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[U] Commonwealth v. Boyer

Superior Court of Pennsylvania

July 23, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHANE BOYER, Appellant, COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHANE BRADLEY BOYER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on August 20, 2012 in the Court of Common Pleas of Somerset County, Criminal Division, Nos. CP-56-CR-0000092-2012, CP-56-CR-0000764-2011

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

In this consolidated appeal, Shane Bradley Boyer ("Boyer") appeals from the judgments of sentence imposed after he pled guilty to one count each of burglary, theft, criminal mischief, and criminal trespass. See 18 Pa.C.S.A. §§ 3502(a); 3921(a); 3304(a)(5); 3503(a)(1)(ii). We affirm.

Underlying the appeal at case No. 764 Criminal 2011, on February 9, 2012, Boyer pled guilty to one count each of burglary, theft and criminal mischief. Underlying the appeal at case No. 92 Criminal 2012, on April 12, 2012, Boyer pled guilty to one count of criminal trespass. Both cases arose from separate instances of the theft of pharmaceutical drugs from two pharmacies. Subsequently, the trial court sentenced Boyer to an aggregate term of 24 months in a State Intermediate Punishment Program, to be followed by two years of probation. Additionally, the court ordered restitution of $33, 801.23 in case No. 764 Criminal 2011, and $9, 667.74 in case No. 92 Criminal 2012.

Thereafter, Boyer submitted sentence modification Motions for each of the cases, arguing in both instances that the award of restitution could not stand due to the court's reliance on unsubstantiated evidence. The trial court scheduled a hearing on the Motions. At the hearing, the Commonwealth provided two inventory lists: the first, obtained from the insurance company that reimbursed the victims for items stolen by Boyer, was a copy of a police report from the first incident; the second was an original police report of the items stolen during the second incident. Subsequently, the trial court denied the Motions.

Boyer filed timely Notices of appeal. The trial court ordered Boyer to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Boyer filed a timely Concise Statement, after which the trial court issued an Opinion. This Court then consolidated Boyer's appeals.

On appeal, Boyer raises the following question for our review:
Whether the restitution award was improper, based upon the failure of the Commonwealth to provide any explanation or basis, whatsoever, for the calculation of the restitution, especially when the Commonwealth was granted a continuance to do so, and failed to do so, and when the Commonwealth admitted that it could not support "a claim other than the deductible?"

Brief for Appellant at 4 (capitalization omitted).

An appeal based on a restitution order, allegedly unsupported by the record, challenges the legality of a sentence. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2006). "The determination as to whether the trial court imposed an illegal sentence is a question of law: our standard of review in cases dealing with questions of law is plenary." Commonwealth v. Williams, 868 A.2d 529, 532 (Pa. Super. 2005).

Boyer claims that the trial court issued illegal sentences by ordering restitution based on the Commonwealth's introduction of unsubstantiated evidence, in violation of Pa.R.E. 803(6), [1] thereby invalidating the trial court's application of 18 Pa.C.S.A. § 1106(c), the mandatory restitution statute. Brief for Appellant at 7-9. Boyer asserts that because the Commonwealth failed to comply with the rules of evidence and due process, the restitution award must be vacated. Id. at 10.

Section 1106(c), provides inter alia, that "the court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company."[2] 18 Pa.C.S.A. § 1106(c)(1)(i) (emphasis added). Where appropriate, in calculating the proper amount of restitution to be ordered, the statute dictates, "it shall be the responsibility of the district attorneys … to make a recommendation to the court … as to the amount of restitution to be ordered." Id. § 1106(c)(4)(i). The statute further provides that "[w]here the district attorney has solicited information from the victims … and has received no ...


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