J-A23016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

LEON RAYMOND WALLS

                            Appellant                     No. 1488 WDA 2015


        Appeal from the Judgment of Sentence Entered August 13, 2015
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0007810-2014


BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED AUGUST 4, 2017

        Appellant, Leon Raymond Walls, appeals from the August 13, 2015

judgment of sentence imposing ten to twenty years of incarceration after a

jury found Appellant guilty but mentally ill of attempted homicide, two

counts     of   aggravated     assault,   unlawful   restraint,   terroristic   threats,

possession of an instrument of crime, and recklessly endangering another

person.1 We affirm.

        This case involves stabbings that occurred on March 25, 2013 on

Highland Avenue and in a Target department store in the East Liberty

neighborhood of Pittsburgh.          The record reflects that Jobe Wright, Mike
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 901, 2501, 2702, 2902, 2706, 907, 2705, respectively.
J-A23016-16


Turner, Roland Smith and Tyrique Walker were standing on Highland Avenue

when Appellant passed by and stabbed Wright. N.T. Trial, 6/2-4/15, at 68-

69, 88-89, 104-05. Appellant yelled, “he robbed me,” as he fled down the

sidewalk toward the nearby Target.           Id.   Turner and Wright pursued

Appellant by car after the stabbing, and Smith and Walker pursued him on

foot. Id. at 70, 90, 106. There was no prior relationship between Appellant

and Wright, Smith, Turner, or Walker. Id. at 71, 83-84.

         Smith found Appellant in the bathroom of Target changing his clothes.

Id. at 107. Smith confronted Appellant about the stabbing, and Appellant

said to Smith, “You trying to rob me.”        Id. at 108.   Smith then left the

bathroom and went outside the store to await the arrival of the police. Id.

at 109-110.      Meanwhile, Appellant encountered Turner and Wright in the

store.     Id. at 70.   Appellant, still brandishing a knife, threatened to kill

Turner. Id. at 72-73. Appellant hit Turner with a shopping cart and began

running through the store. Id. at 75-76. Turner handed the bat to Wright,

who pursued Appellant through the store. Id. at 93. Wright and Appellant

exchanged words, with Wright confronting Appellant about the stabbing and

Appellant yelling, “I’m not going to jail.” Id. at 94.

         Sharon Meadows, mother of victim Allison Meadows, heard Appellant

yelling, “You stole my wallet.” Id. at 122, 139. Appellant made his way to

the cash registers, where he took a hold of 16-year-old Allison, who was




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waiting in line with her mother and Chelsea Stokes.2        Id. at 124-26, 132.

Appellant yelled, “Y’all think I’m playing,” and “They’re robbing me.” Id. at

76, 95-96. Stokes testified that Appellant was also shouting, “Call the cops”

or “Call the police.” Id. at 140, 144. Appellant held Allison by the neck and

put the knife to her back and yelled, “I’m gonna stab her. I’m gonna stab

her.” Id. at 126.

       Turner testified that Appellant stabbed Meadows twice and attempted

to stab her a third time but another bystander prevented him. Id. at 76, 79.

Wright testified that “some young kid” jumped over the counter when

Appellant stabbed Meadows.            Id. at 97.   Sharon Meadows and Chelsey

Stokes testified that the stabbing occurred just after the bystander

intervened.    Id. at 128, 143.       Turner claimed he was ten feet away from

Appellant and Meadows when the stabbings occurred. Id. at 77. After the

bystander intervened, Turner attempted to wrestle Appellant to the ground.

Id. at 80. Smith, who had returned to the store, and Wright also “rushed”

Appellant. Id. at 112. Unable to wrestle Appellant to the ground, Turner

used a humidifier to hit Appellant in the head. Id. at 80. Wright testified

that he hit Appellant with the bat several times. Id. at 98. Smith suffered

three cut fingers and lost the use of two of them. Id. at 115, 118.

____________________________________________


2
   Stokes is the mother of Sharon’s grandson and Allison’s nephew. Sharon
and Allison were in town to visit Stokes’ five-year-old son, who underwent
transplant surgery in 2012. Id. at 132, 137-38.



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      City of Pittsburgh Police Officer Leroy Schrock responded to the scene,

observed the altercation among Appellant and the others, and ordered

everybody to stop.   Id. at 147-48. Target security identified Appellant as

the person with the knife, and Officer Schrock ordered Appellant to roll onto

his belly. Id. at 147-48, 159. Appellant had a bewildered look in his eyes

and did not comply.      Id. at 148, 158.      Appellant did not make any

aggressive moves toward Officer Schrock. Id. at 158-59. When Appellant

did not comply with Office Schrock’s order to roll over, Officer Schrock used

pepper spray on Appellant and then tried to force Appellant onto his belly.

