Com. v. Palladino, M. ( 2019 )

J-S79007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA PALLADINO :
:
Appellant : No. 786 MDA 2018
Appeal from the Judgment of Sentence April 10, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001011-2014,
CP-36-CR-0004424-2013, CP-36-CR-0005085-2017
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 27, 2019
Appellant, Melissa Palladino, appeals from the judgment of sentence
entered on April 10, 2018, in the Lancaster County Court of Common Pleas.
We affirm.1
____________________________________________
1 We point out that Appellant violated Pa.R.A.P. 341 by filing a single notice
of appeal on May 10, 2018, that included three trial court docket numbers,
CP-36-CR-1011-2014, CP-36-CR-4424-2013, and CP-36-CR-5085-2017. On
June 1, 2018, our Supreme Court held that, prospectively, “when a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed. The failure to do so will result in quashal
of the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(emphasis added). In the instant case, however, we note that Appellant’s
consolidated notice of appeal was docketed separately at each of the three
trial court docket numbers, as was her Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Additionally, the trial court addressed the issues
Appellant raised relative to each docket number in its Pa.R.A.P. 1925(a)
opinion. We conclude there is no impediment to appellate review caused by
J-S79007-18
The trial court set forth the relevant facts and procedural history of this
case as follows:
On September 14, 2017, [Appellant] was charged on Docket
Number 5085-2017 with one count of Possession With Intent to
Deliver - Heroin (“PWID”)1 and one count of Criminal Conspiracy
to Commit Possession With Intent to Deliver - Heroin (“Criminal
Conspiracy”).2 At that time, [Appellant] was serving probation
sentences on Docket Number 4424-2013 for one count of Theft of
Lost or Mislaid Property,3 and on Docket Number 1011-2014 for
twenty-two (22) counts of Identity Theft.4 On October 11, 2017,
[Appellant] appeared before the Honorable Howard F. Knisely for
a probation violation hearing. After stipulating that the
Commonwealth would be able to prove the new charges brought
against her beyond a preponderance of the evidence, [Appellant]
was found to be in violation of her probation and her probation
was revoked. Sentencing was deferred pending disposition of
[Appellant’s] new charges. [Appellant] was represented by Daniel
M. Strazynski, Esquire (“Plea Counsel”).
1 35 P.S. § 780-113(a)(30), an ungraded felony.
2 18 Pa. C.S.A. § 903(a), an ungraded felony.
3 18 Pa. C.S.A. § 3924, a misdemeanor of the first
degree.
4 18 Pa. C.S.A. § 4120, a misdemeanor of the first
degree.
On January 12, 2018, a guilty plea hearing was held before
this court, and [Appellant] entered a non-negotiated plea of guilty
on Docket Number 5085-2017. After a thorough plea colloquy, the
court accepted [Appellant’s] plea. A presentence investigation
____________________________________________
Appellant’s failure to file separate notices of appeal in this case. Moreover,
because Appellant’s consolidated notice of appeal was filed prior to our
Supreme Court’s June 1, 2018 decision in Walker, we need not quash the
appeal. See Commonwealth v. Williams, ___ A.3d ___, 2019 Pa. Super.
41 (Pa. Super. 2019) (declining to quash an appeal pursuant to Pa.R.A.P. 341
where the consolidated notice of appeal was filed prior to the decision in
Walker).
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report (“PSI Report”) was ordered for all dockets and sentencing
was deferred until its completion.
On April 10, 2018, a sentencing hearing was held before this
court on all dockets. On Docket Number 5085-2017, [Appellant]
was sentenced on each count to a period of twenty (20) months
to ten (10) years’ incarceration. The sentence on Count 2 was
made to run consecutive to Count 1. On Docket Numbers 4424-
2013 and 1011-2014, [Appellant] was sentenced on each count
to a period of two and one half (2½) to five (5) years’
incarceration. The sentences were made to run concurrent with
each other and concurrent with Docket Number 5085-2017. Thus,
[Appellant] received an aggregate sentence of forty (40) months
to twenty (20) years’ incarceration.
On April 17, 2018, and April 19, 2018, respectively,
[Appellant] filed a Post-Sentence Motion to Modify Sentence and
an Amended Post-Sentence Motion (“Post-Sentence Motions”) on
the above dockets, which the court denied by Order of May 1,
2018. On May 10, 2018, [Appellant] filed a Notice of Appeal to
the Superior Court of Pennsylvania, and on May 14, 2018, the
court entered an Order directing [Appellant] to file a concise
statement of errors complained of on appeal. On June 4, 2018,
[Appellant] filed a Statement of Errors Complained of on Appeal
(“Concise Statement”), and the Commonwealth filed its Response
to [Appellant’s] Statement of Errors Complained of on Appeal
(“Response”) on June 27, 2018.
