Commonwealth v. Watson

228 A.3d 928

COMMONWEALTH of Pennsylvania, Appellee

v.Eric WATSON, Appellant

No. 3627 EDA 2018

Superior Court of Pennsylvania.

Submitted November 18, 2019

Filed February 10, 2020

Zak T. Goldstein, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Benjamin J. Halle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.^*

OPINION BY GANTMAN, P.J.E.:

Appellant, Eric Watson, appeals from the amended judgment of sentence entered in the Philadelphia County Court of Common Pleas, following remand, based on bench trial convictions for one count each of robbery, theft, receipt of stolen property ("RSP"), and simple assault.¹ We vacate and remand with instructions for resentencing.

The relevant facts and procedural history of this case are as follows. On March 12, 2015, at approximately 8:00 p.m., Victim was walking home from her daughter's soccer game while texting on her cell phone. As Victim turned a corner, she noticed Appellant sitting on a step. Shortly after noticing Appellant, Victim sensed he was following her and felt him breathing on her neck. Victim turned around and asked Appellant what he wanted. In response, Appellant asked Victim what she had. Victim noticed a woman pulling out of a nearby parking spot and turned to run toward the woman. As Victim moved away, Appellant grabbed the wallet around Victim's wrist, broke the metal clip, and the wallet fell to the ground. Appellant took Victim's wallet and fled.

Following a bench trial on February 18, 2016, the court convicted Appellant of the charged offenses. With the benefit of a pre-sentence investigation ("PSI") report, the court sentenced Appellant on June 7, 2016, to three (3) to six (6) years' incarceration plus four (4) years' probation for robbery and a consecutive twelve (12) months' probation for simple assault. Appellant filed a direct appeal challenging the judgment of sentence. On May 16, 2018, this Court vacated and remanded for resentencing because the sentencing court had erred when it considered at sentencing evidence not of record relating to Appellant's high school education to discount mitigating evidence of Appellant's intellectual challenges.

Upon remand, Appellant filed a recusal motion, which the trial court denied. Appellant also requested a new PSI report for resentencing, which the court denied as well. Following a resentencing hearing on November 14, 2018 and November 27, 2018, the court sentenced Appellant to five (5) to ten (10) years' incarceration for robbery and a consecutive term of two (2) years' probation for simple assault. Appellant timely filed post-sentence motions on December 3, 2018. The trial court denied both motions on December 11, 2018.² Appellant timely filed a notice of appeal on December 13, 2018. On January 15, 2019, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b) ; Appellant timely complied on January 26, 2019.

Appellant raises five issues for our review:

WHETHER THE SENTENCING COURT IMPOSED AN ILLEGALLY VINDICTIVE SENTENCE AND VIOLATED THE DUE PROCESS CLAUSES OF THE PENNSYLVANIA AND UNITED STATES CONSTITUTIONS WHEN IT IMPOSED AN INCREASED SENTENCE ON APPELLANT FOLLOWING APPELLANT'S SUCCESSFUL APPEAL OF HIS INITIAL SENTENCE?

WHETHER THE SENTENCING COURT ERRED IN DENYING APPELLANT'S MOTION FOR A PRE-SENTENCE INVESTIGATION PRIOR TO RE-SENTENCING WHERE THE ORIGINAL PRE-SENTENCE INVESTIGATION WAS CONDUCTED NEARLY THREE YEARS PRIOR TO THE RE-SENTENCING?

WHETHER THE SENTENCING COURT ERRED IN "DOUBLE-COUNTING" APPELLANT'S PRIOR CRIMINAL CONVICTIONS AND JUVENILE ADJUDICATIONS BY RELYING ON THOSE CONVICTIONS AND ADJUDICATIONS IN MAKING ITS DECISION TO DEPART FROM THE GUIDELINE RANGE DESPITE THE FACT THAT APPELLANT'S PRIOR RECORD WAS ALREADY FACTORED INTO THE GUIDELINES?

WHETHER THE SENTENCING COURT ABUSED ITS DISCRETION BY IMPOSING AN EXCESSIVE AND CLEARLY UNREASONABLE SENTENCE FAR IN EXCESS OF ANYTHING CALLED FOR BY THE SENTENCING GUIDELINES?

WHETHER THE SENTENCING COURT ERRED IN DENYING THE MOTION FOR RECUSAL PRIOR TO RESENTENCING WHERE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATED THAT THE SENTENCING COURT COULD NOT SENTENCE APPELLANT IN A FAIR MANNER?

(Appellant's Brief at vii-viii).

In issues one through four, Appellant contests his new sentence in various ways. Appellant first argues the court improperly imposed an increased aggregate sentence upon resentencing, where neither the trial court's opinion nor the record from the resentencing hearing contained any additional information to justify the imposition of an increased sentence. Appellant contends the increased sentence is the result of judicial vindictiveness, which the sentencing court failed to rebut.

Appellant further alleges the sentencing court erred when it denied Appellant's motion for a new PSI report and resentenced him based only on information available from the first PSI/sentencing. Appellant insists the original PSI was inadequate for resentencing purposes, because it was three years old and contained no information regarding how Appellant has responded to incarceration.

Appellant next avers the sentencing court improperly considered factors already included in the sentencing guidelines, such as his criminal record and the nature of the offenses. Appellant maintains the sentencing court imposed an above-guideline sentence due to the court's improper "double-counting" of these elements.

Appellant additionally claims the court failed to consider certain mitigating factors, such as his difficult childhood and his learning difficulties. Appellant emphasizes the court's failure to weigh these mitigating factors properly resulted in an excessive and unreasonable sentence on remand. For these reasons, Appellant concludes the sentence should be vacated and his case remanded for resentencing. As presented, Appellant challenges the discretionary aspects of his sentence. See Commonwealth v. Ali , 197 A.3d 742, 763 (Pa.Super. 2018), appeal denied , ––– Pa. ––––, 207 A.3d 911 (2019) (stating claim trial court failed to order new PSI report upon remand for resentencing challenges discretionary aspects of sentencing); Commonwealth v. Robinson , 931 A.2d 15 (Pa.Super. 2007) (en banc ) (explaining claim of judicial vindictiveness constitutes challenge to discretionary aspects of sentencing); Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003) (stating claim that court considered improper factors at sentencing refers to discretionary aspects of sentencing); Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 447 Pa.Super. 98, 668 A.2d 536 (1995), appeal denied , 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim that court did not properly consider mitigating factors challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspect of sentencing issue:

We 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. Griffin , 65 A.3d 932, 935 (Pa.Super. 2013), appeal denied , 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super 2006), appeal denied , 589 Pa. 727, 909 A.2d 303 (2006) ). Generally, objections to the discretionary aspects of a sentence are waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied , 574 Pa. 759, 831 A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant must also invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 425-26, 812 A.2d 617, 621-22 (2002) ; Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal ‘furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.’ " Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied , 600 Pa. 745, 964 A.2d 895 (2009), cert. denied , 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc ) (emphasis in original)).

"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Anderson, supra at 1018. 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." Sierra, supra at 913 (quoting Commonwealth v. Brown , 741 A.2d 726, 735 (Pa.Super. 1999) (en banc ), appeal denied , 567 Pa. 755, 790 A.2d 1013 (2001) ).

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...