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[U] Commonwealth v. Philhower

Superior Court of Pennsylvania

February 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
LISA MARIE PHILHOWER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 12, 2012 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000123-2012; CP-48-CR-0003443-2011; CP-48-CR-0003444-2011; CP-48-CR-0003445-2011; CP-48-CR-0003446-2011; CP-48-CR-0003447-2011; CP-48-CR-0003448-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

GANTMAN, J.

Appellant, Lisa Marie Philhower, appeals from the judgment of sentence entered in the Northampton County Court of Common Pleas, following her guilty plea to six counts of conspiracy to commit burglary as a first-degree felony and one count of theft by unlawful taking or disposition.[1]We affirm.

The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant with multiple counts of burglary, conspiracy to commit burglary, criminal attempt to commit burglary, criminal trespass, theft by unlawful taking or disposition, and related offenses, in connection with a string of fifteen burglaries of various residences. On February 7, 2012, Appellant pled guilty to six counts of conspiracy to commit burglary of a home—no one present, and one count of theft by unlawful taking or disposition. In exchange for her early cooperation with the authorities, the Commonwealth agreed to withdraw numerous charges related to all fifteen burglaries, but nevertheless required Appellant to pay total restitution claimed by all victims. On April 12, 2012, with the benefit of a presentence investigation ("PSI") report, the court sentenced Appellant to consecutive terms of twenty-seven (27) to fifty-four (54) months' imprisonment for each conspiracy conviction, and twelve (12) to twenty-four (24) months' imprisonment for the theft conviction, consecutive to the conspiracy sentences. Thus, the court imposed an aggregate sentence of one hundred and seventy-four (174) to three hundred and forty-eight (348) months' imprisonment (or fourteen and one-half (14½) to twenty-nine (29) years' imprisonment).

On Monday, April 23, 2012, Appellant timely filed a post-sentence motion, which the court denied on May 3, 2012. Appellant timely filed a notice of appeal on May 30, 2012. On June 4, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

Appellant raises two issues for our review:

DID THE TRIAL JUDGE ABUSE HER DISCRETION BY SENTENCING [APPELLANT] TO AN AGGREGATE SENTENCE OF 14½ YEARS TO 29 YEARS THEREBY IMPOSING A SENTENCE THAT WAS INCONSISTENT WITH THE SENTENCING CODE AND CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING THE SENTENCING PROCESS?
DID THE TRIAL JUDGE ABUSE HER DISCRETION BY NOT IMPOSING A [RECIDIVISM RISK REDUCTION INCENTIVE ("RRRI")] SENTENCE DESPITE THE FACT THAT APPELLANT DID NOT HAVE A CRIMINAL HISTORY INVOLVING CRIMES OF VIOLENCE AND THAT THE INSTANT OFFENSES DID NOT INVOLVE CRIMES OF VIOLENCE?

(Appellant's Brief at 4).

In her first issue, Appellant states she is severely addicted to crack cocaine. Appellant asserts the court did not adequately consider her rehabilitative needs upon sentencing. Appellant also maintains the court ignored mitigating factors such as her cooperation with police and that at the time of the crimes, Appellant had no substantiated acts of violence on her criminal record and a long history of drug abuse. For these reasons, Appellant complains her sentence was unreasonable. As presented, Appellant's claim challenges the discretionary aspects of sentencing. See Commonwealth v. Edwards, 71 A.3d 323, 329 (Pa.Super. 2013), appeal denied, ___Pa. ___, ___A.3d (2013) (explaining claim that sentence is manifestly excessive where court ignored defendant's rehabilitative needs and personal history challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentence is excessive and unreasonable where court failed to consider several mitigating factors challenges discretionary aspects of sentencing).

A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

What constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super. 2007). A substantial question exists "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. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Commonwealth v. Mouzon, 571 Pa. 419, 430, 812 A.2d 617, 624 (2002). Bald allegations of excessiveness, however, do not raise a substantial question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, a substantial question will be found "only where the appellant's Rule 2119(f) statement 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…." Id. Nevertheless, "[a]n allegation that a sentencing court 'failed to consider' or 'did not adequately consider' certain factors does not raise a substantial question that the sentence was inappropriate." Cruz-Centeno, supra at 545 (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining allegation that sentencing court failed to consider specific mitigating factor generally does not raise substantial question; claim that sentencing court ignored appellant's rehabilitative needs failed to raise substantial question). Importantly, where the sentencing court had the benefit of a PSI report, Pennsylvania law presumes the court was aware of the relevant information regarding an appellant's character and weighed those considerations along with mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988).

