Commonwealth v. Shull , 148 A.3d 820 ( 2016 )

J-A18037-16
2016 PA Super 210COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GABRIEL PIO JESUS SHULL,
Appellee No. 1607 MDA 2015
Appeal from the Judgment of Sentence August 11, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001772-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GABRIEL PIO JESUS SHULL,
Appellant No. 1670 MDA 2015
Appeal from the Judgment of Sentence August 11, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001772-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and Stevens, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 13, 2016
The Commonwealth appeals from the judgment of sentence entered in
the Court of Common Pleas of Centre County, Senior Judge Michael
Williamson presiding, who, sitting as finder of fact in Gabriel Pio Jesus Shull’s
(“Shull”) non-jury trial, convicted Shull of one count each of Robbery—Fear
*Former Justice specially assigned to the Superior Court.
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of Serious Bodily Injury, Unlawful Restraint, Simple Assault, Possessing an
Instrument of Crime (“PIC”), and Possession of Drug Paraphernalia. 1 Raised
in the Commonwealth’s appeal are the contentions that the trial court
abused its sentencing discretion in refusing to apply a deadly weapon
enhancement, in sentencing Shull below the guideline range, and in
modifying Shull’s sentence for the sole purpose of changing his place of
confinement.
In his cross-appeal, Shull asserts the trial court committed error when
it denied his motion to disqualify the District Attorney, failed to transfer his
case to juvenile court, denied his objection to the admission of other bad
acts evidence, and failed to award credit for pre-trial time served for his
voluntary admission in privately run, inpatient rehabilitation facilities. Shull
also contends that evidence was insufficient to support his Robbery
conviction. After careful review, we affirm Shull’s convictions, but we
remand for resentencing and caution the trial court to impose sentence in a
manner consistent with this decision and in accordance with appropriate law.
This matter stems from then-seventeen year-old Gabriel Shull’s
conduct during the early morning hours of October 13, 2014, as he drove in
Centre County smoking marijuana with a former high school acquaintance,
Paul Sepich, who had entered his freshman year at Penn State University.
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1
18 Pa.C.S. §§ 3701(a)(1)(ii), 2902(a)(1), 2701(a)(1), 907(a), and 35
Pa.C.S. § 780-113(a)(32), respectively.
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N.T., 6/17/15 at 15-20. Sepich and Shull were not friends in high school,
but they had crossed paths very briefly at a mutual friend’s house a week
earlier, Sepich would later testify at trial. He said he entered Shull’s car as it
pulled up that night thinking a different “Gabe”—Gabe Sandoval—had
phoned and invited him to “smoke weed” and drive around town. Id.
Despite his surprise at seeing Shull, Sepich remained in Shull’s company for
the duration of the night.
During the course of the night, Shull made stops at a convenience
store and two different Walmart stores. At the North Atherton Walmart,
Sepich and Shull walked to the sporting goods department and were looking
at pellet guns. According to Sepich’s testimony, he told Shull he hoped to
buy one of the guns once he saved enough money. N.T., at 34-37. Shull
took the box off the shelf and began to tamper with it, prompting Sepich to
to disassociate himself with an apparent shoplifting in progress by walking
away. Id. On cross-examination, Sepich denied the suggestion that he
supported the theft by advising Shull to take a gun without an orange tip if
he intended to use it for a robbery. N.T., at 80.
Walmart surveillance video admitted at trial captured Shull removing a
Daisy CO-2 pellet gun—which replicates an actual handgun—from the box,
placing it underneath his clothing, rejoining Sepich in a nearby aisle, and
leaving the store without paying. N.T., at 108-09, 112. Lacking a CO-2
cartridge, however, the pellet gun was incapable of firing a pellet that night.
N.T., at 116.
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At approximately 3:00 a.m., the two were driving in downtown State
College as 23 year-old Penn State student Morgan Grego was walking home
after she had completed work at a local pub and stopped for groceries. N.T.,
at 160-162. Carrying grocery bags and her purse, Grego elected to turn
down less-traveled Calder Avenue in order to avoid walking by “the drunk
students that normally take College Avenue” during the early morning hours.
N.T., at 162.
As she walked along Calder toward her residence on South Burrowes
Street, Grego noticed two men in a car pull out of a nearby parking deck,
drive past her “a little faster than what was appropriate,” and turn right onto
South Burrowes. N.T., at 181-82. She did not think anything of it at the
time, and she continued to walk. Before Grego reached the corner,
however, Shull had alighted his vehicle and intercepted her on the pretext
that he needed directions to a gas station. N.T., at 162-63.
Grego stopped and pointed the way to the convenience store where
she had just been, to which Shull replied “[o]kay, do you think you can spot
me some money?” N.T., at 163. Feeling uncomfortable, Grego answered
“no” and attempted to walk away, but Shull, with his hands remaining in his
hoodie pocket, blocked her path. N.T., at 163, 168. As Grego repeatedly
tried to walk around Shull, he continued to block her path in an increasingly
aggressive manner. N.T., at 163-68. Now frightened, Grego pushed Shull,
but he remained in front of her. Id. She pushed harder, and, according to
Grego, he “got really mad and kind of snapped and came at me.” N.T., at
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163. At that point, Shull grabbed for Grego’s purse with one hand and held
her body with the other. N.T., at 171.
“When he couldn’t separate me from any of my things, he just
whipped me down on the ground[,]” Grego testified. N.T., at 169. With
Grego on her back, Shull reached down, grabbed her by her hair, and
dragged her as he walked in the direction opposite from her destination. Id.
It was at this point that Grego looked up and saw a gun in Shull’s other
hand. N.T., at 169-70. Utterly panicked, Grego began to scream as Shull
continued to drag her “like luggage” without either looking down at her or
saying anything for just under ten seconds, Grego estimated, before a police
car turned the corner. N.T.,at 172-73. Grego described her experience and
observations as follows:
Q: I mean, were you afraid?
A: I was very afraid. I didn’t feel very human just because,
like I said, when you are on your back, you are completely
submissive. The person that is kind of controlling you, I guess,
if they’re not even looking at you, I just felt kind of
dehumanized, I guess. I have never felt that way before.
So, like I said, I looked up at him. Saw just the back of
his head as he was pulling me. I saw the gun and that’s when I
got really afraid. So I just looked straight up. I thought, okay,
look for anything that you can get assistance from. I’m looking
at the apartment buildings, looking for a parked car, like, just
any kind of assistance, No lights were on in the tops of the
windows. No lights. No cars. Obviously, no store is open.
So I just felt very alone. There was no one else on the
streets. So, yeah, I just felt very helpless and, like I said, I was
screaming. But then after I [] belted out a good four of them, I
kind of realized there’s no one here to help me and screaming
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might not work. I kind of felt like a statistic. I thought, you
know, this happens every day to people and you hear about it in
the news but I never thought it was going to happen to me, but
I guess this is going to happen. Whatever is going to happen is
going to happen. So, there’s that odd, like, sad, acceptance that
--
Q: You realize you were –
A: --I had no control.
***
Q: Can you describe what you saw of the gun/
A: I saw – he was holding it as if you were going to, you
know, shoot something, you know, finger in the right place for
the trigger. He was holding the end of it. I saw the – I don’t
know anatomy.
Q: That’s okay.
A: I saw the barrel, if you will. So that’s what I saw. I knew
immediately what it was. It looked like a gun a police officer
might carry. So I recognized it very –
Q: Did you[--]
A: -- quickly.
Q: --think it was real?
A: Yes. That’s when, like I said, I looked up and just looked
for help because I knew that this is real right now. It’s not
someone just, you know, messing with me. He’s – something
bad is going to happen right now and I have no idea what it is.
***
Q: So, he had it out – just out in the open holding it in his one
hand?
A: Yes, and me in the other.
***
Q: Do you know anything about guns?
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A: A little. My parents are police officers and my dad and my
brother and grandpa hunt. So I have always been around them.
I don’t use them for anything.
Q: Did you have an impression of what kind of gun you
thought it was?
A: Like I said, it looked exactly like the ones that kind of [sic]
police officers carry.
N.T., at 174-75, 176-77, 178-79. On cross-examination, Grego confirmed
that Shull was holding the gun as if he was going to shoot someone. N.T.,
at 185-86.
Officer Adam Salyards of the State College Police Department was
passenger in his patrol car at the intersection of West College Avenue and
South Burrowes Street at approximately 3:00 a.m. when he and fellow
officer, Officer Jeremy Gibson, heard what Salyards described as a “blood-
curdling scream” from nearby. N.T., at 86. Sensing something was “very
bad…very wrong” from the “worst scream” he had ever heard in his 13
years’ service, Officers Salyards and Gibson turned down South Burrowes,
where the officers immediately saw Grego near the corner at Calder and a
man, Shull, running away. N.T., at 87-88. The officers pursued Shull
approximately 200 feet onto New Alley where they saw him getting into the
driver’s side of a vehicle already occupied by a passenger. N.T., at 89. The
officers used their patrol car to block this vehicle and approached the vehicle
on foot.