Trial Court Opinion, 8/16/18, at 1-3.
On appeal, Appellant raises the following issue for this Court’s
consideration:
Was an aggregate sentence [of] 40 months to 20 years [of]
incarceration for nonviolent offenses manifestly excessive and
contrary to the fundamental norms underlying the sentencing
process?
Appellant’s Brief at 9.
Appellant’s issue presents a challenge to the discretionary aspects of her
sentence. It is well settled that when an appellant challenges the discretionary
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aspects of his sentence, there is no automatic appeal; rather, the appeal will
be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test:
[W]e conduct a four-part analysis to determine: (1)
whether [the] 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 [the] 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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Appellant has satisfied the first three elements of the four-part test from
Moury. Appellant preserved the sentencing issue by filing a timely post-
sentence motion and notice of appeal, and she provided a statement of
reasons for allowance of appeal from the discretionary aspects of her sentence
pursuant to Pa.R.A.P. 2119(f) in her brief. Next, we must determine if
Appellant has raised a substantial question for our review. Moury, 992 A.2d
at 170.
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
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fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). 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.” Id. 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. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
In her Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court
imposed a manifestly excessive sentence and failed to consider the non-
violent nature of Appellant’s offenses. Appellant’s Brief at 15. We conclude
that Appellant has presented a substantial question for our review. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (stating
that a claim that a sentence is manifestly excessive, together with an
allegation that the trial court failed to consider mitigating factors and
rehabilitative needs, presents a substantial question).
It should be noted that “sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is
not merely an error in judgment; rather, an appellant must establish that the
trial court ignored or misapplied the law, exercised its judgment for reasons
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J-S79007-18
of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable
decision. Id.
Finally, when the trial court has the benefit of a pre-sentence
investigation report (“PSI”), there is a presumption that the trial court properly
considered and weighed all relevant factors. See Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (“[W]here the sentencing
judge had the benefit of a [PSI] report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”).
We have reviewed Appellant’s brief, the relevant legal authority, the
certified record on appeal, and the trial court’s August 16, 2018 opinion. In
that opinion, the trial court addressed first the sentences imposed on the new
convictions at docket number 5085-2017, next the probation-revocation
sentences imposed at docket numbers 4424-2013 and 1011-2014, and last
the aggregate sentence imposed at all three docket numbers. After review,
we conclude that trial court thoroughly and correctly addressed Appellant’s
sentencing issues. Accordingly, we affirm Appellant’s judgment of sentence
on the basis of the trial court’s opinion and adopt its reasoning as our own.
The parties are directed to attach a copy of August 16, 2018 opinion in the
event of further proceedings in this matter.
Judgment of sentence affirmed.
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J-S79007-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2019
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:.::_upm1on
Circulated 03/07/2019 12:16 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
vs. Nos. 5085-2017
1011-2014
MELISSA PALLADINO 4424-2013
OPINION
BY: MILLER, J.
Date: August 16, 2018 i
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This opinion is written pursuant to Rule 1925( a) of the Pennsylvania Rules of Appellate I
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Procedure. I
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BACKGROUND j
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On September 14, 2017, Melissa PalJadino ("Defendant',) was charged on Docket Number :
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5085-2017 with one count of Possession With Intent to Deliver - Heroin ("PWID")1 and one count
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of Criminal Conspiracy to Commit Possession With Intent to Deliver - Heroin ("Criminal
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Conspiracy"). 2 At that time, Defendant was serving probation sentences on Docket Number 4424- !
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2013 for one count of Theft of Lost or Mislaid Property, 3 and on Docket Number 1011-2014 for
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twenty-two (22) counts of Identity Theft.4 On October 11, 2017, · Defendant appeared before the !
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35 P.S. § 780-113(a)(30), an ungraded felony.
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18 Pa. C.S.A. § 903(a), an ungraded felony. ::,:) 0\ -r,
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18 Pa. C.S.A. § 3924, a misdemeanor of the first degree.
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18 Pa. C.S.A. § 4120, a misdemeanor of the first degree. :< U1
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Nos. 5085-2017
1011-2014
4423-2013
Honorable Howard F. Knisely for a probation violation hearing. After stipulating that the
Commonwealth would be able to prove the new charges brought against her beyond a
preponderance of the evidence, Defendant was found to be in violation of her probation and her
probation was revoked. Sentencing was deferred pending disposition of Defendant's new charges.
Defendant was represented by Daniel M. Strazynski, Esquire ("Plea Counsel").
On January 12, 2018, a guilty plea hearing was held before this court, and Defendant
,,
entered a non-negotiated plea of guilty on Docket Number 5085-2017. After a thorough plea
colloquy, the court accepted Defendant's plea A presentence investigation report ("PSI Report")
was ordered for all dockets and sentencing was deferred until its completion.
