Com. v. Scott, D. ( 2022 )


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  • J-S37026-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DACITA SCOTT                               :
    :
    Appellant               :   No. 1022 EDA 2020
    Appeal from the Judgment of Sentence Entered March 13, 2020
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at CP-51-CR-0003689-2018
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DACITA SCOTT                               :
    :
    Appellant               :   No. 1023 EDA 2020
    Appeal from the Judgment of Sentence Entered March 13, 2020
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at CP-51-CR-0009896-2017
    BEFORE:      PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY MURRAY, J.:                           FILED JANUARY 18, 2022
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S37026-21
    Dacita Scott (Appellant) appeals from the judgment of sentence
    imposed after the trial court revoked her probation at the above docket
    numbers.1 After careful consideration, we affirm.
    On September 5, 2017, Appellant broke into the home of her “ex,” R.S.,
    and took two bags of his clothing and two gallons of water. N.T., 11/14/19,
    at 8, 27. When R.S. told Appellant “to stop,” she “threatened him with a
    knife.” Id. at 27. No one was injured and Appellant “left the house and was
    subsequently arrested.”          Id.    At docket CP-51-CR-0009896-2017, the
    Commonwealth charged Appellant with theft by unlawful taking (theft),
    possession of an instrument of crime (PIC), and defiant trespass.2
    On March 18, 2018, Appellant entered R.S.’s home in violation of a
    protection from abuse (PFA) order. N.T., 11/14/19, at 28. At docket CP-51-
    CR-0003689-2018, the Commonwealth charged Appellant with defiant
    trespass and contempt of a PFA order.3
    Appellant appeared before the trial court on November 14, 2019, and
    entered a global negotiated guilty plea to theft, PIC, contempt of a PFA order,
    ____________________________________________
    1 On April 10, 2020, Appellant filed a notice of appeal at each docket, in
    compliance with Commonwealth v. Walker, 
    185 A.3d 969
    , 971 (Pa. 2018).
    On June 18, 2021, this Court consolidated Appellant’s appeals sua sponte.
    2   18 Pa.C.S.A. §§ 3921(a), 907(a), and 3503(b).
    3   18 Pa.C.S.A. § 3503(b) and 23 Pa.C.S.A. § 6114(a).
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    and two counts of defiant trespass.4               The court sentenced Appellant,
    “consistent with the negotiations,” to 3 years of probation. N.T., 11/14/19,
    at 37-38.
    Approximately     six   weeks     later,   on   December   23,   2019,   the
    Commonwealth filed a Gagnon I5 summary alleging that Appellant had
    committed multiple reporting violations, tested positive for PCP, and failed to
    attend her initial mental health evaluation.6 Gagnon I Summary, 12/23/19,
    at 2. Appellant appeared before the court on January 9, 2020 for a Gagnon
    II hearing.      After the hearing, the trial court concluded that Appellant
    “constitutes an immediate present danger,” found her to be in violation of her
    supervision, and revoked her probation. See N.T., 1/9/20, at 6. The court
    deferred sentencing for the preparation of a forensic intensive recovery
    evaluation, mental health evaluation, and pre-sentence investigation (PSI)
    report. Id. at 4. The court stated that it wanted “to look at commitment,
    recommendations for treatment, and a full dual diagnosis evaluation.” Id. at
    7.
    On March 13, 2020, the court resentenced Appellant to 2½ - 5 years of
    incarceration, followed by 5 years of probation. Defense counsel made an oral
    ____________________________________________
    4Appellant also pled guilty to a separate charge of contempt of a PFA order at
    docket number MC-51-CR-0020964-2019. N.T., 11/14/19, at 29.
    5   See Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
    6The Commonwealth stated that Appellant was “being supervised by the
    Domestic Violence Unit for” violating “active PFA order … 1803V7007.”
    Gagnon I Summary, 12/23/19, at 2.
