Com. v. Finnecy, J. , 135 A.3d 1028 ( 2016 )

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2016 Pa. Super. 41
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES PAUL FINNECY,
Appellant No. 1871 WDA 2014
Appeal from the Judgment of Sentence October 7, 2014
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000498-2013
CP-61-CR-0000688-2009
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED FEBRUARY 18, 2016
Appellant James Finnecy appeals from the aggregate judgment of
sentence of twelve and one-half to twenty-five years incarceration. After
careful review, we affirm.
The instant appeal is the latest of Appellant’s multiple appearances
before the trial court relating to his underlying offenses. Appellant was
initially sentenced on January 22, 2010, to a maximum of two years
incarceration for counts of unauthorized use of a motor vehicle and theft by
unlawful taking, as well as two consecutive terms of 18 months probation for
escape, resisting arrest, forgery, and identity theft. Upon concluding his
term of incarceration on October 26, 2011, Appellant was placed on Venango
County Probation. He was assigned to an officer on October 30, 2011, with
a maximum date of supervision of October 26, 2014. The next several
*
Retired Senior Judge assigned to the Superior Court.
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months saw multiple probation violations and failed attempts at treatment
for Appellant’s recurring drug use, all supervised by the trial court. In
response to his penultimate violation, the trial court revoked Appellant’s
probation and sentenced him to twelve to twenty-four months incarceration
in the Venango County Jail. His subsequent conduct was summarized by the
trial court as follows.
On April 10, 2014, [Appellant] was released from Venango
County Prison and paroled to the Oxford House located at 1417
Chestnut Street, Franklin, PA. Thereafter, [Appellant] began his
drug and alcohol treatment with Venango County Substance
Abuse program. [Appellant] also held employment for a short
period of time at Venango County Steel. On May 30, 2014, a
Special Field Report was prepared for Venango County Court
requesting a bench warrant to declare [Appellant] an absconder.
On June 4, 2014, a bench warrant was issued by Venango
County Court. Constable Craig Westover and the Oil City Police
Department arrested [Appellant] on July 6, 2014.
On July 18, 2014, the Commonwealth filed a petition to
revoke [Appellant’s] probation/parole. On August 28, 2014,
[Appellant] appeared at a hearing to determine whether his
probation should be revoked. [Appellant] was represented by
counsel, Jeffrey Misko, Esq. With the advice of counsel in open
court, [Appellant] waived Gagnon I and proceeded to Gagnon
II. At Gagnon II, [Appellant] admitted that while on parole
and probation status[,] he changed his residence, failed to
report, violated curfew, used crack cocaine, associated with drug
users or dealers, and consumed alcohol. As these were material
violations of the conditions of parole and probation, parole and
probation were revoked. [Appellant] appeared for resentencing
on October 7, 2014, and was sentenced to 12½ years to 25
years in a state institution of the Department of Corrections.
[The trial court] determined at sentencing that [Appellant] was
not RRRI eligible.
Trial court opinion, 11/18/14, at unnumbered pages 4-5 (emphasis added).
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Appellant filed a 1925(b) concise statement of errors complained of on
appeal, and the trial court declined to author a 1925(a) opinion, opting
instead to rely upon its November 18, 2014 Opinion in which it denied
Appellant’s post-sentence motion. The matter is now ready for our review.1
Appellant levels three issues for our consideration:
1. Whether the trial court erred as a matter of law or abused its
discretion in failing to order a pre-sentence investigation report
(PSI) as required by Pennsylvania Rule of Criminal Procedure
702(A)(2)(A) as [Appellant] was facing a sentence of one year or
more?
2. Whether the trial court erred as a matter of law or abused its
discretion in determining that [Appellant] is not eligible for the
Recidivism Risk Reduction Incentive (RRRI) program and,
therefore, denying his eligibility for said program?
3. Whether the trial court allowed bias, prejudice or ill will in
crafting an emotionally motivated sentence that was manifestly
unreasonable in relation to the previous sentences related to
[Appellant] in these cases and whether the sentence imposed by
this Honorable Court is contrary to the fundamental norms
underlying the sentencing process?
Appellant’s brief at unnumbered page 1.
Appellant’s first and third issues challenge the discretionary aspects of
his sentence. He must therefore petition for permission to appeal those
____________________________________________
1
While we have the benefit of a thoughtful opinion from the Honorable
Robert Boyer to inform our disposition, we note that the Commonwealth
declined to file a brief in this matter. We regret that the Venango County
District Attorney did not see fit to weigh in on this issue, which had not
previously been addressed in a published decision by this Court and has
recently been examined in reference to another offense by the Pennsylvania
Supreme Court.
