Commonwealth v. Edwards

• Decision Date: 12 June 2013
• Citation: 2013 PA Super 142,71 A.3d 323
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Calvin EDWARDS, Appellant.
• Court: Pennsylvania Superior Court

71 A.3d 323

2013 PA Super 142

COMMONWEALTH of Pennsylvania, Appellee

v.Calvin EDWARDS, Appellant.

Superior Court of Pennsylvania.

Submitted May 20, 2013.

Filed June 12, 2013.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Daniel L. Blanchard, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., PANELLA, J., and COLVILLE, J.^*

OPINION BY STEVENS, P.J.

Calvin Edwards (hereinafter “Appellant”) appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on December 16, 2009, at which time he was sentenced to an aggregate term of forty-two and one-half (42 1/2) years to eighty-five (85) years in prison after he was found to be in violation of the terms of his probation. Upon our review of the record, we affirm.

In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the sentencing court detailed the troubling facts and procedural history in the instant matter, and we incorporate its summary by reference herein. See Sentencing Court Opinion, filed April 1, 2010, at 1–9.¹

On August 19, 2009, Appellant appeared before the sentencing court for a probation violation hearing after he was discharged from Benchmark Behavioral Health Systems (hereinafter “Benchmark”).² Following the hearing, the sentencing court found Appellant to be in violation of his probation, revoked his probation, and sentenced him to four consecutive terms of ten (10) years to twenty (20) years in prison for one count each of Rape, Robbery, Kidnapping and Involuntary Deviate Sexual Intercourse. He also received a consecutive term of two and one-half (2 1/2) years to five (5) years in prison for Possessing Instruments of Crime.³

Appellant filed a timely post-sentence motion on August 28, 2009, and the sentencing court scheduled a hearing thereon for December 16, 2009. In an Order entered on September 11, 2009, the sentencing court vacated Appellant's sentence and ordered that Appellant be returned to county custody and held on detainer until his motion to reconsider was heard.

A hearing was held on December 16, 2009, at which time the defense offered Ms. Gillian Blair, Ph.D., as an expert in the field of forensic psychology specifically relating to juveniles. Dr. Blair testified she had an opportunity to evaluate Appellant twice, once in December of 2006 and again in December of 2009. She also reviewed the records of his progress and treatment while at Benchmark. N.T., 12/16/09, at 19–20. Though Dr. Blair admitted that the records revealed Appellant had “a lot of behavioral problems through 2008 and 2009” while at Benchmark, she believed that he had been making some slow, steady progress and beginning to accept responsibility for his behavior until February 2009, when his behavior regressed after he learned of the death of his father. Id. at 21–22. Specifically, she stated that “when I saw him just two weeks ago, there was a complete about-face and [ ] he accepted full responsibility for his behavior.” Id. at 80. She also said that she “didn't think the records are clear about all of his behavioral problems” but stated they did clearly indicate “[h]e had some significant problems.” Id. at 26. Among the problems Dr. Blair mentioned were that he was posturing, threatening, noncompliant, and intimidating to some of the younger children, and that he failed to take things seriously. She also noted he engaged in what he called “sexual horseplay” with another boy. Id. at 26–27.

Dr. Blair further explained Appellant, one of five children, had parents who struggled with mental illness. His father, now deceased, had had a cocaine addiction, and his siblings suffered from serious medical and psychiatric problems. Appellant himself had been diagnosed at a young age with learning disabilities and ADHD. Id. at 29–30. Dr. Blair concluded that the difficulty in the assessment of risk and rewards and in managing emotion along with an increase in risk-taking and trouble with cognition and decision-making which characterized Appellant's behavior at Benchmark are behaviors of a “typical adolescent.” Id. at 41.

On cross-examination, Dr. Blair acknowledged that the attempted rape of October 20, 2006, and the actual rape of October 25, 2006, to which Appellant admitted were not normal adolescent behavior and placed him in a category that was “maybe not the most severe subgroup” of delinquent behavior. Id. at 43. She also agreed that Appellant either at that time or in the past fit the DSM–IV criteria ⁴ for conduct disorder. Id. at 47. Dr. Blair agreed that since he was thirteen years old, Appellant consistently had been in a placement facility which was either a juvenile program, a group home, a residential treatment facility, a very specific sex offender program, or a county prison or state correctional institution. Id. at 52–53.