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    motion for the court to reconsider its sentence, which the court denied. See
    N.T., 3/13/20, at 24-26. Appellant timely appealed. Both Appellant and the
    trial court have complied with Pa.R.A.P. 1925.
    Appellant presents one issue for review:
    Was the VOP court’s imposition of a 2 year and 6 months to 5 year
    sentence of imprisonment, followed by 5 years of probation,
    greater than necessary to vindicate the authority of the court,
    where [Appellant] committed the technical violation of absconding
    for 60 days during a drug relapse?
    Appellant’s Brief at 3.
    Appellant challenges the discretionary aspects of sentencing. “The right
    to appellate review of the discretionary aspects of a sentence is not absolute,
    and   must    be   considered    a   petition   for   permission    to   appeal.”
    Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    , 1265 (Pa. Super. 2014).
    “An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
    when challenging the discretionary aspects of a sentence.” 
    Id.
     We conduct
    this four-part test to determine whether:
    (1) the appellant preserved the issue either by raising it at the
    time of sentencing or in a post[-]sentence motion; (2) the
    appellant filed a timely notice of appeal; (3) the appellant set forth
    a concise statement of reasons relied upon for the allowance of
    appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
    a substantial question for our review.
    Commonwealth v. Baker, 
    72 A.3d 652
    , 662 (Pa. Super. 2013) (citation
    omitted). “A defendant presents a substantial question when [s]he sets forth
    a plausible argument that the sentence violates a provision of the sentencing
    code or is contrary to the fundamental norms of the sentencing process.”
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    Commonwealth v. Dodge, 
    77 A.3d 1263
    , 1268 (Pa. Super. 2013) (citations
    omitted).
    Appellant has complied with the first three prongs of this test by raising
    her issue at sentencing, filing timely notices of appeal, and including in her
    brief a Rule 2119(f) concise statement.          See Appellant’s Brief at 8-9.
    Therefore, we examine whether Appellant presents a substantial question.
    Appellant argues that the trial court improperly “imposed a sentence of
    total confinement for technical violations when the prerequisites in 42 Pa.C.S.
    § 9771(c) were not met[.]” Appellant’s Brief at 8. Appellant also asserts her
    sentence “is disproportionate to the conduct at issue and was not justified by
    sufficient reasons.”   Id.   Both claims raise a substantial question.          See
    Commonwealth v. Lucky, 
    229 A.3d 657
    , 664 (Pa. Super. 2020). We thus
    examine the merits of Appellant’s sentencing issue.
    Preliminarily, we recognize,
    the proper standard of review when considering whether to affirm
    the sentencing court’s determination is an abuse of discretion ...
    [A]n abuse of discretion is more than a mere error of judgment;
    thus, a sentencing court will not have abused its discretion unless
    the record discloses that the judgment exercised was manifestly
    unreasonable, or the result of partiality, prejudice, bias or ill-will.
    In more expansive terms, our Court recently offered: An abuse
    of discretion may not be found merely because an appellate court
    might have reached a different conclusion, but requires a result of
    manifest unreasonableness, or partiality, prejudice, bias, or ill-
    will, or such lack of support so as to be clearly erroneous.
    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
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    particular offense based upon an evaluation of the individual
    circumstances before it.
    Commonwealth v. Moury, 
    992 A.2d 162
    , 169–70 (Pa. Super. 2010)
    (citation omitted).
    With respect to her violation, Appellant states:
    she failed to report to her probation officer on two occasions, failed
    to complete a court-ordered mental health assessment and failed
    her first and only drug test. The VOP sentence imposed was the
    statutory maximum consisting of 2½ to 5 years’ confinement on
    the most serious charge of Theft, graded as a first-degree
    misdemeanor.
    Appellant’s Brief at 6. Appellant argues her sentence is “disproportionate to
    the violation and far in excess of what was necessary to foster Appellant’s
    rehabilitation or protect the public.” Id. at 7. Appellant claims the trial court
    “failed to take into consideration the nature and characteristics of the
    underlying offense,” as well as the provisions of the Sentencing Code. Id.
