Full Case Name:  Commonwealth of Pennsylvania v. John Lee

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Country of Origin:  United States Court Name:  Superior Court of Pennsylvania Primary Citation:  2007 WL 4555253 (Pa. Super. 2007) Date of Decision:  Friday, December 28, 2007 Judge Name:  Hudock Jurisdiction Level:  Pennsylvania Judges:  Tamilia Musmanno Hudock Docket Num:  Nos. 720 WDA 2007, 890 WDA 2007

Sheriffs removed Defendant's starving dog from his garage and took it to a shelter for hospitalization.  Following a conviction and sentencing for animal cruelty and an order of restitution payable to the shelter, Defendant appealed.  The Superior Court remanded for re-sentencing and vacated the order of restitution, holding that the shelter was not a victim of Defendant's actions, and that restitution is only payable to humans.

These consolidated appeals are from the judgment of sentence and restitution order entered following a bench trial at which Appellant was convicted of cruelty to animals. 18 Pa.C.S.A. § 5511(a)(2.1)(i)(A). The trial court sentenced Appellant to four years of probation and restitution in the amount of $3,156.00. We vacate the judgment of sentence and remand for re-sentencing, and we vacate the order of restitution.

The trial court aptly summarized the facts as follows:

At approximately 11:30 a.m. on June 21, 2006, Deputy Sheriff Robert Noone went to [Appellant's] residence for the purpose of evicting him. [Appellant] was not at home. While searching the residence, Sheriff Noone found [Appellant's] dog ... in the garage. The dog was in very poor condition. There was urine and feces everywhere and the dog did not have food or water. Sheriff Noone called Animal Control and the Humane Society.

Officer Kathy Hecker, a Humane Society police officer, ... arrived and observed the dog. She [observed] that he was just huddled like a heap on the ground, just skin and bones. The dog was unable to walk, so she carried him to their van. She indicated that the dog, who only weighed seventeen (17) pounds, was suffering from starvation in that his eyes were sunken, he was listless and very weak. He was treated intravenously and remained in the intensive care unit for ten days.

Opinion of Court, 6/6/07, at 2 (internal quotations and citations omitted). Appellant appeared before the trial court for a non-jury hearing on March 19, 2007. After finding Appellant guilty as charged, the trial court sentenced him the same day to four years of probation. The Commonwealth requested $7,114.00 in restitution, payable to Animal Friends, the shelter that provided medical care to Appellant's dog, based on one hundred sixty-nine days of hospitalization. Appellant challenged the Commonwealth's restitution figure as excessive. Therefore, the trial court conducted a restitution hearing on April 18, 2007. In ordering restitution in the amount of $3,156.00 payable to Animal Friends, the trial court reduced the numbers of days of hospitalization. N.T ., 4/18/07, at 10. Appellant filed the instant appeal. Both Appellant and the trial court have complied with Pa.R.A.P.1925.

On appeal, Appellant presents the following questions for our review:

I. Was [Appellant's] sentence illegal, where the length of his probation exceeded the statutory maximum term of incarceration for the offense he was convicted of?

II. Was [Appellant's] sentence of restitution illegal where it was directed to be paid to a third party who was not a “victim” under the applicable statute; and where restitution was not determined at the time of his sentencing but 30 days later?

Appellant's Brief at 4 (capitalization omitted).

Appellant first complains that his probationary sentence was illegal. The trial court “agrees that the length of the sentence is illegal, in that, although this offense is graded as a First Degree Misdemeanor, the statute (§ 5511(a)(2.1)(ii)) provides for a maximum term of imprisonment of two years.” Opinion of Court, 6/6/07, at 4. The Commonwealth concedes the necessity of a remand. Commonwealth's Brief at 2. Accordingly, we vacate the judgment of sentence and remand this matter for re-sentencing as to the length of the probationary period.