On April 10, 2018, a sentencing hearing was held before this court on all dockets. On
Docket Number 5085-2017, Defendant was sentenced on each count to a period of twenty (20)
months to ten (10) years' incarceration. The sentence on Count 2 was made to run consecutive to
Count 1. On Docket Numbers 4424-2013 and 1011-2014, Defendant was sentenced on each count
to a period of two and one half (2Y2) to five (5) years' incarceration. The sentences were made to
run concurrent with each other and concurrent with Docket Number 5085-2017. Thus, Defendant
received an aggregate sentence of forty (40) months to twenty (20) years' incarceration.
On April 17, 2018, and April 19, 2018, respectively, Defendant filed a Post-Sentence
Motion to Modify Sentence and an Amended Post-Sentence Motion ("Post-Sentence Motions")
on the above dockets, which the court denied by Order of May 1, 2018. On May 10, 2018,
Defendant filed a Notice of Appeal to the Superior Court of Pennsylvania, and on May 14, 2018,
the court entered an Order directing Defendant to file a concise statement of errors complained of
on appeal. On June 4, 2018, Defendant filed a Statement of Errors Complained of on Appeal
2
Nos. 5085-2017
1011-2014
4423-2013
("Concise Statement"), and the Commonwealth filed its Response to Defendant's Statement of
Errors Complained of on Appeal ("Response") on June 27, 2018.
DISCUSSION
Defendant appeals from the court's judgment of sentence against her, as finalized by its.
May 1, 2018, denial of Defendant's Post-Sentence Motion. Defendant raises multiple challenges
to the discretionary aspects of the sentences imposed by the court.5 Upon review, the court suggests
that Defendant's appeal be denied.
It is well-established that "the proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of discretion." Commonwealth v. Walls,
926 A.2d 957, 961 (Pa. 2007). This discretion is vested broadly in the sentencing court because it
is in the best position to view the defendant's character, displays of remorse, defiance or
indifference, and the overall effect and nature of the crime. See Commonwealth v. Begley, 780
A.2d 605, 643 (Pa. 2001 ). Stated differently:
the sentencing court sentences the 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. An appellate court will not disturb a sentencing court's judgment absent a
manifest abuse of discretion, and "to constitute an abuse of discretion a sentence must either exceed
the statutory limits or be so manifestly excessive as to constitute an abuse of discretion."
s Specifically, Defendant's Concise Statement alleges the following: 1) the court erred because it failed to provide
adequate reasons for deviating from the standard range of the sentencing guidelines; 2) the court erred because
Defendant's probation violation sentences were manifestly excessive; and 3) the court erred because the aggregate
sentence imposed in this case was manifestly excessive and an abuse of the its discretion.
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Commonwealth v. Pickering, 533 A.2d 735, 738 (1987) (citations 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 lack of support so as to be clearly erroneous." Grady v. Frito-Lay, Inc., 839 A.2d
1038, 1046 (2003). Moreover, "a sentence should not be disturbed where it is evident that the
sentencing court was aware of sentencing considerations and weighed the considerations in a
meaningful fashion." Commonwealth v. Cappellini, 690 A.2d 1220 (Pa. Super. 1997).6
All three errors complained of on appeal facially implicate the discretionary aspects of the
court's sentencing decisions, and despite being in the aggravated range, Defendant's sentences
were within the sentencing guidelines and did not exceed the statutory maximum. As such, the
court's sentencing decisions should not be disturbed unless one or more of Defendant's sentences
are deemed manifestly unreasonableness or a result of partiality, prejudice, bias, ill-will or a
misapplication of law. Defendant makes no claim that the court exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or that it ignored or misapplied the law. Thus, the question
is whether Defendant's judgment of sentence was manifestly unreasonable.
In considering this, the court will first discuss the sentences imposed on Docket Number
5085-2017, then the sentences imposed on Docket Numbers 4424-2013 and 1011-20,4 and finally,
the aggregate sentence imposed on all three.
6
Furthermore, the Sentencing Code "sets forth express standards regarding appellate review of a defendant's
sentence." Walls at 963. In pertinent part, a sentence should be vacated if the reviewing court finds that the sentencing
court sentenced within the sentencing guidelines but the case involves circumstances where the application of the
guidelines would be clearly unreasonable. See 42 Pa. C.S.A. § 9781(c)(2). "In all other cases the appellate court shall
affirm the sentence imposed by the sentencing court." Id. The following factors should be considered in reviewing the
record: 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; and 4) the guidelines promulgated by the commission. See42 Pa. C.S.A § 978l(d).
4
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I. Whether the court erred in sentencing Defendant on Docket Number 5085-2017.