    She also contends the court “relied on its own erroneous belief that Appellant
    had continued to maintain prohibited contact” with R.S. during probation. Id.
    She maintains the court “improperly weighed the sentencing factors it did
    consider – choosing to focus on the inconsistent reporting and failed drug
    screen, fully discounting her employment, her struggles with her mental
    health and physical health as well as the abuse she had endured earlier in
    life.” Id. The Commonwealth agrees with Appellant. See Commonwealth
    Brief at 2 (stating trial court “improperly considered [Appellant’s] pre-
    probationary conduct” and failed to demonstrate that total confinement “was
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    necessary to either prevent [Appellant] from committing future crimes or
    vindicate its authority.”). Upon review, and consistent with Moury, supra,
    we do not find the sentence to be “clearly erroneous.”
    We first address Appellant’s contention that the trial court “relied on its
    own erroneous belief that Appellant had continued to maintain prohibited
    contact with [R.S.] during probation.” Appellant’s Brief at 7. This claim is
    belied by the record.
    We have explained:
    A sentence is invalid if the record discloses that the sentencing
    court may have relied in whole or in part upon an impermissible
    consideration.     This is so because the court violates the
    defendant’s right to due process if, in deciding upon the sentence,
    it considers unreliable information, or information affecting the
    court’s impartiality, or information that it is otherwise unfair to
    hold against the defendant.
    Commonwealth v. Downing, 
    990 A.2d 788
    , 793 (Pa. Super. 2010)
    (citations omitted).
    Further,
    In deciding whether a trial judge considered only permissible
    factors in sentencing a defendant, an appellate court must, of
    necessity, review all of the judge’s comments. Moreover, in
    making this determination it is not necessary that an appellate
    court be convinced that the trial judge in fact relied upon an
    erroneous consideration; it is sufficient to render a sentence
    invalid if it reasonably appears from the record that the trial court
    relied in whole or in part upon such a factor.
    Commonwealth v. Scott, 
    860 A.2d 1029
    , 1030 (Pa. Super. 2004) (citation
    omitted).
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    Instantly, the trial court never referenced Appellant having prohibited
    contact with R.S. when it stated the reasons for the sentence.    See N.T.,
    3/13/20, at 17-21.    To the contrary, the court expressly acknowledged
    Appellant’s testimony that she had stopped contacting R.S.:
    THE COURT: Well, here’s the problem, and I get that it’s a
    complicated one, but even when I handled the violation hearing,
    there were some stated concerns about whatever contact you had
    with [R.S.] at the time that you were prohibited from doing that.
    Your reporting of what you’re doing is conflicting.
    [Appellant]: Excuse me, Your Honor. Can I ask a question? My
    violation with the gentleman that him and I – I text him I loved
    him, that was from a year ago. That has – that wasn’t – that was
    from 2017 –
    THE COURT: I understand that.
    [Appellant]: That wasn’t recent. I haven’t been –
    THE COURT: Okay. I’m glad you’re not having any contact
    with him now. That’s very healthy. Okay. Duly noted. Thank
    you.
    N.T., 3/13/20, at 16 (emphasis added).
    As indicated above, the trial court understood that Appellant was no
    longer contacting R.S. As to Appellant’s argument that the court disregarded
    the Sentencing Code, we reiterate the court’s “broad discretion” and our
    “concomitantly deferential standard of appellate review” based on the
    sentencing court being “in the best position to determine the particular
    penalty[.]” Moury, supra.
    [A] sentencing court may choose from any of the sentencing
    options that existed at the time of the original sentencing,
    including incarceration. 42 Pa.C.S.[A.] § 9771(b). However, the
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    imposition of total confinement upon revocation requires a finding
    that either “(1) the defendant has been convicted of another
    crime; or (2) the conduct of the defendant indicates that it is likely
    that [s]he will commit another crime if he is not imprisoned; or
    (3) such a sentence is essential to vindicate the authority of the
    court.” 42 Pa.C.S. 9771(c).
