was then sentenced on three counts of the Information sub judice to one to twenty-three (1 to 23) months in prison concurrent with the time he was serving on the new charges, and on three other counts of the
[ 317 Pa. Super. Page 148]
subject Information to a term of five (5) years probation consecutive to his incarceration. The restitution ordered was for the appellant to pay the Kaplans $29,125.00 or one half of the value of the amount of the items taken with the terms to be set out by the probation office.
Appellant filed Motion for Reconsideration, a hearing was held, and on October 5, 1981, the court issued an order denying appellant's Motion to Reduce Restitution ordered at the time of his sentence. This appeal followed.
Appellant raises two issues on appeal: (1) Is the $29,125.00 restitution order excessive as exceeding one half of the victim's actual damages? (2) Does the ordered restitution exceed the appellant's ability to pay?
Dealing first with the issue of appellant's ability to pay, we note that at the time of this appeal appellant was on prison work release earning take-home pay of $145.00 per week as a cook. Minus weekly expenses, the appellant cleared $40.00 every week or $160.00 per month. If appellant pays out $112.00 in restitution ...