Commonwealth v. Ball

J-A30042-16

2017 PA Super 196

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

DAWN MARIE BALL

Appellee Nos. 2260 MDA 2015, 2261
MDA 2015, 2262 MDA 2015,
2263 MDA 2015

Appeal from the Judgment of Sentence imposed December 14, 2015
In the Court of Common Pleas of Lycoming County
CP-41-CR at Nos: 0000045-2014, 0000547-2015, 0002134-2013, 0002148-
2013

BEFORE: BOWES, OLSON, and STABILE, JJ.

OPINION BY STABILE, J.: FILED JUNE 22, 2017

The Commonwealth of Pennsylvania appeals from the December 14,

2015 judgment of sentence imposing an aggregate five years of probation

for four counts of aggravated harassment by a prisoner (18 Pa.C.S.A.

§ 2703.1). The trial court imposed no further penalty for Appellee’s guilty

plea to a fifth count of aggravated harassment and one count of aggravated

assault (18 Pa.C.S.A. § 2702). We affirm.

All of the offenses at issue arise from incidents between Appellee and

corrections officers at SCI Muncy. On September 15, 2012, while awaiting

trial for another offense, Appellee spit on and kicked two corrections officers.

The Commonwealth charged Appellee with two counts of aggravated
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harassment by a prisoner, two counts of aggravated assault, and two counts

of simple assault at docket number 2148 of 2013.

On November 6, 2013, Appellee screamed at and spit on a corrections

officer at SCI Muncy. The Commonwealth charged her with aggravated

harassment by a prisoner at docket number 2134 of 2013. Similar incidents

occurred on November 18, 2013 and December 16, 2014, resulting in two

more charges of aggravated harassment by a prisoner at docket numbers 45

of 2014 and 547 of 2015.

On August 18, 2015, Appellee entered a guilty plea to the

aforementioned offenses. The trial court appointed Dr. Terri Calvert to

examine Appellee and testify at Appellee’s sentencing hearing. The

sentencing hearing took place on December 1, 2015. At its conclusion, the

trial court imposed a sentence of five years of probation. On December 11,

2015, the Commonwealth filed a timely motion to reconsider. The trial court

conducted a hearing on December 14, 2015 and modified Appellee’s

sentence to include six months of electronic monitoring. The sentence

otherwise remained unchanged. The Commonwealth’s timely appeal

followed.

The Commonwealth asserts the following errors:

A. Whether the trial court abused its sentencing discretion by
imposing a sentence below the mitigated range of the
sentencing guidelines.

B. Whether the trial court abused its discretion by imposing a
sentence of probation without any incarceration.

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C. Whether the trial court abused its discretion by imposing a
sentence of guilt without further penalty for the most serious
charge, aggravated assault.

Commonwealth’s Brief at 9.

Each of these issues challenges the trial court’s sentencing discretion.

The Commonwealth preserved these issues in its timely post-sentence

motion. The Commonwealth’s brief includes a Pa.R.A.P. 2119(f) statement

arguing that its assertions of error present substantial questions for review.

A substantial question requires a demonstration that the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process. This
Court’s inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are
necessary only to decide the appeal on the merits. Whether a
substantial question has been raised is determined on a case-by-
case basis; the fact that a sentence is within the statutory limits
does not mean a substantial question cannot be raised.

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal

denied, 77 A.3d 636 (Pa. 2013). Instantly, the Commonwealth argues that

the statutory factors set forth in 42 Pa.C.S.A. §§ 9722 and 9725 warranted a

sentence of incarceration. Commonwealth’s Brief at 22. The

Commonwealth also argues that the trial court’s sentence constituted an

unreasonable deviation from the sentencing guidelines, given the

circumstances of this case. Id. We conclude the Commonwealth has

presented a substantial question for our review. See Commonwealth v.

Kenner, 784 A.2d 808, 811 (Pa. Super. 2001) (holding that the

Commonwealth raised a substantial question where it alleged the sentence

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was excessively lenient and provided specific reasons why the sentence

violated sentencing norms), appeal denied, 796 A.2d 979 (Pa. 2002).

We review the trial court’s sentencing scheme for abuse of discretion.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). “[A]n abuse of

discretion is more than a mere error of judgment; thus, a sentencing court

will not have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.” Id.

