Com. v. Anderson, K. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAVON D. ANDERSON :
:
Appellant : No. 1625 EDA 2021
Appeal from the Judgment of Sentence Entered July 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0009101-2016
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 14, 2022
Kavon D. Anderson (Appellant)1 appeals from the judgment of sentence
imposed for possessing an instrument of crime, simple assault, and criminal
mischief,2 following revocation of Appellant’s probation. After careful review,
we affirm.
On August 28, 2016, officers responded to 1422 Gilham Street in
Philadelphia, where a man (the complainant) indicated he had solicited a
female for sex on Backpage.com. After arriving at the designated hotel, the
complainant discovered Appellant was male. The complainant gave Appellant
$200 and asked Appellant and an individual with Appellant to leave. A struggle
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1 Appellant was born male, but identifies as female.
2 See 18 Pa.C.S.A. §§ 907, 2702(a), 3304(a)(2).
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ensued, and Appellant and the other individual took complainant’s wallet,
kicked him, and ran out the door. The complainant’s property was taken “at
the point of a weapon.” Trial Court Opinion, 11/19/21, at 2.
The Commonwealth charged Appellant with the above crimes, and the
trial court accepted Appellant’s negotiated guilty plea. Id. On July 24, 2017,
in accordance with the plea agreement, the court sentenced Appellant to
concurrent probation terms of three years for PIC, one year simple assault,
and one year for criminal mischief. Id. The Commonwealth withdrew felony
charges, which included robbery, conspiracy, and firearms offenses. Id. at 6.
The trial court explained:
On the date … sentence had been entered, I informed
[Appellant] of the potential consequences to violation of the
conditions of the order of sentence … Those conditions included
prohibition to use or contact [] illegal narcotics, submission to
drug screening of narcotics, … the first positive testing was
supposed to come back to [the trial court,] … twenty hours of
community services, completion of ongoing anger management
counseling.
[The trial court] permitted Baltimore, Maryland, supervision
if the transfer was accepted and approved by [the] probation
department—regular court costs, and [the court] advised
[Appellant] at that time as to what would occur if she returned
with violating behavior.
Id. at 2.
On December 8, 2017, while under supervision in Baltimore, Appellant
arranged (on craigslist.com) to meet a man at a hotel. Id. According to the
man, upon his arrival at the hotel,
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a male dressed as a female answered the door. Complainant
advised, “I’m not into that” before another male dressed as a
female exited the room, stepped behind the complainant and
physically forced th[e] complainant into the hotel room. … [O]nce
in the room, [a] third individual was present.
….
Complainant’s pockets were searched for belongings. The
person who answered the door and the person who forced him
into the hotel room took a Samsung Note 4 and car keys from the
complainant. The three suspects exited the hotel room towards
the elevator—[there was an] identification of [Appellant] as one
of the individuals that robbed that complainant. Complaint
provided he pursued the individuals that robbed him. When
[complainant] confronted them, one of them … picked up a lamp
[and] started to assault the complainant before a hotel employee
was able to intervene.
Id. at 3-4. As a result of the Maryland incident, the Maryland Circuit Court
sentenced Appellant to a three-year suspended sentence, followed by two
years of probation. Id. at 4.
During his supervision in Maryland, Appellant was arrested six times in
Virginia. Id. Appellant’s sole conviction in Virginia resulted in a suspended
sentence of 12 months of confinement and 50 hours of community service.
Id. At the time of the Virginia incident, Appellant did not have permission to
leave Maryland. Id.
On August 20, 2020, Maryland reported to Philadelphia County’s
probation department that Appellant had absconded from supervision. Id.
On December 9, 2020, the Philadelphia probation department received notice
that Appellant was in custody in Baltimore. Id. Pennsylvania extradited
Appellant to Philadelphia for violations of probation (VOP) proceedings. Id.
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On January 8, 2021, Appellant’s counsel conceded the probation
violations, and the trial court ordered a presentence investigation and mental
health assessment. Id. at 5. After a Gagnon II3 hearing on July 8, 2021,
the trial court sentenced Appellant to concurrent terms of two to four years in
prison, followed by one year of “intensively supervised reporting probation,”
for PIC; one year of “intensively supervised reporting probation” for simple
assault; and one year of “intensively supervised reporting probation” for
criminal mischief. Sentencing Order, 7/8/21. Appellant filed a motion for
reconsideration of sentence. Following an evidentiary hearing and oral
argument, the trial court denied Appellant’s motion. Appellant filed this timely
appeal,4 and a court-ordered Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal. The trial court filed an opinion.
