June 12, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
CALVIN EDWARDS, Appellant
Appeal from the Judgment of Sentence December 16, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002578-2007 M, C-51-CR-900066-2007
BEFORE: STEVENS, P.J., PANELLA, J., and COLVILLE, J. [*]
Calvin Edwards (hereinafter "Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on December 16, 2009, at which time he was sentenced to an aggregate term of forty-two and one-half (42 ½) years to eighty-five (85) years in prison after he was found to be in violation of the terms of his probation. Upon our review of the record, we affirm.
In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the sentencing court detailed the troubling facts and procedural history in the instant matter, and we incorporate its summary by reference herein. See Sentencing Court Opinion, filed April 1, 2010, at 1-9.
On August 19, 2009, Appellant appeared before the sentencing court for a probation violation hearing after he was discharged from Benchmark Behavioral Health Systems (hereinafter "Benchmark"). Following the hearing, the sentencing court found Appellant to be in violation of his probation, revoked his probation, and sentenced him to four consecutive terms of ten (10) years to twenty (20) years in prison for one count each of Rape, Robbery, Kidnapping and Involuntary Deviate Sexual Intercourse. He also received a consecutive term of two and one-half (2 ½) years to five (5) years in prison for Possessing Instruments of Crime.
Appellant filed a timely post-sentence motion on August 28, 2009, and the sentencing court scheduled a hearing thereon for December 16, 2009. In an Order entered on September 11, 2009, the sentencing court vacated Appellant's sentence and ordered that Appellant be returned to county custody and held on detainer until his motion to reconsider was heard.
A hearing was held on December 16, 2009, at which time the defense offered Ms. Gillian Blair, Ph.D., as an expert in the field of forensic psychology specifically relating to juveniles. Dr. Blair testified she had an opportunity to evaluate Appellant twice, once in December of 2006 and again in December of 2009. She also reviewed the records of his progress and treatment while at Benchmark. N.T., 12/16/09, at 19-20. Though Dr. Blair admitted that the records revealed Appellant had "a lot of behavioral problems through 2008 and 2009" while at Benchmark, she believed that he had been making some slow, steady progress and beginning to accept responsibility for his behavior until February 2009, when his behavior regressed after he learned of the death of his father. Id. at 21-22.
Specifically, she stated that "when I saw him just two weeks ago, there was a complete about-face and  he accepted full responsibility for his behavior." Id. at 80. She also said that she "didn't think the records are clear about all of his behavioral problems" but stated they did clearly indicate "[h]e had some significant problems." Id. at 26. Among the problems Dr. Blair mentioned were that he was posturing, threatening, noncompliant, and intimidating to some of the younger children, and that he failed to take things seriously. She also noted he engaged in what he called "sexual horseplay" with another boy. Id. at 26-27.
Dr. Blair further explained Appellant, one of five children, had parents who struggled with mental illness. His father, now deceased, had had a cocaine addiction, and his siblings suffered from serious medical and psychiatric problems. Appellant himself had been diagnosed at a young age with learning disabilities and ADHD. Id. at 29-30. Dr. Blair concluded that the difficulty in the assessment of risk and rewards and in managing emotion along with an increase in risk-taking and trouble with cognition and decision-making which characterized Appellant's behavior at Benchmark are behaviors of a "typical adolescent." Id. at 41.
On cross-examination, Dr. Blair acknowledged that the attempted rape of October 20, 2006, and the actual rape of October 25, 2006, to which Appellant admitted were not normal adolescent behavior and placed him in a category that was "maybe not the most severe subgroup" of delinquent behavior. Id. at 43. She also agreed that Appellant either at that time or in the past fit the DSM-IV criteria for conduct disorder. Id. at 47. Dr. Blair agreed that since he was thirteen years old, Appellant consistently had been in a placement facility which was either a juvenile program, a group home, a residential treatment facility, a very specific sex offender program, or a county prison or state correctional institution. Id. at 52-53.
The Commonwealth questioned Dr. Blair concerning Appellant's extensive violent and sexual behaviors at these institutions, as well as the two incidents that occurred in October of 2006. Dr. Blair admitted she was not aware of the details pertaining to several of these occurrences. Id. at 53-62. She disagreed with Dr. Zakireh's report of 2006 wherein he had indicated a diagnosis of paraphilia could not be totally ruled out at that time to the extent that she did not deem Appellant's attacks of the women could fall into the category of a carefully planned out assault. Id. at 74-77. She also believed the report was biased and/or incomplete because it was prepared without Dr. Zakireh having had any contact with Appellant. Id. at 78.
