J-S39016-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

TRACY ANN STEPHENSON

                        Appellant                  No. 1228 WDA 2016


           Appeal from the Judgment of Sentence April 11, 2016
               In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0002828-2014


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 26, 2017

     Tracy Ann Stephenson appeals from the judgment of sentence of

eighteen to forty years imprisonment that was imposed after she entered a

guilty plea to third-degree murder.      We reject her challenge to the

discretionary aspects of the sentence imposed and affirm.

     On November 19, 2014, Appellant was charged with homicide,

aggravated assault, and carrying an unlicensed firearm.      The following

events precipitated the filing of those charges.   On the day in question,

Altoona Police Officers Cornell Thompson and Erik Stirk were dispatched to

Appellant’s residence on Fifth Avenue, Altoona, to investigate a woman, who

was Appellant, standing outside covered in blood. While en route, Officers

Thompson and Stirk were informed that Appellant was not the victim, but,


* Retired Senior Judge assigned to the Superior Court.
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instead, that the victim, Appellant’s mother Barbara Elias, was inside.

Appellant’s daughter allowed the officers inside the residence, where they

discovered Ms. Elias seated on a couch.        She had blood on her face and

neck, and skull fragments and brain matter were located on the couch

behind Ms. Elias. The victim died from gunshot wounds to the back of the

head and neck.

      Appellant agreed to go to the police station for an interview.          After

being given and waiving her Miranda rights in writing, Appellant claimed

that her mother was harassing her, so she left the house, ran some errands,

and returned to find her mother dead.         Appellant asked to go outside the

police station in order to smoke a cigarette and talk with her girlfriend, Amy

Smith.

      Detective     Nichole   Douglas   accompanied    Appellant   outside,    and

Detective Douglas began to smoke a cigarette about six feet away from the

two other women. Appellant started hugging Ms. Smith and spontaneously

uttered, “I did it, I f   ing did it. Okay? ” N.T. Suppression Hearing, 8/25/15,

at 50. Ms. Smith motioned for Detective Douglas to come closer, and, when

the detective was about two feet away, Appellant said to Ms. Smith that “she

couldn’t take it anymore and said that she had hid the gun and said she did

it.” Id. at 51. Ms. Smith asked Appellant, “Why did you let it get this bad?

Why didn’t you talk to me about it?” Id. Appellant responded, “I tried. It

was either me or her.” Id. Appellant then told Detective Douglas that she

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“wanted to come clean. She said she had all intentions[, after talking to Ms.

Smith,] of telling the truth.” Id. at 52.

      Detective Douglas led Appellant back into the police station, where

Appellant again received and waived her Miranda rights.            At that point,

Appellant confessed to shooting her mother and contended that her mother

was poisoning her. Appellant stated that she used a gun that she kept in

her bedroom drawer to shoot Ms. Elias, ran errands, returned home, and

called 911. During the execution of a search warrant, police recovered a .32

caliber revolver from Appellant’s car.

      Appellant filed notice of intent to pursue an insanity defense.

Appellant was appointed an expert witness, Dr. Joseph Silverman, who

indicated   that   Appellant   suffered     from   a   mental   infirmity.   The

Commonwealth successfully sought permission to allow its own mental

health expert, Dr. Wayne D’Agaro, to evaluate Appellant.          Appellant then

filed a pretrial motion to suppress her inculpatory statements. That motion

was denied following two days of hearings.

      On January 13, 2016, Appellant entered a guilty plea to third degree

murder.     She proceeded to sentencing on March 18, 2016, where the

sentencing court had the benefit of a pre-sentence report.         Dr. Silverman

and Dr. D’Agaro testified. Dr. Silverman maintained that Appellant’s

delusional beliefs could be treated and that she could return to be a

productive member of society.        Dr. D’Agaro opined that there was no

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guarantee either that any treatment of Appellant’s disorder would be

effective or that she would not be violent in the future. The Commonwealth

adduced that Appellant had thirteen prison misconducts, some of which

included violent behavior.

      The matter was continued to a second sentencing hearing on April 11,

2016. The court heard closing remarks, and then recessed to examine the

pre-sentence report in the context of those remarks and to review various

exhibits introduced at sentencing. After offering a lengthy explanation for its

sentencing decision, the trial court imposed a standard-range sentence of

eighteen to forty years in jail.    Appellant filed a motion to modify her

sentence, which was denied.     This appeal followed.   Appellant alleges the

following:

      1. Whether the sentencing court committed an abuse of
      discretion by failing to incorporate Ms. Stephenson's delusional
      beliefs in its analysis of the nature of her actions?

      2. Whether the sentencing court committed an abuse of
      discretion by sentencing Ms. Stephenson to eighteen to forty
      years' incarceration without considering her rehabilitative needs?

Appellant’s brief at vi.

      As we observed in Commonwealth v. McLaine, 150 A.3d 70, 76

(Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to the

review of challenges to the discretionary aspects of a sentence as of right.”

Instead, to invoke our jurisdiction involving a challenge to the discretionary

aspects of a sentence, an appellant must satisfy the following four-part test:

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       (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).

Id.