The first error raised by Defendant is that the court did not state sufficient reasons for the
aggravated range sentence it imposed upon Defendant.7
When sentencing a defendant, courts must consider and select one or more of the
alternatives enumerated in 42 Pa. C.S.A. § 972l(a), and in doing so, must "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.A. § 972l(a),
(b ). 8 However, courts are under no obligation to sentence a defendant to the minimum possible
confinement available, and may determine that the facts of a case are more serious than the
"typical" offense and impose a sentence which is in the aggravated range. See Commonwealth v.
Hanson, 856 A.2d 1254, 1259 (Pa. Super. 2004). Additionally, the decision of whether to make
sentences run consecutively or concurrently is within the sound discretion of the trial judge, and
typically, has not been considered a substantial question for review on appeal. See Commonwealth
v. Wei/or, 731 A.2d 152, 155 (Pa. Super. 1999) ( citation omitted).
The court notes that Defendant's first error is likely waived. "Objections to the
discretionary aspects of a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed." Commonwealth v. Derry, 150 A.3d 987,
7
Although Defendant's Concise Statement fails to indicate which docket number the first error pertains to, the court
presumes it addressed Defendant's new charges on Docket Number 5085�2017.
8 See also 42 Pa. C.S.A. § 9725 (courts "shall impose a sentence of total confinement if... it is of the opinion that the
total confinement of the defendant is necessary because 1) there is undue risk that during a period of probation or
partial confinement the defendant will commit another crime; 2) the defendant is in need of correctional treatment that
can be provided most effectively by his commitment to an institution; or 3) a lesser sentence will depreciate the
seriousness of the crime of the defendant").
5
Nos. 5085-2017
1011-2014
4423-2013·
991 (Pa. Super. 2016) (citation omitted). In the instant case, no objections were made at
Defendant's sentencing hearing, and while her Motion to Modify includes each of the sub-
arguments stated in Defendant's Concise Statement for support, the allegation that the court failed
to state sufficient reasons for Defendant's aggravated sentence was not previously raised. As such,
doubt is cast upon whether Defendant's first error was properly preserved. However, this finding
is unnecessary because the allegation of error is without merit.
Defendant first contends that the court did not state sufficient reasons for the aggravated
range sentence it imposed upon Defendant. Although Defendant's Concise Statement did not
include citation in support of this claim, Defendant's Motion to Modify relied largely upon
Commonwealth v. Walls. In Walls, our Supreme Court clarified the proper standard of review for
a sentencing court's imposition of sentence, which is well-settled as an abuse of discretion.
Additionally, the Walls court discussed the role which the sentencing guidelines must have when
a defendant is sentenced, and the analysis which a reviewing court must conduct when a sentence
which fell outside of them is challenged. In reaffirming their advisory, non-binding nature, the
Walls court indicated that the guidelines must be respected and considered, while noting, "to
ensure that such consideration is more than mere fluff, the court must explain its reasons for
departure from them." Walls at 964 (quoting Sessoms, 532 A.2d at 781).
However, the facts of the instant appeal and Walls are dissimilar in that, despite being at
the high end of the aggravated range, Defendant's sentence fell within her guidelines while the
Walls defendant's sentence exceeded his guidelines. While the court believes that it did in fact
state sufficient reasons for Defendant's aggravated sentence, it emphasizes that deviating from the
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standard range of the sentencing guidelines does not mean deviating from the sentencing
guidelines and notes the heightened requirements of the latter.
Ultimately, these points are irrelevant because the court finds Defendant's supporting
arguments, which align with those raised in Defendant's Motion to Modify, unpersuasive.
Defendant claims that, instead of stating its reasons for the aggravated range sentence it imposed,
the court focused on punishment and protection of the public, misunderstood remarks made by
Plea Counsel, failed to individualize Defendant's sentence, based its aggravated sentence on drug
quantity, and did not adequately consider Defendant's severe addiction, prior abuse or cooperation
with law enforcement. Additionally, Defendant states that the court issued a manifestly
unreasonable sentence when it ordered Defendant's Criminal Conspiracy sentence to run
consecutive to her PWID sentence.
As an initial matter, as indicated by the Commonwealth in its Response, the court notes
that our Supreme Court has held that when a pre-sentence report exists, a reviewing court will
"continue to presume that the sentencing judge was aware of relevant information regarding the·
defendant's character and weighed those considerations along with mitigating statutory factors[,]"
and that "[hjaving been fully informed by the pre-sentence report, the sentencing court's discretion
should not be disturbed." Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Here, the court
was fully informed by Defendant's PSI Report, and as such, it's discretion should not be disturbed.
However, with respect the arguments raised by Defendant, first, the court did not
inappropriately focus on punishment and protection of the public in lieu of Defendant's
rehabilitative needs. While punishment and protection of the public factored into the court's
sentence, considerations such as these are squarely within the court's discretion. Outside of
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Nos. 5085-2017
1011-2014
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Defendant's bald assertions, there exists nothing to establish or imply that the court inappropriately
focused on these factors in lieu of Defendant's rehabilitation needs.On the contrary, the court
indicated that it was refraining from doing so.
