Com. v. Terrell, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD TERRELL
Appellant No. 1671 EDA 2013
Appeal from the Judgment of Sentence of May 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-01103791-2005,
CP-51-CR-02065551-2006, and CP-51-CR-0016127-2009
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 26, 2014
Richard Terrell (“Terrell”) appeals from the judgment of sentence
imposed on May 10, 2013, following revocation of probation for both
technical and direct violations. We vacate and remand.
The trial court set forth the background of this case as follows:
Following plea negotiations, on September 13, 2012, [Terrell]
entered a guilty plea pursuant to CP-51-CR-00016127-2009 to
the charges of Simple Assault and Resisting Arrest. [See 18
Pa.C.S.A. §§ 2701, 5104.] [The trial c]ourt sentenced [Terrell]
to time served to twenty-three months’ incarceration in the
county jail followed by one year of reporting probation. With
respect to CP-51-CR-[02065551-2006] and CP-51-CR-
[0]1103791-2005, [Terrell] pleaded guilty on October 16, 2007,
before the [court] to the charge of Carrying a Firearm without a
License under both bills of information and received concurrent
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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sentences of six to twelve months’ incarceration followed by four
years’ probation. [See 18 Pa.C.S.A. § 6106.]
[Terrell] thereafter appeared before [the trial c]ourt on May 10,
2013, for a violation of probation hearing for each of the above
cases. At the conclusion of the hearing, [the c]ourt revoked
[Terrell’s] probation in each of the cases. On CP-51-CR-
0016127-2009, [Terrell] received a sentence of one to two
years’ incarceration on the Resisting Arrest charge. On the
Simple Assault charge, [the c]ourt revoked his parole and
ordered [Terrell] to serve the remainder of his sentence. On CP-
51-CR-[02065551]-2006, [the c]ourt imposed a sentence of two
to four years’ incarceration and ordered that the sentence be
served consecutive to the sentence imposed on the Resisting
Arrest charge. Finally, with respect to CP-51-CR-[0]1103791-
2005, a sentence of two to four years’ incarceration was imposed
on [Terrell], said sentence to run consecutively to the two
sentences imposed in the other cases.
Trial Court Opinion (“T.C.O.”), 10/28/2013, at 1-2 (footnotes omitted).
On May 16, 2013, Terrell filed a motion for reconsideration of his
sentence, which the trial court denied on May 31, 2013. Terrell timely
appealed on June 10, 2013.1 See Pa.R.Crim.P. 708(E). On August 8, 2013,
Terrell filed a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) and a request for an extension of time on the grounds
that counsel had not received a copy of the revocation hearing transcript.
The court granted the extension, and, on September 25, 2013, Terrell filed a
supplemental Rule 1925(b) statement challenging the discretionary aspects
of his revocation sentence. On October 28, 2013, the trial court entered its
opinion. See Pa.R.A.P. 1925(a).
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1
June 9, 2013, fell on a Sunday.
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Terrell raises the following question for our review:
Was not the sentencing court’s imposition of consecutive state
incarceration sentences on each case for a first probation
revocation unreasonable, manifestly excessive and an abuse of
discretion where the court failed to conduct an individualized
sentencing, did not properly consider the sentencing factors,
failed to order and evaluate a pre-sentence investigation,
ignored whether the sentence was the least stringent to protect
the community, and [Terrell’s sentence] was the result of
partiality, bias and ill will as demonstrated by the court inter alia
referring to [Terrell] as “this animal”, a “crime wave” and
presuming without evidence that he is likely to kill his wife?
Terrell’s Brief at 3.
Terrell’s challenge to the discretionary aspects of his revocation
sentence is within this Court’s scope of review. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013). “Revocation of a
probation sentence is a matter committed to the sound discretion of the trial
court and that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.” Commonwealth v. Ahmad,
961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted). In addition, our
standard of review is well-settled:
[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence. 42 Pa.C.S. § 9781(b).