Appellant presents the following issues for review:
1. Whether the sentencing court abused its discretion following
the revocation of probation and the imposition of a 2 to 4 years
state prison [sentence] followed by 3 years of probation given
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3See Gagnon v. Scarpelli, 411 U.S. 778 (1973). See also Commonwealth
v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (explaining that when
parolee or probationer is detained pending a revocation hearing, due process
requires a determination at a pre-revocation hearing of probable cause that a
violation occurred; if the court finds probable cause, the court holds a second,
more comprehensive hearing to make a final decision).
4 Appellant filed a notice of appeal from the July 8, 2021, and July 26, 2021,
orders. However, an appeal properly lies from the judgment of sentence
entered July 8, 2021. The caption has been corrected. See Commonwealth
v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc)
(explaining that in criminal cases, an appeal lies from the judgment of
sentence made final by the denial of post-sentence motions).
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the nature of the crime, the Appellant’s character, and display
of remorse?
2. Whether the sentencing court was manifestly unreasonable or
the result of partiality, prejudice, bias or ill-will given the nature
of the crime, the Appellant’s character, and display of remorse?
Appellant’s Brief at 3. Like Appellant, we address the issues together.
Appellant challenges the discretionary aspects of her sentence. “[I]t is
within our scope of review to consider challenges to the discretionary aspects
of an appellant’s sentence in an appeal following a revocation of
probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super.
2006). However, “a challenge to the discretionary aspects of a sentence is
not appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042
(Pa. Super. 2014). Before we reach the merits of Appellant’s issues, we must
determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
h[er] issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code[.] [I]f the
appeal satisfies each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Id. at 1042-43 (citations omitted).
Our review discloses Appellant timely filed her notice of appeal and
preserved her issues by filing a post-sentence motion for modification of
sentence. Appellant additionally included in her brief a statement of reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See
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Appellant’s Brief at 8-9. As to whether Appellant has raised a substantial
question, we conduct a case-by-case analysis. Commonwealth v. McAfee,
849 A.2d 270, 274 (Pa. Super. 2004).
In her Rule 2119(f) statement, Appellant asserts the trial court “imposed
a manifestly unreasonable sentence” of two to four years in prison, followed
by three years of reporting probation, because the court previously imposed
only probation. Appellant’s Brief at 8-9. Appellant claims the court failed to
consider she is transgender and would likely be abused in prison. Id. at 9.
Appellant further contends the court failed to consider she served five months
in jail prior to her original sentencing, and eight months in jail, under COVID
conditions, while awaiting resentencing. Id. Appellant also asserts the trial
court improperly disregarded her remorse, mental health problems and
rehabilitative needs, family support, prior trauma, youth, and lack of
education. Id. at 10.
This Court has held that a claim of an excessive sentence, in conjunction
with an assertion the court failed to consider mitigating factors and
rehabilitative needs, raises a substantial question for review. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (concluding substantial question existed where appellant challenged the
sentence as unduly excessive, and claimed the court failed to consider
appellant’s rehabilitative needs).
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Having determined that Appellant has raised a substantial question, we
recognize:
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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted). “A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the
offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super.
2010) (citation omitted).
When a court revokes a defendant’s probation and imposes a new
sentence, “the sentencing alternatives available to the court shall be the same
as were available at the time of initial sentencing, due consideration being
given to the time spent serving the order of probation.” 42 Pa.C.S.A.
§ 9771(b); see also Commonwealth v. Derry, 150 A.3d 987, 991 (Pa.
Super. 2016) (noting that although VOP courts must consider general
sentencing principles under 42 Pa.C.S.A. § 9721(b), the “sentencing
guidelines are not required to be consulted in such instances” (citation
omitted)). VOP courts may not impose a sentence of total confinement unless
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(1) the defendant has been convicted of another crime; (2) the defendant’s
conduct demonstrates a likelihood she will commit another crime if not
imprisoned; or (3) “such a sentence is essential to vindicate the authority of
the court.” 42 Pa.C.S.A. § 9771(c).
Appellant argues the trial court improperly sentenced her to two to four
years in prison because she had served 13 months in custody following her
out-of-state arrests and extradition to Philadelphia. Appellant’s Brief at 11.
Appellant claims the sentence is manifestly unreasonable where she has “been
trying to work on her behavior, attended classes and enrolled in the GED
program while incarcerated.” Id. Further, Appellant claims the court failed
to consider that she was raised in a single-parent home and had no contact
with her father. Id. Appellant emphasizes evidence of her problems in school
and difficulties transitioning from male to female. Id. Appellant points out
she was sexually assaulted when she was 19, and has multiple diagnoses of
ADHD, bipolar disorder, and PTSD. Id.
Pertinently, the trial court ordered a presentence investigation report
(PSI) and mental health assessment prior to sentencing. N.T., 7/8/21, at 5-
17 (trial court summarizing the assessments and reports it considered). When
a PSI exists, we “presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (citation omitted); see
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also Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020)
(sentencing courts “are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure”; where a
PSI exists, “the sentencing court’s discretion should not be disturbed” (citation
omitted)).
