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filed: August 19, 1983.


No. 1348 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 3823/1981.


Robert A. Rovner, Feasterville, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Hester, Popovich and Hoffman, JJ.

Author: Popovich

[ 318 Pa. Super. Page 284]

This is an appeal from the judgment of sentence which was imposed upon appellant, Jeffrey Katz, after he entered pleas of guilty to charges of theft by unlawful taking or disposition,*fn1 burglary,*fn2 and criminal conspiracy.*fn3 The trial court sentenced appellant to a two year term of probation which was conditioned upon payment of restitution. We reverse and remand for the reasons herein stated.

On September 11, 1981, appellant was charged with burglary, theft by unlawful taking or disposition, criminal trespass, and theft by receiving stolen property stemming from the burglary of the D & A Kawasaki dealership in Trevose, Pennsylvania. Appellant and a co-defendant entered pleas of guilty. At the end of the guilty plea hearing on January 6, 1982, appellant was placed on conditional probation for a period of two years and directed to pay the costs of prosecution. However, the court announced that it could not determine the exact amount of restitution until a hearing was held. Approximately three months later, on March 29, 1982, a joint restitution hearing was held, and the trial court ordered the imposition of restitution in the amount of $40,000.00, with each defendant to pay a pro rata share of $20,000.00. This appeal followed.

Appellant argues that the trial court erred when it (1) ordered appellant to pay a pro rata share of restitution in the amount of $20,000.00 without considering appellant's ability to pay; and (2) found appellant and his co-defendant responsible for $40,000.00 worth of merchandise which was missing from the burglary site because this factual finding

[ 318 Pa. Super. Page 285]

    was based upon insufficient evidence. We agree, in part, with appellant's contention and reverse and remand for proceedings not inconsistent with this opinion.

At the outset, we must address the issue of the timeliness of the instant appeal sua sponte since the issue of the timeliness of an appeal is a jurisdictional one and has not been raised by the parties. See Commonwealth v. Gottshalk, 276 Pa. Super. 102, 104, 419 A.2d 115, 116 (1980).

Generally, an appeal must be taken within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a); see Commonwealth v. Gottshalk, supra. We have further delineated the prerequisites for taking an appeal and have said that:

"the date of the entry of the order is the day the court imposes sentence on the defendant, informs him of his right to appeal within 30 days, and enters the judgment on the docket." Id.

In the instant case, an interesting scenario is presented because on January 6, 1982, the date of appellant's guilty plea hearing, the trial court "placed [appellant] on probation for a period of two years". N.T. Guilty Plea Hearing at 9. The trial court also directed appellant to pay the costs of prosecution. Id. Because the prosecution was unable to ascertain the exact amount of restitution, the court announced the following:


"As an additional condition of probation, you are ordered to make restitution. If you can't determine the exact amount of restitution, we will have a hearing for that purpose.

MS. DEVLIN: We don't know the exact amount of restitution.

THE COURT: Well, we will have to wait, I suppose, and see what happens to the other young man involved in this case as well.

As soon as that is determined, it will be a condition of this probation that you make your pro rata share of the restitution.

[ 318 Pa. Super. Page 286]

Do you understand?


THE COURT: All right.

MR. ROVNER: Thank you very much, Your Honor.

THE COURT: You may have thirty days to pay the costs. (Hearing adjourned.)"

N.T. Guilty Plea Hearing at 9-10.

Subsequently, the court held a restitution hearing on March 29, 1982. At the close of the hearing, the trial court ordered the appellant and the co-defendant to make restitution in the amount of $40,000.00, with each defendant to pay $20,000.00. However, the trial court did not inform appellant inter alia of his right to appeal the sentence within thirty days or of his right to file a petition for reconsideration of sentence and the time limit for exercising such rights. See Pa.R.Crim.P. 1405.

