J-A18001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MALACHI THOMAS
Appellant No. 3601 EDA 2017
Appeal from the Judgment of Sentence Entered September 6, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0007749-2016
BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2018
Appellant, Malachi Thomas, appeals from the September 6, 2017
judgment of sentence imposing four to twelve months of incarceration
followed by an aggregate five years of probation for simple assault, recklessly
endangering another person (“REAP”), and two counts of conspiracy. 1 The
trial court also ordered Appellant to pay restitution of $167,082.96. We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On October 12, 2016, 49-year-old James Cawthorn (hereinafter victim) was going to a concert with a friend at the Tower Theater in Upper Darby, Delaware County. Upon arrival at ____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2701, 2705, and 903, respectively. J-A18001-18
the venue, his friend began to feel ill and realized his medication was back in his hotel room. Victim’s friend took a cab back to their hotel in order to grab his medication while the victim went to grab a soda and slice of pizza and then headed back in the direction of the Theatre [sic]. While innocently walking down the street, the victim was struck from behind in the area of the 500 block of South 69th Street. The next thing the victim recalled was waking up in Lankenau Hospital the following day. Doctors told the victim that he had been robbed and came into the Emergency Room as a “John Doe” patient because he had no wallet or cell phone. The victim came to learn that he had a large hematoma, or bleeding in his brain, and that his left eye socket was broken and the bones in the left side of his face were also broken, all the way to his upper jawbone. As a result of the bleeding, the victim underwent craniotomy surgery the week of Thanksgiving; a drain had to be placed into his skull in order to release the fluids from the surgery. The drain was removed Thanksgiving morning. The procedure required twenty-six stiches.
Trial Court Opinion, 1/23/18, at 1-2 (record citations omitted).
An eyewitness to the assault identified Appellant as the perpetrator and
stated that Appellant punched the victim in the back of the head. Surveillance
footage obtained from a nearby restaurant showed Appellant and several
companions approaching the victim from behind, and Appellant fleeing in the
opposite direction. The assault took place out of the camera’s field of view.
Police found the victim unconscious on the sidewalk with a large lump on his
head. The victim testified that he continued to suffer from seizures, short-
term memory loss, and inability to drive, live alone, or work to support himself
or pay his medical expenses.
A jury found Appellant guilty of the aforementioned offenses (but not
guilty of robbery or aggravated assault) after a two day trial. The trial court
imposed sentence as set forth above and this timely appeal followed.
-2- J-A18001-18
Appellant raises a single issue: whether the trial court erred in imposing
restitution because the victim’s injury was not a direct result of Appellant’s
criminal act. Appellant’s Brief at 5.
A challenge to the trial court’s authority to impose restitution is a
challenge to the legality of the sentence. Commonwealth v. Gentry, 101
A.3d 813, 816 (Pa. Super. 2014). Therefore, our standard of review is de
novo and our scope of review is plenary. Id. at 817. Here, Appellant claims
that Section 1106 of the Crimes Code did not authorize restitution because
there is not a direct link between the victim’s injuries and the crimes for which
Appellant was convicted. Section 1106 provides in relevant part: “Upon
conviction for any crime wherein property has been stolen [. . .] 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.A. § 1106(a) (emphasis added).2
Instantly, Appellant relies on four cases that he believes support his
argument that the victim’s injuries were not a direct result of his convictions.
First, in Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983), the
defendant, whose car struck and killed a 12-year-old boy, pled guilty to
leaving the scene of an accident pursuant to 75 Pa.C.S.A. § 3742. The trial
____________________________________________
2 We have quoted from the version of § 1106 in effect at the time of Appellant’s sentencing. Section 1106 has been amended effective October 24, 2018. 2018 Pa. Laws ___, No. 145, § 1.
-3- J-A18001-18
court ordered the defendant to make restitution to the victim’s family for all
costs directly associated with the victim’s death. Id. at 196. This Court
vacated judgment of sentence insofar as it ordered restitution, because the
act for which the defendant pled guilty—leaving the scene of an accident—was
not directly related to the victim’s death. Id. at 196-97. The defendant did
not admit that he was criminally responsible for the victim’s death, nor was
he charged with any offense that would have held him criminally responsible
for the death. Id. at 197.
