text:
    666 A.2d 288
    Joseph BURKE, t/d/b/a Audio Video Concepts v. Bryan L. YINGLING, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1995.
    Filed Sept. 7, 1995.
    Reargument Denied Nov. 13, 1995.

      Eric L. Winkle, Lancaster, for appellant.
    Dean F. Piermattei, Harrisburg, for appellee.
    Stephen M. Hladik, Harrisburg, amicus curiae.
    Before ROWLEY, President Judge, and McEWEN and BECK, JJ.
   BECK, Judge:

In this case, we are asked to decide whether a transaction involving the purchase of a custom audio/video system by appellant, Bryan L. Yingling, M.D. (“Buyer”), from appellee, Joseph Burke, t/a, d/b/a, Audio Video Concepts (“Seller”), falls within section 201-7 of the Unfair Trade Practices and Consumer Protection Law, Pa.Stat.Ann. tit. 73, § 201-7 (1993) (the “UTPCPL”).

Section 201-7 provides, in pertinent part:

(a) Where goods or services having a sale price of twenty-five dollars ($25) or more are sold or contracted to be sold to a buyer, as a result of, or in connection with, a contact with or call on the buyer at his residence, that consumer may avoid the contract or sale by notifying, in writing, the seller within three full business days following the day on which the contract or sale was made and by returning or holding available for return to the seller, in its original condition, any merchandise received under the contract or sale. Such notice of rescission shall be effective upon depositing the same in the United States mail or upon other service which gives the seller notice of rescission.
(b) At the time of the sale or contract the buyer shall be provided with:
(1) A fully completed receipt or copy of any contract pertaining to such sale, ... and in immediate proximity to the space reserved in the contract for the signature of the buyer ... a statement in substantially the following form:
“You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction.....”
(e) The cancellation period provided for in this section shall not begin to run until buyer has been informed of his right to cancel....

Since this is an appeal from an order granting summary judgment for Seller, our review is plenary. We must determine whether the uncontroverted allegations of the pleadings and the other permissible materials filed in support of and in opposition to the motion reveal that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Briggs v. Erie Ins. Grp., 406 Pa.Super. 560, 594 A.2d 761 (1991); Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989), appeal denied, 524 Pa. 629, 574 A.2d 70 (1990). See also Pa.R.Civ.P. 1035(b). In making this determination, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

Although the record reveals no genuine issue as to the material facts, we reverse the trial court because the movant, the seller, was not entitled to judgment as a matter of law. The record facts are that some time prior to May 5, 1991, Buyer contacted Seller to discuss purchasing a customized audio video system for Buyer’s home. Buyer and Seller then met at Buyer’s home to discuss the transaction. The parties continued to negotiate concerning the purchase of the system over the next few months. At least one more meeting between the parties concerning the transaction occurred at Buyer’s home.

On July 30, 1991 the parties executed a contract providing for the sale and installation of the system. The initial contract price was $21,533.82. The contract did not include the -written notice of the Buyer’s right to cancel as required by section 201-7. Over the course of several months, Seller installed the system in Buyer’s home. Buyer made payments totalling $19,500.22 in this period. However, Buyer stopped making payments when he became dissatisfied with the work being performed. In March 1992 Buyer sent Seller written notice that Buyer wished to cancel the transaction pursuant to section 201-7 quoted above.

In July 1992 Seller commenced this action against Buyer. Seller sought to recover both the balance of the original contract price, plus an additional $3,295 for extra work Buyer had allegedly requested that Seller perform. Buyer answered by denying that any further amounts were due because of the inadequacies of the system and filed a counterclaim in which he invoked the provisions of section 201-7. The parties ultimately filed cross motions for summary judgment on Buyer’s counterclaim under the UTPCPL. On June 14, 1995 the trial court entered an order denying Buyer’s motion, granting Seller’s motion and dismissing Buyer’s UTPCPL counterclaim. Buyer then filed a motion requesting that the trial court amend the order pursuant to new Rule of Appellate Procedure 341(c), which provides:

(b) Definition of Final Order. A final order is ...:
(3) any order entered as a final order pursuant to subsection (c) of this rule.
(c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered.....
(1) An order may be amended to include the determination of finality within 30 days of entry of the order. A notice of appeal or a petition for review may be filed within 30 days after entry of an order as amended____

When the trial court initially entered its order granting summary judgment for Seller on Buyer’s counterclaim, the order did not include a determination of finality and was, therefore, interlocutory. However, after consideration of Buyer’s motion to amend the order under rule 341(c), the trial court, within the 30 day period provided in the rule, amended the order to include the finality determination. Buyer timely appealed from the now final and appealable amended order.

In granting summary judgment for Seller on Buyer’s counterclaim, the trial court concluded that section 201-7 of the UTPCPL did not apply to the transaction at issue in this case because it was not a transaction involving a door-to-door salesman who visits a consumer at his or her home and consummates a sale before the consumer has adequate time to reflect. The court reasoned that since Buyer is a sophisticated consumer who himself initiated contact with Seller and who conducted lengthy negotiations over the purchase of a very expensive product, Buyer is simply not the type of consumer that section 201-7 seeks to protect. The court found little or no significance to the fact that Seller made repeated contacts with Buyer at Buyer’s home. The court reasoned that these contacts were necessary for the Seller to be able to customize the audio visual system to Buyer’s home.

We find that the trial court’s rationale has considerable appeal. However, we reluctantly conclude that the broad language of UTPCPL does not support the trial court’s rationale or decision.

There is no question but that a fair reading of the language of the statute compels the conclusion that Buyer is entitled to the protections of section 201-7. The statute affords the right to cancel to any consumer who agrees to purchase goods or services with a value of $25 or more “as a result of or in connection with” contact between the seller and the consumer at the consumer’s home. The statute provides for no exceptions.

The Buyer in this case falls precisely within this language. Here, Seller expressly admitted in his answer to Buyer’s counterclaim that Seller engaged in repeated contacts with Buyer at his home and that the sale of the audio visual system either resulted from or was consummated in connection with those contacts. The value of the system clearly exceeded the statutory minimum of $25.

The statutory language provides protection to all buyers where the seller “makes a contact with or call on the buyer at his residence!)]” ' It is unfortunate, but this legislative language clearly provides a right to cancel to all buyers even if the buyer is sophisticated, in no way deceived or pressured by. the Seller, and takes adequate time to reflect before agreeing to the transaction. We apply the statutory language as written and it is for the legislature to modify the language if it intended to protect a more limited class of consumers.

The general purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices. Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 413 Pa.Super. 308, 605 A.2d 373 (1992) appeal denied, 532 Pa. 665, 616 A.2d 985 (1995). As the trial court found, section 201-7 appears to be primarily directed to providing protection to a consumer who falls prey to a seller who contacts the consumer at his or her home and consummates a sales transaction before the consumer has adequate time to reflect on the wisdom of the purchase. In order to guarantee that the consumer will not be obligated to proceed with the transaction until he or she has adequate time to reflect, the statute provides a three day period in which the buyer may cancel without incurring any obligation.

We agree with the trial court that it would not appear that the Buyer in this case was in need of any special protection from' Seller. There' is no evidence that Buyer was compelled to purchase the audio visual system because of high pressure sales tactics employed by Seller at Buyer’s home. However, the issue presented for decision is not whether we consider Buyer to be deserving of the protections afforded by section 201-7. The issue is whether the. language of the statute as drafted by the legislature can be construed to afford a person in Buyer’s position the protections of the statute. If the statutory language, fairly construed, encompasses Buyer, then Buyer must be accorded the benefits of the statute whether we think he merits them or not.

