J-S79035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

STACY L. SALTZER, :

:

Appellant : No. 96 EDA 2016

Appeal from the Judgment of Sentence November 30, 2015

in the Court of Common Pleas of Montgomery County,

Criminal Division, No(s): CP-46-CR-0004765-2014

BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016

Stacy L. Saltzer (“Saltzer”) appeals from the judgment of sentence 

imposed following her entry of an open guilty plea to one count each of 

driving under the influence of a controlled substance (“DUI”), accidents 

involving damage to unattended vehicle, disregarding a lane of traffic, and 

operating a vehicle without financial responsibility.1 We affirm.

The trial court set forth the relevant factual and procedural history, 

which we adopt for the purpose of this appeal. See Trial Court Opinion, 

3/1/16, at 1-3.

On appeal, Saltzer raises the following question for our review:

Did the [trial] court err in ordering [Saltzer] to pay restitution to 

PECO [Energy Company (“PECO”)] in the amount of $19,463.70 

for allegedly damaging a PECO utility pole, where no affiant 

claimed[,] through competent testimony or report[,] that any 

contact occurred between [Saltzer’s] car and the pole[,] and 

 

1 75 Pa.C.S.A. §§ 3802(d)(2), 3745(a), 3309(1), 1786(f).
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[Saltzer] was never charged [with,] nor [pled] guilty to[,] 

striking the pole[?]

Brief for Appellant at 9 (unnumbered).

Saltzer argues that the trial court erred by ordering Saltzer to pay 

restitution for the damaged PECO utility pole. Id. at 12. Saltzer cites to this 

Court’s decision in Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super. 

2007), and asserts that, to impose an order of restitution, there must be a 

specific nexus between the crime committed and the amount of restitution 

ordered. Brief for Appellant at 12. Saltzer argues that such a nexus was not 

present in this case, because she was never charged with damaging the 

utility pole. Id. at 13.2 

“When a court’s authority to impose restitution is challenged, it 

concerns the legality of the sentence; however, when the challenge is based 

on excessiveness, it concerns the discretionary aspects of the sentence.” 

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006). Here, 

Saltzer asserts that the restitution for the PECO utility pole is illegal because 

 

2 Additionally, Saltzer claims that the PECO utility pole was never mentioned 

at her guilty plea hearing. Brief for Appellant at 13. Saltzer further 

contends that the trial court’s determination was based merely on 

speculative, circumstantial evidence that had not been presented at the 

guilty plea hearing. Id. at 14. However, we note that the prosecutor 

referred to PECO’s restitution claim during both the guilty plea hearing and 

the sentencing and restitution hearing. See N.T., 7/8/15, at 3; see also

N.T., 11/30/15, at 3. After the guilty plea hearing, the trial court postponed 

sentencing to consider restitution. See N.T., 7/8/15, at 4-5, 21. 

Additionally, after the sentencing and restitution hearing, the trial court left 

open the issue of restitution as to the PECO utility pole, and subsequently 

conducted a hearing to determine whether Saltzer should be held 

responsible for the damage. See N.T., 11/30/15, at 16.
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there was an insufficient nexus between her actions and the damage. 

Therefore, Saltzer’s claim challenges the legality of her sentence. See 

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010) 

(stating that “a claim that a restitution order is unsupported by the record 

challenges the legality, rather than the discretionary aspects, of 

sentencing.”). “Issues relating to the legality of a sentence are questions of 

law. Our standard of review over such questions is de novo and our scope of 

review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. 

Super. 2014) (citations, brackets and ellipses omitted); see also 

Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (stating 

that because “[the appellant’s] claim on appeal challenges the legality of his 

sentence, its review is not abrogated by the entry of his guilty plea.”).

Saltzer characterizes the restitution as a direct sentence imposed 

under Section 1106(a) of the Crimes Code. However, the trial court ordered 

Saltzer to pay restitution as a condition of her DUI sentence. Accordingly, 

the restitution is a condition of intermediate punishment imposed under 42 

Pa.C.S.A. § 9763, which provides, in relevant part, as follows:

42 Pa.C.S.A. § 9763. Sentence of county intermediate 

punishment.

* * *

(b) Conditions generally.—The court may attach any of the 

following conditions upon the defendant as it deems necessary:

* * *
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(10) To make restitution of the fruits of the crime or 

to make reparations, in an affordable amount, for 

the loss or damage caused by the crime.

