J. S34043/20

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ALLEN MICHAEL JOHNSON

, : No. 25 M DA 20 20

:

Appellant :

Appeal from the Judgment of Sentence Entered November 27, 2019,

in the Court of Common Pleas of Franklin County

Criminal Division at No. CP

- 28

- CR

- 0000581

- 2018

BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 08, 2020

Allen Michael Johnson appeals the November 27, 2019 judgment of

sentence, entered in the Court of Common Pleas of Franklin County, after a

jury convicted him of eleven counts of receiving stolen property. 1 Appellant

was sentenced to an aggregate term of three to nine years ’ imprisonment,

restitution of $42 ,870 to the victim and $2 ,500 to Westfield Insurance

, and a

concurrent term of five years ’ probation

. After careful review, we vacate the

sentence of restitution and remand for reconsideration of the restitution issue

.

The facts, as summarized by the trial court, are as follows:

[Appellant ’ s ] charges [ 2 ] stemmed from [the] burglary

of Richard Wright ’ s ( “ Wright ” ) Firearm Sales located

1 18 Pa.C.S. A. § 3925(a).

2 At trial, appellant was charged with 103 criminal offenses which related to

the burglary.J. S34043/20

- 2

- in Letterkenny Township, Franklin County,

Pennsylvania, overnight on April 2

- 3, 2017

. [On t] he

morning of April 3, Wright found that forty

- eight long

guns were missing from his shop.

Shortly thereafter, Trooper Jeremy Holderbaum of the

Pennsylvania State Pol ice ( [“] PSP [”] ) became aware

that an individual named Tim McMullen ( “ McMullen ” )

offered long guns for sale on Facebook that matched

the make, model, and caliber of the stolen guns

. The

PSP ultimately confirmed that nine weapons

recovered from McMullen were indeed among those

stolen from Wright

. Investigators determined that

McMullen purchased the guns from [appellant]

.

On May 26, 2017, [appellant] ’ s brother, Rodney “ Jay ”

Johnson, was charged in Fulton County in connection

with a sale he made of some of the stolen weapons

. Following his arrest, Jay claimed [appellant] was the

one who made the sale

. . . . [Appellant] was

subsequently charged and brought to trial as well,

where he testified in his defense

. He testified he did

not know the guns were stolen when he arranged the

sale to McMullen, and only found out in late April of

2017, when Jay confessed to stealing them.

Trial court Rule 1925(a) opinion

, 2/20/20 at 2

- 3.

On October 24, 2019, the jury convicted appellant of eleven counts of

receiving stolen property. 3 The following sentence was imposed by the trial

court on November 27, 2019:

. . . 12 to 36 months ’ imprisonment in a state

corr ectional facility for Count 54

- - receiving sto len

property

-- with credit for time previously served from

February 20, 2018, to February 25, 2018; 12 to

36 months ’ imprisonment for Count 55

— receiving

stolen property

— to run consecutively with Count 54;

12 to 36 months ’ imprisonment for Count 56

—

3 The counts of receiving stolen propert y are Counts 54

- 64 of the information

. I n imposing sentence, the trial court referred to these counts by number.J. S34043/20

- 3

- receiving stolen property

— to run consecutively with

Count 55; and 60 months ’ probation for each of

Counts 57

- 63 [sic] [ 4 ]

— receiving stolen property

— to

run concurrently with Count 54.

Id. at 3 (extraneous capitalization omitted)

. In addition, at Count 54, the trial

court ordered appellant to pay r estitution in the amount of $ 42,870 to the

victim and $ 2,500 to Westfield Insurance. ( See sentenc ing order, 11/27/19

at Count 54. ) No post

- sentence motions were filed. Appellant filed a timely

appeal

. On January 2, 2020, the trial court directed appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied

. The reafter, the trial court filed its Rule 1925(a)

opinion.

The sole issue appellant raises on appeal is the following:

Whe her [sic] appellant ’ s sentence of $42,870 in

restitution is illegal when the restitution amount

ordered was made part of appellant ’ s sentence, and

the record does not support a finding that appellant ’ s

conduct was a direct link in causing the loss which

comprises the restitutionary amount so ordered? [ 5 ]

Appellant ’ s brief at 5 ( full capitalization omitted). Appellant argues his

sentence of restitution was illegal because there was no causal connection

between the amount of the restitution and the crimes for which appellant was

convicted. ( See appellant ’ s brief at 6

- 8, 11

- 12.)