Despite the Commonwealth's steadfast belief that Defendant supplied heroin which
resulted in deaths, the court stated that there was no proof in this case to link Defendant to any
death, and as such, the court did not consider such as a factor in the sentence it imposed. See N. T.,
4/10/18, p. 21. Defendant's rehabilitative needs were carefully considered with all other factors
pertinent to this case and required by law. 9 While addressing her need for drug and alcohol, mental
health and PTSD treatment, the court stated to Defendant, "you 're an addict. You 're going to need
drug and alcohol treatment when you are serving your sentence ... and I think probably mental
health and PTSD treatment." Id. at 22. However, the court clarified that "none of that [i.e.,
Defendant's need for drug and alcohol, mental health and PTSD treatment] explains, excuses or
mitigates in any way the level of activity in drug sales and drug delivery" that was before it. See
N.T., 4/10/18, p. 22.
Second, the court did not incorrectly infer that Plea Counsel was trying to suggest that
Defendant only possessed heroin for personal use. In this regard, Defendant's Concise Statement
likely references the following statement: "[t]he amount of heroin [Defendant] possessed here was
significant, but with a reference, it was an amount she could probably go through with her addiction
9 In making Defendant eligible for all programs available to her in the state correctional system, and specifically
requesting that the Department of Corrections consider the drug and alcohol evaluation and treatment of Defendant,
the court ensured that those rehabilitative opportunities will be present for Defendant during her incarceration.
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in about two days." N.T., 4/10/18, p. 11.10 In response, the court indicated that it had seen-
individuals who have sold drugs to fund their own habit, but it noted that:
it begs this Court's credulity to believe that the 62 bags that were found in your
possession were your own personal supply for a day or two and begs the Court's
credulity even further on the conspiracy count with 89 bags that you were doing
anything but engaging in a serious, well-organized business of dealing heroin.
Probably using it, too. I'm sure that this managed to fund your own use nicely. But
with this amount of heroin going out on the street, all you are doing is adding to the
scourge which is the opioid epidemic changing the face of our society.
N.T., 4/10/18, p. 19. This statement was not indicative of any mistaken inferences made by the
court, as the court did not interpret Plea Counsel's statements to be a suggestion that Defendant
only possessed for personal use. Alternatively, the court recognized the unrealistic amount of
heroin Defendant was purportedly using as a means of diminishing her level of involvement in the
drug trade, as it stated:
not everyone who relapses goes into business, and you are essentially in the retail
business of dealing heroin more so than anything else. And that is not acceptable,
and that is not safe, and this Court will not take lightly that you have tried to explain
away or excuse your own behavior with, I relapsed because I was in an abusive
relationship. I believe you were, and I'm sorry, and if that caused your relapse, I'm
sorry, too. But none of that made you tum into a dealer of 63 bags on Count 1 and
conspiracy to [deal] 89 bags in Count 2.
N.T., 4/10/18, p. 20. The court was unpersuaded by Defendant's use of her hardships to justify her
criminal conduct. Great measure was taken to portray Defendant as a severe addict who sold drugs
only to support her daily habit, and the court simply does not believe that to be true.
Third, the court did not fail to individualize Defendant's sentence. Defendant claims the
court failed to individualize Defendant's sentence because it improperly factored in the recent rise
re This statement is like others made both at Defendant's sentencing hearing and in the Drug/Alcohol History included
in her PSI Report, whereby Defendant's heroin use was approximated at fifty (50) bags per day right before her
incarceration for the instant offenses.
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in overdose deaths in the community. Defendant's Motion to Modify argued that this violated the
general principles of sentencing in Pennsylvania, which require that sentences be individualized,
and cited to Walls, 926 A.2d at 573. However, Defendant's reliance upon the decision for support
is again misplaced, as the Walls court concluded that the sentencing court did not render a non-.
individualized sentence despite stronger facts contra than those in the instant case. First, the Walls
court reviewed the issue within the context of whether the sentencing court had an agenda against
sex offenders which involved imposing maximum sentences, outside ofthe sentencing guidelines,
regardless of the individualized circumstances of the case.11 Second, the Walls court indicated that
the sentencing court may have cast doubt upon the individualized nature of the defendant's
sentence by making certain comments about individuals who sexually victimize young children.12
Despite these circumstances, the Walls court concluded that the sentencing court made an
individualized sentencing decision when viewed as a whole because it "considered a number of
factors which led it to sentence outside of the guidelines and these factors were specific to [the
Walls defendant]." Id. at 573. Considering this holding, the Walls court made clear that the
threshold for establishing that a sentencing court imposed a non-individualized sentence is high.
