Appeal from the Judgment of Sentence October 26, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011036-2008
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J.*fn1
Kalee Hill (hereinafter "Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on October 26, 2011, at which time he was sentenced to an aggregate term of thirty-five (35) years to seventy (70) years in prison following his open guilty plea to three counts of Aggravated Assault and to one count of Persons not to possess, use, manufacture, control, sell or transfer firearms.*fn2 Appellant also received a consecutive term of four (4) years to eight (8) years in prison for a probation violation (VOP). Upon our review of the record, we vacate and remand for resentencing.
This matter arises following Appellant's entry of an open guilty plea on August 24, 2011, to the aforementioned crimes which occurred on June 12, 2011. On that date at approximately 9:45 p.m., Appellant was standing near a busy intersection in Philadelphia during which time a car circled the block prior to slowing down in front of him. N.T., 10/26/11, at 18.
Appellant took out a gun and opened fire at the vehicle. Id. Mr. Raymond Erwin, who was speaking with a friend nearby, was struck by a stray bullet fired from Appellant's gun as was Ms. Mimine Hein, a young woman who was nine months pregnant and in the vicinity to pick up her husband and daughter. Id. at 10. The Commonwealth acknowledged that the shooting of Mr. Erwin and Ms. Hein was unintentional, though it also stressed that this did not mitigate the crimes he had committed. Id. at 20-21.
Mr. Erwin testified that as a result of the injuries he sustained in the shooting, he had a gastronomy tube implanted for one year, had undergone three surgeries prior to the date of sentencing, and had a fourth surgery scheduled for November 15, 2011. Id. at 7. Ms. Heim testified that she had been shot in her left arm which rendered her unable to lift it. As a result, she is no longer able to work in the field of hair braiding. Id. at 11.
A sentencing hearing was held on October 26, 2011, after which the sentencing court imposed consecutive sentences of ten (10) years to twenty (20) years in prison for each of the Aggravated Assault counts followed by a consecutive sentence of five (5) years to ten (10) years in prison on the firearms charge. The VOP sentence for a prior Possession with Intent to Deliver conviction was a consecutive term of four (4) years to eight (8) years' imprisonment.
On November 3, 2011, Appellant filed his Motion for Reconsideration of Sentence, and the sentencing court denied the same on November 10, 2011. Appellant filed a timely notice of appeal.
On January 17, 2012, Appellant filed his 1925(b) Statement of Questions Presented, and in his brief Appellant raises two questions for our review:
1. Whether the lower court abused its discretion in holding Gagnon*fn3 hearing, finding Appellant in violation of probation and imposing new sentence of four (4) to eight (8) years, where lower court terminated probation, in case sub judice, on January 11, 2011, more than six months prior to Appellant's June 12, 2011 arrest?
2. Whether the lower court abused its discretion in denying Appellant's application for continuance of sentencing hearing, in order for the court to obtain complete mental health evaluation, and instead proceeded to sentencing, without stating adequate reasons for the omission?
Brief for Appellant at 6 (emphasis in original).
Following probation violation proceedings, this Court's scope of review is limited to verifying the validity of the proceeding and the legality of the sentence imposed. Commonwealth v. Heilman, 876 ...