Commonwealth v. Hall

DISSENTING OPINION BY

ALLEN, J.:

¶ 1 Unlike the Majority, I interpret 42 Pa.C.S.A. § 9754(c)(8) as vesting the trial court with the statutory authority to order Appellant to pay restitution as a condition of probation. Hence, I respectfully dissent.

¶ 2 Tamisha Townson (“Townson”) and Jonathan Williams (“Decedent”) were married in 1996 and had two children together. Townson divorced Decedent in 2001 and became romantically involved with Appellant. Decedent, nonetheless, frequently visited Townson’s house to see his children, and Townson would often borrow Decedent’s car to run errands. On December 12, 2004, at approximately 6:00 a.m., Appellant and Townson were sleeping at Townson’s home when Decedent called Townson, stating that he wanted to come to her residence. As Decedent and Townson talked, Appellant went outside, encountered Decedent in the streets and fatally shot him. A jury convicted Appellant of voluntary manslaughter, and the trial court sentenced Appellant to five to ten years imprisonment. In addition, the trial court sentenced Appellant to a consecutive term of ten years probation. As a condition of probation, the trial court or*1147dered Appellant to pay $200 a month towards the support of Decedent’s children.

¶3 On appeal, Appellant contends that the trial court erred in ordering restitution as a condition of probation because Decedent’s children were not “victims” who sustained personal injury under 42 Pa.C.S.A. § 9754(c)(8). Appellant also asserts that the trial court could only order restitution to Decedent, the direct victim of the crime, for loss or damage occurring to his person. Because Decedent’s children were not “victims” of the crime and did not sustain personal injury, Appellant posits that the trial court’s restitution order was illegal. I disagree.

¶ 4 Restitution is a statutory creation and may be imposed by a court as a direct sentence, pursuant to 18 Pa.C.S.A. § 1106, or as a condition of probation, pursuant to 42 Pa.C.S.A. § 9754. There is a critical distinction concerning the latitude afforded to a trial court when it orders restitution as part of a defendant’s direct sentence, 18 Pa.C.S.A. § 1106, and restitution that it imposes in connection with the terms of a defendant’s probation, 42 Pa.C.SA. § 9754. The distinction derives from differences in the relevant statutory language.

¶ 5 Under 18 Pa.C.S.A. § 1106(a), the court shall order a defendant, as part of a defendant’s direct sentence, to make restitution when “the victim suffered personal injury directly resulting from the crime[.]” Id. (emphasis supplied).

¶ 6 Pursuant to 42 Pa.C.S.A. § 9754(c)(8), a trial court can order the defendant, as a term of his probation, “[t]o make restitution of the fruits of his crime ... for the loss or dam,age caused thereby.” Id. (emphasis supplied).

¶7 There is significant disparity between the language of 18 Pa.C.S.A. § 1106(a) and 42 Pa.C.S.A. § 9754(c)(8), pertaining to who may receive restitution. Under 18 Pa.C.S.A. § 1106(c)(l)(i), when the trial court sentences a defendant, the court shall “provide the victim with the fullest compensation for the loss.” Id. (emphasis supplied). Relying on the definition of victim provided in 18 Pa.C.S.A. § 1106(h), our case law holds that an award of restitution under 18 Pa.C.S.A. § 1106 is strictly limited to the individual who sustained bodily injury; that is, the direct victim. For example, in Commonwealth v. Langston, 904 A.2d 917, 924 (Pa.Super.2006), this Court stated: “The mandatory payment of restitution pursuant to Section 1106 of the Crimes Code is limited to the direct victim and not to third parties, including family members, who shoulder the burden of the victim’s losses.”

¶ 8 Unlike 18 Pa.C.S.A. § 1106, a probationary order of restitution under 42 Pa. C.S.A. § 9754(c)(8) is not required to be awarded to a “direct victim” who suffered personal injury damages. Instead, the plain language of 42 Pa.C.S.A. § 9754(c)(8) permits a trial court to order restitution for “the fruits of [the] crime,” without any express limitation on who can receive restitution. Id. “[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded.” Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 907 (1999). This is because “omission of a given provision from one of two similar statutes evidences a different legislative intent regarding the two.” Commonwealth v. Hoke, 599 Pa. 587, 962 A.2d 664, 669 (2009) (citing, inter alia, Commonwealth v. Heath, 528 Pa. 316, 597 A.2d 1135, 1136 (1991)).

