J-A31035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NORMA JEAN HOLMES

Appellant No. 305 MDA 2014

Appeal from the Order dated January 21, 2014

In the Court of Common Pleas of the 39th Judicial District

Fulton County Branch

Criminal Division at No: CP-29-CR-0000103-2012

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 18, 2015

Appellant Norma Jean Holmes appeals from the January 21, 2014 

order of the Court of Common Pleas of the 39th Judicial District, Fulton 

County Branch (trial court), which affirmed its prior order denying 

Appellant’s request to modify the amount of restitution imposed at 

sentencing. For the reasons set forth below, we reverse the trial court’s 

January 21, 2014 order and remand this matter to the trial court for further 

proceedings. 

The facts and procedural history in this case are uncontroverted. On 

December 2, 2011, Trooper Roger Sheffield of the Pennsylvania State Police 

charged Appellant with, inter alia, recklessly endangering another person 

(REAP) under Section 2705 of the Crimes Code, which provides “[a] person 

commits a misdemeanor of the second degree if he recklessly engages in 
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conduct which places or may place another person in danger of death or 

serious bodily injury.” 18 Pa.C.S.A. § 2705. In the complaint, Trooper 

Sheffield alleged:

[Appellant] . . . recklessly engage[d] in conduct which placed or 

may have placed [the victim] (Bryan S. Nave and all other 

drivers on the highway) in danger of death or serious bodily 

injury, that is to say [Appellant] . . . permit[ted] [the victim] to 

drive her vehicle knowing that he consume[d] at least 10 mixed 

drinks/beers[], in violation of Section 2705[.]

Criminal Complaint, 12/28/11, at 2. Moreover, in his affidavit of probable 

cause accompanying the complaint, Trooper Sheffield alleged:

On 11/20/2011 at approx. 2015 hours, [Appellant] and 

[the victim] . . . stopped at the Greencastle American Legion for 

an alcoholic bevarage [sic] with [Appellant]. [Appellant] and 

[the victim] agreed to go to the Log Cabin Bar in Hancock, 

Maryland. While enroute [sic] to bar [the victim] stopped at a 

Liquor Store in Greencastle and purchased a pint of Captain 

Morgan Rum. [Appellant] made a mixed drink for both of them 

in the car while in the parking lot of the liquir [sic] Store. [The 

victim] then drove [Appellant] to the Log Cabin bar in 

[Appellant’s] 2000 Chevrolet Cavalier. [Appellant] stated “[the 

victim] drank shot after shot after shot of whiskey while at the 

bar.” [Appellant] stated [the victim] consumed approx. 10 plus 

drinks while at the bar. At approx. 0100 hours on 11/20/11 [the 

victim] and [Appellant] left the bar together in [Appellant’s] car. 

[The victim] drove the car after consuming numerous mixed 

drinks. [The victim] was traveling west on S[R] 70 at [mile 

marker number] 158 [at] 0135 hours while not licensed and lost 

control of the vehicle. [The victim] was killed in the accident.

Affidavit of Probable Cause, 12/28/11. 

On October 9, 2012, Appellant pleaded nolo contendere to the charge 

of REAP and the Commonwealth nolle prossed the remaining charges. On 

November 6, 2012, the trial court sentenced Appellant to twenty-four 

months’ probation and imposed upon her restitution for $12,794.50 in 

funeral expenses to be paid to the victim’s parents, Joseph and Laura Nave. 

On July 31, 2013, Appellant filed a “Motion for Restitution Hearing.” 
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Appellant attached to the motion a “Stipulation of Fact in Lieu of Hearing,” 

which incorporated the December 21, 2011 witness statement form, and the 

December 21, 2011, noncustodial written statement form filled out by 

Appellant. In the December 21, 2011, noncustodial written statement, 

Appellant recalled that she told the victim that she did not drink and drive 

because she did not want to risk losing her commercial driver’s license. 

Noncustodial Written Statement, 12/21/11, at 2. 