4 This appears to be a typographical error as appellant was sentenced at

Co u nts 54

- 64.

5 We note that appellant only challenges the restitution order with respect to

the victim, not W estfield Insurance.J. S34043/20

- 4

-

“ [ A ] n order of restitution is not simply an award of damages, but rather

a sentence. ” Commonwealth v. McKee

, 38 A.3d 879, 880

- 881 (Pa.Super.

2012) (quotations and citations omitted).

[A ]n 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

. Accordingly, the

determination as to whether the trial court imposed

an illegal sentence is a question of law

. . . , [t]hus

our standard of review is de novo and our scope of

review is plenary.

Commonwealth v. Hunt

, 220 A.2d 582, 585 (Pa.Super. 2019) (citations and

quotation marks omitted)

. Furthermore, “ w here restitution is imposed in

addition to a statutory punishment, such as imprisonment, the order must be

strictly scrutinized since its purpose is primarily punitive. ” Id. at 588.

In the instant case, the trial court imposed restitution as part of

appellant ’ s direct sentence, pursuant to 18 Pa.C.S.A. § 1106

. ( See sentencing

order, 11/27/19 at Count 54; trial court Rule 1925(a) opinion, 2/20/20 at 15. )

With regard to restitution for injuries to property, the Pennsylvania Crimes

Code provides that

[u]pon conviction for any crime wherein

. . . property

of a victim has been stolen, converted or otherwise

unlawfully obtained, or its value substantially

decreased as a direct result of the crime

. . . the

offender shall be sentenced to make restitution in

addition to the punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a)(1). In addition, “ [a]t the time of sentencing the court

shall specify the amount and method of restitution. ” 18 Pa.C.S.A.J. S34043/20

- 5

-

§ 1106(c)(2). “ Restitution may be imposed only for those crimes to property

or person where the victim suffered a loss that flows from the conduct that

forms the basis of the crime for which the defendant is held criminally

accountable. ” Commonwealth v. Pappas

, 845 A.2d 829, 842 (Pa.Super.

2004) (citation omitted), appeal denied

, 862 A.2d 1254 (Pa. 2004).

Injury to property, for purposes of restitution, is defined as “ [l]oss of

real or personal property,

. . . or decrease in its value, directly resulting from

the crime. ” 18 Pa.C.S.A. § 11069(h)

. Therefore,

restitution is proper only if there is a direct causal

connection between the crime and the loss. The

sentencing court applies a “ but for ” test in imposing

restitution; damages which occur as a direct result of

the crimes are those which would not have occurred

but for the defendant ’ s criminal conduct.

Commonwealth v. Poplawski

, 158 A.3d 671

, 674 (Pa.Super. 2017)

(citations omitted).

Here, a ppellant was only convicted of receiving stolen property

, 6 to

- wit,

eleven long guns. There were forty

- eight guns stolen, and eleven guns were

recovered by the PSP. ( See trial court Rule 1925(a) opinion, 2/20/20 at 2

,

16

- 17

. ) F orty guns were missing, at an approximate cost of $ 45,000

, and the

court ordered restitution of $42,870 to the victim and $2,500 to the insurance

6 A person commits the offense of receiving stolen property if he “intentionally

receives, retains, or disposes of movable property of another knowing that it

has been stolen, or believing that it has probably been stolen, unless the

pr operty is received, retained, or disposed of with intent to restore it to the

owner.” 18 Pa.C.S.A. § 3925(a).J. S34043/20

- 6

-

company

. ( Id. at 16

- 17. ) The trial court acknowledges that it erred because

there was no causal connection between the total loss sustained by the victim

and the actual loss, if any, caused by appellant. 7 ( Id. at 17. ) We concur and

,

therefore, find that the trial court erred in imposing an order of restitution in

the total amount of $45,370.

Judgment of sentence vacated. C ase remanded for resentencing in

accordance with this memorandum. J urisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/08/2020

7 Further, we note that “[t] he Commonwealth adopts the sound reasoning of

the trial court in its ’ 1925(b) opinion regarding restitution .

. .”

Commonwealth’s brief at 4.