J. S26023/17

2017 PA Super 219

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

MICHAEL DAVID ZRNCIC, :

:

APPELLANT :

: No. 1496 MDA 2016

Appeal from the Order Entered August 31, 2016

In the Court of Common Pleas of Cumberland County 

Criminal Division at No(s): CP-21-CR-0002531-2008

 

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

OPINION BY DUBOW, J.: FILED JULY 12, 2017

Appellant, Michael David Zrncic, appeals from the August 31, 2016 

Order entered in the Cumberland County Court of Common Pleas directing 

Appellant to pay restitution in the amount of $1,527.26 to the Victims 

Compensation Assistance Program and $1,038.77 to his minor victim’s 

mother. On appeal, Appellant challenges the restitution that the trial court 

awarded to the victim’s mother, averring that there is an insufficient nexus 

between the loss claimed and the charge to which he pled guilty. For the 

reasons that follow, we are constrained to vacate the portion of the 

Restitution Order awarding $1,038.77 to the victim’s mother.

 

*

Former Justice specially assigned to the Superior Court.
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We briefly summarize the relevant facts and procedural history of the 

instant case, as gleaned from the record, as follows. During a two-month 

period in 2008, Appellant had an unlawful sexual relationship with a 15-

year-old female student at the karate school that he owned. Appellant’s 

inappropriate contact with his victim occurred both in person and 

electronically, and included, inter alia, having the victim perform oral sex on 

him.

Police arrested Appellant and charged him with one count each of 

Involuntary Deviate Sexual Intercourse (“IDSI”) and Unlawful Contact with a 

Minor, two counts each of Aggravated Indecent Assault and Corruption of 

Minors, and three counts of Indecent Assault. As part of their investigation, 

police seized the victim’s laptop, which the Commonwealth avers contains 

“direct evidence” that Appellant committed the offense of Unlawful Contact 

with a Minor. Trial Court Opinion, dated 8/31/16, at 3. 

On January 8, 2009, Appellant entered into a negotiated guilty plea to 

one consolidated count of Aggravated Indecent Assault and the 

Commonwealth nolle prossed the remaining charges, including Unlawful 

Contact with a Minor. The parties did not include restitution in the terms of 

the plea agreement, and restitution became the subject of considerable 

dispute.1 

 

1 The instant appeal represents the third time this Court has reviewed the 

restitution award at issue in the instant case. As the earlier appeals are 
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Eventually, on August 31, 2016, the trial court ordered Appellant to 

pay restitution totaling $1,527.26 to the Victims Compensation Assistance 

Program and $1,038.77 to the victim’s mother.2 The sum owed to the

victim’s mother represents the amount she paid to replace her daughter’s 

laptop. The police had seized the laptop as evidence as part of their 

investigation into the charge of Unlawful Contact with a Minor.

Appellant filed a timely notice of appeal and Appellant and the trial 

court both complied with Pa.R.A.P. 1925. 

On appeal, Appellant raises three issues:

1. Whether the trial court erred in ordering [] Appellant to pay 

restitution for a laptop computer which did not represent 

damages to a person or property related to the charge to which 

[Appellant] pled guilty and was sentenced?

2. Whether the trial court erred in ordering [] Appellant to pay 

restitution for a laptop computer purchased by the victim’s 

mother when the computer was not damaged and the victim’s 

mother did not demand the return of the computer from the 

police after it had been analyzed?

3. Whether the trial court erred in directing [] Appellant to pay 

restitution for antivirus software and for an extended 

maintenance plan for a laptop computer which the victim’s 

 

irrelevant to our disposition, we need not discuss them in further detail. 

See Commonwealth v. Zrncic, No. 420 MDA 2014, unpublished 

memorandum at 12-16 (Pa. Super. filed January 29, 2015) (holding that the 

original sentence of restitution, set without a specific amount in anticipation 

of a later hearing, was illegal); Commonwealth v. Zrncic, 131 A.3d 1008 

(Pa. Super. 2016) (holding that Appellant was entitled to counsel at his 

restitution hearing on remand).

2 Appellant does not dispute the sum owed to the Victims Compensation 

Assistance Program which includes, inter alia, counseling for the victim.
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mother purchased as a replacement for one turned over to the 

police during the course of the investigation?

Appellant’s Brief at 4.

Each of Appellant’s three issues challenges the imposition of restitution 

as part of Appellant’s sentence. An issue regarding the award of restitution 

presents a pure question of law, subject to plenary and de novo review. 

Commonwealth v. Brown, 956 A.2d 992, 994 (Pa. Super. 2008) (en 

banc). 