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Officer Salyards encountered Sepich in the passenger seat and, seeing
what appeared to be a black semi-automatic handgun2 at Sepich’s feet,3
alerted Officer Gibson of a gun and pulled Sepich out and down to the
ground, where he handcuffed him, performed a weapons frisk, and placed
him under arrest. N.T., at 91. Officer Gibson did the same with Shull. Id.
As the officers transported Shull and Sepich to the police station, they
received a dispatch stating a female called to report an armed man wearing
a black checkered shirt and dark jeans had just attacked her at Calder
Street. N.T., at 92. Officer Salyards advised the dispatch center that Officer
Gibson and he had just arrested a suspect observed fleeing the scene and
matching the physical description perfectly. N.T., at 92-93.4 A subsequent
investigation of Shull’s vehicle revealed that the gun in question was, in fact,
a CO-2 powered BB gun made to replicate a real firearm. N.T., at 95-96.
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2
Officer Salyards would testify at trial that he is very familiar with firearms
as a police officer, is a certified firearms instructor, and grew up with
firearms as a member of a family of hunters. He testified that the gun in
question looked like a real firearm. N.T., at 91-92.
3
Sepich testified that Shull threw the gun into the passenger side of the car
as he returned. N.T., at 54.
4
The Commonwealth also introduced surveillance video from an interior
camera at the Elliott Building depicting a man in a black checkered hoodie
and dark pants jogging toward the Calder Street scene and, minutes later,
“running hastily” away with Officers Salyards and Gibson giving chase. N.T.,
at 153-54.
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State College Police Officer Ken Ferron met with Grego outside her
apartment a few minutes after she placed her emergency phone call. N.T.,
at 145-46. He described her physical and emotional appearance as
consistent with the report she had given to the dispatcher, as her hair was
dirty and messy, her clothing was disheveled, and she was crying at times
while relating the attack. N.T., at 147. Grego agreed to provide a “show-up
identification,” and Officer Ferron transported her to the arrest scene, where
Shull and Sepich were seated in the patrol car. Without hesitation, Grego
identified Shull as her assailant. N.T., at 150-51, 180. She also identified
the car as the one she observed at the parking deck shortly before her
ordeal. N.T., at 181. Grego then agreed to go to the State College Police
Station to provide a written statement. N.T., at 151.
On November 4, 2014, Shull was charged with one count of first-
degree felony Robbery—Fear of Serious Bodily Injury and other offenses
listed, supra. Shull subsequently filed a December 2, 2014, Petition to
Transfer Criminal Proceedings to Juvenile Court. After a hearing, the court
entered an order denying Shull’s petition, voicing concerns about Shull’s
failed rehabilitation efforts to-date and reasoning that the robbery,
committed by an armed perpetrator, posed a serious threat to both the
victim, individually, and the public, as it had a harmful impact on the
community’s sense of safety. Order, filed 2/13/15, at 2-5.
On April 2, 2015, Shull filed a Motion to Disqualify the Centre County
District Attorney, Stacy Parks Miller, based on civil proceedings she had filed
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naming defense counsel as one of the defendants. Specifically, the civil
matter stemmed from an unrelated case in which defense counsel had
unsuccessfully sought recusal of the presiding judge for the appearance of
impropriety stemming from an alleged relationship between the judge and
the District Attorney. The court denied this motion on April 27, 2015.
On June 17, 2015, the trial court presided as finder of fact in Shull’s
waiver trial, and, at the conclusion of evidence, it convicted Shull of all
charges. Specifically, the court made a finding of fact that Shull possessed a
deadly weapon during the commission of his crimes.
During the sentencing hearing of August 11, 2015, the court made a
determination that the Deadly Weapon Possession sentencing enhancement
applied under the facts proven at trial, but refused to apply the more severe
Deadly Weapon Used enhancement sought by the Commonwealth. The
court applied the enhancement matrix as its sentencing starting point and,
from there, deviated downward to issue a mitigated range sentence of 29 to
59 months’ incarceration, to be followed by 5 years’ probation on the count
of Robbery, with concurrent sentences entered on the remaining charges.
Furthermore, the court insisted and ruled, over Commonwealth objection,
that Shull was to serve his sentence in a county correctional facility.
The Commonwealth filed a timely Motion to Modify Sentence seeking
application of the Deadly Weapon Used sentencing enhancement and a
standard range sentence based upon that sentencing matrix. The
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Commonwealth also contested county placement for Shull, insisting that he
serve a state sentence in a state correctional facility.
The court conducted a hearing on the post-sentence motion on
September 2, 2015, and, as detailed more fully, infra, withdrew its previous
sentence in favor of an even more lenient sentence of incarceration of 11 ½
to 24 months, less one day, in a county correctional facility, provided Shull
agree to waive his right to parole and serve the full 24 months, less one day.
The court explained that it was reducing Shull’s sentence in order to avoid a
statutory provision that conditions county placement for a maximum
sentence of between two and five years’ incarceration on a district attorney’s
prior consent. In the case sub judice, District Attorney Parks Miller did not
consent to county placement for a crime she insisted warranted state
placement.
On September 16, 2015, the Commonwealth filed timely notice of
appeal, while Shull filed his timely notice of appeal on September 25, 2015.
This Court, sua sponte, consolidated the two appeals.
In its appeal, the Commonwealth presents the following three
questions for our review:
1. WHETHER THE LOWER COURT ABUSED ITS
DISCRETION BY REFUSING TO APPLY THE DEADLY
WEAPON USED ENHANCEMENT SINCE THE
DEFENDANT’S USE OF THE WEAPON WAS
UNDISPUTED?
2. WHETHER THE LOWER COURT ABUSED ITS
DISCRETION BY SENTENCING THE DEFENDANT
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OUTSIDE THE GUIDELINES WITHOUT SUFFICIENT
JUSTIFICATION?
3. WHETHER THE LOWER COURT ABUSED ITS
DISCRETION WHEN IT IMPROPERLY MODIFIED THE
DEFENDANT’S SENTENCE FOR THE SOLE PURPOSE OF
CHANGING THE PLACE OF CONFINEMENT?
Commonwealth’s brief at 6.
In its first issue, the Commonwealth argues that the trial court abused
its sentencing discretion when it applied the Deadly Weapon Possessed
enhancement rather than the Deadly Weapon Used enhancement in setting
Shull’s sentence.5 6
At the sentencing hearing, the trial court determined
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5
The Deadly Weapon enhancement appearing at Ҥ 303.10. Guideline
sentence recommendations: enhancements[,]” provides, in pertinent part:
(a) Deadly Weapon Enhancement.
(1) When the court determines that the offender possessed a
deadly weapon during the commission of the current conviction
offense, the court shall consider the DWE/Possessed Matrix (§
303.17(a)). An offender has possessed a deadly weapon if any
of the following were on the offender's person or within his
immediate physical control:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or
(iii) Any device, implement, or instrumentality
designed as a weapon or capable of producing death
or serious bodily injury where the court determines
that the offender intended to use the weapon to
threaten or injure another individual.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(2) When the court determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
offender has used a deadly weapon if any of the following were
employed by the offender in a way that threatened or injured
another individual:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or
(iii) Any device, implement, or instrumentality
capable of producing death or serious bodily injury.
204 Pa. Code § 303.10.
6
The imposition of the deadly weapon sentencing enhancement does not
implicate the Supreme Court of the United States' holdings in Alleyne v.
United States, –––U.S. ––––, 133 S.Ct. 2151 (2013), or Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). As this Court explained:
In both [Alleyne and Apprendi ], the Supreme Court
determined that certain sentencing factors were considered
elements of the underlying crime, and thus, to comply with the
dictates of the Sixth Amendment, must be submitted to the jury
and proven beyond a reasonable doubt instead being determined
by the sentencing judge. However, this inquiry is not relevant to
our case because of the nature of the DWE.
Alleyne and Apprendi dealt with factors that either increased
the mandatory minimum sentence or increased the prescribed
sentencing range beyond the statutory maximum, respectively.
Our case does not involve either situation; instead, we are
dealing with a sentencing enhancement. If the enhancement
applies, the sentencing court is required to raise the standard
guideline range; however, the court retains the discretion to
sentence outside the guideline range. Therefore, neither of the
situations addressed in Alleyne and Apprendi are implicated.
(Footnote Continued Next Page)
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that the CO-2 BB gun he held during the robbery was a deadly weapon for
purposes of the Deadly Weapon Possessed enhancement, 204 Pa.Code §
303.10(a)(1), and the court acknowledged it was, thus, bound to consider
the DWE/Possessed matrix at § 303.17(a) in fashioning Shull’s sentence.
The Commonwealth, however, filed a post-sentence motion asserting that
evidence establishing Shull’s open display of the gun while attacking Grego
supported application of the more severe Deadly Weapon Used enhancement
at § 303.10(a)(2) and, therefore, mandated consideration of the DWE/Used
matrix at § 303.17(b).
At the hearing on the Commonwealth’s motion, the court noted that
the Commonwealth had limited its charges against Shull to possession,
rather than use, of a firearm during the commission of a crime. N.T., 9/2/15
at 5-6. Moreover, it was the court’s view that Grego’s testimony did not
prove, beyond a reasonable doubt, “that the defendant ‘used’ the weapon in
a manner that would require the imposition of . . . an enhanced sentence.”