Id. at 148-49. Back up arrived and used a Taser on Appellant, after which

Officer Schrock was able to handcuff him. Id. at 149.

      There is no evidence that Wright robbed Appellant before Appellant

stabbed him, nor is there any evidence that Wright and his companions were

attempting to rob Appellant when they pursued Appellant into Target. The

primary issue before us is whether Appellant, when he committed these

crimes, was legally insane and therefore incapable of forming criminal intent.

      The Commonwealth arrested Appellant and charged him with three

counts of attempted homicide, five counts of aggravated assault, one count

each of unlawful restraint and false imprisonment, two counts of terroristic

threats, one count of possession of an instrument of crime, four counts of




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recklessly endangering another person, and one count each of simple assault

and resisting arrest.3

       On June 4, 2014, a jury found Appellant guilty but mentally ill of the

following offenses: attempted homicide of Meadows, aggravated assault of

Wright and Meadows, unlawful restraint and false imprisonment of Meadows,

terroristic threats toward Meadows and Turner, possession of an instrument

of crime, and recklessly endangering another person (Meadows). The jury

found Appellant not guilty by reason of insanity of the attempted homicide of

Wright and recklessly endangering another person (Wright).4

       The jury found Appellant not guilty of attempted homicide of Walker,

aggravated assault of Walker, Turner, and Smith, recklessly endangering

another person (Walker and Smith), and resisting arrest.

       On August 13, 2015, the trial court imposed an aggregate 10 to 20

years of incarceration, the mandatory minimum. Appellant filed timely post-

sentence motions one day later.           The trial court denied the post-sentence

motions on August 28, 2015. This timely appeal followed.
____________________________________________


3
  18 Pa.C.S.A. §§ 901, 2501, 2702, 902, 903, 2706, 907, 2705, 2701, and
5104, respectively.
4
    We observe that “[i]nconsistent verdicts are proper so long as the
evidence is sufficient to support the convictions that the jury has returned.”
Commonwealth v. Trill, 543 A.2d 1106, 1111 (Pa. Super. 1988) (holding
that it was permissible for a jury to find the defendant guilty of one offense
and guilty but mentally ill of another, where the offenses were committed on
the same day), appeal denied, 562 A.2d 826 (Pa. 1989). Appellant does not
challenge the consistency of the verdicts.



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      Appellant presents three questions for our review:

      I.     Did the Commonwealth present insufficient evidence to
             convict [Appellant] on any count, as it failed to prove he
             possessed the required intent to commit any offense?

      II.    Are the verdicts of guilty but mentally ill against the weight
             of the evidence, as the conclusion of the Commonwealth’s
             expert was based on evidence not in the record, namely
             the disproven accusation that [Appellant] resisted arrest?

      III.   Is the statute governing the sentencing of those found
             guilty   but   mentally      ill, 42   Pa.C.S.A.   § 9727,
             unconstitutional, statutorily sanctioned cruel and unusual
             punishment and a violation of due process?

Appellant’s Brief at 7.

      We consider these arguments in turn. The following standard governs

our review of Appellant’s challenge to the sufficiency of the evidence:

            When evaluating a sufficiency claim, our standard is
      whether, viewing all the evidence and reasonable inferences in
      the light most favorable to the Commonwealth, the factfinder
      reasonably could have determined that each element of the
      crime was established beyond a reasonable doubt. This Court
      considers all the evidence admitted, without regard to any claim
      that some of the evidence was wrongly allowed. We do not
      weigh the evidence or make credibility determinations.
      Moreover, any doubts concerning a defendant’s guilt were to be
      resolved by the factfinder unless the evidence was so weak and
      inconclusive that no probability of fact could be drawn from that
      evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

      Appellant argues the evidence of his guilt is insufficient because he

was legally insane.       As noted above, the jury found Appellant guilty but

mentally ill on numerous counts. Section 314 of the Crimes Code governs


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J-A23016-16


the insanity defense, and distinguishes legal insanity from guilty but

mentally ill:

      (a) General rule.--A person who timely offers a defense of
      insanity in accordance with the Rules of Criminal Procedure may
      be found “guilty but mentally ill” at trial if the trier of facts finds,
      beyond a reasonable doubt, that the person is guilty of an
      offense, was mentally ill at the time of the commission of the
      offense and was not legally insane at the time of the commission
      of the offense.

