J-S67025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW DAVIDOFF

Appellant No. 386 MDA 2015

Appeal from the Order January 30, 2015

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000707-2014

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED MARCH 01, 2016

Appellant, Matthew Davidoff, appeals from the order denying his 

motion to modify restitution.1 Davidoff does not contest the computation of 

restitution, but rather whether the Commonwealth presented sufficient

evidence of a causal nexus between his conduct and injury suffered by the 

victim. We conclude that the explicit reasoning employed by the trial court 

in setting restitution is erroneous, and therefore reverse and remand.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Though Davidoff’s motion is entitled “Motion to Determine Restitution,” the 

trial court included restitution of $41,103.95 when it imposed sentence. See 

N.T., Sentencing, 7/17/14, at 6. The procedure employed therefore 

complies with the requirements of 18 Pa.C.S.A. § 1106(c). See 

Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009).
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Davidoff pled, pursuant to a plea agreement with the Commonwealth, 

no contest to a charge of simple assault. The factual predicate for this plea 

was set forth as follows.

Your Honor, the allegations are that Matthew was here in State 

College in Centre County with his entire family for a wedding of a 

family member. They were at the Phyrst bar when the 

altercation broke out. Matthew’s side and his family’s side of the 

case is it was the bouncers who precipitated the altercation. The 

bouncers, of course, said that they were trying to get Matthew 

out of the bar, he resisted, and an altercation broke out.

In the course of the altercation it was alleged by one of the 

bouncers that he was pushed, fell down, hurt his knee. He had a 

preexisting knee injury but when he fell down he reinjured his 

knee and created a significant medical expense. I believe the 

Commonwealth is saying up to $40,000. But the evidence is 

that Matthew had nothing to do with that injury and the 

evidence would be from our side had we gone to trial that his 

family members only came to his assistance because he was 

being beaten by three or four bar employees.

As a result that charge ultimately was filed against Matthew and 

his cousin, who is here today also, but the family and Matthew 

have presented they have a self-defense issue. This was 

compromised because the Commonwealth has made it clear that 

if we do not resolve this case today they are contemplating 

adding an aggravated assault charge.

N.T., Sentencing, 7/17/14, at 4-5. When asked for any additions, the 

Commonwealth declined. See id., at 5. As part of the plea agreement, the 

Commonwealth agreed that the amount of restitution was subject to 

litigation at a subsequent hearing. See id., at 2.

At the subsequent hearing, the victim (“the Bouncer”) testified as part 

of the Commonwealth’s case-in-chief. He stated that he was working at the 

Phyrst near 2 a.m. on the morning in question when Davidoff approached 
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him and asked him to move. See N.T., Restitution Hearing, 11/17/14, at 5-

6. When he informed Davidoff to wait while he performed his job, Davidoff 

“kind of shouldered me out of the way and walked towards the bar.” Id., at 

6. 

The Bouncer followed Davidoff to the bar and indicated to the 

bartender that Davidoff was not to be served. See id. He then informed 

Davidoff that he was visibly intoxicated and that he had to leave the 

premises. See id., at 6-7. After Davidoff indicated that he would not leave, 

the Bouncer testified that

I said, “No, it’s time for you to go, start walking,” and I put my 

hand up and he smacked my hand down. And that’s when I 

looked at him again and said “Start walking.” And he went, like, 

moved his hand up again and that’s when I thought he was 

going to smack my hand so I grabbed his hand and pushed it, 

because I didn’t know what exactly he was going to do with it, 

and that’s when we engaged in our altercation of, like, a pushing 

shoving match.

...

And then we kind of almost grabbed each other at the same 

time. Like, I reached forward to grab him as he came forward to 

grab me. And that’s when we got – I would say just more of like 

– I mean it wasn’t no punches were thrown or anything like that.

And by that time, we were right up against the bar and Zach, 

one of the other bouncers, came from the door and he came 

over. And as he came over, one of the fathers had also came 

over at the same time and pushed me from the side. I turned 

around, pushed him off of me, and then I felt like being choked 

from behind and it pulled me away from Zach and Mr. Davidoff.

...
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I was being choked from behind [by Davidoff’s cousin, Kelly 

Meenan]. I pulled his hands off. And as soon as I pulled his 

hands off, he kind of bear hugged me from behind, lower 

towards my waist. And at that time, I was trying to reach 

around to grab him and his head was right here around under 

my arm and I couldn’t gain control. So, I started to pry his 

hands off from around my waist. Got his hands off my waist and 

then I felt an extreme, like, pressure in my back and shoulders 

like he had jumped on my back. And then as soon as that 

happened, we both just wiped out on the ground.

...