N.T., at 5. Accordingly, as noted above, it used the Deadly Weapon
Possessed enhancement matrix as the starting point for imposing Shull’s
sentence.
_______________________
(Footnote Continued)
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n. 10 (Pa.Super.
2014), appeal denied, 104 A.3d 1 (Pa. 2014).
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Though the Commonwealth concedes that the trial court applied a
deadly weapons enhancement, its Pa.R.A.P. 2119(f) statement asserting
that the court failed to apply the correct enhancement raises a substantial
question regarding the exercise of sentencing discretion. These claims
challenge the discretionary aspects of sentencing. See Commonwealth v.
Kneller, 999 A.2d 608, 613 (Pa.Super. 2010) (en banc) (“a challenge to the
application of the deadly weapon enhancement implicates the discretionary
aspects of sentencing.”). Moreover:
[t]o be reviewed on the merits, a challenge to the
discretionary aspects of sentence must raise a substantial
question that the sentence imposed is not appropriate.
[Commonwealth v. ]Pennington, [751 A.2d 212, 215
(Pa.Super. 2000)] (citing 42 Pa.C.S.A. § 9781(b)). A substantial
question is raised when the appellant advances a “colorable
argument” that the sentence was either “inconsistent with a
specific provision of the Sentencing Code” or “contrary to the
fundamental norms which underlie the sentencing process.” Id.
at 215–16.
Our case law has established that application of the deadly
weapons enhancement presents a substantial question. See id.
at 216 (concluding that the appellant raised a substantial
question by challenging the trial court's application of the deadly
weapons enhancement, based on the appellant's assertion that
he had not had actual possession of the deadly weapon, a gun);
Commonwealth v. Hatcher, 746 A.2d 1142, 1144 (Pa.Super.
2000) (same); Commonwealth v. Magnum, 439
Pa.Super.616, 654 A.2d 1146, 1149–50 (1995) (concluding that
the Commonwealth raised a substantial question by challenging
the trial court's failure to consider a deadly weapons
enhancement in a situation where the appellant used a knife to
threaten the victims); [Commonwealth v.] Scullin, [607 A.2d
750, 752–53 (Pa.Super. 1992)] (concluding that the
Commonwealth raised a substantial question by challenging the
trial court's determination that a tire iron thrown by the appellee
was not a deadly weapon).
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Commonwealth v. Raybuck, 915 A.2d 125, 127–28 (Pa.Super. 2006).
See also Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa.Super.
2008) (recognizing “this Court has repeatedly instructed that the sentencing
court must correctly apply the sentencing guidelines to reach the correct
point of departure, before exercising its discretion to depart from the
guidelines in any particular case. These rules apply to the deadly weapons
enhancement.”)
When reviewing a challenge to the discretionary aspects of sentencing,
we observe the following standard:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
In its brief, the Commonwealth reiterates the position it took in its
post-sentence motion that Shull “used” the realistic gun replica, thus
triggering the deadly weapon enhancement, when he held it in Grego’s plain
view during his attempted robbery. In support of its position, the
Commonwealth points to Grego’s testimony that she felt an utter sense of
hopelessness upon seeing Shull’s finger on the trigger as he dragged her
away from her intended destination.
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Shull responds that the evidence fails to support that he used the gun
in furtherance of the commission of his crime. According to Grego, Shull
never pointed the gun at her, referred to it in any way, or even looked at
Grego while he held the gun in his hand. Though the gun was, therefore,
visible during the crime, Shull maintains, it was not used as part of the
crime. We disagree.
As noted above, Section 303.10(a)(2) provides, in pertinent part, that
an offender has used a deadly weapon if he or she employed a firearm,
loaded or unloaded, in a way that threatened another individual. Viewed
under this statutory definition, Shull’s mere possession of a gun transcended
to his use of the gun as an implement of submission and fear when he
decided to remove it from under his clothing and hold it—with finger on
trigger—directly above Grego’s face as she lay helplessly under his forcible
control. Indeed, Shull’s presentation of the gun in this manner had a
terrifying effect on Grego, who testified her concern amplified when she first
saw the gun in her assailant’s hand, as she realized at that point this was
not someone just “messing with me” and believed something “bad is going
to happen right now.”
Under these circumstances, the fact that Shull never actually stopped
and pointed the gun at Grego in the several seconds before he heard police
sirens and fled is of no moment to the inquiry before us, as he had already
made the gun a component part of his use of force when he revealed it to
his victim as he brutally dragged her to some intended location. See, e.g.,
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Commonwealth v. Chapman, 528 A.2d 990 (Pa.Super. 1987) (deadly
weapon used enhancement applied where defendant openly held a straight
razor during robbery, though never made explicit threat with it).
Accordingly, because the record established that Shull used the gun in
a threatening way during his attack of Grego, we conclude the trial court’s
rejection of the Deadly Weapon Used enhancement was manifestly
unreasonable. We, therefore, vacate sentence and remand for resentencing,
where the court shall acknowledge and apply the proper guideline range
before exercising its sentencing discretion.
In its remaining two issues, the Commonwealth asserts that the court
unreasonably departed from both the enhancement and the robbery
guideline ranges when it imposed a below-mitigating range departure
sentence designed for the sole purpose of securing a county sentence for
Shull. For Shull’s conviction of Robbery—Fear of Serious Bodily Injury, the
sentencing guidelines’ standard range sentence was 22 to 36 months
without application of any weapons enhancement, 31 to 45 months with a
DWE/Possessed application, and 40 to 54 months with an DWE/Used
application. At the initial sentencing hearing, the court applied a
DWE/Possessed enhancement and, in its discretion, imposed a mitigated
range 29 to 59 month sentence with the intention of placing Shull in a
county correctional facility.
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At the post-sentence motion hearing, however, the court observed
that, under 42 Pa.C.S. § 9762(b)(2),7 it was unable to place Shull in the
county facility unless the District Attorney consented, and she did not
consent. For this reason, alone, the court sua sponte reduced Shull’s
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7
Section 9762(b)(2), “Sentencing proceeding; place of confinement,”
provides, in pertinent part:
(b) Sentences or terms of incarceration imposed after a
certain date.--All persons sentenced three or more years after
the effective date of this subsection to total or partial
confinement shall be committed as follows:
***
(2) Maximum terms of two years or more but less than five
years shall be committed to the Department of Corrections for
confinement, except upon a finding of all of the following:
(i) The chief administrator of the county prison, or the
administrator's designee, has certified that the county prison is
available for the commitment of persons sentenced to maximum
terms of two or more years but less than five years.
(ii) The attorney for the Commonwealth has consented to the
confinement of the person in the county prison.
(iii) The sentencing court has approved the confinement of the
person in the county prison within the jurisdiction of the court.
(3) Maximum terms of less than two years shall be committed to
a county prison within the jurisdiction of the court.
42 Pa.C.S. § 9762(b)(2) and (3).
i
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sentence to 11 ½ to 24 months, less one day, to circumvent the restrictions
of Section 9762(b)(2):
THE COURT: It was my desire that this defendant be
sentenced locally. Maybe he’s changed his mind now, and
[defense counsel] can interrupt me and say, fine, we’ll go to the
State, and we can all go home, but it’s my intention this
defendant serve a sentence in a County correctional facility.
First, he is relatively young. He was only 17 when this offense
took place. Secondly, if you put him in a facility such as a State
Correctional Institution, it just seems to me that he’s going to be
destroyed by the people that are there, particularly because of
his ethnic background.
And I say that in two ways. No. 1 is that perhaps he’s going to
be picked on because of his ethnic background. Secondly,
because he does have a particular ethnic background they may
ver well put him into some kind of a gang or something in the
State Correctional Institution that might not as readily occur in a
County facility. So I want him in a County facility.
Finally, there was testimony throughout these proceedings about
the treatment locally, either provided by the county or financed
by his parents, that could be provided here in Centre County.
All they do is warehouse people in State Correctional
Institutions. They don’t provide any kind of treatment, and they
don’t do anything for people except hold them as long as they
possibly can and then subject them to the whims of the parole
board as to when they should be released.
So for a number of reasons I think he should serve his sentence
here. His parents obviously can see him more readily if he’s
here and maintain the family relationships that are manifested in
all of the letters that were written in his support at the time of
his sentencing.
It just seems to me that logically the place of incarceration
should be the county, and although I agree to some extent with
the Commonwealth’s position that I’m not totally positive that
this young man is going to straighten himself out, I don’t see
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him as being the type of threat to the public at this point that
requires him being locked up in a State correctional facility. So
that’s why I want him sentenced locally.
In order to do that, the way I had to do that was to fashion the
29-month to 59-month sentence that I did, and of course
immediately at the conclusion [the prosecutor] said you can’t do
that.
I said, well, I just did it, but as I’m walking back, I’m thinking to
myself there is something here I’m kind of forgetting. [Court
goes on to discuss the need to obtain the District Attorney’s
consent to county placement.] So I agree that unless the
Commonwealth approves a County sentence a 29 to 59-month
sentence has to be served in State.
