from the Order Entered January 21, 2014, in the Court of
Common Pleas of Fulton County Criminal Division at No.
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
OPINION IN SUPPORT OF REVERSAL
agree that the trial court erred to the extent it ordered
restitution as a condition of appellant's probation under
Section 9754(c)(8) of the Sentencing Code. As explained in
the Opinion in Support of Affirmance, restitution cannot be
imposed as both a condition of probation and as part of a
defendant's sentence under Section 1106(a) of the Crimes
Code. Furthermore, the trial court did not determine
appellant's ability to pay as required under Section
9754(c)(8). However, we are constrained to disagree that the
victim's parents were entitled to mandatory restitution
under Section 1106(a) for their son's funeral expenses.
we note that
[i]n the context of criminal proceedings, an order of
restitution is not simply an award of damages, but, rather, a
sentence. An appeal from an order of restitution based upon a
claim that a restitution order is unsupported by the record
challenges the legality, rather than the discretionary
aspects, of sentencing. 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
Commonwealth v. Stradley, 50 A.3d 769, 771-72
(Pa.Super. 2012) (citations and quotation marks omitted);
see also id. (stating that because "[the
appellant's] claim on appeal challenges the legality of
his sentence, its review is not abrogated by the entry of his
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super.
Restitution is a creature of statute and, without express
legislative direction, a court is powerless to direct a
defendant to make restitution as part of his sentence.
Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702,
704 (1992). Where that statutory authority exists, however,
the imposition of restitution is vested within the sound
discretion of the sentencing judge. Commonwealth v.
Keenan, 853 A.2d 381, 383 (Pa.Super. 2004); see also
id. (stating that "[t]he primary purpose of
restitution is rehabilitation of the offender by impressing
upon him that his criminal conduct caused the victim's
personal injury and that it is his responsibility to repair
the injury as far as possible.").
Id. "The court is required to specify the
amount of restitution at sentencing, but may modify its order
at any time provided that it states its reasons for any
modification on the record." Commonwealth v.
Solomon, 25 A.3d 380, 389-390 (Pa.Super. 2011),
appeal denied, 40 A.3d 1236 (Pa. 2012), citing
Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa.
In the context of a criminal case, restitution may be imposed
either as a direct sentence, 18 Pa.C.S. § 1106(a), or as
a condition of probation, 42 Pa.C.S. § 9754. When
imposed as a sentence, the injury to property or person for
which restitution is ordered must directly result from the
crime. See 18 Pa.C.S.A. § 1106(a);
Harner, 533 Pa. at 21, 617 A.2d at 704. However,
when restitution is ordered as a condition of probation, the
sentencing court is accorded the latitude to fashion
probationary conditions designed to rehabilitate the
defendant and provide some measure of redress to the victim.
Harner, 533 Pa. at 21-22, 617 A.2d at 706. As this
Court stated in Harner:
Such sentences are encouraged and give the trial court the
flexibility to determine all the direct and indirect damages
caused by a defendant and then permit the court to order
restitution so that the defendant will understand the
egregiousness of his conduct, be deterred from repeating this
conduct, and be encouraged to live in a responsible way.
Harner, 533 Pa. at 22, 617 A.2d at 707; see also
Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179,
1185 (1979). Thus, the requirement of a nexus between the
damage and the offense is relaxed where restitution is
ordered as a condition of probation. See Harner, 533
Pa. at 22-23 & n. 3, 617 A.2d at 707 & n. 3; see
also 42 Pa.C.S. § 9754(c)(8).
In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes
Crimes Code, 18 Pa.C.S.A. § 1106, provides, in relevant
part, as follows:
(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 of the crime, or wherein the
victim suffered personal injury directly resulting from the
crime, the offender shall be sentenced to make
restitution in addition to the punishment prescribed
(b) Condition of probation or
parole.--Whenever restitution has been ordered
pursuant to subsection (a) and the offender has been placed
on probation or parole, his compliance with such order may be
made a condition of such probation or parole.
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. The court shall not reduce a
restitution award by any amount that the victim has received
from the Crime Victim's Compensation Board or other
governmental agency but shall order the defendant to pay any
restitution ordered for loss previously compensated by the
board to the Crime Victim's Compensation Fund or other
designated account when the claim involves a government
agency in addition to or in place of the board. 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
(ii) If restitution to more than one person is set at the
same time, the court shall set priorities of payment.
However, when establishing priorities, the court shall order
payment in the following order:
(B) The Crime Victim's Compensation Board.
(C) Any other government agency which has provided
reimbursement to the victim as a result of the
defendant's criminal conduct.
(D) Any insurance company which has provided reimbursement to
the victim as a result of the defendant's criminal
(2) At the time of sentencing the court shall specify the
amount and method of restitution. In determining the amount