Appellant also relies on Commonwealth v. Reed, 543 A.2d 587 (Pa.
Super. 1988), wherein the defendant was convicted of receiving stolen
property worth not more than $480.00, but was not charged with the burglary
in which the stolen items had been taken. Id. at 588-89. The trial court
imposed restitution of more than $12,000.00, representing the total loss
sustained by the victim of the underlying burglaries. We held the restitution
award was improper, as there was no causal connection between the victim’s
total losses and the small amount of stolen property the defendant received.
Id. at 589.
In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008) (en
banc), the victim accused the defendant of raping her. A jury acquitted the
defendant of all felony and misdemeanor charges, but the trial court found
Appellant guilty of harassment. Id. at 460. The trial court also ordered
Appellant to pay $600.00 in restitution to the victim to compensate her for
-4- J-A18001-18
replacing the couch on which the assault allegedly occurred. Id. This Court
held the restitution portion of the sentence illegal because there was no direct
nexus between the harassment conviction (for slapping the victim) and the
victim’s disposal of the couch. Id. at 465.
Finally, in Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992), the
defendant pled guilty to two counts of interfering with the custody of children.
She took her children from their father’s custody in Harrisburg, Pennsylvania
to Louisiana. Id. at 703.
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J-A18001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MALACHI THOMAS
Appellant No. 3601 EDA 2017
Appeal from the Judgment of Sentence Entered September 6, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0007749-2016
BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2018
Appellant, Malachi Thomas, appeals from the September 6, 2017
judgment of sentence imposing four to twelve months of incarceration
followed by an aggregate five years of probation for simple assault, recklessly
endangering another person (“REAP”), and two counts of conspiracy. 1 The
trial court also ordered Appellant to pay restitution of $167,082.96. We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On October 12, 2016, 49-year-old James Cawthorn (hereinafter victim) was going to a concert with a friend at the Tower Theater in Upper Darby, Delaware County. Upon arrival at ____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2701, 2705, and 903, respectively. J-A18001-18
the venue, his friend began to feel ill and realized his medication was back in his hotel room. Victim’s friend took a cab back to their hotel in order to grab his medication while the victim went to grab a soda and slice of pizza and then headed back in the direction of the Theatre [sic]. While innocently walking down the street, the victim was struck from behind in the area of the 500 block of South 69th Street. The next thing the victim recalled was waking up in Lankenau Hospital the following day. Doctors told the victim that he had been robbed and came into the Emergency Room as a “John Doe” patient because he had no wallet or cell phone. The victim came to learn that he had a large hematoma, or bleeding in his brain, and that his left eye socket was broken and the bones in the left side of his face were also broken, all the way to his upper jawbone. As a result of the bleeding, the victim underwent craniotomy surgery the week of Thanksgiving; a drain had to be placed into his skull in order to release the fluids from the surgery. The drain was removed Thanksgiving morning. The procedure required twenty-six stiches.
Trial Court Opinion, 1/23/18, at 1-2 (record citations omitted).
An eyewitness to the assault identified Appellant as the perpetrator and
stated that Appellant punched the victim in the back of the head. Surveillance
footage obtained from a nearby restaurant showed Appellant and several
companions approaching the victim from behind, and Appellant fleeing in the
opposite direction. The assault took place out of the camera’s field of view.
Police found the victim unconscious on the sidewalk with a large lump on his
head. The victim testified that he continued to suffer from seizures, short-
term memory loss, and inability to drive, live alone, or work to support himself
or pay his medical expenses.
A jury found Appellant guilty of the aforementioned offenses (but not
guilty of robbery or aggravated assault) after a two day trial. The trial court
imposed sentence as set forth above and this timely appeal followed.
-2- J-A18001-18
Appellant raises a single issue: whether the trial court erred in imposing
restitution because the victim’s injury was not a direct result of Appellant’s
criminal act. Appellant’s Brief at 5.
