J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RONEESE DANIA DAVIS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 13 WDA 2020
Appeal from the Judgment of Sentence Entered November 13, 2019

In the Court of C ommon Pleas of Allegheny County Criminal Division at No(s): CP

- 02

- CR

- 0011185

- 2017

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: April 29, 2021

Appellant, Roneese Dania Davis, appeals from the j udgment of s entence

entered in the Alleghe n y County Court of Common Pleas , following the entry

of her negotiated guil ty pleas to simple assault, harassment, criminal mischief,

and disorderly conduct

. 1 After careful review, we vacate the judgment of

sentence and remand for resentencing. 2

The trial court previously set forth the relevant facts of this appeal as

follows :

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1), 3304(a)(5), and 5503(a)(4), respectively.

2 On November 18, 2020, we stayed our disposition of this case pending this Court’s decision in Commonwealth v. Lopez , 2021 PA Super 51 (filed March 23, 2021) ( en banc ). Now that this Court has issued its decision in Lopez , we lift the stay order.J

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- On March 12, 2018, [Appellant and Co

- Defendant] pled guilty to the above referenced charges and were sentenced in accordance with a plea agreement to two (2) years of probation at the count of simple assault, followed by a consecutive one (1) year period o f probation for disorderly conduct. The facts, which were stipulated to at the guilty plea [hearing] are as follows[.] On May 20, 2017, police responded to an assault in

- progress on a Port Authority bus. The officer observed the victim in the rear of th e bus with visible facial injuries, including blood inside and around her mouth and nose. The victim complained of head and facial pain, vision problems, and reported that her eyeglasses were broken during the assault. Video surveillance footage captured the assault and corroborated the victim and witness accounts that [ Appellant and Co

- Defendant] physically attacked the victim by repeatedly punching her about the face. At sentencing, the Commonwealth submitted a restitution order for $5,383.88 represent ing the costs associated with some of the victim ’ s medical treatment. 1 [ Appellant and Co

- Defendant] requested a restitution hearing. The hearing took place on April 13, 2018, wherein they argued that the medical records were incomplete and that the Commo nwealth failed to establish direct causation between the assault and the detached retina diagnosis. [ 3 ] The Court became aware during the hearing that the Commonwealth had received additional medical records, prompting a continuation of the hearing. When the parties reconvened before [the c]ourt on May 8, 2018, [Appellant and Co

- Defendant] reiterated their argument regarding lack of direct causation and also challenged the authority of the court to order restitution payable to Equian. Citing 18 P.S. § 11. 103, [Appellant and Co

- Defendant] argued that Equian, a third

- party collection agency seeking restitution on behalf of the medical provider, UPMC, is not statutorily allowed to receive payment. Briefs were ordered on the issue of Equian’s eligibility and

_________________ __________ ______ ____ _______

3 At the guilty plea hearing, the Commonwealth indicated that the victim needed surgery for a detached retina as a result of the assault. ( S ee N.T. Plea Hearing, 3/12/18, at 16). At the subsequent restitution hearing, Appellant’s counsel asser ted she had reviewed the relevant medical records and “there was no diagnosis of a detached retina that was caused by the criminal assault.” (Restituti on Hearing, 4/13/18, at 3).J

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- argument took place on June 21, 2018. After argument, the court entered a restitution order in the amount of $5,383.88 payable to Equian, finding that payment to a collection agency designated by an entity entitled to receive restitution, achieves the leg islative purposes of the statute: rehabilitation and punishment.

1 Additional restitution was ordered payable to the victim to replace the eyeglasses and to the Victim’s Compensation Fund for medical care[.]

(Trial Court Opinion, filed 11/6/18, at 2

- 3) (some capitalization and footnotes

omitted).

Appellant timely filed a post

- sentence motion, arguing: 1) the

Commonwealth failed to produce sufficient evidence to support the amount of

actual damages suffered by the victim; 2) the record did not establ ish a causal

connection between the crime s and the victim’s injury ; and 3) Equian was not

entitled to restitution under 18 Pa.C.S.A. § 1106(c)(1). The court denied the

post

- sentence motion, and Appellant timely filed a notice of appeal. On

August 29, 201 9, this Court vacated Appellant’s sentence and remanded the

matter for resentencing. Citing Commonwealth v. Ramos , 197 A.3d 766

(Pa.Super. 2018), we determined “ the trial court erred as a matter of law by

failing to determine the amount of restitution at the original time of

sentencing[.]” Commonwealth v. Davis , No. 1048 WDA 2018, unpublished

memorandum at 4 (Pa.Super. filed August 29, 2019).

On November 13, 2019, the court re sentenc ed Appellant to the same

aggregate term of three (3) years’ probation. The court also awarded

restitution , including $5,383.88 to Equian and $1,296.71 to the Victim’sJ

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Compensation Fund

. Appellant timely filed a post

- sentence motion on
November 22, 2019. Again, Appellant argued that Equian was not entitled to

restitution un der Section 1106(c)(1), and the Commonwealth failed to

establish a causal connection between the assault and the victim’s injury

. On

December 4, 2019, t he court denied Appellant’s post

- sentence motion

. Appellant timely filed a notice of appeal on Januar y 2, 2020. On January

7, 2020, t he court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely filed her Rule

1925(b) statement on January 28, 2020.

Appellant now raises three issues for ou r review :

Was the trial court ’ s sentence illegal in ordering $5,383.88 in restitution to Equian, a debt collector, under the restitution statute, 18 Pa.C.S. § 1106, when Equian was not an entity listed under the aforementioned restitution statute?