Now having said that, I want this defendant to serve a County
sentence. So you know how I can resolve the problem. I can
sentence even more mitigated than you think I did, and I can
give him an 11 1/2 to 24 month less one day sentence in the
County, and if I do that, I want – if I’m going to do that, I would
ask the defense attorney to consult with his client and see
whether his client would agree to that kind of a sentence on the
condition that he never be paroled, so that he served 24 months
less one day instead of the 29 months that I’ve already given
him, five months less protection from the public than the district
attorney’s office wants him to be, [sic] and that’s what I’m
inclined to do unless you agree that he can serve his sentence in
the County.
That’s my position; do you want to respond?
PROSECUTOR: Yes, sir. Well, first of all, Your Honor, I think
case law actually provides you can’t fashion a sentence based on
the results you want.
When it comes to the deadly weapon enhancement, if you
believe it’s appropriate, and you already ruled that you believed
the deadly weapon enhancement was appropriate, you state
there.
THE COURT: For possessed. I’m sentencing below the
mitigated range, and I’m giving my reasons, and if the appellate
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court thinks the reasons aren’t appropriate, then they’ll remand
for resentencing.
But I can’t do it because you’re preventing me from imposing the
sentence that I think is most appropriate for this defendant and
the public and the judicial system.
You’re preventing me from doing that by refusing to consent to a
sentence in the County, and you have the right to do that, and
you didn’t have it six days before my sentence date, but you do
now, and I agree.
PROSECUTOR: Your Honor, we don’t consent. I don’t believe
that it’s our obligation to consent. The fact of the matter is the
legislature said this sentence should be served unless we
consent. There may be special extenuating circumstances in
other cases, but we don’t believe it’s appropriate here for the
reasons we’ve outlined in our motion.
I think his sentence needed to be within the standard range,
within even the possessed range. I don’t think you can get a –
fashion a sentence to get a particular result. You base it off the
guidelines and the considerations that are allowed by law.
***
THE COURT: I don’t have to sentence in a standard range or
a mitigated range or an aggravated range. All I have to do is
explain my reasons. . . . My reasons are to try to get this boy
out of the public as long as possible consistent with a County
sentence. You won’t let me do that.
PROSECUTOR: Your Honor, for the reasons that we’ve already
outlined, we think the sentence needed to be standard range
and not based on his place of confinement.
His place of confinement is statutory. It’s not up to the DA’s
office to consent to a particular result.
***
The fact of the matter is it can’t be held over the DA’s head as to
choose this, [‘] if you don’t consent I’m going to give him an
even more mitigated sentence.[’] That’s not a mitigating factor,
the fact the DA wouldn’t consent to what is statutory.
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THE COURT: There is nothing statutory, ma’am. The statute
says you can agree to have him serve his sentence in the
County. That’s a discretionary thing for the district attorney.
I give him 29 months in the County if you agree to it. If you
don’t agree to it, I’m forced to give him 11 ½ to 24 months less
a day.
N.T., 9/2/15, at 10-15.
We assess whether the trial court’s guideline departure sentence
represents an abuse of discretion in light of Section 9781 of the Sentencing
Code, which sets forth an appellate court's statutory obligations in reviewing
a sentence. Specifically, Subsection (c) provides:
(c) Determination on appeal.—The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines, but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c) (emphasis added). Thus, we must specifically review
a guideline departure sentence for reasonableness. See Commonwealth v.
Perry, 32 A.3d 232, 236–37 (Pa. 2011). Subsection (d) sets forth the
factors to be considered in determining whether a departure sentence is
unreasonable:
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(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(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.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). See Perry, supra. In turn, the sentencing court
shall impose its sentence in consideration of Section 9721(b) of the Code,
which provides:
[T]he 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. § 9721(b).
Our own jurisprudence has expounded on the above authority:
In every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in
open court a contemporaneous statement of reasons in support
of its sentence. 42 Pa.C.S.A. § 9721; see also
Commonwealth v. Eby, 784 A.2d 204, 205–206 (Pa.Super.
2001).
The statute requires a trial judge who intends to
sentence a defendant outside of the guidelines to
demonstrate on the record, as a proper starting
point, [its] awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion a
sentence which takes into account the protection of
the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates
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to the impact on the life of the victim and the
community, so long as [it] also states of record the
factual basis and specific reasons which compelled
[it] to deviate from the guideline range.
Commonwealth v. Gibson, 716 A.2d 1275, 1276–1277
(Pa.Super. 1998) (internal quotations omitted).
When evaluating a challenge to the discretionary aspects of
sentence . . . it is important to remember that the sentencing
guidelines are advisory in nature. Id. at 1277. If the
sentencing court deems it appropriate to sentence outside of the
guidelines, it may do so as long as it offers reasons for this
determination. Id. “[O]ur Supreme Court has indicated that if
the sentencing court proffers reasons indicating that its decision
to depart from the guidelines is not un reasonable, we must
affirm a sentence that falls outside those guidelines.” Id.(citations omitted, emphasis in original).
Comnmonwealth v. Bowen, 55 A.3d 1254, 1263–64 (Pa.Super. 2012).
See also Commonwealth v. Rodda, 723 A.2d 212 at 216 (Pa.Super.
1999) (holding record must demonstrate “with clarity that the court
considered the sentencing guidelines in a rational and systematic way and
made a dispassionate decision to depart from them); Commonwealth v.
Gause, 659 A.2d 1014, 1017 (Pa.Super. 1995) (noting it is not enough for
court to pay “token lip service” to sentencing guidelines simply as
prerequisite to impose whatever sentence it may choose; departure
sentence reasonable where particular facts differentiate case from typical
case of same offense).
A sentencing court, therefore, in carrying out its duty to impose an
individualized sentence, may depart from the guidelines when it properly
identifies a particular “factual basis and specific reasons which compelled [it]
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to deviate from the guideline range.” Gibson, supra. In the case sub
judice, however, the court supplied an inexplicably inadequate factual basis
to substantiate a sentence significantly below the mitigating range for a
typical first-degree felony robbery conviction, let alone one for which a
deadly weapon enhancement also pertained.
In fact, the notes of testimony reproduced, supra, clarify that the court
tailored a sentence according not to the individual history and circumstances
surrounding Shull and the crime he committed but, instead, to what was
necessary to avoid a State sentence for Shull, regardless of whether the
term was consistent with the principles promoted within the scheme. For
example, other than citing Shull’s age and making unconfirmed, general
propositions about the fate of SCI inmates of Shull’s ethnicity, the court
engaged in no discussion as to why Shull’s particular circumstances
warranted a severe downward departure sentence. Neither Shull’s personal
history nor his amenability to rehabilitation were cited as militating in favor
of departing downward from the guideline ranges. To the contrary, in its
previous sentencing hearing reference to the prospects of rehabilitation, the
court voiced serious doubts concerning Shull’s future, indicating that he
found himself in this position despite his parents’ considerable expenditure
of time and money in previous failed efforts to help their son right himself.
N.T. 8/11/15 at 40.
The trial court had the opportunity to observe Shull in person, listened
to Shull’s allocution statement expressing remorse, and was fully cognizant
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of all relevant factors and circumstances regarding Shull’s situation. It is
also clear from the sentencing hearing of August 11, 2015, that the court
considered Shull’s attack of Grego to be a terrifying one that reasonably
placed her in fear of sustaining serious injury or worse. N.T. at 18-19, 40.
Nevertheless, despite its global familiarity with Shull’s case, the court failed
to give an appropriate justification, rooted in the considerations and factors
espoused in statutory and decisional law, for the severe downward departure
sentence it imposed.
The court’s skepticism concerning the state correctional system’s
ability to rehabilitate Shull as well as can the county system, a subjective
notion unsupported by any facts of record, provides insufficient grounds for
this sentence. See Commonwealth v. Wilson, 946 A.2d 767 (Pa.Super.
2008) (“second guessing” of SCI’s ability to administer adequate drug
treatment supplied no justification for less-than-mitigated-range county
sentence of 11 ½ to 23 month sentence for two first-degree felony
burglaries, robberies, and possession of instrument of crime; elevating
defendant’s needs without giving due weight to guidelines, victim, or societal
needs rendered sentence unreasonable under Section 9781(d)); See also
Commonwealth v. McIntosh, 911 A.2d 513 (Pa.Super. 2006) (deeming
sentence unduly lenient where sentencing court was “oddly deferential” to
defendant and concern for defendant's rehabilitative needs outweighed
court's consideration of section 9718 factors), aff'd in part and rev'd in
part on other grounds, 922 A.2d 873 (Pa. 2007).
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The court’s singular purpose of circumventing a statutory scheme
requiring state confinement for the sentence the court would have otherwise
imposed produced an inappropriate sentence that failed to reflect due
consideration of the deadly weapon enhancement guideline ranges, Shull’s
lack of amenability to prior rehabilitation efforts, the disturbing
circumstances of his crime and its effect on the victim, and the public safety
needs of society at large. Under the facts of the present case, therefore, we
deem the departure sentence entered in the court below unreasonable in
light of considerations set forth in Section 9781(d) of the Sentencing Code. 8
Accordingly, we vacate sentence and remand this matter for resentencing in
a manner consistent with sentencing principles discussed above.
