J-S44010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW HALL :
:
Appellant : No. 1619 EDA 2023
Appeal from the Judgment of Sentence Entered June 6, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004408-2020
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED MARCH 20, 2024
Appellant, Andrew Hall, appeals from the judgment of sentence entered
on June 6, 2022, following his guilty plea to promoting prostitution, unlawful
contact with a minor, sexual exploitation of children, statutory sexual assault,
and two counts each of trafficking in individuals and sexual abuse of children.1
For the reasons that follow, we affirm Appellant’s convictions, vacate
Appellant’s sentence, and remand this matter for the trial court to conduct a
hearing to determine whether Appellant is entitled to credit for time-served.
We briefly summarize the facts and procedural history of this case as
follows. On August 21, 2020, police responded to the Best Western Hotel in
Bensalem, Bucks County, Pennsylvania upon a report that a juvenile was
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5902(b)(1), 6318(a)(1), 6320, 3122.1(b), 3011(a)(1) and
(a)(2), and 6312(b)(1) and (c), respectively.
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engaged in prostitution. Officers located Appellant exiting a room at the hotel
and inside the room was the victim, a 15-year-old female who was five months
pregnant. Appellant’s two children, both under the age of four, were also
present. Police also discovered narcotics in the hotel room. The victim told
police that she had run away from home several months earlier and met
Appellant at a Motel 6 in Philadelphia, Pennsylvania. The victim claimed that
Appellant took photographs of her and recorded a video of her having sex with
Appellant, and Appellant posted the photographs and video to an online
advertisement for “dates.” Appellant used his cellular telephone to post the
advertisements and schedule the “dates.” The victim then began having
vaginal and oral sex for money at several area hotels. Appellant and the
victim shared a room, but Appellant would leave until the victim texted him
that she was finished having sex for money. The money Appellant collected
was then used to purchase hotel rooms, food, and narcotics. Initially, the
victim was hesitant to talk to the police about Appellant because she claimed
she was in a romantic relationship with him. Appellant, knowing the victim
was only 15 years old, admitted to police that he had sex with the victim and
recorded a video of them having sex, which he posted online.2 With consent,
the police examined Appellant’s cellular telephone and viewed numerous text
messages asking for “dates” with the victim.
____________________________________________
2 Appellant was 27 years old at the time of the crimes. See N.T., 6/6/2022,
at 26.
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On February 28, 2022, Appellant pled guilty to the aforementioned
charges. The trial court deferred sentencing for 90 days for the preparation
of a pre-sentence investigation report (PSI) and a report from the Sexual
Offenders Assessment Board (SOAB).3 On June 6, 2022, the trial court
sentenced Appellant to an aggregate term of 17 to 40 years of imprisonment.
The trial court also ordered Appellant to pay prosecution costs, undergo drug
and alcohol treatment, and avoid contact with the victim and her family. On
June 15, 2022, Appellant filed a motion for reconsideration. The trial court
denied relief by order entered on June 22, 2022. This appeal resulted.4
On appeal, Appellant presents the following issues5 for our review:
I. Did the trial court abuse its discretion in sentencing
Appellant to a term of total confinement of not less than 17
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3 Although the SOAB ultimately determined that Appellant was not a sexually
violent predator, he was still classified as a tier III sexual offender, requiring
lifetime registration. Appellant does not challenge that determination herein.
4 Appellant filed a notice of appeal on July 6, 2022. On August 2, 2022, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on August
22, 2022. On August 24, 2022, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a). This Court dismissed the appeal by order dated January
6, 2023, when counsel for Appellant failed to file an appellate brief. On March
27, 2023, Appellant filed a pro se petition pursuant to the Post Conviction
Relief Act, alleging counsel provided ineffective assistance. The trial court
appointed new counsel for Appellant and issued an order on May 30, 2023,
reinstating Appellant’s direct appeal rights nunc pro tunc. On June 22, 2023,
Appellant filed a notice of appeal. On June 23, 2023, the trial court ordered
Appellant to file a Rule 1925(b) concise statement. Appellant complied on
August 12, 2023. The trial court issued another opinion pursuant to Rule
1925(a) on July 14, 2023.