Appellant argues that since the laptop only contained evidence 

relevant to the charge of Unlawful Contact with a Minor, and the 

Commonwealth nolle prossed this charge when Appellant pled guilty to 

Aggravated Indecent Assault, there is no direct nexus between the charge to 

which he pled guilty and the restitution order. Therefore, Appellant avers, 

the trial court had no authority to include the replacement cost of the laptop 

in the restitution order.

Our Supreme Court has held that “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 a sentence.” Commonwealth v. 

Harner, 617 A.2d 702, 704 (Pa. 1992) (citation omitted). The authority to 

impose restitution comes from Section 1106 of the Crimes Code. 

Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008) (en 

banc). 
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Section 1106 provides that “[u]pon 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.” 18 Pa.C.S. § 1106(a) (emphasis added). 

This section “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.” Barger, 956 

A.2d at 465 (quoting Harner, 617 A.2d at 706).

In the instant case, police seized the laptop in order to investigate 

whether Appellant committed the offense of Unlawful Contact with a Minor, a 

charge that the Commonwealth later dismissed. It is undisputed that the 

laptop did not contain any evidence of Aggravated Indecent Assault, the 

crime to which Appellant pled guilty. The question, then, is whether the trial 

court may properly impose restitution for the laptop where the loss claimed 

flows from crimes other than the crime to which Appellant pled guilty.

This Court previously addressed this specific question in Barger, 

holding that any restitution ordered must flow from only those crimes for 

which a defendant is convicted, and not any underlying, unproven, conduct. 

In Barger, the police charged the appellant with Rape, Statutory Sexual 

Assault, Sexual Assault, Indecent Assault, Corruption of Minors, Terroristic 
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Threats, and Harassment. Barger, 956 A.2d at 459. A jury found the 

appellant not guilty of all felony and misdemeanor charges; the trial court, 

however, convicted the appellant of Harassment. Barger, at 460. The trial 

court sentenced the appellant, in part, to restitution in the amount of 

$600.00 to cover the cost of replacing a couch on which the victim claimed 

the appellant had raped her. Id. at 460. 

Upon review of the record, this Court found that Section 1106 did not 

authorize a sentence directing the appellant to pay restitution for the couch 

because there was not a direct nexus between the loss of the couch and the 

charge for which the trial court convicted the appellant. Id. at 465. 

The trial court convicted [the appellant] of the offense of 

harassment for slapping [the victim]. [The victim] testified at 

trial that the couch was replaced because “[that was] where I 

was raped and we didn't want that in my house.” [citation 

omitted] Even assuming that there was a loss of property within 

the meaning of Section 1106, there was no direct nexus 

between the crime for which [the appellant] was 

convicted and the loss of the couch, as Section 1106 

requires.

Id. (emphasis added). None of the evidence at trial supported a conclusion 

that the appellant slapped the victim on the couch. Id. at 465. Thus, we 

found that the loss of the couch did not flow from the behavior for which the 

appellant was held criminally accountable, and “[a]ccordingly, Section 1106 

provided no authority to the trial court to include restitution for the couch.” 

Id.
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In the instant case, the trial court found that “the laptop contained 

direct evidence of [Appellant’s] complicity in the charge of [U]nlawful 

[C]ontact with [a] [M]inor, which is why it was seized.” Trial Court Opinion 

at 3. While the trial court acknowledges that the Commonwealth nolle 

prossed the charge of Unlawful Contact with a Minor, the trial court argues 

that Appellant has “already benefitted greatly from his plea bargain” and 

“should not now benefit a second time by avoiding paying restitution for his 

actions[.]” Id. 

However much we may sympathize with this position, the legislature 

does not authorize a trial court to impose restitution based only on the trial 

court’s sympathies for the victim. Rather, Section 1106 requires a “direct 

nexus” between the loss claimed and the crime “for which Appellant was 

convicted[.]” Barger, 956 A.2d at 465. 

Nor are we persuaded by the trial court’s conclusion that a “direct 

causal connection” exists between the loss of the laptop and the charge of 

Aggravated Indecent Assault because “[Appellant] was initially charged with 

[U]nlawful [C]ontact with a [M]inor, and but for his plea agreement he 

would still have been faced with that charge[.]” Trial Court Opinion at 3. 

Being “faced with [a] charge” is insufficient to justify an award of restitution, 

and the trial court may not award restitution based on its conjecture that a 

jury would have found Appellant guilty of the charge had the case gone to 

trial. Whatever may have happened in the instant case in the absence of a 
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plea agreement, Appellant was not convicted of Unlawful Contact with a 

Minor. 

We, therefore, vacate the portion of the Restitution Order awarding 

$1,038.77 to the victim’s mother.

Restitution Order vacated in part. All other aspects of Judgment of 

Sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/2017