J-S02006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LISA MARIE PHILHOWER
Appellant
No. 1900 EDA 2012
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 BY GANTMAN, J.:
FILED FEBRUARY 05, 2014
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,
____________________________________________
1
18 Pa.C.S.A. §§ 903 (§ 3502 related) and 3921, respectively.
______________________
*
Retired Senior Judge assigned to the Superior Court.
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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
consecutive to the conspiracy sentences.
for
the
theft
conviction,
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.
notice of appeal on May 30, 2012.
Appellant timely filed a
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:
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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
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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 caseby-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)).
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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
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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
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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.
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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
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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 statute2 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.
____________________________________________
2
The legislature amended the burglary statute on July 5, 2012 (effective
September 4, 2012) and again on December 23, 2013 (effective February
21, 2014). Consistent with the version in effect at the time of Appellant’s
offenses, the current burglary statute classifies all burglaries as first-degree
felonies, with the exception of those where the defendant enters a building
or occupied structure that is not adapted for overnight accommodations in
which at the time of the offense no person is present, which are seconddegree felonies; if the actor’s intent upon entering the structure not adapted
for overnight accommodations, in which at the time of the offense no person
is present, is to commit theft of a controlled substance, the burglary is a
felony of the first degree.
See 18 Pa.C.S.A. § 3502(a)(4), (c) (as
amended).
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*
(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
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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.
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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
____________________________________________
3
In its opinion, the trial court mistakenly states Appellant pled guilty to six
counts of conspiracy to commit burglary, each graded as a second-degree
felony. The record makes clear, however, Appellant pled guilty to conspiracy
to commit burglary offenses which all were graded as first-degree felonies.
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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.
____________________________________________
The record also reveals that several of Appellant’s past burglary convictions
were graded as first-degree felonies.
4
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2014
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