Com. v. Bill, F., Jr.

J-A25035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FREDERICK LEWIS BILL, JR. :
:
Appellant : No. 963 MDA 2020
Appeal from the Order Entered July 10, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006436-2001
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FREDERICK LEWIS BILL, JR. :
:
Appellant : No. 964 MDA 2020
Appeal from the Order Entered July 10, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003818-2005
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 5, 2021
Appellant, Frederick Lewis Bill, Jr., appeals from the order entered in
the Berks County Court of Common Pleas, which denied his emergency
petition for compassionate release, pursuant to 42 Pa.C.S.A. § 9777. We
affirm.
The relevant facts and procedural history of this case are as follows. On
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May 28, 2002, Appellant pled guilty at docket CP-06-CR-6436-2001 (“docket
6436-2001”), to involuntary deviate sexual intercourse by forcible
compulsion, aggravated indecent assault, and corruption of minors. Those
charges involved Appellant’s offenses on his seven (7) year old adopted
daughter, K.R. The court sentenced Appellant to an aggregate five (5) to ten
(10) years in state prison, and he was deemed a sexually violent predator.
On October 3, 2005, Appellant pled guilty at docket CP-06-CR-3818-
2005 (“docket 3818-2005”), to rape of a person less than thirteen (13) years
old and involuntary deviate sexual intercourse with a person less than thirteen
(13) years old. Those charges involved Appellant’s offenses against a second
adopted daughter, who also has the initials K.R. The court sentenced
Appellant to an aggregate five (5) to ten (10) years’ incarceration, consecutive
to the sentence at docket 6436-2001.
Appellant sought parole in September of 2017, but the parole board
denied his request due to Appellant’s risk to the community, failure to
demonstrate motivation for success, and refusal to accept responsibility for
the offenses committed. (See Commonwealth’s Hearing Exhibit C-1, dated
7/7/20). In September of 2019, Appellant was diagnosed with amyotrophic
lateral sclerosis (“ALS”). As a result of his disease, Appellant is unable to
move half of his body. The medical unit of SCI-Mahoney currently treats
Appellant. On June 25, 2020, Appellant filed an emergency petition requesting
a compassionate release for out-patient hospice care in his wife’s home. The
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court held a hearing on Appellant’s petition on July 7, 2020. On July 10, 2020,
the court denied relief.
On July 22, 2020, Appellant filed timely notices of appeal at each
underlying docket. The court did not order a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed
none. Appellant subsequently filed a motion to consolidate the appeals, which
this Court granted on August 6, 2020.
Appellant raises one issue on appeal:
Did the [trial court] err and abuse [its] discretion in not
releasing … Appellant … from state prison to a hospice
pursuant to the Mercy Release Statute under 42 Pa.C.S.A.
[§] 9777 when [the trial court] found [Appellant] had
proven by clear and convincing evidence the factors under
the statute to be released since [Appellant] is terminally ill
with amyotrophic lateral sclerosis (ALS) disease, is not
ambulatory, will not live for more than six months and will
be under the care of a licensed hospice and the prison was
not able to provide the same level of treatment? See 42
Pa.C.S.A. [§] 9777(a)(2). Did [the trial court] abuse its
discretion in not releasing [Appellant] when the victim, K.R.,
now an adult, who was one of the victims of [Appellant’s]
crime, objected to his release, particularly when his release
would not place her in any danger, when [Appellant] has
already served 18.5 years of [a] maximum 20 year sentence
and would be released in 16-17 months because he would
have served his maximum sentence? Is it an abuse of
discretion to deny a mercy release when all conditions under
the statute for release have been met, because the victim
still objects? [The trial court] found [Appellant] had proven
all conditions for his release under the statute, but denied
[Appellant’s] release due to the objection of [one of the
victims], K.R.
(Appellant’s Brief at 5-6).
Appellant alleges the court erred in denying his petition for
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compassionate release because he met all of the conditions required under
the statute. Appellant contends the court improperly considered the pain and
trauma his criminal conduct caused the victims. Appellant concludes the court
abused its discretion by denying his petition, and this Court must reverse. We
disagree.