Section 9781(c) of the Sentencing Code directs this Court to vacate a

sentence and remand to the sentencing court if “the sentencing court

sentenced outside the sentencing guidelines and the sentence is

unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). Likewise, § 9781(d) governs our

review of the record:

(d) Review of record.--In reviewing the record the appellate
court shall have regard for:

(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Our Supreme Court has addressed the § 9781(c)(3) “unreasonable”

inquiry as follows:

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What makes a sentence “unreasonable” is not defined in
the statute. Generally speaking, “unreasonable” commonly
connotes a decision that is “irrational” or “not guided by sound
judgment.” The Random House Dictionary of the English
Language, 2084 (2nd ed. 1987); see 1 Pa.C.S. § 1903 (words to
be construed according to their common and approved usage).
While a general understanding of unreasonableness is helpful, in
this context, it is apparent that the General Assembly has
intended the concept of unreasonableness to be a fluid one, as
exemplified by the four factors set forth in Section 9781(d) to be
considered in making this determination. Indeed, based upon
the very factors set out in Section 9781(d), it is clear that the
General Assembly intended the concept of unreasonableness to
be inherently a circumstance-dependent concept that is flexible
in understanding and lacking precise definition.

[W]e decline to fashion any concrete rules as to the
unreasonableness inquiry for a sentence that falls outside of
applicable guidelines under Section 9781(c)(3). We are of the
view, however, that the Legislature intended that considerations
found in Section 9721 inform appellate review for
unreasonableness. That is, while a sentence may be found to be
unreasonable after review of Section 9781(d)’s four statutory
factors, in addition a sentence may also be unreasonable if the
appellate court finds that the sentence was imposed without
express or implicit consideration by the sentencing court of the
general standards applicable to sentencing found in Section
9721, i.e., the protection of the public; the gravity of the offense
in relation to the impact on the victim and the community; and
the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).
Moreover, even though the unreasonableness inquiry lacks
precise boundaries, we are confident that rejection of a
sentencing court’s imposition of sentence on unreasonableness
grounds would occur infrequently, whether the sentence is above
or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard
of review.

Walls, 926 A.2d at 963-64 (some citation omitted).

The Commonwealth notes that the guideline range for each of

Appellee’s offenses was 21 to 27 months of incarceration. The aggregate

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guideline range, had the trial court imposed consecutive sentences for all six

offenses, was 126 to 162 months of incarceration. As noted above, the trial

court imposed five years, i.e., 60 months of probation.

The Commonwealth cites several cases in which this Court vacated a

sentence as excessively lenient. In Commonwealth v. Childs, 664 A.2d

994 (Pa. Super. 1995), appeal denied, 674 A.2d 1066 (Pa. 1996), for

example, this Court vacated a ten-year probationary sentence for

aggravated assault. The defendant, standing two feet away from the victim,

pointed a gun at the victim’s head. Id. at 995. The victim ducked before

the defendant fired, and thus avoided injury. Id. The trial court reasoned

that the defendant had avoided criminal behavior for a long time since his

prior offense, and that the defendant’s family depended on his financial

support. Id. at 997. The record did not support the latter conclusion,

inasmuch as the defendant’s income was limited to welfare and food stamps.

Id. Further, we concluded only two of the twelve factors set forth in 42

Pa.C.S.A. § 9722 arguably supported a sentence of probation. Id. at 998-

99. We concluded the trial court failed to consider the need to protect the

public from violent offenders, the gravity of the defendant’s offense, and the

defendant’s rehabilitative needs. Id. at 999.

The Commonwealth also cites Commonwealth v. Sims, 728 A.2d

357 (Pa. Super. 1999), appeal denied, 743 A.2d 719 (Pa. 1999), in which

this Court vacated a below-guideline sentence for two counts of simple

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assault. The defendant held his girlfriend in a chokehold and bit her. Id. at

358. The defendant also threw his girlfriend’s 9-year-old daughter down a

stairway after the daughter confronted the defendant and told him to stop

the assault of her mother. Id. The trial court imposed concurrent sentences

of six to 23 months of incarceration. The applicable mitigated range was

nine months for the defendant’s assault of his girlfriend and 18 months for

the assault of her daughter. Id. The trial court noted that the girlfriend did

not want the Commonwealth to pursue charges against the defendant, the

defendant accepted responsibility for his actions, and neither victim required

medical attention. Id. The trial court also noted the defendant’s need for

mental health treatment. Id.