Rather, an [a]ppeal is permitted only after this Court determines
that there is a substantial question that the sentence was not
appropriate under the sentencing code. In determining whether
a substantial question exists, this Court does not examine the
merits of the sentencing claim.
In addition, issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary
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aspect of a sentence is waived. Furthermore, a defendant is
required to preserve the issue in a court-ordered Pa.R.A.P.
1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.
Cartrette, 83 A.3d at 1042 (case citations and quotation marks omitted).
Terrell raises three challenges to the discretionary aspects of his
sentence: that his sentence is excessive and unreasonable; that the court
failed to apply relevant sentencing criteria and fashion an individualized
sentence; and that the court exhibited bias, ill will and partiality in its
comments during sentencing. Terrell’s Brief at 14-16. Terrell asserted each
of these challenges in his Rule 1925(b) statement. See Rule 1925(b)
Statement, 9/25/2013, at 2 ¶ 3. Further, Terrell’s brief contains a
statement of reasons for allowance of appeal from the discretionary aspects
of his sentence pursuant to Rule 2119(f), which statement also includes
these challenges. See id. at 13-17. Accordingly, it remains for us to
determine whether these three challenges were “raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings.” Cartrette, 83 A.3d at 1042.
Terrell’s first and second challenges clearly are preserved in his post-
sentence motion, in which he argues that his “aggregate sentence is
excessive given the nature of the violations and [Terrell’s] prior record.”
Post-Sentence Motion, 5/16/2013, at 1 ¶ 2. Terrell did not raise the issue of
bias, ill will and partiality by the trial court in his post-sentence motion. Id.
However, our examination of the record reveals that Terrell presented this
claim to the trial court during the sentencing proceeding.
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The crux of Terrell’s third claim is that his sentence “was the result of
partiality, bias and ill will as demonstrated by the court inter alia referring to
[Terrell] as ‘this animal’, a ‘crime wave’ and presuming without evidence
that he is likely to kill his wife[.]” Terrell’s Brief at 3; see also Notes of
Testimony (“N.T.”), 5/10/2013, at 16. At the sentencing hearing, counsel
for Terrell responded to the trial court’s remarks as follows:
[Counsel for Terrell]: Your Honor, I’m not disputing that he’s in
violation for not reporting. I understand that. I conceded
that he is in technical violation for not reporting. And he’s
made a lot of dumb decisions with regard to that.
But this notion that he’s an animal who is going to kill
somebody, I mean, I gave you what his total sum
convictions are—
The Court: I believe that, [Counselor]. I believe that. I
believe that if there is repetitious domestic violence, it
eventually becomes very, very serious.
Id. at 20-21. Having been cut off by the trial court, counsel moved on to
argue favorable mitigating factors. Id. at 21-22. The trial court then
proceeded to revoke Terrell’s parole and sentence him to the above-
mentioned period of incarceration. Id. at 23.
In Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013),
we granted relief to an appellant where it was “the trial court that prevented
Appellant from asserting which right he sought to invoke.” Smith, 69 A.3d
at 265. Here, after labeling Terrell an “animal” and a “crime wave,” the trial
court interrupted Terrell’s counsel’s attempt to express concern with that
language. It would have been the better practice for Terrell’s counsel to
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reiterate this challenge in Terrell’s post-sentence motion. However, we will
not penalize Terrell by imposing a hypertechnical waiver in circumstances
where Terrell’s counsel expressly made a record of his concern with the
court’s characterization of Terrell as “an animal who is going to kill
somebody.” N.T., 5/10/2013, at 20. This was sufficient to preserve an
objection to the trial court’s language for our review, an objection cut short
by the trial court’s interruption. See Smith, 69 A.3d at 265;
Commonwealth v. Turner, 450 A.2d 9, 11 (Pa. Super. 1982) (rejecting
Commonwealth’s waiver argument where “appellant’s attorney challenged
the admissibility of the testimony of [a witness] even though he did not utter
the magic words, ‘I object’”). Accordingly, Terrell has preserved all three
challenges to the discretionary aspects of his sentence. See Cartrette, 83
A.3d at 1042.
