J-S81042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCIA KALISTA RICHARDS
Appellant No. 3612 EDA 2015
Appeal from the Judgment of Sentence October 12, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005424-2014
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 19, 2017
Marcia Kalista Richards (“Appellant”) appeals from the judgment of
sentence entered by the Court of Common Pleas of Lehigh County after she
pled guilty to one count each of Aggravated Assault and Burglary committed
within the context of a domestic dispute. Sentenced to an aggravated range
sentence of not less than four nor more than ten years’ incarceration,
Appellant challenges the discretionary aspects of her sentence by claiming it
was, inter alia, the product of an erroneous application of the Deadly
Weapon Enhancement-Possessed (“DWE”) Matrix. For the following reasons,
we vacate judgment of sentence and remand for resentencing.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The pertinent facts of this case, gleaned from Appellant’s guilty plea
and sentencing hearings, are as follows: 59 year-old Appellant pled guilty to
one count of Aggravated Assault—Attempt to Cause Serious Bodily Injury
and one count of Burglary for breaking into the residence of her estranged
husband, John Richards, on June 7, 2014, at just before midnight and
assaulting a houseguest, 33 year-old Jen Fink. According to Ms. Fink, she
and her nine year-old son were at Richards’ residence that evening only
because he had helped her resolve car troubles earlier in the day and then
suggested he could watch her son in the event she was called in for an
evening shift at St. Luke’s Hospital, where both she and Richards worked.1
She explained that she later decided to stay overnight because she had
drunk several beers at Richards’ place and thought it imprudent to drive her
rental car home under those circumstances. N.T. 5/18/15 at 8; 10/12/15 at
40-41.
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1
John Richards attested that he was romantically involved with Fink both
while Appellant and he still resided together and on the day in question.
Fink, however, denied ever having a “real” relationship with Richards and
insisted on the witness stand that they had not seen one another for about
six months prior to her staying at Richard’s home that evening.
In an effort to impeach Fink’s credibility as a witness, defense counsel
confronted Fink with a series of emails in which she referred to Richards by
an affectionate pet name, said she would follow him down to Florida for a
vacation—which she eventually did, and said “Yes, a ring from you would
mean the world to me.” N.T. 10/12/15 at 55, 58. Fink first suggested that
she was referring to her grandfather’s ring which Richards had in his
possession, but she later abandoned that position. Id.
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Earlier that same day, Appellant had visited Richards at his residence,
which she owned, and she claimed she had asked him for a divorce. She
said her husband of 27 years denied her request because he believed that
divorce was “not right.” N.T. at 68. Instead, Richards asked Appellant to go
to bed with him, an offer which Appellant declined. Id. According to
Appellant, Richards gave the impression that he would be alone all night.
N.T. at 67.
Appellant went out to a concert in Jim Thorpe with friends that
evening, and, afterwards, she testified, she decided to return to Richards’
home to get her dog and to continue their discussion about getting an
amicable divorce. N.T. at 68-69. When Appellant arrived, however, she saw
Fink through the living room window and reacted violently, breaking a
window on the door to gain access inside. N.T. at 44; Affidavit of Probable
Cause, 6/7/15. Fink had already called 911 because she did not know who
was entering the home. N.T. at 45.
According to Fink, Appellant attacked with punches and hair pulling,
but she was able to get Appellant into a corner and sat on top of her in an
effort to gain control. N.T. at 45-46. At that point, Appellant got Fink’s
hand in her mouth and bit down hard on a pinky finger. N.T. at 46. Fink
managed to break free and, with her son still sleeping in a nearby room, ran
out the kitchen door in the hope that Appellant would follow her outside, she
testified. N.T. at 46. Appellant, however, locked the door behind Fink. N.T.
at 47.
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Fink redialed 911 and the dispatcher connected her to the State Police
barracks in Bethlehem. N.T. at 47. At some point during the call, she
approached the kitchen door with the intention of entering the house again,
but Appellant opened it from the inside, as Appellant ushered Fink’s son
outside to his mother and closed the door a second time. N.T. at 47, 60.
Fink testified that her son was unharmed but “covered in blood” from coming
in contact with Appellant’s superficial cuts sustained from the broken
window. N.T. at 47-48. Fink and her son walked away from the house and
waited for police in a nearby patch of woods. N.T. at 47.