    Commonwealth v. Swope, 
    123 A.3d 333
    , 338 (Pa. Super. 2015) (footnote
    omitted). The court is limited only by the maximum sentence that it could
    have   imposed    originally   at   the   time   of   the   probationary   sentence.
    Commonwealth v. Coolbaugh, 
    770 A.2d 788
    , 792 (Pa. Super. 2001). A
    resentence may not exceed the statutory limits of the sentence, including
    allowable deductions for time served. 
    Id.
    Our Supreme Court has stated,
    following revocation, a sentencing court need not undertake
    a lengthy discourse for its reasons for imposing a sentence or
    specifically reference the statutes in question. Simply put, since
    the defendant has previously appeared before the sentencing
    court, the stated reasons for a revocation sentence need not be
    as elaborate as that which is required at initial sentencing. The
    rationale for this is obvious. When sentencing is a consequence of
    the revocation of probation, the trial judge is already fully
    informed as to the facts and circumstances of both the crime and
    the nature of the defendant, particularly where, as here, the trial
    judge had the benefit of a PSI during the initial sentencing
    proceedings. See Walls, 592 Pa. at 574 n.7, 926 A.2d at 967 n.
    7 (“Where [PSI] exist[s], we shall continue to presume that the
    sentencing judge was aware of the relevant information regarding
    the defendant's character and weighed those considerations along
    with mitigating statutory factors.”).
    Commonwealth v. Pasture, 
    107 A.3d 21
    , 28 (Pa. 2014).
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    Here, the trial court stated it had “reviewed the mental health
    evaluation, as well as the … full [PSI] report.” N.T., 3/13/20, at 9. The court
    then addressed Appellant at length:
    Okay. All right. [Appellant], the difficulty that has been
    presented is that I and the Commonwealth and your counsel, and
    apparently prior efforts as well, have done everything we can do
    to help you, and the only impediment to that was you.
    And your recording of your history and minimizing your drug
    activity, even as reflected in the presentence investigation, is
    most troublesome. I’m going to go over some salient points that
    are recollected and that I reviewed.
    I think you’re 44 years old now. You reflected that there
    were difficulties in your family growing up. You reflected that once
    your parents separated, your mom was the primary caretaker of
    you. You reflected as a teenager, you viewed your mom as
    overprotective and you were rebellious. And you reflected that
    your father was abusive, physically and verbally.
    You reflected that your dad was an alcoholic and more
    volatile when intoxicated. You reflected that you, yourself, w[ere]
    involved in at least one abusive relationship. You reflected that
    your housing has changed from state to state.
    You did acknowledge that you had made poor decisions
    throughout your life. You reflected that you did receive counseling
    back – when you reported abuse back when you were much
    younger. You stated that you had five children with four different
    men throughout time, that your three older children did, after
    being placed with other folks did do well in life so far, attending
    college.
    Your daughter graduated with a business major, University
    of Pittsburgh. Your second oldest daughter [went] to Harcum.
    Your son’s reportedly attending New England School of Culinary
    Arts.
    You indicated that two of your children had been diagnosed
    with [] mental health difficulties, and I believe DHS is involved
    with the care of your younger children, or child. Not sure which.
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    In terms of your education, you reflected that you attended
    University City High School, withdrew because you became
    pregnant with your first child in 12th grade. You did go on, attend
    vocational training through Delaware County. You obtained a
    certificate as a nursing assistant but no additional training, and it
    looks like the employment that you’ve indicated was basically
    receiving assistance for caring for your mother.
    You did report a last employment, I think, with Grass Roots
    for $100 worth in 2019. That was verified, but it would appear
    that your earlier employment was earlier in time.