We must now determine whether Terrell has raised a substantial
question that the sentence was not appropriate under the sentencing code, a
determination that would permit us to examine the merits of his sentencing
claims. See id.
From an appellant’s Rule 2119(f) statement, the Superior Court
decides whether to review the discretionary aspects of a
sentence based upon a case-by-case determination as to
whether a substantial question concerning the sentence exists.
To demonstrate that a substantial question exists, a party must
articulate reasons why a particular sentence raises doubts that
the trial court did not properly consider [the] general guidelines
provided by the legislature.
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Commonwealth v. Mouzon, 812 A.2d 617, 621-22 (Pa. 2002) (citations
omitted).
An averment that the court “failed to consider relevant sentencing
criteria, including the protection of the public, the gravity of the underlying
offense and the rehabilitative needs” of an appellant raises a substantial
question. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).
“A claim that a sentence is manifestly excessive such that it constitutes too
severe a punishment raises a substantial question.” Commonwealth v.
Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted). Likewise, “an
allegation of bias in sentencing implicates the fundamental norms underlying
sentencing and hence, we find that it raises a substantial question.”
Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011). Thus,
Terrell has raised substantial questions about his sentence, Terrell’s Brief at
14-16, and we will proceed to review their merits.
First, Terrell contends that “the sentencing court did not consider the
required sentencing factors.” Terrell’s Brief at 19. Specifically, he argues
that the trial court abused its discretion because it focused on Terrell’s
failures to report instead of “the positives” of his probation history, failed to
order a pre-sentence investigation report (“PSI”), and did not permit
Terrell’s wife to testify. Id. at 22-26. We disagree.
Our legislature has imposed the following general standards to observe
when fashioning a sentence:
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[T]he court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing and taking effect
under section 2155 (relating to publication of guidelines for
sentencing, resentencing and parole and recommitment ranges
following revocation). In every case in which the court imposes
a sentence for a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of probation,
county intermediate punishment or State intermediate
punishment or resentences following remand, the court shall
make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the
sentence imposed. . . . Failure to comply shall be grounds for
vacating the sentence or resentence and resentencing the
defendant.
42 Pa.C.S.A. § 9721(b). “When imposing sentence, a court is required to
consider the particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to the
defendant’s prior criminal record, age, personal characteristics and potential
for rehabilitation.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.
Super. 2014).
Here, the trial court heard testimony from Parole Officer Ngoc Lam,
who presented a detailed case history, including Terrell’s technical violations,
reporting history, arrests, drug testing results, and family history. See N.T.,
5/10/2013, at 3-13. Contrary to Terrell’s claim that the court did not
consider “the positives” of his case history, the court heard Officer Lam
testify:
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I’m going to provide you the positive things he did. He did
complete the gun court stipulations, which was to complete the
firearms education class. He did complete his community
service. He did complete the house arrest portion requirements.
He submitted to 11 urine tests between the period of 7/29/2008
to 11/12/2009. Nine were negative and two were positive for
alcohol.
Id. at 6. Terrell’s counsel also was given an opportunity to respond to
Officer Lam’s report and to provide additional context; counsel noted that
“[t]here is nothing in any of the sentencing documents to show that he was
ordered to stay away from alcohol.” Id. at 19; see id. at 17-22.
Officer Lam’s testimony demonstrates that Terrell has three direct
violations of parole for arrests of disorderly conduct, aggravated assault,
simple assault, recklessly endangering another person, harassment, and
false identification. Id. at 5-6. He has been arrested twenty-three times.
Id. at 15. The complainant in several of the charges was his wife, who
repeatedly chose not to press charges. Id. at 7-8. Terrell rescheduled his
reporting appointments about seventy-five percent of the time, claimed that
he had foot surgery and that his daughter had been hospitalized but failed to
provide any proof of either incident, and then stopped reporting altogether.
