J-S43034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL BURROWS

Appellee No. 88 WDA 2017

Appeal from the Judgment of Sentence December 16, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No: CP-25-CR-0001414-2014

BEFORE: STABILE, SOLANO, and FITZGERALD, *JJ. 

DISSENTING MEMORANDUM BY STABILE, J.: FILED: October 31, 2017

I dissent from the learned Majority because Pa.R.Crim.P. 706 is 

inapplicable at sentencing. The trial court relied on Rule 706 at sentencing 

to justify its failure to comply with the requirements 16 P.S. § 1403 (relating 

to costs of prosecution) and 42 Pa.C.S.A. § 1725.3 (relating to criminal 

laboratory fees). I would vacate the judgment of sentence and remand for a 

new sentence.

Following Appellee’s plea of guilty but mentally ill to one count of 

murder of the third degree, the trial the trial court sentenced Appellee to a 

term of incarceration of 12-25 years. At sentencing, the Commonwealth 

provided the trial court with the costs of prosecution ($9,891.70), which 

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*

Former Justice specially assigned to the Superior Court.
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included the criminal laboratory fee ($7,145.00); however, the trial court 

only imposed $2,500 in costs to Appellee. In doing so, the trial court 

explained

I’ll impose all those [costs and fees] at 1414 of 2014. But 

I’m also going to find that the imposition of these fines, though 

I’ve [ordered] them, would violate—the collection of them would 

violate the Constitution. [Appellee] has an IQ of 65. He will 

never—if outside of prison—make enough of a living to pay those 

sums to the Commonwealth. And it’s wrong to impose these 

costs without concluding that [Appellee] actually has any real 

possibility of paying them. They would just languish over his 

head forever and prevent a fresh start.

So, I’ve imposed them, but I’m also finding the collection 

of them would violate the Constitution given what I perceive his 

earning capacity and power is in the current world, it’s just not 

going to happen.

No I’m going to do something different, I’m going to limit 

them to $2,500 in terms of collection. I want to impose 

something on him, but I don’t want to basically bury him under a 

litany of fees so that when he’s out, these will—he’s going to 

have enough issues on his plate.

N.T. Sentencing Hearing, 12/16/16, at 22-23. 

As the Majority correctly notes “[t]he 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 is plenary.” Commonwealth 

v. Garzone, 993 A.2d 306, 316 (Pa. Super. 2010) (citation and quotation 

marks omitted). The Majority quotes the relevant statutes; however, it fails 

to apply them in a literal manner. Section 1403 provides that

All necessary expenses incurred by the district attorney or his 

assistance or any office directed by him in the investigation of 

crime and the apprehension and prosecution of persons charged 

with or suspected of the commission of crime, upon approval 
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thereof by the district attorney and the court, shall be paid by 

the county from the general funds of the county. In any case 

where a defendant is convicted and sentenced to pay the costs 

of prosecution and trial, the expenses of the district attorney in 

connection with such prosecution shall be considered a part 

of the costs of the case and be paid by the defendant.

16 P.S. § 1403 (emphasis added). Thus, as the statute uses “shall,” rather 

than “may,” the statute removes any discretion from the trial court in 

imposing the costs of prosecution. 

Further, § 1725.3 provides for

(a) Imposition.—A person who . . . is convicted of a crime as 

defined in 18 Pa.C.S. § 106 (relating to classes of 

offenses) . . . shall, in addition to any fines, penalties or 

costs, in every case where laboratory services were 

required to prosecute the crime or violation, be 

sentenced to pay a criminal laboratory or paramedic 

user fee which shall include, but not be limited to, the cost 

of sending a laboratory technician or paramedic to court 

proceedings. 

(b) Amount of user fee.—

(1) The director or similar officer of the county 

laboratory or emergency medical services agency that has 

provided services in the prosecution shall determine the 

actual cost of the laboratory or paramedic services 

provided in the prosecution and transmit a statement for 

services rendered to the court.

(2) If a Pennsylvania State Police laboratory has 

provided services in the prosecution, the director or similar 

officer of the Pennsylvania State Police laboratory shall 

determine the actual cost of the laboratory services 

provided in the prosecution and transmit a statement for 

services rendered to the court.

* * *
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(d) Other laws.—The criminal laboratory and paramedic 

user fee shall be imposed notwithstanding any other 

provision of the law to the contrary.

18 Pa.C.S.A. § 1725.3. Thus, as with § 1403, the statute provides that the 

trial court shall impose the actual costs of the fees rather than deferring to 

the discretion of the trial court. As the Majority correctly notes, the 

language in these statutes is mandatory. Thus, the only question is whether 

Rule 706 gives the trial court discretion in imposing these fees. 

The Majority relies on Pa.R.Crim.P. 706, which provides, in relevant 

part, 

(A) A court shall not commit the defendant to prison for failure 

to pay a fine or costs.

(B) When the court determines, after hearing, that the 

defendant is without the financial means to pay the fine or 

costs immediately or in a single remittance, the court may 

provide for the payment of the fines or costs in such 

installments and over such period of time as it deems to 

be just and practicable, taking into account the financial 

resources of the defendant and the nature of the burden 

its payments will impose as set forth in paragraph (D) 

below.

(C) The court, in determining the amount and method of 

payment of a fine or costs shall, insofar as just and 

practicable, consider the burden upon the defendant by 

reason of the defendant’s financial means, including the 

defendant’s ability to make restitution or reparations.

Pa. R. Crim. P. 706. However, Rule 706 provides only procedural safeguards 

to “ensure that an indigent defendant will be afforded an opportunity to 

prove his financial inability to pay the costs of prosecution before being 

committed to prison.” Commonwealth v. Hernandez, 917 A.2d 323, 326 
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(Pa. Super. 2007). In Commonwealth v. Childs, 63 A.3d 323, 326-27 (Pa. 

Super. 2013), this Court found that the trial court was not required to have 

a hearing at the time of sentencing on an appellant’s ability to pay costs of 

prosecution pursuant to Rule 706 because the trial court can hold the 

hearing when the appellant fails to make payment. Childs, 63 A.3d at 326. 

Furthermore, this Court previously held that Rule 706(C) does not apply at 

sentencing. See Commonwealth v. Ciptak, 657 A.2d 1296, 1298 (Pa. 

Super. 1995), rev’d on other grounds, 665 A.2d 1161 (Pa. 1995).1 In 

Ciptak, this Court noted that the entirety of Rule 7062 deals with a situation 

in which a defendant has defaulted from his payment of a fine or costs of 

prosecution; therefore, the Court found that Rule 706 does not apply at the 

time of sentencing. Id. at 1297-98. 

The purpose of Rule 706 is to prevent incarceration for an inability to 

pay a fine, not for sentencing discretion. Therefore, I dissent because the 

trial court did not have the discretion to reduce the mandatory costs of 

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1 Our Supreme Court reversed Ciptak on the grounds that defendant raised 

an ineffective assistance of trial counsel claim, however, trial counsel and 

appellate counsel were members of the same public defender’s office. Thus, 

appellate counsel was essentially claiming its own ineffectiveness. Ciptak, 

665 A.2d at 1162. 

2

In Ciptak the Court discusses Pa.R.Crim.P. 1407, which was renumbered 

to Rule 706 on March 1, 2000. 
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prosecution and laboratory fees as required by 16 P.S. 1403 and 42 

Pa.C.S.A. § 1725.3.