Any argument that the court failed to individualize Defendant's sentence is without factual
or legal support. Defendant contends the court improperly factored in the recent rise in overdose
deaths in the community; however, courts in the Commonwealth of Pennsylvania have consistently
11 The Walls court noted that, even if not an agenda, the Superior Court believed that the sentencing court "focused to
an extreme on retribution and protecting the public - noting that the court was not free to reject the guidelines and
impose its sense of just punishment." Walls at 572.
12 These included statements the sentencing court made prior to sentencing which indicated its belief that there is no
successful, long term treatment for pedophilia, and that as such, there is no realistic expectation that the defendant
could be treated. Additionally, the sentencing court discussed one of its early cases where it imposed what it believed
to be a "shortsighted-sentence." Walls, 926 A.2d at FN S. ·
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recognized that general deterrence is one of the five purposes of sentencing which a court is
permitted to consider. See Commonwealth v. Williams, 652 A.2d 283, FN 1 (Pa. 1994); see also
Commonwealth v. Lilley, 978 A.2d 995, 999 (Pa. Super. 2009). The comments made by the court
when factoring in the recent rise in overdose deaths in the community fall far short of the type that
may cast doubt upon the individualized nature of the sentence imposed by the Walls sentencing
court. As stated, numerous factors were weighed and many circumstances considered when the
court crafted the individualized sentence which it tailored to, and imposed upon, Defendant.
Fourth, Defendant's claim that the court erroneously based its sentence on drug quantity
because drug quantity is "a factor/enhancement already accounted for within the Offense Gravity
Score" is mistaken. See Defendant's Concise Statement, p. 1. This claim aligns with the argument
of Defendant's Motion to Modify that the court erroneously "double counted" factors by basing
its aggravated sentence on drug quantity, which Defendant contends violates the principles
expressed in Goggins, Whitmore, McNabb, and Darden. While these cases held that sentencing
courts may not "double count" factors which were already taken into account in the sentencing
guidelines, they fail to support Defendant's argument.
In Commonwealth v. Goggins, 748 A.2d 721, 731. (Pa. Super. 2000), the defendant argued,
in part, that the trial court erred because it relied on factors already taken into account in
determining his prior record score and offense gravity score. The Goggins court held that the
sentence was not the result of the sentencing court double-counting because it was based, not on
the weight of the drugs possessed, but on the way it was packaged. Id. at 732. The Goggins court
also considered whether the sentencing court erred by factoring in the defendant's prior record.
Similarly, Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super. 2004), Commonwealth v,
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McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) and
.
Commonwealth v. Darden, 531 A.2d 1144 (Pa..
Super. 1987) each considered .similar issues with respect to whether the sentencing court erred by
factoring in the defendant's prior records when imposing its sentences.
Although the Whitmore and Goggins courts held that the sentencing court committed error
by double counting a prior conviction, these cases involved statutory maximum sentences, and the
McNabb and Darden courts ruled against their defendants. Like the first Goggins issue, McNabb
ruled that the sentencing court did not base its sentence upon Defendant's prior convictions, but
rather upon his being on state and county probation at the time of the offense. The Darden court
disagreed with the defendant's argument that it was improper to cite his criminal history as an.
aggravating factor, finding that it was clear that the defendant's low prior record score did not
begin to account for his "staggering record of criminal activity." Additionally, the Darden court
held that "[p]rior connections of whatever nature, with law enforcement authorities are
unquestionably among the circumstances to be scrutinized" in determining the appropriate
sentence," and noted that, "[b ]y the same reasoning, it follows that facts regarding the nature and
circumstances of an offense, which are not necessary elements of the offense for which appellant
has been convicted, are also proper factors to be considered in deciding whether to sentence in the
mitigated minimum range, the aggravated minimum range, or outside the guidelines." Darden;
531 A.2d at 1149 (internal citations omitted).
Like Goggins and McNabb, the court did not "double count" factors because although
quantity was discussed, the court's focus was directed to Defendant's actual role in the drug trade
after Defendant implied that she was merely supporting her habit. As the court explained, "[t]he
statement that [Defendant] gave to the police certainly contained a lot of information to support
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the conclusion that [Defendant was], in fact, dealing at a level well beyond the relapsed addict just
trying to support their own use." N.T., 4/10/18, p. 20. These connections to the drug trade are
unquestionably among the circumstances to be scrutinized, along with the nature and
circumstances of the offense which are not necessarily elements of it. As such, the court did not.
impermissibly base the sentence it imposed upon Defendant on drug quantity.