Instantly, Appellant's contention the court ignored her rehabilitative needs does not raise a substantial question. See Berry, supra. Likewise, Appellant's complaint the court failed to consider specific mitigating factors, such as her cooperation with authorities, does not raise a substantial question warranting review. See Cruz-Centeno, supra. Further, the court had the benefit of a PSI report and imposed a standard range sentence for Appellant's offenses. Therefore, we can presume Appellant's sentence was reasonable and the court was aware of relevant information regarding mitigating circumstances. Id. at 545-46 (explaining combination of PSI and standard range sentence, absent more, cannot be considered as excessive or unreasonable sentence).

Moreover, the court explained it considered Appellant's rehabilitative needs and significant history of drug addiction when fashioning Appellant's sentence, as follows:

In this case, Appellant did not merely burglarize one home, or even six homes. Rather, she burglarized fifteen homes, and did so while she was on state parole for having committed the same offense. Appellant was already granted significant relief from the resultant criminal charges by the Commonwealth's decision to reward her for her cooperation by withdrawing the majority of the charges. Any lesser sentence would have greatly depreciated the seriousness of Appellant's crime spree. Furthermore, it is clear from Appellant's criminal history that her rehabilitative needs are greater than can be met by a lesser period of incarceration. In reaching this conclusion, we are mindful that Appellant's significant drug history, specifically her addiction to crack cocaine, as well as her mental health diagnosis, did play a role in the commission of these crimes. Her addiction and diagnosis, however, do not excuse her conduct, nor do they warrant the imposition of a lesser sentence, and we are confident that Appellant will have ample resources available to her during incarceration that will allow her to address her drug addiction and receive mental health treatment.

(Trial Court Opinion, filed July 13, 2012, at 5-6). We see no reason to disrupt the court's sentence; thus, Appellant is not entitled to relief for this claim.

In her second issue, Appellant argues the court must give her a RRRI sentence because she was not convicted of any enumerated disqualifying offenses nor did she demonstrate a history of present or past violent behavior. Appellant asserts she pled guilty to multiple counts of conspiracy to commit burglary of a home with no one present. Appellant contends these burglary convictions do not constitute crimes showing "present violent behavior" because the convictions were classified as burglary of a home—no one present, and are therefore merely offenses against property rights of the owner. Appellant admits her criminal history reveals convictions for several burglaries, but she insists those burglaries also occurred when no one was present in the home and are similarly not convictions demonstrating "past violent behavior." Appellant concludes the court improperly deemed her ineligible for a RRRI sentence, and this Court must vacate and remand for resentencing. We disagree.

The RRRI statute provides, in pertinent part, as follows:

§ 4505. Sentencing

(a) Generally.—At the time of sentencing, the court shall make a determination whether the defendant is an eligible offender.
(c) Recidivism risk reduction incentive minimum sentence.—If the court determines that the defendant is an eligible offender or the prosecuting attorney has waived the eligibility requirements under subsection (b), the court shall enter a sentencing order that does all of the following:
(1) Imposes the minimum and maximum sentences as required under 42 Pa.C.S. § 9752 (relating to sentencing procedures generally).
(2) Imposes the recidivism risk reduction incentive minimum sentence. The recidivism risk reduction incentive minimum shall be equal to three-fourths of the minimum sentence imposed when the minimum sentence is three years or less. The recidivism risk reduction incentive minimum shall be equal to five-sixths of the minimum sentence if the minimum sentence is greater than three years. …
* * *

61 Pa.C.S.A. § 4505. The RRRI statute defines an eligible offender as an offender who, inter alia, "[d]oes not demonstrate a history of present or past violent behavior." 61 Pa.C.S.A. § 4503. The statute does not define "violent behavior." See id. Nevertheless, our Supreme Court has explained that burglary is consistently classified as a violent crime in Pennsylvania because burglary, by its very nature, involves the use or threat of violence to the person. Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307 (2008), cert. denied, 556 U.S. 1131, 129 S.Ct. 1614, 173 L.Ed.2d 1001 (2009). "[A]n unprivileged entry into a building or structure where people are likely to be found is a clear threat to their safety and every burglar knows when [s]he attempts to commit [her] crime that [s]he is inviting dangerous resistance." Id. at 321, 951 A.2d at 331 (internal citations and quotation marks omitted). See also Commonwealth v. Rios, 591 Pa. 583, 624, 920 A.2d 790, 814 (2007) (reiterating that burglary has previously and continues to be viewed as crime involving use or threat of violence to person).

The relevant version of the burglary statute[2] provided:

§ 3502. Burglary
(a) Offense defined.—A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
* * *
(c) Grading.—
(1) Except as provided in paragraph (2), burglary is a felony of the first degree.
(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.