In vacating the sentence, we noted that the victim’s requests for

leniency were made in response to threats from the defendant. Id. at 359.

As to the sentence for defendant’s assault of the daughter, we wrote that

“[a] sentence of only one-third the mitigated minimum guidelines sentence

for assaulting this courageous girl is hard to understand, and certainly may

not be based on the words of her still frightened mother.” Id. at 359-60.

The defendant’s “boilerplate” statements of regret, which the pre-sentence

investigator disbelieved, did not justify a mitigated range sentence even if

true. Id. at 360. The victims’ lack of need for medical attention was

“serendipitous avoidance of an aggravating circumstance.” Id.

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In Commonwealth v. Masip, 567 A.2d 331 (Pa. Super. 1989), this

Court reversed a nine-month sentence for possession with intent to deliver a

controlled substance where the applicable mitigated minimum was 33

months. The trial court considered the defendant’s inability to receive

appropriate treatment for drug addiction during incarceration, as well as his

need to learn English so that he could obtain meaningful employment. Id.

at 333. The pre-sentence investigation (“PSI”) indicated that the defendant

had maintained employment at a K-mart and at a cleaning company. Id. at

335. The PSI also indicted that the defendant denied that he had a drug

problem or that he needed treatment. Id. In other words, the PSI

undermined the trial court’s reasons for imposing a lenient sentence. Id. at

335.

The Commonwealth also relies on Commonwealth v. Felix, 539 A.2d

371 (Pa. Super. 1988), appeal denied, 581 A.2d 568 (Pa. 1990), in which a

defendant with multiple prior convictions received four to 23 months of

county incarceration for burglary. The applicable mitigated guideline range

was 25 to 33 months. Id. at 380. The trial court noted that the defendant

was recently married and that his wife was pregnant. Id. The trial court

also noted that after having been in prison for several months the defendant

“ought to have chilled off from the thrill of your dope thing, right.?” Id.

This Court described the defendant as a 24-year-old “youthful career

criminal” with a “substantial record of criminal activity.” Id. at 379. We

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further noted that burglary is a first-degree felony, and that the offense at

issue was the defendant’s fourth burglary. Id. at 381. A mental health

evaluation concluded that the defendant’s prospects for “adequate

adjustment” to life outside of prison were “marginal at best.” Id. at 379,

381. Ultimately, we concluded that the trial court relied on mitigating

factors that did not justify a sentence so far below the mitigated guideline

range. Id. at 381.

Finally, the Commonwealth relies on Commonwealth v. McIntosh,

911 A.2d 513 (Pa. Super. 2006), vacated in part, 922 A.2d 873 (Pa. 2007),1

wherein the defendant received a sentence for sexual assault whose “net

effect [. . . ] was to allow [the defendant] to avoid incarceration, aside from

the day he spent in jail after his arrest, and to serve a period of house arrest

followed by [an aggregate ten years of probation.]” Id. at 516.2 The

defendant was a professor at the University of Pennsylvania and the victim

was a 23-year-old student in the veterinary school and the defendant’s

niece. Id. at 515. The applicable mitigated guideline range was 24 to 36

months of incarceration. Id. at 521. At sentencing, the trial court did not

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1
The Supreme Court vacated this Court’s directive that the matter proceed
before a different sentencing judge but otherwise did not disturb this Court’s
analysis or result.
2
The Court explained elsewhere that that actual sentence imposed was
“11½ to 23 months of incarceration, plus probation, and then immediate
parole.” Id. at 520.

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acknowledge the guidelines or explain its significant downward departure.

Id. That omission, by itself, required this Court to vacate and remand. Id.

(citing 42 Pa.C.S.A. § 9721(b)).

In its Pa.R.A.P. 1925(a) opinion, the trial court in McIntosh relied

upon cases in which a negotiated plea resulted in a sentence similar to the

one the trial court imposed. Id. at 522. We noted that prior decisional law

rejected such reasoning. Id. (citing Commonwealth v. Celestin, 825 A.2d

670, 680 (Pa. Super. 2003), appeal denied, 844 A.2d 551 (Pa. 2004)). The

trial court also noted the financial hardship that incarceration would impose

on the defendant’s family. Id. We rejected that reasoning because the PSI

indicated the defendant was unemployed and had no employment prospects.