5 We have reordered the issues for ease of discussion and disposition.
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years, nor more than 40 years, as the court relied upon
uncharged and impermissible factors, the court departed
upwards from the top of the aggravated range of the
[sentencing] guidelines, on count 10, and imposed
consecutive sentences, all without appropriate justification
and cause[,] contrary to the Sentencing Code and the court
failed to appropriately weigh and consider mitigating
factors[?]
II. Is the sentence imposed by the trial court [] an illegal
sentence in that the court failed to provide time-credit to
the sentence from the date Appellant’s bail was set (August
21, 2020), [although bail was] not posted, to the date the
sentence was imposed (June 6, 2022), in violation of 42
Pa.C.S.[A.] § 9760[?]
Appellant’s Brief at vi (complete capitalization omitted).
First, Appellant contends that his aggregate sentence of 17 to 40 years
of imprisonment is excessive and an abuse of the trial court’s discretion. Id.
at 11-15. Appellant claims that the trial court relied upon impermissible
factors in sentencing him, including uncharged prison misconduct and
continued contact with the victim despite her consent. Id. at 11. Appellant
also contends that the trial court abused its discretion by sentencing him for
statutory sexual assault above the aggravated range of the sentencing
guidelines and also imposing consecutive sentences. Id. Finally, Appellant
suggests that “[t]he sentence imposed failed to consider, or at least provide
sufficient weight to Appellant’s mitigating factors which included Appellant’s
learning disability, [] his inability to read, his lack of an education, his inability
to financially support himself outside of engaging in prostitution, Appellant’s
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substance use/abuse disorder, and his acceptance of responsibility for his
crimes.” Id. at 15.
Appellant’s claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the
trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence). “Sentencing is the responsibility of the
trial court and we will not disturb the sentence unless there is a manifest abuse
of discretion.” Commonwealth v. Knox, 219 A.3d 186, 199 (Pa. Super.
2019) (citations omitted). “To establish a manifest abuse of discretion, the
appellant must show a misapplication of the law, or partiality, prejudice, bias,
or ill will that led to the unreasonable decision.” Id.
Moreover, pursuant to statute, an appellant does not have an automatic
right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, an appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. [708(E)];
(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
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Upon review, Appellant properly preserved his claim in a motion to
reconsider his sentence, filed a timely notice of appeal, and presented a
statement in his appellate brief that comports with the requirements of Rule
2119(f). Moreover, we have previously determined that a “challenge to the
imposition of [] consecutive sentences as unduly excessive, together with [a]
claim that the court failed to consider rehabilitative needs and mitigating
factors upon fashioning its sentence, presents a substantial question.”
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015); see also
Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006) (claim that
trial court relied on impermissible factors, such as uncharged criminal conduct,
raises substantial question). As such, we find Appellant’s claim presents a
substantial question for our review.
As stated above, we review a trial court’s sentence for an abuse of
discretion. The trial court must consider the relevant sentencing guideline
ranges, as well as “the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant.” Commonwealth v.
Coulverson, 34 A.3d 135, 144 (Pa. Super. 2011) (citation omitted); see also
42 Pa.C.S.A. § 9781(d) (when reviewing the record, an appellate court should
consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the opportunity of the sentencing court to
observe the defendant, including any presentence investigation, the findings
upon which the sentence was based, and the sentencing guidelines). “The
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court may deviate from the recommended guidelines [because they are]
merely one factor among many that the court must consider in imposing a
sentence” and may deviate “if necessary, to fashion a sentence which takes
into account the protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008) (citations omitted). “When a court
chooses to depart from the [sentencing] guidelines however, it must
demonstrate on the record, as a proper starting point, [] awareness of the
sentencing guidelines” and “must provide a contemporaneous written
statement of the reason or reasons for the deviation from the guidelines.” Id.
(internal citations and quotations omitted). Additionally, we note that
uncharged conduct “can be used as a sentencing factor only under
tightly-prescribed circumstances when there is evidentiary proof linking the
defendant to the conduct.” P.L.S., 894 A.2d at 130; see also
Commonwealth v. Losch, 535 A.2d 115, 122 (Pa. Super. 1987) (“Even long
after the offense has been committed, a defendant's conduct and attitudes
may reflect his potential for rehabilitation.”).
Finally, we have previously determined:
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.
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
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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, 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.
Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (internal
citations and brackets omitted).