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issues, as “the right to pursue such a claim is not absolute.”
Commonwealth v. Rhoades, 8 A.3d 912 (Pa.Super. 2010). Additionally,
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the appropriateness of the sentence. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.
Id.
Appellant provided as part of his brief a proper Pa.R.A.P. 2119(f)
concise statement for reasons relied upon for allowance of appeal, and each
issue addressed in his brief is sufficiently stated and explained. We
therefore individually examine each to determine if it presents a substantial
question that warrants our review. If an issue presents a substantial
question, then our “scope of review in an appeal following a sentence
imposed after probation revocation is limited to the validity of the revocation
proceedings and the legality of the judgment of sentence.”
Commonwealth v. Ferguson, 893 A.2d 735 (Pa.Super. 2006). We further
note that “[t]he imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which, absent an
abuse of that discretion, will not be disturbed on appeal.” Commonwealth
v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super. 2012).
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At his first issue, Appellant argues that the trial court erred in failing to
order a pre-sentence investigation (“PSI”) report prior to his sentencing.
That failure deprived the court of “information regarding [Appellant] and
many factors that could aid the court in developing a sentence upon the
individual needs of [Appellant].” Appellant’s brief at 4. As the trial court
neither ordered a PSI report nor explained its decision on the record,
Appellant alleges that the trial court violated Pa.R.Crim.P. 702(A)(2)(a)
(“The sentencing judge shall place on the record the reasons for dispensing
with the pre-sentence investigation report if the judge fails to order a pre-
sentence report” where “incarceration for one year or more is a possible
disposition under the applicable sentencing statutes[.]”). Accordingly,
Appellant argues that he is entitled to resentencing because a proper PSI
report would have provided essential information that would have allowed
the trial court “to view [Appellant’s] case with the most recent information
related to [Appellant] possible.” Id. at 5.
Appellant relies on Commonwealth v. Flowers, 950 A.2d 330
(Pa.Super. 2008), in support of his argument. In Flowers, this Court held
that a sentencing court abused its discretion in failing to either order a PSI
report or explain on the record its reasons for doing so. We noted
specifically that the court’s offering of only a limited colloquy with the
defendant at his sentencing hearing was inadequate, even in light of that
court’s familiarity with the defendant due to his frequent appearances before
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it. Importantly, our holding advanced a policy to “guard against potential for
recidivism” by requiring a trial court to become fully informed regarding
defendant’s history and background or to explain adequate reasons for its
refusal to do so. Id. at 334.
The Commonwealth did not file a brief in this matter, and the trial
court rested upon its denial of Appellant’s post-sentence motion rather than
author a separate 1925(a) opinion. In that denial, the trial court explained
that it “did indeed apprise itself sufficiently of [Appellant’s] history” and that
it relied upon a PSI report prepared in anticipation of Appellant’s March 7,
2014 sentencing hearing, as well as victim impact statements and the
specific charges against Appellant. Trial court opinion, 11/18/14, at
unnumbered page 6. In the months following that hearing, the trial court
“actively explored the defendant’s character and his potential response to
rehabilitation programs.” Id. at 7 (citation omitted).
We initially note that this challenge presents a substantial question.
See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n
appellant's allegation that the trial court imposed sentence without
considering the requisite statutory factors or stating adequate reasons for
dispensing with a pre-sentence report [raises] a substantial question.”). We
therefore address the merits of his argument.
Although Appellant is correct in his assertion that the statutory
language requiring a PSI report is clear, he ignores the fact that this Court
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has provided “some latitude in how this requirement is fulfilled.”
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 726 (Pa.Super. 2013)
(citing Flowers, supra at 333). Indeed, case law does not require a PSI
report in all instances. Commonwealth v. Goggins, 748 A.2d 721
(Pa.Super. 2000) (en banc). The essential inquiry is instead whether the
sentencing court was “apprised of comprehensive information to make the
punishment fit not only the crime but also the person who committed it.”
Id.
While Flowers is instructive, the analysis contained therein is
inapplicable to the instant matter. The sentencing court in Flowers, which
was familiar with the defendant’s conduct, had no PSI report and instead
relied upon its own knowledge of the defendant and his history. To the
contrary, the sentencing court herein ordered a PSI report in January 21,
2014, in advance of Appellant’s March 7, 2014 sentencing on the charges
that underlie this appeal. In addition to the court’s “sufficient knowledge of
[Appellant’s] character, background, and his potential response to
supervision programs,” the court recognized that Appellant violated the
conditions of his probation just seven months after his March 7, 2014
sentencing. Trial court opinion, 11/18/14, at unnumbered page 7.
