J-E01007-16

2017 PA Super 2

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NORMA JEAN HOLMES

Appellant No. 305 MDA 2014

Appeal from the Order Entered January 21, 2014

In the Court of Common Pleas of 39th District

Fulton County Branch

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

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, 

LAZARUS, MUNDY, OLSON, OTT, and STABILE, JJ.

OPINION IN SUPPORT OF AFFIRMANCE BY STABILE, J.:FILED JANUARY 04, 2017

Appellant Norma Jean Holmes appeals from the order entered January 

21, 2014 in the Court of Common Pleas of the 39th Judicial District, Fulton 

County Branch (“trial court”), affirming a prior order denying Appellant’s 

request to modify the amount of restitution imposed at sentencing. 

Appellant entered a plea of nolo contendere to one count of recklessly 

endangering another person (“REAP”) in connection with the death of the 

victim, Bryan S. Nave. The trial court ordered Appellant to pay restitution to 

the victim’s parents, Joseph and Laura Nave, in the amount of $12,794.50, 

for the victim’s funeral expenses. Upon review, we affirm in part and vacate 

in part.

The facts and procedural history underlying this case are not in 

dispute. In the early morning hours of November 20, 2011, Appellant and 
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the victim left the Log Cabin Bar in Hancock, Maryland. The victim was 

driving Appellant’s vehicle, with her permission. Both the victim and 

Appellant had been drinking heavily that night. They were returning home 

to Greencastle, Pennsylvania, when the victim lost control of the vehicle on 

State Route 70, westbound. The victim was killed in the single-vehicle 

accident; Appellant, who was asleep in the passenger seat, survived the 

crash.

Appellant was charged with one count of REAP1and two summary 

counts of Permitting Violation of Title.2 On October 9, 2012, Appellant pled 

nolo contendere to the charge of REAP and the Commonwealth nolle prossed

the remaining charges. Appellant appeared for sentencing on November 5, 

2012, before the Honorable Douglas W. Herman. At sentencing, defense 

counsel remarked that there was no agreement as to restitution. N.T., 

Hearing, 11/5/12, at 5. The trial court stated, “[b]ut we will put the 

amounts in the restitution order, and that’s the starting point for it and then, 

Mr. Keller, I think the procedure is for you to request a hearing at some 

point.” Id. The trial court imposed a sentence of two years’ probation, plus 

costs and restitution:

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 

____________________________________________

1 18 Pa.C.S.A. § 2705.

2 75 Pa.C.S.A. § 1575(a) (permitting reckless driving and permitting 

unlicensed operation).
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undergo a drug and alcohol assessment and following any 

recommendations for treatment, 50 hours of community service. 

You may not consume alcohol or any controlled substance and 

you’ll [be] 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 [sic] 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.

Id. at 9-10.

The November 6, 2012 sentencing order, under “Financials,” provided 

that Appellant shall pay all court costs, a $25 per month supervision fee, and 

restitution as determined by the district attorney in the amount of 

$12,794.503to the victim’s parents, Joseph and Laura Nave. (Docket #21.) 

On July 31, 2013, Appellant filed a “motion for restitution hearing,” arguing 

that restitution was improper where the victim’s death was caused by his 

own criminal conduct of driving under the influence of alcohol. The 

Commonwealth filed an answer on August 14, 2013, responding that 

Appellant’s recklessness in allowing the victim to drive her car caused the 

victim’s death, and that the victim’s parents, as his personal 

representatives, stand in his shoes as victims pursuant to 18 Pa.C.S.A. 

§ 1106(h).4 (Docket #19.)

____________________________________________

3 This amount represented a funeral bill of $11,134.00 and a monument bill 

of $1,660.50.

4

In this case, there was no estate raised for Bryan Nave. The record 

indicates that the victim’s parents paid for his funeral expenses 

out-of-pocket. 
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On September 16, 2013, the parties filed a “stipulation of facts in lieu 

of hearing,” which set forth the operative facts as follows:

1. [Appellant] Norma Jean Holmes and Bryan S. Nave, sui 

juris adults, agreed that he would pick her up at her home 

in Greencastle, Pennsylvania on November 19, 2011 to go 

together to the Log Cabin in Hancock, Maryland.

2. Mr. Nave drove his vehicle to Greencastle, where it 

became inoperable and [Appellant] allowed him thereafter 

to drive her car. Both Mr. Nave and [Appellant] consumed 

alcoholic beverages on the night of November 19, 

2011/early morning of November 20, 2011. The attached 

handwritten statement of [Appellant] on Pennsylvania 

State Police Victim/Witness Statement Form, dated 

12/21/11 and the attached two page handwritten 

statement of [Appellant] on Pennsylvania State Police 

Noncustodial Written Statement Form dated 12/21/11 may 

be considered as her testimony.

3. After they got into her vehicle at the Log Cabin, 

[Appellant] fell asleep and Mr. Nave apparently drove 

westbound on SR 70 instead of eastbound which would 

have taken him in the direction of Greencastle.

4. Mr. Nave crashed the vehicle along the left lane of SR 70 

westbound and died as a result of his injuries, while 

[Appellant] suffered bodily injury which resulted in her 

transport to and treatment in Conemaugh Hospital in 

Johnstown, Pennsylvania.

5. The claim for restitution[,] set forth by the Commonwealth 

at sentencing, is in keeping with the letter by Fulton 

County Victim Services Coordinator Carolyn Kerlin, which 

is attached hereto.

“Stipulation of facts in lieu of hearing,” 9/16/13 at 1-2; Docket #17 

(reformatted for ease of reading).

