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COMMONWEALTH PENNSYLVANIA v. SAM BALISTERI (05/18/84)

filed: May 18, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
SAM BALISTERI, APPELLANT



No. 556 Pittsburgh, 1982, Appeal from the Judgment of Sentence of April 28, 1982 in the Court of Common Pleas of Allegheny County, Criminal Division, No. 8105001A/8105002A 8105003A

COUNSEL

Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cavanaugh, Cirillo and Cercone, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Cercone

[ 329 Pa. Super. Page 151]

Appellant was convicted in a non-jury trial of two counts of involuntary deviate sexual intercourse;*fn1 three counts of indecent assault*fn2 and two counts of corruption of minors.*fn3 No post-trial motions were filed and appellant was sentenced to a total term of incarceration of four (4) to twelve (12) years to be followed by a five (5) year period of probation. He was further ordered to pay restitution in the amount of $7500 for the psychological treatment and counseling of the two minor victims. Appellant was also directed, as a condition of probation, to provide one hundred (100) hours per year of community service.

On May 27, 1982, appellant represented by the Office of the Public Defender filed a notice of appeal.*fn4 Pursuant to Pa.R.Crim.P., Rule 1925(b), the court directed appellant to

[ 329 Pa. Super. Page 152]

    file a concise statement of matters complained of on appeal. After appellant filed the requested statement,*fn5 the trial court, in its opinion, found that appellant had failed to file post-trial motions or a motion to modify the sentence and therefore he had not preserved any issues for appeal.*fn6 The court relied on Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Keysock, 236 Pa. Superior Ct. 474, 345 A.2d 767 (1975). On this appeal, appellant only pursues his claim that the sentence of restitution was illegal.

The illegality of a sentence of restitution is not a waivable issue and therefore, we may address appellant's contention. Commonwealth v. Kerr, 298 Pa. Superior Ct. 257, 444 A.2d 758 (1982); Commonwealth v. Stouffer, 241 Pa. Superior Ct. 142, 359 A.2d 829 (1976). Appellant's argument here is two-fold. First, he contends that while restitution is proper for personal injuries it is not appropriate for emotional or mental disturbances. Secondly, he contends that there was no evidence of record showing that his alleged conduct was responsible for the children's psychological difficulties.

Restitution was imposed pursuant to 18 Pa.C.S.A. ยง 1106, which reads:

(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 to the crime, or wherein the victim ...


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