In the motion, Appellant essentially asserted she should not have to 

pay restitution to the victim’s parents, because the victim himself caused the 

accident and, as a result, his own death by operating the vehicle under the 

influence of alcohol. Motion for Restitution Hearing, 7/31/13, at ¶ 11. 

Moreover, Appellant asserted that had the victim survived, he would have 

been ineligible for compensation under the Crime Victims Act (Act).1 To 

support this assertion, Appellant referred to a letter, dated October 26, 

2012, authored by the Fulton County Victim Services Coordinator, Carolyn 

Kerlin, which in part provided:

The question of who was driving the vehicle is not being 

considered by th[e] [trial] court as it is not a Driving Under the 

Influence case. However, if a Victim Compensation Claim were 

filed, there is no doubt in my mind that [the Victim 

Compensation Assistance Program (VCAP)2] would view it as a 

____________________________________________

1 Act of November 24, 1998, P.L. 882, as amended, 18 P.S. 

§§ 11.101-.5102.

2 VCAP is the programmatic entity that considers claims for compensation 

and distributes compensation when a claim under Chapter 7 of the Act, 18 

P.S. §§ 11.701–.710, which establishes an administrative mechanism for 

compensating victims of crime, is approved. 
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DUI case when determining [the victim’s] eligibility for 

compensation. In making my recommendation for restitution I 

have inquired of [VCAP] as to how they might proceed if a claim 

were filed. Their answer includes the following: “If the victim 

was driving, or the evidence seems to support that he was, then 

the claim would be denied since he was driving a vehicle while 

intoxicated, which is against the law and directly caused his 

death. However, if [VCAP] would decide a preponderance of the 

evidence suggests that he was not driving, we would, most 

likely, assess 25% for knowingly and willingly getting into a car 

driven by a driver who was under the influence. To make that 

decision, [VCAP] would look at the police report and most likely 

reach out and speak to the investigating offer, then weigh all the 

evidence.”

Fulton County Victim Services Letter, 10/26/12, at 1-2. Based on the 

foregoing assertions, Appellant claimed “[j]ust as [the victim] could not, 

neither his estate nor his Personal Representatives should receive 

compensation for [the victim’s] own criminal conduct.” Motion for 

Restitution Hearing, 7/31/13, at ¶ 12. 

On October 29, 2013, the trial court issued an order, denying 

Appellant’s request to modify, i.e., to dispense with, the restitution imposed. 

In so doing, the trial court noted it imposed restitution under Section 

1106(a) of the Crimes Code3and Section 9754(c)(8) of the Sentencing 

Code.4 See Trial Court Order, 10/29/13 (“Even if the sentence of probation 

did not rise to the level of direct causation, the restitution would easily fall 

under the standard of restitution as condition of [Appellant’s] probation.”). 

Section 1106 of the Crimes Code provides in pertinent part:

____________________________________________

3 Act of June 18, 1976, P.L. 394, as amended, 18 Pa.C.S.A. § 1106(a).

4 Act of December 30, 1974, P.L. 1052, as amended, 42 Pa.C.S.A. 

§ 9754(c)(8).
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(a) General rule.--Upon conviction for any crime wherein 

property has been stolen, converted or otherwise unlawfully 

obtained, or its value substantially decreased as a direct result of 

the crime, or wherein the victim suffered personal injury 

directly resulting from the crime, the offender shall be 

sentenced to make restitution in addition to the punishment 

prescribed therefor.

 . . . .

(c) Mandatory restitution.--

(1) The court shall order full restitution:

(i) Regardless of the current financial resources

of the defendant, so as to provide the victim with 

the fullest compensation for the loss. . . .

(ii) If restitution to more than one person is set at 

the same time, the court shall set priorities of 

payment. However, when establishing priorities, the 

court shall order payment in the following order:

(A) The victim.

(B) The Crime Victim’s Compensation Board.

(C) Any other government agency which has 

provided reimbursement to the victim as a 

result of the defendant’s criminal conduct.