Turning to Shull’s cross-appeal, we note he presents the following
questions for our review:
I. WHETHER THE HONORABLE TRIAL COURT ERRED BY
DENYING APPELLEE’S MOTION TO DISQUALIFY THE
DISTRICT ATTORNEY DESPITE A CONFLICT OF
INTEREST AND APPEARANCE OF IMPROPRIETY THAT
EXISTED DUE TO TWO LAWSUITS FILED BY THE
DISTRICT ATTORNEY AGAINST APPELLEE’S TRIAL
ATTORNEY?
II. WHETHER THE HONORABLE TRIAL COURT ERRED BY
DENYING TO TRANSFER [SIC] THE INSTANT MATTER
TO JUVENILE COURT FOR MULTIPLE REASONS,
INCLUDING, BUT NOT LIMITED TO THE FOLLOWING:
____________________________________________
8
This Court is astonished at the efforts the trial court made to keep Shull
out of a state correctional institute.
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a. THE CASE WAS NOT PROPERLY FILED IN ADULT
COURT UNDER 42 Pa.C.S.A. § 6322 BECAUSE THE
CONDUCT DID NOT MEET THE DEFINITION OF
DELINQUENT ACT SINCE [CROSS-APPELLANT]
DID NOT USE A DEADLY WEAPON DURING THE
COMMISSION OF A ROBBERY (AS EVIDENCED BY
THE TRIAL COURT’S DETERMINATION AT
SENTENCING NOT TO APPLY THE DEADLY
WEAPON USED ENHANCEMENT);
b. [CROSS-APPELLANT] ESTABLISHED BY A
PREPONDERANCE OF THE EVIDENCE THAT HIS
TRANSFER TO JUVENILE COURT WOULD SERVE
THE PUBLIC INTEREST PURSUANT TO 42 Pa.C.S.A.
§ 6322.
III. WHETHER THE HONORABLE TRIAL COURT ERRED BY
FINDING THE [CROSS-APPELLANT] GUILTY OF
ROBBERY WHEN THE GOVERNMENT FAILED TO
PROVE BEYOND A REASONABLE DOUBT ALL
REQUISITE ELEMENTS OF ROBBERY AS DEFINED IN
18 Pa.C.S.A. § 3701(A)(1)(ii), SPECIFICALLY THAT
[CROSS-APPELLANT] THREATENED THE VICTIM OR
INTENTIONALLY PUT THE VICTIM IN FEAR OF
IMMEDIATE SERIOUS BODILY INJURY?
IV. WHETHER THE HONORABLE TRIAL COURT ERRED BY
ADMITTING PRIOR INSTANCES OF CONDUCT OF
[CROSS-APPELLANT] ALLEGEDLY COMMITTING
THEFT WHEN THE PRIOR INCIDENTS WERE
UNCHARGED CONDUCT, INADMISSIBLE PROPENSITY
EVIDENCE PURSUANT TO PENNSYLVANIA RULES OF
EVIDENCE 404(B) THAT THE HONORABLE TRIAL
JUDGE HIMSELF STATED ON THE RECORD THAT THE
EVIDENCE WAS IRRELEVANT?
V. WHETHER THE HONORABLE TRIAL COURT ERRED BY
NOT PROVIDING CREDIT FOR TIME SERVED FOR
[CROSS-APPELLANT’S] PRE-TRIAL INPATIENT
TREATMENT DUE TO THE FACT THAT THE INPATIENT
TREATMENT WAS COURT ORDERED?
Cross-Appellant’s brief at 6.
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In his first issue, Shull charges error with the trial court's ruling
denying his motion to disqualify District Attorney Parks Miller despite an
alleged conflict of interest and appearance of impropriety because of two
unrelated civil suits she filed naming defense counsel as one of many
defendants.9 At the April 10, 2015, hearing on the motion, defense counsel
requested that the Office of the Attorney General handle the matter at bar, a
request the prosecutor opposed and the court, ultimately, denied.
According to defense counsel, the prosecutor’s “status as plaintiff in a
civil action against him, standing alone, constitutes an actual conflict of
interest.” Cross-Appellant’s brief at 30. Moreover, Shull’s mother, an
attorney, represents one of the named defendants in the civil suit filed by
the prosecutor, defense counsel maintains. Although the suit post-dated
Shull’s conviction in the present case, defense counsel maintains, it pre-
____________________________________________
9
Shull alleges that District Attorney Parks Miller filed her civil law suit,
asking for declaratory relief, in retaliation for defense counsel’s filing a Right
to Know Law request seeking discovery of records of electronic
communications between the District Attorney and the Honorable Judge
Bradly Lunsford of the Court of Common Pleas of Centre County. The suit
was filed prior to Shull’s conviction and sentence. Defense counsel was
ultimately dismissed from the matter, but prior to argument on Shull’s post-
sentence motions, District Attorney Parks Miller filed a second complaint
alleging, inter alia, defamation against defense counsel and eleven other
defendants. This second matter was removed to federal court.
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dated argument on post-sentence motions on September 2, 2015. Cross-
Appellant’s brief at 32.10
From Shull’s perspective, the Commonwealth exhibited its conflict of
interest throughout trial and during post-sentence motions. For instance,
although prosecutor Nathan Boob indicated at a February 17, 2015 status
hearing that the Commonwealth intended to discuss a plea offer with Shull’s
family, N.T., 2/17/15 at 4-5, the District Attorney never made such an offer.
Before the commencement of Shull’s non-jury trial, defense counsel apprised
the court that this was the first time in his 17-year career that he had not
received a plea offer for a non-homicide case. N.T., 6/17/15, at 11. The
District Attorney replied that the decision to withhold a plea offer was
entirely evidence-based, as this was the type of “very serious case” in which
her office typically does not offer plea agreements. N.T., at 17-18. The
prosecutor also advised the court that the defense had not indicated a
willingness to plead guilty to anything. N.T., at 18.
Defense counsel also alludes to the District Attorney’s refusal to
provide consent necessary for the trial court to act on its wish to place Shull
in a county correctional facility to serve his 29 to 54 month sentence as an
____________________________________________
10
We question the relevancy of this aspect of defense counsel’s argument,
as the appellate challenge before us goes to the trial court’s April, 2015,
exercise of discretion in denying Shull’s motion to remove the prosecutor. It
is not explained how proceedings occurring months afterward could bear on
the court’s earlier exercise of discretion.
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additional indication of the prosecutor’s inability to serve the public interest.
Notably, however, the record reveals no attempt on defense counsel’s part
to renew his earlier motion to disqualify the prosecutor for taking these
positions later in the course of proceedings.
In denying the existence of merit to Cross-Appellant’s claim, the
Commonwealth responds that jurisprudence of this Commonwealth has
consistently held that “conflicting out” a prosecutor requires a showing of
conflict between the prosecutor and the defendant. Compare
Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa. 1992) (where district
attorney’s law firm represented car accident victims in personal injury suit
against defendant, actual conflict barring prosecution existed; defendant
need not prove actual prejudice in order to require that the conflict be
removed) with Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d
1027, 1037 (1997) (holding mere allegations of a conflict of interest,
however, are insufficient to require replacement of a district attorney). This
Court has also found that a new trial is warranted where the district attorney
has a non-economic, personal interest in the matter. See Commonwealth
v. Balenger, 704 A.2d 1385, 1386 (Pa.Super. 1997) (granting a new trial
where the prosecutor was involved in a romantic relationship with the
defendant's wife), appeal denied 727 A.2d 126 (Pa. 1998). Again, the
Commonwealth maintains that the District Attorney has no personal interest
in the outcome of Shull’s matter, nor does the alleged conflict implicate Shull
personally.
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Instead, the Commonwealth contends that the evidence of the case
and the implications surrounding its outcome, alone, justified the
prosecutorial posture taken below. Regarding the District Attorney’s
decisions to withhold both a plea offer and consent to a county sentence, the
Commonwealth points to the severity of the crime—including its position that
Shull used a deadly weapon to threaten his victim—and the undeniable
concern it caused in the community as legitimate grounds for both decisions.
After careful review of the record, the parties’ respective positions, and
governing decisional law as expressed in Eskridge and related cases, supra,
we conclude that the record before us does not demonstrate a conflict
suggesting a prosecutorial inability to serve as a steward of justice and of
the court in the proceedings below. In this regard, we find the record amply
supports the prosecutor’s position that the facts of the case supported the
decisions made by the District Attorney’s office.
