Commonwealth v. Williams

69 A.3d 735

2013 PA Super 151

COMMONWEALTH of Pennsylvania, Appellee

v.Sherdina WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 9, 2012.

Filed June 24, 2013.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, DONOHUE and COLVILLE ^*, JJ.

OPINION BY BENDER, J.:

Sherdina Williams (“Appellant”) appeals from the judgment of sentence of 290–580 months' incarceration that was imposed for violations of multiple probations after subsequent convictions in unrelated matters. Appellant challenges the discretionary aspects of her sentence and also argues that the trial court judge should have recused himself due to the appearance of bias. After careful review, we vacate the judgment of sentence and remand for resentencing.

On October 15, 2001, Appellant entered an open plea to seven counts of burglary and related offenses. All of the offenses arose out of Appellant's theft of property from several Catholic institutions.¹ The Honorable James J. Fitzgerald (now a member of this Court) sentenced Appellant to concurrent terms of 11 1/2 to 23 months' incarceration and ten years' consecutive probation for each of the seven burglary convictions. Judge Fitzgerald subsequently paroled Appellant to Beacon House, an inpatient program for pregnant and parenting substance abusers at the Episcopal Hospital in Philadelphia.

Appellant did not remain at Beacon House as ordered. On January 16, 2002, just three months after her plea, Appellant was arrested in an incident for which she was subsequently charged with assaulting a police officer with a pair of scissors. On April 19, 2002, before the Honorable Shelia Woods–Skipper, Appellant pleaded guilty to aggravated assault for the incident.²Just a few months later, on September 7, 2002, police arrested Appellant for breaking into Friends Hospital in Philadelphia.³ In that incident, Appellant stole $15 from the victim's purse, and pushed the victim and a security guard while attempting to escape. N.T., 9/17/02, at 5–7. After a non-jury trial on January 3, 2003, the Honorable Chris R. Wogan found Appellant guilty of burglary and simple assault and sentenced her to 40–80 months' incarceration and a consecutive term of two years' probation. Later, in consideration of Appellant's motion for reconsideration of sentence, Judge Wogan reduced the term of incarceration to 36–72 months.

Appellant was released from prison in 2009 after having served the maximum term. On January 24, 2010, police arrested Appellant for DUI and for causing an accident leading to personal injury or death. For those crimes, the Honorable Joseph J. O'Neill sentenced Appellant to 3–6 days' incarceration and 2 1/2 years' probation.

On April 3, 2010, Appellant broke into St. Basil's Convent and St. Michael's Ukrainian Catholic Church, both in Montgomery County. The next day, she broke into St. Basil's Convent again. In sum, she stole $85 from the nuns at St. Basil's and was caught in the Rectory at St. Michael's. When caught at St. Basil's on the second day of her crime spree, Appellant possessed a screwdriver, money, and a coin purse. On March 4, 2011, the Honorable Joseph A. Smyth in Montgomery County accepted Appellant's guilty plea to three counts of burglary and sentenced her to an aggregate term of 7–20 years' incarceration.

On June 1, 2011, as a result of Appellant's multiple violations of her probation sentences imposed by Judge Fitzgerald and Judge Wogan, Judge Wogan revoked her probation.⁴ On July 20, 2011, Judge Wogan denied a motion for recusal filed by Appellant. After a violation of probation sentencing hearing on September 30, 2011, at which Appellant presented two witnesses (a priest and a psychologist), Judge Wogan sentenced Appellant to an aggregate term of 290–580 months' incarceration (24 years and two months to 48 years, 4 months), to be served consecutively to the term of incarceration of 7–20 years imposed by Judge Smyth in Montgomery County. Judge Wogan denied two timely motions for reconsideration of sentence.

This timely appeal followed in which Appellant raises two issues for consideration:

1. Did not the sentencing court err as a matter of law, abuse its discretion, and violate general sentencing principles when, following a revocation of probation, the [trial] court imposed a sentence of 24 years, 2 months to 48 years, 4 months['] incarceration, where: this sentence was manifestly excessive and unreasonable; far surpassed what was required to protect the public, the complainants, and the community; went well beyond what was necessary to foster [A]ppellant's rehabilitation; and was grossly disproportionate to the crimes[?]

2. Did not the sentencing court err as a matter of law and abuse its discretion when it failed to recuse itself, for any and all of the following reasons: referring to [A]ppellant as a “pathological liar,” undermining [Appellant's] right to remain silent at the violation of probation hearing, and having the appearance of bias and impropriety through repeated questioning about why [Appellant] targeted only Roman Catholic institutions?

Williams' Brief at 3.

Appellant's first issue challenges the discretionary aspects of her sentence. Two requirements must be met before we will review such a 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. The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006) (quoting Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004)).⁵

Appellant has included in her appellate brief a statement of reasons in support of review of the discretionary aspects of the sentence. In asserting that the trial court imposed a sentence unreasonably disproportionate to her crimes and unduly excessive, Williams has provided plausible arguments that her sentence is “contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 622 (2002) (plurality) (opining that an appellant raises a substantial question when she “sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process”); see also Ferguson, 893 A.2d at 737 (reaffirming that a claim that sentence was manifestly excessive presents a substantial question). As Appellant has satisfied this requirement, we proceed to review her claim on its merits.

The imposition of sentence is vested in the discretion of the trial court, and should not be disturbed on appeal for a mere error of judgment but only for an abuse of discretion and a showing that a sentence was manifestly unreasonable. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007).

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is “in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.” Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990); see also Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587, 591 (1992) ( en banc ) (offering that the sentencing court is in a superior position to “view the defendant's character, displays of remorse, defiance or indifference and the overall effect and nature of the crime.”). Simply stated, the sentencing court sentences 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.

The proper standard of review for an appellate court is to focus on the pertinent statutory provisions in the Sentencing Code, specifically 42 Pa.C.S. § 9781(c) and (d), and 42 Pa.C.S. § 9721(b). Id. at 963. We also consider a sentence imposed following revocation of probation in light of the limitations set forth in 42 Pa.C.S. § 9771(c). ⁶ Because subsections 9781(c) and (d) include a focus on sentencing guidelines, however, and because sentencing guidelines do not apply to sentences imposed following a revocation of probation, in this case we look solely to the provisions of 42 Pa.C.S. § 9721(b). Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super.2001). Section 9721(b) provides in pertinent part as follows:

[T]he court shall 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. § 9721(b).

In order to establish that the sentencing court abused its discretion, Appellant “must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) ( en banc ) (quotation marks and citations omitted). See also Walls, 926 A.2d at 961 (citation...