Our standard of review of the denial of a petition for compassionate
release is to decide if the court properly exercised its discretion or if it
committed an abuse of discretion. Commonwealth v. Folk, 40 A.3d 169(Pa.Super. 2012). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Belknap, 105 A.3d 7, 10 (Pa.Super. 2014), appeal denied, 632 Pa. 667, 117
A.3d 294 (2015). “[I]f in reaching a conclusion the trial court [overrides] or
misapplies the law, discretion is then abused and it is the duty of the appellate
court to correct the error.” Id.The Pennsylvania Sentencing Code defines the requirements for a
compassionate release into a hospice,1 in relevant part, as follows:
§ 9777. Transfer of inmates in need of medical treatment
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1 “Hospice care location” is defined as the following: “[a] home, independent
living environment or inpatient setting that provides a coordinated program of
palliative and supportive services through a licensed hospice care provider.”
42 Pa.C.S.A. § 9777(g).
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(a) Inmates committed to custody of
department.—If an inmate is committed to the custody of
the department, the department, the inmate or a person to
whom the court grants standing to act on behalf of the
inmate may petition the sentencing court to temporarily
defer service of the sentence of confinement and
temporarily remove the inmate committed to the custody of
the department, or other facility, for placement in a hospital,
long-term care nursing facility or hospice care location. The
following shall apply:
* * *
(2) The sentencing court may approve the
petitioner’s request to temporarily defer service of the
sentence of confinement in order for the inmate to
receive care from a licensed hospice care provider,
proposed by the petitioner and subject to electronic
monitoring by the department, if all of the following
are established by clear and convincing proof:
(i) The inmate is terminally ill,
not ambulatory and likely to die in the
near future.
(ii) The licensed hospice care
provider can provide the inmate with
more appropriate care.
(iii) Appropriate medical care and
palliative and supportive services will be
provided by the licensed hospice care
provider at the proposed hospice care
location.
(iv) The placement of the inmate
in the proposed, licensed hospice care
location does not pose an undue risk of
escape or danger to the community. In
making this determination, the
sentencing court shall consider the
inmate’s institutional conduct record,
whether the inmate was ever convicted of
a crime of violence, the length of time that
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the inmate has been imprisoned and any
other factors the sentencing court deems
relevant.
(v) The licensed hospice care
provider has agreed to notify the
department and the sentencing court of
any material changes in the health status
of the inmate, the nature of the hospice
care provided or other information
required by the department or the
sentencing court.
(vi) Each agency representing the
Commonwealth at a proceeding which
resulted in an order committing or
detaining the inmate, the State or local
correctional facility housing the inmate
and any registered crime victim have
been given notice and an opportunity to
be heard on the petition.
42 Pa.C.S.A. § 9777(a)(2)(i-vi).
For a petitioner to receive relief under this statute, each of the above
six requirements must be proven by clear and convincing evidence. See id.
Even if a petitioner establishes all of the requirements listed above, the plain
language of the statute provides the sentencing court with the discretion to
grant or deny a petitioner’s release to a hospice care provider. See 42
Pa.C.S.A. § 9777(a)(2) (stating: “The sentencing Court may approve the
petitioner’s request to temporarily defer service of the sentence of
confinement … if all of the following are established by clear and convincing
proof”) (emphasis added).
Instantly, the court analyzed Section 9777(a)(2) and it initially found:
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1) Appellant is terminally ill, not ambulatory and is likely to die within six
months; 2) SCI-Mahoney’s medical unit cannot provide Appellant with the
same level of care as Leigh Valley Health Network (“LVHN”), his proposed
hospice choice;2 and 3) LVHN could provide palliative and supportive services.
(See Trial Court Opinion, filed July 10, 2020, at 4-5).
Regarding the fourth requirement, one of the victims testified at the July
7, 2020 hearing, indicating that she spoke for herself and her sister, the other
victim, who was not present. (See N.T. Hearing, 7/7/20, at 58). She
described the effect and impact Appellant’s sexual assaults had on her and
her sister as follows:
While I am aware that [Appellant] does not have long left,
in my mind he is dangerous. [Appellant] did unspeakable
things to me from the ages of five [5] through eight [8]
years along with my brother and sister.
Since [Appellant’s] incarceration he has made no attempt to
better himself or shown any remorse for what he’s done.
He’s torn my family apart and ruined my childhood/life by
things such as giving me severe PTSD. The emotional
trauma alone is astronomical.
(Id. at 59).
Further, this victim explained how she reacted after receiving notice of
Appellant’s petition:
I immediately broke down, didn’t even make it to the end of
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2 Appellant proposed that he would reside at his wife’s home and LVHN would
provide services at her home, until his disease progressed to the point where
home care would be insufficient and he would need to reside at a dedicated
in-patient care facility.
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the phone call. I felt like I was having a severe panic attack.