In reaching this conclusion, we have fully considered the arguments made by the Office of the Attorney General in its brief filed as amicus curiae. The Attorney General, while taking no position on the disposition of this case, argues that this court should adopt a balancing test in applying section 201-7. This test would require that a court balance the following factors in analyzing whether section 201-7 applies to a particular transaction:

1. the amount of time that passed between the initial contact and the signing of the contract;
2. the place where the signing of the contract occurred;
3. who made the initial contact;
4. whether negotiations occurred and, if so, where;
5. the degree of skill exercised by the seller; and
6. the purpose of the seller in making the in-home contact.

The Attorney General argues that in utilizing this test, the court will be able to distinguish between those transactions that present a need for the protections of section 201-7 and those that do not. The Attorney General also directs our attention to the Federal Trade Commission regulation which provides a federal right to cancel similar to that provided by section 201-7. 16 C.F.R. § 429.1.

Although we agree that an analysis of the foregoing factors would indeed be helpful in determining whether a particular buyer was in need of the protection offered by the section 201-7 right to cancel, we must reiterate that this is not the inquiry before us. The statute itself simply does not permit us to engage in this analysis. The legislature has used clear language. In doing so, the legislature did not exclude transactions where negotiations occurred, or where the initial contact was made by the buyer, or even where a consideration of all the foregoing factors argued against application of section 201-7.

Lastly, we must point out that a comparison of the language of the federal right to cancel regulation with the language of section 201-7 lends even further support to our broad reading of the Pennsylvania statute. First, the federal right to cancel regulation is expressly applicable only to “door-to-door” transactions. Id. Moreover, the federal right to cancel is expressly inapplicable to a list of transactions including, for example, transactions consummated entirely by mail or telephone and transactions where the buyer contacts the seller and requests that he come to the buyer’s home to repair personal property. Id. note 1. In contrast, the Pennsylvania right to cancel provision does not specifically refer only to “door-to-door” transactions, and there are no specifically exempted transactions. If the Pennsylvania legislature intended to limit the applicability of section 201-7, it must do so expressly, as Congress did.

We find no language in the statute that permits us to exclude the transaction between Buyer and Seller from the scope of section 201-7. Thus, we must reverse the trial court’s entry of summary judgment in favor of Seller on Buyer’s counterclaim.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Shortly after disposition of the summary judgment motions, the parties entered into a stipulation in which they agreed that they would not proceed to a trial of the remaining issues in the case and would instead pursue the pending appeal of the trial court’s order granting partial summary judgment for Seller. They further agreed that pending the disposition of the appeal, Buyer would escrow the remaining amounts Seller claimed to be due. Lastly, the parties agreed that if this court holds that the UTPCPL applies to this transaction, Buyer will retain the system as installed and will receive a refund of the amounts he has thus far paid Seller. If this court holds to the contrary, however, Buyer will release to Seller the escrowed funds. In either event, the parties stipulated that the balance of the action will be marked settled, discontinued and ended. Thus, this court’s disposition of the issue raised in this appeal will finally resolve the entire dispute between the parties.


source: Caselaw Access Project

author: CAVANAUGH, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    666 A.2d 292
    COMMONWEALTH of Pennsylvania v. Felix Antonio ROSARIO-HERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1995.
    Filed Sept. 20, 1995.

      John Elder, Assistant Public Defender, Reading, for appellant.
    Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

This is an appeal from the judgment of sentence of seven (7) to fifteen (15) years imprisonment, imposed following appellant being found guilty as an accomplice to the crimes of voluntary manslaughter, aggravated assault (serious bodily injury), aggravated assault (deadly weapon), and recklessly endangering another person. The charges in this case arose from a shooting incident in Reading, Pennsylvania, in which appellant was the driver of the getaway car. After careful review, and for the reasons which follow, we affirm appellant’s convictions, but vacate the trial court’s judgment of sentence and remand for resentencing.

The first issue raised by appellant is that the court erred in failing to suppress his statement to police, where he was arrested without probable cause and his statement was the fruit of the illegal arrest. Appellant proffers three arguments that probable cause was'lacking: 1) that the police information placing him at the scene was based on hearsay; 2) that the reliability of the witnesses upon which the police relied was not established; and 3) that the information provided to police only established that he was present at the scene.

When reviewing the ruling of a suppression court,

we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985).

Appellant did not present evidence at the suppression hearing and does not contest the facts surrounding his arrest. His contention is that the suppression court’s decision was based upon an erroneous legal conclusion. Thus, we need only determine whether the facts support the conclusion that the arrest of appellant was supported by probable cause.

Probable cause for a warrantless arrest exists if the facts and circumstances within the the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Quiles, 422 Pa.Super. 153, 166-67, 619 A.2d 291, 298 (1993). In determining whether probable cause existed for a warrant-less arrest in a particular situation, a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer. Id. The reliability of information provided to police can be verified in a number of ways, including: where the police are able to provide independent corroboration of the information, or where the information is adverse to the individual’s penal interest. In the Interest of J.H., 424 Pa.Super. 224, 228, 622 A.2d 351, 353 (1993).

Viewing the facts within the knowledge of the arresting officer, we conclude that he was warranted in believing that appellant had been involved in the commission of a crime. Several police officers, including the arresting officer, interviewed a number of people regarding the shooting incident. Two people, who both witnessed the shooting, told police that they saw a Hispanic male fire shots on Franklin Street and then run to a nearby vehicle (one of the witnesses described it as a big red car) driven by another Hispanic male, which then sped away. A third eyewitness told police that he saw the shooter get out of a red Cadillac and the passenger slide over into the driver’s seat. The shooter walked onto Franklin Street and fired several shots at two individuals, then reentered the Cadillac which sped away.

In addition to these three eyewitnesses, several other individuals provided information to police. Nasser Abdellah, who lived with the shooter and appellant at 514 South Eleventh Street, told police that the shooter and appellant had left the house together the day of the shooting and returned together a half hour later. He further revealed that upon returning, the shooter told him that he had shot the victim. Abdellah also told police that he agreed to take the shooter to Philadelphia, and that they left appellant at the residence.

Another individual, Carmello Heyere, told police that his car had been used in the shooting, and that he was at appellant’s residence when appellant and the shooter returned after the incident. The shooter advised Heyere that he and appellant had used the red Cadillac to go to and from the shooting and that he had shot a man on Franklin Street. Heyere also told police that appellant was called “Shorty”.

Finally, while the police were interviewing Heyere’s girlfriend, she received an anonymous phone call. The caller stated that the driver of the shooter’s car was at 514 South Eleventh Street (appellant’s residence) and goes by the name of “Shorty”. The caller also gave a physical description of appellant. Heyere’s girlfriend relayed this information to the police.

Based upon all of the information learned by police, we conclude that the Commonwealth did more than place appellant at the scene. Viewed objectively, this information connected him with the shooter in circumstances which made it probable that he was involved with the shooter and/or had acted in concert with him. The information provided by secondary witnesses was also reliable in that it was corroborated to a large degree by eyewitnesses (red Cadillac involved in shooting; two Hispanic males were involved — one was the shooter, the other was the driver), and one of the secondary witnesses proffered information which was adverse to his penal interest (Abdellah helped shooter flee to Philadelphia). Finally, appellant has failed to offer, nor are we aware, of any authority which prohibits the use of hearsay, especially in a case, such as this one, where the information was relayed through other police officers. Of necessity, a determination of probable cause, whether by magistrate or by a police officer, will in many cases require the police to rely on information learned from others. It is for this reason that the reliability of individuals providing information is examined. We remind appellant that the officer need only possess sufficient facts such that a person of reasonable caution would believe that a crime had been committed and that appellant wa's involved. In this case, the arrest of appellant was supported by an abundance of probable cause.