Appellant’s statements to police, attached to the stipulation of facts, 

are as follows:
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Bryan Nave asked me out. After convincing me (was opposed 

because of his age) I finally agreed to go with him (Bryan) to the 

Log Cabin in Hancock, MD. I told Bryan the only stipulation was 

he (Bryan) had to pick me up at home. Bryan said “no 

problem!” Bryan arrived approx. 8:10-8:15 [p.m.] on 11-19-11. 

I had to stop at my local Legion to let a friend know I wouldn’t 

be there that evening, that my plans changed! Bryan and I went 

to [Greencastle] Legion for one drink. Bryan and I left [the] 

Legion and went to [the] gas station. Got gas, Bryan wanted 

liquor for [the] ride to [the] Log Cabin so I directed Bryan to 

[the] liquor store. Bryan and I left [the] liquor store and headed 

to [the] Log Cabin. Bryan and I drank, talked, and danced that 

evening. I was tired so I asked Bryan if Bryan was ready to 

leave (approx. 1 AM 11-20-11). Bryan said yes. Bryan and I 

got into my car (Bryan still driving). I layed [sic] my seat back 

and went to sleep. I woke up after [the] accident. I found my 

way out of my car, flagged down help. I remember being in and 

out of [sic]. I briefly remember [the] ride in [the] ambulance. I 

remember hearing [the] rotors of [the] helicopter and then woke 

up in [the] hospital when they were cutting my clothes off. I 

found out that after noon that Bryan didn’t make it.

Pennsylvania State Police Victim/Witness Statement Form, 12/21/11 at 1.

Bryan Nave met [Appellant] and went to Greencastle Legion. He 

had (1) beer believes Budweiser. Bryan drove [Appellant’s] car 

to Sheetz in Greencastle. He then drove the car to [the] liquor 

store. He bought a pt. of Cpt. Morgan. [Appellant] made Bryan 

and herself a mixed drink in the car. They then went to the Log 

Cabin in Hancock. Bryan bought all the drinks that night. He 

drank approx. 10+ drinks. [Appellant] thinks she drank 6-7 

mixed drinks. [Appellant] told Bryan that she don’t [sic] drink 

and drive because she has a CDL [(Commercial Driver’s 

License)] and she don’t [sic] want to lose them. Bryan drank (3) 

straight shots of whiskey back to back. [Appellant] related she 

believes they left [the] bar around 0100 hours due to the time of 

the accident. [Appellant] related she got into the passenger seat 

and went to sleep.

Pennsylvania State Police Noncustodial Written Statement, 12/21/11 at 2.

In a letter dated October 26, 2012, Carolyn Kerlin, Victim Services 

Coordinator, opined that Appellant’s actions of permitting the victim to drive 
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her vehicle knowing that he had consumed at least ten drinks caused the 

victim’s death and that Appellant should be required to make restitution to 

the victim’s parents for funeral expenses. However, Ms. Kerlin 

acknowledged that if a victim’s compensation claim were filed, it would likely 

be viewed as a DUI case for purposes of determining the victim’s eligibility 

for compensation: “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.”

By order entered October 29, 2013, the trial court denied Appellant’s 

request to modify the restitution award. (Docket #14.) The trial court 

found that restitution was appropriate both as a condition of Appellant’s 

probation under 42 Pa.C.S.A. § 9754(c)(8) of the Sentencing Code, and as 

part of her sentence under 18 Pa.C.S.A. § 1106(a) of the Crimes Code, 

which provides for mandatory restitution where a defendant’s actions 

directly resulted in personal injury to the victim:

In light of these two standards for imposing restitution, we 

believe that both have been satisfied. In regards to the “direct 

causation” standard, we find that the reckless endangerment of 

Bryan Nave directly resulted in his death. Therefore, the funeral 

costs which were imposed as restitution were the direct result of 

[Appellant’s] engaging in reckless conduct which placed Mr. Nave 

in danger of death. Additionally, a sentence of probation was 

imposed. 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 a condition of [Appellant’s] 

probation.
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Order, 10/29/13 at 2.

On November 21, 2013, Appellant filed an application for 

reconsideration, arguing that the record did not support a finding that 

restitution was ordered as a condition of probation. Even if it had been, 

Appellant argued, the trial court failed to inquire into Appellant’s ability to 

pay, as required by 42 Pa.C.S.A. § 9754. According to Appellant, restitution 

was imposed under 18 Pa.C.S.A. § 1106(a), which is improper when the 

victim’s injuries are an indirect, rather than direct, result of the defendant’s 

criminal actions. Appellant contended that her actions were not the sole or 

direct cause of the victim’s death, where he was driving under the influence 

of alcohol at the time of the fatal accident. Furthermore, Appellant argued 

that even if restitution was appropriate under 18 Pa.C.S.A. § 1106(a), the 

trial court was required to apportion damages where Appellant’s actions 

were not the sole cause of the victim’s injuries. (Docket #13.)

On November 22, 2013, Appellant filed a notice of appeal from the 

trial court’s October 29, 2013 order denying Appellant’s request to modify 

restitution. (Docket #12.) On November 26, 2013, the trial court granted 

Appellant’s application for reconsideration and ordered that all appeal 

proceedings be stayed pending reconsideration of its October 29, 2013 

order. (Docket #11.) On January 21, 2014, following receipt of the 

Commonwealth’s response, Appellant’s application for reconsideration was 

denied. (Docket #8.) In its January 21, 2014 order, the trial court 

reiterated that the record fully supported restitution under 18 Pa.C.S.A. 
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§ 1106(a); however, the trial court stated that restitution was imposed as a 

condition of Appellant’s probation under 42 Pa.C.S.A. § 9754.