And then the nightmares started back up. And the day
following it, I have been having terrible flashbacks. I
describe them as living nightmares where I get pulled in my
mind back to what happened and I relive everything from
feeling it to experiencing the same emotions. It is an
absolutely terrifying experience. And it just reminded me of
how traumatic my childhood actually was.
(Id. at 61).
Consequently, the court noted the following concerns regarding the
fourth requirement under Section 9777(a)(2):
This factor is particularly concerning to the [trial c]ourt.
[Appellant’s] sentence is ten [10] to twenty [20] years’
incarceration. [Appellant] has already served about
eighteen [18] years of his sentence. The Board of Probation
and Parole found that [Appellant] has failed to demonstrate
motivation for success, he has refused to accept
responsibility for the crimes he has committed, and he poses
a risk to the community. Additionally, at the hearing, the
[trial c]ourt learned that [Appellant] would reside with his
wife in the city limits of Pottsville, Pennsylvania, where
many youths and children reside. Moreover, [Appellant’s]
wife’s residence is only approximately six blocks from [the
victim’s] residence. The [trial c]ourt cannot ignore the risk
[Appellant] would pose to the community, and is especially
concerned about the impact that releasing [Appellant] so
close to [the victim] would have on her emotional and
mental wellbeing.
(Trial Court Opinion at 6) (internal citations omitted).
Regarding the fifth statutory requirement, both Appellant and his wife
testified that they would inform the court if Appellant had any material
changes in his health. As for the sixth statutory requirement, both victims
were given notice of Appellant’s petition, and the hearing date.
After considering all of the statutory requirements, the court concluded:
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The [trial c]ourt believes that [Appellant] has provided clear
and convincing evidence proving all six of the requirements
in this case.[3] However, the [trial c]ourt possesses the
discretion to grant or deny [Appellant’s] petition even after
the requirements have been proven. The [trial c]ourt is
tasked with weighing the [Appellant’s] request to die in
peace at his wife’s residence vs. the victim’s desire for
justice, peace of mind, and freedom from the emotional pain
and suffering she has experienced most of her life as a result
of [Appellant’s] crimes. Therefore, it is with great
reluctance that the [trial c]ourt denies [Appellant’s] petition.
Two primary factors [guide] the [trial c]ourt’s decision to
deny the petition. First, [Appellant] would reside with his
wife in Pottsville, Pennsylvania if the [trial c]ourt were to
grant the petition. The [trial c]ourt’s concerns stem from
the fact that [Appellant] would be residing in an urban
setting with limited supervision despite the Probation and
Parole Board finding that [Appellant] is unrepentant and is
a risk to the community. Importantly, his wife’s residence
is near the residence of [the victim]. However, even if
[Appellant] was to reside in a supervised inpatient setting,
the [trial c]ourt would still deny the petition based on the
impact granting the petition would have on the victims.
Secondly, the [trial c]ourt has concerns regarding the
impact that granting the petition would have on the victims.
At the hearing, [the victim] was clearly emotional, and
described the terrible impact that [Appellant’s] conduct had
on her life. She testified about the struggle she faced to
overcome the trauma [Appellant] inflicted on her, and how
this trauma threatens to resurface due to the fear of
[Appellant’s] possible early release. She has [had] to live
with the horrible memory of [Appellant’s] offenses for most
of her life. Granting [Appellant’s] petition will cause [the
victim] to suffer additional emotional distress and anguish.
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3 We disagree with the trial court’s statement that Appellant satisfied all six of
the statutory requirements, as we conclude Appellant failed to prove the
fourth requirement for the reasons the court stated above. Nevertheless, an
appellate court may affirm a trial court’s decision on any ground without
regard to the ground relied upon by the trial court itself. See
Commonwealth v. Singletary, 803 A.2d 769, 772-73 (Pa.Super. 2002).
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(Trial Court Opinion at 7-8) (internal citations omitted). Importantly, the
court noted that it “cannot ignore the risk [Appellant] would pose to the
community….” (Id. at 6). See also Folk, supra (holding trial court did not
abuse its discretion in denying petition for compassionate release where it
determined, inter alia, that appellant’s release would pose undue risk of
danger to community). Based upon the foregoing, we see no abuse of
discretion by the trial court in denying Appellant’s petition for compassionate
release. See Belknap, supra; Folk, supra. Accordingly, we affirm.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/05/2021
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4 We deny as moot Appellant’s pending application to expedite disposition of
this matter.
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