Argued September 9, 2014
Appeal from the Judgment of Superior Court entered on 4/30/12 at No. 811 EDA 2009, vacating and remanding the judgment of sentence entered on 2/12/09 in the Court of Common Pleas, Criminal Division, Philadelphia County, at No. CP-51-CR-0200441-2001. Appeal allowed September 27, 2013 at 258 EAL 2012. Trial Court Judge: Amanda Cooperman, Judge. Intermediate Court Judges: John T. Bender, Judge, Christine Donohue, Judge, Robert A. Freedberg, Judge.
For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns Jr., Esq., Ronald Eisenberg, Esq., Alison Jo Guest, Esq., Edward F. McCann Jr., Esq., Philadelphia District Attorney's Office; R. Seth Williams, Esq.
For Tyde Pasture, APPELLEE: Karl Baker, Esq.; Owen W. Larrabee, Esq., Jeffrey Paul Shender, Esq., Defender Association of Philadelphia.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille and Messrs. Justice Eakin and Baer join the opinion. Mr. Justice Saylor files a dissenting opinion. Madame Justice Todd dissents as she would dismiss this appeal as having been improvidently granted.
MR. STEVENS, JUSTICE
In this discretionary appeal, we consider whether the Superior Court erred in making certain legal determinations leading it to vacate the judgment of sentence imposed upon Appellee Tyde Pasture following the revocation of his probation. We hold the Superior Court misapplied certain sentencing provisions, leading it to give insufficient deference to the revocation court's imposition of the sentence following the revocation of Pasture's probation, and for the reasons set forth below, we vacate
the Superior Court's order and reinstate Pasture's judgment of sentence entered on February 12, 2009.
The facts upon which the lower tribunals based their decisions follow. Pasture sexually molested his live-in paramour's daughter, beginning when she was nine years of age. When the victim was eleven years old, she reported the molestation to her mother, and an investigation ensued.
Pasture eventually entered an Alford plea to aggravated indecent assault and corruption of minors, 18 Pa.C.S. § § 3125 and 6301, respectively, and following a hearing on July 20, 2004, he was deemed to be a " sexually violent predator" subject to the reporting requirements of the then current version of the Registration of Sexual Offenders Act, Megan's Law II, 42 Pa.C.S. § § 9791-9799.9. On July 21, 2004, following a hearing, and with the trial court having the benefit of a pre-sentence investigation report (" PSI" ) the trial court sentenced Pasture to eleven and one-half months to twenty-three months in prison, to be followed by eight years of reporting probation, for the aggravated indecent assault conviction, and to a consecutive five years of reporting probation for the corruption of minors conviction. On direct appeal, the Superior Court affirmed Pasture's judgment of sentence, and this Court denied review. Commonwealth v. Pasture, 898 A.2d 1132 (Pa.Super. filed March 8, 2006) (table), No. 2216 EDA 2004 (unpublished memorandum), appeal denied, 588 Pa. 779, 906 A.2d 541 (2006).
After serving his sentence of incarceration, Pasture was released and began serving the probationary term of his sentence. One of the conditions of his probation was that he refrain from using drugs and alcohol, and accordingly, he was required to submit to random drug urinalysis tests. After several of these tests produced a positive result for marijuana and alcohol, the Commonwealth sought to revoke Pasture's probation.
At the ensuing February 12, 2009 probation revocation hearing, at which Pasture was represented by counsel, it was revealed that Pasture began using prohibited substances while on probation beginning in March of 2007, and when his probation officer discovered Pasture's substance use, he informed Pasture that he must cease using the substances or the trial court would be informed. N.T. 2/12/2009, probation revocation hearing, at 3. Accordingly, in August of 2007, Pasture entered an out-patient drug rehabilitation program, and he remained in treatment with negative drug urinalysis tests until January of 2008. Id. at 10. However, on February 7, 2008, Pasture was shot in the back, neck, and stomach, and he again began to use marijuana and alcohol. Id. at 3-5. Pasture admitted that he violated the terms of his probation by using marijuana and alcohol; however, he averred he used the substances
solely to relieve the pain he suffered from his gunshot wounds. Id. at 2, 10. Pasture noted that he had been complying with all other conditions of his probation, including attending sex offender treatment, reporting to his probation officer, and making payment on arrears owed to the court. Id. at 9.
In response, the Commonwealth urged the revocation court not to accept Pasture's shooting injuries as an excuse for his prohibited substance use. Id. at 8. The Commonwealth noted Pasture had positive test results beginning in March of 2007, prior to being shot, and while Pasture did not use drugs while participating in out-patient drug treatment, he began using drugs again as soon as he completed his rehabilitation program. Id. at 11. The Commonwealth also informed the revocation court that, despite Pasture's claims to the contrary, he was over $5,000 behind in payments owed to the court. Id. at 11.
At the conclusion of the hearing, the revocation court revoked Pasture's probation. The revocation court then sentenced him to two and one-half years to five years in prison, to be followed by three years of probation, for his aggravated indecent assault conviction, and a consecutive five years of probation for his corruption of ...