[Appellant] argues that the [c]ourt’s sentencing Order of 

November 6, 2012 did not make restitution a condition of 

probation. The Commonwealth appears to support this 

contention, however, the [c]ourt strongly disagrees with both 

the Commonwealth and [Appellant]. After review of the Order of 

November 6, 2012, we conclude that Order 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 sentencing order. The Order clearly 

directs restitution as a condition of probation.

Order, 1/21/14 at 2, ¶4. In addition, the trial court opined that Appellant’s 

ability to pay can be assessed at any time, by the court sua sponte, or on 

Appellant’s own motion. Id. at 3, ¶ 5. The trial court also found this issue 

to be waived, as it was not raised previously. Id. The trial court advised 

Appellant that she had 30 days to appeal the ruling.

Appellant filed a notice of appeal on February 18, 2014. (Docket #7.) 

On February 25, 2014, Appellant was ordered to file a concise statement of 

errors complained of on appeal within 21 days pursuant to 

Pa.R.A.P. 1925(b); Appellant complied on March 17, 2014, and on April 28, 

2014, the trial court filed a Rule 1925(a) opinion. The trial court opined that 

restitution was appropriate under 18 Pa.C.S.A. § 1106(a) because the loss 

was the direct result of Appellant’s criminal actions. Trial Court Opinion, 

4/28/14 at 3. The trial court stated that “[a]s a direct result of [Appellant’s] 

conscious disregard of the known risk of death or great bodily harm caused 
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by driving while under the influence, the victim died.” Id. The trial court 

also found that the victim’s conduct in driving while under the influence of 

alcohol was not an intervening cause of his death. Id. However, the trial 

court insisted that, “[f]rom the sentencing hearing of November 5, 2012, it 

is clear that restitution was a condition of probation.” Id. at 5. The trial 

court observed that when restitution is imposed as a condition of probation, 

rather than as a direct sentence under the Crimes Code, an indirect 

connection between the criminal activity and the victim’s loss is sufficient. 

Id. at 4-5 (citing Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. 

Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007)). With regard to 

Appellant’s ability to pay, the trial court determined that a defendant’s ability 

to pay costs, fines, or restitution does not need to be assessed prior to 

sentencing.

The court only needs to assess a defendant’s ability to pay costs, 

fines, or restitution in the event that the defendant will be 

confined for failure to pay said costs, fines, or restitution. 

Because [Appellant] is not in danger of confinement, there was 

no error when the Court did not address [Appellant’s] ability to 

pay restitution.

Id. at 5 (citing Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 

2013), appeal denied, 70 A.3d 808 (Pa. 2013); Pa.R.Crim.P. 706).

Appellant raised the following issues on appeal:

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

a condition of probation and applying an indirect causation 

standard under 42 Pa.C.S. § 9754(c)(8) when the 

sentencing proceedings did not indicate that it was a 

condition of probation and the court did not make a 
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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 42 

Pa.C.S. § 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 18 Pa.C.S. § 1106 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.

This Court certified this case for en banc review to address the 

following issue: “Whether parents may be considered ‘victims’ for purposes 

of determining restitution under 18 Pa.C.S.A. § 1106(a)?” The parties have 

filed supplemental briefs addressing this issue.

Initially, we must address a procedural matter. Appellant was 

sentenced on November 5, 2012, but did not request modification of 

restitution until July 31, 2013, nearly nine months later. Ordinarily, of 

course, post-sentence motions must be filed no later than 10 days after 

imposition of sentence. Pa.R.Crim.P. 720(A)(1). However, a motion 

requesting modification of restitution is not considered a typical 
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post-sentence motion subject to timeliness constraints. See 

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

18 Pa.C.S.A. § 1106(c)(3) (a defendant may seek a modification or 

amendment of the restitution order at any time directly from the trial 

court)).

Following the trial court’s October 29, 2013 denial of modification, 

Appellant filed a motion for reconsideration on November 21, 2013, 23 days 

later. It is unclear whether the November 21 filing was timely, as it would 

not appear to fall under Pa.R.Crim.P. 720. Appellant also filed a notice of 

appeal from the October 29, 2013 order on November 22, 2013. The trial 

court granted reconsideration on November 26, 2013, within 30 days of the 

October 29, 2013 order, apparently for purposes of permitting the 

Commonwealth to file an answer. 42 Pa.C.S.A. § 5505 (“a court upon notice 

to the parties may modify or rescind any order within 30 days after its entry 

. . . if no appeal from such an order has been taken or allowed.”); 

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007) 

(“Under section 5505, the trial court has broad discretion to modify or 

rescind an order, and this power may be exercised sua sponte or invoked 

pursuant to a party’s motion for reconsideration.”) (citation omitted); 

Pa.R.A.P. 1701 (tolling the time for taking an appeal only when the court 

files “an order expressly granting reconsideration . . . within the time 

prescribed by these rules for the filing of a notice of appeal.”). The trial 

court also ordered that the appeal be stayed pending reconsideration. The 
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November 22, 2013 appeal was later stricken pursuant to Pa.R.A.P. 1701 (“A 

timely order granting reconsideration under this paragraph shall render 

inoperative any such notice of appeal or petition for review of a quasijudicial 

order theretofore or thereafter filed or docketed with respect to the prior 

order.”).