(D) Any insurance company which has 

provided reimbursement to the victim as a 

result of the defendant’s criminal conduct.

(2) At the time of sentencing the court shall specify the 

amount and method of restitution. In determining the 

amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the 

victim, the victim’s request for restitution as 

presented to the district attorney in accordance with 

paragraph (4) and such other matters as it deems 

appropriate.

(ii) May order restitution in a lump sum, by monthly 

installments or according to such other schedule as it 

deems just.

(iii) Shall not order incarceration of a defendant for 

failure to pay restitution if the failure results from 

the offender’s inability to pay.

(iv) Shall consider any other preexisting orders 

imposed on the defendant, including, but not limited 

to, orders imposed under this title or any other title.

 . . . .

(h) Definitions.--As used in this section, the following words 

and phrases shall have the meanings given to them in this 

subsection:
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“Crime.” Any offense punishable under this title or by a 

magisterial district judge.

“Injury to property.” Loss of real or personal property, 

including negotiable instruments, or decrease in its value, 

directly resulting from the crime.

“Offender.” Any person who has been found guilty of any 

crime.

“Personal injury.” Actual bodily harm, including 

pregnancy, directly resulting from the crime.

 . . . .

“Victim.” . . . The term includes the Crime Victim’s 

Compensation Fund if compensation has been paid by the 

Crime Victim’s Compensation Fund to the victim and any 

insurance company that has compensated the victim for 

loss under an insurance contract.

18 Pa.C.S.A. § 1106(a), (c), (h) (emphasis added). 

Section 9754 of the Sentencing Code, relating to an order of 

probation, provides in part:

(c) Specific conditions.--The court may as a condition of its 

order require the defendant:

 . . . .

(8) To make restitution of the fruits of his crime or to 

make reparations, in an amount he can afford to 

pay, for the loss or damage caused thereby.

42 Pa.C.S.A. § 9754(c)(8) (emphasis added). 

On November 21, 2013, Appellant filed an “Application for 

Reconsideration of the [Trial] Court’s October 29, 2013 Order Denying 

Request for Modification of Restitution.” In asking the court to reconsider its 

October 29, 2013 order, Appellant repeated her assertion that the victim’s 

death was caused by his own actions, i.e., operating the vehicle under the 

influence of alcohol, as opposed to Appellant’s conduct, i.e., giving the victim 

permission to operate the vehicle. Moreover, Appellant argued that the trial 

court did not impose restitution as a condition of probation under Section 
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9754(c)(8), as evidenced by the lack of specificity in the written sentencing 

order. Finally, Appellant argued in the event restitution was proper under 

Section 1106(a), then the trial court “may be required to apportion the 

victim’s damages if [Appellant] was not the sole cause of the victim’s 

injuries.” Reconsideration Motion, 11/21/13, at ¶ 14. In this regard, 

Appellant argued “[t]he record does not support the determination that 

[Appellant’s] actions were the sole or direct cause of [the victim’s] death.” 

Id. at ¶ 15. 

On November 26, 2013, the trial court granted Appellant’s 

reconsideration motion. On January 21, 2014, the trial court issued an order 

affirming its October 29, 2014 order. In so affirming, the trial court 

specifically disagreed with Appellant’s assertion that the court did not impose 

restitution as a condition of probation. The trial court noted:

After review of the [o]rder of November 6, 2012, we conclude 

that [o]rder specifically calls for a 24 month sentence of 

probation and language requiring [Appellant] to pay restitution 

in the amount of $12, 794.50 to Joseph and Laura Nave. It is of 

no consequence that the directive to pay restitution did not fit 

into the special conditions section of the formatted [written] 

sentencing order. The [o]rder clearly directs restitution as a 

condition of probation.

Trial Court Order, 1/21/14, at ¶ 4. The trial court also concluded that the 

issue of apportionment of restitution was waived by Appellant, because she 

raised it for the first time in her reconsideration motion. See id. at ¶ 2.