The PSI report, in addition to the trial court’s familiarity with
Appellant’s past criminal conduct and the extensive discussions of
Appellant’s rehabilitative options, goals, and needs on the record, rendered
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the trial court sufficiently informed such that its sentence reflected the
unique nature of his character and the various offenses. Since the PSI
report was just seven months old and Appellant presented no argument or
evidence of changed circumstances that warranted an updated report, we
are satisfied that the sentencing court was sufficiently apprised of the unique
facts of the case to render an individually tailored punishment. Therefore,
we affirm the trial court at Appellant’s first issue.
Appellant next challenges the trial court’s finding that he is ineligible
for the RRRI. In order to be eligible for RRRI, a defendant, inter alia, must
not have committed one of several crimes or have a history of present or
past violent behavior. Those crimes rendering a defendant RRRI ineligible
include a history of violence, sexual offenses, personal injury crimes, and
offenses involving deadly weapons. See 61 Pa.C.S. § 4503. Appellant,
having not been convicted of any crimes enumerated in the RRRI statute
and contending he has no history of violence, argues that the court’s finding
of ineligibility was erroneous. He specifically challenges the trial court’s
classification of “resisting arrest” as a violent crime, which excluded him
from eligibility for RRRI.2
____________________________________________
2
Though Appellant has not challenged whether his sole conviction for
resisting arrest is sufficient to show a history of violence, we recognize this
Court’s recent decision in Commonwealth v. Cullen-Doyle, 2016 PA Super
(Footnote Continued Next Page)
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In its opinion, the trial court explained that resisting arrest, under
Pennsylvania law, necessarily includes conduct that presents serious
potential risk of physical injury to another. Relying on United States v.
Stinson, 592 F.3d 460 (3d Cir. 2010), the court further recognized that
resisting arrest involves challenging the authority of a police officer, who is
charged with effectuating apprehension and is most likely armed, and is
likely to result in injury or, at the very least, risk of injury. Trial court
opinion, 11/18/14, at unnumbered page 8. As RRRI is available only to
those who do “not demonstrate a history of present or past violent behavior
and because the offense of resisting arrest indicates such violent behavior,”
the court maintains that its finding that Appellant is ineligible for RRRI is
proper. Id.
A challenge to a court's failure to impose an RRRI sentence implicates
the legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 670
(Pa.Super. 2014). “It is legal error to fail to impose a RRRI minimum on an
eligible offender.” Id. Thus, as “statutory interpretation implicates a
question of law, our scope of review is plenary and our standard of review is
de novo.” Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa.Super. 2012)
(citation omitted).
_______________________
(Footnote Continued)
10 (Pa.Super. filed January 21, 2016), which held that one instance of
misconduct may constitute a “history” for RRRI purposes.
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Section 4503 of the RRRI Act defines “eligible offender” in relevant
part as follows:
A defendant or inmate convicted of a criminal offense who will be
committed to the custody of the department and who meets all
of the following eligibility requirements:
(1) Does not demonstrate a history of present or
past violent behavior.
***
(3) Has not been found guilty of or previously
convicted of or adjudicated delinquent for or an
attempt or conspiracy to commit a personal injury
crime as defined under section 103 of the act of
November 24, 1998 (P. L. 882, No. 111),[ ] known
as the Crime Victims Act, except for an offense under
18 Pa.C.S. § 2701 (relating to simple assault) when
the offense is a misdemeanor of the third degree, or
an equivalent offense . . . .
61 Pa.C.S. § 4503(1), (3).
In Commonwealth v. Chester, 101 A.3d 56, 57 (Pa. 2014), the
Pennsylvania Supreme Court resolved whether a conviction for first-degree
burglary demonstrates “violent behavior” under Section 4503(1) as a matter
of law. Though the Chester Court observed that “the RRRI Act does not
define what constitutes a ‘history of present or past violent behavior,’” it
noted that Section 4503(2)-(6) enumerates crimes “that render an offender
ineligible to receive a reduced minimum sentence[.]” Id. at 58, 63.
Although burglary is not included as a per se disqualifying crime, the Court
construed “Section 4503(1) as a broad, ‘catchall’ provision” that covered
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“violent behaviors not otherwise identified in the RRRI Act’s definition of
‘eligible offender.’” Id.
