Com. v. Watson, E.

J-S63014-19

2020 PA Super 28

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC WATSON :
:
Appellant : No. 3627 EDA 2018

Appeal from the Judgment of Sentence Entered November 27, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003531-2015

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

OPINION BY GANTMAN, P.J.E.: FILED FEBRUARY 10, 2020

Appellant, Eric Watson, appeals from the amended judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

remand, based on bench trial convictions for one count each of robbery, theft,

receipt of stolen property (“RSP”), and simple assault.1 We vacate and

remand with instructions for resentencing.

The relevant facts and procedural history of this case are as follows. On

March 12, 2015, at approximately 8:00 p.m., Victim was walking home from

her daughter’s soccer game while texting on her cell phone. As Victim turned

a corner, she noticed Appellant sitting on a step. Shortly after noticing

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(iv), 3921(a), 3925(a), and 2701(a),
respectively.
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Appellant, Victim sensed he was following her and felt him breathing on her

neck. Victim turned around and asked Appellant what he wanted. In

response, Appellant asked Victim what she had. Victim noticed a woman

pulling out of a nearby parking spot and turned to run toward the woman. As

Victim moved away, Appellant grabbed the wallet around Victim’s wrist, broke

the metal clip, and the wallet fell to the ground. Appellant took Victim’s wallet

and fled.

Following a bench trial on February 18, 2016, the court convicted

Appellant of the charged offenses. With the benefit of a pre-sentence

investigation (“PSI”) report, the court sentenced Appellant on June 7, 2016,

to three (3) to six (6) years’ incarceration plus four (4) years’ probation for

robbery and a consecutive twelve (12) months’ probation for simple assault.

Appellant filed a direct appeal challenging the judgment of sentence. On May

16, 2018, this Court vacated and remanded for resentencing because the

sentencing court had erred when it considered at sentencing evidence not of

record relating to Appellant’s high school education to discount mitigating

evidence of Appellant’s intellectual challenges.

Upon remand, Appellant filed a recusal motion, which the trial court

denied. Appellant also requested a new PSI report for resentencing, which

the court denied as well. Following a resentencing hearing on November 14,

2018 and November 27, 2018, the court sentenced Appellant to five (5) to ten

(10) years’ incarceration for robbery and a consecutive term of two (2) years’

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probation for simple assault. Appellant timely filed post-sentence motions on

December 3, 2018. The trial court denied both motions on December 11,

2018.2 Appellant timely filed a notice of appeal on December 13, 2018. On

January 15, 2019, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant

timely complied on January 26, 2019.

Appellant raises five issues for our review:

WHETHER THE SENTENCING COURT IMPOSED AN
ILLEGALLY VINDICTIVE SENTENCE AND VIOLATED THE DUE
PROCESS CLAUSES OF THE PENNSYLVANIA AND UNITED
STATES CONSTITUTIONS WHEN IT IMPOSED AN
INCREASED SENTENCE ON APPELLANT FOLLOWING
APPELLANT’S SUCCESSFUL APPEAL OF HIS INITIAL
SENTENCE?

WHETHER THE SENTENCING COURT ERRED IN DENYING
APPELLANT’S MOTION FOR A PRE-SENTENCE
INVESTIGATION PRIOR TO RE-SENTENCING WHERE THE
ORIGINAL PRE-SENTENCE INVESTIGATION WAS
CONDUCTED NEARLY THREE YEARS PRIOR TO THE RE-
SENTENCING?

WHETHER THE SENTENCING COURT ERRED IN “DOUBLE-
COUNTING” APPELLANT’S PRIOR CRIMINAL CONVICTIONS
AND JUVENILE ADJUDICATIONS BY RELYING ON THOSE
CONVICTIONS AND ADJUDICATIONS IN MAKING ITS
DECISION TO DEPART FROM THE GUIDELINE RANGE
DESPITE THE FACT THAT APPELLANT’S PRIOR RECORD WAS
ALREADY FACTORED INTO THE GUIDELINES?

