Appeal from the Judgment of Sentence dated April 20, 2007 In the Court of Common Pleas of Monroe County Criminal No. CP-45-CR-0000726-2006.
The opinion of the court was delivered by: Fitzgerald, J.
BEFORE: BOWES, SHOGAN, and FITZGERALD,*fn1 JJ.
¶ 1 Appellant, Syvol Bowen, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas. Specifically, Appellant challenges the propriety of his aggravated-range sentence, which he alleges was based primarily on his silence at sentencing, thus constituting a violation of his right to remain silent pursuant to the Fifth Amendment of the United States Constitution. We hold that a court may not consider a defendant's silence at sentencing as indicative of his failure to take responsibility for the crimes of which he was convicted. We further hold that silence at sentencing may not be the sole factor in determining a defendant's lack of remorse. However, we conclude that the trial court relied on numerous legitimate factors in imposing the aggravated-range sentence at issue. Accordingly, we affirm.
¶ 2 The Commonwealth charged Appellant with committing a rape and striking the victim in this case. Appellant chose not to testify. A jury acquitted Appellant of rape and sexual assault charges, but convicted him of simple assault, a second-degree misdemeanor, and terroristic threats, a first-degree misdemeanor. Pursuant to counsel's advice, Appellant remained silent during the sentencing process. The trial court sentenced Appellant on the simple-assault conviction to twelve to twenty-four months' imprisonment, which, although the statutory maximum, was also within the standard range of the sentencing guidelines.*fn2 The court also imposed a consecutive sentence of eighteen to forty-three months' imprisonment for the terroristic-threats conviction, which sentence fell within the aggravated range of the sentencing guidelines.*fn3 In justifying the aggravated-range sentence for terroristic threats, the trial court noted Appellant's poor employment history, long history of recidivism, and the victim's emotional trauma. The court also indicated that Appellant failed to show any remorse for his crimes or to take responsibility for them, even after the jury's decision. Appellant filed post-sentence motions, which the trial court denied. This timely appeal followed.
¶ 3 Appellant presents one issue for our review: "[Whether] a [s]entencing court in a criminal matter [may] treat a defendant's silence on the alleged incident as proof of a lack of remorse and then consider it as an aggravating factor?" Appellant's Brief at 4.
¶ 4 In reviewing the decision of the sentencing court, our standard of review is well-settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (quotations and citations omitted). "A sentencing court may consider any legal factor in determining that a sentence in the aggravated range should be imposed." Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa. Super. 2005) (citing Commonwealth v. Duffy, 491 A.2d 230, 233 (Pa. Super. 1985)). "In addition, the sentencing judge's statement of reasons on the record must reflect this consideration, and the sentencing judge's decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion." Id. at 593.
¶ 5 Because he challenges the discretionary aspects of his sentence, Appellant has included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which he contends that his aggravated-range sentence was based on an unconstitutional factor. Appellant's claim raises a substantial question for our review, and therefore we may proceed to address its merits. See Stewart, 867 A.2d at 592 (finding substantial question raised when appellant alleged that sentencing court considered improper factors when sentencing in aggravated range).
¶ 6 Appellant argues that the United States Supreme Court has found unconstitutional any penalty assessed for a defendant's silence at sentencing. He contends that the trial court violated his Fifth Amendment rights by considering his silence as reflective of his lack of remorse. Appellant concludes that the trial court abused its discretion, requiring this Court to vacate his sentence. Although we agree in part with Appellant's constitutional claims, we disagree that resentencing is necessary.
¶ 7 Appellant relies primarily on the United States Supreme Court's decision in Mitchell v. United States, 526 U.S. 314 (1999), specifically the Court's holding that factfinders may not hold a defendant's "silence against her in determining the facts of the offense at the sentencing hearing." Id. at 330. However, as Appellant acknowledges, the Court explicitly passed on the question of "[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of [ ] downward adjustment." Id.
¶ 8 The trial court and Commonwealth respond that lack of remorse has long been a legitimate sentencing factor in Pennsylvania, citing to Commonwealth v. Ellis, 700 A.2d 948, 959 (Pa. Super. 1997). The Commonwealth further cites our Supreme Court's decision in Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605 (2001), in which the defendant's lack of remorse was also at issue:
Appellant claims that the trial court should not have considered either his lack of remorse, since he maintained his innocence throughout the trial, or his ...