J-S92025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN S. PLACEK
Appellant No. 729 WDA 2016
Appeal from the Judgment of Sentence April 21, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-SA-0000502-2015
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED MAY 01, 2017
John S. Placek appeals from the April 21, 2016 judgment of sentence
imposed by the Westmoreland County Court of Common Pleas following his
conviction for harassment.1 We affirm in part and vacate in part.
This appeal arose from an altercation on September 4, 2015 between
Placek and the victim, Kim Schacher, in which Placek shoved Schacher,
slapped Schacher’s phone from his hand, and slammed Schacher’s arm in a
metal door. On April 21, 2016, after a summary appeal trial, the trial court
convicted Placek of one count of harassment and sentenced him to pay a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2709(a)(1).
J-S92025-16
$200.00 fine and $233.91 in restitution. On May 16, 2016, Placek timely
appealed to this Court.
Placek presents one question for our review:
WHETHER THE TRIAL COURT ERRED IN ALLOWING AN
INSURANCE DOCUMENT TO BE INTRODUCED TO
ESTABLISH THE OUT OF POCKET EXPENSES OR MEDICAL
BILLS INCURRED BY THE ALLEGED VICTIM AND IN
ORDERING RESTITUTION IN THE AMOUNT OF $233.91
BASED ON SUCH DOCUMENT[.]
Placek’s Br. at 4.
An allegation that a restitution order is unsupported by the record is a
challenge to the legality, rather than the discretionary aspects, of a
sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa.Super.
2010). The determination of whether the trial court imposed an illegal
sentence is a question of law, and our standard of review is plenary. Id.
Section 1106 of the Crimes Code authorizes mandatory restitution as
part of a defendant’s sentence. The statute provides that “[u]pon conviction
for any crime . . . wherein the victim suffered personal injury directly
resulting from the crime, the [defendant] shall be sentenced to make
restitution in addition to the punishment described therefor.” 18 Pa.C.S.
§ 1106(a). The statute further mandates that the trial “court shall order full
restitution . . . [r]egardless of the current financial resources of the
defendant, so as to provide the victim with the fullest compensation for the
loss.” Id. § 1106(c)(1)(i).
-2-
J-S92025-16
The Commonwealth bears the burden of proving its entitlement to
restitution. Atanasio, 997 A.2d at 1183. The amount of restitution is
limited by the loss or damages directly resulting “from the defendant’s
criminal conduct and by the amount supported by the record.”
Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999).
Although restitution does not seek, by its essential nature,
the compensation of the victim, the dollar value of the
injury suffered by the victim as a result of the crime
assists the court in calculating the appropriate amount of
restitution. A restitution award must not exceed the
victim’s losses. A sentencing court must consider the
victim’s injuries, the victim’s request as presented by the
district attorney and such other matters as the court
deems appropriate. The court must also ensure that the
record contains the factual basis for the appropriate
amount of restitution. In that way, the record will support
the sentence.
Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.Super. 2007) (internal
citations omitted).
Here, the trial court’s restitution order was based solely on a
September 11, 2015 explanation of benefits (“EOB”) issued to Schacher by
his insurer, Anthem Blue Cross. See Cmwlth.’s Ex. 7 at 1. The EOB
identifies the medical provider as MedExpress Urgent Care, PC
(“MedExpress”) and the date of service as September 4, 2015. Id. The EOB
provides, “It is your responsibility to pay: $233.91[.] It is not your
responsibility to pay: $139.09.” Id. It also provides, “Member’s Medical
Deductible Applied to Date: $233.91.” Id. A line at the bottom of the EOB
states, “THIS IS NOT A BILL.” Id. (capitalization in original).
-3-
J-S92025-16
At trial, Schacher testified that shortly after the altercation with
Placek, he went to MedExpress to have his arm examined. According to
Schacher, “[t]hey took X-rays and so forth, and said there was no fracture.
And they gave me a prescription for medication and said wrap it and put ice
on it.” N.T., 4/21/16, at 16. The Commonwealth then sought to introduce
two documents: a treatment record from MedExpress and the September
11, 2015 EOB. The following exchange occurred on the record:
[COMMONWEALTH]: Okay. If I could, Your Honor, have
this marked as Commonwealth’s 6 and 7?
THE COURT: Which are?
[COMMONWEALTH]: This would be the medical [record]
that stated that [Schacher] received treatment on
[September] 4th at MedExpress, and this is a bill.
Number 7 would be the bill.
THE COURT: All right. They may be marked. Do you
have any objection to their admission?