On January 24, 2014, the trial court denied reconsideration and 

informed Appellant of her rights pursuant to Pa.R.Crim.P. 720 and 

Pa.R.A.P. 903(a), including that she had 30 days to file a timely appeal. See 

Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989) (citing 

Pa.R.A.P. 1701(b)(3)(ii) (where the court expressly grants reconsideration 

within 30 days, the time for filing a notice of appeal begins to run anew after 

entry of the decision on reconsideration, regardless of whether or not the 

court’s decision amounts to a reaffirmation of its prior determination)). 

Thus, Appellant timely appealed to this Court.

We now proceed to the issues raised on appeal. First, we consider 

whether restitution was proper under Section 1106(a) of the Crimes Code. 

Initially, we note that

[i]n 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.
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[]Stradley, 50 A.3d [at] 771-72 . . . (citations and quotation 

marks omitted); see also id. (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.”).

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013).

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 his sentence. Commonwealth v. 

Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that 

statutory authority exists, however, the imposition of restitution 

is vested within the sound discretion of the sentencing judge. 

Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa. Super. 

2004); see also id. (stating that “[t]he primary purpose of 

restitution is rehabilitation of the offender by impressing upon 

him that his criminal conduct caused the victim’s personal injury 

and that it is his responsibility to repair the injury as far as 

possible.”).

Id. “The court is required to specify the amount of restitution at sentencing, 

but may modify its order at any time provided that it states its reasons for 

any modification on the record.” Commonwealth v. Solomon, 25 A.3d 

380, 389-390 (Pa. Super. 2011), appeal denied, 40 A.3d 1236 (Pa. 2012) 

(citing Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009)).

In the context of a criminal case, restitution may be imposed 

either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a 

condition of probation, 42 Pa.C.S. § 9754. When imposed as a 

sentence, the injury to property or person for which restitution is 

ordered must directly result from the crime. See 18 Pa.C.S.A. 

§ 1106(a); Harner, 533 Pa. at 21, 617 A.2d at 704. However, 

when restitution is ordered as a condition of probation, the 

sentencing court is accorded the latitude to fashion probationary 

conditions designed to rehabilitate the defendant and provide 

some measure of redress to the victim. Harner, 533 Pa. at 21-

22, 617 A.2d at 706. As this Court stated in Harner:

Such sentences are encouraged and give the trial 

court the flexibility to determine all the direct and 
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indirect damages caused by a defendant and then 

permit the court to order restitution so that the 

defendant will understand the egregiousness of his 

conduct, be deterred from repeating this conduct, 

and be encouraged to live in a responsible way.

Harner, 533 Pa. at 22, 617 A.2d at 707; see also 

Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 

1185 (1979). Thus, the requirement of a nexus between the 

damage and the offense is relaxed where restitution is ordered 

as a condition of probation. See Harner, 533 Pa. at 22-23 & n. 

3, 617 A.2d at 707 & n. 3; see also 42 Pa.C.S. § 9754(c)(8).

In re M.W., 725 A.2d 729, 732 (Pa. 1999) (footnotes omitted).

Section 1106 of the Crimes Code provides in relevant part:

(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.

(b) Condition of probation or parole.--Whenever restitution 

has been ordered pursuant to subsection (a) and the offender 

has been placed on probation or parole, his compliance with such 

order may be made a condition of such probation or parole.

(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. The court shall not 

reduce a restitution award by any amount that the 

victim has received from the Crime Victim’s 

Compensation Board or other governmental agency 

but shall order the defendant to pay any restitution 

ordered for loss previously compensated by the 

board to the Crime Victim’s Compensation Fund or 

other designated account when the claim involves a 

government agency in addition to or in place of the 
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board. The court shall not reduce a restitution award 

by any amount that the victim has received from an 

insurance company but shall order the defendant to 

pay any restitution ordered for loss previously 

compensated by an insurance company to the 

insurance company.

(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 
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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:

“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.

“Property.” Any real or personal property, including currency 

and negotiable instruments, of the victim.

“Restitution.” The return of the property of the victim or 

payments in cash or the equivalent thereof pursuant to an order 

of the court.

“Victim.” As defined in section 479.1 of the act of April 9, 1929 

(P.L. 177, No. 175), known as The Administrative Code of 

1929.[FN:1] 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 
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company that has compensated the victim for loss under an 

insurance contract.

[FN:1] 71 P.S. § 180-9.1.

18 Pa.C.S.A. § 1106(a)-(c), (h).

As noted in subsection (h) above, the term “Victim” is defined as 

provided under Section 479.1 of the Administrative Code of 1929. Section 

479.1, however, was repealed in 1998 by Act 111,5the Crime Victims Act 

(“CVA”). Prior to its repeal, Section 479.1 defined “victim” as:

(1) A person against whom a crime is being or has been 

perpetrated or attempted.

(2) A parent or legal guardian of a child so victimized, except 

when the parent or legal guardian of the child is the alleged 

offender.

(3) A family member of a homicide victim, including stepbrothers 

or stepsisters, stepchildren, stepparents or a fiance, one of 

whom is to be identified to receive communication as provided 

for in this act.

See Commonwealth. v. Colon, 708 A.2d 1279 (Pa. Super. 1998). 

