J-S43040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MALAKI ADONIS FARRELL

Appellee No. 1717 MDA 2015

Appeal from the Judgment of Sentence June 11, 2015

In the Court of Common Pleas of York County

Civil Division at No(s): CP-67-CR-0001278-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED MAY 17, 2016

The Commonwealth appeals from the judgment of sentence entered in 

the York County Court of Common Pleas, following Appellee Malaki Adonis 

Farrell’s negotiated guilty plea to receiving stolen property, fleeing or 

attempting to elude police officer, possession of a controlled substance, and 

drivers required to be licensed.1 We affirm.

The relevant facts and procedural history of this appeal are as follows. 

On June 11, 2015, Appellee pleaded guilty to the aforementioned crimes 

relating to his involvement with a stolen 2012 Nissan on February 10, 2015. 

The trial court sentenced Appellee, according to the terms of the negotiated 

plea, to concurrent sentences of one (1) to three (3) years’ incarceration for 

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1 18 Pa.C.S. § 3925(a), 75 Pa.C.S. § 3733(a), 35 P.S. § 780-113(a)(16), 

and 75 Pa.C.S. § 1501(a), respectively.
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receiving stolen property, one (1) to three (3) years’ incarceration for fleeing 

or attempting to elude police officers, and six (6) to twelve (12) months’ 

incarceration for possession of a controlled substance. Additionally, Appellee 

was fined $200.00 for driving without a license.

On June 22, 2015, the Commonwealth filed a motion to modify 

sentence to include restitution.2 On October 5, 2015, the court conducted a 

hearing on restitution. The court denied the Commonwealth’s motion to 

include restitution the next day. On October 7, 2015, the Commonwealth 

filed a notice of appeal. On October 14, 2015, the court ordered the 

Commonwealth to file a concise statement of errors complained of upon 

appeal pursuant to Pa.R.A.P. 1925(b), and it timely complied on October 26, 

2015.

The Commonwealth raises the following issue for our review:

RESTITUTION IS PART OF A CRIMINAL SENTENCE AND 

CAN BE IMPOSED THROUGH POST-SENTENCE MOTIONS. 

FOLLOWING [APPELLEE’S] PLEA AND SENTENCING, THE 

COMMONWEALTH RECEIVED INFORMATION THAT 

RESTITUTION WAS OWED TO ONE OF THE VICTIMS. THE 

COMMONWEALTH FILED A TIMELY POST-SENTENCE 

MOTION ASKING THE TRIAL COURT TO IMPOSE 

RESTITUTION AS PART OF [APPELLEE’S] SENTENCE. DID 

THE TRIAL COURT ERR IN REFUSING TO ORDER 

RESTITUTION?

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2 Because June 21, 2015 fell on a Sunday, the Commonwealth’s postsentence motion was timely filed. See 1 Pa.C.S. § 1908 (when computing 

the 30-day filing period, “[if] the last day of any such period shall fall on 

Saturday or Sunday... such day shall be omitted from the computation.”).
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Commonwealth’s Brief at 4.

The Commonwealth argues the court should have granted its postsentence motion to modify sentence by imposing restitution because it was 

timely. It claims the court erred by denying the motion and concludes this 

Court should reverse the order denying its post-sentence motion and 

remand the case to the trial court for a full restitution hearing. We disagree.

“[T]he imposition of restitution for property damage is not 

mandatory.” Commonwealth v. Rohrer, 719 A.2d 1078, 1080 

(Pa.Super.1998). Rather, “[t]he imposition of restitution is within the sound 

discretion of the sentencing court and must be supported by the record.” 

Commonwealth v. Keenan, 853 A.2d 381, 382-83 (Pa.Super.2004). 

Accordingly, in this case, the Commonwealth challenges the discretionary 

aspects of Appellee’s sentence.

Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011). Before this Court can address such a discretionary 

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the 

following four-part test:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.
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Id.