Appellant's second claim is that the restitution order is illegal in two respects: because the restitution is payable to Animal Friends, which is not a “victim” under the restitution statutes, and because the order was not imposed at the time of sentencing. “In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.” Commonwealth v. Langston, 904 A.2d 917, 922 (Pa.Super.2006). Without supporting authority, the trial court concluded that Animal Friends was a victim and that “the cost of [the extensive] treatment should be borne by [Appellant].” Opinion of Court, 6/6/07, at 4. We disagree.

Mandatory restitution is statutorily grounded in two provisions, under the Sentencing Code at 42 Pa.C.S.A. section 9721(c) and under the Crimes Code at 18 Pa.C.S.A. section 1106(a). Langston, 904 A.2d at 922. Pursuant to section 9721(c), “In addition to the alternatives set forth in subsection (a) of this section the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.” 42 Pa.C.S.A. § 9721(c). Section 1106(a) provides, in relevant part, as follows: “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). Under both the Sentencing Code and the Crimes Code, the term “victim” is defined pursuant to section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929, 71 P.S. § 180-9.1. See 42 Pa.C.S.A. § 9721(c) and 18 Pa .C.S.A. § 1106(h). However, sections 180-9 through 180-9.1 of the Administrative Code of 1929 have been repealed (1998, Nov. 24, P.L. 882, No. 111, § 5103, immediately effective). The subject matter of the repealed sections is now set forth in the Crime Victims Act, 18 P.S. § 11.101. Therein, the term “victim” means the following:

(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 fiancé, one of whom is to be identified to receive communication as provided for in this act, except where the family member is the alleged offender.

18 P.S. § 11.103.

For purposes of mandatory restitution, a victim's loss must be caused directly by a defendant's criminal conduct, rather than be consequential to the conduct. Langston, 904 A.2d at 922. Moreover, “[t]he mandatory payment of restitution pursuant to Section 1106 of the Crimes Code is limited to the direct victim and not to third parties, including family members, who shoulder the burden of the victim's losses.” Langston, 904 A.2d at 924. Restitution is meant to compensate victims, not to reimburse third parties, such as medical providers. Langston, 904 A.2d at 923; see also, Commonwealth v. Figueroa, 456 Pa.Super. 620, 691 A.2d 487, 489 (Pa.Super.1997) (finding payment of restitution to Department of Corrections for medical treatment of stabbed inmate to be improper reimbursement to non-victim). Unless a medical provider is a victim, “such status requiring that the provider's loss be caused directly by a defendant's criminal conduct rather than a loss merely consequential to such conduct, direct payments of restitution to the provider should not be ordered by the court.” Commonwealth v. Keenan, 853 A.2d 381, 384 (Pa.Super.2004); Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (Pa.Super.1984) (finding improper restitution payable to therapist who provided psychological treatment to victim).

Applying the above definition of victim and the legal principles regarding mandatory restitution to this case, we hold that the trial court erred in considering Animal Friends a victim entitled to restitution.

The Commonwealth concedes that “Appellant makes a reasonable argument” on this point. Commonwealth's Brief at 2. Nevertheless, the Commonwealth suggests that we consider Animal Friends to be a guardian of the dog and, as such, eligible to receive restitution on the dog's behalf. In support of its position, the Commonwealth analogizes Animal Friends to a non-offending guardian who may receive restitution on behalf of a child victim. Commonwealth's Brief at 3-4 (citing 18 Pa.C.S.A. § 11 .103). The Commonwealth's analogy is creative, but flawed. Even if we considered Animal Friends to be the dog's guardian, it would not be eligible to receive restitution on the dog's behalf because the statutes provide for the payment of restitution to people, not dogs.

Appellant also claims that the restitution order is illegal because it was not imposed at the time of sentencing. Because we have already determined that the order of restitution was illegal, this issue is moot.

Judgment of sentence vacated and remanded for re-sentencing. Order of restitution vacated. Jurisdiction relinquished.


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