Child Support to the Children of a Homicide Victim Cannot Be Ordered as Restitution



Commonwealth v. Andre Hall. No. 55 EAP 2010, October 30, 2013 (23 pages)

The Defendant was having an affair with a woman who was also still romantically involved with her former husband.  The former husband supported the children he had with his former wife, even in the absence of a formal agreement or court order. Very early one morning, while she was sleeping with the defendant, the woman received a phone call form the former husband asking to see his children. She said no, but after a few more calls she relented. The Defendant got dressed to leave, but outside the woman’s house, the two men got into an argument and the defendant killed the visiting father. He was arrested, tried, and convicted of voluntary manslaughter.  He was sentenced to five to ten years  and directed, upon release, to pay child support for the victim’s children. The court initially did not say how much he was going to pay for the support, or how it would be calculated, but it later clarified it by setting, “based on ability to pay, at a rate of not less tha[n] $100 per child, a month.” The probation department could determine a lower amount if the defendant could not afford the ordered amount.

On appeal. the Superior Court remanded to the sentencing court for a determination about whether the child support was a condition of probation or a sentence of restitution. On remand, the sentencing court called the child support a condition of restitution for rehabilitative purposes, and directed its payment be supervised by the probation department. Back on appeal, the Superior Court reversed, holding that restitution was improper to order restitution to third parties who were not victims of crime, and that the true purpose of the restitution in this case was not to rehabilitate the defendant, but to support his children.

The Commonwealth sought and obtained permission to appeal. The Supreme Court affirmed, but for different reasons. Construing the probation statute, 42 Pa.C.S. §9754, in the light most favorable to the defendant under the rule of lenity, it found that under the statute, restitution could be imposed to make “reparations,” and that the final, catchall provision of the statute, which allows unspecified terms of probation for rehabilitative purposes, does not exclude restitution. (The Commonwealth did not argue that the restitution was allowed under the restitution statute, 18 Pa.C.S. §1106, as that allows restitution only to crime victims.) The problem the Court had with the child support sentence though was that the amount was too speculative, not confirming to any standard for computing such support, and that the factors that go into computing child support are not easily transferable to the probationary realm. Child support orders are issued pursuant to very specific standards. Until legislation is passed specifically allowing this type of sentence, the Court said this type of term could not be imposed as a condition of probation.

Image from The Pocono Record, 10/29/13


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