J-S74042-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

PATRICK JOSEPH LAVELLE,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1565 EDA 2014

Appeal from the Order Entered May 2, 2014

in the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0002757-2013

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 23, 2015

Patrick Joseph Lavelle (Appellant) appeals from the order denying his 

motion to amend the portion of his sentence that awarded $1,587.05 in 

restitution to Ryan Kia. For the reasons set forth below, we reverse and 

remand for further proceedings.

The trial court set forth the relevant facts of this case as follows.

On March 31, 2013, [Appellant] was arrested and charged 

with indecent assault, unlawful restraint, simple assault, and 

recklessly endangering another person, Robia Comer, a sales 

associate employed by Ryan Kia. The matter proceeded to trial, 

at which the victim, Ms. Comer, testified that on March 30, 2013, 

[Appellant] appeared at the automobile dealership to test drive a 

Kia Soul. She got into the passenger seat and proposed a test 

drive route. [Appellant] proceeded in a normal manner, but once 

he passed a supermarket he began speeding up faster and 

faster, making numerous left and right turns and dipping down 

little streets. He instructed her that he was going to take her to a 

“special place.” He then removed his hand from the stick shift, 

placed it on her knee, and began sliding it up her leg. She 

brushed his hand away two times. In response to her admonition 
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that they should go back to the dealership, he turned up the 

radio volume, told her to be quiet, and then drove up a street 

near the municipal building. The car coasted into a parking spot 

near an automobile parts store and then “just stopped” or 

“died.” He exited the vehicle and then came around to the 

passenger door, but she locked all of the doors of the car. He ran 

away, and she telephoned her manager and her husband. Her 

manager called the police, who then arrived and took a 

statement. 

On September 12, 2013, the jury found [Appellant] not 

guilty of the charges of indecent assault and recklessly 

endangering another person and guilty of the charge of unlawful 

restraint. On November 26, 2013, [the trial court] sentenced 

[Appellant] to a term of incarceration of 364 days to 729 days 

followed by one year of probation. In addition, it ordered 

[Appellant] to pay restitution to Ryan Kia in the amount of 

$1,587.05. [Appellant] filed a Motion for Reconsideration of 

Sentence, which [the trial court] denied on December 5, 2013.

On December 23, 2013, [Appellant] filed a Notice of 

Appeal. ... 

On April 21, 2014, [Appellant] filed a Motion to Amend 

Order of Restitution in which he asserted that the restitution 

order was illegal because Ryan Kia was not the “victim” within 

the meaning of 18 Pa.C.S. § 1106. [The trial court] denied that 

motion. 

Trial Court Opinion, 7/30/14, at 1-2 (citations and unnecessary quotation 

marks omitted).

While his direct appeal was pending before this Court, Appellant filed a 

notice of appeal from the trial court’s denial of his motion to amend the 

order of restitution.1 The trial court ordered Appellant to file a statement of 

 

1 On October 16, 2014, a panel of this Court affirmed Appellant’s judgment 

of sentence. Commonwealth v. Lavelle, 70 EDA 2014 (Pa. Super. filed 

October 14, 2014) (unpublished memorandum).
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errors complained of on appeal pursuant to Rule of Appellate Procedure 

1925(b), and one was filed. On appeal, Appellant reiterates his claim that 

the trial court erred in sentencing him to pay restitution in this matter 

because Ryan Kia is not a victim in this case as contemplated by 18 Pa.C.S. 

§ 1106(c).2 Appellant’s Brief at 10-12.

We consider Appellant’s argument mindful of the following.

In the context of criminal proceedings, an order of restitution is 

not simply an award of damages, but, rather, a sentence. An 

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. The 

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. Stradley, 50 A.3d 769, 771–72 (Pa. Super. 2012) 

(citations and quotation marks omitted).

The statute provides, in relevant part, as follows.

§ 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 

 

2 We have jurisdiction over this appeal. As this Court recently explained in 

Commonwealth v. Gentry, 101 A.3d 813 (Pa. Super. 2014), the plain 

language of the restitution statute permits a defendant to seek a 

modification of an existing restitution order at any time. See also 18 Pa.C.S. 

§ 1106(c)(3) (stating, “[t]he court may, at any time or upon the 

recommendation of the district attorney ... 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[ ]”). 
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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.

18 Pa.C.S. § 1106(a).

“Victim” is defined as “(1) A direct victim, (2) A parent or legal 

guardian of a child who is a direct victim, except when the parent or legal 

guardian of the child is the alleged offender, (3) A minor child who is a 

material witness to any of the following [enumerated offenses], [and] (4) A 

family member of a homicide victim ... except where the family member is 

the alleged offender.” 18 P.S. § 11.103.3 A “direct victim” is “[a]n individual 

against whom a crime has been committed or attempted and who as a direct 

result of the criminal act or attempt suffers physical or mental injury, death 

or the loss of earnings under this act. The term shall not include the alleged 

offender[.]” Id.