Id. at 9-10. At this point, Terrell’s wife began calling his probation officer to
reschedule on his behalf. Id. at 10-11. He failed to obtain a phone line to
enroll in house arrest and then refused to report. Id. at 11-12.
Thus, the record supports the trial court’s determination that
“probation had not been effective at deterring [Terrell] from committing
more crimes. [His] conduct demonstrated that he presented a continuing
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threat to the peace and harmony of the community and warranted the
imposition of a sentence that would prevent any future violations as well as
send a message to [Terrell] that he cannot snub his nose at authority.”
T.C.O. at 4; see Antidormi, 84 A.3d at 761.
Terrell next contends that the court erred in failing to order a PSI,
claiming that the court “had made its decision at the outset of the hearing.”
Terrell’s Brief at 25-26.
Rule of Criminal Procedure 702 provides: “The sentencing judge may,
in the judge’s discretion, order a pre-sentence investigation report in any
case.” Pa.R.Crim.P. 702(A)(1).
The first responsibility of the sentencing judge [is] to be sure
that he ha[s] before him sufficient information to enable him to
make a determination of the circumstances of the offense and
the character of the defendant. Thus, a sentencing judge must
either order a PSI report or conduct sufficient presentence
inquiry such that, at a minimum, the court is apprised of the
particular circumstances of the offense, not limited to those of
record, as well as the defendant’s personal history and
background.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725-26 (Pa. Super. 2013)
(citing Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000)
(en banc)).
As previously discussed, the trial court heard a detailed history of
Terrell’s record from Officer Lam and counsel for Terrell. See N.T. at 3-22.
Critically, Terrell fails to identify any additional information that would have
been provided in a PSI, and his claim that the court already had “made its
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decision” is belied by the court’s persistent questioning of both parties.
Thus, the court conducted a sufficient presentence inquiry to be apprised of
the particular circumstances of Terrell’s case, and did not commit reversible
error by not ordering a PSI. See Carillo-Diaz, 64 A.3d at 725-26.
Furthermore, to the extent that Terrell claims that the court did not
permit his wife to testify, Terrell did not request that she do so, nor did the
Commonwealth call her as a witness. See N.T. at 2, 16, 17. The court
observed that she was “chomping at the bit,” but counsel declined to call
her, and did not object when the court stated it was not going to call her to
testify because it was not going to consider an additional civil issue
regarding a falsified sublease which implicated both Terrell and his wife. Id.
at 13, 17-18. Thus, the record shows that trial court was presented with,
and considered, the required sentencing factors under 42 Pa.C.S.A.
§ 9721(b), and Terrell’s assertions to the contrary lack merit. Terrell’s first
argument does not merit relief.
Next, Terrell argues that “the sentence imposed was a product of bias
and ill will, violating the fundamental sentencing norms in this
Commonwealth.” Terrell’s Brief at 28. Specifically, he claims that the
court’s remarks were hostile and inflammatory, and require reversal of his
sentence. Id. at 28-32. We agree.
The sentencing decision is of paramount importance in our
criminal justice system, and must be adjudicated by a fair and
unbiased judge. This means, a jurist who assess[es] the case in
an impartial manner, free of personal bias or interest in the
outcome. Because of the tremendous discretion a judge has
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when sentencing, a defendant is entitled to sentencing by a
judge whose impartiality cannot reasonably be questioned. A
tribunal is either fair or unfair. There is no need to find actual
prejudice, but rather, the appearance of prejudice is sufficient to
warrant the grant of new proceedings.
Commonwealth v. Williams, 69 A.3d 735, 744 (Pa. Super. 2013)
(citations and internal quotation marks omitted). In Williams, this Court
concluded that a sentencing court’s motives and remarks exhibited bias
because the trial court focused on the defendant’s burglarizing Catholic
institutions, assailed prior adjudications as “mistakes” for being too lenient,
attempted to “sanitize” its inquiries by goading the defendant into
contradicting herself, and imposed a revocation sentence that was “severe
on its face” because the defendant would not be eligible for parole for thirty-
one years. Id. at 742. As we observed:
If the invocation of such rhetoric is relied upon to serve as the
foundation of subsequent conclusions, as it clearly was in this
instance, the bias necessarily affects the conclusion. The trial
court’s description of Appellant as being a “pathological liar” and
a “classic sociopath” lacks any support in the record, and that
error is not trivial in this instance. The bias it signals cannot be
ignored when the trial court premises the imposition of such a
severe sentence on the balance between Appellant’s “extremely
low potential for rehabilitation against the duty to protect the
public.”