Indeed, Shull points to no decisional law, and we are aware of none, in
which a court has construed a prosecutor’s failure to offer a plea deal, in and
of itself, as an indication of improper prosecutorial motivation. See
Commonwealth v. Smith, 664 A.2d 622, 627 (Pa.Super. 1995) (holding
“Commonwealth is not generally obligated to plea bargain with a defendant
but may not refuse to bargain based on any invidious classification such as
race, religion or national origin.”). Moreover, the District Attorney’s
authority to withhold consent to county placement in this matter was implied
by the very language of Section 9762(b)(2)(ii), which prohibits county
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placement without a District Attorney’s prior consent. Implicit in this
statutory condition is the understanding that the particular circumstances
supporting a maximum prison sentence of between two and five years will
often times make state placement the appropriate choice. Under this
statutory regime, therefore, the refusal to provide consent is clearly within
the discretion of the prosecutor, particularly in a case where the defendant’s
violent crime terrorized the victim. Accordingly, discerning no abuse of
discretion with the trial court’s order denying Shull’s motion to disqualify the
District Attorney, we decline to disturb the ruling below. See
Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa.Super. 2000) (holding
absent an abuse of discretion, appellate court constrained to accept the trial
court's finding that there was no conflict of interest in prosecutor).11 12
In his next issue, Shull argues that the court erred in denying his
motion to transfer this matter to juvenile court because the Commonwealth
failed to establish that he used a deadly weapon during the commission of a
____________________________________________
11
Notably, moreover, the two events Shull emphasizes most in making his
appellate argument asserting trial court error—the withholding of a plea offer
and of consent to county placement—occurred after the court had already
denied his motion to disqualify the prosecutor. We decline to find trial court
error with a ruling which preceded events that Cross-Appellant asserts as
grounds for reversal.
12
As the certified record enabled meaningful review of Cross-Appellant’s first
issue, we deny Cross-Appellant’s motion to amend the reproduced record to
include a copy of the District Attorney’s civil complaint filed against defense
counsel.
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robbery, an act deemed so heinous by the General Assembly as to preclude
designation as a "delinquent act" suitable for the juvenile system. He also
claims that he established by a preponderance of the evidence that his
transfer to juvenile court would serve the public interest pursuant to 42
Pa.C.S. § 6322.
“Decisions of whether to grant decertification will not be overturned
absent a gross abuse of discretion. An abuse of discretion is not merely an
error of judgment but involves the misapplication or overriding of the law or
the exercise of a manifestly unreasonable judgment passed upon partiality,
prejudice or ill will.” Commonwealth v. Sanders, 814 A.2d 1248, 1250
(Pa.Super. 2003). We will review Shull's allegation of error with this
standard in mind.
The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., is designed to
effectuate the protection of the public while providing children who commit
delinquent acts with supervision, rehabilitation, and care while promoting
responsibility and the ability to become a productive member of the
community. 42 Pa.C.S.A. § 6301(b)(2). The Act defines a “child” as one
who is under eighteen years of age. 42 Pa.C.S.A. § 6302. Shull was
seventeen-years-old at the time he committed his robbery of Grego. A
delinquent act is, inter alia, “an act designated as a crime under the law of
this Commonwealth.” Id.
However, because the General Assembly has deemed some crimes so
heinous, a delinquent act does not include:
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(i) The crime of murder.
(ii) Any of the following prohibited conduct where the child was 15
years of age or older at the time of the alleged conduct and a deadly weapon
as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used during the
commission of the offense, which, if committed by an adult, would be
classified as:
***
(D) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or
(iii) (relating to robbery).
Id. A deadly weapon is defined by Section 2301 as
[a]ny firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.
18 Pa.C.S.A. § 2301. Therefore, though Shull was seventeen at the time in
question, if he committed the offense of robbery while possessing a deadly
weapon, his crime would be considered ineligible for classification as a
delinquent act and, accordingly, require that his charges be filed with the
criminal court where original exclusive jurisdiction lies and is presumptively
proper. See Commonwealth v. Ramos, 920 A.2d 1253, 1257–58
(Pa.Super. 2007).
For support, Shull points to our decision in Ramos as placing the
burden on the Commonwealth to present expert testimony that a replica gun
was capable of producing death or serious bodily injury. Cross-Appellant's
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brief at 36. Shull misconstrues Ramos, however, as the decision clearly
confirmed that the burden of proof in a decertification hearing rests with the
juvenile. Specifically, we made the following observations pertinent to the
case sub judice:
To begin, we note that there was some discussion as to who
bears the burden of proof relative to whether or not Appellant
possessed a deadly weapon. The trial court stated its inclination
that the burden was on the Commonwealth, and the
Commonwealth accepted. The Commonwealth's acquiescence
does not make this true, however, and we do not agree.
It is well established that a juvenile seeking decertification has
the burden of proving by the preponderance of the evidence that
the transfer to juvenile court is warranted. 42 Pa.C.S.A. § 6322;
Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217 (2000)
(the Juvenile Act provides a mechanism for a minor to prove to
the court that he does not belong in criminal court via § 6322).
“The propriety of whether charges should be prosecuted in the
juvenile court or adult court system implicates jurisdictional
concerns.” Hughes, supra, 865 A.2d at 776. Nonetheless,
when the crime involved is one excluded from the Juvenile Act's
definition of a delinquent crime, the charge is automatically
within the jurisdiction of the criminal court and jurisdiction is
presumptively proper. Id. at 777, citing Commonwealth v.
Kocher, 529 Pa. 303, 602 A.2d 1308, 1310 (1992) and
Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101, 106–107
(1975), superseded by statute. A challenge to the criminal
court's jurisdiction falls on the juvenile. “To hold otherwise
would create the anomalous situation whereby the party in
whose favor a legislative presumption has been created is called
upon to offer the evidence to support the presumption. Such a
concept would be at variance with the well established principle
of the law of evidence that a presumption shifts not only the
burden of proof, but also shifts the burden of coming forward
with the evidence to establish the fact in issue.”
Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698, 701–
702 (1978) (holding that the burden of proof rests on the
Commonwealth when it seeks to transfer an accused from
juvenile court to criminal court). “The legislative determination
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to exclude [specified offenses] from the jurisdiction of the
juvenile courts evidenced an assumption that the criminal justice
system was the proper forum for the resolution of such matters
unless the party seeking the juvenile court as a forum could
establish reasons to the contrary.” Id. Accordingly, Appellant
bore the burden of proving that the gun was not a deadly
weapon.
Ramos, 920 A.2d at 1258–59.
Ramos clearly indicates that just as a juvenile bears the overarching
burden of proving a transfer to juvenile court is warranted, he or she also
bears the burden of coming forward with evidence that a gun in his or her
possession was not a deadly weapon for purposes of Section 2301. There is,
therefore, no merit to Shull's argument placing this burden upon the
Commonwealth.
The second part to Shull's decertification argument states that he
established his transfer would better serve the public interest. Specifically,
he points to the testimony of two psychiatrists who opined that he suffers
from bi-polar disorder and exhibits a level of functioning and maturity
comparable to a 14 year-old. The experts also testified Shull possesses a
benevolent disposition, lacks a history of aggression or delinquent behavior,
and displays no indicia of antisocial or psychotic traits, all of which
suggested he was amenable to treatment and counseling which could
"alleviate his diminished impulse control and aid his maturity and coping
skills[ ]" during his minority. Cross-Appellant's brief at 40.
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Shull fails, however, to discuss how the many decertification factors
and considerations enumerated in 42 Pa.C.S. § 6355(a)(4)(iii) 13 bore on his
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13
Section 6355(a) provides, in pertinent part:
(a) General rule.--After a petition has been filed alleging
delinquency based on conduct which is designated a crime or
public offense under the laws, including local ordinances, of this
Commonwealth, the court before hearing the petition on its
merits may rule that this chapter is not applicable and that the
offense should be prosecuted, and transfer the offense, where
appropriate, to the division or a judge of the court assigned to
conduct criminal proceedings, for prosecution of the offense if all
of the following exist:
(1) The child was 14 or more years of age at the time of the
alleged conduct.
(2) A hearing on whether the transfer should be made is held in
conformity with this chapter.
(3) Notice in writing of the time, place, and purpose of the
hearing is given to the child and his parents, guardian, or other
custodian at least three days before the hearing.
(4) The court finds:
(i) that there is a prima facie case that the child committed the
delinquent act alleged;
(ii) that the delinquent act would be considered a felony if
committed by an adult;
(iii) that there are reasonable grounds to believe that the public
interest is served by the transfer of the case for criminal
prosecution. In determining whether the public interest can be
served, the court shall consider the following factors:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed
by the child;
(D) the nature and circumstances of the offense allegedly
committed by the child;
(E) the degree of the child's culpability;
(Footnote Continued Next Page)
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case. Simply citing some factors which, standing alone, could support
decertification does not establish the gross abuse of discretion required to
reverse a court's order refusing to decertify a case. Cf Commonwealth v.
Potts, 673 A.2d 956, 958 (Pa.Super. 1996) (given limited scope of review of
certification decisions, court "'will not set aside a certification unless an
appellant demonstrates that the court committed a gross abuse of
discretion.'” A gross abuse of discretion is not demonstrated by merely
reciting facts of record that would support a result contrary to the court's
actual decision.") (citation omitted).
_______________________
(Footnote Continued)
(F) the adequacy and duration of dispositional alternatives
available under this chapter and in the adult criminal justice
system; and
(G) whether the child is amenable to treatment, supervision or
rehabilitation as a juvenile by considering the following factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history,
including the success or failure of any previous attempts by the
juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the
expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors; and
(iv) that there are reasonable grounds to believe that the child is
not committable to an institution for the mentally retarded or
mentally ill.
