Submitted April 18, 2011.
Appeal from the Judgment of the Superior Court at
No. 210 EDA 2008, dated May 4, 2010, vacating the Judgment of Sentence
entered August 6, 2007 and remanding to the Court of Common Pleas of
Philadelphia County, Criminal Division at No. CP-51-CR-0400131-2005. 2010 PA
Super 79, 994 A.2d 1141 (Pa. Super. 2010) (en banc). Trial Court Judge:
Teresa M. Sermina, Judge. Intermediate Court Judges: Kate Ford Elliott,
President Judge, Correale F. Stevens, Judge, John L. Musmanno, Judge, John
T. Bender, Judge, Mary Jane Bowes, Judge, Susan Peikes Gantman, Judge,
Christine Donohue, Judge, Jacqueline O. Shogan, Judge, Cheryl Lynn Allen,
Jennifer O. Andress, Esq., Hugh J. Burns Jr., Ronald Eisenberg, Esq., Arnold H. Gordon, Esq., Philadelphia District Attorney's Office, Rufus Seth Williams, Esq., Office of the District Attorney of Philadelphia County, for Commonwealth of Pennsylvania.
David Scott Rudenstein, Esq., for Andre Hall.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
CASTILLE, Chief Justice.
The issue in this appeal is whether the sentencing court properly ordered a convicted defendant, as a condition of probation, to pay amounts representing child support to the children of the victim of the defendant's crime (here, voluntary manslaughter). The Superior Court held that such a condition was not permitted as a matter of law, vacated the sentencing court's order and remanded for resentencing. For the reasons set forth below, we affirm on different grounds.
In 2004, appellee Andre Hall was romantically involved with Tamisha Towson. The two had an infant son together, but Towson remained in contact with her former husband, Jonathan Williams, with whom Towson also had two children, who
were then three and five years old. Williams apparently supported his children with Towson financially, but there was not a formal agreement in place. The relationship between Towson and Williams remained amicable, with Williams visiting his children at Towson's residence on North 64th Street near Haverford Avenue in Philadelphia frequently, even daily. However, the relationship between Williams and appellee was strained.
On December 12, 2004, appellee and Towson were asleep until about 6:00 a.m., when Williams called and asked if he could come to the residence. Towson initially said no, but after two more phone calls, Towson agreed to let Williams visit and appellee began getting dressed to leave. When appellee reached his car outside, a confrontation began with Williams, who was already in the neighborhood when he phoned Towson. During the encounter, Williams evidently walked up to appellee's driver's side window and reached behind his back which, appellee claimed, led him to believe that Williams might pull a firearm and shoot him. Appellee then shot Williams multiple times with a firearm for which he had a permit. Towson came out of the house, saw that Williams had been shot, and drove Williams to nearby Lankenau Hospital, where Williams was pronounced dead at 7:30 a.m. from three gunshot wounds; the post-mortem medical examination determined that the fatal shot was fired from about two feet away and pierced Williams's liver and the bottom of his heart. Later that day, appellee surrendered to the Philadelphia police and was charged with murder generally and possession of an instrument of crime.
Appellee testified at his jury trial and claimed that he shot Williams in self-defense. He was convicted of voluntary manslaughter, 18 Pa.C.S. § 2503(b) (unreasonable belief of self-defense), and was acquitted of possession of an instrument of crime. On September 20, 2005, the Honorable M. Teresa Sarmina sentenced appellee to five to ten years of imprisonment, to be followed by ten years of reporting probation. The court also stated:
I really haven't thought it through a whole lot but partly because of the fact that the children are so intrinsically related— they're siblings, half siblings— one of the things that I am also going to do in this case as a condition of your sentence and with a view towards the rehabilitative needs and what you should be doing to repay for your offense in this case is to impose a duty of child support for the other two children as well as for your own. So, when you're paroled and you're working, part of what I'm ordering is that as long as you're on my sentence that you will also be contributing for the support of the other two children. I'm sure that's an issue that your attorney will challenge on appeal.
N.T., 9/20/05, at 44; Tr. Ct. Order, 9/20/05. In her Appellate Rule 1925(a)
opinion, the court explained that the child support provision was akin to restitution to victims as a condition of probation, and as such the condition was within her discretion in order " to compensate the [decedent's] surviving child [sic] for his [sic] loss, and to ensure that both [sic] siblings would grow up financially equal." Tr. Ct. Op., 12/13/05, at 9-10 (citing 18 Pa.C.S. § 1106 (enables restitution as part of direct sentencing) and 42 Pa.C.S. § 9721(c) (in addition to confinement, sentencing court " shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained" )). Although the court did not set forth a specific amount in her initial order and opinion, she later clarified the amount of child support for " decedent's children, based on ability to pay, at a rate of not less tha[n] $100 per child, a month." Tr. Ct. Order, 8/6/07.
