Com. v. Bowen, 1551 EDA 2007.

• Decision Date: 21 May 2009
• Docket Number: No. 1551 EDA 2007.,1551 EDA 2007.
• Citation: 975 A.2d 1120,2009 PA Super 94
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Syvol BOWEN, Appellant.
• Court: Pennsylvania Superior Court

975 A.2d 1120

2009 PA Super 94

COMMONWEALTH of Pennsylvania, Appellee v. Syvol BOWEN, Appellant.

No. 1551 EDA 2007.

Superior Court of Pennsylvania.

Argued February 6, 2009.

Filed May 21, 2009.

William K. Sayer, Public Defender, Stroudsburg, for appellant.

Michael Rakaczewski, Asst. Dist. Atty., Stroudsburg, for Com., appellee.

BEFORE: BOWES, SHOGAN, and FITZGERALD,^* JJ.

OPINION BY FITZGERALD, J.:

¶ 1 Appellant, Syvol Bowen, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas. Specifically, Appellant challenges the propriety of his aggravated-range sentence, which he alleges was based primarily on his silence at sentencing, thus constituting a violation of his right to remain silent pursuant to the Fifth Amendment of the United States Constitution. We hold that a court may not consider a defendant's silence at sentencing as indicative of his failure to take responsibility for the crimes of which he was convicted. We further hold that silence at sentencing may not be the sole factor in determining a defendant's lack of remorse. However, we conclude that the trial court relied on numerous legitimate factors in imposing the aggravated-range sentence at issue. Accordingly, we affirm.

¶ 2 The Commonwealth charged Appellant with committing a rape and striking the victim in this case. Appellant chose not to testify. A jury acquitted Appellant of rape and sexual assault charges, but convicted him of simple assault, a second-degree misdemeanor, and terroristic threats, a first-degree misdemeanor. Pursuant to counsel's advice, Appellant remained silent during the sentencing process. The trial court sentenced Appellant on the simple-assault conviction to twelve to twenty-four months' imprisonment, which, although the statutory maximum, was also within the standard range of the sentencing guidelines.¹ The court also imposed a consecutive sentence of eighteen to forty-three months' imprisonment for the terroristic-threats conviction, which sentence fell within the aggravated range of the sentencing guidelines.² In justifying the aggravated-range sentence for terroristic threats, the trial court noted Appellant's poor employment history, long history of recidivism, and the victim's emotional trauma. The court also indicated that Appellant failed to show any remorse for his crimes or to take responsibility for them, even after the jury's decision. Appellant filed post-sentence motions, which the trial court denied. This timely appeal followed.

¶ 3 Appellant presents one issue for our review: "[Whether] a [s]entencing court in a criminal matter [may] treat a defendant's silence on the alleged incident as proof of a lack of remorse and then consider it as an aggravating factor?" Appellant's Brief at 4.

¶ 4 In reviewing the decision of the sentencing court, our standard of review is well-settled:

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. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc) (quotations and citations omitted). "A sentencing court may consider any legal factor in determining that a sentence in the aggravated range should be imposed." Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa.Super.2005) (citing Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230, 233 (1985)). "In addition, the sentencing judge's statement of reasons on the record must reflect this consideration, and the sentencing judge's decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion." Id. at 593.

¶ 5 Because he challenges the discretionary aspects of his sentence, Appellant has included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which he contends that his aggravated-range sentence was based on an unconstitutional factor. Appellant's claim raises a substantial question for our review, and therefore we may proceed to address its merits. See Stewart, 867 A.2d at 592 (finding substantial question raised when appellant alleged that sentencing court considered improper factors when sentencing in aggravated range).

¶ 6 Appellant argues that the United States Supreme Court has found unconstitutional any penalty assessed for a defendant's silence at sentencing. He contends that the trial court violated his Fifth Amendment rights by considering his silence as reflective of his lack of remorse. Appellant concludes that the trial court abused its discretion, requiring this Court to vacate his sentence. Although we agree in part with Appellant's constitutional claims, we disagree that resentencing is necessary.

¶ 7 Appellant relies primarily on the United States Supreme Court's decision in Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), specifically the Court's holding that factfinders may not hold a defendant's "silence against her in determining the facts of the offense at the sentencing hearing." Id. at 330, 119 S.Ct. 1307. However, as Appellant acknowledges, the Court explicitly passed on the question of "[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of [ ] downward adjustment." Id.

¶ 8 The trial court and Commonwealth respond that lack of remorse has long been a legitimate sentencing factor in Pennsylvania, citing to Commonwealth v. Ellis, 700 A.2d 948, 959 (Pa.Super.1997). The Commonwealth further cites our Supreme Court's decision in Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605 (2001), in which the defendant's lack of remorse was also at issue:

Appellant claims that the trial court should not have considered either his lack of remorse, since he maintained his innocence throughout the trial, or his failure to cooperate with the authorities.

* * *

We [ ] find that the court did not err in relying on Appellant's lack of remorse or lack of cooperation in fashioning a sentence outside of the Guidelines. Clearly, both Appellant's lack of contrition and Appellant's lack of cooperation with the authorities were signs of Appellant's character. The fact that Appellant did not show any remorse after a jury found beyond a reasonable doubt that he murdered [ ] a girl he once treated as a daughter, even if he maintained his innocence, was indicia of Appellant's social conscience. Commonwealth v. Miller, 724 A.2d 895, 902 (1999); Commonwealth v. Gallagher, 442 A.2d 820, 822 (1982). Similarly, Appellant's refusal to cooperate with the authorities on simple matters, such as stating his family history and health problems, was a gauge of Appellant's potential for rehabilitation. Roberts v. United States, 445 U.S. 552[, 100 S.Ct. 1358, 63 L.Ed.2d 622] (1980); Commonwealth v. Constantine, 478 A.2d 39, 40 (1984). Therefore, because both these factors were aspects of Appellant's character, the trial court properly considered them along with the offenses charged and the Sentencing Guidelines to form a sentence consistent with protecting the public, the gravity of the offense, and Appellant's rehabilitative needs. See [Commonwealth v.] Devers, 546 A.2d [12,] 18 [(1988)]. [W]e find that the trial court did not abuse its discretion in relying on Appellant's lack of contrition and lack of cooperation.

Id. at 303-04, 780 A.2d at 643-44. Finally, the trial court states, "Nowhere did we rely on the fact that [Appellant] remained silent during his pre-sentence interview, other than in the context of his complete lack of acknowledgement of responsibility and remorse for the crimes for which he was convicted." Trial Ct. Op. at 4.

¶ 9 Initially, we note our Supreme Court's recent pronouncement regarding this Court's review of the discretionary aspects of a sentence. In Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), our Supreme Court emphasized that the appellate court's role in reviewing the discretionary aspects of a sentence is to discern whether the sentencing court abused its discretion. Id. at 564, 926 A.2d at 961. Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is "clearly unreasonable" based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is "unreasonable." 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. Walls, supra at 567-68, 926 A.2d at 963 (quoting 42 Pa.C.S. § 9781(d)). The Walls Court specifically admonished that the weighing of factors under 42 Pa.C.S. § 9721(b) was exclusively for the sentencing court, and an appellate court could not substitute its own weighing of those factors. Id. at 573, 926 A.2d at 966. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c). Id. at 574-75, 926 A.2d at 967.

¶ 10 Walls involved sentences that fell outside of the sentencing guidelines, thereby subjecting the appellate courts to an analysis of whether the sentences were merely unreasonable pursuant to Section 9781(c)(3). Instantly, the individual sentences were within...