Appeal from the Judgment of Sentence Entered September 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0402721-2001, CP-51-CR-0410971-2001, CP-51-CR-0410991-2001, CP-51-CR-0801921-2001, CP-51-CR-0801961-2001, CP-51-CR-0802011-2001, CP-51-CR-0802221-2001, CP-51-CR-0910111-2002
BEFORE: BENDER, DONOHUE and COLVILLE [*] , JJ.
Sherdina Williams ("Appellant") appeals from the judgment of sentence of 290 – 580 months' incarceration that was imposed for violations of multiple probations after subsequent convictions in unrelated matters. Appellant challenges the discretionary aspects of her sentence and also argues that the trial court judge should have recused himself due to the appearance of bias. After careful review, we vacate the judgment of sentence and remand for resentencing.
On October 15, 2001, Appellant entered an open plea to seven counts of burglary and related offenses. All of the offenses arose out of Appellant's theft of property from several Catholic institutions. The Honorable James J. Fitzgerald (now a member of this Court) sentenced Appellant to concurrent terms of 11½ to 23 months' incarceration and ten years' consecutive probation for each of the seven burglary convictions. Judge Fitzgerald subsequently paroled Appellant to Beacon House, an inpatient program for pregnant and parenting substance abusers at the Episcopal Hospital in Philadelphia.
Appellant did not remain at Beacon House as ordered. On January 16, 2002, just three months after her plea, Appellant was arrested in an incident for which she was subsequently charged with assaulting a police officer with a pair of scissors. On April 19, 2002, before the Honorable Shelia Woods-Skipper, Appellant pleaded guilty to aggravated assault for the incident. Just a few months later, on September 7, 2002, police arrested Appellant for breaking into Friends Hospital in Philadelphia. In that incident, Appellant stole $15 from the victim's purse, and pushed the victim and a security guard while attempting to escape. N.T., 9/17/02, at 5 – 7. After a non-jury trial on January 3, 2003, the Honorable Chris R. Wogan found Appellant guilty of burglary and simple assault and sentenced her to 40 – 80 months' incarceration and a consecutive term of two years' probation. Later, in consideration of Appellant's motion for reconsideration of sentence, Judge Wogan reduced the term of incarceration to 36 – 72 months.
Appellant was released from prison in 2009 after having served the maximum term. On January 24, 2010, police arrested Appellant for DUI and for causing an accident leading to personal injury or death. For those crimes, the Honorable Joseph J. O'Neill sentenced Appellant to 3 – 6 days' incarceration and 2½ years' probation.
On April 3, 2010, Appellant broke into St. Basil's Convent and St. Michael's Ukrainian Catholic Church, both in Montgomery County. The next day, she broke into St. Basil's Convent again. In sum, she stole $85 from the nuns at St. Basil's and was caught in the Rectory at St. Michael's. When caught at St. Basil's on the second day of her crime spree, Appellant possessed a screwdriver, money, and a coin purse. On March 4, 2011, the Honorable Joseph A. Smyth in Montgomery County accepted Appellant's guilty plea to three counts of burglary and sentenced her to an aggregate term of 7 – 20 years' incarceration.
On June 1, 2011, as a result of Appellant's multiple violations of her probation sentences imposed by Judge Fitzgerald and Judge Wogan, Judge Wogan revoked her probation. On July 20, 2011, Judge Wogan denied a motion for recusal filed by Appellant. After a violation of probation sentencing hearing on September 30, 2011, at which Appellant presented two witnesses (a priest and a psychologist), Judge Wogan sentenced Appellant to an aggregate term of 290 - 580 months' incarceration (24 years and two months to 48 years, 4 months), to be served consecutively to the term of incarceration of 7 – 20 years imposed by Judge Smyth in Montgomery County. Judge Wogan denied two timely motions for reconsideration of sentence. This timely appeal followed in which Appellant raises two issues for consideration:
1. Did not the sentencing court err as a matter of law, abuse its discretion, and violate general sentencing principles when, following a revocation of probation, the [trial] court imposed a sentence of 24 years, 2 months to 48 years, 4 months['] incarceration, where: this sentence was manifestly excessive and unreasonable; far surpassed what was required to protect the public, the complainants, and the community; went well beyond what was necessary to foster [A]ppellant's rehabilitation; and was grossly disproportionate to the crimes[?]
2. Did not the sentencing court err as a matter of law and abuse its discretion when it failed to recuse itself, for any and all of the following reasons: referring to [A]ppellant as a "pathological liar, " undermining [Appellant's] right to remain silent at the violation of probation hearing, and having the appearance of bias and impropriety through repeated questioning about why [Appellant] targeted only Roman Catholic institutions?
Williams' Brief at 3.
Appellant's first issue challenges the discretionary aspects of her sentence. Two requirements must be met before we will review such a challenge on its merits.
First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (quoting Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)).