Section 5102 of the CVA (Act 111), 18 P.S. § 11.5102, provides that the “act 

is a codification of the statutory provisions repealed in [S]ection 5103 and, 

except where clearly different from current law, shall be deemed to be a 

continuation of prior law.” (Emphasis added). Section 51036of the CVA 

____________________________________________

5 Act of November 24, 1998, P.L. 882, No. 111, § 5103.

6 The text of Section 5103 does not appear in Purdon’s Pennsylvania 

Statutes. Resort must be made to the text of the public law, Act No. 1998-

111, for the text of this statute that identifies section 479.1 as one of the 

statutes repealed at the time Act 111 was enacted.
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repealed, inter alia, Section 479.1 of the Administrative Code of 1929. Thus, 

at the time Section 479.1 was repealed, the legislature concomitantly 

enacted Section 5102, which, as stated, continued all consistent provisions 

of the prior law. This legislative provision is also in accord with Section 1962 

of the Statutory Construction Act, 1 Pa.C.S.A. § 1962, that provides, 

“[w]henever a statute is repealed and its provisions are at the same time 

reenacted in the same or substantially the same terms by the repealing 

statute, the earlier statute shall be construed as continued in active 

operation.” (Emphasis added). 

 Act 111, passed in 1998, deemed by Section 5102 to be a continuation 

of the consistent provisions of the prior law, including Section 479.1, is the 

current CVA. “Victim” under the CVA 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 crimes and offenses under 18 Pa.C.S. (relating to 

crimes and offenses) committed or attempted against a 

member of the child’s family:

 Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim, including 

stepbrothers or stepsisters, stepchildren, stepparents or a 

fiance, one of whom is to be identified to receive 
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communication as provided for in this act, except where the 

family member is the alleged offender.

18 P.S. § 11.103. A comparison of the “victim” definitions under the nowrepealed Section 479.1 and the current CVA reveals that they are consistent 

with each other and that the current CVA includes the same or substantially 

the same terms for the definition of “victim” as previously contained under 

Section 479.1. Therefore, as a matter of law and statutory construction, the 

current definition of “victim” under the CVA is, as intended, a part of the 

definition of “victim” under Section 1106(h). Having resolved what 

definitions apply to the term “victim” under Section 1106, the question as to 

whether the parents here are victims for purposes of ordering restitution 

under Section 1106(a) can now be addressed.

Section 1106(h) by incorporation of the CVA, defines a “victim”, in 

part, as “[a] parent or legal guardian of a child who was a direct victim. . . .” 

18 Pa.C.S.A. § 11.103. There is no dispute that the restitution ordered by 

the trial court was to compensate the parents of the victim, their child, in 

this case. Section 1106(a) provides “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 the 

punishment prescribed therefor.” 18 Pa.C.S.A. § 1106(a). Thus, we easily 

conclude that restitution under Section 1106(a) had to be ordered as a part 

of the sentence imposed upon Appellant to be paid to the parents of the 
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victim here.7 Construing Section 1106(a) in this manner not only is 

consistent with the express incorporation by reference of the definitions 

under Section 1106(h), but also is consistent with our obligation under 

Section 1921(a) of the Statutory Construction Act, 1 Pa.C.S.A. § 1921(a), to 

construe statutes to effectuate the intention of the General Assembly. It is 

abundantly clear that the expressed intent behind Section 1106(a) is to fully 

compensate victims for losses sustained as a direct result of the actions of a 

criminal offender. Moreover, this construction is consistent with those parts 

____________________________________________

7

It cannot be disputed that reference to a “child” under the definition of 

“victim” in the CVA applies equally to adult and minor children alike. The 

term “child”, as defined in Section 11.103 of the CVA, is not preceded by any 

qualifying adjectives. This is not a mere oversight by the General Assembly, 

because a different provision in the same section of the CVA defines “victim” 

as “[a] minor child who is a material witness to any of the following crimes 

and offenses[.]” 18 P.S. § 11.103 (emphasis added). Thus, the General 

Assembly clearly chose to qualify the term “child” with the adjective “minor” 

in one subsection of Section 11.103 of the CVA but not the other. A 

presumption exists that the legislature placed every word, sentence and 

provision in the statute for some purpose and therefore, courts must give 

effect to every word. Commonwealth v. Ostrosky, 909 A.2d 1224, 1232 

(Pa. 2006). Accordingly, the term “child” when it is not preceded by a 

qualifying adjective in Section 11.103 applies to both minors and adults. 

See Pa.C.S.A. § 1922(2) (“the General Assembly intends the entire statute 

to be effective and certain.”). Additionally, construing the term “child” as 

not including adult children would be inconsistent with case law that has 

interpreted the term “child” to include parents of adult children who are 

victims. See, e.g., Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. 

Super. 1997) (approving restitution to a victim’s parents for funeral 

expenses), appeal denied, 699 A.2d 735 (Pa. 1997).
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of the CVA that may be read in pari materia with Section 1106,8expressly 

providing that victims should be restored through provision of restitution, 

and that any person who assumes the obligation to pay for the funeral or 

burial expenses as a direct result of a crime be compensated. See 18 P.S. 

§§ 11.201(6) and 11.701(a)(6).

The Opinion in Support of Reversal (“OISR”) errs by focusing on that 

part of the CVA definition of “victim” that includes “a direct victim,” as 

opposed to that part of the definition most applicable here that includes “a 

parent or legal guardian of a child who was a direct victim . . . .” The OISR 

reaches this position by transposing the adjective “direct” under Section 

1106(a) from a modifier of an offender’s criminal conduct to a modifier of 

the term “victim.” The OISR concedes that it is abundantly clear from a 

literal reading of Section 1106 that the victim, for purposes of mandatory 

restitution, is a person “who suffered personal bodily injury as a direct 

result of an offender’s action.” OISR at 7 (emphasis added). Yet, the 

OISR then states the issue is whether under Section 1106(h) the definition

____________________________________________

8

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

pointed out that the CVA and Section 1106 are separate and distinct statutes 

with different purposes and definitions and are not interchangeable for 

purposes of defining recipients of restitution. We disagree with this 

characterization because it is an an overly broad generalization of the 

statutes. To the extent parts of the statutes relate to the same things, they 

are to be construed together as one statute, if possible. 1 Pa.C.S.A. § 1932. 