Here, the Commonwealth filed a timely post-sentence motion and a 

timely notice of appeal. The Commonwealth, however, failed to include a 

Pa.R.A.P. 2119(f) statement in its brief and failed to raise a substantial 

question that the sentence appealed from is not appropriate under the 

sentencing code. The Commonwealth, therefore failed to invoke this Court’s 

jurisdiction. See Allen, supra.

Even if the Commonwealth had invoked this Court’s jurisdiction, its 

issue would merit no relief.

The following statute governs restitution:

§ 1106. Restitution for injuries to person or property

(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.--

* * *

(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.
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(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.

(3) The court may, at any time or upon the 

recommendation of the district attorney that is based on 

information received from the victim and the probation 

section of the county or other agent designated by the 

county commissioners of the county with the approval of 

the president judge to collect restitution, alter or amend 

any order of restitution made pursuant to paragraph 

(2), provided, however, that the court states its reasons 

and conclusions as a matter of record for any change or 

amendment to any previous order.

(4) (i) It shall be the responsibility of the district 

attorneys of the respective counties to make a 

recommendation to the court at or prior to the time of 

sentencing as to the amount of restitution to be ordered. 

This recommendation shall be based upon information 

solicited by the district attorney and received from the 

victim.

(ii) Where the district attorney has solicited information 

from the victims as provided in subparagraph (i) and has 

received no response, the district attorney shall, based on 

other available information, make a recommendation to 

the court for restitution.

(iii) The district attorney may, as appropriate, recommend 

to the court that the restitution order be altered or 

amended as provided in paragraph (3).

18 Pa.C.S. § 1106 (emphasis added).

Act 1998-121 imposed upon the court the requirement 

that if restitution is ordered, the amount must be 

determined at the time of sentencing, 18 [Pa.C.S.] § 
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1106(c)(2). It also placed upon the Commonwealth the 

requirement that it provide the court with its 

recommendation of the restitution amount at or prior to 

the time of sentencing. 18 [Pa.C.S.] § 1106(c)(4). 

Although the statute provides for amendment or 

modification of restitution “at any time,” 18 [Pa.C.S.] § 

1106(c)(3), the modification refers to an order “made 

pursuant to paragraph (2)...” Id. Thus, the statute 

mandates an initial determination of the amount of 

restitution at sentencing. This provides the defendant with 

certainty as to his sentence, and at the same time allows 

for subsequent modification, if necessary. See 18 [Pa.C.S.] 

§ 1106(c)(3); cf. [42 Pa.C.S.] § 5505 (“Except as 

otherwise provided or proscribed by law, a court upon 

notice to the parties may modify or rescind any order 

within 30 days after its entry, notwithstanding the prior 

termination of any term of court, if no appeal from such 

order has been taken or allowed.”).

Commonwealth v. Dinoia, 801 A.2d 1254, 1256-57 (Pa.Super.2002).

Here, the trial court sentenced Appellee on June 11, 2015, pursuant to 

a negotiated plea agreement. On June 22, 2015, the Commonwealth filed a 

motion to modify sentence to include restitution. The district attorney did 

not make a recommendation to the court at or prior to the time of 

sentencing as to the amount of restitution to be ordered, and the trial court 

did not specify the amount and method of restitution at the time of 

sentencing. Although the Commonwealth baldly asserts that restitution “can 

be imposed through post-sentence motions,”3it cites no case law, nor does 

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3 Commonwealth’s Brief at 4.
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any exist, to support this proposition.4 Section 1106 specifically provides 

that it is the district attorney’s responsibility to make a recommendation as 

to the amount of restitution to be ordered “at or prior to the time of 

sentencing.” 18 Pa.C.S. § 1106(c)(4)(i). The trial court’s decision to deny 

the Commonwealth’s motion to modify sentence to include restitution that it 

did not impose during sentencing was not error.5 

Judgment of sentence affirmed. 

Judge Panella joins in the memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2016

____________________________________________

4

Further, although the Commonwealth claims its challenge is to the legality 

of Appellee’s sentence, it provides no authority that the failure to impose 

restitution at sentencing constitutes an illegal sentence.

5 This decision does not preclude the victim from seeking monetary damages 

from Appellee in a civil action filed within the applicable statute of 

limitations.