Appellant then turned her attention to her husband, who was sleeping
in his upstairs bedroom. According to the police report, Richards awoke to
Appellant’s screaming and stabbing his mattress with a kitchen knife. N.T.
at 21. She then dropped the knife and started striking Richards with closed
fists until Richards pushed her away and she relented. Investigators
subsequently saw multiple cuts in the mattress and their search of Richards’
bedroom uncovered a bent knife lying at the foot of the bed.
Richards refused to cooperate with the investigation against Appellant,
however, as he blamed himself for her violent outburst, citing his long
history of infidelity and mistreatment of Appellant as pushing her beyond her
breaking point. N.T. at 26. It was mainly Richards’ unwillingness to admit
that Appellant posed any risk of harm to him that the Commonwealth
dropped the aggravated assault charge related to her conduct in his
bedroom. N.T. at 26. Richards reiterated this position at Appellant’s
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sentencing hearing, where he testified that Appellant never threatened him
with a knife and that he never even saw a knife until a police officer brought
it outside and showed it to him. N.T. at 23-26.
For her part, Appellant admitted she stabbed Richards’ bed, but only
after he was out of harm’s way:
THE COURT: I have some [questions for Appellant after she
read a statement to the court]. So when you pled guilty to these
offenses, factually, do you admit that you grabbed , as you said,
grabbed the knife, went upstairs and stabbed the bed?
APPELLANT: I do. I did do that.
Q: All right. And at that time, Mr. Richards was in the bed?
A: No. He removed himself from the bed, or he was moving
out of the bed. I stabbed the bed because it demonstrated – to
me it represented infidelity.
I had no intention of ever hurting my husband. Based on the
lifestyle that we’ve had, I never had to hurt my husband. My
husband periodically and very commonly attempted suicide and I
stopped him. I loved my husband and I always will but I know I
cannot be with him.
N.T. at 37.
Ms. Fink sustained a lacerated and broken pinky resulting in a
permanent loss of sensation to the finger. N.T. 8/18/15 at 10. Fink also
testified that she and her son “didn’t sleep for months” after the episode and
that, for nearly one year her son would get “a little worried and scared” if he
heard noises at night. N.T. 10/12/15 at 49.
Character witnesses included an oncologist, fellow dieticians and
college professors, and neighbors testifying to Appellant’s lifetime of caring,
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kindness, honesty, and integrity in both her personal and professional life.
They spoke of how Appellant, a nationally published, master’s degree-level
dietician considered a premier renal specialist in her field, tended to dialysis
and cancer patients’ needs expertly and compassionately during her long
career. She was described as an engaging public speaker and educator who
uniquely inspired colleagues and college students, alike, with empathetic
stories about her patients and the medical complexities they face.
Witnesses spoke emotionally about her ability to make lasting personal
connections with patients and their families during very difficult times. They
also discussed the remorse, embarrassment, and sadness Appellant
displayed after committing the crimes in question.
The court noted that Appellant had no previous criminal record. It was
also in possession of a defense-obtained psychological evaluation and
violence risk assessment performed by a board-certified clinical psychologist,
Dr. Frank M. Dattilo, Ph.D., who opined to a reasonable degree of
psychological certainty that Appellant’s behavior in the instant offense was
highly atypical of her and should be considered an aberration.
This aberrant behavior came on the heels of years of marital
deterioration and stress which was very unfortunate. Ms.
Kalista-Richards is truly remorseful for her behavior and had
taken responsibility even beginning with cooperating with her
arrest by Pennsylvania state troopers on the scene. She has
also continued to seek treatment and rehabilitation and is, in my
opinion a low risk for future psychological certainty[.]
Psychological Evaluation and Violence Risk Assessment, 2/17/15, at
18.
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The court announced that it was applying the DWE-Possessed Matrix
to Appellant’s sentence and, as noted supra, imposed an aggravated range
sentence on the count of Aggravated Assault and a standard range sentence
on the count of Burglary, both sentences to run concurrently. When defense
counsel questioned the propriety of an aggravated range sentence the
following discussion took place:
THE COURT: It is an aggravated sentence. The charge was
reduced to the Felony 2 as a –
PROSECUTOR: It’s a Felony 1.