The second issue raised by appellant is that the evidence was insufficient to support his convictions as an accomplice to voluntary manslaughter, two counts of aggravated assault and recklessly endangering another person. Specifically, appellant argues that there was no evidence that he was aware of the intentions of the shooter, and that his actions were more consistent with innocence than guilt.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ”

Commonwealth v. Shoup, 423 Pa.Super. 12, 16, 620 A.2d 15, 17 (1993) (citations omitted). Both direct and circumstantial evidence must be considered in determining whether the Commonwealth has proved all of the elements of the offenses charged beyond a reasonable doubt. Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd., 531 Pa. 42, 611 A.2d 175 (1992).

As noted supra, appellant was found guilty as an accomplice in the shooting incident. A person may be held criminally liable as an accomplice, “if with the intent of promoting or facilitating the commission of the offense, he aids or agrees or attempts to aid such other person in planning or committing it.” 18 Pa.C.S.A. § 306(c)(1)(ii). The least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Calderini, 416 Pa.Super. 258, 263, 611 A.2d 206, 208 (1992).

The evidence produced at trial established the following. A red Cadillac driven by the shooter, and in which appellant was a passenger, was sitting at a traffic light at Ninth and Franklin Streets. The two men inside were conversing. The shooter then got out of the car and appellant immediately slid over into the driver’s seat and put the car in gear. The shooter walked a short distance down Franklin Street and fired several shots at two men. Meanwhile, appellant drove the Cadillac through the traffic light at Ninth and Franklin Streets. As the Cadillac proceeded through the intersection, the driver (appellant) was looking back out the window in the direction of the shooter, and the wheels of the Cadillac were scraping against the curb on the far side of the intersection. After firing several shots, and fatally wounding the victim, the shooter returned to the Cadillac, got in the passenger side, and the car sped off. Viewing this evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in its favor, we conclude that the evidence was more than sufficient to establish that appellant aided the shooter with the intent to facilitate the killing and assault of the victim.

The third issue is whether the court erred in failing to charge the jury with appellant’s requested points for charge, regarding culpability as an accessory after the fact.

In reviewing jury instructions in order to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls. A trial court is not required to accept requested instructions verbatim. The key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.

Shoup, supra, at 22, 620 A.2d at 20. After reviewing the record in this ease, we find no merit to appellant’s argument. Appellant had been charged as an accomplice and not as an accessory after the fact. The facts surrounding appellant’s conduct, as outlined supra, fully support a finding of criminal culpability as an accomplice, but do not support nor warrant an instruction regarding accessory after the fact. As such, it was only required that the trial court correctly instruct the jury regarding accomplice liability. Our review of the charge convinces us that the trial court correctly instructed the jury and that its instructions were adequate to guide them in their deliberations. See Calderini, supra (where defendant is charged as an accomplice, and facts support such a charge, an instruction regarding liability as an accessory after the fact is not necessary). As such, this argument lacks merit.

Finally, appellant contends that the court erred in sentencing him for both aggravated assault and voluntary manslaughter, because aggravated assault is a lesser included offense of voluntary manslaughter. Despite the fact that it would appear to be compellingly logical to conclude that a single act which results in a manslaughter must, necessarily, encompass the lesser constituent act of assault which is a part thereof, we are obliged under Pennsylvania Law to undertake a more tortuous analysis.

In Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), modified, 539 Pa. 476, 653 A.2d 615 (1994), our supreme court examined the question of whether the offenses of aggravated assault and attempted murder merge at sentencing. In clarifying when criminal offenses will merge for sentencing purposes, the court held:

[I]n all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. “The same facts” means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter; or multiple criminal plans, schemes, transactions or encounters.

The court went on to state that:

Our inquiry, ..., is whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.

Id. at 582, 650 A.2d at 22-24. Thus, we must determine whether the elements of aggravated assault are included within the elements of voluntary manslaughter.

Aggravated assault is codified at 18 Pa.C.S.A. § 2702. This section provides, in pertinent part, as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S.A. § 2702(a)(1). Voluntary manslaughter is codified at 18 Pa.C.S.A. § 2503. This section provides, in pertinent part, as follows:

(a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed.

18 Pa.C.S.A. 2503(a)(1). The requisite act for voluntary manslaughter, the killing of another individual, coincides with and includes the act which is necessary to establish aggravated assault, the infliction of serious bodily injury. See 18 Pa.C.S.A. § 2301; Anderson, supra (“It is tautologous that one cannot kill without inflicting serious bodily injury.”).

A more difficult question is posed as to whether the intent necessary to establish voluntary manslaughter, a specific intent to kill, is greater than and necessarily includes the intentional, knowing or reckless infliction of serious bodily injury, the intent required for aggravated assault. The trial court concluded that the offenses do not merge for sentencing purposes. In doing so, it reasoned that malice, which is a required element of aggravated assault, is specifically excluded from the elements of voluntary manslaughter, which requires a specific intent to kill, but by reason of passion and provocation, contains no legal malice. Thus, the question we must resolve is whether the mens tea for voluntary manslaughter, the specific intent to kill, but in the absence of malice, nonetheless subsumes the mens rea for aggravated assault, which requires malice.

It appears that our courts have never previously addressed this question. However, other cases, which have addressed merger issues, are useful for purposes of our analysis. In Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981), our supreme court held that simple assault was subsumed within all the grades of homicide. In so concluding the court broadly stated “[i]t is clear that assault is a constituent element of all the grades of homicide and does not require proof of a fact that the various grades of homicide do not.” Id. at 119, 445 A.2d at 96.

Contrary to the supreme court’s broad assertion, a panel of this court, in Commonwealth v. Lopez, 426 Pa.Super. 625, 627 A.2d 1229 (1993), held that a conviction for aggravated assault did not merge with a conviction for involuntary manslaughter. The court reasoned that malice, which is a required element of aggravated assault, was not a required element of involuntary manslaughter. In reaching its conclusion, the court focused on the degree and type of recklessness required for the respective offenses, and stated:

[Although both crimes may involve a degree of recklessness, the reckless conduct involved in aggravated assault, unlike that included in the definition of involuntary manslaughter, is of such a degree that it gives rise to an inference of malice. As the element of malice is absent in involuntary manslaughter, aggravated assault under 18 Pa.C.S. § 2702(a)(1) cannot be a lesser included offense of involuntary manslaughter.

Id. at 629, 627 A.2d at 1231. The court did not examine the intentional or knowing infliction of serious bodily injury, and whether these mental states would be subsumed within the requisite mental state for involuntary manslaughter. Even from a cursory comparison, however, it is clear that they would not be subsumed, as an intentional or knowing mens rea is greater than one which is merely reckless or grossly negligent.

In the present case, unlike Lopez, we are faced with determining if two offenses, both of which have specific intent elements, will merge for sentencing purposes. Although Lopez has undercut the supreme court’s broad assertion in Zimmerman, its merger analysis is not dispositive in the present case. Thus, our resolution of this issue will turn on the specific elements of the offenses at issue in this case.

After reviewing the statutory definitions of both offenses, we are unable to agree with the trial court’s conclusion that the these offenses do not merge. Voluntary manslaughter requires a specific intent to kill. Even though this intent is not malicious, Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979), we, nonetheless, conclude that a specific intent to kill is greater and necessarily subsumes a specific intent to do bodily harm, even where the latter intent is malicious. In comparing the intent requirement of these two offenses, it is necessary to include the focus of the intent. Having done so, it is clear that the intent to kill must include the intent to do a lesser degree (bodily harm or serious bodily harm) of damage. As such, the two offenses merge for sentencing purposes and the sentence for aggravated assault and voluntary manslaughter must be vacated.

