Com. v. Scott, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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