THE COURT: All right. Okay. Then the Court finds the
defendant is a danger to the community. I don’t believe the
guidelines adequately reflect the facts of this case. There was a
child present during the assault and there was – how do we
classify Mr. Richards’ testimony? There was – there were
additional victims that charges were not pursued on. Okay.
That will take care of the record. Now do you understand your
sentence?
N.T. 10/12/15 at 65-66. After the denial of Appellant’s motion to modify
sentence, this timely appeal followed.
Appellant presents the following questions for our review:
1. Did the lower court err when it found [Appellant] possessed a
Deadly Weapon for the purpose of sentencing enhancement?
2. Did the lower court err when it imposed a sentence in the
aggravated range of the sentencing guidelines?
3. Did the lower court err when it failed to state sufficient
reasons for a sentence in the aggravated range of the
sentencing guidelines?
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Appellant’s brief at 6.
Initially, we recognize that “[i]t is firmly established that a plea of
guilty generally amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of sentence, and the
validity of the guilty plea.” Commonwealth v. Dalberto, 648 A.2d 16, 18
(Pa.Super. 1994) (citations omitted). “A defendant,” however, “who has
pled guilty may challenge the discretionary aspects of his sentence as long
as the defendant did not agree to a negotiated sentence as part of a plea
agreement.” Commonwealth v. Johnson, 758 A.2d 1214, 1216
(Pa.Super. 2000) (citation omitted). Instantly, Appellant, who entered an
open plea of guilty, may challenge the discretionary aspects of her sentence.
See id.
This Court has stated that
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to appellate review as of right. Prior to
reaching the merits of a discretionary sentencing issue:
We conduct a four part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
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or raised in a motion to modify the sentence imposed at that
hearing.
Commonwealth v. Evans, 901 A.2d 528, 533–34 (Pa.Super. 2006) (some
citations and punctuation omitted).
Concluding that Appellant has complied with the first three
requirements to discretionary review, we consider whether she raises a
substantial question in her Pa.R.A.P. 2119 concise statement for allowance
of appeal. In her statement, she contends that the lower court erroneously
applied the deadly weapons-possessed sentencing enhancement to her
Aggravated Assault conviction. This claim not only addresses the
discretionary aspects of sentencing, see Commonwealth v. Kneller, 999
A.2d 608, 613 (Pa.Super. 2010) (en banc) (“a challenge to the application of
the deadly weapon enhancement implicates the discretionary aspects of
sentencing.”), it also raises a substantial question meriting review:
A substantial question is raised when the appellant advances a
“colorable argument” that the sentence was either “inconsistent
with a specific provision of the Sentencing Code” or “contrary to
the fundamental norms which underlie the sentencing process.”
[Commonwealth v. Pennington, 751 A.2d 212, 215-16
(Pa.Super. 2000) ] (citing 42 Pa.C.S.A. § 9781(b))
Our case law has established that application of the deadly
weapons enhancement presents a substantial question. See id.
at 216 (concluding that the appellant raised a substantial
question by challenging the trial court's application of the deadly
weapons enhancement, based on the appellant's assertion that
he had not had actual possession of the deadly weapon, a gun);
Commonwealth v. Hatcher, 746 A.2d 1142, 1144
(Pa.Super.2000) (same); Commonwealth v. Magnum, 439
Pa.Super.616, 654 A.2d 1146, 1149–50 (1995) (concluding that
the Commonwealth raised a substantial question by challenging
the trial court's failure to consider a deadly weapons
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enhancement in a situation where the appellant used a knife to
threaten the victims); [Commonwealth v.] Scullin, 414
Pa.Super. 442, [607 A.2d 750, 752–53 (1992) ] (concluding that
the Commonwealth raised a substantial question by challenging
the trial court's determination that a tire iron thrown by the
appellee was not a deadly weapon).
Commonwealth v. Shull, --- A.3d --- 2016 WL 4769512, at **6-7
(Pa.Super. September 13, 2016) (quoting Commonwealth v. Raybuck,
915 A.2d 125, 127–28 (Pa.Super. 2006)). See also Commonwealth v.
Diamond, 945 A.2d 252, 259 (Pa.Super. 2008) (recognizing “this Court has
repeatedly instructed that the sentencing court must correctly apply the
sentencing guidelines to reach the correct point of departure, before
exercising its discretion to depart from the guidelines in any particular case.