Appellant’s convictions as an accomplice to the crimes of voluntary manslaughter, aggravated assault (serious bodily injury), aggravated assault (deadly weapon), and recklessly endangering another person, are affirmed. The judgment of sentence is vacated, and the case is remanded to the trial court for resentencing.

OLSZEWSKI, J. files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

We enthusiastically join the majority’s disposition of appellant’s first three claims, but must respectfully dissent from the majority’s treatment of the final claim regarding the merger of the crimes of aggravated assault and voluntary manslaughter.

As the majority notes, our Supreme Court recently clarified the law surrounding merger. See Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), modified, 539 Pa. 476, 653 A.2d 615 (1994). In Anderson, the Supreme Court wrote:

Our inquiry ... is whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.

Id. at 582, 650 A.2d at 24 (footnotes omitted). After reviewing Anderson, the majority concluded that the two crimes at issue here merge because all of the elements of aggravated assault are subsumed in the requirements of voluntary manslaughter. See majority opinion at 39. Since we find that malice is a requisite element of aggravated assault that is not present in voluntary manslaughter, we must disagree with the majority’s conclusion that these crimes merge.

Voluntary manslaughter is “the intentional killing of another, without malice aforethought, but in a sudden heat of passion caused by adequate legal provocation.” Commonwealth v. Garcia, 370 Pa.Super. 132, 138, 535 A.2d 1186, 1189, appeal denied, 519 Pa. 652, 546 A.2d 57 (1988). See also 18 Pa.C.S.A. § 2503. While this crime does require a specific intent to kill, it is an intent devoid of malice. E.g., Garcia, 370 Pa.Super. at 138-39, 535 A.2d at 1189. Rather than being driven by cruelty or hardness of heart, the actor in a case of voluntary manslaughter is driven by the heat of passion arising out of legal provocation or an unreasonable belief in the need for self-defense. Id. This absence of malice distinguishes voluntary manslaughter from other categories of homicide, and therefore serves as a defining element of the crime. See Commonwealth v. Smouse, 406 Pa.Super. 369, 379, 594 A.2d 666, 671 (1991) (“It has long been clear that malice is an essential element of third-degree murder and is the distinguishing factor between murder and manslaughter.”); Garcia, 370 Pa.Super. at 138, 535 A.2d at 1189 (“Consequently, absence of malice is the critical determinant of culpability [for voluntary manslaughter], and the jury must be satisfied that the death was not the consequence of the actor’s hardness of heart or careless disregard for human life.”).

An aggravated assault occurs when one “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). It is well-established that this crime requires both the specific intent to commit serious bodily injury and the existence of malice. E.g., Commonwealth v. Lopez, 426 Pa.Super. 625, 627-29, 627 A.2d 1229, 1230 (1993). Thus, a defendant can only be found guilty of aggravated assault if he or she acted with a “wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Id. at 628, 627 A.2d at 1230 (citations omitted).

After examining and comparing the elements of these two crimes, we find that the malice requirement in aggravated assault precludes it from merging with voluntary manslaughter. The majority’s statement on page 39 of its Opinion that “the intent to kill must, include the intent to do a lesser degree ... of damage” ignores the element of malice. When malice is accounted for, the equation looks much different: the intent to kill out of passion does not necessarily subsume the intent to do serious bodily injury out of cruelty or hardness of heart.

Our conclusion that these two crimes do not merge is supported by this Court’s decision in Lopez. In that case, we held that aggravated assault would not merge with involuntary manslaughter because “[mjalice is a required element of aggravated assault but not involuntary manslaughter.” Lopez, 426 Pa.Super. at 628, 627 A.2d at 1230. The same analysis applies to voluntary manslaughter, which also lacks the element of malice.

Since our legislature has seen fit to create a manslaughter category of homicide that is legally distinguishable from murder, and has used malice to differentiate the two, we must respect the legal significance of the element of malice. Unless and until the legislature creates a lesser category of aggravated assault, which is characterized by the absence of malice, the crime of aggravated assault should not merge with the manslaughter categories of homicide.

On this issue, therefore, we agree with the trial court that these two crimes should not merge. Accordingly, we would affirm appellant’s judgment of sentence in its entirety.

      . We note that the shooter fired shots at two individuals who were standing together on the street. Only the victim was hit. The other individual escaped injury. The crimes of which appellant was convicted as an accomplice all related to the killing and assault of the victim and not the other individual.

      . Criminal liability for being an accessory after the fact is imposed by 18 Pa.C.S. § 5105, which provides as follows:
      § 5105. Hindering apprehension or prosecution.
      (a) Offense defined. — A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
      (1) harbors or conceals the other;
      (2) provides or aids in providing a weapon, transportation, disguise, or other means of avoiding apprehension or effecting escape;
      (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
      (4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or
      (5) volunteers false information to a law enforcement officer;
      (b) Grading. — The offense is a felony of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor of the second degree.

      . We again note that the crimes for which appellant was convicted as an accomplice all involved a single victim. As such, the offenses of aggravated assault and voluntary manslaughter may merge at sentencing.

      . We note that this result produces the anomaly of a first degree felony, aggravated assault, merging into the lesser offense of voluntary manslaughter, a second degree felony. This same situation, however, occurred in Anderson, supra, where the court held that aggravated assault, a first degree felony, merged into attempted murder, a second degree felony. Although we have previously stated, in Commonwealth v. Lopez, 426 Pa.Super. 625, 627 A.2d 1229 (1993) and Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992), rev'd, 538 Pa. 574, 650 A.2d 20 (1994), that a lesser offense could not be graded higher than the offense into which it supposedly merged, our supreme court’s decision in Anderson has effectively overruled this conclusion. Thus, our decision is consistent with the merger analysis most recently pronounced by our supreme court in Anderson.

      . In Anderson, supra, the supreme court originally vacated only the trial court’s sentence for aggravated assault. However, it subsequently modified its decision and vacated appellant’s entire sentence, and remanded for resentencing. We note that Justice Castille, in the concurring opinion he filed with the original decision in Anderson, pointed out that on remand the trial court could reconsider the entire sentence because the supreme court’s ruling altered the trial court's original sentencing scheme. See Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986). Thus, on remand, the trial court may reconsider its entire sentence of appellant, although it may not impose a sentence for both aggravated assault and voluntary manslaughter.


author: FORD ELLIOTT, Judge: BROSKY, Judge:

text:
    666 A.2d 301
    COMMONWEALTH of Pennsylvania v. Richard L. WALKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1994.
    Filed Sept. 29, 1995.

      Thomas R. Ceraso, Greensburg, for appellant.
    Bradley K. Hellein, Assistant District Attorney, Kittanning, for Commonwealth, appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence of January 25, 1994, entered in the Court of Common Pleas of Armstrong County. We affirm in part, vacate in part, and remand for resentencing.

Appellant pled guilty to driving “while under the influence of alcohol to a degree which renders the person incapable of safe driving!,]” and driving “while the amount of alcohol by weight in the blood of the person is 0.10% or greater!.]” These charges arose from a two-car collision in which two occupants of the other vehicle were severely injured. Following the accident, the investigating officer, Chief Roofner of the Gilpin Township Police Department, noticed a strong odor of alcohol on appellant’s breath, and asked appellant to submit to a blood alcohol test. Appellant agreed. The test revealed that appellant had a blood alcohol content of .348%.

At the sentencing hearing, appellant argued that he should not be sentenced under the enhanced sentencing guideline applicable when serious bodily injury is involved. In support of his argument, appellant relied upon this court’s decision in Commonwealth v. Gallagher, 430 Pa.Super. 457, 634 A.2d 1147 (1993), for the proposition that in order to implement the enhanced sentencing guidelines under § 303.5, the court must find that the DUI violation was the cause of the resulting serious bodily injury. We agree with appellant’s interpretation of the rule. It is in the application of this rule to the facts of the case before us that we disagree.

