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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVID S. IRVIN
Appellant No. 432 MDA 2017
Appeal from the Judgment of Sentence January 24, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at No(s):
CP-22-CR-0001146-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 14, 2017
Appellant, David S. Irvin, appeals from the judgment of sentence of 54
to 120 months’ imprisonment imposed in the Dauphin County Court of
Common Pleas after a jury found him guilty of two counts of delivering a
controlled substance.1 Appellant claims that (1) the verdict was against the
weight of the evidence, (2) the sentence was manifestly excessive, and (3)
the trial court erred in finding him ineligible for the Recidivism Risk
Reduction Incentive (“RRRI”) program.2 We affirm in part, vacate in part,
and remand for further consideration of Appellant’s RRRI-eligibility.
The trial court summarized the facts history of this case as follows:
* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 See 61 Pa.C.S. §§ 4501-4512.
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At trial, Detective Nicholas Licata testified to the
circumstances and events of September 15, 2015 and
September 17, 2015 that lead to [Appellant’s] arrest for
delivery of a controlled substance. The Detective testified
that while using a confidential informant (“CI”) two
separate drug buys were made from [Appellant]. The CI
was a trusted informant that had worked with the
Detective on previous cases.
On September 15, 2015, the CI set up a drug buy with
a person the CI identified as [Appellant]. In order to
contact [Appellant], the CI called the phone number (717)
329-3241. The CI was searched by the Detective to
ensure the CI did not have drugs or money on his or her
person and the Detective then gave the CI $70 to make
the drug buy. The CI walked to meet [Appellant]3 and did
not have contact with anyone else before entering a white
Hyundai sedan with a Pennsylvania license plate, JPF-
4162. The Commonwealth entered into evidence as
exhibit one, a video of the CI entering a white car. The CI
rode in the car until he or she was dropped off. The
Detective picked up the CI and upon searching the CI,
found a bundle of heroin and no money. The bundle of
heroin and a lab report determining the substance
contained in the bundle was heroin were entered into
evidence by the Commonwealth as exhibits two and three,
respectively.
3 Detective Licata and the CI initially drove to a
location in order to complete the drug sale. At that
location, [Appellant] called the CI and had him walk
to a different location to meet [Appellant].
On September 17, 2015, the CI set up another
controlled buy after contacting a person the CI again
identified as [Appellant]. The CI called the same phone
number as was called on September 15, 2015. Following
the same process as the first buy, the CI was searched and
then given money before walking to meet [Appellant]. The
CI again entered a white Hyundai bearing the same license
plate as the first drug sale. After the CI was dropped off,
he or she was picked up by the Detective and searched.
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The CI again had a bundle of heroin and no money. The
CI informed the detective that it was [Appellant] who sold
the drugs to him or her. The Commonwealth had the
second bundle of heroin and a lab report identifying the
substance as heroin entered into evidence as exhibits four
and five, respectively.
[Appellant] was arrested on September 18, 2015.
[Appellant] was searched and the search found a cell
phone and car keys. The Detective called the number the
CI had called and the phone found in [Appellant’s]
possession rang and displayed the Detective’s phone
number as the incoming call. The car keys found in
[Appellant’s] possession unlocked the car that had picked
up the CI on the two separate occasions. A search warrant
was obtained for the car, which turned up wax bags
commonly used to package heroin and a rental agreement
showing that the car was rented to a person other than
[Appellant].
Another Harrisburg Police Department Officer was called
to testify for the Commonwealth. The officer’s duty during
the investigation was to conduct surveillance. The
Commonwealth entered into evidence, as exhibits eight
through eleven, various videos and photographs showing
[Appellant] entering and operating the vehicle. [Appellant]
did not testify at the trial and did not put on evidence or
call any witnesses. [Appellant] attacked the use of a CI,
the lack of eyewitness evidence of the actual drug
exchange, and the lack of physical proof such as DNA and
fingerprints.
Trial Ct. Op., 3/3/17, at 2-4 (record citations and some footnotes omitted).
On December 6, 2016, a jury found Appellant guilty of two counts of
delivering controlled substance. On February 21, 2017, the trial court
sentenced Appellant to serve two consecutive terms of twenty-seven to sixty
months’ imprisonment. Appellant filed post-sentence motions seeking RRRI
eligibility and a downward modification of his sentence, both of which the
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trial court denied. Appellant filed a timely appeal and complied with the trial
court’s order to submit a Pa.R.A.P. 1925(b) statement.