    Looking at this – and then I will get to the diagnosis and the
    hospitalizations – that you appeared to have gone off the rails, as
    they say, and you’ve struggled through time. I recognize that.
    You’ve reported that you’ve been diagnosed with bipolar disorder,
    depression, anxiety, schizophrenia, post-traumatic stress
    disorder, and attention deficit hyperactive disorder, and that you
    have had treatment on and off since the age of ten.
    The therapeutic care that you’ve indicated you received was
    during childhood through Community Council. You reported that
    in your 30s, you were involved or committed and received two
    hospitalizations. It was reported for the last three years, you have
    been receiving mental health-related medication through Penn
    Presbyterian Medical Center. I’m assuming that that’s where you
    were obtaining your Suboxone.
    However, all of those efforts have been repeatedly
    defeated because of your abuse of alcohol and various
    types of narcotic substances. You cannot expect to progress
    with mental health difficulties if you invade your body with
    narcotics. Particularly, you reported that you’re drinking alcohol,
    used marijuana, powder cocaine, and progressed to Percocet,
    heroin, and you claimed that you had not been using any of the
    same, and that you claim that you unknowingly [] ingested PCP.
    I find that incredulous at best.
    Your avoidance of being drug tested as pursuant to the order
    of the [c]ourt reflected that indeed you were back using narcotics.
    And PCP, as you well know, is a very serious, significant
    hallucinogenic, and that combined with your proper treatment for
    your other mental health problems, is a recipe for disaster.
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    And I can well infer from all these collective facts, ma’am,
    that the difficulties that were presented in your respective
    relationships, including the one with [R.S.] and the other person
    with the other PFA, may have stemmed and been associated with
    that because if you are high on PCP while you are supposed
    to be taking your medicines, you’re not in your right mind,
    and that’s when very violent things can happen.
    And indeed, you’re very fortunate that it has not been
    worse, and you are very fortunate that we are once again
    presented with an opportunity to do what you say you wish to do.
    But part and parcel of doing that, [Appellant], is taking firm
    responsibility for your actions.
    It’s not just a desire to change; you have to do it. The keys
    were always in your hands, [Appellant].
    And I knew the day you were before me on that negotiated
    guilty plea because of how you presented yourself that it would
    not be long before you would come back.
    My sentence is going to reflect that I firmly believe
    that you present a danger to yourself and to others and are
    at high risk for recidivism, and I don’t want to see anything
    bad happen to anybody, particularly you.
    N.T., 3/13/20, at 17-21 (emphasis added).
    The above commentary reveals the trial court’s determination that
    “probation had been ineffective[.]” Trial Court Opinion, 12/15/20, at 8. In
    addition to indicating that incarceration is necessary to vindicate the court’s
    authority, the court found Appellant will likely commit another crime if she is
    not incarcerated, see N.T., 3/13/21, at 21 (advising Appellant, “you present
    a danger . . . and are at high risk for recidivism”). Swope, supra. In alluding
    to Appellant “initially receiv[ing the benefit of] a lenient sentence,” Pasture,
    107 A.3d at 28, the court stated it “had at length evaluated [Appellant’s]
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    situation, and I feel that this is best.”    N.T., 3/13/20, at 24.   The court
    reviewed Appellant’s PSI as well as other reports, and considered her personal
    history which included mitigating factors and myriad struggles. We disagree
    with Appellant’s claim that the court disregarded the Sentencing Code and
    “improperly weighed” the factors it considered. Appellant’s Brief at 7.
    In sum, “the record as a whole” reflects the sentencing court’s
    consideration of the facts and [Appellant’s] character,” Crump, 995 A.2d at
    1283, and we discern no abuse of discretion. Moury, 
    992 A.2d at 170
     (“An
    abuse of discretion may not be found merely because an appellate court might
    have reached a different conclusion.”) (citation omitted); see also 
    id.
     (“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.”).
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/18/2022
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