Nevertheless, Dr. Blair admitted that Benchmark conducted an informed, clinical assessment of Appellant after two years of treatment which placed him in the highest category of risk for violence and in some cases indicated "not that a sexual criminal behavior may occur, but rather that a sexual criminal behavior will occur in the next seven years if [Appellant] is released into the community." Id. at 95. Dr. Blair also was reminded that at the Megan's Law hearing held before the sentencing court, Dr. Ziv testified that though she had never stated as much in court before, she believed "not that [Appellant] was likely to commit an offense, but that he will commit another offense." Id. at 96.
After hearing testimony and argument of counsel, the sentencing court indicated on the record that it typically attempts to find creative ways not to impose mandatory sentences and to provide second chances to a defendant when they are available. Id. at 119. Following a detailed explanation which spanned seven pages of the transcript, the sentencing court denied Appellant's Motion to Reconsider Violation of Probation Sentence and reinstated the sentence of forty-two and one-half (42 ½) to eighty-five (85) years in prison which it had imposed on August 19, 2009. N.T., 12/16/09, at 119-125.
Appellant filed a timely Notice of Appeal on December 18, 2009. The trial court did not order, and Appellant did not file, a statement pursuant to Pa.R.A.P. 1925(b). The sentencing court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on April 1, 2010.
In his brief, Appellant raises three questions for our review:
1. Did not the sentencing court violate the requirements of § 9771(c) of the Sentencing Code when, after revoking his probation, it sentenced [A]ppellant to a period of total confinement where: a) he had not been convicted of or charged with a new crime, b) the record did not demonstrate any likelihood that he would commit a new crime if not incarcerated, and c) incarceration was not essential to vindicate the authority of the court?
2. Was not the lower court's imposition of a forty-two and one-half (42 ½) to eighty-five (85) year sentence of incarceration on a juvenile for technical violations of probation, manifestly excessive and an abuse of discretion where the court failed to give individualized consideration to [A]ppellant's personal history, rehabilitative needs or background, and without explaining how, as a matter of law, this sentence was the least stringent one adequate to protect the community and to serve the rehabilitative needs of the [A]ppellant?
3. Did not the trial court err and abuse its discretion by sentencing [Appellant] to an excessive period of incarceration?
Brief for Appellant at 4. We will consider these issues in turn.
Appellant first claims that the sentencing court violated 42 Pa.C.S.A. § 9771(c) when sentencing him to a total period of incarceration after revoking his probation. Appellant argues he had not been convicted of or charged with a new crime and that the record did not demonstrate either that he would likely commit a new crime if he is not incarcerated or that incarceration was necessary to vindicate the sentencing court's authority. Brief for Appellant at 11. Appellant maintains that "his problems and his resulting technical violations of probation flowed more from immaturity rather than criminal conduct" and "the court at sentencing made no finding that [Appellant] was likely to commit a new crime." Id. at 17. Appellant further asserts Appellant's sentence is effectively a life sentence, which under the circumstances presented, is expressly prohibited by 42 Pa.C.S.A. § 9771(c). Id. We review this issue under the following, well-settled standard of review:
In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Our standard of review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 455 Pa. Super. 499, 501, 688 A.2d 1206, 1207–08 (1997) (the scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence). Once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or, (3) such a sentence is essential to vindicate the authority of court. 42 Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).
Commonwealth v. Hoover, 909 A.2d 321, 322-323 (Pa. Super. 2006).
Herein, there is no question that Appellant was not convicted of another crime after his probation had been revoked, and a probation violation hearing was held on September 19, 2009, at which time the sentencing court heard argument regarding Appellant's troubled past and his behavior while at Benchmark. Mr. Michael Gagliardi, a Philadelphia County Adult Probation/Parole Officer with the Sex Offender's Unit, also briefly testified. Mr. Gagliardi stated that at any given time, he has approximately one hundred thirty men in his caseload, the majority of whom are Megan's Law offenders. Though he had never met Appellant in person before the date of the hearing, he considered Appellant to be "just on paper the worse [sic] guy I have in my caseload" and explained that is was apparent to him "that he has a hard time on the outside and has a hard time doing what's expected of him while on the inside at Benchmark." N.T., 9/19/09, at 32. He ended his testimony by stating Appellant "needs to be away." Id. Appellant also spoke to the sentencing court where he attempted to explain his behavior as being "playful" and reflecting his desire to be "a jokester" and asked the sentencing court to provide him with "another chance." Id. at 33-34.
Despite his contention that the sentencing court made no finding Appellant was likely to commit a new crime, prior to imposing Appellant's sentence, the sentencing court explained its reasons for fashioning it as follows:
I don't see any scenario in which it is possible to release [Appellant] from very restrictive custody for as long as we could possibly maintain his custody. I've read the reports over the years. I've read the discharge summary, which is shocking the extent to which it details [Appellant's] pathology and his unwillingness or his inability to change. Over the time I've seen the steady recitation of violence, inappropriate behavior, sexually inappropriate behavior toward everyone he's come in contact with. And what I see here fits the pattern of the evaluations that we have seen ever since [Appellant] was very young.