Fifth, the court disagrees with Defendant's argument that it failed to adequately consider
the mitigating factors which existed in the instant case. The court explicitly noted that Defendant's
addiction was a lifelong battle and stated that it understood that Defendant's likely abuse could-
have been a cause of her relapse. See N. T., 4/10/18, p. 20. The court indicated that it was sorry for
the difficulties which Defendant endured in her life, but stated that Defendant has had many
opportunities to address her addiction. Regardless, courts are granted great deference in weighing
any perceived mitigating factors, and the instant standard of review does not allow a reviewing
court to challenge the sentencing court's credibility determination.'! Defendant appeared before
the court, and gave comments that the court ultimately deemed unsatisfactory to justify her
conduct. The court explained to Defendant, "not everyone who relapses goes into business, and
you are essentially in the retail business of dealing heroin more so than anything else." Id. at 20. ·
All relevant facts and circumstances were considered by the court, including any mitigating factors
such as Defendant's addiction, abuse, and rehabilitative needs.14
13 See Commonwealth v. Myers, 122 A.2d 649, 654 (Pa. 1998).
14 The court notes its agreement with the Commonwealth regarding Defendant's alleged cooperation with law
enforcement during her investigation. While Defendant may have confessed and plead guilty, she never availed herself
of the opportunity to become an informant for the police. Thus, the court gave this "mitigating factor" little weight.
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Finally, the court did not issue a manifestly excessive sentence when running the
Conspiracy and PWID sentences consecutively. In fashioning a state sentence, the court noted that
"these two counts are such that only by making them consecutive to one another can this Court
properly vindicate the safety of our community, address the gravity of the offense as it affects the
community, take into account [Defendant's] conduct and consider her individual profile as a
defendant, which [the court] is required to do." N.T., 4/10/18, p. 22. The decision of whether to
run sentences consecutively or concurrently is well within the sound discretion of the court, and
there exists no abuse of that discretion in the instant case.
Defendant is unable to establish the first error raised, as the sentences were consistent with
the statutory guidelines and Defendant's individual characteristics and circumstances, including
all potential aggravating and mitigating factors, were weighed and explained on the record by the
court. Amongst other things, the court indicated that it was disaessed by Defendant's statement
to the police that she was essentially a dedicated and persistent drug dealer responsible for
providing large quantities of opioids to the community each day while introducing others to her
supplier. Moreover, the court noted Defendant's lack of effort to remedy her drug addiction, as she
instead chose to become a drug dealer to profit from this enterprise and support her habit, and
discussed the devastating impact which this conduct had on the community. Defendant's sentences
are consistent with her rehabilitative needs, the protection of the public, and the gravity of the
offenses as they relate to the victims and. the community. Therefore, the sentences imposed were
not manifestly unreasonable, and the court neither abused its discretion nor committed any error
in sentencing Defendant on Docket Number 5085-2017.
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II. Whether the court erred in sentencing Defendant on Docket Numbers 4424-2013
and 1011-2014.
The second error raised by Defendant is that the sentences imposed by the court for the.
probation violations were manifestly excessive.
Upon revoking probation, sentencing is vested within the sound discretion of the trial court,
and absent an abuse of that discretion, the imposition thereof will not be disturbed on appeal. See
Commonwealth v. Finnecy, 135 A.3d 1028 (2016). Moreover:
The sentencing court's institutional advantage is, perhaps, more pronounced in
fashioning a sentence following the revocation of probation, which is qualitatively
different than an initial sentencing procedure. At initial sentencing, all of the rules
and procedures designed to inform the court and to cabin its discretionary
sentencing authority properly are involved and play a crucial role. However, it is a
different matter when a defendant reappears before the court for sentencing
proceedings following a violation of the mercy bestowed upon him in the form of
a probationary sentence. For example, in such a case, contrary to when an initial
sentence is imposed, the Sentencing Guidelines do not apply, and the revocation
court is not cabined by Section 972l(b)'s requirement 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."
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). Once probation has been revoked, the
court may impose a sentence of total confinement if finds that the defendant has been convicted of
another crime, see 42 Pa. C.S.A. § 9.77l(c), and "[t]he trial court is limited only by the maximum
sentence that it could have imposed originally at the time of the probationary sentence[.]" Pasture
at 27-28. Although "the court shall make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the sentence imposed," 42 Pa. C.S.A.
§ 972l(b), it "need not undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statutes in question." Pasture at 28.
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Defendant's Concise Statement alleged that the sentences imposed on Docket Numbers
4424-2013 and 1011-2014 are manifestly excessive because the court failed to take into
consideration that, aside from fines and costs violations, the new charges at issue were Defendant's
only violation. Again, for largely the same reasons as discussed supra, the court disagrees with
Defendant.