      (b) Plea of guilty but mentally ill.--A person who waives his
      right to trial may plead guilty but mentally ill. No plea of guilty
      but mentally ill may be accepted by the trial judge until he has
      examined all reports prepared pursuant to the Rules of Criminal
      Procedure, has held a hearing on the sole issue of the
      defendant’s mental illness at which either party may present
      evidence and is satisfied that the defendant was mentally ill at
      the time of the offense to which the plea is entered. If the trial
      judge refuses to accept a plea of guilty but mentally ill, the
      defendant shall be permitted to withdraw his plea. A defendant
      whose plea is not accepted by the court shall be entitled to a
      jury trial, except that if a defendant subsequently waives his
      right to a jury trial, the judge who presided at the hearing on
      mental illness shall not preside at the trial.

      (c) Definitions.--For the purposes of this section and 42
      Pa.C.S. § 9727 (relating to disposition of persons found guilty
      but mentally ill):

                (1) “Mentally ill.” One who as a result of mental disease or
                defect, lacks substantial capacity either to appreciate the
                wrongfulness of his conduct or to conform his conduct to
                the requirements of the law.

                (2) “Legal insanity.” At the time of the commission of the
                act, the defendant was laboring under such a defect of
                reason, from disease of the mind, as not to know the
                nature and quality of the act he was doing or, if he did
                know it, that he did not know he was doing what was
                wrong.

      (d) Common law M’Naghten’s Rule preserved.--Nothing in
      this section shall be deemed to repeal or otherwise abrogate the

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J-A23016-16


       common law defense of insanity (M’Naghten’s Rule) in effect in
       this Commonwealth on the effective date of this section.

18 Pa.C.S.A. § 314.

       A defendant pleading an insanity defense bears the burden of proving

by a preponderance of the evidence that he did not know either the nature

and quality of the act he committed, or that what he was doing was wrong.

Commonwealth v. Sohmer, 546 A.2d 601, 604 (Pa. 1988); 18 Pa.C.S.A.

§ 315(a).

             Mental illness under our Crimes Code will not be permitted
       to eliminate the mens rea requirement for culpability for
       otherwise criminal conduct unless the M'Naghten test is met.
       Subsection 314(a) by its very terms accepts the fact that the
       offender is guilty of the offense charged, which necessarily
       implies that the mental illness did not preclude the mens rea
       required by the offense. It is equally apparent from section
       9727 that a finding of mentally ill was also not intended to
       mitigate the punishment to be meted out for the commission of
       the criminal act. 42 Pa.C.S. § 9727.[5] Equally as obvious is
____________________________________________


5
    Section 9727 provides:

       (a) Imposition of sentence.--A defendant found guilty but
       mentally ill or whose plea of guilty but mentally ill is accepted
       under the provisions of 18 Pa.C.S. § 314 (relating to guilty but
       mentally ill) may have any sentence imposed on him which may
       lawfully be imposed on any defendant convicted of the same
       offense.     Before imposing sentence, the court shall hear
       testimony and make a finding on the issue of whether the
       defendant at the time of sentencing is severely mentally disabled
       and in need of treatment pursuant to the provisions of the act of
       July 9, 1976 (P.L. 817, No. 143), known as the “Mental Health
       Procedures Act.”

       (b) Treatment.--

(Footnote Continued Next Page)


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J-A23016-16


      that it does not create a distinct offense nor does it provide an
      enhancement of an existing offense.

Id. at 606.

      Appellant’s      expert,    Dr.    Abhishek     Jain,   a   forensic   psychiatrist,

interviewed Appellant twice and reviewed relevant records. N.T. Trial, 6/2-

4/15, at 178.          Dr. Jain concluded Appellant was schizophrenic with

borderline intellectual functioning. Id. at 179, 181. Appellant suffered from

delusions of paranoia, which are a “fixed false belief in things that are not

actually happening in reality.”         Id.      Appellant believed the sun and moon

were not real, and he would “try to make sense of various numbers and

predict if the world was real or not.”              Id. at 179, 201.     Appellant also

suffered from hallucinations, including hearing a voice say, “Hate! Hate!

