Com. v. Koren

• Decision Date: 25 August 1994
• Citation: 435 Pa.Super. 499,646 A.2d 1205
• Parties: COMMONWEALTH of Pennsylvania v. Stacy KOREN, Appellant.
• Court: Pennsylvania Superior Court

Page 1205

646 A.2d 1205

435 Pa.Super. 499

COMMONWEALTH of Pennsylvania v. Stacy KOREN, Appellant.

Superior Court of Pennsylvania.

Submitted June 27, 1994.

Filed Aug. 25, 1994.

Glenn M. Goodge, Easton, for appellant.

Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.

Before McEWEN, CIRILLO and CERCONE, JJ.

CIRILLO, Judge:

Stacy Koren appeals from the judgment of sentence entered by the Court of Common Pleas of Lehigh County, following her plea of nolo contendere to hindering apprehension or prosecution. ¹ We affirm.

On July 21, 1992, Larry Martin, Koren's boyfriend, ² pled guilty to forty-eight counts of burglary, one count of attempted burglary, two counts of theft, and one count of receiving stolen property. At the conclusion of his guilty plea, Martin was ordered to surrender himself for sentencing to the Lehigh County Sheriff's Office, no later than August 10, 1992. Martin failed to appear on August 10th, and a manhunt ensued for his apprehension.

On August 17, 1992, a detective contacted Koren and notified her that Martin was a fugitive and wanted by the police. At that time, Koren indicated to the detective that she was Martin's girlfriend. Sometime after August 17, 1992, Koren conspired with her sister to rent a hotel room for Martin under her sister's name. Martin stayed in this hotel room until he was apprehended by the police on September 4, 1992.

Koren and her sister were then arrested and charged with hindering apprehension or prosecution (felony three) ³ and criminal conspiracy. ⁴ On October 18, 1993, both Koren and her sister entered pleas of nolo contendere to hindering apprehension or prosecution as a misdemeanor of the second degree. ⁵

After considering the pre-sentence report and Koren's testimony, the trial court, on December 15, 1993, sentenced Koren to two years probation. Two conditions were placed on Koren's probation. First, Koren was to perform 100 hours of community service at a charitable organization. Second, Koren was to have no contact with her boyfriend, Martin, or his family during her two years of probation.

On December 27, 1993, Koren filed a motion to reconsider sentence, requesting a modification of sentence to allow contact with Larry Martin during the period of her probation. Koren's motion was denied by the sentencing court. Koren presents two issues for our review:

(1) Whether the sentencing court abused its discretion by not adequately considering Appellant's history and character when forming its probation order?

(2) Whether the sentencing court abused its discretion in imposing as a condition of probation, that Appellant refrain from contact with her boyfriend?

When the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 420 Pa.Super. 484, 490, 617 A.2d 8, 11 (1992). Two criteria must first be met before a challenge to a judgment of sentence will be heard on the merits. See Commonwealth v. Cottam, 420 Pa.Super. 311, 346, 616 A.2d 988, 1005 (1992). First, an appellant must "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Pa.R.A.P. § 2119(f); Commonwealth v. Jones, 418 Pa.Super. 93, 99, 613 A.2d 587, 590 (1992). Second, an appeal will be granted only "where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code]." 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 20 (1987).

In the case at hand, Koren has set forth in her brief a concise statement of the reasons for her appeal. We must now determine whether Koren has presented a substantial question before we can turn to the merits of her argument.

The determination of whether a substantial question exists must be determined on a case-by-case basis. Commonwealth v. Hlatky, 426 Pa.Super. 66, 82, 626 A.2d 575, 583 (1993). It is only where an appellant can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. Tuladziecki, 513 Pa. at 515, 522 A.2d at 20; Hlatky, 426 Pa.Super. at 82, 626 A.2d at 583. A substantial question exists where an appellant advances a colorable argument that the sentencing judge's actions where either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Hlatky, 426 Pa.Super. at 82, 626 A.2d at 583; Jones, 418 Pa.Super. at 99-100, 613 A.2d at 590.

Koren contends that the sentencing court did not adequately consider her prior history and character. This court has repeatedly held that the mere assertion that the sentencing court failed to give adequate weight to sentencing factors does not raise a substantial question. Jones, 418 Pa.Super. at 100, 613 A.2d at 587; Commonwealth v. Mobley, 399 Pa.Super. 108, 115-16, 581 A.2d 949, 952 (1990); Commonwealth v. Smith, 394 Pa.Super. 164, 167, 575 A.2d 150, 151 (1990). Accordingly, we find that Koren's first contention does not raise a substantial question and deny her allowance of appeal from this aspect of her sentence.