Was the trial court ’ s sentence illegal because the record supports no causal connection between the ordered restitution for the injury complained of, a detached retina, and the simple assault to which [Appellant] pleaded guilty?

Was the trial court ’ s imposition of certain court costs on [Appellant] improper, given that the court costs were imposed without consideration of [Appellant’s] financial resources and ability to pay?

( Appellant’s Brief at 3 )

.

In her first issue, Appellant challenges the co urt’s award of restitution

to Equian, a third

- party debt collector

. Appellant contends that the definition

of “victim” in the applicable version of Section 1106 does not include corporateJ

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entities like Equian. 4 In light of the relevant statutory language , Appellant

insists Equian is not entitled to restitution under Section 1106. Appellant

concludes that this Court must vacate that portion of the judgment of

sentence. We agree.

The relevant scope and standard of review are as follows:

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. As such, [a]n appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record challe nges the legality, rather than the discretionary aspects, of sentencing. Accordingly, 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 plenar y. This case will also necessarily call upon us to engage in statutory construction, which similarly presents a pure question of law and also implicates the legality of

... sentence. Thus, our standard of review is de novo and our scope of review is plenar y.

Hunt, supra at 585 (internal citations and quotation marks omitted).

The version of Section 1106 in effect at the time of Appellant’s offenses

provided , in pertinent part, as follows:

(a) General r ule.

— Upon conviction for any crime wherein

... the v ictim suffered personal injury directly resulting fro m the crim e , the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

_________________ __________ ______ ____ _______

4 Relevant to this appeal, the Pennsylvania General Assembly amended Section 1106 on October 24, 2018. However, Appellant’s criminal actions and the entry of her guilty plea s predate th e statute’s amendment. Accordingly,

we analyze the prior version of Section 1106 for Appellant’s sentencing claim. See Commonwealth v. Hunt , 220 A.3d 582, 585

- 87 (Pa.Super. 2019).J

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- * * *

(c) Mandatory r estitution.

—
(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.

... (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 Crim e 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.

* * *

(h) Definitions.

— As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

* * *

“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. 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 company that has compensate d the victim for loss under an insurance contract.J

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18 Pa.C.S. § 1106(a), (c) , and (h) (repealed Oct. 24, 2018, P.L. 891, No. 145,

§ 1, effective Jan. 31, 2005) (internal footnote omitted)

. Regarding the statutory reference in the definitions section, “Section

479.1, formerly codified at 71 P.S. § 180

– 9.1, since has been recodified in the

Crime Victims Act, 18 P.S. §§ 11.101, et seq . (the ‘CVA’).” Commonwealth

v. Veon , 637 Pa. 442, 465, 150 A.3d 435, 449 (2016). The CVA defines

“victim” as follows:

(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 i s 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 ag gravated 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 communication as provided for in th is act, except where the family member is the alleged offender.

18 P.S. § 11.103. “A ‘[d]irect victim’ is defined by the same section as ‘[a]n

individual against whom a crime has been committed or attempted and who

as a direct result of the criminal ac t or attempt suffers physical or mentalJ

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injury, death or the loss of earnings under this act.’” Veon, supra at 465,

150 A.3d at 449 (emphas i s in original). In Veon , our Supreme Court

scrutinized the language in Section 11.103 and determined that it applied to

human beings only:

Notwithstanding any legislative expansion of the definition of “victim,” it is clear that the plain text of Section 11.103 still envisages “victims” as “persons” commonly understood. A “victim” under Section 11.103 must be “a direct victim,” i.e. , an “individual” who has suffered injury, death, or loss of earnings; or a “child,” “parent,” “guardian,” or “family member.” Every relevant noun unequivocally describes a human being, not a government agency, and nowhere else is there a relevant definition that persuades us to broaden the common understanding of these words.

Id. at 472, 150 A.3d at 454.

In light of the holding in Veon , this C ourt subsequently concluded that

the inter

- related definitions of “direct victim,” “individual,” and “natural person” pursuant to the pre

- amendment version of § 1106 do not include corporate entities

... . Such a conclusion is necessitated by a plain reading of these statutes, and has the additional virtue of giving full weight to the Supreme Court ’ s discussion of these same provisions in Veon

. Hunt, supra at 591 ( internal footnotes omitted) (emphasis in original ).

Instantly, the court ordered Appellant to pay restitution to Equian.

Based upon this Court’s holding in Hunt , the definition of “victim” under the

pre
- amendment version of Section 1106 does not include a corporate entity

such as Equian. Th erefore, Appellant’s sentence is illegal, and we vacate the

judgment of sentence. See Veon, supra ; Hunt, supra . Accordingly, weJ

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remand for resentencing consistent with this decision. 5

Judgment of sentence vacated. Case remanded with instructions.

Ju risdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2021

_________________ __________ ______ ____ _______

5 Due to our disposition, we need not address Appellant’s remaining issues. Nevertheless, we note this Court ha s already addressed the causal connection between the criminal conduct and the victim’s eye injury, as Co

- Defendant raised the same claim on appeal from her judgment of sentence. See Commonwealth v. Sweeney , 1878 WDA 2019, unpublished memorandum at 6

- 8 (P a.Super. filed November 30, 2020). Additionally, r egarding Appellant’s complaint that the court imposed costs without considering Appellant’s ability to pay, there is no “requirement that a court hold an ability

to

- pay hearing before imposing court costs on the defendant at sentencing.” Lopez, supra at 4.