Appellant filed a timely appeal to this Court. Following Appellant’s 

filing of a Pa.R.A.P. 1925(b) statement, the trial court issued a Pa.R.A.P. 

1925(a) opinion on April 28, 2014. In its Rule 1925(a) opinion, the trial 
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court first addressed Appellant’s assertion that her conduct was not the 

direct cause of the victim’s death and, as a result, the imposition of 

restitution under Section 1106(a) was in error. Disagreeing with Appellant, 

the trial court observed:

In the instant matter, [Appellant] recklessly endangered 

the victim by allowing the victim to drive [Appellant’s] vehicle 

after [the victim had] consum[ed] numerous alcoholic 

beverages. Recklessness is defined as a conscious disregard of a 

known risk of death or great bodily harm to another person. 

Because [Appellant] knew that the victim had consumed 

numerous alcoholic beverages, she disregarded a known risk of 

death or great bodily harm to the victim by allowing him to drive 

while intoxicated. As a direct result of her conscious disregard of 

the known risk of death or great bodily harm caused by driving 

while under the influence, the victim died. Therefore, the loss in 

the instant matter, the funeral costs and expenses of the victim, 

were the direct result of [Appellant’s] reckless endangerment of 

another person.

Trial Court Opinion, 4/28/14, at 3 (internal citations omitted). 

The trial court also reiterated its disagreement with Appellant’s 

assertion that the court did not impose restitution as a condition of probation 

under Section 9754(c)(8) of the Sentencing Code. Specifically, the trial 

court pointed to the sentencing transcript to demonstrate that it indeed had 

imposed restitution as a condition of probation. According to the trial court, 

restitution in this case satisfied both Section 1106(a) of the Crimes Code and 

Section 9754(c)(8) of the Sentencing Code. 

Lastly, the trial court addressed Appellant’s contention that it erred in 

failing to assess her ability to pay under Section 9754(c)(8). Disagreeing 

with Appellant’s contention, the trial court noted that under Pa.R.Crim.P. 706 

and Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013), it was 
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not required to assess Appellant’s ability to pay prior to imposing restitution 

as a condition of probation. Trial Court Opinion, 4/28/14, at 5.

On appeal,5 Appellant raises four issues for our review.6 First, 

Appellant argues the trial court erred in imposing restitution as a direct 

sentence under Section 1106(a) of the Crimes Code because Appellant’s 

criminal conduct was not the direct cause of the victim’s death. Second, 

Appellant argues the trial court erred in failing to apportion the amount of 

____________________________________________

5

It is firmly established that questions implicating the trial court’s authority 

to impose restitution concern the legality of sentence and, as such, pose 

questions of law over which we exercise plenary review. Commonwealth 

v. Hall, 80 A.3d 1204, 1212 (Pa. 2013). 

6 Appellant framed the issues in her brief as follows:

1. Did the court err by finding that restitution was imposed as a 

condition of probation and applying an indirect causation 

standard under [Section 9754(c)(8)] when the sentencing 

proceedings did not indicate that it was a condition of probation 

and the court did not make a determination regarding what loss 

had been caused by [Appellant] and/or the amount [Appellant] 

could afford to pay?

2. If restitution was ordered as a condition of probation, did the 

court err by failing to make a determination under [Section 

9754(c)(8)] regarding the loss or damage caused by [Appellant] 

or assess [Appellant’s] ability to pay restitution?

3. Did the court err by finding that restitution was proper as a 

direct sentence under [Section 1106(a)] when the funeral and 

memorial costs for the victim, on which the restitution was 

based, were not the direct result of [Appellant’s] reckless 

endangerment of the victim and [Appellant] was not held 

criminally liable for causing the accident in which the victim was 

killed?

4. Did the court err when it failed to consider the extent of the 

victim’s injury and the damage caused by [Appellant’s] conduct 

and to apportion restitution when [Appellant’s] actions were not 

the sole cause of the victim’s injuries?