42 Pa.C.S.A. § 9763(b)(10). 

In Harriott, this Court held that,

to impose restitution as a condition of [intermediate 

punishment] pursuant to 42 Pa.C.S.A. § 9763(b)(10), there need 

not be a direct nexus between the conduct and the loss. Rather, 

an indirect connection between an offender’s activity and the 

victim’s damage will justify the restitution order. A sentencing 

court must have the latitude to include such restitution as a 

condition of [intermediate punishment] if restitution serves the 

various purposes of [intermediate punishment]. 

Harriott, 919 A.2d at 239; see also Commonwealth v. Pleger, 934 A.2d 

715, 720 (stating that “[w]hether imposed as a direct sentence or as a 

condition thereof ..., the primary purpose of restitution is the rehabilitation of 

the offender.”). 

In its Opinion, the trial court set forth the relevant evidence underlying 

Saltzer’s DUI conviction, as well as the evidence establishing a nexus 

between Saltzer’s actions and the damage to the PECO utility pole. See

Trial Court Opinion, 3/1/16, at 4-7. The trial court determined that “the 

damages to the utility pole stem from [Saltzer’s] overall conduct that 

night[,] which resulted in the charge of DUI, to which she has pled guilty.” 

Id. at 7; see also Harriott, 919 A.2d at 240 (finding that, for the purpose 

of ordering restitution as part of an intermediate punishment for DUI, the act 

of spitting on police officers was part of appellant’s overall conduct). Upon 

review, we agree that the record supports the relaxed nexus applicable when 
J-S79035-16

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restitution is imposed as a condition of intermediate punishment, and we 

adopt the trial court’s analysis, as set forth in its Opinion, for the purpose of 

this appeal. See Trial Court Opinion, 3/1/16, at 4-7. Accordingly, Saltzer is 

not entitled to relief on her claim. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016
1 

stole my kids". She would only repeat herself when asked to whom she was referring. 

defendant appeared disoriented and did not know what was going on. She kept stating that "he 

she tried unsuccessfully to exit her car. Officer Licwinko observed this behavior, noting that the 

Thereafter, witnesses observed the defendant trying to restart her car and when it would not start 

was observed drifting intb the West bound lane before striking the two parked vehicles. 

lanes with the rear bumper dragging behind the defendant's vehicle. The defendant's vehicle 

traveling cast on Beech Street, swerve into the East bound lanes and back into the west bound 

Officer Licwinko spoke with witnesses at the scene who saw the defendant's vehicle, 

parked vehicles. 

the report of' a vehicle accident. Upon his arrival, he observed one vehicle crashed into two 

Pottstown Borough Police Department responded to the area of Beech Street and Penn Street for 

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On April 10, 2014 at approximately 8:56 p.m., Officer Andrew Licwinko or the 

FACTS AND PROCEl)URAL HISTORY 

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entered on July 8, 2015. A restitution hearing was held thereafter on December 10, 2015. 

from this Court's Disposition imposed on November 30, 2015, as a result of an open guilty plea 

Appellant, StacySaltzer, ("Appellant") appeals to the Superior Court of Pennsylvania 

INTRODUCTION 

OPINION 

I ' 

STACY SALTZER 

2018 EDA 2015 

v, 

4765-2014 

COMMONWEALTH or PENNSYLVANIA 

IN THE COURT OF.(;OMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 

CRIMINAL DlVISJON 

Circulated 10/31/2016 03:51 PM
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conditions, including the'payrnent or restitution in the amount of $8,866.98, the total cost of 

was sentenced lo pay court costs. In addition, the defendant's sentence was subject to special 

costs of prosecution and a fine of$ J ,500.00. With regard to Counts 2, 3, and 4, the defendant 

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Intermediate Punishment, with the first ninety days to be served under house arrest; and to pay 

in the Montgomery County Correctional Facility; fifty-nine months and twenty days of 

Driving Under the lnfluence of a Controlled Substance, to ten days of incarceration, to be served 

On November 30,, 2015, the Defendant, Stacy Saltzer was sentenced on Count one, 

hearing was requested arid sentencing was deferred. 

plea on the record to all four counts. N.T., Open Guilty Plea, 7/8/15, pp. 6- 20. A restitution 

On July 8, 2015, the defendant entered a knowing, intelligent and voluntary open guilty 

responsibi I ity. 

count of disregarding a lane of' traffic and one count of operating a vehicle without financial 

a controlled substance, cine count of accidents involving damage to unattended vehicle, one 

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On May 8, 20141 Appellant was charged with one count of driving under the influence of 

defendant, Stacy Seltzer, 

Based upon the foregoing, Officer Licwinko issued a summons, sent by mail, to the 