Appellant has included in her appellate brief a statement of reasons in support of review of the discretionary aspects of the sentence. In asserting that the trial court imposed a sentence unreasonably disproportionate to her crimes and unduly excessive, Williams has provided plausible arguments that her sentence is "contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002) (plurality) (opining that an appellant raises a substantial question when she "sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process"); see also Ferguson, 893 A.2d at 737 (reaffirming that a claim that sentence was manifestly excessive presents a substantial question). As Appellant has satisfied this requirement, we proceed to review her claim on its merits.
The imposition of sentence is vested in the discretion of the trial court, and should not be disturbed on appeal for a mere error of judgment but only for an abuse of discretion and a showing that a sentence was manifestly unreasonable. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).
The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is "in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it." Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990); see also Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992) (en banc) (offering that the sentencing court is in a superior position to "view the defendant's character, displays of remorse, defiance or indifference and the overall effect and nature of the crime."). Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed.
Walls, 926 A.2d at 961.
The proper standard of review for an appellate court is to focus on the pertinent statutory provisions in the Sentencing Code, specifically 42 Pa.C.S. § 9781(c) and (d), and 42 Pa.C.S. § 9721(b). Id. at 963. We also consider a sentence imposed following revocation of probation in light of the limitations set forth in 42 Pa.C.S. § 9771(c). Because subsections 9781(c) and (d) include a focus on sentencing guidelines, however, and because sentencing guidelines do not apply to sentences imposed following a revocation of probation, in this case we look solely to the provisions of 42 Pa.C.S. § 9721(b). Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). Section 9721(b) provides in pertinent part as follows:
[T]he court shall 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 as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S. § 9721(b).
In order to establish that the sentencing court abused its discretion, 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) (quotation marks and citations omitted). See also Walls, 926 A.2d at 961 (citation omitted) ("An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice[, ] bias or ill-will, or such a lack of support as to be clearly erroneous.").
On its face, the trial court's Pa.R.A.P. 1925(a) opinion addresses each of the three pertinent factors set forth in 42 Pa.C.S. § 9721(b). Based upon Appellant's history of recidivism and her repeated failures to take advantage of drug and alcohol programs (both inside and outside of prison), the court found that Appellant had "zero potential for rehabilitation." Trial Court Opinion (TCO), 2/13/12, at 10, 15 – 17. The trial court also determined that Appellant is a "profound danger" whose crimes had a "terrible impact on the hospitality and ability to perform charitable works of the Catholic churches she victimized, which detrimentally impacts the communities around the churches." Id. at 10. In reaching the sentence, the trial court reviewed three pre-sentence investigation reports (dated 9/22/01, 2/5/03, and 7/20/11), two mental health evaluations (MHEs) (dated 10/2/01 and 7/20/11), the testimony of two witnesses called by Appellant to testify on her behalf, Father Thomas Betz and Dr. Gillian Blair (a licensed psychologist), and the arguments of counsel.
Generally, our review of a sentence is limited in these circumstances to whether the sentencing court explicitly or implicitly considered the section 9721(b) factors, and we may not re-weigh the significance placed on each factor by the sentencing judge. See Walls, 926 A.2d at 964, 966. Given such a deferential standard of review, our Supreme Court recognized that "rejection of a sentencing court's imposition of sentence on unreasonableness grounds would occur infrequently[.]" Id. at 964.
Nevertheless, we reject the imposition of sentence in this case on two distinct grounds. First, we find the sentence manifestly excessive in the specific circumstances of this case and therefore an abuse of discretion. Second, we reject the sentence because the sentencing court's reasoning is infused with "partiality, prejudice, bias or ill will." Rodda, 723 A.2d at 214; accord Walls, 926 A.2d at 961.
Appellant's sentence of 290 - 580 months' incarceration (roughly 24 – 48 years) is severe on its face. It was imposed for conduct that occurred a decade prior to the sentencing hearing and was ordered to run consecutively to the already severe sentence imposed in Montgomery County of 7 – 20 years' incarceration. Thus, as a result of this sentence, Appellant will not be eligible for parole for more than 31 years, and is subject to a maximum term of more than 68 years' incarceration. Appellant was 30 years old at the time her brief was filed. While such a sentence is not, strictly speaking, a life sentence, the chance that Appellant will survive until the maximum term is expired is negligible at best.
Section 9721(b) constrains a sentencing court's discretion in that it requires that any sentence imposed be "consistent with the protection of the public, the gravity of the offense[, ] … and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b) (emphasis added). A sentence that disproportionally punishes a defendant in excess of what is necessary to achieve consistency with the section 9721(b) factors violates the express terms of 42 Pa.C.S. § 9721(b), as would a sentence that is disproportionately lenient. Certainly consistency with section 9721(b) factors does not require strict proportionality in sentencing, and the non-quantifiable nature of the factors considered would not permit such a rule in any event. However, a sentence that is clearly and excessively disproportionate is, by definition, inconsistent with "the protection of the public, the gravity of the offense[, ] … and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b).