Hate!”   Id. at 180, 201. On the day in question, Appellant heard a voice




                       _______________________
(Footnote Continued)

      (1) An offender who is severely mentally disabled and in need of
      treatment at the time of sentencing shall, consistent with
      available resources, be provided such treatment as is
      psychiatrically or psychologically indicated for his mental illness.
      Treatment may be provided by the Bureau of Correction, by the
      county or by the Department of Public Welfare in accordance
      with the “Mental Health Procedures Act.”

      (2) The cost for treatment of offenders found guilty but mentally
      ill, committed to the custody of the Bureau of Correction and
      transferred to a mental health facility, shall be borne by the
      Commonwealth.

42 Pa.C.S.A. § 9727(a), (b).



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say, “Hate! Hate! Hate! They are going to kill you.” Id. at 199. Dr. Jain did

not believe Appellant was feigning his symptoms. Id. at 184-88.

     Appellant told Dr. Jain he did not remember the assault of Wright and

Allison Meadows. Id. at 195, 198. He remembered being in a dollar store

buying bug repellant before the assaults, and then he remembered waking

up in a pool of blood at Target. Id. at 195. On cross-examination, defense

counsel established that a behavior clinic report prepared shortly after

Appellant’s arrest indicated that Appellant affirmed that the stabbings

occurred.   Id. at 211.   Dr. Jain testified that it was difficult to determine

whether Appellant actually remembered the events in question or if he was

responding to what he had been told. Id.

     Dr. Jain noted that, during the incident, Appellant asked people to call

police and claimed he was being robbed. Id. at 202-03, 206-07. Appellant

had no obvious motive to stab Wright, as the two did not know each other.

Id. at 203. Dr. Jain described the stabbing of Allison Meadows as follows:

             But overall he was acting in a self-protective manner, and
     this, again in my opinion, in the belief that he was being
     harmed. Then when he grabbed Ms. Allison Meadows, again he
     initially grabbed her as a shield. Again to me this was a
     demonstration of him acting in a self-protective manner while he
     is very paranoid, very delusional, very fearful. So he grabs her
     as a shield in a self-protective manner and then only stabs her,
     from my understanding, after he was grabbed from behind. So
     he is in a highly agitated state. Then he gets grabbed from
     behind and then impulsively, almost as a reaction, sudden
     reaction, to being grabbed, then he stabs Ms. Meadows twice.




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Id. at 205.      Dr. Jain opined that Appellant “was most likely acting in a

manner that he did not think was wrong.”      Id. at 208.   Rather, Appellant

believed he was defending himself. Id. Dr. Jain opined that Appellant, in

light of his severe illness, did not know what he was doing was wrong. Id.

at 209, 218-19.

      Dr. Bruce Wright, a psychiatrist, testified for the Commonwealth. Dr.

Wright interviewed Appellant once and reviewed relevant records.      Id. at

257-58.   Appellant’s statements to Dr. Wright were consistent with the

statements he gave to Dr. Jain. Id. at 258. Specifically, Appellant claimed

he went to a dollar store to buy bug spray and did not recall anything until

after stabbing Allison Meadows at Target. Id. Appellant told Dr. Wright he

obtained the knife because people in his hallucinations kept telling him he

would be attacked. Id. at 259, 265. Dr. Wright diagnosed Appellant with

schizophrenia.    Id. at 260.   On whether Appellant knew his actions were

wrong, Dr. Wright testified:

             I was not—I am not able to say with a reasonable degree
      of certainty that [Appellant] knew his actions were wrong. It is
      my opinion that he lacked substantial capacity to understand the
      wrongfulness of his actions and to conform his behavior to the
      requirements of the law. So lacking substantial capacity is very
      different than knowing what you are doing is wrong. Knowing is
      absolute. You either know or you don’t know what you are
      doing. It is my opinion because of the psychiatric illness he
      lacked substantial capacity to know what he was doing was
      wrong.

Id. at 261. Dr. Wright opined that Appellant’s request for someone to call

the police was not consistent with knowledge of wrongdoing.      Id. at 262.

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J-A23016-16


Appellant’s statement, “I’m not going to jail,” on the other hand, indicated

some knowledge of wrongdoing.            Id.     That statement, combined with

Appellant’s resistance of arrest were, according to Dr. Wright, “two very key

points that illustrate a part of him knew what he was doing was wrong.” Id.

at 263. Dr. Wright declined to speculate whether his testimony would have

been the same if Appellant had not resisted arrest. Id. at 267-68.

      In summary, Dr. Jain testified that Appellant did not know what he

was doing was wrong, thus rendering him legally insane under § 314(c)(2).

