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Commonwealth v. Biauce

Superior Court of Pennsylvania

May 15, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DONALD BIAUCE Appellant

         Appeal from the Order June 10, 2016 In the Court of Common Pleas of McKean County Criminal Division at No(s): 261 CR 1984.

          BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

          OPINION

          GANTMAN, P.J.

         Appellant, Donald Biauce, appeals from the order entered in the McKean County Court of Common Pleas, which granted the Commonwealth's petition to change the payee of mandatory restitution from Ralph Porch ("Victim") to the estate of the deceased Victim. We affirm.

         The relevant facts and procedural history of this case are as follows. Victim was driving his vehicle on November 15, 1984, with his wife, Jean Porch, who was a passenger. Victim noticed Appellant standing on the side of the road, next to a stopped vehicle. Victim began to slow down until he saw that Appellant had a rifle on his person. After seeing the rifle, Victim increased his speed. Appellant fired shots at Victim's vehicle, which directly struck Victim; the shattered glass from the windshield injured Victim's wife. Victim continued driving until he located the police and reported the incident. Victim's injuries were part of a two-day crime spree by Appellant.

         As a result of the crime spree, a jury convicted Appellant on April 30, 1985, of four counts of attempted murder, two counts each of aggravated assault, unlawful restraint, burglary, and theft, and one count each of robbery and resisting arrest. On September 27, 1985, the court sentenced Appellant to forty-four (44) to eighty-eight (88) years' incarceration and ordered Appellant to pay restitution to three (3) victims. Regarding Victim Ralph Porch, the court ordered Appellant to pay restitution in the amount of $9, 975.68, plus future medical expenses.

         On April 15, 2016, the McKean County Adult Probation Department received correspondence from Francis Porch, Trustee, regarding the establishment of Victim Ralph Porch's estate and the creation of a trust. The Commonwealth filed a petition on April 22, 2016, to amend the payee of the restitution order from Ralph Porch to the Estate of Jean and Ralph Porch, with the Trustee of Francis Porch. Appellant filed a pro se answer in opposition on June 1, 2016. On June 10, 2016, the court granted the Commonwealth's petition with explanation and changed the payee of the restitution to the Estate of Jean and Ralph Porch, with the Trustee of Francis Porch. The amount of restitution remained the same. Appellant filed a pro se notice of appeal on June 28, 2016. The trial court ordered Appellant on July 6, 2016, to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The order was served on July 7, 2016. Appellant deposited his Rule 1925(b) statement in the prison mail on July 26, 2016, within the twenty-one day period. See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997) (holding the prison mailbox rule applies to all appeals by pro se prisoners).

         Appellant raises the following issues for our review:

DID THE TRIAL COURT ER[R] WHEN IT GRANTED A MOTION TO MODIFY A RESTITUTION ORDER GRANTING PAYMENT TO A THIRD PARTY OR ESTATE WHO IS NOT THE VICTIM OF THE CRIME?
DID THE TRIAL COURT ER[R] WHEN IT GRANTED A MOTION TO MODIFY A RESTITUTION ORDER AFTER 30 YEARS WITHOUT A HEARING WHICH VIOLATED [APPELLANT'S] DUE PROCESS RIGHTS IN ACCORDANCE WITH THE CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA AND THE UNITED STATES CONSTITUTION?
DID THE TRIAL COURT ER[R] WHEN IT ORDERED THE ENTIRE RESTITUTION AMOUNT OF $9, 975.68 WHEN [APPELLANT] HAS BEEN MAKING ACT 84 PAYMENTS SINCE 2000?
DID THE TRIAL COURT ER[R] WHEN IT ORDERED RESTITUTION TO AN ESTATE WHENAN ESTATE DOES NOT QUALIFY FOR OR IS DEFINED AS A VICTIM UNDER 18 PA.C.S.A [§] 1106(H)?
DID THE TRIAL COURT ER[R] WHEN IT GRANTED A MOTION TO MODIFY A RESTITUTION ORDER WHEN IT LACKED THE JURISDICTION UNDER 42 PA.C.S.A. [§] 5505 AND THE DISTRICT ATTORNEY NEVER ARGUED ANY JUST CAUSE FOR THE MODIFICATION?

(Appellant's Brief at 8).

         For purposes of this disposition, we combine Appellant's issues. Appellant argues payment of restitution originally ordered as part of a direct sentence for a crime involving personal injury is limited to the direct victim of the crime, and the victim's estate does not qualify as a victim. Specifically, Appellant contends the Commonwealth committed fraud upon the court when the Commonwealth asked the court to change the restitution payee to the Estate of Jean and Ralph Porch, because Jean Porch was not a "victim, " and the original restitution order did not include her name. Appellant avers information for modification of a restitution order must come straight from the victim, and here, the Trustee of Victim's estate presented the estate information to the Commonwealth. Appellant also maintains he has already made restitution payments, and the court should have modified the restitution amount to reflect those partial payments. Appellant further insists the court had no jurisdiction to modify the original restitution sentencing order, because it was over thirty years old. Appellant concludes the trial court improperly modified the restitution order, and this Court must vacate the modified order and restore the original order. Appellant also requests this Court to order an accounting of the money Appellant previously paid toward restitution. We disagree.

         The court's power to impose restitution is a matter of statutory construction, which poses questions of law, over which our review is plenary. Commonwealth v. Hall, 622 Pa. 396, 409, 80 A.3d 1204, 1211 (2013). The primary statute at issue in this appeal is ...


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