WHETHER THE SENTENCING COURT ABUSED ITS
DISCRETION BY IMPOSING AN EXCESSIVE AND CLEARLY
UNREASONABLE SENTENCE FAR IN EXCESS OF ANYTHING
____________________________________________

2 The court amended the sentencing order to allow Appellant credit for time
served.

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CALLED FOR BY THE SENTENCING GUIDELINES?

WHETHER THE SENTENCING COURT ERRED IN DENYING
THE MOTION FOR RECUSAL PRIOR TO RESENTENCING
WHERE THE TOTALITY OF THE CIRCUMSTANCES
DEMONSTRATED THAT THE SENTENCING COURT COULD
NOT SENTENCE APPELLANT IN A FAIR MANNER?

(Appellant’s Brief at vii-viii).

In issues one through four, Appellant contests his new sentence in

various ways. Appellant first argues the court improperly imposed an

increased aggregate sentence upon resentencing, where neither the trial

court’s opinion nor the record from the resentencing hearing contained any

additional information to justify the imposition of an increased sentence.

Appellant contends the increased sentence is the result of judicial

vindictiveness, which the sentencing court failed to rebut.

Appellant further alleges the sentencing court erred when it denied

Appellant’s motion for a new PSI report and resentenced him based only on

information available from the first PSI/sentencing. Appellant insists the

original PSI was inadequate for resentencing purposes, because it was three

years old and contained no information regarding how Appellant has

responded to incarceration.

Appellant next avers the sentencing court improperly considered factors

already included in the sentencing guidelines, such as his criminal record and

the nature of the offenses. Appellant maintains the sentencing court imposed

an above-guideline sentence due to the court’s improper “double-counting” of

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these elements.

Appellant additionally claims the court failed to consider certain

mitigating factors, such as his difficult childhood and his learning difficulties.

Appellant emphasizes the court’s failure to weigh these mitigating factors

properly resulted in an excessive and unreasonable sentence on remand. For

these reasons, Appellant concludes the sentence should be vacated and his

case remanded for resentencing. As presented, Appellant challenges the

discretionary aspects of his sentence. See Commonwealth v. Ali, 197 A.3d

742, 763 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 207 A.3d 911 (2019)

(stating claim trial court failed to order new PSI report upon remand for

resentencing challenges discretionary aspects of sentencing);

Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc)

(explaining claim of judicial vindictiveness constitutes challenge to

discretionary aspects of sentencing); Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003) (stating claim that court considered improper

factors at sentencing refers to discretionary aspects of sentencing);

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super.

1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim

that court did not properly consider mitigating factors challenges discretionary

aspects of sentencing).

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Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspect

of 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).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans,

901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727, 909 A.2d

303 (2006)). Generally, objections to the discretionary aspects of a sentence

are waived if they are not raised at the sentencing hearing or raised in a

motion to modify the sentence imposed at that hearing. Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831

A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial question

as to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617, 621-22

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(2002); Pa.R.A.P. 2119(f). “The requirement that an appellant separately set

forth the reasons relied upon for allowance of appeal ‘furthers the purpose

evident in the Sentencing Code as a whole of limiting any challenges to the

trial court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert.

denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting

Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en

banc) (emphasis in original)).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Anderson, supra at 1018. 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.” Sierra, supra at 913 (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

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a substantial question will be found “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which 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….”

Id. Nevertheless, “[a]n allegation that a sentencing court ‘failed to consider’

or ‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate.” Cruz-Centeno, supra at 545

(quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995),

appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining

allegation that sentencing court failed to consider specific mitigating factor

generally does not raise substantial question; claim that sentencing court

ignored appellant’s rehabilitative needs failed to raise substantial question).

“Where [PSI] reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18

(1988).

A [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
pre-sentence report, the sentencing court’s discretion
should not be disturbed. This is particularly true, we repeat,

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in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.

Id. at 102, 546 A.2d at 18. See also Commonwealth v. Tirado, 870 A.2d

362 (Pa.Super. 2005) (explaining if sentencing court has benefit of PSI, then

law presumes court was aware of relevant information regarding appellant’s

character and mitigating factors).

Nevertheless, this Court has held that a claim of judicial vindictiveness

in resentencing does raise a substantial question for our review.

Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa.Super. 2010), appeal

denied, 608 Pa. 654, 12 A.3d 752 (2010). An assertion that the court failed

to order a new PSI report upon remand for resentencing also presents a

substantial question. Ali, supra. Furthermore, a claim that the court double-

counted factors already considered in the sentencing guidelines raises a

substantial question. Commonwealth v. Goggins, 748 A.2d 721, 732

(Pa.Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920

(2000).

Instantly, Appellant has properly preserved his sentencing issues for

appeal. His bald allegation of excessiveness, however, does not warrant

review. See Mouzon, supra. Likewise, Appellant’s claim that the sentencing

court failed to consider certain mitigating factors does not pose a substantial

question. See Berry, supra; Cruz-Centeno, supra. On the other hand,

Appellant’s claims concerning judicial vindictiveness, double-counting, and the

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lack of a new PSI report appear to raise substantial questions for our review.

See Ali, supra; Tapp, supra; Goggins, supra.

Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:

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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id.

Nevertheless, “[a] sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence or specifically reference the statute in

question….” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.

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2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record

as a whole must reflect the sentencing court’s consideration of the facts of the

case and the defendant’s character. Id. “In particular, the court should refer

to the defendant’s prior criminal record, his age, personal characteristics and

his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert

denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general

rule: “It is impermissible for a court to consider factors already included within

the sentencing guidelines as the sole reason for increasing or decreasing a

sentence to the aggravated or mitigated range.” Commonwealth v.

Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006) (emphasis added). Trial

courts can use information included in the guidelines to supplement other

peripheral sentencing information. Id. For example, courts can consider a

defendant’s prior convictions in conjunction with past unsuccessful attempts

to rehabilitate, or the fact that the new crimes violated parole, or that the

defendant’s ongoing criminal record demonstrated a threat to public safety or

a general disregard for private property, even though the guidelines take into

account those prior convictions. See Commonwealth v. Simpson, 829 A.2d

334, 339 (Pa.Super. 2003).

Generally, a presumption of vindictiveness arises if the court imposes a

harsher sentence upon resentencing. Robinson, supra at 22. “[T]he

presumption of vindictiveness may be rebutted where the trial court places on

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the record non-vindictive reasons for the increased sentence, such as

‘objective information concerning identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding.’”

Ali, supra at 762 (emphasis added). “[T]he presumption could also be

overcome by other forms of objective information or legitimate sentencing

concerns that were not presented to or considered by the trial court at the

original sentencing hearing.” Id. The presumption of vindictiveness,

however, will not be rebutted without objective information justifying the

sentencing increase. Commonwealth v. Barnes, 167 A.3d 110, 124

(Pa.Super. 2017) (en banc).

Additionally:

Pennsylvania Rule of Criminal Procedure 702(A)(1) provides
that a sentencing judge may, in his…discretion, order a PSI
report. Further, if the sentencing court fails to order a PSI
report, it shall place on the record its reasons for dispensing
with the report. We have explained that the essential
inquiry is…whether the sentencing court was apprised of
comprehensive information to make the punishment fit not
only the crime but also the person who committed it.
Moreover, technical non-compliance with the requirements
of [Pa.R.Crim.P. 702] may be harmless when the trial court
elicits sufficient information during the colloquy to substitute
for a PSI report, thereby allowing a fully informed decision.

Ali, supra at 763 (internal citations and quotation marks omitted).

Instantly, with the benefit of a PSI report, the court originally sentenced

Appellant on June 7, 2016, to 3 to 6 years’ incarceration plus 4 years’

probation for robbery and a consecutive 12 months’ probation for simple

assault. Appellant appealed the judgment of sentence, and this Court vacated

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and remanded for resentencing because the sentencing court had erred when

it considered at sentencing evidence not of record relating to Appellant’s high

school education to discount mitigating evidence of Appellant’s intellectual

challenges.