[DEFENSE COUNSEL]: I have no objection to the actual
medical record as corroborative that he went and
somebody noted a contusion, but with respect to
Number 7, it’s actually not a bill. It’s an insurance
claim form. Again, that my problem here. I don’t even
know what that – I mean, I could speculate that [it]
represents possibly a co-pay or deductible, but it’s not a
“bill” bill. It’s an insurance . . . summary kind of form.
...
THE COURT: I’m going to admit both of those, but admit
7 subject to review as to its relevance.
-4-
J-S92025-16
Id. at 16-17 (emphases added). The Commonwealth offered no further
evidence regarding Schacher’s medical expenses, nor did it offer any
testimony to explain the information on the EOB.
At the conclusion of the trial, after finding Placek guilty of harassment,
the trial court stated, “I’m ordering that you pay a fine of $200.00, and that
you pay medical restitution in the amount of $233.91.” Id. at 50. Defense
counsel again objected:
[DEFENSE COUNSEL]: I object to that restitution
order, Your Honor, just so you note it. That’s not a
bill.
THE COURT: Your objection is noted, but the Exhibit
Number 7 states, “It is your responsibility to pay $233.91.”
[DEFENSE COUNSEL]: Correct.
THE COURT: Based on that, I’m suggesting that – I’m
finding that the victim has a legal responsibility to pay that
amount.
...
[DEFENSE COUNSEL]: Okay, Your Honor.
And just to be clear, my objection is more than that
that’s not a bill. My objection is there’s really no, like,
testimony as to, you know, the relation of that document –
I think that’s Number 7 – to the document, Number 6,
[it’s] a bunch of billing codes. My objection is not only
that that document is not a bill, but the
Commonwealth did not establish a $233.00 loss,
Your Honor.
Id. at 50-51 (emphases added).
Based on our review of the record, we agree with Placek that the trial
court erred in relying on the EOB in ordering restitution. First, the EOB
-5-
J-S92025-16
plainly states, “THIS IS NOT A BILL.” Cmwlth.’s Ex. 7 at 1. Because the
EOB is not a bill, Schacher had no obligation to pay MedExpress based on
the information in the EOB. Second, the EOB indicates only the insurer’s
anticipated payment of benefits to MedExpress, not its actual payment. See
id. (“[Your] local Blue Cross and/or Blue Shield plan is responsible for the
payment of the claim. Because of this, actual payment to your provider
might occur after you receive this [EOB].”) As is often the case with
insurance claims, the amount indicated on an EOB as the patient’s potential
responsibility may differ from the amount for which the provider ultimately
bills the patient due to, among other reasons, the patient’s filing of an
appeal or secondary insurance coverage. After the insurer (or insurers)
processes the claim, the medical provider will bill the patient for the
remaining balance, if any. For these reasons, we agree with Placek that the
EOB is speculative regarding the medical expenses Schacher incurred as a
result of his injury.
It is well settled that “[a]n award for restitution should not be
speculative or excessive. The general rule is that if the record does not
support the order of restitution[,] then such sentence should be vacated.”
Commonwealth v. Balisteri, 478 A.2d 5, 9 (Pa.Super. 1984).
Furthermore, the restitution statute “require[s] the Commonwealth to
exercise due diligence to ascertain the amount of restitution prior to the time
-6-
J-S92025-16
of sentencing.” Commonwealth v. Ortiz, 854 A.2d 1280, 1283 (Pa.Super.
2004) (en banc) (citing 18 Pa.C.S. §1106(c)(4)).
Here, the Commonwealth produced no evidence other than the EOB to
support its request for restitution. The Commonwealth did not offer into
evidence an invoice from MedExpress or a receipt or canceled check
indicating that Schacher had paid $233.91 to MedExpress. Schacher
presented no testimony about the amount he was billed by, or paid to,
MedExpress. Absent competent evidence of Schacher’s out-of-pocket
medical expenses, the Commonwealth failed to satisfy its burden of proving
its entitlement to restitution. See Atanasio, 997 A.2d at 1183.2
Accordingly, because the restitution order is unsupported by the
record, we vacate that portion of Placek’s judgment of sentence imposing
restitution in the amount of $233.91. We affirm the remainder of Placek’s
judgment of sentence.
Judgment of sentence affirmed in part and vacated in part.
Jurisdiction relinquished.
____________________________________________
2
Placek does not dispute that MedExpress treated Schacher on
September 4, 2015, nor does he challenge the validity of the EOB. Rather,
Placek contends, and we agree, that the EOB alone does not prove
Schacher’s out-of-pocket medical expenses.
-7-
J-S92025-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
-8-