Koren's second contention is that the condition placed on her probation, prohibiting contact with her boyfriend, is unreasonable because it unduly restricts her liberty. Koren claims that this condition of probation is contrary to 42 Pa.C.S.A. § 9754(b), ⁶ which only allows for reasonable conditions to be attached to probation orders. We find that Koren's argument presents a substantial question, and we now turn to the merits of her contentions.

Our standard when reviewing the merits of the discretionary aspects of a judgment of sentence is very narrow; this court will reverse only where an appellant can demonstrate a manifest abuse of discretion on the part of the sentencing judge. Hlatky, 426 Pa.Super. at 83, 626 A.2d at 584; Commonwealth v. Wright, 411 Pa.Super. 111, 114, 600 A.2d 1289, 1291 (1991). However, the sentence imposed must be "consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant." Moore, 420 Pa.Super. at 491, 617 A.2d at 12 (quoting Commonwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988)). When a sentence is within the guidelines, as it is in the present case, ⁷ we can only reverse the order where it is clearly unreasonable. 42 Pa.C.S.A. § 9781(c)(2); Moore, 420 Pa.Super. at 491, 617 A.2d at 12 (citing Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985)).

When reviewing a judgment of sentence, we must accord the decision of the sentencing judge great weight, because he or she is in the best position to view a defendant's character, defiance or indifference, and the overall effect and nature of the crime. Jones, 418 Pa.Super. at 101, 613 A.2d at 591. When formulating its order, the sentencing court must consider the nature of the criminal and the crime. Wright, 411 Pa.Super. at 115, 600 A.2d at 1292. The sentencing court should also consider the defendant's prior record, age, personal characteristics, and potential for rehabilitation. Cottam, 420 Pa.Super. at 346, 616 A.2d at 1006.

A probation order is unique and individualized. It is constructed as an alternative to imprisonment and is designed to rehabilitate a criminal defendant while still preserving the rights of law-abiding citizens to be secure in their persons and property. Commonwealth v. McBride, 289 Pa.Super. 396, 398, 433 A.2d 509, 510 (1981). When conditions are placed on probation orders they are formulated to insure or assist a defendant in leading a law-abiding life. 42 Pa.C.S.A § 9754(b); see Commonwealth v. Crosby, 390 Pa.Super. 140, 144, 568 A.2d 233, 235 (1990).

In the instant case, the Honorable Lawrence J. Brenner placed the no-contact condition on Koren's probation for rehabilitative purposes. While Judge Brenner does not specifically state that the condition is for rehabilitation, it is obvious from his comments during the sentencing hearing that the no-[435 Pa.Super. 506] contact condition was meant to assist Koren with her future as a law-abiding citizen. Our task is to determine whether the condition of probation that Koren have no contact with her boyfriend for two years was reasonable, because, as long as conditions placed on probation are reasonable, it is within a sentencing judge's discretion to order them. 42 Pa.C.S.A. § 9754(b).

Koren argues that the no-contact condition is unreasonable because it unduly restricts her liberty. However, a person placed on probation "does not enjoy the full panoply of constitutional rights otherwise enjoyed by those who [have] not run afoul of the law." McBride, 289 Pa.Super. at 399, 433 A.2d at 510 (quoting Barlip v. Penna. Board of Probation and Parole, 45 Pa.Commw. 458, 463, 405 A.2d 1338, 1340 (1979)). A probation order with conditions placed on it will to some extent always restrict a person's freedom. Id.

Pennsylvania's probation statute specifically allows for an order of probation to require that a defendant refrain from consorting with disreputable persons. 42 Pa.C.S.A. § 9754(c)(6). Pennsylvania's probation statute states that:

(c) Specific conditions.--The court may as a condition of its order require the defendant:

... (6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.

42 Pa.C.S.A. § 9754(c). It is undisputed that Koren's boyfriend, Martin, is a criminal and is currently in prison. Had it not been for her association with this disreputable person, Koren would not have been in trouble with the law. While the sentencing court can order a no-contact condition on probation, it can only do so when that condition is reasonably calculated to aid in the defendant's rehabilitation. 42 Pa.C.S.A. § 9754(b)....