When reviewing whether the evidence supports application of a sentencing enhancement provision, this court has held that a preponderance of the evidence standard is appropriate and does not violate due process, since the provision that allows for the enhancement is not an element of the crime charged. Commonwealth v. McKeithan, 350 Pa.Super. 160, 162-170, 504 A.2d 294, 296-299 (1986). While McKeithan addressed a weapons enhancement provision, we see no distinction in the case before the court, since causing serious bodily injury is not an element of the crime with which appellant was charged. The trial court was therefore required to find by a preponderance of the evidence that appellant’s driving while intoxicated caused the victims’ injuries. A review of the evidence before the court and the trial court’s findings is, therefore, appropriate.

Appellant maintained throughout the proceedings that the victims’ car came into his lane of travel, and that, as it did so, appellant stopped his vehicle. (Notes of testimony, 1/25/94 at 27, Presentence Investigation Report [PIR], 11/17/93 at 4.) The probation officer who prepared the PIR, when asked for his assessment of appellant’s version, stated:

My biggest problem with what Mr. Walker told me was that his blood alcohol level was .348. It’s difficult for me to determine if he really knew what was happening that day....

Notes of testimony 1/25/94 at 28. In addition, the report from the Pennsylvania Highway Safety Program, appended to the PIR, indicates that a blood alcohol content [BAC] of .34% results in “an exhibition of major impairment of all physical and mental functions; irresponsible behavior; general feeling of euphoria; difficulty in standing, walking, talking, distorted perception and judgment. If BAC reaches .50% a coma develops and by .60% death can result.” Clearly, there was evidence before the sentencing court that appellant’s driving was impaired to a degree that rendered him incapable of operating his vehicle safely. Indeed, this is the precise language of 75 Pa.C.S.A. § 3731(a)(1), one of the sections of the Code to which appellant pled guilty. Section 3731(a)(1) provides:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving.

Thus, by pleading guilty to this section, appellant has admitted that he was incapable of safe driving.

In addition, the PIR contains a statement from Officer Roofner, the first police officer to reach the scene of the accident, that “it [was] his opinion that the victim’s vehicle did cross the center line in an attempt to avoid a head on collision with the defendant’s vehicle which was in the wrong lane.” (PIR, 11/17/93 at 2.)

The PIR also includes the results of an interview between the probation officer conducting the presentencing investigation and Linda Colanduoni, the victim who suffered the worst injuries, including injuries to her head. According to the PIR, Ms. Colanduoni told the probation officer that as she and her husband and child came around the bend, “the [appellant’s] car was in their lane.... [T]he accident happened so fast that she does not know exactly what happened next however, her husband did try to avoid the collision.... [S]he places the blame for this accident solely on [appellant].” (PIR, 11/17/93 at 2-3.) In addition, in a letter to the court from Ms. Colanduoni, appended to the PIR and made a part of the record, Ms. Colanduoni stated: “On July 15, 1992 my family and I were inolved [sic] in an accident caused by a drunk driver. His name is Richard Walker.... I will never forgive Mr. Walker for what he has done to my entire family____ The entire episode Mr. Walker caused is an outrage____ I feel for what he has caused me alone ... should cause him the fullest punishment the law allows.” (PIR addendum, 1/15/93.) At the sentencing hearing, however, Ms. Colanduoni testified that she told the probation office she had no recollection as to how the accident occurred. (See notes of testimony, 1/25/94 at 17-18.) Ms. Colanduoni also indicated at the hearing that her memory of other events was deteriorating as a result of her head injuries. Id. It was, of course, within the province of the sentencing court to believe all, part, or none of Ms. Colanduoni’s testimony. Commonwealth v. Hlatky, 426 Pa.Super. 66, 75-77, 626 A.2d 575, 580 (1993), alloc. denied, 537 Pa. 663, 644 A.2d 1200 (1994). It was, therefore, within the court’s discretion to give more weight to Ms. Colanduoni’s prior recollection of the accident than to her testimony at the sentencing hearing.

Based upon the foregoing evidence before the court, the sentencing judge found as follows:

I find that you [appellant] were intoxicated that night ... and that your intoxication caused your driving to be faulty, and that your driving was a substantial factor in the causing of this accident. I don’t believe that it was the sole factor; that there are other factors. I’m finding that it is a substantial factor.

Notes of testimony, 1/25/94 at 73-74.

The facts in the instant case are thus clearly distinguishable from the facts in Commonwealth v. Gallagher, supra. Gallagher pled guilty to Driving Under the Influence. He was then sentenced under the enhanced guidelines found at 204 Pa.Code § 303.5(b) to six to twenty-three months in prison because of the serious bodily injury sustained by a passenger in his car. In vacating the sentence and remanding for resentencing, this court held that, where Gallagher’s blood alcohol content was .13 per cent, and where the trial judge stated that he “[could] not make a definite finding as to what causation was as far as this accident was concerned,” Gallagher, supra at 462, 634 A.2d at 1150, there was not enough evidence of record to find that Gallagher’s drinking caused the accident.

Having found that the enhanced sentencing guidelines were appropriately applied by the trial court, we next address appellant’s contention tnat he was improperly sentenced within the aggravated range of the enhanced guidelines. In order to challenge a discretionary aspect of his sentence, appellant must have met the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. Rule 2119(f). Although appellant failed to include a concise statement of the reasons for challenging the discretionary aspects of his sentence prior to addressing the merits of the claims, he did, however, include in his “Statement of Questions Involved” a “Petition for Allowance of Appeal Relating to the Discretionary Aspects of Sentencing.” Despite the fact that the Commonwealth failed to object to the lack of a concise statement, this court may still quash the appeal for non-compliance if it determines that its review of appellant’s claim is significantly hampered by the lack of a concise statement. Commonwealth v. Smicklo, 375 Pa.Super. 448, 454-56, 544 A.2d 1005, 1009 (1988); Commonwealth v. Murphy, 405 Pa.Super. 452, 455 n. 5, 592 A.2d 750, 751 n. 5, (1991); Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599 (1990). It is clear in the case before the court that appellant has raised at least one substantial question by challenging whether the same factors that triggered the enhancement guidelines in the first place can also be used to sentence in the aggravated range. As review on appeal is not substantially impaired, we shall address the merits of appellant’s challenge.

Discretionary aspects of sentencing are reviewed on appeal for a manifest abuse of discretion. See Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). It is clear in the instant case that appellant has not demonstrated a manifest abuse of discretion on the part of the trial court. Appellant attempts to rely upon Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8 (1992), which held that the same mitigating factor that determined a defendant’s offense gravity score could not be used in deciding to sentence in the mitigating range. In Moore, the sentencing court not only gave defendant credit twice for the same mitigating factor, but also failed to take into account the numerous aggravating factors delineated in the PIR. Id. at 490-494, 617 A.2d at 12-13. As the Moore court stated:

‘In determining whether a particular sentence is “clearly unreasonable” or “unreasonable,” the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the “findings” upon which the trial court based its sentence.’

Id. at 491-492, 617 A.2d at 12, quoting Commonwealth v. Drumgoole, 341 Pa.Super. 468, 472-474, 491 A.2d 1352, 1354 (1985). In the instant case, the trial court had before it a PIR that recommended a minimum sentence of six (6) months, the point of overlap between the standard and aggravated ranges. The trial court also found that appellant had seriously injured more than one person, and that the injuries to one of the victims were of a permanent and totally debilitating nature. These were two of the three reasons the trial court gave for sentencing in the aggravated range. The third reason was appellant’s extraordinarily high blood alcohol content while operating a motor vehicle. (Notes of testimony, 1/25/94 at 74-75.)

In Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985), this court addressed the issue of whether a prior record, which was already taken into consideration in the sentencing guidelines by the prior record score, could also be used as a factor in sentencing appellant in the aggravated range. In deciding that the trial court had not abused its discretion, this court stated:

In this case, the sentencing judge did not rely solely on appellant’s prior record in deciding to sentence him within the aggravated range.

Id. at 224, 491 A.2d at 233 (emphasis added). In the instant case, as in Duffy, the trial court did not rely solely upon the factors that were necessary to sentence appellant under § 303.5. The trial court articulated three valid reasons for sentencing in the aggravated range. The fact that there were also mitigating circumstances' before the sentencing court, indicating that appellant had “mended his ways” since the accident, did not require the sentencing court to weigh those factors more heavily than the aggravating factors. As the sentencing judge stated to appellant during sentencing:

In [arriving at your sentence], I’ve considered your age, your background. I’ve considered all the things brought to my attention by virtue of the presentence investigation report and all its attachments. I’ve also considered all of the evidence, testimony and otherwise, presented to me today.

Notes of testimony, 1/25/94 at 72-73. It is clear that the sentencing court adequately and fairly considered all of the factors before it in determining appellant’s sentence. As a result, we find no abuse of discretion.

Finally, appellant argues that 1) restitution is not proper in a “drunk driving”' case; 2) restitution is not proper where there is insufficient evidence that the victim’s injuries directly resulted from the crime; and/or 3) the trial court erred in requiring restitution without first determining the actual amount of the victim’s loss. (Appellant’s brief at 13-14.) We note first, that, while appellant couches his restitution issue as an appeal to the discretionary aspects of his sentence, this court has long held that challenges to the appropriateness of a sentence of restitution are generally challenges to the legality of the sentence. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984) (the legality of a sentence of restitution is not a waivable issue and therefore, we must address appellants’ contention); Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982) (appellant raised a legal question regarding his sentence of restitution where appellant claimed that, because the victim was insured and received compensation from his insurer for the loss sustained, appellant could not properly be directed, as a part of his sentence, to make restitution); Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989), alloc. denied sub nom Commonwealth v. Reap, 525 Pa. 597, 575 A.2d 564 (1990) (appellants’ allegation that it was illegal for the lower court to impose restitution which included the victim’s pain and suffering raised a legal issue, and was not an appeal to the discretionary aspects of sentencing).

We note further, however, that, while challenges to the appropriateness of a sentence of restitution are challenges to the legality of the sentence, based upon the proposition that the court lacks jurisdiction to impose the sentence, Commonwealth v. Hartz, 367 Pa.Super. 267, 277-279, 532 A.2d 1139, 1144 (1987) (Cirillo, J. concurring); Commonwealth v. Harner, 402 Pa.Super. 472, 476 n. 8, 587 A.2d 347, 349 n. 8 (1991), reversed on other grounds, 533 Pa. 14, 617 A.2d 702 (1992), nevertheless, challenges alleging that a sentence of restitution is excessive under the circumstances have been held by this court to be challenges to the discretionary aspects of sentencing. Commonwealth v. Mathis, 317 Pa.Super. 362, 368-370, 464 A.2d 362, 366 (1983). We will, therefore, first determine which of appellant’s restitution issues are challenges to the legality of the sentence.

Appellant first claims that restitution does not apply to violations of the Motor Vehicle Code, and specifically to 75 Pa.C.S.A. §§ 3731(a)(1) et seq. Such a claim is clearly a challenge to the legality of the sentence, since appellant is alleging that there is no statutory basis for a sentence of restitution. Balisteri, supra at 151-153, 478 A.2d at 7 (where appellant claims there is no statutory basis for a sentence of restitution for emotional or mental disturbance caused by his criminal conduct, appellant has raised a question as to the legality of the sentence). We must, therefore, address the merits of appellant’s first claim.

This court has held on at least one prior occasion that restitution can be ordered in a situation such as the one presently before the court. Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979). In Fuqua, this court was confronted with an order of restitution entered after Fuqua lost control of his car and crashed into the victim’s house. Fuqua was found guilty of driving under the influence of alcohol following a non-jury trial during which Fuqua denied being intoxicated and testified that he'had not crashed into the victim’s house. Id. at 506-508, 407 A.2d at 25. As a result of Fuqua’s conviction, the judge sentenced Fuqua to one year of probation, and ordered him to make restitution to the owner of the house. On appeal from the sentence of restitution, this court analyzed the applicability of 18 Pa.C.S.A. § 1106 et seq. to a violation of 75 Pa.C.S.A. § 3731(a)(1). Section 1106 provides in pertinent part:

(a) General rule. — Upon conviction for any crime wherein property has been stolen ... 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 may be sentenced to make restitution in addition to the punishment prescribed therefor.
(b) Condition of probation or parole. — Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.

18 Pa.C.S.A. § 1106(a), (b) (emphasis added). In addressing the applicability of § 1106 to a violation of the Motor Vehicle Code, Judge Spaeth in Fuqua relied upon the trial court’s analysis:

‘... The basis of the defendant’s allegation is that driving under the influence of alcohol is not a crime punishable under Title 18. Rather, he argues, the crime is punishable under ... the Motor Vehicle Code. 75 Pa.C.S.A. 3731 deals with the offense of driving under the influence of alcohol. 3731(d) states:
“Penalty. Any person violating any of the provisions of this section is guilty of a misdemeanor of the third degree.”
Immediately following sub-section (d), the Code cross-references as follows:
“Misdemeanor of the third degree defined: See 18 Pa. C.S.A. Sec. 106.”
Section 106 simply defines Misdemeanor of the Third Degree. Nowhere in Title 75 is there a definition of a misdemeanor of the third degree or a punishment applicable thereto. Therefore it is clear that Title 75 defines the offense and Title 18 outlines the punishment. Thus, when Section 1106 defines a crime as an offense punishable under Title 18 and therefore, subject to an order for restitution, the Legislature has included driving under the influence of alcohol.’

Fuqua, supra at 510 n. 10, 407 A.2d at 27 n. 10, quoting lower court opinion at 1-2. We find this logic persuasive.

Appellant in the instant case next argues that for § 1106 to apply, there must be a determination of criminal responsibility for the injuries sustained. (Appellant’s brief at 13.) Once again, we find that appellant poses a challenge to the legality of the sentence of restitution. Commonwealth v. Reed, 374 Pa.Super. 510, 543 A.2d 587 (1988) (order of restitution requiring a defendant to make restitution for a loss which, according to the record, he did not cause, is illegal). We must, therefore, address appellant’s second restitution issue.

We note initially that appellant in Fuqua raised the same argument; he argued that, because the trial court had failed to make a finding on the record that the damage to the house was a direct result of appellant’s crime of driving under the influence, a sentence of restitution was improper. Fuqua, supra at 511-512, 407 A.2d at 28. This court disagreed, however, and held that, where the evidence was clear that the order of restitution was for the damages to the victim’s property, and where the lower court found that appellant did in fact collide with the house and cause the damage, the fact that the lower court failed to make a specific finding that the damage was a direct result of appellant’s drunk driving did not warrant vacating the sentence and remanding for resentencing. Id.

We find the case before us controlled by our prior holding in Fuqua. Although the evidence relied upon by the trial court did not arise during trial because of appellant’s guilty plea, nevertheless, in language quoted supra at the sentencing hearing, the court found that appellant’s driving while under the influence was a substantial factor in causing the injuries to the victims. (Notes of testimony, 1/25/94 at 72-73.) Just as this finding of causation supports the sentencing court’s decision to apply the enhanced sentencing guideline, it likewise supports the court’s decision to impose restitution.

