Com. v. Lee, B. ( 2021 )

J-A17044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BHAVANI LEE :
:
Appellant : No. 47 EDA 2020
Appeal from the Judgment of Sentence Entered November 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000679-2019
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: August 5, 2021
Bhavani Lee (Lee)1 appeals from the November 4, 2019 judgment of
sentence imposed by the Court of Common Pleas of Philadelphia County (trial
court) following her convictions for possession of an instrument of crime (PIC),
simple assault and recklessly endangering another person (REAP).2 Lee
challenges the discretionary aspects of her sentence. We dismiss the appeal
as moot.
The trial court summarized the facts of this case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The record reveals that Lee’s legal name is Bhavani Bee but she was charged
in this case as Bhavani Lee. For consistency, we refer to her as Lee.
2 18 Pa.C.S. §§ 907(a), 2701(a) & 2705. Lee was found not guilty of one
count of aggravated assault. 18 Pa.C.S. § 2702.
J-A17044-21
Mr. Ford and [Lee] were residing together at 400 S. 11th St. in the
City and County of Philadelphia. Mr. Ford testified that he came
home at approximately 5:30 p.m. and that he found [Lee] in bed.
He looked around for empty liquor bottles as he believed she had
been drinking. He decided to take [Lee’s] cell phone and refuse
to return it to her unless she gave him the bottle of alcohol. He
testified that at that point, [Lee] struck him in the face with her
hand and then grabbed a kitchen knife that was about six (6)
inches long. He stated that [Lee] “began to come in my direction
with the knife” from about an arm’s length away, wielding it
erratically. Mr. Ford grabbed her arm and in the process was “cut
several times” in the arm, torso and neck. They fell to the ground
and [Lee] bit his arm, breaking the skin. According to Mr. Ford,
[Lee] “had her legs wrapped around me. And I was, you know,
again telling her to drop the knife. And at this time, I had called
in the name of Jehovah. I said, ‘Please, Jehovah, help me.’ I said
it three times. On the third time, she dropped the knife…” (N.T.
9/4/19 at 9-16).
Mr. Ford testified that he put all the kitchen knives in his bag and
called 911. Photographs of his injuries, as well as the knife, were
introduced into evidence. He showed that he has 2 scars on his
biceps, 2 marks on his hand and arm from being bitten. He also
showed a 3 inch scar on his neck from being cut by the knife. That
wound was “glued” instead of stitched at Jefferson Hospital.
[Lee] presented stipulated testimony of two (2) witnesses who
would say that she has a good reputation in the community as
being peaceful, law-abiding and truthful.
Trial Court Opinion, 5/14/20, at 2-3 (cleaned up). Following a non-jury trial,
the trial court found Lee guilty of the above-mentioned charges.
The trial court sentenced Lee to 11.5 to 23 months of house arrest on
the count of PIC, 2 years of probation on the count of simple assault to be
served consecutively, and 2 years of probation on the count of REAP to be
served concurrently to the sentence for simple assault. The trial court
deferred the sentence for 30 days to allow Lee time to obtain housing in
-2-
J-A17044-21
Philadelphia County to serve her house arrest.3 Lee timely filed a post-
sentence motion challenging the discretionary aspects of her sentence, which
the trial court denied on December 3, 2019. Lee timely appealed on December
4, 2019, and she and the trial court have complied with Pa.R.A.P. 1925.
After Lee filed her notice of appeal in this case, her parole officer learned
that she had been arrested in New Jersey shortly after her sentencing hearing.
She did not inform her parole officer of the new arrest. She pled guilty in that
case on January 24, 2020. As a result, the trial court held a parole revocation
hearing on February 7, 2020. It revoked Lee’s original sentence and
resentenced her to 11.5 to 23 months’ incarceration on the count of PIC, 2
years of probation on the count of simple assault to be served consecutively,
and 2 years of probation on the count of REAP to be served concurrently to
the sentence for simple assault.4
The only issue Lee presents on appeal is a challenge to the discretionary
aspects of her sentence imposed on November 4, 2019. As the trial court
____________________________________________
3 Lee requested a continuance for her turn-in date on several occasions. On
her original date, she was hospitalized and the trial court ordered her to turn
herself in the following day. The next day, she appeared in court but
requested additional time because she had not secured an apartment. The
trial court granted the request. On her next turn-in date, she requested
another 24-hour continuance because her apartment had not been approved.
The trial court denied this final continuance and Lee was incarcerated for
several days until her apartment was approved for house arrest and she was
granted parole.
4 Lee appealed from this judgment of sentence. That appeal is docketed at
897 EDA 2020.
-3-
J-A17044-21
vacated this sentence and resentenced her to a term of incarceration on
February 7, 2020, we conclude this issue is moot.
“[A]n issue before a court is moot if in ruling upon the issue the court
cannot enter an order that has any legal force or effect.” Commonwealth v.
Nava, 966 A.2d 630, 633 (Pa. Super. 2009) (citation omitted); see
Commonwealth v. King, 786 A.2d 993, 996 (Pa. Super. 2001) (dismissing
as moot a challenge to the legality of a sentence when the term of the
sentence had expired). “Because the existence of an actual controversy is
essential to appellate jurisdiction, if, pending an appeal, an event occurs which
renders it impossible for the appellate court to grant any relief, the appeal will
be dismissed.” Commonwealth v. Smith, 486 A.2d 445, 447 (Pa. Super.
1984). Finally, “[w]hen a sentence is vacated it is rendered a legal nullity.”
Commonwealth v. Caple, 121 A.3d 511, 522 (Pa. Super. 2015). Lee’s
appeal presents a challenge only to the discretionary aspects of the trial
court’s November 4, 2019 sentencing order. As the order she appeals from
was vacated at her February 7, 2020 revocation hearing and is a legal nullity,
her claim is moot.
Appeal dismissed.
-4-
J-A17044-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/21
-5-