Appellant presents the following questions for our review:
I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S POST-SENTENCE MOTION BECAUSE THE
VERDICT WAS SO CONTRARY TO THE WEIGHT OF THE
EVIDENCE AS TO SHOCK ONE’S SENSE OF JUSTICE?
II. WHETHER THE IMPOSITION OF AN AGGREGATE
SENTENCE OF 54 TO 120 MONTHS’ INCARCERATION WAS
CLEARLY UNREASONABLE, SO MANIFESTLY EXCESSIVE AS
TO CONSTITUTE AN ABUSE OF DISCRETION, AND
INCONSISTENT WITH THE PROTECTION OF THE PUBLIC,
THE GRAVITY OF THE OFFENSES, AND APPELLANT’S
REHABILITATIVE NEEDS WHERE THE COURT IMPOSED
CONSECUTIVE JAIL SENTENCES ON COUNTS ONE AND
TWO?
III. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S ELIGIBILITY FOR [RRRI] AT THE TIME OF
HIS SENTENCING?
Appellant’s Brief at 8 (footnote omitted).
Appellant first claims that the verdict was against the weight of
evidence. Appellant emphasizes that there was no direct evidence that he
delivered the drugs to the CI because the transactions took place beyond the
sight of the officers surveilling the controlled buys and the CI did not testify
at trial. Id. at 21. Appellant further contends that the Commonwealth failed
to preserve the text messages or phone calls allegedly arranging the buys.
Id.. Lastly, Appellant asserts that the evidence obtained from the search of
the white Hyundai sedan was inconclusive because he did not rent the
vehicle, the “baggies” found in the car did not match the packaging
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materials used in the controlled buys, and the money found in the car did
not include the buy money used by the CI. Id.. No relief is due.
The standards for reviewing a challenge to the weight of the evidence
are well settled.
A weight of the evidence claim concedes that the evidence
is sufficient to sustain the verdict, but seeks a new trial on
the ground that the evidence was so one-sided or so
weighted in favor of acquittal that a guilty verdict shocks
one’s sense of justice. On review, an appellate court does
not substitute its judgment for the finder of fact and
consider the underlying question of whether the verdict is
against the weight of the evidence, but, rather, determines
only whether the trial court abused its discretion in making
its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations
omitted).
Instantly, the trial court denied Appellant’s post-sentence motion for a
new trial. The court determined there was ample circumstantial evidence
supporting the jury’s verdict and the jury properly determined the credibility
of the witnesses. Trial Ct. Op. at 4, 6 & n.4. The record reveals that
Detective Licata had the CI arrange the two controlled purchases by
contacting Appellant’s cellular phone. The detective searched the CI for
contraband before both purchases. Appellant was observed driving the
rented white Hyundai involved in both purchases. Detective Licata saw the
CI enter the passenger side of the vehicle after which Appellant drove
around several blocks and then returned to an area near the initial location
of the meetings. After exiting the vehicle, the CI gave the detective bundles
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of heroin. Additionally, following Appellant’s arrest, Detective Licata
confirmed that the cellular phone contacted by the CI was Appellant’s by
calling it. Thus, although Appellant’s arguments reveal minor gaps in the
evidence, we discern no abuse of discretion in the trial court’s
determinations that the verdicts did not shock one’s sense of justice. See
Lyons, 79 A.3d at 1067. Accordingly, Appellant’s first claim fails.
Appellant next claims that the trial court’s aggregate sentence of 54 to
120 months’ imprisonment was manifestly excessive. Appellant’s Brief at
16, 24. He contends that the trial court focused solely on the gravity of the
offense and failed to consider mitigating circumstances. Id. at 26.
Additionally, he notes that the detective could have arrested him after the
first controlled buy, but arranged a second buy for which he was sentenced
consecutively. Id. at 27. Appellant concludes he is entitled to resentencing.
Id. We disagree.
It is well settled that
a challenge to the discretionary aspects of a sentence is a
petition for permission to appeal, as the right to pursue
such a claim is not absolute. Before this Court may review
the merits of a challenge to the discretionary aspects of a
sentence, we must engage in the following four-pronged
analysis:
[W]e 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
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substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b).
Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (some
citations omitted).
This Court has stated that
[t]he determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Further:
A substantial question exists only when the appellant
advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2)
contrary to the fundamental norms which underlie
the sentencing process.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.), appeal
denied, 633 Pa. 774, 126 A.3d 1282 (2015).