The Chester Court held that a first-degree burglary conviction renders
a defendant ineligible to receive an RRRI-reduced minimum sentence under
Section 4503(1). Id. at 65. The Court reviewed the treatment of the
offense at law as well as the structure and language of the burglary statute.
See id. at 64–65. It observed that “burglary has been treated as a crime of
violence dating back to the common law of England,” which “punished
burglars with death because of the great public policy involved in shielding
the citizenry from being attacked in their homes and in preserving domestic
tranquility.” Id. at 64 (brackets removed). Tracing the treatment of
burglary at law, the Court recognized that “all burglaries are crimes of
violence for the purposes of the significant history of violent felony
convictions aggravating circumstance for capital sentence.” Id. (discussing
42 Pa.C.S. § 9711(d)(9)). Moreover, first-degree burglary is expressly listed
as a crime of violence under Pennsylvania's recidivist sentencing statute, as
well as a disqualifying offense for boot camp. Id. (discussing 42 Pa.C.S. §
9714(g) and 61 Pa.C.S. § 3903).
The Chester Court further reviewed the text of the burglary statute
and discerned a distinction between first and second degree offenses, “as
first-degree burglary contemplates the potential for confrontation, whereas
second-degree burglary does not.” Id. (distinguishing the finding in
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Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa.Super. 2010), that
second-degree burglary does not render an individual per se ineligible for
RRRI). The Court emphasized a conviction for first-degree burglary imputed
a risk of confrontation and violence because the structure invaded was either
adapted for overnight use or an individual was present at the time of entry.
Id. at 65.
The Chester Court, in holding that Section 4503(1) encompasses all
“‘violent behavior’ in addition to the enumerated crimes contained in Section
4503(2)-(6)[,]” explicitly rejected the defendant's application of expressio
unius est exclusio alterius, a principle of statutory interpretation holding
that, when one or more things of a class are expressly stated, others of the
same class are to be excluded. Id. at 63. Furthermore, the Court dismissed
the defendant's argument that his prior burglaries did not involve violent
behavior, concluding: “it is an offender's non-privileged entry, which
‘invit[es] dangerous resistance’ and, thus, the possibility of the use of deadly
force against either the offender or the victim, that renders burglary a
violent crime, not the behavior that is actually exhibited during the
burglary.” Id. (citation omitted).
In light of the guidance from Chester, we consider whether a prior
conviction for resisting arrest falls within the meaning of “violent behavior”
as used in Section 4503(1), rendering an offender ineligible for RRRI.
Section 5104 of the Crimes Code provides:
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A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force
to overcome the resistance.
18 Pa.C.S. § 5104 (emphasis added). Notably, resisting arrest contains
alternative bases for liability, i.e., acts creating a substantial risk of injury or
requiring substantial force to overcome. See Commonwealth v.
Thompson, 922 A.2d 926, 928 (Pa.Super. 2007). The use of the term
“substantial” is consistent with the 1972 Official Comment that “this section
changes existing law somewhat by not extending to minor scuffling which
occasionally takes place during an arrest.” 18 Pa.C.S. § 5104, 1972 Official
Comment. Similarly, the Model Penal Code drafters indicated their
suggested “language exempts from liability nonviolent refusal to submit to
arrest and such minor acts of resistance as running from a policeman or
trying to shake free of his grasp.” Model Penal Code § 242.1, Explanatory
Note for Sections 242.1–242.8.
Appellant contends that “the actual crime of resisting arrest . . . does
not have to contain any violent act. The mere action of laying oneself on the
ground could incur a citizen the charge of resisting arrest.” Appellant’s brief
at unnumbered 11. However, that conduct is already excluded by the very
definition of the statute. An individual who has been convicted of resisting
arrest necessarily created a substantial risk of bodily injury or required an
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officer to use substantial force. We cannot agree with Appellant that a
conviction for resisting arrest is not “violent behavior” for the purposes of
the RRRI statute as understood and analyzed by the Chester Court. See
Chester, 101 A.3d at 64–65 (noting first-degree burglary is a crime of
violence because of the potential for confrontation and possibility of deadly
force). See also Stinson, 592 F.3d at 466 (“[T]he crime of resisting arrest
in Pennsylvania does not encompass passive resistence[.]”).