42 Pa.C.S.A. § 6355(a)(1)-(4).
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Here, the trial court considered, for example, that the experts'
prognoses for rehabilitation were qualified because Shull was already 18
years old at the time of the hearing and there existed insufficient time to
achieve full rehabilitation before he reached 21. "You have got Dr. Altman
saying it's [age] 25[,]" the court observed, a point which defense counsel
conceded before noting Dr. Robin Altman had testified that three years is
still a "pretty good start." N.T. 1/29/15 at 77. The court responded:
THE COURT: You know, Mr. McGraw, I might feel differently
about this case if Dr. Altman had come in here and said ["]he's
doing really well at Caron [Foundation at Wernersville, Pa.],
thinks [sic] are on the upswing, and I'm extremely hopeful,["]
but since he's committed this offense he has gone to Caron, he's
been removed from Caron for trying to kill himself, he goes and
he spends much more time at --
DEFENSE COUNSEL: Philhaven.
THE COURT: Philhaven, then other people do, comes back to
Caron, and is now acting out to the extent that Dr. Altman may
want to diagnose him as schizophrenic. Isn't Caron the same
kind of facility that the juvenile system would provide for him?
And if it's not working in Caron, why is it going to work in the
juvenile system?
DEFENSE COUNSEL: Well no doubt it is -- it is similar but all of
this is preferable to a State Correctional Institute. The public
has no interest in seeing this young man, who is just 18 years of
age, and inflicted with serious mental illness -- but that illness is
by all accounts treatable....
N.T. at 77-78.
On balance, it was the court's determination that factors going against
decertification outweighed those offered in support of decertification. In its
February 3, 2015, order denying decertification, the court alluded to its
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many considerations informing its decision, including: the serious effects of
Shull's crime on his 21 year-old victim; community fears about walking in
downtown State College at night; the circumstances surrounding the violent
crime--including Shull's theft of a CO-2 powered replica gun earlier that
night; his apparent lying in wait for an unsuspecting pedestrian and
positioning of his car to flee the scene; his admission to Dr. Altman that he
brandished a gun to scare the victim into turning over her purse; his
extensive record of unsuccessful rehabilitation efforts in private facilities
offering treatments comparable to those administered in juvenile facilities;
and his treating psychiatrists' own lingering questions about Shull's ability to
rehabilitate during his minority. We discern no abuse of discretion in the
court's thoughtful application of Section 6355(a)(4)(iii) factors to deny
Shull's motion to decertify.
Shull next argues that the Commonwealth failed to prove all elements
of Robbery at 18 Pa.C.S. § 3701(a)(1)(ii) beyond a reasonable doubt.
Our standard for evaluating sufficiency of the evidence is
whether the evidence, viewed in the light most favorable to the
Commonwealth [as verdict winner], is sufficient to enable a
reasonable [factfinder] to find every element of the crime
beyond a reasonable doubt. [T]he entire trial record must be
evaluated and all evidence actually received must be considered,
whether or not the trial court's rulings thereon were correct.
Moreover, [t]he Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Finally, the trier of
fact, while passing upon the credibility of witnesses and the
weight to be afforded the evidence produced, is free to believe
all, part or none of the evidence.
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Commonwealth v. Bryant, 57 A.3d 191 (Pa.Super.2012) (case citations
and quotation marks omitted).
Under Section 3701(a)(1)(ii), a defendant is guilty of robbery if, while
in the course of committing a theft, he "threatens another with or
intentionally puts him in fear of immediate serious bodily injury." 18 Pa.C.S.
§ 3701(a)(1)(ii); Commonwealth v. Jannett, 58 A.3d 818, 821-22
(Pa.Super. 2012). In Jannett, we observed:
The evidence is sufficient to convict a defendant of robbery
under this section “if the evidence demonstrates aggressive
actions that threatened the victim's safety.” Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal denied,
613 Pa. 642, 32 A.3d 1275 (2011). The court must focus “on
the nature of the threat posed by an assailant and whether he
reasonably placed a victim in fear of immediate serious bodily
injury.” Id. (citations omitted). Additionally, this Court has held
that the threat need not be verbal. Id.Jannett, 58 A.3d at 821–22.
In support of his position assailing the sufficiency of the evidence,
Shull notes Grego testified that in the seven to nine seconds Shull assaulted
her he issued no verbal threats, never pointed the gun at her or explicitly
referred to the gun, and never looked at her while he dragged her by her
hair. Cross-Appellant's brief at 45-46. Additionally, Shull states, Grego was
unable to describe precisely how she ended up on her back.
As the trial court found, however, Grego's account allowed the finder
of fact to infer Shull acted with the intent to place her in fear of serious
bodily injury when he angrily responded to her defiant stance against his
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attempt to restrain her. Specifically, Grego described how, under cover of
darkness on an isolated street, Shull reacted violently after she tried to
shove him out of her way, physically overwhelmed her, and aggressively
dragged her by the hair while clutching a gun--with finger on trigger--
directly over her face. According to Grego, seeing the gun at this moment
as she lay overpowered and helpless terrified her, and she let out a series of
screams described by two seasoned police officers as "blood-curdling" and
unlike any scream they had heard in their many years of service. Only upon
the arrival of police did Shull release Grego and run for his vehicle. When
viewed in a light most favorable to the Commonwealth as verdict winner,
this evidence was sufficient to prove the intent element of Section
3701(a)(1)(ii), as Grego's belief that Shull was prepared to inflict serious
bodily harm upon her was entirely reasonable under the dire circumstance in
which Shull placed her.
In his fourth issue, Shull charges error with the court's evidentiary
ruling overruling his objection to testimony recounting his apparent theft of
cigarillos from a convenience store and snacks from a different Walmart on
the night in question. Specifically, Shull maintains the trial court
"considered inadmissible propensity evidence during [his] bench trial[,]
evidence that the court openly impugned as irrelevant during trial. “The
admissibility of evidence is at the discretion of the trial court and only a
showing of an abuse of that discretion, and resulting prejudice, constitutes
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reversible error.” Commonwealth v. Glass, 50 A.3d 720, 724–25
(Pa.Super. 2012) (citation and internal quotation marks omitted).
In general, evidence of uncharged crimes and prior bad acts is
inadmissible to demonstrate a defendant's propensity to commit the crime
charged. Our Supreme Court has stated that
The Commonwealth must prove beyond a reasonable doubt that
a defendant has committed the particular crime of which he is
accused, and it may not strip him of the presumption of
innocence by proving that he has committed other criminal acts.
There are, of course, important exceptions to the rule where the
prior criminal acts are so closely related to the crime charged
that they show, inter alia, motive, intent, malice, identity, or a
common scheme, plan or design.
Stafford, 749 A.2d at 495 (citations omitted).
Here, the notes of testimony reveal that the trial court, sitting as fact-
finder in Shull's bench trial, may not have technically sustained defense
counsel's relevance-based objection to evidence pertaining to Shull's
apparent theft of cigarillos and other items earlier that evening, but
nevertheless, the court openly disparaged the probity of such evidence to
the point of admonishing the prosecution that it would not consider such
evidence in rendering its verdicts, as the following notes of testimony show:
PROSECUTOR: Okay. The photograph that depicts him taking
the cigarillos –
DEFENSE COUNSEL: Objection.
THE COURT: What’s the objection?
DEFENSE COUNEL: It’s not relevant. She’s having him
testify about a theft. It’s prohibited by rule 404. I don’t know –
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THE COURT: The Court will not consider in determining
whether the defendant is guilty of counts 1 through 5 on the
information that he allegedly committed an offense at some
other store. But I don’t understand why this case is getting
down to the nitty-gritty.
If you think that I’m going to find that he stole a gun an hour
later based on the fact that he stole cigarillos and junk food at
another store, you are absolutely wrong. But go ahead.
This case is going to go quicker if I just let you put this stuff in
that’s totally irrelevant. Because I’m telling you, I’m going to
ignore it all, but you can put in on.
PROSECUTOR: I’ll try to move forward, Your Honor.
N.T., 6/17/15, at 104-105.
As our Supreme Court has recognized, [h]armless error exists if the
record demonstrates either: (1) the error did not prejudice the defendant or
the prejudice was de minimis; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that the
error could not have contributed to the verdict. Commonwealth v.
Hairston, 84 A.3d 657, 671–72 (Pa. 2014) (citation omitted). Instantly,
even if we were to assume, arguendo, that the court erred in failing to
sustain the defense objection, we would discern no prejudicial effect from
the error given the court's unequivocal statement that such evidence would
not bear on its fact-finding or verdict on the charges at bar. In addition, the
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“uncontradicted evidence of guilt, namely, victim and police testimony
identifying Shull as the gun-toting assailant who violently assaulted Grego in
a robbery attempt, is so overwhelming, so that by comparison,” the errors at
issue are insignificant. See Commonwealth v. Kuder, 62 A.3d 1038, 1052
(Pa.Super. 2013). Accordingly, Shull's evidentiary ruling challenge is
without merit.
