from the Judgment of Sentence imposed December 14, 2015 In
the Court of Common Pleas of Lycoming County CP-41-CR at Nos:
0000045-2014, 0000547-2015, 0002134-2013, 0002148-2013
BEFORE: BOWES, OLSON, and STABILE, JJ.
Commonwealth of Pennsylvania appeals from the December 14,
2015 judgment of sentence imposing an aggregate five years of
probation for four counts of aggravated harassment by a
prisoner (18 Pa.C.S.A. § 2703.1). The trial court
imposed no further penalty for Appellee's guilty plea to
a fifth count of aggravated harassment and one count of
aggravated assault (18 Pa.C.S.A. § 2702). We affirm.
the offenses at issue arise from incidents between Appellee
and corrections officers at SCI Muncy. On September 15, 2012,
while awaiting trial for another offense, Appellee spit on
and kicked two corrections officers. The Commonwealth charged
Appellee with two counts of aggravated harassment by a
prisoner, two counts of aggravated assault, and two counts of
simple assault at docket number 2148 of 2013.
November 6, 2013, Appellee screamed at and spit on a
corrections officer at SCI Muncy. The Commonwealth charged
her with aggravated harassment by a prisoner at docket number
2134 of 2013. Similar incidents occurred on November 18, 2013
and December 16, 2014, resulting in two more charges of
aggravated harassment by a prisoner at docket numbers 45 of
2014 and 547 of 2015.
August 18, 2015, Appellee entered a guilty plea to the
aforementioned offenses. The trial court appointed Dr. Terri
Calvert to examine Appellee and testify at Appellee's
sentencing hearing. The sentencing hearing took place on
December 1, 2015. At its conclusion, the trial court imposed
a sentence of five years of probation. On December 11, 2015,
the Commonwealth filed a timely motion to reconsider. The
trial court conducted a hearing on December 14, 2015 and
modified Appellee's sentence to include six months of
electronic monitoring. The sentence otherwise remained
unchanged. The Commonwealth's timely appeal followed.
Commonwealth asserts the following errors:
A. Whether the trial court abused its sentencing discretion
by imposing a sentence below the mitigated range of the
B. Whether the trial court abused its discretion by imposing
a sentence of probation without any incarceration.
C. Whether the trial court abused its discretion by imposing
a sentence of guilt without further penalty for the most
serious charge, aggravated assault.
Commonwealth's Brief at 9.
these issues challenges the trial court's sentencing
discretion. The Commonwealth preserved these issues in its
timely post-sentence motion. The Commonwealth's brief
includes a Pa.R.A.P. 2119(f) statement arguing that its
assertions of error present substantial questions for review.
A substantial question requires a demonstration that 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. This Court's inquiry must focus on the reasons
for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the
appeal on the merits. Whether a substantial question has been
raised is determined on a case-by-case basis; the fact that a
sentence is within the statutory limits does not mean a
substantial question cannot be raised.
Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.
Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013).
Instantly, the Commonwealth argues that the statutory factors
set forth in 42 Pa.C.S.A. §§ 9722 and 9725
warranted a sentence of incarceration. Commonwealth's
Brief at 22. The Commonwealth also argues that the trial
court's sentence constituted an unreasonable deviation
from the sentencing guidelines, given the circumstances of
this case. Id. We conclude the Commonwealth has
presented a substantial question for our review. See
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001) (holding that the Commonwealth raised a substantial
question where it alleged the sentence was excessively
lenient and provided specific reasons why the sentence
violated sentencing norms), appeal denied, 796 A.2d
979 (Pa. 2002).
review the trial court's sentencing scheme for abuse of
discretion. Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007). "[A]n abuse of discretion is more than a
mere error of judgment; thus, a sentencing court will not
have abused its discretion unless the record discloses that
the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will."
9781(c) of the Sentencing Code directs this Court to vacate a
sentence and remand to the sentencing court if "the
sentencing court sentenced outside the sentencing guidelines
and the sentence is unreasonable." 42 Pa.C.S.A. §
9781(c)(3). Likewise, § 9781(d) governs our review of
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based. (4)The
guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Supreme Court has addressed the § 9781(c)(3)
"unreasonable" inquiry as follows:
What makes a sentence "unreasonable" is not defined
in the statute. Generally speaking, "unreasonable"
commonly connotes a decision that is "irrational"
or "not guided by sound judgment." The Random House
Dictionary of the English Language, 2084 (2nd ed. 1987);
see 1 Pa.C.S. § 1903 (words to be construed
according to their common and approved usage). While a
general understanding of unreasonableness is helpful, in this
context, it is apparent that the General Assembly has
intended the concept of unreasonableness to be a fluid one,
as exemplified by the four factors set forth in Section
9781(d) to be considered in making this determination.
Indeed, based upon the very factors set out in Section
9781(d), it is clear that the General Assembly intended the
concept of unreasonableness to be inherently a
circumstance-dependent concept that is flexible in
understanding and lacking precise definition.
[W]e decline to fashion any concrete rules as to the
unreasonableness inquiry for a sentence that falls outside of
applicable guidelines under Section 9781(c)(3). We are of the
view, however, that the Legislature intended that
considerations found in Section 9721 inform appellate review
for unreasonableness. That is, while a sentence may be found
to be unreasonable after review of Section 9781(d)'s four
statutory factors, in addition a sentence may also be
unreasonable if the appellate court finds that the sentence
was imposed without express or implicit consideration by the
sentencing court of the general standards applicable to
sentencing found in Section 9721, i.e., the protection of the
public; the gravity of the offense in relation to the impact
on the victim and the community; and the rehabilitative needs
of the defendant. 42 Pa.C.S. § 9721(b). Moreover, even
though the unreasonableness inquiry lacks precise boundaries,
we are confident that rejection of a sentencing court's
imposition of sentence on unreasonableness grounds would
occur infrequently, whether the sentence is above or below
the guideline ranges, especially when the unreasonableness
inquiry is conducted using the proper standard of review.
Walls, 926 A.2d at 963-64 (some citation omitted).
Commonwealth notes that the guideline range for each of
Appellee's offenses was 21 to 27 months of incarceration.
The aggregate guideline range, had the trial court imposed
consecutive sentences for all six offenses, was 126 to 162
months of incarceration. As ...