In the instant case, a notice of appeal was filed on April 30, 1982, which was thirty-two days after the date that the court ordered restitution in the amount of $40,000.00, and one hundred and thirteen days after the date that the court ordered appellant to be placed on two years probation. Because the trial court failed to inform appellant "of his right to appeal and the time within which he must exercise such right", we cannot assume that "appellant's decision to exercise his appellate rights late was done in a knowing, intelligent, and voluntary manner." Commonwealth v. Thomas, 301 Pa. Super. 333, 337, 447 A.2d 994, 996 (1982). Thus, we are unable to quash the instant appeal when appellant was not aware that "an appeal had to be taken within thirty days of the date on which [the] court imposed his sentence. Accordingly, we will consider appellant's appeal as if it had been filed timely." Id.*fn4

Turning to the merits of appellant's argument, we recognize that in Pennsylvania, a trial court may order a defendant

[ 318 Pa. Super. Page 287]

    to pay restitution "to compensate the victim of his criminal conduct for the injury that he sustained." 42 Pa.C.S.A. § 9721(c). Additionally, the relevant portions of the restitution statute, 18 Pa.C.S.A. § 1106 provide:

"* * *

(c) Authority of sentencing court. -- In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:

(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.

(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution . . . shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted."

Of course, the Court has elaborated on the issue and stated the following:

"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. Commonwealth v. Fuqua [267 Pa. Super. 504, 510, 407 A.2d 24, 27 (1979)]."

Commonwealth v. Galloway, 302 Pa. Super. 145, 161, 448 A.2d 568, 576-577 (1982).

We also recognize that:

"it is incumbent upon a sentencing court, before it enters an order of restitution, to consider on the record

[ 318 Pa. Super. Page 288]

(1) the amount of the loss suffered by a victim; (2) the fact that such loss was caused by conduct of the defendant; (3) that the amount awarded does not exceed the defendant's ability to pay; and (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). See also Commonwealth v. Seminko, supra [297] Pa. Super. [418] at 420, 443 A.2d [1192] at 1193; Commonwealth v. Erb, [286 Pa. Super. 65, 81, 428 A.2d 574, 582 (1981); Commonwealth v. Fuqua, supra 267 Pa. Super. at 510, 407 A.2d at 27."

Commonwealth v. Wood, 300 Pa. Super. 463, 467, 446 A.2d 948, 949-50 (1982).

At the restitution hearing Arthur DiLarso, Jr., the owner of D & A Kawasaki, who also was the owner of the building which housed the retail establishment, testified that the building had been closed to the public and that an inventory had been taken of the business two months before the incident as part of the regular inventory process. (N.T. Restitution Hearing at 17). He also testified that the parts which had been missing had a retail value of $88,510.00. The retail value represented a markup figure of "between 40 and 50%". Id. at 21. However, DiLarso also stated that "[s]ome other items [we]re only 20%" markup. Id. at 21. A three page document labelled "Items missing as a result of break-in Date of offense: 9/10, 9/11/81" was introduced into evidence. Thus, it is clear that the record contains evidence of the victim's loss.

Appellant next contends that the record fails to support the trial court's conclusion that appellant and his co-defendant were responsible for the missing items which had a wholesale value of $40,000.00. We, however, are unable to resolve this issue because the record is incomplete at this stage.

The record shows that a witness, Gregory Bertino, who was about to take over as lessee of the building which housed the Kawasaki dealership testified that he had entered the building on September 10, 1981, and was the last

[ 318 Pa. Super. Page 289]

    one to leave. Later that night, he was driving by the building and noticed that the "back window was open, wide open." Restitution Hearing at 7. Although he did not notice any vehicle parked in the parking lot, he did notice a "Ford van" which was "at a parking lot down from the building", approximately one hundred feet away. Id. at 8. The witness noticed "two fellows standing outside the van"; however, he was unable to observe them closely. Id. At that time, Gregory Bertino went to the police station. Upon his return from the police station, he did not notice any van. The witness did notice, however, that inside the building "a lot of things were moved around and quite a few boxes of parts were stacked up in the office." Id. at 9.

The testimony of a police officer established that he had received a police call at about 1:00 a.m. on September 11, 1981. After arriving at the location, the police officer with another officer proceeded to search the building with the assistance of Gregory Bertino. The police found appellant "hiding in a bathroom adjacent to the basement area and also found appellant's co-defendant" in one portion of the business lying on the floor. Id. at 4. The police officers discovered that the actors had a "large rental truck approximately 16 feet in length", which was empty and parked approximately 200 feet from the Kawasaki dealership. Motorcycle parts were found in the pockets of one of the defendants, and "several boxes loaded with various types of motorcycle parts and accessories" were located "in the vicinity of the door inside the premises." Id. at 5.

The owner of the building testified that he had seen miscellaneous parts in two different locations outside the building. Id. at 19-20. Some were over near where the van had been parked, and the other parts were "on the ground leading out the hole in the fence," leading in the direction of the rental truck. Id. at 19.