Clonazcparn in her system, all of which arc schedule IV controlled substances. 

defendant had 55 ng/ml ,of Lorazepam, 48 ng/ml of Clonazepam and 16 ng/ml of 7 AminoOfficer Licwinko received the lab results on Apri I 25, 2014, which showed that the 

was drawn al 10:30 p.mi' by an Emergency Room nurse and was sent to NMS labs for testing. 

form and the defendant submitted to a blood test for suspicion of DUI. The defendant's blood 

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Defendant was t1ransportcd to Reading Hospital. Officer Licwinko read her the DL-26 

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However, at the Inst minute the Commonwealth tried to saddle appellant with the cost of 

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damage to a tclep:h?ne pole which she did not hit. The Commonwealth was given ninety 

days to prove Appellant was responsible for the damage to the telephone pole. 

, 

Lane, Summary Offense; Count 4, Operating without a license, Summary Offense. 

Count 2, Damage.to attended vehicles, Summary offense; Count [3], Disregard Traffic 

I. Appellant plead guilty to Count I, DU I of a controlled substance, second offense, M-1; 

reproduced below verbati]n, with citations LO the record omitted: 

By way of Concise Statement, Appellant raises three issues on appeal. The issues are 

ISSUES 

upon the Commonwealth, 

to tile and serve a Concise Statement within 21 days of January 7, 2016. 

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On Januarv 19. 2016, a Concise Statement was Ii led in the Clerk of Courts and served 

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On December 29, '.2015, Appellant filed a Notice of Appeal. This Court ordered Appellant 

$19,463.70 for the cost ofrepairs to the PECO pole. NT, Restitution Hearing, 12/10/15, p. 27. 

damages to a telephone P?l'e. After hearing testimony from Officer Licwinko, Kimberly Yocum, 

a representative of PECO( and the Defendant, this Court granted restitution in the sum 01· 

A restitution hearing was held on December I 0, 2015 regarding PECO's claim for 

parked vehicles. N.T., Sentencing Hearing, I 1/30/15, p. 16. 

I l /30/15, p. 14-17. The tommonwcalth requested that restitution remain open for an additional 

30 days so that the parties have adequate time to prepare and address the restitution claim of 

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PECO for damage to a telephone pole in close proximity lo where the defendant hit the two 

damages to the two automobiles the defendant collided with. N.T., Sentencing Hearing, 

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1 Th is Court Ordered Restitution in the amount of SI 9,<163 .70, which is the amount of damages rcsti ficd lo by PECO 

1::nergy's witness. NT, Restit~lfon Heuring, 12/10/15, p. 11, 27. 

vehicle. NT, Restitution Hearing, 12/10/15, p. 7. Officer Licwinko also observed that the 

Witnesses to this accident informed the Officer that the defendant's vehicle was swerving back I . 

and forth over the double yellow line and struck a parked car head-on and then struck another 

found the defendant in her vehicle, which had stopped after hitting two parked vehicles. 

When Officer Licwinko arrived at the accident scene on the night of' April 10, 2014, he 

defendant for damages 19 the PECO Energy utility pole. 

' 

' 

only one issue is raised o1n appeal, that being the propriety of the restitution order against the 

While the Appellant's Concise Statement consists of three paragraphs, it appears that 

A. THIS COUHJf PROPERLY SENTENCED DEFENDANT TO PAY 

RESTJTUTION FOR DAMAGE TO TJIE PECO ENERGY POLE. 

DISCUSSION 

an accident she \,:as not involved in. 

erred in ordering Appellant to pay restitution in the amount of $20,418.751 to PECO for 

Appellant shouldlbe responsible for paying restitution to PECO. The trial court therefore 

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3. Appellant never pied guilty to hitting a PECO pole and nothing in the Police report or 

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Bills of lnformation indicated she hit a PECO pole. The Commonwealth failed to prove 

exceeding prescription levels, and that rendered you impaired to drive? 

a motor vehicle i~ Pottstown, Montgomery County, and you did so while you had levels 

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of Lorazcparn and Clonazazeparn, which arc scheduled IV drugs, in your system 

2. With regard to the factual basis, the Commonwealth indicated the following: you 

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understand by pleading guilty you're admitting that on April 10, 2014, you were driving 
I t 

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18; NT, Restitution Hearipg, 12/10/ l 5, p. 25. 

two days of her life, let alone hitting the utility pole that night. NT, Open Guilty Plea, 7/8/15, p. 