 

3 As this our Supreme Court has explained

[i]n [Commonwealth v.] Lebarre, [961 A.2d 176 Pa. Super. 

2008), a panel of this Court] concluded that the definition of 

‘victim’ in the Crime Victims Act applies to Section 1106 

restitution, through a general cross-reference to a repealed 

Administrative Code provision in 18 Pa.C.S. § 1106(h) (defining 

‘victim’ for purposes of restitution by referring to section 479.1 

of Administrative Code of 1929, 71 P.S. § 180–9.1). The 

repealed provision indicates generally that its subject matter, 

‘which related to rights of and services for crime victims,’ is now 

located in the Crime Victims Act, 18 P.S. § 11.101 et seq.

Commonwealth v. Hall, 80 A.3d 1204, 1214 n. 5 (Pa. 2013) (some 

citations omitted).
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The trial court addressed Appellant’s issue as follows.

Although the “crime” of “unlawful restraint” was “committed” 

against Robia Comer, during the course of that crime the vehicle 

was commandeered by [Appellant] and Ms. Comer was held 

captive within the vehicle’s tight confine precisely by means of 

the defendant’s reckless and ultimately damaging driving. 

Further, [Appellant] also committed property crimes 

against Ryan Kia. These include Criminal mischief, 18 

Pa.C.S. § 3304; Robbery of Motor Vehicle, 18 Pa.C.S. 

0702; Unauthorized use of automobiles and other 

vehicles, 18 Pa.C.S § 3928; and Theft by unlawful taking 

or disposition, 18 Pa.C.S § 3921. The fact that the 

Commonwealth did not choose to charge [Appellant] with 

these offenses is irrelevant. [Appellant] committed a 

crime against the car’s owner, which is entitled to 

restitution.

Trial Court Opinion, 7/30/2014, at 3-4 (emphasis added).

We disagree. As our Supreme Court has noted, “it is well established 

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

impressing upon him or her that his criminal conduct caused the victim’s loss 

or personal injury and that it is his responsibility to repair the loss or injury 

as far as possible.” Commonwealth v. Brown, 981 A.2d 893, 895-96 (Pa. 

2009) (citations and footnotes omitted). Where, as here, the court imposes 

restitution as a direct sentence and not as a condition of probation, our 

courts have determined that restitution is appropriate “only as to loss caused 

by the very offense for which [the defendant] was tried and convicted.” 

Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa. Super. 1983). 
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As noted, Appellant was convicted of the unlawful restraint of Robia 

Comer. Stated plainly, Ryan Kia is not the victim of that crime.4, 5 See 

Commonwealth v. Langston, 904 A.2d 917, 923-24 (Pa. Super. 2006) 

(holding that “[w]hile reality dictates that the victim’s parents were, in fact, 

victimized when their son was killed by [Langston’s] criminal act, they are 

not victims as provided for by our legislature in the Crimes and Sentencing 

Codes.”). We find the trial court’s attempt to create a nexus between alleged 

damage to the vehicle and Appellant’s ultimate conviction for a crime against 

a named individual to be tenuous at best. 

Moreover, it is not, as the trial court suggests, immaterial for the 

purposes of section 1106 that Appellant was not charged with property 

crimes. The crimes for which Appellant was charged did not require the 

Commonwealth to submit proof of any property damage to the fact-finder. 

 

4 Unlawful restraint, is defined, in relevant part, as follows.

(a) Offense defined.-- Except as provided under subsection 

(b) or (c), a person commits a misdemeanor of the first degree if 

he knowingly:

(1) restrains another unlawfully in circumstances 

exposing him to risk of serious bodily injury[.]

18 Pa.C.S. § 2902(a). 

5 We are cognizant that statute contemplates payment of restitution to 

entities other than the direct victim, such as the Crime Victim’s 

Compensation Board, various government agencies and insurance 

companies; however, Ryan Kia does not fall into those limited categories. 
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The plain language and stated purpose of the restitution statute does not 

support a sentence of restitution under these circumstances. 

Based on the foregoing, we conclude the trial court erred when it 

denied Appellant’s motion, as the imposition of restitution in this matter 

constitutes an illegal sentence. Accordingly, the trial court’s May 2, 2014 

order is reversed, and the case is remanded for further proceedings, 

consistent with this memorandum.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/2015