Neither appellant nor his co-defendant testified at the restitution hearing. The appellant's and co-defendant's case consisted of the testimony of the investigating officer, a detective, and appellant's father. Appellant's father testified

[ 318 Pa. Super. Page 290]

    that he owned a company which rented the sixteen foot truck in question, but that his son had signed the papers "that evening." Id. at 50. The father testified that neither the company nor his son had access to a Ford van. Id. at 51.

On this state of the record, the trial court said:

"The defendants testified that they knew nothing of the other van and that they had arrived at the scene in the van which was found there. They testified that they had not removed anything and had not taken any of the items included on the itemized list by the victim except for a few items which were actually found on their possession when they were arrested. Therefore, they denied that they had taken any of the items which the owners claimed missing and therefore contend that they were not responsible for any restitution.

As the finder of fact we determined that the items which the owner claimed to be missing were, in fact, missing. We further determined that we did not believe the testimony of the two perpetrators but rather that there had been another van there with perhaps another confederate and that the items which were found missing had already been removed by the time the police arrived and apprehended the defendants. Essentially, we concluded that the defendants were still in the act of burglarizing the premises but had been interrupted after they had removed a substantial number of items. Based upon that we accepted the testimony of the owner regarding the retail value of the items which he found missing. However, the owner testified that the retail value was worth approximately twice the wholesale value of the goods, or the price he paid for them. Therefore, we determined that restitution in this case should be in the sum of $40,000 and allocated a pro rata share to each of the perpetrators apprehended in the sum of $20,000. With this we do not believe we erred and it explains the reason for our order."

Trial Court's Opinion at 3-4. (Emphasis added).

[ 318 Pa. Super. Page 291]

The record at this stage does not support the trial court's summary of facts. In reviewing the trial court's determination, this Court must consider facts only of record. See Commonwealth v. Rini, 285 Pa. Super. 475, 427 A.2d 1385 (1981). The trial court's opinion is not considered part of the record. Commonwealth v. Schwartz, 267 Pa. Super. 170, 172-73, 406 A.2d 573, 574 (1979); see also Pa.R.A.P. 1921.

The record shows that neither the appellant nor the co-defendant testified at the restitution hearing. The record of the guilty plea hearing also fails to indicate that the appellant denied taking the items which the owner claimed were missing. In fact, appellant said "I can't give you a reason why I did it besides the fact that I wanted the stuff."*fn5 Guilty Plea Hearing at 9.

Although the record shows that appellant was responsible for the burglary of the Kawasaki dealership, we are unable to review the amount of restitution ordered by the trial court at this stage because (1) appellant did not have an opportunity to object to the manner at which the trial court arrived at its conclusion that appellant had caused the victim $20,000.00 worth of damage;*fn6 and, (2) the

[ 318 Pa. Super. Page 292]

    record contains no evidence of appellant's ability to pay and the type of payment which will best serve the needs of the victim and the appellant's capabilities.*fn7 This also should be corrected on remand. See Commonwealth v. Galloway, 302 Pa. Super. at 162, 448 A.2d at 577 ("No findings were made concerning the amount of damages nor the ability to Appellant to pay restitution[,]" and as a result, a remand was necessary.) See, generally, Annotation, Conditioning Probation upon Restitution, 73 A.L.R.3d 1240 (1976).

The reason for imposing these requirements on the trial court is because

"The purpose of a sentence of restitution and 'the reason for its imposition, is the rehabilitative goal it serves by "impressing upon the offender the loss he had cause and his responsibility to repair that loss as far as it is possible to do so."' Commonwealth v. Kerr, [298] Pa. Super. [257], [260], 444 A.2d 758, 760 (1982), quoting Commonwealth v. Erb, supra 286 Pa. Super. at 79, 428 A.2d at 581 and Commonwealth v. Fuqua, supra 267 Pa. Super. at 508, 407 A.2d at 26 (emphasis omitted and supplied). '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 [or parole], 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.' Commonwealth v. Fuqua, supra, 267 Pa. Superior Ct. at 509, 407 A.2d at 26 (footnote omitted)."

[ 318 Pa. Super. Page 293]

Commonwealth v. Wood, 300 Pa. Super. 463, 467-68, 446 A.2d 948, 950 (1982).*fn8 (Emphasis in original).

The judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.

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