In Shull's final issue, he challenges the trial court's ruling refusing to
credit him with time-served for his voluntary stay at the Caron Foundation
for inpatient rehabilitation. Shull contends, however, that the court was
obligated to award him credit starting from the date of the decertification
hearing, when the court entered an order requiring him to remain in
inpatient rehabilitation.
Specifically, Shull voluntarily entered a 90-day program at Caron one
week before his decertification hearing. At the hearing, the court ordered
that the "bail bond executed by the defendant on October 16, 2014, is
amended to include the condition that Defendant remain at the Caron
Foundation in Warrensville, Pennsylvania and not leave that facility unless
accompanied by a Caron employee or to return for the next hearing." N.T.
1/14/15 at 135. At the sentencing hearing, the trial court explained it was
in consideration of the ongoing provision of treatment already secured by
Shull’s parents that the court agreed not to revoke bail on condition that
Shull not leave Caron. In the court’s estimation, therefore, Shull was at
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Caron voluntarily and not as a condition of confinement. N.T. 8/11/15 at
26-27.
Employing an abuse of discretion standard of review governing the
exercise of sentencing discretion,14 we note the following:
The Sentencing Code provides that a defendant shall receive
credit for all time spent in custody prior to trial:
§ 9760. Credit for time served
(1) Credit against the maximum term and any
minimum term shall be given to the defendant for all
time spent in custody as a result of the criminal
charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in
custody prior to trial, during trial, pending sentence,
and pending the resolution of an appeal.
42 Pa.C.S.A. § 9760(1). “The principle underlying [Section
9760] is that a defendant should be given credit for time spent
in custody prior to sentencing for a particular offense.”
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa.Super.
2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008),
quoting Commonwealth v. Hollawell, 413 Pa.Super. 42, 604
A.2d 723, 725 (1992) (citation omitted) (emphasis deleted).
____________________________________________
14
Shull's brief does not contain a “concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence” as required by Pa.R.A.P. 2119(f). However, the Commonwealth
has not objected. Therefore, we will not find Shull's discretionary claim to
be waived. See Commonwealth v. Brougher, 978 A.2d 373, 375
(Pa.Super. 2009) (claims relating to the discretionary aspects of a sentence
are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in
his brief and the opposing party objects to the statement's absence; where
the appellant has failed to comply with the requirement of 2119(f) but the
Commonwealth did not object to the statement's absence, we will not find
appellant's claims waived).
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The easiest application of [42 Pa.C.S.A. § 9760(1)] is
when an individual is held in prison pending trial, or
pending appeal, and faces a sentence of
incarceration: in such a case, credit clearly would be
awarded. However, the statute provides little
explicit guidance in resolving the issue before us
now, where [the defendant] spent time [somewhere
other] than in prison. This difficulty results in part
from the fact that neither Section 9760, nor any
other provision of the Sentencing Code, defines the
phrase “time spent in custody.” The difficulty is also
a function of the fact that there are many forms of
sentence, and many forms of pre-sentencing release,
which involve restrictions far short of incarceration in
a prison.
Id. at 595-596, quoting Commonwealth v. Kyle, 582 Pa. 624,
632-633, 874 A.2d 12, 17 (2005) (citation omitted). “Courts
have interpreted the word ‘custody,’ as used in Section 9760, to
mean time spent in an institutional setting such as, at a
minimum, an inpatient alcohol treatment facility.” Id. at 596,
quoting Kyle, 582 Pa. at 634, 874 A.2d at 18.
Commonwealth v. Toland, 995 A.2d 1242, 1248–49 (Pa.Super. 2010).
Shull points to the procedural history of his case wherein the court
placed him on house arrest upon the completion of his 103-day stay at
Caron and prior to issuing an order permitting him to enroll at the Linder
Hope Center on March 5, 2015, for a neuropsych evaluation and possible
ongoing treatment at the facility. N.T. 3/3/15 at 3-12. At a bail status
hearing on March 11, 2015, defense counsel asked that Shull be released on
bail to permit his enrollment in a partial hospitalization program at another
rehabilitation center following his upcoming discharge from the Lindner
Center on March 17, 2015. The court denied this request, however, and
ordered that upon his discharge from Lindner he be returned to Center
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County Correction Facility where he would remain without bail. N.T. 3/11/15
at 3-6.
Shull relies on Commonwealth v. Cozzone, 593 A.2d 860 (Pa.Super.
1991), in asserting that he is entitled to credit time for that portion of his
inpatient treatment served at the Caron Foundation and the Lindner Hope
Center under court order that he not leave such facilities unless
accompanied by a facility employee or for the purpose of attending a court
hearing. In Cozzone, the DUI defendant enrolled in an inpatient
rehabilitation program in conformance with an explicit condition of his
release on bail. After spending 32 days at the facility prior to his pleading
guilty, defendant sought credit for his time served, which the sentencing
court denied. We reversed, holding that the defendant only enrolled to
avoid pre-trial imprisonment, making his case distinguishable from
precedent permitting the denial of credit for pre-trial time served where the
defendant voluntarily admitted himself for inpatient treatment. See, e.g.,
Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991) (holding voluntary
admission qualifies as pretrial custody for purposes of “imprisonment” for
purposes of awarding time served, but decision whether to award credit
resides in sound discretion of sentencing court). In particular, we noted that
the District Justice had allowed the defendant to admit himself to an alcohol
treatment facility in lieu of being committed to the county prison, and made
such admission a condition of his being released on bail. Cozzone, 593
A.2d at 866.
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In Toland, we discussed how precedent distinguishes voluntary from
court-ordered pretrial, inpatient admissions when inquiring into whether
credit for time served should be granted or denied:
Looking at these cases together, therefore, it seems that
whether a defendant is entitled to credit for time spent in an
inpatient drug or alcohol rehabilitation facility turns on the
question of voluntariness. If a defendant is ordered into
inpatient treatment by the court, e.g., as an express condition of
pre-trial bail, then he is entitled to credit for that time against
his sentence. Cozzone. By contrast, if a defendant chooses to
voluntarily commit himself to inpatient rehabilitation, then
whether to approve credit for such commitment is a matter
within the sound discretion of the court. Conahan. See also
Commonwealth v. Mincone, 405 Pa.Super. 599, 592 A.2d
1375 (1991) (en banc ) (trial court may exercise its discretion
in determining whether to grant defendant credit towards his
mandatory minimum sentence of imprisonment for time
voluntarily spent at Gateway Rehabilitation Center, an
institutionalized rehabilitation facility) (discussing Conahan,
supra).
Commonwealth v. Toland, 995 A.2d 1242, 1250–51 (Pa.Super. 2010).
Toland involved a third-time DUI offender who was facing a
mandatory one-year prison sentence. After pleading guilty, he asked the
court for 354 days’ credit for pretrial detention served at several inpatient
rehabilitation facilities, noting that the magisterial district judge had ordered
that he enter inpatient rehabilitation. Despite the wording in the MDJ’s bail
information, the sentencing court denied credit for time served, because the
defendant had been released on bail and admitted himself only after he was
arrested again for DUI one month later. More significantly, however, the
record established that the defendant entered inpatient rehab not to avoid
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going to jail but, instead, to obtain the best services available to save his
life.
In this regard, the sentencing court found it critical that Toland had
spent over $100,000 at exclusive, private facilities in Oregon and Arizona.
In Oregon, the defendant spent 47 days engaged in group care and therapy
relating to his alcohol addiction. When he completed this program, he
followed the Oregon staff’s recommendation to transfer to the Prescott
House in Arizona, where he lived in apartment-style housing, was free to go
out, and held a part-time job. The record also showed he had continued his
preliminary hearing numerous times before waiving it after he had spent
nearly one full year receiving this residential, inpatient treatment. There
was nothing about this arrangement that resembled imprisonment or even
custody, opined the sentencing court, which described the Prescott House as
a “mile high scenic mountain getaway.” Id. at 1252.
In affirming the court’s denial of credit, we agreed that the defendant’s
situation in no way resembled the “custodial hospital environment” involved
in Conahan. Id. We continued:
In addition, we cannot ignore the trial court's cogent argument
that allowing appellant credit in this case would invite
defendants who can afford extended stays in inpatient
rehabilitation facilities to “game the system.” (Trial court
opinion, 1/7/09 at 17-18.) Most defendants cannot afford to pay
in excess of $100,000 and continue their cases indefinitely while
they “rehab” at addiction facilities in Oregon and Arizona. The
trial court states that “If this Court were to allow credit for time
spent in rehab in this case, the Court could not look similarly
situated defendants in the eye.” (Id. at 18.).
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Id., at 1253.
Here, as was the case in Toland, the trial court determined that
Shull—with the full emotional and financial support of his family—had
voluntarily admitted himself into an exclusive, private rehabilitation facility
not to avoid pre-trial detention but, instead, to acquire for himself the best
treatment available for his addiction and medical difficulties. Our review of
the record supports this determination, and so we decline to find the court
abused its exercise of sentencing discretion in refusing to credit time-served
for time he spent in voluntary rehabilitation.
Accordingly, we affirm the convictions in the above captioned matters,
but vacate sentence and remand for resentencing consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
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