Appellant’s Brief at 8-9.
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restitution imposed under Section 1106(a), because Appellant’s criminal 

conduct was not the sole cause of the victim’s death. Third, Appellant 

argues that, contrary to the trial court’s claim, it did not impose restitution 

as a condition of probation under Section 9754(c)(8) of the Sentencing 

Code. Finally, Appellant argues, to the extent restitution was ordered under 

Section 9754(c)(8), the trial court erred in complying with the requirements 

of Section 9754(c)(8) when it failed to determine the loss caused by 

Appellant’s actions and assess Appellant’s ability to pay restitution. 

Appellant’s Brief at 8-9. 

“It is generally agreed that restitution is a creature of statute and, 

without express legislative direction, a court is powerless to direct a 

defendant to make restitution as part of a sentence.” Commonwealth v. 

Harner, 617 A.2d 702, 704 (Pa. 1992) (citation omitted); see also 

Commonwealth v. Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (noting 

for a court to impose a sentence of restitution, it must have statutory 

authority to do so), appeal denied, 980 A.2d 109 (Pa. 2009). Restitution 

may be imposed in several situations, including, as applied in this case, as 

part of a direct sentence under Section 1106(a) of the Crimes Code, or as a 

condition of probation under Section 9754(c)(8) of the Sentencing Code.7 

____________________________________________

7 Other settings also permit the imposition of restitution, including as a 

condition of parole, 18 Pa.C.S.A. § 1106(b), as a condition of intermediate 

punishment, 42 Pa.C.S.A. § 9763(b)(10), or as an order by the magisterial 

district judge, 18 Pa.C.S.A. § 1106(d).
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The importance of the differences between the statutory authorities is that 

restitution imposed under Section 1106 requires “a direct causal connection 

between the crime and the loss.” Commonwealth v. Harriott, 919 A.2d 

234, 238 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In 

contrast, restitution imposed as a condition of probation does not require a 

“direct nexus between [the] offense and [the] loss . . . . [A]n indirect 

connection between the criminal activity and the loss is sufficient.” Id. 

Although restitution is penal in nature, it is highly favored in the law

and is encouraged so that the defendant will understand the egregiousness 

of her conduct, be deterred from repeating her conduct, and be encouraged 

to live in a responsible way. See Commonwealth v. Brown, 981 A.2d 

893, 895-96 (Pa. 2009) (internal citation omitted). It is settled, therefore, 

that the “primary purpose of restitution is rehabilitation of the offender by 

impressing upon [her] that [her] criminal conduct caused the victim’s loss or 

personal injury and that it is [her] responsibility to repair the loss or injury 

as far as possible.” Id. at 895; accord Commonwealth v. Kinnan, 71 

A.3d 983, 986 (Pa. Super. 2013) (citation omitted). 

We now turn to Appellant’s first argument that, under Section 

1106(a), the direct cause of the victim’s death was his operating the vehicle 

under the influence of alcohol and not Appellant’s criminal conduct. We 

need not address this issue, because even if Appellant’s first argument is 

valid, the trial court lacked the authority to award restitution to the victim’s 

parents under Section 1106(a) of the Crimes Code. It is well-settled that 
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“[t]he mandatory payment of restitution pursuant to Section 1106 . . . is 

limited to the direct victim and not to third parties, including family 

members, who shoulder the burden of the victim’s losses.” 

Commonwealth v. Langston, 904 A.2d 917, 924 (Pa. Super. 2006) 