Id. “Most critically, however, and of the greatest concern to this Court, the

sentencing court erroneously cast [the defendant’s] conduct, not as criminal,

but as simple ‘bad judgment.’” Id. The McIntosh Court also observed that

the trial court’s concern for the defendant’s rehabilitation apparently

outweighed its consideration of society’s and the victim’s need for imposition

of a suitable punishment. Id. at 523. “Indeed, we find that the tenor of the

sentencing hearing as a whole reveals that the sentencing court treated [the

defendant], who was 52 years-of-age, less as a criminal than as a school

boy requiring direction and supervision.” Id. The trial court also considered

the defendant’s loss of job and reputation sufficient punishment. Id.

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The McIntosh Court explained that “[a] departure from the guidelines

should not be based on the sentencing court’s conclusion that the guideline

range is ether to harsh or too lenient[.]” Id. at 521-22. We treated the

faulty reasoning set forth in the trial court’s Pa.R.A.P. 1925(a) opinion as an

“additional basis” for vacating the judgment of sentence.3 Id. at 523.

Instantly, the trial court relied in part on the 2012 court-ordered

report of Dr. Frank Daly, the psychiatrist at SCI Muncy. Dr. Daly opined that

Appellee would be better off in a mental health facility, and that persistent

confinement to the Restricted Housing Unit (“RHU”) was exacerbating her

mental illness. Psychiatric Evaluation of Dr. Frank Daly, 7/24/2012, at 7-8.

The trial court also relied heavily on the testimony and report of Dr. Terri

Calvert, who was familiar with Dr. Daly’s report and the report from

Appellee’s stay at Torrance State Hospital. N.T. Sentencing, 12/1/2015, at

15.

In her report, Dr. Calvert wrote the following:

It is my opinion, within a reasonable degree of psychiatric
certainty, that [Appellee’s] aggressive behavior, which has
resulted in multiple charges of assault, is the product of the
effects of trauma and abuse experienced by [Appellee] during
her lifetime, combined with increased depression after the death
of her grandfather in 2013, and the deprivation-filled and
sometimes psychologically abusive environment of the RHU.”
____________________________________________

3
Arguably, the McIntosh Court’s analysis of the trial court’s Rule 1925(a)
opinion is dicta. Remand was required given the trial court’s failure to
explain at the sentencing hearing its reasons for departing from the
guidelines.

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Calvert Report, 10/30/2015, at 8.

It is also my opinion that continued incarceration would
serve only to maintain or escalate the confrontations with
officers, as the type of Cognitive-Behavioral Therapy necessary
to help [Appellee] learn to identify her hyperarousal symptoms
and triggers, and learn more adaptive coping strategies, is not
available for inmates in the RHU, or anywhere at SCI-Muncy for
that matter. The harsh environment of the RHU will only
exacerbate [Appellee’s] PTSD [Post Traumatic Stress Disorder]
and depression/anxiety, contributing to her aggressive behavior.
[. . .] Finally, based on all of the information available to me at
this time, it is my opinion that [Appellee] does not pose a
significant risk of danger to others in the community, as her
assaultive behavior has occurred almost entirely in the solitary
confinement environment, and most if not all of her legal
charges have been theft-related or traffic offenses.

Id. at 9.

Dr. Calvert’s conclusions differ markedly from the conclusions of the

treating doctor at Torrance, a point the trial court raised during the

sentencing hearing. N.T. Sentencing, 12/1/2015, at 18-19. The trial court

read the evaluation from Torrance to say that Appellee was manipulating the

system and needed to be “warehoused” in prison in order to protect the

public. Id. at 19. The trial court asked Dr. Calvert to explain why her

conclusions differed markedly from those of the doctor at Torrance. Dr.

Calvert offered the following observations:

Well I spent three hours with [Appellee], and it [sic]
conducted a thorough interview, and explored the areas that
perhaps others didn’t. You know her – her history of, you know,
early childhood experiences, symptoms, depression, anxiety,
obsessive/compulsive symptoms, the PTSD symptoms like
nightmares, flashbacks, and I – and because I had the time to
speak with [Appellee] I was able to try to tease out is [Appellee]

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being honest with me. Is she being genuine with me? Is she,
you know –

THE COURT: I assume you’ve been doing this your entire
career because of the nature of the individuals you’ve been
seeing?