We find appellant’s reliance upon Commonwealth v. Cooper, 319 Pa.Super. 351, 466 A.2d 195 (1983), and Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992), misplaced. In Cooper, a motorist struck and killed a young boy riding a bicycle. The motorist pled guilty, however, only to the lesser offense of leaving the scene of an accident. In deciding that restitution was improper, the court stated:

In other jurisdictions where this problem has arisen, it has been held that restitution is permissible only as to losses flowing from the conduct for which the defendant has been held criminally accountable. . . . In the Michigan case of People v. Becker, [349 Mich. 476, 84 N.W.2d 833 (1957)], ... the defendant pled guilty to unlawfully leaving the scene of an accident involving personal injury to two pedestrians. As a condition to the probation imposed by the court, it was ordered that defendant make restitution ... to the injured pedestrians. On appeal the Supreme Court of Michigan describing the facts before it related that ‘the criminal has been convicted of one charge, but his freedom from incarceration [i.e., the restitution condition attached to his probation] is related to another act, precedent in time, with respect to which neither criminal nor civil complaint has been made.’ The court vacated the restitution holding that:
[E]ven where imposition of the restitution requirement is held to be proper under the circumstances ... it can be imposed only as to loss caused by the very offense for which defendant [sic] was tried and convicted. As to other crimes or offenses there has been no fixing of his liability therefore in a constitutional sense.
Id. at 486, 84 N.W.2d at 838. The holding of the Becker court is grounded upon the rationale that a defendant is denied due process of law when the losses for which restitution has been imposed did not arise from the action for which defendant has been held criminally accountable. We share the constitutional concern of the Becker court as to the restitution before us, because appellant has not been held criminally accountable for the actions which resulted in the death of the accident victim.

Cooper, supra at 356-357, 466 A.2d at 197 (citations omitted) (emphasis in original).

Support for the Cooper holding is found in Harner, supra, a case in which a wife was ordered to pay restitution to her ex-husband for expenses he incurred tracking down and reclaiming his children, after wife violated a custody order and removed the children from her ex-husband’s home. In finding that wife could not be ordered to pay restitution, the Harner court stated:

Because this section [§ 1106] imposes restitution as part of a sentence, its penal character must not be overlooked and it would seem to us that restitution can be permitted under 18 Pa.C.S. § 1106 only as to losses for which the defendant has been held criminally accountable. This is in keeping with the well established principle that criminal statutes must be strictly construed....
In fact, the very words of the statute provide that it is applicable only upon conviction for a crime wherein property has been stolen, converted, unlawfully obtained or its value substantially decreased, or where the victim suffers personal injury directly resulting from a crime. No such crime has been committed here by Appellant. Unless the incidental costs Mr. Harner expended to locate his children have been made part of a criminal proceeding for which Appellant was convicted, it seems dubious to us that due process would permit a court to determine that these are losses that can be passed on to Appellant, as a sentence, under a theory that they flowed as a direct result of the crime for which Appellant was convicted.
... [The superior court and the Commonwealth argue for] a-strained reading of an otherwise straightforward statute which is directed at giving the trial court the ability to sentence a defendant for the damage caused by him in the commission of a crime. Thus, where one steals an automobile valued at $15,000 and during a high speed chase is involved in a wreck which damages the auto, reducing its value to $5,000, it would be appropriate, in addition to incarceration, upon conviction for theft, to require the defendant to pay the victim $10,000 for the loss of value to the auto. It is impossible to separate the actions of the theft from the damage done to the car and in this sense the decrease in value to the car is a direct result of the crime.

Id. at 19-20, 617 A.2d at 705.

Applying the analyses of the Cooper and Harner courts to the instant case, we find that it is impossible to separate appellant’s driving under the influence from the injuries resulting to the victims. The sentencing court found appellant’s criminal conduct, the drunk driving, to be a substantial factor in causing the victims’ injuries, as required by Harner. As a result, we find no abuse of discretion in the sentencing court’s imposition of restitution.

We must next, therefore, address appellant’s allegation that the sentencing court erred in imposing restitution without first determining the actual amount of the victims’ loss. (Appellant’s brief at 14.) We note first that, under the holding in Mathis, supra, challenges to appellant’s ability to make restitutionary payments, and to the amount of restitution ordered as speculative, are challenges to the discretionary aspects of appellant’s sentence. Id. at 372-374, 464 A.2d at 368. Nevertheless, in Reed, supra, this court, relying upon Balisteri, supra, held that an order of restitution that was not supported by the record was illegal. Reed, supra at 514, 543 A.2d at 589 (“In Commonwealth v. Balisteri, supra, this Court held that an order of restitution which was not supported by the record was illegal.”) Regardless which analysis we use, however, we note again that the Commonwealth failed to object to appellant’s failure to comply with the requirements of Tuladziecki, supra.

In addition, we find that appellant has at least raised a substantial question, arguing as he does that the sentence of restitution was not supported by the record. Commonwealth v. McLaughlin, 393 Pa.Super. 277, 290-293, 574 A.2d 610, 617-18 (1990) (a substantial question arises when appellant can show “actions by the sentencing court inconsistent with the sentencing code or contrary to the fundamental norms underlying the sentencing process ... ”), alloc. denied,, 527 Pa. 616, 590 A.2d 756 (1991), cert. denied, 502 U.S. 916, 112 S.Ct. 320, 116 L.Ed.2d 261 (1991). Accord, Hlatky, supra at 82, 626 A.2d at 583; Commonwealth v. Jones, 418 Pa.Super. 93, 99-100, 613 A.2d 587, 590 (1992), alloc. denied, 535 Pa. 615, 629 A.2d 1377 (1993). In the instant case, the statute in question, § 1106, requires that the sentencing court “consider the extent of injury suffered by the victim and such other matters as it deems appropriate.” 18 Pa.C.S.A. § 1106(c)(1). Since our review of this issue is not hampered by appellant’s failure to file a concise statement of reasons for challenging the discretionary aspects of his sentence, see supra, we will address appellant’s third argument regarding the sentence of restitution.

Appellant argues, and we agree, that the sentencing court abused its discretion by failing to determine for itself the extent of the victims’ losses. A careful review of the sentencing, hearing transcript reveals that the sentencing court improperly relied upon the adult probation officer’s findings as to the expenses for which the victims had not been compensated, in contravention of our holding in Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985) (trial court may not delegate to the county adult probation department the final determination as to any disputed amounts to be paid by defendant as restitution). In addition, we note the probation officer’s admission on the record that he “assumed” the amount labeled, “This balance for physician services has not been paid,” was the proper amount of restitution; there was no actual determination by that officer based upon his own review of the documents. (Notes of testimony, 1/25/94 at 30-31.) As a result, we find that the sentencing court failed to comply with the mandate of Harner, supra, that the sentencing court determine the amount of loss or damage caused, the amount of restitution appellant can afford to pay, and how it should be paid. Id. at 22-23, 617 A.2d at 707. See also Balisteri, supra at 155-157, 478 A.2d at 9 (since restitution is part of a criminal sentence, it must be supported by the record and the court must determine the loss or damages resulting from the defendant’s conduct; the amount of compensation the defendant can afford to pay; and how such amount should be paid). The trial court must make sure that any award made is not speculative or excessive. Fuqua, supra, at 508-510, 407 A.2d at 26. Furthermore, the sentencing court may be required to apportion the victims’ damages, having found that appellant was not the sole cause of the victims’ injuries. Balisteri, supra at 155-158, 478 A.2d at 9-10 (where trial court found that defendant’s conduct was a contributing factor in causing the harm, but gathered that other factors might also be involved, this court remanded for trial court to determine if apportionment were appropriate since no determination could be made from the record). Finally, the trial court must determine whether the amounts the victim was compensated by her medical insurance or appellant’s automobile insurance were properly excluded from the restitution. See, for example, Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982); Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989).