(citation omitted) (emphasis added). The Langston court noted that “the 

decedent’s son . . . was not a ‘direct victim’ of the crime entitled to 

restitution under Section 1106[,]” because Section 1106 “requires that a 

victim’s loss be caused directly by a defendant’s criminal conduct rather than 

a loss consequential to such conduct.” Id. at 923. We further noted that 

although the son “was in utero at the time of the accident, there was no 

evidence presented that he suffered any physical injuries as a result of 

appellant’s [criminal] conduct.” Id. In Hall, our Supreme Court observed 

that a restitution award to the homicide victim’s children was improper 

because they did not meet the narrow definition of victim under Section 

1106. Hall, 80 A.3d at 1213-14. The court also observed the trial court 

could have awarded restitution only to the victim or his estate, which, as the 

record evidence revealed, was never established in that case. Hall, 80 A.3d 

at 1213 (observing that “[i]n this case involving a homicide, obviously, the 

victim himself is deceased and cannot receive restitution. There is no 

indication that an estate was ever established on behalf of the victim, which 

could theoretically receive an award of restitution directed to the victim 

himself.”). Here, consistent with Langston and Hall, we conclude the 

victim’s parents do not qualify as victims under Section 1106(a) of the 
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Crimes Code. Accordingly, the trial court erred in imposing restitution (for 

funeral) upon Appellant as a direct sentence under Section 1106(a). 

We need not address Appellant’s second argument. As stated earlier, 

Appellant argues the trial court erred in failing to apportion the amount of 

restitution imposed under Section 1106(a), because her criminal conduct 

was not the sole cause of the victim’s death. Appellant’s Brief at 25-27. 

Based on our conclusion that the trial court did not have authority to order 

restitution under 1106(a) of the Crimes Code, we need not address the 

merits of this apportionment argument. Likewise, we need not address 

whether Appellant preserved this argument when she raised it for the first 

time in her reconsideration motion.

We next turn to Appellant’s third argument that the trial court did not 

impose restitution as a condition of probation under Section 9754(c)(8) of 

the Sentencing Code. In particular, Appellant argues, and the 

Commonwealth agrees, that the trial court ordered restitution only under 

Section 1106(a), because the written sentencing order does not specifically 

indicate that restitution in this case was issued as a condition of probation 

under Section 9754(c)(8). We disagree. 

First, contrary to Appellant’s argument that the restitution at issue is

not a condition of probation, the trial court expressly noted, inter alia, in its 

October 29, 2013 order that restitution in the matter sub judice “would 

easily fall under the standard of restitution as condition of [Appellant’s] 

probation.” Trial Court Order, 10/29/13, at 3. Second, we observe the 
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written sentencing order form at issue here is poorly formatted. The order 

form separates special conditions from financial obligations, which include 

restitution, court costs, and fines. In its order affirming its October 29, 2013 

order, the trial court recognized this formatting issue. See Trial Court 

Order, 1/21/14, at ¶ 4 (“It is of no consequence that the directive to pay 

restitution did not fit into the special conditions section of the formatted 

[written] sentencing order. The [o]rder clearly directs restitution as a 

condition of probation.”). Finally, the trial court’s statements at sentencing 

support its conclusion that restitution was ordered as a condition of 

probation under Section 9754(c)(8). See Trial Court Order, 1/21/14, at 4; 

Trial Court Rule 1925(a) Opinion, 4/28/14, at 5. At sentencing, the trial 

court stated:

You’re placed on probation for a period of 24 months, pay the 

court costs, pay $200 to the Fulton County Law Library. You’ll 

undergo a drug and alcohol assessment and follow any 

recommendations for treatment, 50 hours of community service. 

You may not consume alcohol or any controlled substance and 

you’ll subject to random testing to insure compliance with that 

condition. You’ll pay the restitution as determined by the district 

attorney and, of course, there’s an issue with that that the 

courts with deal with at some point, and finally you have a 

supervision fee of $25 per month to defray the cost of the 

supervision that the court has ordered in this case.

N.T. Sentencing, 11/5/12, at 9-10. As the sentencing transcript indicates, 

the court sentenced Appellant to 24 months’ probation, and immediately 

thereafter, the court listed the conditions of Appellant’s probation, which 

included the restitution at issue. Accordingly, when we consider the trial 

court’s October 29, 2013 and January 21, 2014 orders, its Rule 1925(a) 
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opinion, the written sentencing order, and the sentencing transcript, we find 

no basis upon which to disagree with the trial court’s claim that it imposed 

restitution upon Appellant as a condition of probation under Section 

9754(c)(8). Cf. Commonwealth v. Popow, 844 A.2d 13, 19-20 (Pa. 