And when I went to stand up, I couldn’t. Kind of looked at my 

leg, ... I felt, like, an extreme pressure and pain around my knee.

Id., at 6-9. 

On cross-examination, the Bouncer admitted that he was no longer in 

contact with Davidoff when the injury occurred. See id., at 14. In fact, the 

Bouncer testified that Davidoff’s cousin, Kelly Meenan, had caused his injury. 

See id., at 14-15. On re-direct, the Bouncer testified that he did not fall 

due to his “pushing match” with Davidoff. Id., at 24. Several other 

witnesses testified, and although the particulars of their testimony varied, 

none offered a story that indicated Davidoff did anything other than push the 

Bouncer and refuse to leave.

After the hearing, but before a decision on the motion was rendered, 

the trial judge was removed from the case. Another judge was appointed to 

resolve this issue. The substitute judge—in his 2 paragraph discussion of 

the issue—observed that Davidoff had pled no contest to the charge of 

simple assault, and therefore had “agreed to be treated as if he caused 
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bodily injury to” the Bouncer, and therefore imposed restitution in the 

amount of $83,915.95. This timely appeal followed.

Davidoff raises several arguments, but we will address only one, as it 

is dispositive. Davidoff contends that the trial court erred in concluding that 

his nolo contendere plea precluded him from contesting that he had caused 

the injury suffered by the Bouncer. We agree.

Initially, we note that Davidoff pled no contest to a charge of simple 

assault. In the criminal information filed by the Commonwealth, Davidoff 

was alleged to have “attempt[ed] to cause or intentionally, knowingly or

recklessly cause[d] bodily injury to another, to-wit: [the Bouncer.]” As set 

forth above, the factual predicate for Davidoff’s no contest plea did not 

contain any reference that he had, or that the Commonwealth could prove, 

that he had, caused injury to anyone. Since the information includes the 

disjunctive “or,” and Davidoff explicitly reserved the right to contest 

restitution, there is no indication in the record that Davidoff had conceded 

that he was the cause of the Bouncer’s injury. 

“[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. Atanasio, 997 A.2d 1181, 

1183 (Pa. Super. 2010) (citation omitted). A sentence of restitution must be 

based upon statutory authority. See Commonwealth v. Harner, 617 A.2d 

702, 704 (Pa. 1992). Mandatory restitution, as part of a defendant’s 
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sentence, is authorized by 18 Pa.C.S.A. § 1106 and states, in relevant part, 

the following:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime ... wherein the 

victim suffered personal injury directly resulting from the 

crime the offender shall be sentenced to make restitution in 

addition to punished prescribed therefor. 

18 Pa.C.S.A. § 1106(a) (emphasis added). The statute evidences the intent 

to provide the victim with the fullest compensation for his losses incurred as 

a direct result of the defendant’s criminal conduct. See Commonwealth v. 

Burwell, 58 A.3d 790, 794 (Pa. Super. 2012); Commonwealth v. 

Stradley, 50 A.3d 769, 773 (Pa. Super. 2012).

The defendant is only responsible for restitution as to the “losses 

flowing from the conduct for which the defendant has been held criminally 

accountable.” Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa. Super. 

1983) (citations omitted); see also Harner, 617 A.2d at 706. Furthermore, 

because of the explicit language in § 1106, restitution is a proper sentence 

under that the Crimes Code only if there is a “direct causal connection 

between the crime and the loss.” Commonwealth v. Barger, 956 A.2d 

458, 465 (Pa. Super. 2008) (en banc) (citation omitted). 

For instance, in Cooper, we vacated the trial court’s order that 

required the defendant to pay restitution for the costs of a victim’s death 

borne by the victim’s family because the defendant only pled guilty to 

leaving the scene of the accident and not was not found criminally 
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responsible for having struck the victim. See 466 A.2d at 197. Similarly, in 

Barger, we vacated a restitution order based upon the value of a couch that 

was allegedly lost due to conduct for which the defendant was not found 

criminally responsible. See 956 A.2d at 464-465.

“It is the Commonwealth’s burden of proving its entitlement to 

restitution.” Atanasio, 997 A.2d at 1183 (citation omitted). “Although it is 

mandatory under section 1106(c) to award full restitution, it is still 

necessary that the amount of the ‘full restitution’ be determined under the 

adversarial system with considerations of due process.” Id. (citation 

omitted).

Here, Davidoff has presented a colorable argument and evidence that 

he was not directly responsible for the injury suffered by the Bouncer. The 

Commonwealth bore the burden of proving otherwise. It was error for the 

trial court to decide the issue based solely upon Davidoff’s plea of no 

contest. We therefore reverse and remand.
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Order reversed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

Judge Platt joins the memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2016