Appellant timely filed the instant appeal, and he included a Pa.R.A.P.
2119(f) statement in his brief. Appellant also filed a post-sentence motion in
which he that the aggregate sentence was “clearly unreasonable” and
“excessive” because it was too severe a punishment in light of his
rehabilitative needs. Appellant’s Post-Sentence Motion, 1/30/17, ¶¶ 6-7.
Therefore, Appellant’s post-sentence motion adequately preserved his
arguments that the sentence was excessive because the trial court
improperly focused on the gravity of the offense and failed to consider
mitigating circumstances. Further, we conclude that these arguments raise
a substantial question under the circumstances of this case. See Caldwell,
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117 A.3d at 770 (finding substantial question raised by “challenge to the
imposition of his consecutive sentences as unduly excessive, together with
his claim that the court failed to consider his rehabilitative needs upon
fashioning its sentence”). Therefore, we grant review as to these questions.
However, Appellant’s post-sentence motion did not include an
argument that the consecutive nature of the sentences was unreasonable
because the detective did not to arrest him after the first controlled
purchase. Moreover, that argument was not fairly raised at sentencing.
Therefore, that argument is waived, and we will not consider it in this
appeal. See Williams, 151 A.3d at 625.
It is well settled that
[t]he proper standard of review when considering whether
to affirm the sentencing court’s determination is an abuse
of discretion. [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. . . . An abuse
of discretion may not be found merely because an
appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support
so as to be clearly erroneous.
Commonwealth v. Johnson-Daniels, 167 A.3d 17, 25 (Pa. Super. 2017)
(citation omitted).
When reviewing a sentence, this Court should consider four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
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(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. § 9781(d)(1)-(4).
[W]hile 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.
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
Instantly, the trial court heard arguments from the parties. The
Commonwealth noted that based on Appellant’s prior record score of five,
the standard range minimum sentence was twenty-one to twenty-seven
months with an aggravated range of thirty-three months. N.T. Sentencing,
1/24/17, at 3. The Commonwealth emphasized that Appellant had two prior
convictions for selling heroin and, in this case, engaged in the two sales one
month after being release on parole. Id. at 2-5. The Commonwealth
requested a sentence of 60 to 120 months’ imprisonment based on
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Appellant’s repeated criminality and unwillingness to comply with the law.
Id. at 5. Appellant responded that he was “a family man” and although he
was the youngest of ten children, he was looked upon as the breadwinner for
the family. Id. at 6. He conceded that he was on parole at the time of the
present offense, but noted that the maximum sentence for his prior
conviction would be “pushed back” beyond 2025. Id. at 5-6. Appellant thus
requested concurrent, standard-range sentences with the “understanding
that he is going to be receiving a consecutive back hit of almost two years.”
Id. at 7.
When sentencing Appellant to consecutive terms of 27 to 60 months’
imprisonment, the trial court explained:
[A]s the district attorney appropriately pointed out, we all
know the dangers of heroin in our community. We see it
here every day, and that’s of serious concern. What
makes this all the more serious is the fact that you had
just been released from state prison for that same offense
and you are back to selling or distributing heroin once
again.
So I guess there is a fair argument that that previous
sentence didn’t necessarily grab your attention. So I
believe that has to be taken into account as well. And, of
course, in this case, there are two separate incidents; very
close in time, but, nevertheless, two separate incidents.
Id. at 8-9.
The record thus reveals that the trial court considered the gravity of
the offense, the protection of the community, and Appellant’s rehabilitative
needs. Moreover, we discern no abuse of discretion in its weighing of the
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relevant sentencing factors. Accordingly, Appellant’s claim that the sentence
was clearly unreasonable or manifestly excessive warrants no relief.
Appellant lastly claims that the trial court erred in finding him ineligible
the RRRI program based on his 2008 conviction for felony-one burglary.
Appellant argues that his prior convictions did not involve any acts of
violence. Appellant’s Brief at 28. He further asserts that the General
Assembly “only intended to exclude repeat offenders of violent behavior
from participation in the RRRI program.” Id. at 29 (emphasis added).