Id. at 748. “Viewed collectively, the trial court’s [statements] strike a tone
of advocacy rather than dispassionate reflection. This accumulation of
inappropriate remarks leads us to conclude that Appellant’s sentence cannot
be divorced from the appearance of bias.” Id. at 744.
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Here, Terrell objects to the following statements by the court after
hearing Officer Lam’s report of Terrell’s case history:
[Counsel for Terrell]: Your Honor, I have argument, of course.
The Court: I won’t preclude you. But this is an outrage.
And you know what? These are cases—is this his wife?
[Counsel for Terrell]: Yes.
The Court: She’s going to wind up dead.
Mrs. Terrell: Can I say something?
The Court: No.
She’s going to wind up dead. That’s what this case is.
And then we’re all going to be sitting here saying, We
could have prevented this if we had kept this man in jail.
He just can’t do it. So I’ll hear whatever you have to say.
I’m not going to be deaf to it, by my God.
[The Commonwealth]: Judge, just for the record, you heard that
there were five arrests. There are 23 arrests.
The Court: Twenty-three?
[The Commonwealth]: I just wanted to clarify.
[Counsel for Terrell]: Your Honor, I don’t believe that is the
correct number.
[The Commonwealth]: Eighteen and five. I have it on the
report. It would be 23. It could be 22.
The Court: I mean, he’s a crime wave. He’s not a
criminal. He’s a crime wave.
[Counsel for Terrell]: Your Honor, his convictions are the three
cases that we have here today, the false ID to law
enforcement in Delaware County, and the adjudication and
delinquency brought on by his use of an automobile.
That’s it.
The Court: Yeah, but he’s here for firearms, firearms, and
aggravated assault.
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[Counsel for Terrell]: No. Resisting arrest and simple assault,
your Honor.
The Court: Okay. All right. Two were nolle prossed. I’m
sorry.
[Counsel for Terrell]: So I still want to hear what Ms. Mitchell
has to say with regard to [the alleged falsified sublease],
but I’ll—
[The Commonwealth]: Well, I’m not going to be calling Ms.
Mitchell up. I don’t think we need to. I think we’ve gotten
the summary.
The Court: Yeah, I only need a summary. I mean, Ms.
Mitchell is here. [Mrs. Terrell] is absolutely chomping at
the bit to testify because she’ll probably get up here and
try to exonerate this animal, which I’ll hear none of.
I mean, this is horrifying. He’s a crime wave. I’ll hear
anything you want to say.
N.T. at 14-16. Upon review of this testimony, and the record as a whole, we
are simply unable to agree with the trial court when it protests that its
remarks did not exhibit bias but “pure hyperbole and simply manifested [the
c]ourt’s outrage at his repeated violations and disregard for the law.” T.C.O.
at 4.
The court’s statements that Terrell’s wife would “end up dead” in
response to learning that she was the complainant in at least two of Terrell’s
cases, while hyperbolic, concern Terrell’s potential for rehabilitation, as well
as the impact of his actions against the victim and the community. Likewise,
the comment regarding a “crime wave” pertains to Terrell’s criminal history.
Moreover, the court explicitly stated that it would not preclude Terrell
from argument and would “hear anything [counsel] wanted to say.” N.T. at
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16. Likewise, our review of the record shows (and Terrell does not contest)
that, even with total confinement upon revocation, he received sentences on
all three criminal informations well below the potential maximum sentences.