THE WITNESS: Yes. For – for example [Appellee] did not
say, oh everyone is against me, oh everyone is treating me
poorly, and you know, this kind of thing. I – her – her report
was that – that some officers say negative things. Not all
officers. Some officers treat me well, and they’re the ones that I
get along with.

So I – I attempted to – to sort of to see whether she was
exaggerating, and I didn’t get that impression. So many officers
interact with [Appellee] on a daily basis, how many of them are,
you know, do you get along with, and how many don’t you get
along with, you know. Are some of the officers pleasant with
you? So most of the time when people are exaggerating or – or
– or attempting to say this is why I do what I do, it’s pretty
obvious. It’s exaggerated. They – they – they go out of their
way to talk about their traumas in great detail. [Appellee] didn’t
do that.

She – she, like almost every post-traumatic stress disorder
patient I’ve spoken with hesitated to report the trauma.
Hesitated to report negative things about her mother. You
know, she – and – and that’s – that’s the avoidance, that’s the,
you know, not wanting to talk about it. So – so that fit, you
know, she talked about, you know, guilty about her past
behavior, about how, you know, certain triggers in the prison
would, you know, prompt her to get angry.

I mean so she – she – she fits pretty much all of the
classic criteria for post-traumatic stress disorder. Her – her
mother was physically and psychologically abusive. The home
environment was chaotic and neglectful. Father wasn’t there.
Mother moved her all around with her sister. Sister abruptly
died when [Appellee] was 16 or 17 of an [anaphylactic] reaction
to a common orthodontic procedure. Just a lot of traumatic
things.

Id. at 20-21.

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The trial court also pressed Dr. Calvert on whether Appellee’s antics

were truly a mental illness, or just an act. Id. at 24. Dr. Calvert opined

that Appellee’s behavior “seems like a whole lot of effort, you know, just for

that.” Id. at 25. She also opined that Appellee was likely minimizing her

history of trauma and that a therapeutic environment, rather than

confinement in the RHU, could improve Appellee’s symptoms over time. Id.

at 27. Likewise, Dr. Calvert’s written report notes “no evidence of

exaggeration of symptoms or events, or feigning symptoms for secondary

gain.” Calvert Report, 10/30/2015, at 6.

During the prosecution’s brief cross-examination, Dr. Calvert

acknowledged that her report was based on what Appellee told her. Id. at

38. She did not verify Appellee’s reported behaviors and experiences with

third parties. Id.

Ultimately, the trial court concluded that further time in prison and

RHU would exacerbate Appellee’s symptoms and make her more dangerous.

The trial court also relied on Dr. Calvert’s conclusion that Appellee was not a

threat to the public. Furthermore, the court noted that if Appellee violates

probation for any reason, it could revoke Appellee’s probation and

“warehouse” her in prison. N.T. Sentencing, 12/1/2015, at 63.

The Commonwealth argues the trial court “placed undue weight on

Appellee’s perceived mental illness, while disregarding many other

aggravating factors[.]” Commonwealth’s Brief at 25. Those factors include

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Appellee’s poor prison disciplinary record, her significant criminal record, her

persistent commission of new offenses while prior charges were pending,

and her lack of remorse. Id. at 25-26. The Commonwealth notes that

Appellee received mental health treatment, to no avail, during a prior

sentence. Commonwealth’s Brief at 28. Appellee was returned to prison

after evaluations at Norristown State Hospital and Torrance State Hospital.

Psychiatric Evaluation of Dr. Hansa Shah, 6/24/2013, at 3; Torrance State

Hospital Forensic Summary, 3/11/2015, at 9. After the 60-day evaluation at

Norristown, the trial court imposed a sentence of nine to eighteen months of

incarceration followed by three years of probation on a prior charge of

aggravated harassment. A doctor at Torrance concluded RHU was the only

safe option for Appellee. Torrance State Hospital Forensic Summary,

3/11/2015, at 10. Appellee threatened to kill personnel at Torrance.