Dr. Wright testified that Appellant lacked the substantial capacity to

understand the wrongfulness of his conduct, thus rendering him mentally ill

under § 314(c)(1), but capable of forming criminal intent.               Appellant

acknowledges Dr. Wright’s testimony, but argues that “[i]n the interests of

criminal justice, this Honorable Court must consider ‘lacking substantial

capacity’ to do something and ‘not having the capacity’ to do that same

thing, as one in the same. This is a linguistic distinction without a practical

difference.” Appellant’s Brief at 31.

      Appellant’s   argument    fails     because    it   contradicts   established

precedent. Put simply, a guilty but mentally ill conviction “does not negate

[an appellant’s] intent to commit a criminal act.”            Commonwealth v.

Rabold, 920 A.2d 857, 859 (Pa. Super. 2007) (quoting Commonwealth v.

Santiago, 855 A.2d 682, 701 (Pa. 1988)), affirmed, 951 A.2d 329 (Pa.

2008).   In Commonwealth v. Trill, 543 A.2d 1106 (Pa. Super. 1988),


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appeal denied, 562 A.2d 826 (Pa. 1989), this Court analyzed the distinction

between legally insane and mentally ill:

             Mental illness and insanity are qualitatively separate
      concepts.    The two definitions do, however overlap.          All
      individuals who are legally insane are also mentally ill. But the
      converse of the statement, that all persons who are mentally ill
      are also insane, is false. The difference is not quantitative. In
      other words, an extremely mentally ill individual may not be
      legally insane. A high degree of mental illness does not destroy
      mens rea. The difference is qualitative. Insanity definitions are
      attempts to isolate the element of mens rea that may be present
      in some illnesses but not in others. Because the two concepts
      involve qualitatively separate elements, they are not likely to
      cause undue confusion to juries.

Id. at 1128 (quoting Comment, Guilty But Mentally Ill:      An Historical and

Constitutional Analysis, 53 Urban L.J. 471, 478 (1978)).     More succinctly,

“[t]he mentally ill defendant in a murder case may exhibit only a limited

understanding that killing is generally agreed to be wrong; the legally insane

person has no idea whatsoever that killing is considered to be wrong.” Id.

at 1131 (Beck, J. concurring).

      Furthermore, the Trill Court noted that it is within the jury’s province

to determine the credibility and weight of conflicting psychiatric testimony.

Id. at 1112; see also, Rabold, 920 A.2d at 860. Given the plain language

of § 314(c)(1), the case law interpreting that section, and Dr. Wright’s

testimony, we conclude that the record contains sufficient evidence from

which the jury could reject Appellant’s insanity defense and find him guilty

but mentally ill.




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      Next, Appellant argues that the guilty but mentally ill verdicts are

against the weight of the evidence because Dr. Wright based his opinions on

his erroneous belief that Appellant resisted arrest.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

             This does not mean that the exercise of discretion by the
      trial court in granting or denying a motion for a new trial based
      on a challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of judgment,
      wisdom and skill so as to reach a dispassionate conclusion within
      the framework of the law, and is not exercised for the purpose of
      giving effect to the will of the judge.          Discretion must be
      exercised on the foundation of reason, as opposed to prejudice,
      personal motivations, caprice or arbitrary actions. Discretion is
      abused where the course pursued represents not merely an error
      of judgment, but where the judgment is manifestly unreasonable
      or where the law is not applied or where the record shows that
      the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted; emphasis in original).

      As explained above, Appellant did not comply when Officer Schrock

ordered him to roll onto his belly.     Officer Schrock used pepper spray on



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J-A23016-16


Appellant and another officer used a Taser before Officer Schrock was able

to handcuff Appellant. Nonetheless, Officer Schrock testified that Appellant

did not physically resist police. The Commonwealth charged Appellant with

resisting arrest, but the jury found him not guilty.

      Dr. Wright opined that Appellant had at least some capacity to

appreciate the wrongfulness of his conduct because he stated “I’m not going

to jail” and because he resisted arrest.       N.T. Trial, 6/2-4/15, at 262.

Appellant argues that his convictions of guilty but mentally ill, based largely

on Dr. Wright’s expert testimony, are against the weight of the evidence

because Dr. Wright incorrectly believed Appellant resisted arrest.