The court did not view this as just a singular "new charges" case, where Defendant had a
momentary lapse in judgment or made a simple mistake. The facts make it clear that Defendant's
level of activity in drug sales and delivery was that of a drug dealer, and well beyond that of a
relapsed addict trying to support their habit. Although its discussion of this may have occurred
primarily in the context of Defendant's charges on Docket Number 5085-2017, the court's
comments are equally applicable to Defendant's violations. Moreover, with respect to Defendant's
violations, the court stated:
You did this while you were on supervision, and you had been given a break on a
prior PV for fines and costs, and granted, you know, fines and costs is not new
charges ... it is still a violation, by simply getting your probation continued instead
of revoked and any other kind of new sentence or new probation to reset the clock.
Not all judges would do that.
N.T., 4/10/18, p. 21. The increased significance of this statement is two-fold. First, the court
emphasized the fact· that Defendant engaged in drug dealing while already under the court's
supervision.15 Second, the court noted that Defendant had previously received leniency from the
15See Commonwealth v, Derry, 150 A.3d 987, 998-99 (Pa. Super. 2016), which held that the defendant's commission
of new charges while on probation, in addition to technical violations, demonstrated a lack of rehabilitative success,
and that the defendant's sentence was not manifestly unreasonable because, in part, the court emphasized that the
defendant's crimes occurred while the defendant was under the court's supervision.
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court.16 Ultimately, Defendant's probation violation sentences were not erroneously imposed, and·
the court adequately considered all facts and circumstances in the instant cases.
As indicated supra, the court need not undertake a lengthy discourse of its reasons for
imposing a violation sentence, and as such, the court's comments were sufficient to establish the
requirements of 42 Pa. C.S.A § 9721(b), The sentences imposed by the court for Defendant's
probation violations were not just the result of Defendant being convicted of a serious crime while
on supervision, but also the admissions she made regarding her prolonged and sustained level of
involvement in the drug trade and her unwilling to seek rehabilitation. The sentences did not
exceed the maximum sentence the court could have originally imposed, and their reasons were
disclosed in open court at the time of sentencing. Therefore, Defendant's violation sentences were
not manifestly unreasonable or excessive, and the court neither abused its discretion nor committed
any error on Docket Numbers 4424-2013 and 1011-2014.
III. Whether the court erred in the aggregate sentence it imposed on all dockets.
Third, Defendant contends that the court erred because the aggregate sentence it imposed
was manifestly excessive and an abuse of the its discretion.
While Defendant's Concise Statement is devoid of support for Defendant's final claim,
Defendant's Post-Sentence Motion argued that the court failed to adequately consider the extent
of the abuse and mental illness that Defendant endured throughout her life or her need for drug
and alcohol treatment. Instead, Defendant alleges the court focused on the seriousness of the
offense, in violation the principles set forth in Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa.
16See Pasture, 107 A.3d 28-29, which held, in part, that a trial court does not necessarily abuse its discretion by
imposing a harsher violation sentence if the defendant received a lenient sentence and then failed to adhere to the
conditions which were imposed upon them.
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Super. 2004) and Commonwealth v. Ruffo, 520 A.2d 43 (Pa. Super. 1987), which held that a
sentencing court must consider all the relevant factors and cannot rely exclusively on the
seriousness of the offense.
Again, the court disagrees for the reasons discussed supra. At sentencing, the court agreed
with the Commonwealth that the sentencing guidelines do not adequately reflect the sentence that
should be imposed in cases such as this, and indicated that, knowing what it did about the facts of
the case, "this is not even close to a county-level offense." N.T., 4/10/18, p. 2LHowever,
regardless of Defendant's bald assertions contra, the court did not rely exclusively on the
seriousness of the offenses, as it carefully reviewed all the relevant, and necessary, factors in the
instant case.
Great consideration was given to Defendant's situation and the circumstances surrounding_
it. The court referenced extensive documentation, including Defendant's PSI Report, as well as
counsel's arguments and all statements made at the sentencing hearing, which provided a clear
picture of the instant case and supported the outcome. Ultimately, Defendant's aggregate sentence
reflects the magnitude of Defendant's crimes and violations, and achieves the requisite
rehabilitative, deterrent, and safety objectives. Therefore, the aggregate sentence imposed was not
manifestly unreasonable or excessive, and the court neither abused its discretion nor committed
error in sentencing Defendant on all three dockets.
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For the foregoing reasons, the court respectfully suggests that Defendant's appeal be
denied.
ATTEST: BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
VS. Nos. 5085-2017
1011-2014
MELISSA PALLADINO 4424-2013
ORDER
AND NOW, this 161h day of August, 2018, the court having filed its Opinion in accordance
with Pa. R.A.P. 1925( a), the Clerk of Courts of Lancaster County is hereby directed to promptly
transmit the record in the above-captioned case to the Superior Court of Pennsylvania, pursuant to
the requirements of Pa. R.A.P. 1931.
ATTEST: BY THE COURT:
******************************************************************************
Copies to: Andrew T. Lefever, Esquire-Office of the District Attorney
Jade M. Salyards, Esquire-Office of the Public Defender