¶ 9 Our legislature could have confined restitution under 42 Pa.C.S.A. § 9754(c)(8) to a direct victim, like it did with 18 Pa. C.S.A. § 1106(a), but it did not do so. As such, our legislature’s exclusion of the defi*1148nitional phrase “the victim” from 42 Pa. C.S.A. § 9754(c)(8) evinces their intent that restitution not be limited to a direct victim as it is with 18 Pa.C.S.A. § 1106. See Heath, 597 A.2d at 1136 (“Unlike 42 Pa.C.S.A. §§ 9712 through 9715, where the legislature explicitly requires the Commonwealth, after conviction but prior to sentencing, to serve notice of its intent to seek mandatory sentencing, § 9718 contains no such verbiage. Where a section of a statute contains a given provision, the omission of such provision from a similar [section] is significant to show a different intention existed”) (citations and internal quotation marks omitted). Instead, by designating the open-ended phrase “fruits of a crime” as the guidepost for determining who may obtain restitution, our legislature envisioned that third persons may be awarded restitution under 42 Pa.C.S.A. § 9754(c)(8).1

¶ 10 Pursuant to the unambiguous language of 42 Pa.C.S.A. § 9754(c)(8), the sole restriction on the authority of the trial court to order probationary restitution is that there exist a “loss” or “damage” that can be considered “the fruits of a crime.” Our Supreme Court has stated that “42 Pa.C.S.A. § 9754(c)(8) vests the court with ... broad power to determine what the fruits of the crime are.” Harner, 617 A.2d at 707 n. 3. The issue in this case, accordingly, is whether the trial court erred in concluding that the loss of support to Decedent’s children was a “fruit” of Appellant’s crime.

¶ 11 A parent has an obligation to financially support his child, and the child relies on the parent to provide support, e.g., food, shelter and clothing. When a parent is killed, the child is an immediate victim who experiences the negative impact (or the “fruits”) of the crime, because the loss of a parent is accompanied with the loss of financial support.

¶ 12 In determining whether loss of financial support constitutes a “fruit of a crime,” I find guidance in the Crime Victims Act. 18 P.S. § 11.101 et seq. The Crime Victims Act details the class of persons whom our legislature believed suffered a sufficient amount of collateral impact from a crime to entitle them to restitution under that Act. In 18 P.S. § 11.103, our legislature concluded that a “victim” of a crime includes “[a] family member of a homicide victim[.]” Id. Moreover, our legislature acknowledged in the Crime Victims Act that loss of support is an indirect consequence of a crime that should be redressed. Under 18 P.S. § 11.701(a)(3) and (4), a “surviving child of a deceased direct victim” or any other individual dependent upon a “deceased direct victim” is entitled to compensation.2 If the loss of support sustained by Decedent’s children has a close enough nexus *1149to Appellant’s crime to be eligible for restitution under the Crime Victims Act, then Decedent’s children and their loss of support should qualify for restitution under 42 Pa.C.S.A. § 9754(c)(8) as a “fruit” of Appellant’s crime.

¶ 13 In view of the plain language of 42 Pa.C.S.A. § 9754(c)(8), and our legislature’s expression of public policy in the Crime Victims Act, I conclude that the loss of support that Decedent’s children suffered as a result of Decedent’s death is a “fruit” of Appellant’s crime. “[W]hen restitution is a condition of probation under 42 Pa.C.S.A. § 9754(c)(8), rather than a direct sentence under [18 Pa.C.S.A. § 1106], there need not be a direct nexus between offense and loss.” Harriott, 919 A.2d at 238. “While restitution cannot be indiscriminate, an indirect connection between the criminal activity and the loss is sufficient.” Id.