At CP-51-CR-1103791-2005, the court imposed a two- to four-year sentence
for charges carrying a maximum penalty of seven years. See Sentencing
Order, 5/10/2013; Guilty Plea Colloquy, 10/16/2006, at 1. At CP-51-CR-
02065551-2006, Terrell’s revocation sentence was again two to four years
for charges carrying a maximum penalty of seven years. See Sentencing
Order, 5/10/2013; Guilty Plea Colloquy, 10/7/2006, at 1. Finally, at CP-51-
CR-0016127-2009, Terrell’s revocation sentence was one to two years with
backtime on a potential two- to four-year sentence. See Sentencing Order,
5/10/2013; Guilty Plea Colloquy, 9/13/2012, at 1. Therefore, Terrell’s
sentence, standing alone, does not reflect any alleged bias or fixed attitude
by the trial court.
It cannot be gainsaid that this appeal presents us with a different
circumstance than Williams, supra, where the court went beyond
permissible sentencing factors and focused on the religious affiliation of the
victim and unsubstantiated claims about the defendant’s mental health.
Compare Williams, 69 A.3d at 749; with Commonwealth v. Walls, 926
A.2d 957, 960 (Pa. 2007) (concluding that sentencing court permissibly
focused on “the principle of revenge and protection of the public”).
Moreover, the bulk of the court’s comments are supported by the record;
generally, we might say they appear to reflect considerations which are
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permissible factors to consider when fashioning a sentence. See 42
Pa.C.S.A. § 9721(b); Antidormi, 84 A.3d at 761.
But, try as we might (and surely we have), we are unable to square
the court’s “animal” statement with our law. Our Supreme Court “has
declined to proscribe animal imagery in penalty-phase closing arguments.”
Commonwealth v. Paddy, 800 A.2d 294, 325 (Pa. 2002). However, it is
not for the court to practice “vigorous prosecutorial advocacy,”
Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996), but to render a
sentence with “dispassionate reflection.” Williams, 69 A.3d at 744.
In regarding appellant, and in addressing him, as an animal, the
sentencing judge violated the most fundamental premise of our
law—that all persons are to be treated equally. That does not
mean that some persons will not be punished for having violated
the law. . . . But no one is punished as an animal is punished.
Commonwealth v. Spencer, 496 A.2d 1156, 1165 (Pa. Super. 1985).
We might say that the court’s statements were intemperate but not
sufficiently egregious to merit relief. But we would then be faithless to our
traditions. Terrell is not an animal. He is a man. Perhaps he is a very, very
bad man. Perhaps he is a man whose parole should be revoked and who
should draw a revocation sentence every bit as severe as this trial judge
imposed upon him. But Pennsylvania law does not confuse sentencing of
human beings with confinement or chastisement of animals. See Spencer,
496 A.2d 1165.
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This statement cannot stand: “She’s absolutely chomping at the bit to
testify because she’ll probably get up here and try to exonerate this animal,
which I’ll hear none of.” N.T. at 16. For our part, we will hear none of this.
Pennsylvania courts impose sentences upon humans, not upon animals.
Once we start confusing the two, we have begun our descent down a
worrisome path. The court’s statement does more than give us pause. It
undermines—quite fatally—our faith in that court’s impartiality and our
willingness (adverted to above) to afford the court the benefit of the doubt
in all other particulars.
We would blush were we to permit this to stand uncorrected. The
court was no doubt frustrated and appalled. Perhaps it should have taken a
breather.2
The matter will be returned to the trial court for a sober proceeding
governed by law, not passion.
Judgment of sentence vacated. Remanded for proceedings consistent
with this Memorandum.
Justice Fitzgerald concurs in the result.
Judge Bowes files a concurring and dissenting memorandum.
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2
Perhaps it should do so on remand. But that is not for us to decide.
See Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006) (“[T]he
sua sponte removal of the trial court judge on remand for sentencing
exceed[s] the authority of the Superior Court.”). What we do decide is that
the court’s judgment is vacated and that, upon remand, the court will
sentence a man, not an animal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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