As a result of the foregoing, judgment of sentence is affirmed in part and vacated in part, and this case is remanded for resentencing on the issue of restitution. Jurisdiction is relinquished.

BROSKY, J. files a Concurring and Dissenting Opinion.

BROSKY, Judge:

concurring and dissenting.

I disagree with the majority’s conclusion that the evidence supported application of the sentencing enhancement. For this reason I dissent from that portion of the opinion and order.

The sentencing guidelines at 204 Pa.Code § 303.5 provide sentencing ranges to be applied for a DUI conviction “when one or more of the victims suffers serious bodily injury.” However, in Commonwealth v. Gallagher, 430 Pa.Super. 457, 634 A.2d 1147 (1993), we indicated that implementation of this sentencing provision was dependent upon a finding that the DUI violation was the cause of the resulting serious bodily injury and vacated a sentence where the evidence was speculative as to the cause. In the present case there is no question that serious bodily injury was sustained, however, the evidence adduced at the sentencing proceedings was quite minimal and did not establish, with any degree of certainty, that appellant’s intoxication caused the injuries sustained.

Appellant maintained throughout the proceedings that the victim’s car came into his lane of travel and that as it did so he stopped his vehicle within his lane at which time the victims’ vehicle struck his. Despite his persistent challenge to the basic factual premise underlying the implementation of an enhanced sentence, the Commonwealth presented no actual testimonial evidence relating to who or what caused the accident in question. Instead, to carry its burden, the Commonwealth apparently relies upon a pre-sentence report, which, essentially, is total hearsay.

The pre-sentence investigation contains the opinion of the investigating officer, Chief Roofner, that the appellant crossed into the victim’s lane of travel. However, the officer did not witness the collision and there is no indication in the report as to how this opinion was reached, and, of course, he did not appear at the sentencing to explain the basis of his “opinion.” The report further contains a version of events of one of the victims, Linda Colanduoni, indicating that as they came around the bend appellant’s vehicle was in their lane of travel and that she “places the blame for this accident solely on [appellant].” Unlike Chief Roofner, Ms. Colanduoni did testify at the sentencing hearing. However, she indicated she had no recollection of the accident. Thus, the trustworthiness of this version of what transpired is totally negated by her own testimony at sentencing.

Unfazed by the above the majority rehabilitates and supplements the Commonwealth’s evidence in an attempt to make it appear to be sufficient. At pages 3 and 4 of their opinion they supply information relating to the extent of appellant’s intoxication and the generally associated affects of that level of intoxication. The apparent purpose of this process is to allow the inference that since appellant was so drunk he must have caused the collision and his statements to the contrary cannot be trusted. Appellant’s intoxication and interest are certainly proper factors to consider in the weighing of his testimony. However, the sentencing court never made a credibility assessment, and the mere fact that appellant was intoxicated does not mean that he caused the accident in question. Next, the majority attempts to rehabilitate Ms. Colanduoni’s testimony by hypothesizing that as a result of the collision she had been gradually losing her memory of the accident so that at the time of sentencing she could not recall the accident at all. Thus, they argue, the version contained in the pre-sentence report should be credited above her sentencing testimony. This hypothesis is flawed, however, because Ms. Colanduoni never testified that she had been gradually losing her recollection. Her exact response at sentencing was “I told him [the probation officer] that I have absolutely no recollection of the accident.... I don’t remember anything that whole day, or weeks — there’s loads of things I don’t remember.”

By Ms. Colanduoni’s own testimony she had no recollection of the accident at the time she spoke with the probation officer. She does not state that she had a recollection at the time of her interview with the probation department but then lost it sometime before the time of the sentencing when she testified. Additionally, no one else testified that Ms. Colanduoni had been suffering a gradual deterioration of memory, nor was that syndrome noted in the pre-sentence investigation despite listing the various medical consequences of the accident. As such, it is far more likely that the victim related to the probation officer her opinion and belief of what transpired, based upon assumption or what someone else told her, rather than what she personally recollected.

As such, although the majority suggests that the Commonwealth carried its burden with respect to applying the sentencing enhancement, in my opinion the evidence is rather minimal and inherently suspect. This is unfortunate because, in all likelihood a much stronger case could have been presented. After all, there were three occupants of the vehicle in question and only one was called to testify. Were they all incapable of remembering what transpired just preceding the accident? Chief Roofner could have been presented as well to explain his “opinion” and how it was derived. Testimony regarding debris location and skid marks would have been especially helpful and, one would assume, must have been available. Yet the Commonwealth put no such evidence in. In consideration of Gallagher, and upon the record presented, I do not believe it was proper to sentence according to § 303.5. Thus, I dissent from that aspect of the decision.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 75 Pa.C.S.A. § 3731(a)(4).

      . 42 Pa.C.S.A. § 9721, 204 Pa.Code 303.5 provides in pertinent part:
      Driving under the influence of alcohol or controlled substance ...
      (b) When one or more victims suffered serious bodily injury, the guideline sentence recommendations (in months) for convictions under 75 Pa.C.S. § 3731 ... are as follows:
      Conviction Standard Range Aggravated Range Mitigated Range
      6-8 2-4 4-6 1st
      7-9 2nd 9-11 5-7
      9-11 3rd 11-12 7-9
      12 12 9-12 4th/sub.

      . The Presentence Investigation Report and all of its attachments, including the letters to the court from the victim and the report from the Pennsylvania Highway Safety Commission, were made a part of the record at the request of appellant’s attorney. See notes of testimony, 1/25/94 at 18-19. Appellant is, therefore, estopped from challenging the admissibility of this evidence. Commonwealth v. O’Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983) (since defendant introduced photo identification by one eyewitness to crime, he could not claim error in its introduction). As appellant could not challenge the PIR, having introduced it into evidence, the PIR is presumed to be valid. See Commonwealth v. Devers, 519 Pa. 88, 100-102, 546 A.2d 12, 18 (1988) (where presentence investigation report exists, it is presumed that sentencing court considered all relevant factors and weighed those factors in a meaningful fashion). See also Commonwealth v. Masip, 389 Pa.Super. 365, 374, 567 A.2d 331, 336 (1989) ("A presentence report constitutes the record and speaks for itself. It is presumed to be valid and need not be supported by evidence unless and until it is challenged by the defendant.”).

      . The opinion does not state whether Gallagher was charged under and pled guilty to both 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4) as in the instant case, or to only one of them.

      . In order to sentence under § 303.5, the trial court only had to find that "one or more victims suffered serious bodily injury.”

      . Appellant’s reliance on the dissent in Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985), is, for obvious reasons, misplaced, and overlooks the holding of the majority, which refutes appellant’s argument.

      . 75 Pa.C.S. § 3731(a)(1).

      . The Fuqua court found that restitution had been imposed as a direct sentence, as here, and not as a condition of probation; therefore, it did not address the distinction. Fuqua, supra at 509 n. 8, 407 A.2d at 26 n. 8.

      . My dissenting opinion should not be construed as leniency towards drunk drivers. If appellant in fact caused the accident in question I believe he would be fully deserving of the enhanced sentence imposed in this case. However, the Commonwealth should be made to prove the existence of the underlying elements of the enhanced sentence just as they are made to prove the elements of the offense in question and the fact that appellant has chosen to plead guilty to the offense of driving under the influence does not eliminate the Commonwealth’s obligation to prove the additional elements necessary to impose the enhanced sentence.