The defendant testified that after taking the prescribed medication she does not remember 

damages PECO incurred ~$ a result of the damaged utility pole. NT, Restitution Hearing, 

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12/10/15, p. 12-15; Exhi~il'C-3. 

defendant spoke with a representative of PECO on a couple of occasions regarding the amount of 

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The damages were calculated to be $19,463. 70. NT, Restitution Hearing, I 2/ I 0/ 15, p. 11. The 

secondary level and at th~ cross arms at the top. NT, Restitution Hearing, 12/J 0/15, p. 21-22. 

' 

troubleman, Howard Green was dispatched to the site to determine the amount of damage. He 

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' determined that pole number 520 was hit by a vehicle and it was cracked at the bottom, at the 

contacted by the Pottstown Police Department to report a damaged utility pole at 264 North York 

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Street in Pottstown. NT,!Restitution Hearing, 12/10/15, p. 11, 26. She testified that PECO's 

Kimberly Yocum[ .i senior claims case manager for PECO Energy testified that she was 

vehicle as a gray or silver Nissan, with a Pennsylvania registration number of FHM0824. NT, 

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Restitution Hearing, 12110/15, pp. 7-10. 

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block of York Street wascalled in to the Pottstown Police Station. The caller described the 

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~, At 8:53 p.m., approximately three minutes prior to Officer Licwinkos response to the 

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l~l accident involving the defendant and the two parked cars, a report of a hit and run in the 200 

silver/aluminum Nissan Sentra, with a license plate number of FHM0824. See. Criminal ' . 

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Complaint, filed June 301 '.?014. 

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5-6. Officer Licwinko's1 Criminal Complaint identifies the defendant's vehicle as a 

bumper of the defendant ':scar was hanging off the back. NT, Restitution Hearing, 12/10/15, p. 
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struck the utility pole wit!~ her vehicle shortly before she struck the two parked vehicles. 

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damage to the rear of the defendant 's vehicle leads this Court to conclude that the defendant 

damage in that area, other than the utility pole. These facts considered collectively with the 

identified what precisely was hit on York Street, there were no reports of any other properly 

color of the defendant's \)chicle, as well as the license plate number. While it was never 

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vehicles, a short distance :a\vay. The description of the hit and run vehicle matches the make and 

struck the utility pole on the 200 block of York Street in Pottstown. The defendant's vehicle had 

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rear end damage with its bumper hanging off. A report or a hit and run on York Street was 

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called into the Pottstown Police Station three minutes before the defendant hit the two parked 

Circumstantial evidence presented by the Commonwealth established that the defendant 

defendant under Section 9763(b )( I 0). 

of her DUI sentence and as such, restitution for damage to the utility pole was imposed upon the 

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In the instant matter, the defendant was ordered to serve intermediate punishment as part 

I . Harriott, 919 A.2d 234, 23 7-38 (Pa. Super. 2007). 

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condition of intermediate punishment under 42 Pa. C.S. § 9763(b)( I 0). See, Commonwealth v. 

Restitution can be imposed by the Courts in one of three ways, as a direct sentence under 

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18 Pa. C.S. § 1106(a); as a condition or probation under 42 Pa. C.S. § 9754(c)(8); or as a 

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victim as a result or the crime assists the court in calculating the appropriate amount of 

! 

restitution. The amount 9f the restitution award may not be excessive or speculative. 

Commonwealth v. AlcmaLo, 997 A.2d l 181, 1183 (Pa. Super. 20 I O)(cifCltions omitted). 

basis for the appropriate 'amount of restitution. The dollar value of the injury suffered by the 

fashioning an order of restituuon, the lower court must ensure that the record contains the factual 

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It is the Commonwealth's burden or proving its entitlement to restitution. When 

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Copies of the abo'l Or<j<;r 

Mailed on: olj ;;;_9 // l{) 

By trucrofflce ~lall to: ; 

Montgomery County District Attorney's Office -Appellate Div. Raymond Roberts, Esq. (Assistant Public Defender, Chief of Appeals) 

Clerk ofCourts . 

~::~ 

BY THE COURT: 

the amount of$19,463.70 be AFFIRMED. 

sentence imposing restitution upon the Defendant for damage to the PECO Energy utility pole, in 

Based on the reasons above, the undersigned respectively requests that this Court's 

CONCLUSION 

in this matter for restitution purposes. I . 

which she has pied guiltr The restitution will provide reimbursement to PECO, who is a victim 

stem from the defcndant+s overall conduct that night which resulted in the charge of DUI, to 

Accordingly, based upon the foregoing, this Court concludes that the damages to the utility pole 

" •, 

·~ •, 

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L.,J