I don't know what happened in this young man's childhood. I'm sure it was quite dreadful. And I'm really sorry that we have not been able using the best resources we had at hand to undo the damage. But I am absolutely convinced that [Appellant] on the street will commit more violence to anyone around him, and certainly sexual violence upon women, and so I am revoking probation.
On Bill Number 1, Rape, Forcible Compulsion, Felony 1, I'm imposing a sentence of 10 to 20 years. Bill Number 2, aside from Number 1, a consecutive 10 to 20 years. Robbery, that's Bill Number 8, Felony 1, a further consecutive 10 to 20 years. Bill Number 16, Kidnapping, Felony 1, a further consecutive 10 to 20 years. And on Possession of an Instrument of Crime, Bill Number 11, Misdemeanor 1, a further consecutive 2 and a half to 5 years.
In over 20 years as a judge, I have never imposed a sentence that severe on someone this young. I do it with no pleasure, but with a great deal of sorrow. But as I said I am absolutely convinced that [Appellant] has demonstrated over the several years that he's been in the court system that he is violent, unable and/or unwilling to control his violence and remains a serious danger to those around him both within the custodial system and without.
N.T., 9/19/09, at 35-37. The concern over Appellant's situation that the sentencing court expressed on the record on September 19, 2009, is reflected in the fact that it granted his request for reconsideration of that sentence and held another hearing on December 16, 2009.
In its Opinion, the sentencing court further stressed that "[t]he facts of the instant case presented [it] with one of the most compelling justifications for a long sentence of total confinement it has ever seen in more than twenty years on the bench[, ]" and reiterated the reasons it had imposed Appellant's lengthy sentence. Sentencing Court Opinion, filed 4/1/10, at 11-13. The sentencing court also found it noteworthy that despite Dr. Blair's testimony that when she had recently interviewed Appellant in December of 2009, Appellant did not display anger or assign blame to others for his situation in life, Appellant engaged in the following outburst on the record after the sentencing court had denied his motion for reconsideration of sentence and advised Appellant of his appellate rights:
Yea. I think it's racist. And because I seen most of the time—like, if I was a white person, it would have been a different story. Like, you see in my reports that it says that I have problems. It also says in there that I was going to get discharged in there successfully, before they kicked me out. And it says that when I came back to go to the court, you wasn't my judge. I had Woods-Skipper, whoever that was, and somebody switched me back to you.
I seen last time when I was there, you didn't like me because when I told you—the first time that I saw you, I told you that I didn't want to listen. I held back a lot of things just to try to please you, so I could get back to my family. You don't give a shit. Commonwealth vs. Edwards. You want people to be nice and kind with you and whatnot. We try to do that, but you don't understand the environment that we come from. All you think is we're wild animals and everything else.
Like, as I said, the first time you checked in the Philadelphia counties—like, look at the majority of the people that is there, they are all black inmates. That's your fault. You don't see no white people there. In my county, there is one white inmate in my unit. That's how it is in the whole jail.
Sentencing Court Opinion, 4/1/10 at 12-13 citing N.T., 12/16/09, at 125-126.
In light of the foregoing and upon our review of the record, we find the trial court did not abuse its discretion in imposing Appellant's sentence following its revocation of his probation; thus, we will not disturb it herein.
Appellant's second issue raised on appeal concerns whether the trial court sentenced Appellant to a manifestly excessive period of incarceration without properly considering his personal history or rehabilitative needs or explaining how that sentence adequately protects the community and serves his rehabilitative needs. Specifically, Appellant maintains that in sentencing Appellant, a juvenile, to 42 ½ to 85 years in prison after a revocation of probation for technical violations, the sentencing court violated 42 Pa.C.S.A. § 9721(b) in failing to follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense and Appellant's rehabilitative needs Brief for Appellant at 7-8. Appellant further argues that "the lower court in the present case seems to exclusively focus on the seriousness of the underlying crimes rather than taking into consideration [A]ppellant's abysmal family history." Id. at 19.
Initially, we note that this claim concerns the discretionary aspects of Appellant's sentence. "It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010) (citation omitted).
Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Austin, 2013 WL 1943994, at * 8 (Pa. Super. May 13, 2013) (citation omitted).
In the instant case, Appellant filed a timely notice of appeal, preserved his claims in his timely post-sentence motion, and included in his appellate brief a separate Rule 2119(f) statement. As such, he is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert. denied, Rhoades v. Pennsylvania, 132 S.Ct. 1746, 182 L.Ed.2d. 536, 80 USLW 3526 (2012). Thus, we proceed to determine whether Appellant has presented a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. See Austin and Mastromarino, supra.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. See Commonwealth v. Paul, 925 A.2d 825 (Pa. Super. 2007). "A substantial question exits only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Griffin, 2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and quotation marks omitted).