In Commonwealth v. Clark, 761 A.2d 190 (Pa.Super. 2000), we
sustained a conviction for resisting arrest based on the following:
The Carlisle Police responded to a fight in front of the Carlisle
Tavern on South Hanover Street, just south of the Courthouse.
The defendant was first observed in a crosswalk. He then
approached Officer Kevin Roland at which time he was screaming
profanity. When Officer Roland attempted to arrest the
defendant for disorderly conduct, the defendant avoided arrest
by walking backwards and walking in circles. From time to time,
the defendant would assume a fighting stance. The officer then
sprayed the defendant with pepper spray in an effort to subdue
him. The defendant then began running down South Hanover
Street in the travel lanes of the roadway. The officer ran after
the defendant until Mr. Clark slipped on the wet roadway and fell
down. The officer then turned the defendant over onto his
stomach and handcuffed him.
Clark, 761 A.2d at 191. In light of that record, the Clark Court concluded
that “substantial force was thus required to overcome [the defendant's]
resistance to the arrest.” Id. at 193–94.
In Thompson, supra, the defendant and her husband were involved
in an argument with employees and another driver inside a parking garage.
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Thompson, 922 A.2d at 927. Two officers on horseback arrived and the
following occurred:
Officer Deborah Ewing heard profanities as she approached the
garage. Once inside, she observed [the defendant's unoccupied]
vehicle by the booth. [The defendant] was standing behind the
car, and [the defendant's husband] was shouting at the driver of
the other vehicle. When Officer Ewing attempted to get [the
defendant's husband’s] attention by calling and whistling, he
began flailing his arms and hitting the officer. While trying to
control her horse, Officer Ewing informed [the defendant's
husband] that he was under arrest.... [The defendant]
approached Officer Ewing, yelling and waving her hands in an
attempt to scare the horse. [The defendant] hit the horse's nose,
causing the animal to rear up.
Officer Canfield then arrived on the scene, dismounted his horse
to [defuse] the activity among [the defendant], Officer Ewing,
and Officer Ewing's horse. As the couple attempted to re-enter
their vehicle, Officer Canfield yelled, pushed them against the
car, threw them to the ground, and a struggle ensued. [The
defendant] and her husband interlocked their arms and legs and
refused to respond to Officer Canfield's verbal commands to
release their hands. The officers attempted to pry the couple
apart to handcuff and place them in custody. After struggling
with the officers for a few minutes, [the defendant] was
eventually disengaged from Mr. Thompson and handcuffed after
pepper spray was deployed.
Id. The defendant was convicted of resisting arrest, disorderly conduct, and
taunting a police animal. Id.
On appeal, the defendant in Thompson challenged her resisting arrest
conviction and argued “her ‘passive’ resistance to the officers' attempts to
place her in custody belie[d] any intent to strike or use force against them.”
Id. at 928. This Court rejected that argument, relying in part upon Clark.
Specifically, we observed, “Officer Ewing ... struggled to pull [the defendant]
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apart from her husband with whom she interlocked her arms and legs”
despite the officers' commands to disengage from her husband. Id. We
further noted “Officer Canfield testified that his attempts to restrain the
couple to place them under arrest left him ‘exhausted.’” Id. (citation
omitted). Thus, the Thompson Court concluded the defendant's “use of
passive resistance requiring substantial force to overcome provided sufficient
evidence for upholding the resisting arrest conviction.” Id.
Chester precludes this Court from engaging in a case-by-case analysis
of the facts to determine whether a per se disqualifying crime imputes
violent behavior. See Chester, supra at 65. Tellingly, however, our
decisions in Clark and Thompson reveal that conduct constituting resisting
arrest, even by passive resistance, requires such a substantial use of force
that an officer or offender may be harmed, thereby causing significant risk of
injury, and invites the same potential for confrontation that greatly
concerned the High Court in considering the offense of first-degree burglary.
Indeed, the Chester Court was concerned with “the possibility of the use
of deadly force against either the offender or the victim” and “not the
behavior that is actually exhibited” during the commission of the crime. Id.
(emphasis added).
We further recognize that, relying on decisions by our courts, the
federal courts have found that the essence of resisting arrest is the creation
of a substantial risk of bodily injury and thus explicitly constitutes a “crime
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of violence.” See Stinson, 592 F.3d at 466 (citing Commonwealth v.
Miller, 475 A.2d 145, 146 (Pa.Super. 1984) (noting that resisting arrest
requires the creation of substantial risk, not that an offender show
“aggressive use of force such as striking or kicking of the officer”)).