A challenge to the trial court’s authority to impose restitution is a
challenge to the legality of the sentence. Commonwealth v. Gentry, 101
A.3d 813, 816 (Pa. Super. 2014). Therefore, our standard of review is de
novo and our scope of review is plenary. Id. at 817. Here, Appellant claims
that Section 1106 of the Crimes Code did not authorize restitution because
there is not a direct link between the victim’s injuries and the crimes for which
Appellant was convicted. Section 1106 provides in relevant part: “Upon
conviction for any crime wherein property has been stolen [. . .] 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.A. § 1106(a) (emphasis added).2
Instantly, Appellant relies on four cases that he believes support his
argument that the victim’s injuries were not a direct result of his convictions.
First, in Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983), the
defendant, whose car struck and killed a 12-year-old boy, pled guilty to
leaving the scene of an accident pursuant to 75 Pa.C.S.A. § 3742. The trial
____________________________________________
2 We have quoted from the version of § 1106 in effect at the time of Appellant’s sentencing. Section 1106 has been amended effective October 24, 2018. 2018 Pa. Laws ___, No. 145, § 1.
-3- J-A18001-18
court ordered the defendant to make restitution to the victim’s family for all
costs directly associated with the victim’s death. Id. at 196. This Court
vacated judgment of sentence insofar as it ordered restitution, because the
act for which the defendant pled guilty—leaving the scene of an accident—was
not directly related to the victim’s death. Id. at 196-97. The defendant did
not admit that he was criminally responsible for the victim’s death, nor was
he charged with any offense that would have held him criminally responsible
for the death. Id. at 197.
Appellant also relies on Commonwealth v. Reed, 543 A.2d 587 (Pa.
Super. 1988), wherein the defendant was convicted of receiving stolen
property worth not more than $480.00, but was not charged with the burglary
in which the stolen items had been taken. Id. at 588-89. The trial court
imposed restitution of more than $12,000.00, representing the total loss
sustained by the victim of the underlying burglaries. We held the restitution
award was improper, as there was no causal connection between the victim’s
total losses and the small amount of stolen property the defendant received.
Id. at 589.
In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008) (en
banc), the victim accused the defendant of raping her. A jury acquitted the
defendant of all felony and misdemeanor charges, but the trial court found
Appellant guilty of harassment. Id. at 460. The trial court also ordered
Appellant to pay $600.00 in restitution to the victim to compensate her for
-4- J-A18001-18
replacing the couch on which the assault allegedly occurred. Id. This Court
held the restitution portion of the sentence illegal because there was no direct
nexus between the harassment conviction (for slapping the victim) and the
victim’s disposal of the couch. Id. at 465.
Finally, in Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992), the
defendant pled guilty to two counts of interfering with the custody of children.
She took her children from their father’s custody in Harrisburg, Pennsylvania
to Louisiana. Id. at 703. The sentencing court ordered her to make restitution
for the expenses the father incurred for investigators, legal fees, and travel.
Id. Our Supreme Court noted that Section 1106 applies only where property
is stolen, converted, unlawfully obtained, or where its value is substantially
decreased. Id. at 705. The defendant was not convicted of any crime that
involved stealing or damaging her husband’s property, and therefore
restitution was improper under Section 1106.3
We find each of the foregoing cases inapposite. Instantly, the jury found
Appellant guilty of simple assault and REAP. Simple assault occurs where the
defendant “attempts to cause or knowingly, intentionally or recklessly causes
bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). In response to an
interrogatory, the jury found that the victim suffered serious bodily injury.
____________________________________________
3 The Supreme Court found the restitution order supportable as a condition of probation or parole pursuant to 42 Pa.C.S.A. § 9754. Id. at 707. Section 9754 is not at issue in the present matter.
-5- J-A18001-18
Given the facts of record—that Appellant approached the victim from behind
and punched him in the back of the head, leaving him unconscious and lying
on the sidewalk—there is an obvious direct causal connection between
Appellant’s simple assault conviction and the victim’s injury. Appellant’s
reliance on Cooper, Reed, Barger, and Harner is therefore misplaced.
Moreover, Appellant’s acquittal on the robbery and aggravated assault
charges does not undermine our conclusion. The acquittal on the more serious
charges do not eliminate the direct causal connection between the simple
assault conviction and the victim’s injuries. Appellant’s argument lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/31/18
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