      We reject Appellant’s argument for two reasons. First, Dr. Wright did

not testify that Appellant’s resistance of arrest was a necessary condition for

his opinion. When defense counsel pressed this point on cross examination,

Dr. Wright declined to testify that his conclusion would change if Appellant

had not resisted arrest. Dr. Wright’s other key point—that Appellant said,

“I’m not going to jail,” did not depend on whether Appellant resisted arrest.

Second, the record contains evidence that Appellant failed to comply with

Officer Schrock’s orders, and that pepper spray and a Taser were necessary

before Officer Schrock could handcuff Appellant. Even though the jury found

Appellant not guilty of resisting arrest, Dr. Wright could reasonably rely on

Appellant’s noncompliance with a police order in support of his opinion that

Appellant had at least some capacity to appreciate the wrongfulness of his


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actions.    We cannot conclude that the trial court abused its discretion in

denying a new trial on this basis.

        Appellant’s final argument is that § 9727 is unconstitutional because it

permits cruel and unusual punishment.           Appellant acknowledges that this

Court in Commonwealth v. Yasipour, 957 A.2d 734 (Pa. Super. 2008)

held that § 9727 does not violate the state and federal constitutional

prohibitions of cruel and unusual punishment.            Appellant invites us to

reconsider    Yasipour    because    § 9727(b)(1)    provides   that   a   severely

mentally disabled defendant shall be provided treatment “consistent with

available resources,” and because no sufficient resources are available in this

case.    Appellant’s Brief at 44 (citing 42 Pa.C.S.A. § 9727(b)(1)).        At the

sentencing hearing, the trial court stated:

                I also want to state on the record that [defense counsel,
        the prosecutor] and myself have all spent a lot of time in the last
        week looking for and hoping to find an appropriate mental health
        facility where [Appellant] can be treated.

               It is my strong belief that [Appellant] is suffering from a
        serious mental illness, was at the day of the crime and still is.
        We have run up against a wall. If sent to Torrance, it would be,
        it is a very short-term stay. Although I am going to recommend
        that he be placed in a mental health facility, or in a facility that
        is a correctional facility with mental health sections, or pods, or
        whatever they call them.

N.T. Sentencing, 8/13/15, at 3. After Appellant spoke on his own behalf, the

trial court responded:

               I understand and I believe you.       I believe you were
        mentally ill on that date that this occurred. And I think you are
        still mentally ill.


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              Unfortunately, it’s very difficult for me to find someplace
       appropriate for you to go. The budgeting, and I know this isn’t
       your fault, but they have just taken away so many resources,
       and what happens is that people that are mentally ill, since they
       have nowhere else to go, end up in jail. I’m sorry for your
       situation.

              And I don’t think you meant to do it. I believe that.

Id. at 4-5.

       We are sympathetic to Appellant’s plight, but we are bound by the

precedential opinions of our Supreme Court and prior panels of this Court.6

As Appellant acknowledges, the Yasipour Court concluded that § 9727 does

not violate the prohibition on cruel and unusual punishment found in the

Eighth Amendment of the United States Constitution and Article 1, § 13 of

the Pennsylvania Constitution.         Furthermore, applicable statutory and case

law makes clear that a finding of guilty but mentally ill does not negate a

defendant’s intent, nor does it entitle the defendant to receive a different

sentence than any other person convicted of the same offense. 42 Pa.C.S.A.

§ 9727(a); Sohmer, 546 A.2d at 604; Santiago, 855 A.2d at 701; Rabold,

920 A.2d at 859.        Any change to the existing law must come from our

Supreme Court and/or the General Assembly.

       Finally, Appellant argues that § 9727 violates due process because it

provides no means by which an offender can challenge the sufficiency of

____________________________________________


6
  Furthermore, the power to create treatment resources and appropriate the
necessary funding rests with our General Assembly.



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J-A23016-16


available treatment resources prior to being stripped of his liberty.

Appellant’s Brief at 51. Appellant raised this argument for the first time in

his Pa.R.A.P. 1925(b) statement. Thus, he has waived it. Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”). In any event, this court has noted that after the

trial court finds an offender in need of treatment and commits him to the

Bureau of Corrections, as the trial court did here, it becomes the Bureau of

Corrections’   responsibility     to   formulate    an   adequate    treatment   plan.

Commonwealth v. Sematis, 555 A.2d 1347,1349-50 (Pa. Super. 1989).

The adequacy of the Bureau of Corrections’ treatment plan is not properly

before us on review of the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Strassburger joins this memorandum.

      Judge    Lazarus    files    a   concurring    statement      in   which   Judge

      Strassburger joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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