Here, the trial court recited the applicable sentencing guidelines prior to
imposing Appellant’s sentence. See N.T., 6/6/2022, at 8-9. The trial court
also reviewed a PSI report prior to sentencing in this matter. Id. at 25-26.
The trial court further noted that Appellant was prohibited from contacting the
victim in this matter. Id. at 26. Eventually, because Appellant continued to
contact the victim from prison, the trial court “suspended [Appellant’s] phone
privileges and text privileges because he kept trying to contact her.” Id. at
27. The trial court also reflected on Appellant’s “unstable upbringing” as well
as his “history of drug and alcohol abuse.” Id. at 28. The trial court, however,
noted that Appellant lacked remorse, blamed the victim for the criminal
conduct, continued to contact her despite no contact orders, and did not
appreciate the gravity of the offenses committed. Id. at 30-31. As such, the
trial court determined that its sentence was necessary to protect the
community and Appellant’s “significant” need for rehabilitation. Id. at 31.
In its subsequent opinion, the trial court determined:
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In the case at bar, put simply, Appellant took sexual advantage of
an underage girl that was homeless and pregnant and trafficked
her for his own personal gain while his infant and four-year old
child were in the room. Appellant, the only adult involved,
completely disregarded these minors' safety and well-being and
put them in positions with consequences that may affect them for
the rest of their lives. When imposing sentence, [the trial c]ourt
considered all the factors set forth in the Sentencing Code,
including the protection of the public, the gravity of the offense,
the history, character, condition and rehabilitative needs of
Appellant and the sentencing guidelines and concluded that a
substantial term of incarceration was required. These
considerations were explicitly placed on the record and are
discussed below.
First, [the trial c]ourt looked at Appellant's own testimony. At his
sentencing hearing, Appellant stated that he "tried to stop her.
She just wanted to keep doing it." Appellant seriously suggested
to [the trial c]ourt that it was [the v]ictim's fault that she was
prostituted and chalked his behavior up to being "in love." Yet, at
that same hearing, Appellant also admitted that [the v]ictim never
asked him to post the pictures; he posted them of his own volition,
despite knowing she was underage and that the conduct was not
only illegal, but also objectively wrong.
Second, [the trial c]ourt examined the materials written by
professionals regarding Appellant. The SOAB [r]eport stated that
Appellant exhibited "predatory behavior" and is highly likely to
reoffend with future criminal activity. It noted antisocial
personality traits, but the evaluator did not feel that he had
enough information to give a formal diagnosis, which would have
made Appellant a sexually violent predator. The PSI [r]eport
expressed that he has a "pattern of female sexual exploitation"
and that "it appears his guilt is more related to being caught, not
for the turmoil and stress he has caused his victim .... He seems
unaware of the depth of her suffering as a result of being his
victim." The PSI [r]eport recommended an aggravated sentence
totaling no less than fifteen (15) to no more than thirty (30) years
in a state correctional institution.
Third, [the trial c]ourt assessed Appellant's behavior. While in the
Bucks County Correctional Facility awaiting trial and sentencing,
Appellant incurred six misconducts for contraband, theft, fighting,
and disobeying direct orders. He also violated direct [o]rders from
[the trial c]ourt, [m]agisterial [d]istrict [j]udge[, and another trial
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court judge] which directed Appellant to have no contact with [the
v]ictim. Appellant attempted to call [the v]ictim over 1,500 times
and successfully reached her 364 times. When [the trial c]ourt
suspended Appellant's phone privileges and he could no longer
make calls from his own [prison] account, he circumvented the
system and continued to use the accounts of others to make the
calls. Appellant has repeatedly demonstrated that he does not
respect the court's authority, that he will manipulate the system,
and that he has no ability to follow rules or structure.
Lastly, [the trial c]ourt acknowledged Appellant's history.
Appellant had an unstable childhood with very little family
support. This led to Appellant engaging in criminal activity while
battling drug addiction and homelessness. Perhaps Appellant
would have made different choices had he not experienced this
tough upbringing.
Trial Court Opinion, 8/24/2022, at 6-8 (record citations omitted; brackets
supplied).