Torrance State Hospital Supplement to Forensic Summary, 3/12/2015, at 5.

Neither hospital concluded that Appellee suffered from PTSD.

In summary, the Commonwealth believes the trial court

overemphasized Appellee’s rehabilitative needs4 and underemphasized her

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4
In furtherance of its argument in support of the trial court’s overemphasis
of Appellee’s rehabilitative needs, the Commonwealth notes that the trial
court received correspondence and articles from Appellee. Commonwealths’
Brief at 40. This issue does not alter our analysis. Importantly, the
Commonwealth does not argue that the trial court sent any inappropriate ex
parte correspondence to Appellee. Concerning the articles the trial court
received from Appellee, and the other scholarly research the court did on its
(Footnote Continued Next Page)

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significant criminal history and the seriousness of her offenses. As noted

above, the trial court imposed no penalty for aggravated assault and one of

the five aggravated harassment charges. The Commonwealth also argues

that the trial court has rewarded Appellee for bad behavior and created an

incentive for other inmates to commit similar misconduct in hope of

obtaining a release from prison.

While this case presents a close question, we conclude the trial court

acted within its permissible sentencing discretion. We do not believe that

any of the cases discussed above controls the instant outcome. Childs is

distinguishable in that the defendant committed an act that, if successful,

would have killed the victim. Childs, 664 A.2d at 994. The record did not

support the trial court’s finding that the defendant’s family was dependent

upon his financial support, and the trial court’s sentence was not

commensurate with the obligation to protect the public from violent

offenders. Id. at 997-99. In Childs, as in the instant matter, many of the

§ 9722 factors did not support a sentence of probation. Id. Nonetheless,

we believe Childs is distinguishable because of the violence of the offense—

if successful, the defendant most likely would have killed the victim—and the

lack of record support for part of the trial court’s rationale. Instantly, the
_______________________
(Footnote Continued)

own, the Commonwealth fails to offer any legal argument to support
obtaining relief on that basis. In any event, we have based our affirmance
on the evidence Appellee introduced at sentencing, and not on the trial
court’s independent research.

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record contains conflicting evidence on many points, but the record does

contain support for the trial court’s findings. In particular, the record

contains extensive evidence about Appellee’s mental health needs, including

the fact that confinement in RHU is exacerbating her problems and making

her more dangerous. The § 9722 factors, as we will explain below, do not

bind a sentencing court.

In Sims, the trial court relied on a statement the victim’s mother

made under threat from the defendant. Sims, 728 A.2d at 359-60. This

Court also concluded the defendant’s boilerplate acceptance of responsibility

was insufficient and that the lack of injury to either victim—both of whom

were thrown down a stairway—was fortuitous. Id. The facts of Sims are

distinguishable from the instant matter. Masip is distinguishable because

uncontroverted facts in the PSI undermined the trial court’s rationale for

imposing a lenient sentence. Masip, 567 A.2d at 335.

In Felix, the trial court seemingly ignored pertinent evidence

undermining its rationale for imposing a lenient sentence. Felix, 539 A.2d

381. In particular, the defendant’s mental health evaluation indicated the

defendant had little chance of adjusting to life outside of prison. Id.

Instantly, by way of contrast, Dr. Calvert’s evaluation supports the trial

court’s sentence. Other evidence of record contradicts Dr. Calvert’s

conclusions, but the trial court did not ignore the conflicting evidence.

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Rather, the court examined Dr. Calvert on the conflicting evidence during

the sentencing hearing.5

In McIntosh, the trial court ostensibly treated the defendant’s sexual

assault of the victim as mere bad judgment. McIntosh, 911 A.2d at 522-

23. Furthermore, the trial court overemphasized the defendant’s need for

rehabilitation as compared to the seriousness of a sexual assault and the

need to protect the public from such offenses. Id. Further, the record did

not support the trial court’s finding that the defendant’s family was

financially dependent upon him. Id. Instantly, as we have already

explained, the testimony and report of Dr. Calvert and the report of SCI

Muncy psychiatrist Dr. Daly confirm that Appellee has significant mental

health needs that cannot be met in a prison environment, and that further

confinement will make her more dangerous.