The trial court asserts that, even if resisting arrest is not enumerated
as disqualifying offense, it should be considered a violent crime that permits
a trial court to find that a defendant has a history of violence such that he is
ineligible for RRRI. The trial court relied upon Stinson, supra, to support
its finding that resisting arrest is a violent crime. For the following reasons,
we agree that Stinson is persuasive.
Under the federal sentencing guidelines, a defendant is considered a
“career offender” if in relevant part he has “at least two prior felony
convictions of ... a crime of violence [.]” U.S.S.G. § 4B1.1. The guidelines
define a “crime of violence” as “any offense under federal or state law,
punishable by a imprisonment exceeding one year, that ... otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2).
In Stinson, the Third Circuit held that resisting arrest was a
categorical “crime of violence” for sentencing purposes because “it involves
conduct that presents a serious potential risk of physical injury to another.”
Stinson, 592 F.3d at 466. The Court reasoned:
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Although the language of Pennsylvania's resisting arrest statute
“does not require the aggressive use of force such as striking or
kicking of the officer,” we have found no decision under
Pennsylvania law that affirmed a conviction for resisting arrest
based on a defendant's inaction or simply “lying down” or “going
limp.” Counsel arguing before us on this appeal could cite to
none in response to our questions. In fact, there are several
cases in which Pennsylvania courts have recognized that
resisting arrest does not extend to “minor scuffle[s] incident to
an arrest.” It is only when a defendant who was “struggling and
pulling, trying to get away from [the arresting officer who was
physically restraining him],” that he was convicted of resisting
arrest, and such cases are rare.
Id. (citations omitted). The Stinson Court rejected the defendant's
argument, which parallels the one presented here, that under Thompson, a
Pennsylvania conviction could reflect “active” or “passive” resistance.
In doing so, the Stinson Court was called to rule on the implication of
appellant’s resisting arrest conviction on his federal sentencing guideline
score and specifically whether it is a “crime of violence,” a task similar to the
one presented to this Court. Thus, we only look to Stinson and other
federal cases for guidance as persuasive authority with respect to the
Commonwealth’s RRRI statute.
Appellant did not present, and the trial court did not address, any
secondary argument that Appellant is ineligible for RRRI. N.T. Sentencing,
10/7/14, at 44. We therefore conclude that Appellant’s prior conviction for
resisting arrest demonstrates “a history of present or past violent behavior”
for the purposes of determining RRRI eligibility. Accordingly, we agree with
the trial court’s finding in this respect and affirm.
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We move to Appellant’s third argument that his sentence was
“contrary to the fundamental norms underlying the sentencing process”
because all of his crimes were non-violent offenses “motivated by [his]
addiction to illegal drugs.” Appellant’s brief at unnumbered 13. Specifically,
he argues that the sentencing court did “not take into account the goals of
individualized sentencing that takes into account the individual’s needs.” Id.
By alleging that the sentencing court did not adequately consider all of
the requisite factors in fashioning Appellant’s sentence, he presents a
substantial question. See, e.g., Commonwealth v. Bricker, 41 A.3d 872,
876 (2012) (recognizing that an appellate court is to determine “whether the
[sentencing] court imposed an individualized sentence) (citation omitted).
He complains that the sentencing court was improperly motivated by its
personal frustration with Appellant, his many unsuccessful attempts at
rehabilitation, and the frequency with which he interacts with the court.
As discussed supra, the sentencing court had the benefit of a recent
PSI report. “[W]here the sentencing judge had the benefit of a presentence
investigation 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.” Commonwealth v.
Clarke, 70 A.3d 1281, 1287 (2013), appeal denied, 85 A.3d 481 (Pa. 2014).
Further, in issuing Appellant’s sentence, the court specifically
addressed his rehabilitative needs and history, as well as previous violations
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and punishments. In its frustration with Appellant’s repeated misconduct
and inability to reform, the sentencing court demonstrated that it had
intimate familiarity with Appellant and his needs and that the sentence was
imposed both to vindicate the authority of the court and because Appellant
had “repeatedly and significantly violated conditions of supervision, and
most recently was an absconder from supervision. The conduct of
[Appellant] indicates that [he] will commit another crime if not imprisoned.”
N.T. Sentencing, 10/7/14, at 44.
In light of the sentencing court’s access to a current PSI report and the
explanation provided to Appellant for his sentence at his hearing, we cannot
find that the court abused its discretion in imposing its sentence of twelve
and one-half to twenty-five years incarceration.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Olson joins the majority.
Judge Strassburger files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
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