       Instantly,   Appellant     filed   a    timely   appeal,   and   preserved   her

contentions in her motion for reconsideration of sentence. Additionally, her

brief contains a Pa.R.A.P. 2119(f) statement. Appellant maintains that the

sentencing court “failed to consider [Appellant’s] individual circumstances,

and to take her rehabilitative needs into account when fashioning her

sentence.” Appellant’s brief at xi. That statement continues, “Specifically,

Appellant believes the trial court misapplied the import of her delusional

disorder, and in effect, disregarded it in its entirety, without justification or

explanation.”     Id. (emphasis added).         An allegation that the court did not

consider a defendant’s rehabilitative needs raises a substantial question.

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010).1



____________________________________________


1
   We acknowledge that the Superior Court has issued conflicting decisions
as to what constitutes a substantial question, including whether a substantial
question is raised when the defendant claims that the court did not consider
mitigating factors. See Commonwealth. v. Dodge, 77 A.3d 1263, 1272
n.8 (Pa.Super. 2013) (en banc).




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Accordingly, Appellant has presented a substantial question, and we will

address the merits of her claim on appeal. We note that:

           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.

          When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the    defendant's   prior    criminal    record, age,   personal
      characteristics and potential for rehabilitation.

McLaine, supra at 75–76.

      The seminal case setting forth the parameters of the Superior Court’s

review of a sentence is Commonwealth v. Walls, 926 A.2d 957 (Pa.

2007). The Walls Court stressed the deferential nature of our examination

of any sentence, stating that the “sentencing court is in the best position to

determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.”     Id. at 961 (citation

and quotation marks omitted). Our Supreme Court noted that this Court’s

ability to review a sentence is constrained by 42 Pa.C.S. § 9781(c).         That

statute provides that we can vacate a sentence and remand for re-

sentencing only if we find: 1) that the court intended to sentence within the

guidelines but “applied the guidelines erroneously;” 2) a sentence was



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imposed within the guidelines “but the case involves circumstances where

the application of the guidelines would be clearly unreasonable;” or 3) “the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S. § 9781(c). “In all other cases the

appellate court shall affirm the sentence imposed by the sentencing court.”

Id.

      Since the present sentence was within the guidelines, we can reverse

only if application of the guidelines was clearly unreasonable.             While the

statute   does   not   contain   a   definition   of   what   renders   a   sentence

unreasonable, the Walls Court filled in that gap, stating: “‘unreasonable’

commonly connotes a decision that is ‘irrational’ or not guided by sound

judgment.” Id. at 963.      Additionally, § 9781(d) of the Sentencing Code

provides that when we review the record, we must have regard for:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Based upon the state of the record, we must reject Appellant’s claim

that the court did not take into account her delusional disorder when it

imposed its sentence.        Evidence was presented to the court about

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Appellant’s mental health issues during a sentencing hearing that spanned

two days.    The sentencing court specifically adjourned to re-consider the

pre-sentence report in light of defense counsel’s argument, which included

extensive discussion of Appellant’s mental health, delusional beliefs, and

psychosis. N.T. Sentencing Hearing, 4/11/16, at 17-18, 20, 21, 22, 25.

       Under the circumstances, we are required to reject the premise that

the trial court did not properly factor Appellant’s delusional beliefs into its

sentencing decision. Commonwealth v. Macias, 968 A.2d 773 (Pa.Super.

2009). Our Supreme Court has articulated that if “it can be demonstrated

that   the   judge   had   any   degree   of   awareness   of   the   sentencing

considerations,” the appellate courts must “presume . . . that the weighing

process took place in a meaningful fashion. It would be foolish, indeed, to

take the position that if a court is in possession of the facts, it will fail to

apply them to the case at hand.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988); accord Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa.Super. 2009) (relying upon Devers and stating “where the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed”).

       Herein, the sentencing court was cognizant of all the facts that

Appellant now relies upon in mitigation of her sentence. Appellant’s position

is nothing more than a complaint about how the sentencing court weighed

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her mental health problems.      The trial court offered extensive reasons for

the sentence imposed.      N.T. Sentencing Hearing, 4/11/16, at 28-35.          Its

discussion included an examination of Appellant’s psychosis and delusional

beliefs. Id. at 31-32. It credited the testimony of Dr. D’Agaro and decided

that a sentence of eighteen to forty years was necessary for the protection

of the public.

      Thus, it is clear that the court, contrary to Appellant’s first position, did

incorporate her delusional beliefs into its sentencing equation.        It merely

refused to conclude that her mental health issues warranted a mitigated

range sentence of six years in jail, as requested by Appellant.        This Court

does not have the authority to assign a different weight to a sentencing

factor, which is what Appellant is requesting this Court to do.           Macias,

supra.

      We also must reject Appellant’s second averment, which is that the

sentencing court did not consider her rehabilitative needs. Since the court

had the benefit of a pre-sentence report, we are required to presume that

her rehabilitative needs were considered. Devers, supra; Ventura, supra.

The fact remains that there was conflicting evidence as to whether Appellant

was capable of being rehabilitated, and the sentencing court was not

required to accept Dr. Silverman’s opinion on the subject.

      We now engage in the analysis required by 42 Pa.C.S. § 9781(d) and

Walls. Given the egregious nature of the offense, the findings of the court,

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its opportunity to view Appellant, and the fact that this sentence was in the

standard range, we cannot characterize the sentence as clearly irrational or

clearly unguided by sound judgment. Hence, we are compelled to affirm.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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