Finally, we note that the trial court undertook detailed analysis of

§ 9722.6 Trial Court Opinion, 3/2/2016, at 17-20. The trial court noted that

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5
The Commonwealth argues, without citation of a specific example, that
the trial court’s questioning of Dr. Calvert at the sentencing proceeding
“bordered on defense advocacy.” Commonwealth’s Brief at 30. We do not
believe the record supports the Commonwealth’s assertion. We quoted
portions of the transcript in which the trial court examined Dr. Calvert on the
conflict between her conclusions and those of the doctors at Torrance.
6
Section 9722, titled “Order of Probation,” provides:
(Footnote Continued Next Page)

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_______________________
(Footnote Continued)

The following grounds, while not controlling the discretion of
the court, shall be accorded weight in favor of an order of
probation:

(1) The criminal conduct of the defendant neither caused
nor threatened serious harm.

(2) The defendant did not contemplate that his conduct
would cause or threaten serious harm.

(3) The defendant acted under a strong provocation.

(4) There were substantial grounds tending to excuse or
justify the criminal conduct of the defendant, though failing to
establish a defense.

(5) The victim of the criminal conduct of the defendant
induced or facilitated its commission.

(6) The defendant has compensated or will compensate
the victim of his criminal conduct for the damage or injury that
he sustained.

(7) The defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial
period of time before the commission of the present crime.

(8) The criminal conduct of the defendant was the result of
circumstances unlikely to recur.

(9) The character and attitudes of the defendant indicate
that [she] is unlikely to commit another crime.

(10) The defendant is particularly likely to respond
affirmatively to probationary treatment.

(11) The confinement of the defendant would entail
excessive hardship to him or his dependents.

(12) Such other grounds as indicate the desirability of
probation.

42 Pa.C.S.A. § 9722 (emphasis added).

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Appellee’s conduct in this case—spitting, cussing, and in one instance

kicking—did not cause or threaten serious harm as per § 9722(1). Id. at

18.

The court is not by any means condoning Appellee’s
actions. The bottom line, however, is that the aggravated
assault charges were based on an attempt to cause injury to an
enumerated official. There is nothing in the record to show that
any of the corrections officers were actually injured in this case.
Appellee also doesn’t have any communicable diseases that
would be transmitted to the corrections officers through her
saliva.

Id. at 18. Similarly, the trial court concluded that Appellee, given her

mental illness, did not contemplate that her conduct would cause or threaten

serious harm as per § 9722(2). Id. In this respect, we find this case

particularly distinguishable from Childs. The trial court also found that

Appellee’s mental illness somewhat excused her conduct, as per § 9722(4).

Based on Dr. Calvert’s testimony, the trial court found that Appellee is likely

to respond well to probationary treatment, in accord with § 9722(10).

Based on our review of the evidence above, we conclude the record supports

the trial court’s findings. Based on its express language, § 9722 does not

bind the trial court’s analysis. Furthermore, the Commonwealth does not

cite any law for the proposition that most or all of the § 9722 factors must

weigh in favor of probation.

Finally, the trial court addressed the Commonwealth’s argument that

its sentence will create an incentive for other inmates to act in similar

fashion:

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The Commonwealth was more concerned with the message
that the court’s sentence was sending to other inmates without
mental health problems than the history, character, and
condition of Appellee and the nature and circumstances of these
particular crimes. This concern was misplaced. If an incident
happened with a typical inmate without mental health issues, his
sentencing factors would not be the same; therefore, the
sentence would not be the same. The typical inmate at SCI
Muncy would not have the same mitigating circumstances as
Appellee. Escalating consequences and penalties generally have
the desired deterrent effect on a normal, rational thinking
individual, whereas several mental health experts have opined
that they do not have the desired effect on Appellee due to her
mental health disorders.

Id. at 23.

After a thorough review of the law, the record, and the trial court’s

reasons for its sentence, we conclude that the trial court acted within its

permissible discretion in imposing a sentence below the guideline range.

The record supports findings that Appellee has special mental health

problems that are addressable in a probationary setting but are likely to be

exacerbated by continued incarceration. The trial court did not impose a

sentence based on a generalized concern that the sentencing guidelines are

too harsh in this case. Rather, the court conducted a detailed review of the

available evidence and tailored its sentence to the unique circumstances of

this case. We therefore do not conclude that the sentence is unreasonable.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/22/2017

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