At the time Appellant briefed this issue, the Pennsylvania Supreme
Court was considering the question of whether a defendant was RRRI-eligible
when he was convicted and sentenced for a single crime of violence but had
no other convictions disqualifying him from the RRRI program. See
Commonwealth v. Cullen-Doyle, 138 A.3d 609 (Pa. 2016) (granting
allowance of appeal); see also Appellant’s Brief at 28-29. The Pennsylvania
Supreme Court has decided Cullen-Doyle during the pendency of this
appeal and answered the question for review in the affirmative.
Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017). However,
we are constrained to conclude that Cullen-Doyle does not entitle Appellant
to relief.
The RRRI Act is a penal statute. Commonwealth v. Chester, 101
A.3d 56, 60 n.6 (Pa. 2014). Eligibility for the RRRI is codified in 61 Pa.C.S.
§ 4503, and questions of eligibility raise questions of law. Commonwealth
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v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super.), appeal denied, 159 A.3d 935
(Pa. 2016). Thus, our standard of review is de novo, and our scope of
review is plenary. Id.
Section 4503 states in relevant part:
A defendant or inmate convicted of a criminal offense who
will be committed to the custody of the department [of
corrections] and who meets all of the following eligibility
requirements:
(1) Does not demonstrate a history of present or past
violent behavior. . . .
61 Pa.C.S. § 4503(1).3 The Pennsylvania Supreme Court has concluded that
“a conviction for first-degree burglary constitutes ‘violent behavior’ under
Section 4503(1).” Chester, 101 A.3d at 65. However, the Court did not
consider whether a single conviction for felony-one burglary constitutes a
history of violent behavior. Id.
In Cullen-Doyle, the defendant pleaded guilty to one count of felony-
one burglary, as well as several counts of conspiracy to commit felony-one
burglary. Cullen-Doyle, 164 A.3d at 1241. The defendant requested a
RRRI sentence, which the trial court denied based on its belief that the
3 Section 4503 contains five additional criteria that renders a defendant
ineligible for a RRRI sentence, inter alia, (1) a prior conviction or sentence
based on the use of a deadly weapon, (2) prior adjudications or convictions
for personal injury crimes and certain sexual offenses, (3) prior sentences
for certain drug offense based on certain former mandatory minimums, and
(4) a pending trial or sentencing for a charge that would cause the
defendant to become ineligible if convicted or sentenced. See 61 Pa.C.S. §
4503(2)-(6).
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defendant had a prior felony-one burglary conviction. Id. The defendant
appealed, and this Court affirmed. Id. We noted that the record did not
support the trial court’s finding that the defendant had a prior record. Id.
Nevertheless, we concluded the defendant’s present conviction for felony-
one burglary rendered him ineligible for the RRRI program.4 Id. (citing
Commonwealth v. Cullen-Doyle, 133 A.3d 14 (Pa. Super. 2016)).
The defendant appealed to the Pennsylvania Supreme Court arguing
that Section 4503(1) was not “intended to encompass a first-time, single-
count offender.” Id. The Supreme Court granted allowance of appeal, and
the defendant asserted that if the General Assembly intended to preclude
such offenders from RRRI-eligibility, it could have used broader language in
Section 4503(1) to encompass any conviction involving violent behavior.5
Id. The defendant further suggested that excluding first-time offenders
would undermine the program’s goals of offering offenders “a second chance
to become law abiding citizens” and relieving taxpayers of some of the
burdens of “warehousing offenders[.]” Id. (citation omitted) The
Commonwealth responded that the phrase “history of present or past violent
behavior” was sufficiently broad to disqualify an offender based on a single
4 The parties in Cullen-Doyle agreed that felony-one burglary established
“violent behavior.” Cullen-Doyle, 164 A.3d at 1240.
5 Appellant raises a similar argument in this appeal. Appellant’s Brief at 29.
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violent crime. Id. Alternatively, the Commonwealth asserted that a remand
was necessary to clarify the defendant’s prior record. Id. at 1241-42.
The Pennsylvania Supreme Court vacated this Court’s order, holding
that a “single, present conviction for a violent crime does not constitute a
history of violent behavior.” Cullen-Doyle, 164 A.3d at 1244. The Court
noted that the phrase “history of present or past violent behavior” in Section
4503(1) “could be read . . . to allow for the word history to encompass a
single, present offense[, or] to expressly authorize the inclusion of the
present offense in consideration of whether there is an overall history,
comprised of more than one offense.” Id. at 1242 n.2. The Court concluded
that the Section 4503(1) was “materially ambiguous” because “the word
‘history’ ordinarily concerns past events and can refer to a pattern of
behavior” and proceeded to construe the intent of General Assembly in light
of the purposes of RRRI. Id. at 1242.