Both statutes express an intent that parents who have to pay for funeral 

expenses as a direct result of another’s criminal actions are to be 

compensated.
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of victim is broadened to include the parents here as “one who is not a 

direct victim of the offender’s conduct.” Id. (emphasis added). This subtle 

transposition by the OISR removes the statutory focus of “direct” from the 

criminal action that results in mandatory restitution and places the focus of 

the modifier “direct” upon the victim. Had the legislature intended only to 

compensate a “direct victim,” it clearly could have done so. Instead, the 

legislature determined that several categories of victims, as defined under 

the CVA, should be compensated if their loss directly results from 

criminal action. Rather than focusing on the victim, restitution under 

Section 1106(a) applies where there has been a loss “that flows from the 

conduct which forms the basis of the crime for which a defendant is held 

criminally accountable.” Yanoff, 690 A.2d at 266 (Pa. Super. 1997) (citing

Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992)). Restitution 

under Section 1106 for a loss suffered by a victim must be directly 

connected to the offender’s criminal conduct, as opposed to only providing 

restitution to the victim himself as a “direct victim.” It would make little 

sense given the purpose of this restitution statute to narrow the scope of 

victims to only “direct victims” as done by the OISR, when the purpose of 

this restitution statute is to be certain that an offender makes full restitution 

for all direct losses resulting from his crime. This purpose is not fulfilled by 

limiting mandatory restitution to only a “direct victim” when other persons 

defined as “victims” by the legislature, like the parents here, also suffer 

losses as a direct result of an offender’s criminal action. 
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Furthermore, we reject Appellant’s argument that restitution could not 

be ordered under Section 1106(a) because her conduct was not the direct 

cause of the victim’s death. As stated, our Supreme Court has held that 

Section 1106(a) “applies only for those crimes to property or person where 

there has been a loss that flows from the conduct which forms the basis of 

the crime for which a defendant is held criminally accountable.” Harner, 

617 A.2d at 706. To determine the correct amount of restitution, a “but-for” 

test is used—damages which occur as a result of the crime are those which 

should not have occurred but for the defendant’s criminal conduct. 

Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. 2006), appeal 

denied, 918 A.2d 744 (Pa. 2007). Thus, there must be a direct link between 

the crime and the requested damages for restitution to be ordered under 

Section 1106(a). See Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. 

Super. 2008) (en banc), appeal denied, 980 A.2d 109 (Pa. 2009); see also 

Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007) 

(explaining that restitution ordered under Section 1106 is “proper only if 

there is a direct causal connection between the crime and the loss”), appeal 

denied, 934 A.2d 72 (Pa. 2007). As the undisputed facts in this case 

establish, Appellant pled guilty to REAP under Section 2705 of the Crimes 

Code in connection with the victim’s death. 

We have held that a person is guilty of this crime when it is 

shown that the person (1) possessed “a mens rea recklessness,” 

(2) committed a wrongful deed or guilty act (“actus reus”), and 

(3) created by such wrongful deed the danger of death or 

serious bodily injury to another person. The element of “mens 
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rea recklessness” has been defined as a conscious disregard of a 

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

“Serious bodily injury” is defined as bodily injury which creates a 

substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function 

of any bodily member or organ. We have further held that 

Section 2705 was directed against reckless conduct entailing a 

serious risk to life or limb out of proportion to any utility the 

conduct might have had. Finally, the perpetrator must create an 

actual condition of danger, not merely an apprehension of 

danger.

Commonwealth. v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006) 

(internal citations and quotation marks omitted). As the trial court found 

sub judice: 

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). Based on the 

evidence of record, we discern no error in the trial court’s imposition of 

restitution under Section 1106(a) because the victim’s death was the direct 

result of Appellant’s criminal conduct (REAP). Put differently, but for 

Appellant’s criminal conduct of allowing the victim to drive her vehicle while 

under the influence of alcohol, the victim would not have died. See Oree, 
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supra. Accordingly, the trial court did not err to the extent it ordered 

restitution under Section 1106(a) for the victim’s funeral costs and expenses 

paid by his parents.

The conclusion that the parents are entitled to restitution for funeral 

expenses directly resulting from the death of a son because of Appellant’s 

criminal conduct in fact was settled prior to the repeal of Section 479.1 and 

the concomitant enactment of Act 111, the CVA, in 1998. In Yanoff, the 

trial court ordered the defendant to make restitution to the parents of the 

victim in the amount of $6,396.00 for funeral expenses incurred as a result 

of the defendant’s conviction of third-degree murder and aggravated assault 

of their son. Restitution was ordered for funeral expenses because the 

parents’ loss flowed from the defendant’s conduct for which he was 

held criminally accountable. Yanoff, 690 A.2d at 266. At the time 

Yanoff was decided, restitution as a part of a sentence under Section 

1106(a) was not mandatory as it is today. In 1998, the legislature amended 

the reference from “may” to “shall” to make restitution mandatory. The 

remainder of Section 1106(a) remained unchanged. Had this case been 

decided prior to the repeal of Section 479.1 in 1998, there is little doubt that 

precedent would have supported mandatory restitution to the parents in this 

case. The OISR reaches a different conclusion today based upon this Court’s 
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decisions in Opperman9and Langston that viewed the repeal of Section 

479.1 as eliminating the definition of “victim” under the CVA from Section 

1106.