¶ 14 Here, had Appellant not murdered Decedent, Decedent’s children would not have lost the right to financial support from their father. Appellant knew Decedent personally; indeed, Decedent’s children lived with Appellant’s paramour, Townson. Thus, it was entirely foreseeable that one result of Appellant’s actions would be that Decedent’s children could no longer look to their father for financial support. Appellant did not commit a crime of recklessness or criminal negligence. Rather, Appellant committed an intentional homicide. In these particular circumstances, I conclude that the trial court had the authority, pursuant to 42 Pa.C.SA. § 9754(c)(8), to order Appellant to pay restitution to Decedent’s children as a condition of his probation.

¶ 15 “[T]he practice of ordering restitution or reparation as [] a condition [of probation] is widely established and highly favored in the law, as an aid both to the criminal in achieving rehabilitation and to his victim in obtaining some measure of redress.” Hamer, 617 A.2d at 706. In this case, the trial court ordered Appellant to pay child support as a condition of probation for the following reasons:

This Court [ordered] restitution payments as a condition of [Appellant’s] probation in order to minimize the perpetuation of an ongoing injustice, to assist [Appellant] in understanding the gravity of his actions, and to encourage him to live his life more responsibly. Taking into consideration that the mother of [Appellant’s] child, [Townson], is also the mother of the [Decedent’s] two children, this Court addressed the need for [Appellant] to understand the cruelty of his actions by having to contribute to the support of the [Decedent’s] children. Due to the unique intertwinement of the three children who would all be living in the same household, the Court found it singularly unfair that [Appellant] provide for his child while the other two children living in the same household were deprived not only of their father but also of his support. The Court’s intent was that [Appellant] level the field he had disrupted when he killed the other children’s father by contributing to their financial support.

Trial Court Opinion (T.C.O.), 5/12/08, at 4-5.

¶ 16 The Majority finds that the “true purpose” of the trial court’s restitution order was to “support the decedent’s children and not to rehabilitate Appellant.” Op. at 1145. From this premise, the Majority holds that the restitution order did not direct Appellant to pay “for the fruits of his crime.” Op. at 1146. I do not share the Majority’s conclusion, because the trial court expressly stated the rehabilitative purpose of its restitution order. Consistent with the trial court’s rationale, I conclude that the trial court ordered restitu*1150tion “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, 617 A.2d at 707. I further conclude that the trial court’s restitution order appropriately permitted Decedent’s children to receive some measure of redress as a result of Appellant’s conduct. As explained above, Decedent’s children suffered damages because Appellant murdered their father; this loss, in turn, was an indirect damage constituting a “fruit” of Appellant’s crime.

¶ 17 Restitution imposed as a condition of probation is “encouraged” by our Supreme Court, and the trial court has “the flexibility to determine all the direct and indirect damages caused by a defendant” in order to rehabilitate a defendant and impress upon him the consequences of his actions. Id. I cannot conclude, as does the Majority, that the trial court lacked the statutory authority under 42 Pa.C.S.A. § 9754(c)(8) to order restitution to Decedent’s children as a condition of Appellant’s probation.

¶ 18 In light of the foregoing, I respectfully dissent from the Majority’s central conclusion that the trial court lacked the requisite authority to order Appellant to pay restitution to Decedent’s children.

. This reading of 42 Pa.C.S.A. § 9754(c)(8) is consistent with the inherent, broad discretion that is afforded to a trial court in ordering probationary conditions. See Harner, 617 A.2d at 703 n. 3; Commonwealth v. Harriott, 919 A.2d 234, 235-38 (Pa.Super.2007). This reading is further buttressed by the catch-all provision of 42 Pa.C.S.A. § 9754(c)(13), which allows a trial court to impose "any other” condition of probation as long as it is "reasonably related to the rehabilitation of the defendant.” Id.

. In pertinent part, 18 P.S. § 11.701 states:

§ 11.701. Persons eligible for compensation
(a) General rule. Except as otherwise provided in this act, the following persons shall be eligible for compensation:
(3) A surviving spouse, parent or child of a deceased direct victim or intervenor.
(4) Any other individual dependent for principal support upon a deceased direct victim or intervenor.

18 P.S. § 11.701(a)(3) and (4).