Given the fundamental principle of proportionality and the severity of the sanction imposed in this case, we expect the conduct for which Appellant was being sanctioned to be proportionally severe. By any measure employed by civilized society, the severity of Appellant's sentence was disproportional to her conduct. In the cases before us, Appellant entered and stole property from several Catholic institutions, and on two of seven occasions, she shoved those who caught her red-handed as she attempted to escape. We do not dispute the characterization of burglary and simple assault as being crimes of violence, but we must also recognize that not all crimes of violence are created equal. Burglary is not comparable to rape, nor is simple assault on par with murder. Yet here, the trial court has imposed a sentence that is comparable to the sanctions levied for such crimes by invocation of the common categorization applied to all such crimes as being 'violent.' This is error.
In Walls, the defendant "pled guilty to one count of rape of a victim less than thirteen years old, 18 Pa.C.S. § 3121(6); one count of involuntary deviate sexual intercourse (IDSI) with a victim less than thirteen years old, 18 Pa.C.S. § 3123(a)(6); and one count of incest" where the defendant had repeatedly sexually molested his seven-year-old granddaughter. Walls, 926 A.2d at 959. For those crimes, the sentencing court imposed an aggregate sentence of 21 – 50 years' incarceration. Id.
Here, Appellant was convicted for stealing a few thousand dollars in cash and property over the course of a spree of seven burglaries. Appellant secured entry into the facilities that she burglarized in a non-violent manner. No evidence demonstrated that Appellant ever used or even possessed a weapon during these crimes. And although Appellant did use some physical force while fleeing on two occasions, she did not cause or seriously risk causing serious bodily injury. While not trivial, the gravity of Appellant's crimes are simply not of the same order of magnitude as those reviewed in Walls, and yet Appellant was sentenced to a longer minimum term of incarceration. While we acknowledge that a direct comparative analysis to the sentence imposed in Walls is not controlling on our review of Appellant's sentence, it is illustrative of its disproportionate nature. Appellant's sentence does not reflect, by several orders of magnitude, the severity and nature of her offenses.
To be fair, Appellant's sentence was not strictly based upon the conduct that gave rise to her convictions at issue in this case. Appellant's sentence largely stems from her inability to rehabilitate in the decade that followed her initial sentence. As the trial court explained, it took Appellant's "eight violations of probation" into account, including the fact that Appellant continued to burglarize after repeated attempts by the courts of this Commonwealth to allow her the opportunity to reform. TCO at 17. The trial court found, therefore, that "a longer sentence is needed to protect the public" from Appellant's recidivism. Id. at 17 – 18.
The excessiveness of Appellant's sentence, however, does not indicate that the trial court erred merely by increasing the duration of the underlying sentence. We agree that Appellant's recidivism required an escalation of sanctions. The issue is one of proportionality. That principle does not undermine the sound reasoning that escalating penalties are required to deter recidivism, but instead strengthens it by preventing unreasonable interpretations that undermine public confidence in the criminal justice system as a whole. Tolerance of such incongruities on the grounds of appellate deference to trial court discretion undermines our commitment to individualized sentences, and renders the noble penological goal of sentence individualization indistinguishable from arbitrary justice.
Our rejection of the sentence imposed in this case does not require a new rule or a new interpretation of the binding precedent clarified in Walls. Walls recognized that although such events should occur infrequently, the appellate courts retain the authority to reject a sentence as unreasonable and/or excessive (which, we add, are related inquiries). Walls, 926 A.2d at 964. We conclude that this is such a case. Appellant's sentence was not unreasonable because of the particular weight afforded to each circumstance as they relate to relevant section 9721(b) factors, but instead because the resulting sentence was patently disproportionate and excessive even given the assumption that the trial court's weighing of factors was reasonable.
Consideration of section 9721(b) factors does not mechanically dictate a particular sentence with the certainty expected of a well-established scientific formula. Our procedures and principles of sentencing are reliant upon the reasonableness of our jurists in both applying the facts of the case to the relevant factors set forth in section 9721(b), and in translating that analysis, rationally and fairly, into an individualized sentence. It is with the latter step that we conclude the trial court abused its discretion. The sentence imposed was unreasonable in its application of the principle of proportionality and, therefore, it was manifestly excessive.
Appellant's sentence also constitutes an abuse of discretion because it was the product of "partiality, prejudice, bias or ill will[.]" Rodda, 723 A.2d at 214. Viewed collectively, the trial court's Rule 1925(a) opinion, its statements at the sentencing hearing, and its statements made during prior proceedings in this case, strike a tone of advocacy rather than dispassionate reflection. This accumulation of inappropriate remarks leads us to conclude that Appellant's sentence cannot be divorced from the appearance of bias.
"The sentencing decision is of paramount importance in our criminal justice system, " and must be adjudicated by a fair and unbiased judge. Commonwealth v. Knighton, 490 Pa. 16, 21, 415 A.2d 9 (1980). This means, a jurist who "assess[es] the case in an impartial manner, free of personal bias or interest in the outcome." Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998). Because of the tremendous discretion a judge has when sentencing, "a defendant is entitled to sentencing by a judge whose impartiality cannot reasonably be questioned." Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727, 732 (1983). "A tribunal is either fair or unfair. There is no need to find actual prejudice, but rather, the ...