Super. 2004) (noting that the language of the oral sentence did not indicate 

that the trial court ordered restitution under Section 9754(c)(8)). 

We now address Appellant’s fourth and final argument that, if Section 

9754(c)(8) applies sub judice, the trial court erred in complying with the 

requirements of Section 9754(c)(8) when it failed to assess Appellant’s 

ability to pay restitution. We agree. As we have explained:

When restitution is imposed as a condition of probation under 

Section 9754, the required nexus between the defendant’s 

criminal conduct and the victim’s loss is relaxed. However, there 

must be at least an indirect connection between the criminal 

activity and the loss. Additionally, “to the extent a sentence of 

probation is imposed to make restitution for losses caused by the 

defendant’s criminal conduct, there should be proof of the 

damages suffered.” Finally, where a sentencing court imposes 

restitution as a probationary condition, subsection 9754(c)(8) 

obligates the court to determine what loss or damage has been 

caused and what amount of restitution the defendant can afford 

to pay.

Kinnan, 71 A.3d at 987 (emphasis added); see Harner, 617 A.2d at 707 

(noting that under Section 9754, the sentencing court has an obligation to 

“determine what loss or damage has been caused, and what amount of 

restitution [the defendant] can afford to pay, and how it should be paid”).

Our review of the record here does not indicate that the trial court 

complied with the requirements of Section 9754(c)(8). The trial court did 

not determine on the record whether Appellant was able to pay the amount 
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of restitution imposed. See Commonwealth v. Karth, 994 A.2d 606, 608

(Pa. Super. 2010) (noting that under Section 9754(c)(8) restitution is to be 

imposed only in an amount the defendant can afford to pay) (quotation 

marks and citation omitted). 

As noted above, the trial court relied on Rule 706 or Childs to support 

its decision not to assess Appellant’s ability to pay under Section 9754(c)(8) 

prior to imposing restitution. Such reliance, however, is misplaced. First, 

Rule 706 does not apply to orders of restitution, but pertains only to fines 

and costs. Second, in Childs, the appellant did not challenge the amount of 

restitution and restitution was not an issue on appeal. As this Court noted, 

“[a]ppellant does not contest the amount that he was ordered to pay in 

restitution or fines. Instead, [a]ppellant argues that the trial court is 

required to hold a hearing to determine a defendant’s ability to pay costs, 

prior to imposing such costs.” Childs, 63 A.3d at 325 (emphasis added). 

Thus, applying Rule 706, we determined the trial court did not err in denying 

appellant a hearing on his ability to pay costs. Id. at 326. We reasoned:

Generally, a defendant is not entitled to a pre-sentencing 

hearing on his or her ability to pay costs. Commonwealth v. 

Hernandez, 917 A.2d 332, 336–37 (Pa. Super. 2007). While 

Rule 706 “permits a defendant to demonstrate financial inability 

either after a default hearing or when costs are initially ordered 

to be paid in installments,” the Rule only requires such a 

hearing prior to any order directing incarceration for failure to 

pay the ordered costs. Id. at 337.

Id. (emphasis in original). Accordingly, the trial court’s reliance on Rule 706 

and Childs is inapposite in the instant matter. To reiterate, Section 
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9754(c)(8), which is at issue here, clearly requires a court to assess a 

defendant’s ability to pay prior to imposing restitution. 

In sum, based on our conclusions above, we reverse the trial court’s 

January 21, 2014, order and remand this matter to the court to vacate its 

November 5, 2012 restitution order and to conduct a new sentencing 

hearing, consistent with this decision, limited to an assessment of 

Appellant’s ability to pay the restitution imposed under Section 9754(c)(8) of 

the Sentencing Code. 

Order reversed. Cased remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2015