These rules apply to the deadly weapons enhancement.”). We, therefore,
shall address the first discretionary aspects claim raised herein.
When reviewing a challenge to the discretionary aspects of sentencing,
we observe the following standard:
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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014),
appeal denied, 626 Pa. 681, 95 A.3d 275 (2014).
During sentencing, the court referred to Appellant’s acquisition of a
knife during the course of events and indicated it would apply the deadly
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weapon possessed enhancement for purposes of sentencing. N.T. at 62-63.
The court did not specify whether the enhancement applied to one or both
offenses, but it couched its deadly weapon enhancement discussion and
decision within a larger statement addressing all of Appellant’s actions and
expressing concern over what could have happened had Fink remained in
the home after Appellant grabbed the knife:
And shaking heads or not [referring to supporters of Appellant in
attendance], there was a nine-year old child there. So either
you thought it out once you got there, had certain intentions
when you went up to the bedroom, where I am convinced your
husband was laying [sic] in bed and started screaming as he
originally told the police, and started stabbing the bed and then
beating him.
So for purposes of sentencing I am going to find not deadly
weapon used but we will do deadly weapon possessed, but those
actions are almost like an animal.
I mean, you don’t want to see yourself that way but that’s who
you were that night, covered in your own blood, crawling
through a window, trying to hurt someone. Then going up and, I
mean, had you not been stopped, I don’t know what might have
happened. Had she [Fink] not run out of the house and been
able to get out, what would her fate have been? You don’t know
that. I don’t know that.
I know that it was an aggravated assault. I know that you
caused her serious bodily injury and for that there is a
consequence. [Brief discussion ensues, clarifying that plea was
for attempted serious bodily injury]. So while I agree it’s not
your normal behavior, given your life and your life’s work, all of
which you should be commended for, frightening set of facts.
Clearly there is another side of you that is, indeed, violent and
did cause harm to another person. And for that, regardless of
your request, you are going to jail.
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N.T. at 62-64.
The court then imposed a period of incarceration of not less than forty-
eight months on the count of Aggravated Assault, a term which falls within
the aggravated range for both the Basic and the DWE/Possessed matrices.
The court thereafter segued seamlessly to the Burglary conviction and began
to sentence Appellant to a term of “not less than three years,” which, again,
would have represented an aggravated range sentence under both matrices,
but it immediately changed course and withdrew that sentence in favor of
what it called a “standard” range sentence of 33 months to 10 years.2 N.T.
at 64-65. Important for our purposes, this revised sentence was a standard
range sentence under the DWE/Possessed matrix alone, and it suggests that
the court had also been calculating the Aggravated Assault sentence in
accordance with the enhanced matrix.3
The plain language of Section 303.10 provides that an enhancement
“shall apply to each conviction offense for which a deadly weapon is
possessed or used.” 204 Pa.Code § 303.10(a)(4). At no time during either
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2
Specifically, the court stated “Count 2, burglary, is the costs of
prosecution, imprisonment for not less than, let’s see – not less than three
years – well, we will make that one standard – 33 months to 10 years,
concurrent to Count 1.” N.T. at 65. Notably, the 33-month DWE-Possessed
term is at the top end of the enhanced standard range and would reside
within the aggravated range of a basic matrix sentence.
3
In its Pa.R.A.P. 1925(a) opinion, the court opines that it properly applied
the DWE-Possessed matrix within a discussion as to the propriety of both
sentences. Pa.R.A.P. 1925(a) Opinion, filed 10/27/2015, at 2-3.
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the guilty plea or sentencing hearing did the Commonwealth allege that
Appellant possessed the knife during her assault of Ms. Fink; nor did
testimony adduced at the hearing support the position that Appellant
possessed a knife at the time of the assault. Yet it appears from the notes
of testimony that the lower court applied the enhancement to its
computation of Appellant’s Aggravated Assault conviction. Accordingly, we
are constrained to vacate judgment of sentence and remand for
resentencing, where the court shall clarify that it is applying the basic
sentencing matrix to achieve a proper starting point for imposing sentence
on the Aggravated Assault conviction.4
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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4
Given our vacation of Appellant’s sentence, we need not address her
second and third questions presented.
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