18 Pa.C.S.A. § 3502.

Additionally, this Court has stated:

[T]he guilty plea and the frequently concomitant plea bargain are valuable implements in our criminal justice system. The disposition of criminal charges by agreement between the prosecutor and the accused, …is an essential component of the administration of justice. Properly administered, it is to be encouraged. In this Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized and governed by court rule.

Commonwealth v. Anderson, 995 A.2d 1184, 1190-91 (Pa.Super. 2010), appeal denied, 608 Pa. 634, 9 A.3d 626 (2010) (quoting Commonwealth v. Parsons, 969 A.2d 1259, 1267 (Pa.Super. 2009) (en banc), appeal denied, 603 Pa. 685, 982 A.2d 1228 (2009)). "A 'mutuality of advantage' to defendants and prosecutors flows from the ratification of the [plea] bargain." Id. (quoting Commonwealth v. Ward, 493 Pa. 115, 125, 425 A.2d 401, 406 (1981), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981)). Under the plea bargaining process, "a defendant is permitted to waive valuable rights in exchange for important concessions by the Commonwealth when the defendant is facing a slim possibility of acquittal." Commonwealth v. Byrne, 833 A.2d 729, 735 (2003). Thus, the participation of a defendant in the negotiation of a plea bargain "is deemed to be a deliberate election on [her] part to forgo [her] valued right to have [her] guilt or innocence determined before the…trier of fact. This decision is made to avoid the potentially more severe consequences of going to trial." Ward, supra at 124, 425 A.2d at 406 (internal citation omitted).

Instantly, the trial court explained Appellant's ineligibility for a RRRI sentence, as follows:

In the instant case, while Appellant was permitted to plead guilty to several charges of Conspiracy to Commit Burglary of a Home: No One Present…, the fact remains that the actions of Appellant which formed the basis for her prosecution included actions which would support a conviction of Burglary of Home: Person Present…. For example, in carrying out the crime which formed the basis for case number 123-2012, Appellant was confronted by the homeowner while Appellant was on the back porch of the home she was burglarizing. Then, after fleeing, Appellant and her codefendant ran into another person's apartment and refused to leave, causing the woman to flee her home with her baby. This act, too, carried with it a risk of violence. In carrying out the crime which formed the basis for case number 3447-2011, Appellant was confronted by a neighbor of the homeowner, who had come to bring home the homeowner's dog, while she was coming down the inside stairs of the home she was burglarizing. Clearly, Appellant has committed acts which are properly considered violent acts.

(Trial Court Opinion at 7-8) (internal footnotes omitted). The record supports the court's reasoning. See also Pruitt, supra; Rios, supra.

Furthermore, Appellant's reliance on Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa.Super. 2010), appeal denied, 610 Pa. 616, 21 A.3d 1190 (2011), is misplaced. In Gonzalez, this Court held that the defendant's prior conviction for burglary, which was graded as a felony of the second degree, did not constitute "past violent behavior" sufficient to disqualify the defendant from a RRRI sentence because burglary graded as a felony of the second degree does not involve a risk of violence or injury to another person. Id. at 1262. See also 18 Pa.C.S.A. § 3502(c)(2) (grading burglary as felony of second degree where defendant enters building or occupied structure not adapted for overnight accommodation in which at time of offense no person is present). Unlike the defendant in Gonzalez, Appellant pled guilty to conspiracy to commit burglary graded as a felony of the first degree.[3]

Additionally, the Gonzalez decision does not reveal the factual predicate for that defendant's prior burglary conviction or explain whether that conviction was the result of a trial or a plea negotiation. Conversely, the record here shows Appellant's current convictions stem from facts implicating Appellant in a string of fifteen burglaries, at least two of which involved a homeowner or other victim present, and resulting in a multitude of charges against Appellant for burglary, conspiracy to commit burglary, criminal attempt to commit burglary, criminal trespass, conspiracy to commit criminal trespass, theft by unlawful taking or disposition, conspiracy to commit theft by unlawful taking or disposition, criminal mischief, receiving stolen property, conspiracy to commit receiving stolen property, and access device fraud. In consideration for her early cooperation with authorities, the Commonwealth allowed Appellant to plead guilty to a single count of theft by unlawful taking or disposition, and only six counts of conspiracy to commit burglary, each classified as "burglary of home—no one present." Thus, Appellant has already enjoyed the full benefit of her plea bargain, which resulted in the Commonwealth's withdrawal of numerous charges against Appellant. See generally Ward, supra; Parsons, supra. For these reasons, Gonzalez is inapposite. Because the circumstances of Appellant's case evidenced prohibited violent behavior, the court properly deemed Appellant ineligible for a RRRI sentence.[4] See 61 Pa.C.S.A. §§ 4503; 4505. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

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