Opperman reached the conclusion that the definition of “victim” as 

provided for under Section 479.1 of the Administrative Code of 1929 no 

longer exists because the legislature failed to continue to incorporate that 

definition under Section 1106 when it was amended in 1998.10 This was in 

error. The Opperman Court explained:

As we have previously indicated, the references to The 

Administrative Code were accompanied by footnotes, which refer 

the reader to 71 P.S. § 180-9.1. This section, which contains 

The Administrative Code § 479.1, defines victim as “a person 

against whom a crime is being or has been perpetrated or 

attempted.” However, this section was repealed on November 

24, 1998, effective immediately. 1998, Nov. 24, P.L. 882, No. 

111, § 5103, imd. effective. While we are cognizant of the fact 

that the subject matter of 71 P.S. 180-9.0 through 9.11 is now 

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

statute does not formally adopt, subsume or recodify the subject 

matter. It is also persuasive that 18 Pa.C.S.A. § 1106 was 

amended on December 3, 1998 subsequent to the repeal of 71 

P.S. 180-9.1 and yet continued to incorporate the definition of 

victim as found in the Administrative Code of 1929. It would 

appear that since 18 Pa.C.S.A. § 1106 was amended after the 

effective date of the Crimes Victims Act and the repeal of the 71 

P.S. § 180-9-9.11, the legislature had the opportunity to include 

the definition of victim as contained in the Crime Victims Act, if 

____________________________________________

9 Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. 2001), appeal 

denied, 792 A.2d 1253 (Pa. 2001).

10 Curiously, the OSIR relies upon the definitions under the CVA to reaffirm 

Opperman and Langston that expressly hold that the definitions under the 

CVA do not apply to Section 1106 of the Crimes Code.
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they so chose. Having not done so, we are constrained to find 

that the definition of victim as provided for in The Administrative 

Code of 1929 no longer exists as the most recent statute 

incorporating that definition has been abolished.

Id. 780 A.2d at 718-719. Opperman’s conclusion that the definition of 

“victim” under Section 479.1 of the Administrative Code of 1929 was no 

longer a part of Section 1106, was premised entirely upon the language of 

the historical and statutory notes in the repealer to Section 5103 of Act 111 

that simply refers the reader for the subject matter of the repealed section 

to 18 P.S. § 11.101 et seq., the CVA concomitantly enacted in 1998. For 

whatever reason, the Opperman Court failed to take notice of Section 5102 

of the CVA, which as stated, provides that except where clearly different 

from current law, the statutory provisions repealed under Section 5103 shall 

be deemed to be a continuation of prior law. The repealed provisions under 

Section 5103 contained the definitions under Section 479.1 of the 

Administrative Code of 1929, which also as stated, contained the multi-part 

definition for the term “victim” that is the same or substantially the same as 

that contained in the CVA. Thus, Opperman was incorrectly decided due to 

its oversight of these important legislative provisions.

Langston, relying upon Opperman’s holding that an insurance 

company that paid damages under insurance contracts held by a victim’s 

mother did not qualify as a victim under Section 1106, concluded that a child 

victimized by a defendant in the tragic loss of his parents was not a victim 

for restitution purposes under Section 1106. Langston did not discuss, like 
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Opperman, the relationship between the definitions of “victim” under the 

CVA and Section 1106 as affected by the various repealer and enactment 

provisions discussed above. Langston instead simply relied upon the legal 

conclusion reached in Opperman. Nonetheless, to the extent that 

Langston is dependent upon Opperman’s legislative analysis, we conclude 

that Langston too was decided in error.

The OISR is mistaken insofar as it claims that our Supreme Court’s 

citation to Langston in the recent case of Commonwealth v. Hall, 80 A.3d 

1204 (Pa. 2013), sufficiently lends support to the statutory interpretation 

question presently before us. In Langston, this Court stated that the CVA 

and Section 1106 are two separate and distinct statutes with different 

purposes and definitions of who qualifies as a “victim,” and are not 

interchangeable for purposes of defining recipients of restitution. Hall held 

that compensation paid under the CVA is made on the basis of claims filed 

by individual victims as determined by the Office of Victim Services rather 

than through court-ordered restitution by a defendant. The Supreme Court 

cited Langston in support of this statement and parenthetically summarized 

Langston’s holding as above described. The Supreme Court’s citation of 

Langston was in support of the point made that compensation and 

restitution are handled differently under the CVA and Section 1106. It did 

not decide the statutory interpretive question presently before us despite the 

Commonwealth’s argument to the Court that the Superior Court’s decision in 

Commonwealth v. Lebarre, 961 A.2d 176 (Pa. Super. 2008), which found 
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that restitution was properly ordered to a child’s estate under Section 1106, 

was at odds with the Superior Court’s en banc decision in Hall. In refusing 

to address this alleged inconsistency, the Supreme Court stated:

To properly decide this case, we need not resolve the question of 

the interplay, if any, between the Crime Victims Act and Section 

1106 of the Crimes Code. As we have already determined, the 

plain meaning of Section 9754, which is actually at issue here, 

allows for a broader range of “victims” for purposes of fashioning 

probationary conditions.