Upon remand, Appellant filed a motion for recusal, which the court

denied. Appellant also requested a new PSI, which the court denied. In

preparation for resentencing, the court stated it had reviewed all of the

information from both sentencing proceedings including the mitigating factors

related to Appellant’s intellectual limitations and his completion of three

betterment programs while incarcerated. With that information in mind, the

court still imposed an increased sentence of 5 to 10 years’ incarceration on

the robbery charge plus a consecutive term of 2 years’ probation for simple

assault. As the court imposed a harsher sentence on remand, a presumption

of vindictiveness arose. See Robinson, supra.

Specifically, when delivering Appellant’s sentence on remand, the court

listed everything it considered in fashioning the new sentence, including, inter

alia, Appellant’s criminal history, the original PSI report, Appellant’s difficult

childhood, and Appellant’s remorse. The court had considered all of these

factors previously in crafting Appellant’s original sentence, however. The only

“new” information the court considered was the mitigating evidence

concerning Appellant’s intellectual challenges and his successful completion of

three programs while incarcerated. Significantly, the court failed to articulate

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any new factors to rebut the presumption of vindictiveness arising from the

imposition of the increased sentence, which included an increased term of

incarceration for robbery and an increased probationary period for simple

assault for an overall rise in the total period of supervision. See Ali, supra;

Barnes, supra. The court failed to identify any post-sentence conduct to

justify an increased sentence, or any sentencing concerns it had not already

considered before the original sentencing. See Ali, supra. There is a logical

inconsistency inherent in the court’s decision to impose an increased sentence

after considering as new factors only mitigating circumstances. The court

refused to order a new PSI and made no statement disavowing any vindictive

purpose in resentencing Appellant to a harsher sentence than originally

imposed. The court had no new testimony or victim impact statement. See

id. Therefore, the court failed to rebut the presumption of vindictiveness

arising from the increased sentence. See id.; Barnes, supra. Thus, we must

vacate the new judgment of sentence and remand for resentencing based on

this ground.

In his fifth issue, Appellant argues the court should have granted

Appellant’s motion for recusal based on the court’s alleged predisposition,

animus, and lack of impartiality in Appellant’s case. Appellant contends the

court’s decision to impose a greater sentence on remand demonstrated its

refusal to follow this Court’s instructions and exhibited pure retaliation against

Appellant for his success on appeal. He avers the court erred in denying

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Appellant’s motion for recusal. Appellant concludes this Court should vacate

the judgment of sentence and remand, with an order for a different judge to

preside over resentencing. We agree.

“Where a jurist rules that he…can hear and dispose of a case fairly and

without prejudice, that decision will not be overturned on appeal but for an

abuse of discretion.” Commonwealth v. White, 557 Pa. 408, 426, 734 A.2d

374, 384 (1999).

In reviewing the denial of a recusal motion to determine
whether the judge abused his discretion, we recognize that
our judges are honorable, fair and competent. Based on
this premise, where a judge has refused to recuse himself,
on appeal, we place the burden on the party requesting
recusal to establish that the judge abused his discretion.

* * *

The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion, within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused when the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill will.

Commonwealth v. King, 576 Pa. 318, 322-23, 839 A.2d 237, 239-40 (2003)

(internal citations and quotation marks omitted). Our Supreme Court stated:

“In general, a motion for recusal is properly directed to and decided by the

jurist whose participation the moving party is challenging.” Id. at 322, 839

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A.2d at 239. “It is the burden of the party requesting recusal to produce

evidence establishing bias, prejudice or unfairness, which raises a substantial

doubt as to the jurist’s ability to preside impartially.” White, supra at 426,

734 A.2d at 383-84 (1999).

The inquiry is not whether a judge was in fact biased against
the party moving for recusal, but whether, even if actual
bias or prejudice is lacking, the conduct or statement of the
court raises an appearance of impropriety. The rule is
simply that disqualification of a judge is mandated whenever
a significant minority of the lay community could reasonably
question the court’s impartiality.

Commonwealth v. Druce, 796 A.2d 321, 327 (Pa.Super. 2002), affirmed,

577 Pa. 581, 848 A.2d 104 (2004).

Further, disqualification motions are not limited to judges
who preside over trials, but extend to other proceedings,
including sentencing. Our Supreme Court has explained:

[T]he largely unfettered sentencing discretion
afforded a judge is better exercised by one without
hint of animosity toward appellant…. [A] defendant is
entitled to sentencing by a judge whose impartiality
cannot reasonably be questioned.