The Commonwealth questioned Dr. Blair concerning Appellant's extensive violent and sexual behaviors at these institutions, as well as the two incidents that occurred in October of 2006. Dr. Blair admitted she was not aware of the details pertaining to several of these occurrences. Id. at 53–62. She disagreed with Dr. Zakireh's report of 2006 wherein he had indicated a diagnosis of paraphilia could not be totally ruled out at that time to the extent that she did not deem Appellant's attacks of the women could fall into the category of a carefully planned out assault. Id. at 74–77. She also believed the report was biased and/or incomplete because it was prepared without Dr. Zakireh having had any contact with Appellant. Id. at 78.

Nevertheless, Dr. Blair admitted that Benchmark conducted an informed, clinical assessment of Appellant after two years of treatment which placed him in the highest category of risk for violence and in some cases indicated “not that a sexual criminal behavior may occur, but rather that a sexual criminal behavior will occur in the next seven years if [Appellant] is released into the community.” Id. at 95. Dr. Blair also was reminded that at the Megan's Law hearing held before the sentencing court, Dr. Ziv testified that though she had never stated as much in court before, she believed “not that [Appellant] was likely to commit an offense, but that he will commit another offense.” Id. at 96.

After hearing testimony and argument of counsel, the sentencing court indicated on the record that it typically attempts to find creative ways not to impose mandatory sentences ⁵ and to provide second chances to a defendant when they are available. Id. at 119. Following a detailed explanation which spanned seven pages of the transcript, the sentencing court denied Appellant's Motion to Reconsider Violation of Probation Sentence and reinstated the sentence of forty-two and one-half (42 1/2) to eighty-five (85) years in prison which it had imposed on August 19, 2009. N.T., 12/16/09, at 119–125.

Appellant filed a timely Notice of Appeal on December 18, 2009. The trial court did not order, and Appellant did not file, a statement pursuant to Pa.R.A.P. 1925(b). The sentencing court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on April 1, 2010.

In his brief, Appellant raises three questions for our review:

1. Did not the sentencing court violate the requirements of § 9771(c) of the Sentencing Code when, after revoking his probation, it sentenced [A]ppellant to a period of total confinement where: a) he had not been convicted of or charged with a new crime, b) the record did not demonstrate any likelihood that he would commit a new crime if not incarcerated, and c) incarceration was not essential to vindicate the authority of the court?

2. Was not the lower court's imposition of a forty-two and one-half (42 1/2) to eighty-five (85) year sentence of incarceration on a juvenile for technical violations of probation, manifestly excessive and an abuse of discretion where the court failed to give individualized consideration to [A]ppellant's personal history, rehabilitative needs or background, and without explaining how, as a matter of law, this sentence was the least stringent one adequate to protect the community and to serve the rehabilitative needs of the [A]ppellant?

3. Did not the trial court err and abuse its discretion by sentencing [Appellant] to an excessive period of incarceration?

Brief for Appellant at 4. We will consider these issues in turn.

Appellant first claims that the sentencing court violated 42 Pa.C.S.A. § 9771(c)⁶ when sentencing him to a total period of incarceration after revoking his probation. Appellant argues he had not been convicted of or charged with a new crime and that the record did not demonstrate either that he would likely commit a new crime if he is not incarcerated or that incarceration was necessary to vindicate the sentencing court's authority. Brief for Appellant at 11. Appellant maintains that “his problems and his resulting technical violations of probation flowed more from immaturity rather than criminal conduct” and “the court at sentencing made no finding that [Appellant] was likely to commit a new crime.” Id. at 17. Appellant further asserts Appellant's sentence is effectively a life sentence, which under the circumstances presented, is expressly prohibited by 42 Pa.C.S.A. § 9771(c). Id. We review this issue under the following, well-settled standard of review:

In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). Our standard of review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 455 Pa.Super. 499, 501, 688 A.2d...