Hall, 80 A.2d at n.5. Thus, as of 2013, the Supreme Court reserved 

decision on the interplay between Section 1106 and the CVA for purposes of 

defining “victims” under those statutes. In light of Opperman’s and 

Langston’s omission to recognize the effect of Section 5102 and to apply 

the “victim” definitions under the CVA to Section 1106, we conclude that 

Opperman and Langston were decided wrongly. Consequently, we hold

that the definition of “victim” under the CVA is indeed applicable to Section 

1106 of the Crimes Code. We, unlike the OSIR, therefore decline to reaffirm 

those decisions. 

Because we find restitution had to be ordered under Section 1106(a), 

we need not reach the question as to whether the trial court erred in failing 

first to determine Appellant’s ability to pay restitution under Section 9754 of 

the Sentencing Code, 42 Pa.C.S.A. § 9754, which permits restitution to be 

imposed as a condition of probation. If we were to reach this question, we

would conclude that the trial court erred in ordering restitution as a condition 
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of probation under Section 9754 without first determining Appellant’s ability 

to pay the restitution. See Harner, infra.

We also conclude that the trial court erred in ordering restitution under 

both Section 1106(a) of the Crimes Code and Section 9754(c)(8) of the 

Sentencing Code. When a victim suffers injury to person or property, a 

sentencing court is mandated under Section 1106(a) to enter an order of 

restitution. Restitution under Section 1106(a), as part of a sentence, is 

penal in character and is imposed for losses for which a defendant has been 

held criminally accountable. Harner, 617 A.2d at 706. When restitution is 

issued under Section 1106(a), a sentencing court is obligated to order full 

restitution regardless of the current financial resources of a defendant. 

18 Pa.C.S.A. § 1106(c)(1)(i). Once an order of restitution has been made as 

part of a defendant’s sentence under Section 1106(a), it is enforceable until

paid. 18 Pa.C.S.A. § 1106(c)(2)(ii); Commonwealth v. Griffiths, 15 A.3d 

73, 75 (Pa. Super. 2010). 

In contrast, restitution may be ordered under Section 9754(c)(8) as a 

condition of probation. 42 Pa.C.S.A. § 9754(c)(8). When ordered as a 

condition of probation a court may order a defendant “[t]o 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.” Id. Unlike restitution 

under Section 1106(a) that serves a punitive purpose, restitution ordered as 

a condition of probation under Section 9754(c)(8) is primarily aimed at 

rehabilitating and integrating a defendant into society as a law-abiding 
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citizen and is deemed a constructive alternative to imprisonment. Harner, 

617 A.2d at 706; Hall, supra. Additionally, a sentencing court, when 

ordering restitution under Section 9754(c)(8), also must determine what 

amount of restitution a defendant can afford to pay, and how the restitution 

is to be paid. Harner, 617 A.2d at 707. Unlike restitution under Section 

1106(a), the obligation to pay restitution under Section 9754(c)(8), as a 

condition of probation, expires upon the end of the term of probation, even if 

the amount of restitution ordered has not been paid in full. 

Commonwealth v. Karth, 994 A.2d 606, 610 (Pa. Super. 2010). 

When restitution is ordered under Section 1106(a), it is a part of an 

offender’s sentence. A sentence of restitution is mandatory when there has 

been injury to person or property by an offender’s criminal conduct. 

Restitution as a part of a sentence is not satisfied until paid in full, 

regardless of a defendant’s financial resources. In contrast, ordering 

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

based upon an offender’s ability to pay and also, as stated, is discharged 

upon the expiration of the term of probation regardless of whether the 

obligation has been paid in full. It is inconsistent to order restitution as a 

sentence, regardless of an ability to pay and without discharge until paid in 

full, and at the same time order restitution as a condition of probation where 

the ability to pay must be determined and the restitution obligation is 

discharged upon the expiration of the term of probation. If restitution must 

be ordered and paid in full under Section 1106(a), it cannot at the same 
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time also be a condition of probation that can be discharged upon 

completion of probation. 

Restitution is a creature of statute. Harner, 617 A.2d at 704. It 

would be impermissible for this Court to interpret Sections 1106(a) and 

9754(c)(8) in a manner that would create conflicts between these two 

statutory provisions. See 1 Pa.C.S.A. § 1921(a) (every statute to be 

construed to give effect to all its provisions); see also 1 Pa.C.S.A. 

§ 1932(b) (statutes in pari materia to be construed together, if possible, as 

one statute). Simply put, if restitution must be ordered as part of a 

sentence under Section 1106(a), it cannot at the same time also be ordered 

merely as a condition under Section 9754(c)(8).11 The trial court, therefore, 

erred in ordering restitution simultaneously under Section 1106 of the 

Crimes Code and Section 9754 of the Sentencing Code. Accordingly, we 

vacate the trial court’s order as it relates to restitution under Section 

9754(c)(8).

In sum, we affirm the trial court’s order of restitution under Section 

1106(a), and vacate the order to the extent it ordered restitution under 

Section 9754(c)(8). 

____________________________________________

11 When restitution is ordered under Section 1106(a) and an offender has 

been placed on probation or parole, restitution also may be ordered as a 

condition of such probation or parole. 18 Pa.C.S.A. § 1106(b). This 

restitution, however, is still a condition of an offender’s sentence as opposed 

to a condition of probation under Section 9754(c)(8).
J-E01007-16

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Order affirmed in part and vacated in part. Jurisdiction relinquished. 

Judge Bowes, Judge Shogan, and Judge Olson join this Opinion in 

Support of Affirmance.

President Judge Emeritus Ford Elliott files an Opinion in Support of 

Reversal in which President Judge Emeritus Bender, Judge Lazarus and 

Judge Ott join. 

Judge Mundy did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2017