Id.

The sentencing decision is of paramount importance in our
criminal justice system, and must be adjudicated by a fair
and unbiased judge. This means, a jurist who assess[es]
the case in an impartial manner, free of personal bias or
interest in the outcome. Because of the tremendous
discretion a judge has when sentencing, a defendant is
entitled to sentencing by a judge whose impartiality cannot
reasonably be questioned. A tribunal is either fair or unfair.
There is no need to find actual prejudice, but rather, the
appearance of prejudice is sufficient to warrant the grant of
new proceedings.

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Commonwealth v. Rhodes, 990 A.2d 732, 748 (Pa.Super. 2009), appeal

denied, 609 Pa. 688, 14 A.3d 827 (2010) (quoting Druce, supra at 588, 848

A.2d at 108) (internal citations and quotation marks omitted)). “In turn, once

the judge decides whether to preside over the case, that decision is final and

the cause must proceed.” King, supra at 322, 839 A.2d at 239.

Nonetheless, where a court denies an appellant’s motion for recusal on

remand but then demonstrates appellant’s stated grounds for recusal at

resentencing, this Court should vacate the judgment of sentence and order a

different judge to impose a new sentence on remand. Commonwealth v.

Bernal, 200 A.3d 995 (Pa.Super. 2018) (“Bernal III”) (ordering remand and

recusal where appellant filed recusal motion citing concerns of judge’s biased

sentencing of sex offenders, judge denied motion, and court then resentenced

appellant to same statutory-maximum sentence; reasonable observer might

question judge’s impartiality and ability to impose individualized sentence on

appellant; judge appeared to have made up her mind prior to sentencing

hearing and arrived at hearing with detailed written statement defending her

sentencing practices concerning sex offenders prior to re-imposing previously

vacated sentence; judge also attacked defense counsel’s advocacy on

appellant’s behalf in Rule 1925(a) opinion). Compare Commonwealth v.

Whitmore, 590 Pa. 376, 912 A.2d 827 (2006) (holding Superior Court lacked

authority to order sua sponte that new judge be assigned to preside over

appellant’s resentencing proceedings where neither party sought original

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judge’s recusal and original judge had made no ruling regarding recusal).

In the present case, the court initially sentenced Appellant to 3 to 6

years’ incarceration plus 4 years’ probation for robbery and a consecutive 12

months’ probation for simple assault. Appellant appealed the judgment of

sentence, and this Court vacated and remanded for resentencing because the

court had erred when it considered at sentencing certain evidence not of

record, relating to Appellant’s high school education, which discounted to his

detriment the mitigating evidence of his intellectual challenges.

Upon remand, Appellant filed a motion for recusal, arguing the

sentencing judge would be incapable of considering the mitigating evidence

on remand without predisposition, animus, and partiality. The judge denied

the recusal motion and imposed an increased sentence of 5 to 10 years’

incarceration on the robbery charge and a consecutive term of 2 years’

probation for simple assault. The new sentence represented an overall

increase in incarceration and supervision. The court imposed this new

sentence without any fresh information or conduct to justify the sentencing

increase, thereby raising a presumption of vindictiveness, demonstrating the

court’s refusal to follow this Court’s instructions, and exhibiting pure

retaliation against Appellant for his success on appeal. Imposition of the

increased sentence without appropriate justification raised a reasonable

question about the court’s impartiality. See Druce, supra. Therefore, the

court abused its discretion in refusing to recuse. See King, supra.

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Accordingly, we vacate and remand with an order for a different judge to

impose a new sentence. See Bernal III, supra.

Appellant also argues in his brief that he received an illegal sentence

upon resentencing, where the court imposed a consecutive sentence on simple

assault because the simple assault and robbery offenses should have merged

for sentencing as the offenses arose from the same criminal act. Appellant

concludes the separate sentence for simple assault is illegal, must be vacated,

and his case remanded for resentencing. We agree.

Whether crimes merge for sentencing purposes implicates the legality

of the sentence, which this Court can raise sua sponte. Commonwealth v.

Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013). Therefore, our standard of

review is de novo and our scope of review is plenary. Id. Merger of sentences

is governed generally by Section 9765 of the Sentencing Code, which

provides:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only

way two crimes merge for sentencing is if all elements of the lesser offense

are included within the greater offense.” Commonwealth v. Coppedge, 984

A.2d 562, 564 (Pa.Super. 2009) (emphasis in original). Regarding merger,

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this Court has stated:

The preliminary consideration is whether the facts on which
both offenses are charged constitute one solitary criminal
act. If the offenses stem from two different criminal acts, a
merger analysis is not required. If, however, the event
constitutes a single criminal act, a court must then
determine whether or not the two convictions should merge.
In order for two convictions to merge: (1) the crimes must
be greater and lesser-included offenses; and (2) the crimes
charged must be based on the same facts. If the crimes are
greater and lesser-included offenses and are based on the
same facts, the court should merge the convictions for
sentencing; if either prong is not met, however, merger is
inappropriate.

Commonwealth v. Shank, 883 A.2d 658, 670 (Pa.Super. 2005), appeal

denied, 588 Pa. 758, 903 A.2d 538 (2006). This Court has further explained:

To determine whether offenses are greater and lesser-
included offenses, we compare the elements of the offenses.
If the elements of the lesser offense are all included within
the elements of the greater offense and the greater offense
has at least one additional element, which is different, then
the sentences merge. If both crimes require proof of at least
one element that the other does not, then the sentences do
not merge.

Commonwealth v. Johnson, 874 A.2d 66, 70 (Pa.Super. 2005), appeal

denied, 587 Pa. 720, 899 A.2d 1122 (2006) (internal citations omitted).

The Pennsylvania Crimes Code defines robbery, in relevant part, as

follows:

§ 3701. Robbery

(a) Offense defined.―

(1) A person is guilty of robbery if, in the course of
committing a theft, he:

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* * *

(iv) inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of
immediate bodily injury;

* * *

18 Pa.C.S.A. § 3701(a)(1)(iv). The Code defines simple assault, in relevant

part, as:

§ 2701. Simple assault

(a) Offense defined.―Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:

(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;

* * *

(3) attempts by physical menace to put another in fear
of imminent serious bodily injury;

* * *

18 Pa.C.S.A. § 2701(a)(1),(3). When arising out of the same criminal act, the

offenses of robbery and simple assault can merge for sentencing purposes, if

the elements of the simple assault offense are included in the robbery offense.

Commonwealth v. Jenkins, 96 A.3d 1055, 1062 (Pa.Super. 2014), appeal

denied, 628 Pa. 629, 104 A.3d 3 (2014).

Instantly, Appellant began following Victim as she walked home from

her daughter’s soccer game. Victim turned around and asked Appellant what

he wanted. In response, Appellant asked Victim what she had. As Victim

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moved away, Appellant grabbed the wallet around Victim’s wrist, broke the

metal clip, and the wallet fell to the ground. Appellant took Victim’s wallet

and fled. The offenses in this case arose from a single act.

During the original sentencing, and again on remand, the court levied

separate sentences for robbery and simple assault. As both convictions arose

from the same criminal act (the taking of Victim’s wallet), and the elements

of simple assault in this case are included in the robbery offense as charged,

simple assault was a lesser-included offense of robbery. See id.

Consequently, the convictions merged for sentencing purposes. Id.; 42

Pa.C.S.A. § 9765. Therefore, the court erred when it sentenced Appellant

separately for simple assault. Accordingly, we vacate the judgment of

sentence and remand for resentencing on this basis as well.

Based upon the foregoing, we hold the court erred in imposing an

increased sentence on remand without justification for the increased sentence.

See Ali, supra; Barnes, supra. We further hold the court demonstrated

grounds for recusal at resentencing. See Bernal III, supra. Finally, we hold

the court should have merged the simple assault and robbery convictions for

sentencing purposes. See Jenkins, supra. Accordingly, we vacate the

judgment of sentence for these several reasons and remand for resentencing

before a different judge.

Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/20

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