At sentencing, the trial court expressly considered the aforementioned
reports and assessments. See N.T., 7/8/21, at 5-17. The court also
considered letters from Appellant’s mother and grandmother, Appellant’s
mental health evaluation and psychiatric reports, and the Commonwealth’s
Gagnon II summary.5 Id. at 18-19.
Appellant’s counsel additionally informed the court that Appellant had
completed her community service requirement in Baltimore, although counsel
had no documentation. Id. at 20. Counsel provided the court with telephone
numbers for persons who could confirm Appellant’s compliance. Id. The court
accepted counsel’s representation, but also indicated “[t]here were multiple
indications that it wasn’t [completed].” Id.
Appellant’s counsel summarized Appellant’s difficulties growing up as a
cisgender male, lack of family support, and resulting mental health issues.
Id. at 22-23. Counsel also explained, “The reason why my client was in
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5 Appellant’s counsel corrected the summary to indicate Appellant no longer
owed money for court fees and costs which had been paid by Appellant’s
family. Id. at 19.
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Virginia is she had a boyfriend in Virginia at the time.” Id. at 23. Counsel
indicated Appellant was in her eighth month of being housed in isolation for
protection in the men’s prison. Id.
Appellant addressed the trial court and expressed remorse. Id. at 36.
Appellant stated that while incarcerated, she attended classes to get her GED.
Id. at 36-37. Appellant nevertheless acknowledged her two subsequent
convictions while on probation. Id. at 38.
As noted, the trial court sentenced Appellant to an aggregate two to four
of incarceration. Quoting from the transcript of the hearing on Appellant’s
post-sentence motion, the trial court explained:
[W]ithin the order of sentence that I fashioned, I made a
notation that the state facility was to accommodate your
transgender concerns. They have that ability to do so already in
play.
In terms of the fact that you were in a county facility during
a substantial period of time -- a large part of your time was spent
within your cell, that challenge was equal to every single person
that was in county custody predominately due to COVID concerns.
… That difficulty, hopefully, will be resolved in the future as we
go forward. And it’s my understanding that a lot of that had to do
with safety concerns as well.
… [T]he reasons that you are back before me have to do
with direct violations and technical violations of a myriad nature.
What was most concerning to this [c]ourt is that you harmed other
people. And while I certainly understand the challenges that you
have being a transgender person, that’s no excuse for the harm
that you imposed on other people. And I was also struck by the
unique similar nature of your conduct to the same type of conduct
that brought you here before me.
* * *
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There has been a myriad of efforts to rehabilitate you absent
the imposition of the state sentence. They all failed.
* * *
After you were sentenced on July 24, 2017, … per your
request, the supervision was transferred to the State of Maryland
to accommodate you. While under [that c]ourt’s supervision, you
incurred multiple arrests and direct violations in two different
states, that being Maryland and Virginia, and rebuffing any
attempts of supervision and direction. …
* * *
I considered some of the mitigating circumstances relative
to my sentence that were put forth to me. But at the end of this
process, I have a duty to the citizens of the Commonwealth of
Pennsylvania of which you are listed as one of my primary
concerns. I have a duty to do whatever I can do to direct you to
rehabilitation.
The keys have always been in your hands, and you kept
throwing them away and rebuffing any attempts of supervision
and direction. …
This order of sentence was thoughtfully entered because it
is my hope that with the order of sentence, including state
confinement, your state supervision could direct you better.
They have different programs available to you that are not
available here. All of the efforts here did not work. That is why I
entered the order of sentence as I did. And that’s why I’m not
changing it.
Trial Court Opinion, 11/18/21, at 18-19 (citation omitted).
The record belies Appellant’s claim that the trial court failed to
adequately consider mitigating factors when imposing Appellant’s sentence.
The court further determined Appellant was convicted of another crime;
Appellant’s conduct demonstrated a likelihood she will commit another crime
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if not imprisoned; and a sentence of total confinement was essential to
vindicate the court’s authority. The court stated:
Appellant’s conduct following the grant of probationary and
custodial release [] evidenced a defiant, unabated intention to
commit crimes and to defy this [c]ourt’s authority to the detriment
of our society. Vindication of the trial court’s authority was
essential. While under supervision, Appellant’s behavior, as
reported and conceded and referenced within the presentence
investigation and mental health assessment, and all witnesses
presented, unequivocally proved that Appellant had remained a
high-risk recidivist.
Trial Court Opinion, 11/18/21, at 21; see also 42 Pa.C.S.A. § 9771(c).
We discern no abuse of discretion. See Macias, 968 A.2d 773, 778 (Pa.
Super. 2009) (this Court may not re-weigh sentencing factors and impose
our judgment for that of the trial court). Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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