Upon review, we discern no abuse of discretion in sentencing Appellant
to an aggregate term of 17 to 40 years of incarceration. Initially, we note that
the trial court had the benefit of a PSI report and, therefore, we presume that
it was aware of the relevant information regarding Appellant’s character and
weighed those considerations along with mitigating statutory factors. The
trial court demonstrated its awareness of the sentencing guidelines and
provided reasons for deviation. Moreover, it was not error for the trial court
to consider Appellant’s conduct in prison. Appellant’s prison misconducts for
contraband, theft, fighting, and disobeying direct orders while incarcerated
were documented in the PSI report as reported from prison and, therefore,
evidentiary proof linked Appellant to the conduct. Ultimately, the trial court
properly determined that Appellant’s prison misconduct showed that he was
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not amenable to rehabilitation. The record also reveals that the trial court
examined the gravity of the offenses and the impact on the minor victim and
the community. Moreover, the trial court considered the mitigating factors
presented by Appellant. Hence, we conclude that Appellant’s sentence
properly considered the protection of the public, his rehabilitative needs, and
the gravity of the offenses as required. As such, Appellant’s discretionary
aspect of sentencing claim fails.
Next, relying upon 42 Pa.C.S.A. § 9760(1),6 Appellant contends that he
is entitled to credit for time spent in custody awaiting trial. Appellant’s Brief
at 6-8. More specifically, Appellant asserts that
he is entitled to credit for time [he spent in jail] between the
setting of bail [on] August 21, 2020, and sentencing [on] June 6,
2022.
The trial court acknowledges in its opinion that Appellant is
entitled to the requested time credit, assuming Appellant was not
detained [on another matter] and did not receive the credit for
time-served elsewhere. Appellant’s counsel has been unable to
identify any other cases in which Appellant received the time
credit from [August 21, 2020 through June 6, 2022], and thus,
[suggests] this Court should remand the matter back to the [trial
court] for resentencing and application of the credit to which
Appellant is entitled.
Id. at 7-8.
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6 Section 9760(1) provides, in pertinent part, that a defendant is entitled to
“[c]redit against the maximum term and any minimum term [] for all time
spent in custody as a result of a criminal charge for which a prison sentence
is imposed[.] Credit shall include credit for time spent in custody prior to trial,
during trial, pending sentence, and pending resolution of an appeal.” 42
Pa.C.S.A. § 9760(1). A defendant is given credit for time-served “that has
not been credited against another sentence.” 42 Pa.C.S.A. § 9760(4).
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“An attack upon the court's failure to give credit for time served is an
attack upon the legality of the sentence and cannot be waived.”
Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (citation
omitted). “Because the legality of a sentence presents a pure question of a
law, our scope of review is plenary, and our standard of review is de novo.”
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889 (Pa. Super. 2019)
(citation omitted). An illegal sentence must be vacated. Id. (citation
omitted).
Here, the trial court concedes that “[i]f Appellant was not detained on
any other matter and this time was not credited towards any other proceeding,
then [the trial court] agrees that Appellant is entitled to credit from August
21, 2020 to June 6, 2022 pursuant to 42 Pa.C.S.[A.] § 9760.” Trial Court
Opinion, 7/14/2023, at 9. The trial court noted, however, that it “no longer
had jurisdiction to amend Appellant’s sentence.” Id. As such, the trial court
acknowledges that a remand for resentencing is proper. Id. Likewise, “[t]he
Commonwealth concedes, as did the trial court, that [Appellant] did not
receive credit for time spent in custody which he would be entitled to pursuant
to [Section] 9760” and “[t]hus, it would appear that [Appellant] is entitled to
a remand for the limited purpose of determining the proper credit[.]”
Commonwealth’s Brief at 21.
As Section 9760 makes clear, Appellant is entitled to credit for any time
served in jail awaiting trial, so long as that time has not already been credited
against another sentence. From our review of this record, the trial court did
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not consider Appellant’s pretrial incarceration or contemplate credit for time-
served at all. See N.T., 6/6/2022, at 31-33. On this record, we are unable
to discern whether Appellant’s time in custody in this matter was credited
against another sentence. In view of the concessions offered by the trial court
and the Commonwealth, we agree that Appellant may be entitled to relief.
Accordingly, we vacate Appellant’s sentence and remand for the trial court to
conduct a limited evidentiary hearing to determine whether Appellant is
entitled to credit for time-served.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing consistent with this memorandum. Jurisdiction relinquished.
Date: 3/20/2024
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