Austin, supra, at *9.
A panel of this Court has determined an allegation that the sentencing court "failed to consider" or "did not adequately consider" various factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011). As such, we find that Appellant did not raise a substantial question on this claim; however, assuming, arguendo, that he had and we were to reach the merits of this issue, for the reasons set forth below, we would find the sentencing court did not abuse its discretion.
Appellant lastly argues the sentencing court abused its discretion in sentencing Appellant to a "manifestly unreasonable, disproportionate and excessive sentence." Brief for Appellant at 20. Appellant relies upon Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011) wherein a panel of this Court vacated a judgment of sentence of eighteen (18) to ninety (90) years which the defendant, age nineteen, received following a three-day violent crime spree.
In prior cases, this Court has concluded that claims of excessiveness may be justifiable as substantial questions based on the circumstances of the case and the extent to which the appellant's Rule 2119(f) statement suggests the trial court's deviation from sentencing norms. See Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (concluding that an appellant's averments of excessiveness of sentence raised a substantial question where the trial court had couched its reasons for the sentence imposed in terms of the seriousness of the offense and victim impact without taking into consideration his expressions of remorse, desire to make restitution, and lack of a prior criminal record).
Commonwealth v. Hill, 2013 WL 1450503, at *3 (Pa. Super. April 10, 2013). As such, we will consider the merits of this issue below.
In Coulverson, this Court noted that the sentence of two years' to twenty years' incarceration which had been imposed on an aggravated indecent assault count was illegal and subject to vacatur. With regard to the remaining portion of the defendant's sentence, we stressed that the sentencing court's application of the Sentencing Guidelines was not at issue, and found that the trial court's discussion in support of the sentence had been minimal in that "[i]t did not expound on the specific sentencing factors but instead premised the sentence imposed on testimony adduced primarily from the rape victim, her family and friends." Coulverson, 34 A.3d at 144. This Court further stated it was "troubled by the court's cursory treatment of so weighty a matter, as the 90-year aggregate maximum potentially consigns a 19-year-old defendant with mental health problems to life in prison without even a nod to relevant sentencing factors." Id. at 146. Finding the circumstances of the case to be akin to those in Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009), this Court found "the record reveals scant consideration of anything other than victim impact and the court's impulse for retribution on the victims' behalf." Id. at 148.
To the contrary, the sentencing court in the matter sub judice had the benefit of numerous behavioral reports and expert testimony regarding Appellant's likelihood to reoffend. It held a violation of probation hearing and engaged in a lengthy discussion on the record in support of its sentence. It held a second hearing to reconsider its sentence, after which it, once again, heard testimony and detailed on the record its reasons for denying the motion.
Recently, in concluding the trial court's imposition of consecutive sentences which resulted in an aggregate sentence of 35 years to 70 years in prison did not present a substantial question, this Court stated that even had the appellant raised a substantial question, we would not find that it abused its discretion in imposing the sentence. We further stated that, on its face, such a sentence did not constitute a guaranteed life sentence for a presently twenty-eight year old appellant. Commonwealth v. Austin, 2013 WL 1943994 at *8 (Pa. Super. May 13, 2013). Therein, a panel of this Court had decided the trial court abused its discretion in sentencing the appellant, a twenty-five year old at the time, and vacated his original sentence of 72 to 192 years in prison following his convictions of 96 counts of sexual abuse of children (possession of child pornography). Upon remand, the trial court resentenced the appellant, and the appellant appealed claiming his new aggregate sentence of 35 years to 70 years also was manifestly excessive and an abuse of the trial court's discretion.
In affirming that sentence, this Court noted that the trial court had available to it expert reports which indicated, inter alia, that the appellant was a "high risk offender, " had psychological issues, functioned on the level of an adolescent, behaved in a "resistant pattern of sexual deviation" that "would not be easy to rehabilitate, " and showed a lack of remorse. We also stressed that the trial court had determined the appellant's history of promiscuity and reckless behavior support the notion he is likely to re-offend and that the facts revealed the appellant's behavior was characterized by a "resistant pattern of sexual deviation" which would not be easy to rehabilitate. Austin, supra, at *5. The trial court ultimately concluded it would be "absurdly irresponsible" of it to fail to consider the totality of the offender. Id.
Similarly, the sentencing court herein heard ample testimony and reviewed numerous documents which led it to conclude the sentence imposed was justifiable and necessary in this case. Having reviewed the record, we find no error.
Judgment of sentence affirmed.
COLVILLE, J. CONCURS IN THE RESULT.