The Cullen-Doyle Court first noted the RRRI program’s express
purpose was to encourage eligible offenders to participate in the program
and reduce the likelihood of recidivism. Id. (discussing 61 Pa.C.S. §
4504(b)). The Court recognized a “commonly accepted corollary . . . that
first-time offenders are usually more amenable to reform than inmates who
have persisted in criminal conduct.” Id. (footnote omitted). In this light,
the Court concluded that the General Assembly “sought to offer greater
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reform opportunities for first-time offenders than repeat offenders.” Id. at
1243.
Second, the Court analyzed the consequences of the divergent
interpretations of the RRRI-eligibility requirements. Id. The Court
concluded that “broadly construing” Section 4503 to find a defendant
ineligible based on “a single instance of ‘violence’” would be “so stringent
that a large number of individuals who could potentially reform” would be
prevented from participating in the program. Id. Such a construction would
diminish the program’s “potential utility.” Id. (footnote omitted). The Court
recognized that Section 4503 excludes individuals based on discrete factors,
such as conviction for enumerated offenses. Id.; see also note 3, supra.
Because those discrete factors did not include burglary, the Court found apt
the principle of statutory interpretation that the “inclusion of specific matters
. . . implies the exclusion of other matters.” Cullen-Doyle, 164 A.3d at
1243 (citation omitted). The Court thus inferred that the General Assembly
“did not intend for all crimes of violence to be disqualifying in and of
themselves.” Id. at 1244.
Lastly, having found ambiguity in the phrase “history of present or
past violent behavior” the Cullen-Doyle Court applied the “rule of lenity” to
bolster its conclusion that a “single, present conviction for a violent crime
does not constitute a history of violent behavior.” Id. 164 A.3d at 1244.
The Court emphasized that “any ambiguity surrounding the meaning of the
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word ‘history’ should be resolved in favor of those seeking admission into
the program.”6 Id.
The specific holding of Cullen-Doyle—that a defendant’s “single,
present” conviction does not render the defendant ineligible for the RRRI
program—is not dispositive of the issue raised in the instant appeal, i.e., the
effect of a past conviction for a crime of violence. Nevertheless, the Court’s
reasoning in Cullen-Doyle persuades us that a single conviction for felony-
one burglary does not render Appellant RRRI-ineligible. As noted in Cullen-
Doyle, the phrase “history of present or past behavior” is ambiguous, and
an overly broad reading of the phrase would undermine the purposes of the
statute by unduly restricting access to the program with the potential to
reform.7 Moreover, the General Assembly’s election not to designate
burglary among numerous discrete factors disqualifying a defendant from
6 Although the Cullen-Doyle Court concluded that the defendant’s single
present conviction did not render him ineligible for the RRRI program, the
Court found that “the need for clarification concerning [the defendant’s]
prior record may now have renewed salience . . . .” Id. at 1244. The Court
noted that this Court previously denied the parties’ joint motion for remand
to determine the defendant’s prior record and whether, as the trial court
suggested, the defendant had a prior conviction for felony-one burglary. Id.
at 1241, 1244. The Pennsylvania Supreme Court, therefore, remanded the
case to this Court to resolve any further issues before remanding to the trial
court. Id. at 1244.
7 Additionally, eligibility for the RRRI program does not create a right to be
paroled on the expiration of the RRRI minimum sentence. Rather, release
on a RRRI sentence is contingent on the defendant’s successful completion
of the program as well as a discretionary decision by the Board of Probation
and Parole.
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RRRI implies the exclusion of a single conviction for burglary as a per se
disqualifying crime of violence. Lastly, we must apply the rule of lenity to
resolve the ambiguity in section 4503(1) in favor of eligibility. Applying this
reasoning to the present case, we hold that a single, past conviction for
felony-one burglary does not disqualify a defendant from eligibility in the
RRRI program.
Accordingly, we conclude that the trial court erred in finding that
Appellant’s single, past conviction for burglary rendered him ineligible for the
RRRI program under section 4503(1). Thus, we vacate the judgment of
sentence and remand for reconsideration of Appellant’s eligibility for the
RRRI program.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for a new sentencing hearing to determine Appellant’s eligibility of
the RRRI program. Jurisdiction relinquished.
Judge Panella Joins the Memorandum.
Judge Shogan Notes Dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2017
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