On appeal to the Superior Court, appellee raised five issues, including the question of whether the trial court lacked statutory or other legal authority to order him to pay child support. In a memorandum opinion, the Superior Court affirmed appellee's conviction, but vacated the trial court's disposition directing child support. The Superior Court determined that neither the record nor the trial court's Rule 1925(a) opinion explained with sufficient clarity whether the court intended the sums to be paid by appellee to be part of his " sentence of restitution or as a condition of probation or both, or the legal basis for such an order." In light of the ambiguity, the Superior Court remanded to the trial court with instructions to " clarify the record and address [appellee's] sentencing claim." Super. Ct. Memorandum Op., 6/12/07, at 18-19.
On remand, the trial court held new sentencing proceedings on August 6, 2007. Appellee argued that imposition of child support as restitution was improper because it was oriented to the future, and therefore was speculative, whereas monetary probation conditions such as restitution are intended to compensate for past harm. The Commonwealth responded that if the child support obligation was characterized as a condition of probation, then the imposition of " future" support for the victim's children, based upon appellee's
ability to pay once he was released from incarceration, was not improper. After hearing both sides, the court stated that the child support obligation would stand as a condition of probation for rehabilitative purposes. N.T., 8/6/07, at 7-11, 22-23; Tr. Ct. Order, 8/6/07. The court further stated that the payments would be based on appellee's " ability to pay" and that the amount would be " no less than $100 per child per month." The court further stated: " And if you are not able to pay that, then that will be brought to my attention or to the attention of the probation department. Actually, that's going to be supervised. The supervision is going to be under the county supervision." N.T., 8/6/07, at 23. The court also added an order of restitution to the Victim Compensation Program in the amount of $3,583, which had been paid to the victim's family for funeral expenses. Id. at 11.
Upon appellee's further appeal, the trial court filed a second opinion. Citing Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702, 707 (1992), the court explained that a sentencing court's discretion to fashion conditions of probation, including financial obligations, is broad, particularly when a condition is designed to rehabilitate the defendant, provide the defendant with an understanding of the cruelty of his conduct, deter him from future criminal conduct, steer him towards a more responsible and law-abiding life, and provide some measure of redress to his victims. The court stated that imposition of child support was appropriate here " [d]ue to the unique intertwinement of the three children who would all be living in the same household" (Towson's children with both appellee and Williams). Tr. Ct. Op., 5/12/08, at 4. The court found it " singularly unfair" that upon release, appellee would be able to provide for his own child with Towson without being similarly compelled to provide some support to Williams's children, whom appellee had deprived of their father. The support payments, the court explained, were intended to " level the field [appellee] had disrupted when he killed the other children's father." The court also rejected appellee's alternative argument that imposing child support was an abuse of discretion, and that the trial court had improperly failed to make findings about the victim's history of supporting his children, and his future ability to continue doing so. Finally, the court rejected appellee's argument that the child support order was invalid because it did not take into account his ability to pay upon release from prison. The court stated that its order was indeed based on appellee's ability to pay, and a " hearing to determine the defendant's financial ability to pay can be held after the defendant is released from prison." Tr. Ct. Op., 5/12/08, at 3-6.
An en banc panel of the Superior Court vacated the child support aspect of the probationary sentence and remanded for resentencing in a 5-4 published opinion authored by the Honorable Jacqueline O. Shogan, over a dissenting opinion by the Honorable Cheryl Allen. Commonwealth v. Hall, 994 A.2d 1141 (Pa.Super.2010) ( en banc ). Construing 42 Pa.C.S. § 9754, which addresses orders of probation, the majority acknowledged that imposition of monetary obligations in this case amounted to restitution under subsection (c)(8) (as condition of probation, court may require defendant " [t]o make restitution of the fruits of his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby" ), and a rehabilitative condition under subsection
(c)(13) (as condition of probation, court may require defendant " [t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience" ). The majority noted as well that sentencing courts have relatively broad discretion when, as here, restitution is imposed as a condition of probation rather than as part of a defendant's direct sentence, and when it is intended to rehabilitate a defendant. However, the majority determined that, in this case " the true purpose behind the order was clearly to support the decedent's children and not to rehabilitate [appellee]." Id. at 1145 (emphasis in original).
The Superior Court majority also cited two other cases where it had held, inter alia, that it was error to order restitution to third parties who were not themselves victims of the crime. Commonwealth v. Langston, 904 A.2d 917 (Pa.Super.2006) (vacating order of restitution to guardians of child whose father was killed by defendant in drunk driving accident); Commonwealth v. Opperman, 780 A.2d 714 (Pa.Super.2001) (vacating order of restitution to insurance company), appeal denied, 568 Pa. 617, 792 A.2d 1253 (2001). The majority held that the child support condition in this case was improper because Williams's children, although " victimized" by the loss of their father, were not actual victims of the homicide. The court further noted that there had been no finding that Williams had been providing financial support for his children prior to his death, and the sentencing court also did not explain how it had arrived at the amount of the award. Finally, ...