Com. v. Smith

• Decision Date: 04 September 2008
• Docket Number: No. 1120 MDA 2006.,1120 MDA 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Cory SMITH, Appellant.
• Court: Pennsylvania Superior Court

956 A.2d 1029

2008 PA Super 206

COMMONWEALTH of Pennsylvania, Appellee v. Cory SMITH, Appellant.

No. 1120 MDA 2006.

Superior Court of Pennsylvania.

Argued March 12, 2008.

Filed September 4, 2008.

MaryJean Glick, Public Defender, Lancaster, for appellant.

Ryan T. Boop, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BENDER, BOWES, GANTMAN, and SHOGAN, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Cory Smith, appeals from the judgment of sentence entered on January 4, 2006. We affirm in part, vacate in part, and remand.

¶ 2 The factual and procedural history of the case is as follows. On December 18, 2002, Appellant brought his infant son, Korey Smith, to a Christmas party for a short time. Witnesses from the party testified that the child appeared happy and normal. Sometime after Appellant returned home from the party, with the child under his exclusive control, Appellant called 911 because the child was exhibiting unresponsive behavior. When the paramedics arrived, they found the child unresponsive and flaccid.

¶ 3 The child was taken to Hershey Medical Center, where he underwent a CAT scan, which revealed bleeding around his brain. The treating pediatric neurosurgeon, Dr. Dias, testified that the brain injuries suffered by the child had occurred on December 18, 2002, and that they were the result of an abusive head trauma, commonly known as Shaken Baby Syndrome. N.T., 10/4/2005, at 268-269. Dr. Dias determined that this trauma could not be caused by playful handling, but rather from a violent shaking beyond the realm of normal behavior. Id. at 268, 288. As a result, the child has suffered brain damage that has significantly impaired his cognition and motor skills. The child has undergone significant, continuing medical treatment. The Department of Public Welfare (DPW) has paid the child's medical expenses though its Medical Assistance program.

¶ 4 On October 6, 2005, following a jury trial, Appellant was convicted of aggravated assault, recklessly endangering another person (REAP), and endangering the welfare of a child (EWOC). On January 4, 2006, the court sentenced Appellant on the aggravated assault charge to a prison term of five to ten years, plus ten years' consecutive probation, plus restitution up to a maximum amount of $1,481,562.54.¹ The court also sentenced Appellant to a consecutive five-year probation term for EWOC.

¶ 5 On January 13, 2006, Appellant filed a timely motion to modify the sentence. Appellant raised three issues relating to restitution. On May 19, 2006, the court held a hearing on these issues. The court denied Appellant's motion on June 1, 2006. This timely appeal followed.²

¶ 6 Appellant raises six issues on appeal:

1. Did the trial court err in ordering Mr. Smith to pay restitution to the Department of Public Welfare, which is not a victim under 18 Pa. C.S. § 1106(h), and is not entitled to restitution?

2. Did the trial court err in ordering Mr. Smith to pay $1,426,520 restitution for future medical expenses and babysitting services, where such restitution was speculative, and where the court's capping restitution rather than setting a definitive amount constituted an illegal delegation of the determination of the actual amount of restitution?

3. In light of the prosecutor's inaccurate definition of negligence, did the trial court err in refusing to charge the jury that Mr. Smith could not be found guilty of aggravated assault, recklessly endangering another person, or endangering the welfare of a child, if his conduct was criminally negligent?

4. Did the Commonwealth fail to prove beyond a reasonable doubt that Mr. Smith committed aggravated assault, where the evidence did not establish that Mr. Smith consciously disregarded a substantial and unjustifiable risk that serious bodily injury or death would result from his conduct?

5. Did the Commonwealth fail to prove beyond a reasonable doubt that Mr. Smith committed the offense of recklessly endangering another person, where the evidence did not establish that Mr. Smith consciously disregarded a known risk of death or great bodily harm to Korey Smith?

6. Did the Commonwealth fail to prove beyond a reasonable doubt that Mr. Smith committed the offense of endangering the welfare of a child, where the evidence did not establish that he knowingly violated a duty of care to Korey Smith or that he was aware that his actions had placed the child in circumstances that could threaten his physical welfare?

Appellant's Brief at 5. For ease of reference, we have switched the order of issues one and two on appeal.

¶ 7 First, Appellant argues that the DPW is not entitled to restitution as a matter of law. In a companion case to the instant case, we held that the DPW is entitled to restitution under similar facts. Commonwealth v. Brown, 2008 PA Super 156 (en banc). Because Brown controls, Appellant's first issue lacks merit.

¶ 8 Next, Appellant challenges the nature of the restitution order. He raises two sub-arguments. We will address the second sub-argument first. Specifically, Appellant contends that the court violated the express terms of the restitution statute, 18 Pa.C.S.A. § 1106, because the court failed to set an amount and method of payment at sentencing. By extension, Appellant argues that the court improperly delegated its duties to the Department of Probation and Parole.

¶ 9 The record reflects that Appellant did not include this issue at sentencing, in post-sentence motions, or in his concise statement of matters complained of on appeal under Pa.R.A.P.1925. Ordinarily, such a lapse would render the issue waived. See, e.g., Pa.R.A.P. 302(a); Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005). We have held, however, that a challenge of this sort is a non-waivable challenge to the legality of the sentence because it implicates the trial court's statutory authority to impose restitution. Commonwealth v. Mariani, 869 A.2d 484 (Pa.Super.2005); see also In the Interest of M.W., 555 Pa. 505, 725 A.2d 729 (1999) (a claim that restitution is excessive is a challenge to the discretionary aspects of the sentence, while a claim that restitution was inappropriate is a challenge to the legality of the sentence); Commonwealth v. Pleger, 934 A.2d 715, 719-721 (Pa.Super. 2007); Commonwealth v. Oree, 911 A.2d 169 (Pa.Super.2006).

¶ 10 Restitution is governed by 18 Pa.C.S.A. § 1106, which provides, in relevant part:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value 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.

(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. [...]

(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 such other schedule as it deems just.

[...]

(3) The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.

18 Pa.C.S.A. § 1106(a), (c) (emphasis added). Consistent with the plain language of § 1106(c)(2), our Courts have held that the trial court may not impose a general order of restitution at sentencing and then "work out the details" and amounts at a later date. Mariani, 869 A.2d at 486. "[A]n order of restitution to be determined later is ipso facto illegal." Id. Similarly, "the sentencing court bears the duty of determining the specifics of restitution. The court is not free to delegate these duties to an agency." Commonwealth v. Deshong, 850 A.2d 712, 716 (Pa.Super.2004) (brackets and citations omitted).

¶ 11 The record reflects that at the sentencing hearing, the court ordered Appellant "to pay costs, [and] make restitution, which is capped at $1,481,562.54." N.T., 1/4/2006, at 32. While the court did set a maximum cap, the court did not specify any particular amount of restitution, particularly as to future medical expenses. Moreover, the court did not specify any method of payment.

¶ 12 We recognize that the court held a post-sentence motion hearing at which the court attempted to clarify both the amount and the method of payment. N.T., 5/19/2006, at 4-5. Specifically, the court indicated its belief that Appellant would pay the amounts that the DPW incurs on an ongoing, "pay-as-you-go" basis. Id. at 5-6; see also Trial Court Opinion, 8/14/2006, at 4 n. 2 ("It is important to note that the Commonwealth is not seeking these costs from Defendant unless they are actually incurred by [the victim]. The purpose of including them in restitution is only so that if such costs are accrued, Defendant will be responsible for their payment.") Unfortunately, the court never modified the sentencing order to make these facts clear. Rather, the certified record...