J. S26019/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
KRISTIN MICHELE ZIMMERMAN,                  :
                                            :
                          APPELLANT         :
                                            :     No. 1591 MDA 2016

              Appeal from the Judgment of Sentence May 18, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000356-2016

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED MAY 31, 2017

        Appellant, Kristin Michele Zimmerman, appeals from the May 18, 2016

Judgment of Sentence entered in the Lebanon County Court of Common

Pleas sentencing her to a term of eleven months to three years of

imprisonment. On appeal, Appellant challenges the discretionary aspects of

the trial court’s sentence. After careful review, we affirm on the basis of the

trial court’s Opinion.

        The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and

complete narrative of the facts and procedural history of this case, which we

adopt for purposes of this appeal. See Trial Court Opinion, filed 9/13/16, at




*
    Former Justice specially assigned to the Superior Court.
J. S26019/17


1-5. While we will not go into exhaustive detail here, some of the relevant

facts are as follows.

        Appellant has repeatedly appeared before the Honorable Bradford H.

Charles “on charges that were largely drug-related.” Id. at 1. Historically,

Judge Charles has permitted Appellant to seek drug and alcohol treatment in

lieu of incarceration.    However, Appellant has violated the terms of her

probation or parole on at least ten occasions, and continues to be arrested

on new charges. Id. at 2, 4.

        On April 6, 2016, Appellant entered an open guilty plea to one count of

Retail Theft graded as a third-degree felony.1 On May 18, 2016, Appellant

appeared before Judge Charles for sentencing, and “once again asked for

inpatient treatment in lieu of jail.”   Id. at 3.   In response, Judge Charles

reminded Appellant of her numerous prior appearances and requests for

leniency.     He then imposed a sentence of nine months to three years of

imprisonment, which was within the standard range of the sentencing

guidelines.

        In response, Appellant told Judge Charles to “[h]ave a great fucking

day.” Id. at 4; N.T., 5/18/16, at 12.

        Judge Charles then immediately vacated Appellant’s sentence, and

imposed a sentence of eleven months to three years of imprisonment, which

remained within the standard range of the sentencing guidelines. The trial

1
    18 Pa.C.S. § 3929(a)(1).



                                        -2-
J. S26019/17


court stated that Appellant’s use of an expletive towards the court evidenced

her “extreme lack of remorse” and provided further proof that she

considered the proceedings to be “a game to her.” Trial Court Opinion at 4.

     Appellant filed a Post-Sentence Motion, which the trial court denied.

     On September 23, 2016, Appellant timely filed the instant appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     On appeal, Appellant raises a single issue, “[w]hether the [trial court]

improperly modified [Appellant’s] sentence and imposed a harsher penalty

as a result of her use of profanity in the [c]ourtroom?” Appellant’s Brief at

4.

     We begin by noting that Judge Charles was authorized to vacate the

“oral sentence” he stated on the record and resentence Appellant to a longer

term. See 42 Pa.C.S. § 5505 (authorizing a court to “modify or rescind any

order within 30 days after its entry”). See also Commonwealth v. Unger,

462 A.2d 259, 260-61 (Pa. Super. 1983) (holding that where a trial judge

has not yet signed a sentencing order and entered it in the record, and the

defendant is still present in the courtroom, no sentence has been “imposed”

yet, and the trial court can therefore vacate the “initial pronouncement” and

impose an increased sentence without placing the defendant in double

jeopardy).

     Appellant does not dispute that the trial court was empowered to

“change its mind” about the sentence imposed.       Appellant’s Brief at 10.



                                    -3-
J. S26019/17


Instead, Appellant avers that her decision to tell the court to “[h]ave a great

fucking day” did not provide the sentencing court with any “new information

. . . that would warrant a penalty increase.”      Id.   Therefore, Appellant

argues, the sentence ultimately imposed by the trial court must have been

the result of “prejudice toward her based on past interactions.” Id. at 11.

      Appellant’s claim, that the trial court imposed a sentence based on

prejudice, is a challenge to the discretionary aspects of her sentence. See

Commonwealth v. Derry, 150 A.3d 987, 991, 995 (Pa. Super. 2016). A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.     Commonwealth v. Hunter, 768 A.2d

1136, 1144 (Pa. Super. 2001).          Prior to reaching the merits of a

discretionary sentencing issue:

         We conduct a four part analysis to determine: (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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

      In the instant case, Appellant filed a timely Post-Sentence Motion and

Notice of Appeal. Although Appellant did not include in her Brief a separate

Rule 2119(f) Statement, the Commonwealth has not objected to this defect



                                     -4-
J. S26019/17


and, thus, we decline to find that the defect is fatal. 2 Finally, a claim that

the trial court imposed a harsher sentence as a result of improper prejudice

raises a substantial question. See Derry, 150 A.3d at 995 (noting that “it is

axiomatic that an abuse of a sentencing court's discretion may be

demonstrated where the court exercised its judgment for reasons of

partiality, prejudice, bias or ill-will” and that such a claim, therefore, raises a

substantial question (quotation and citation omitted)).

      Accordingly, we turn to the merits of Appellant’s claim, mindful of our

standard of review:

      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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Judge Charles has authored a comprehensive, thorough, and well-

reasoned Opinion, citing to the record and relevant case law in addressing

Appellant’s claim. After a careful review of the parties’ arguments and the

record, we affirm on the basis of that Opinion, which clearly finds that the

2
 This Court “may overlook an appellant’s failure to comply with Rule 2119(f)
where the [Commonwealth] fails to object to the omission and a substantial
question is obvious from the appellant’s brief.”       Commonwealth v.
Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).



                                       -5-
J. S26019/17


trial court increased Appellant’s minimum sentence after her “outburst of

profanity” because it evidenced a “blatant disrespect” toward the trial court,

a lack of remorse, and additional evidence that Appellant’s request for

treatment was disingenuous “gamesmanship[.]”        Trial Court Opinion at 8.

We agree.

      The parties are directed to attach a copy of the trial court’s September

13, 2016 Opinion to all future filings.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2017




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                                     CRIMINAL DIVISION

COMMONWEAL TH OF                                                                NO. CP-38-CR-356-2016
PENNSYLVANIA

      v.
KRISTIN MICHELE ZIMMERMAN


APPEARANCES

Jared Hinsey, Esquire      For Commonwealth                                                                      of Pennsylvania
D~STRICT ATTORNEY'S OFFICE

Elizabeth     Judd, Esquire                     For Kristin                            Michele Zimmerman



OPINION BY CHARLES. J .. September 13, 2016

      is a Judge empowered                 to alter the sentence of a defendant who

directs the "f-word" at him at the end of a sentencing                                                             hearing?      Kristin

Michele Zimmerman (hereafter "DEFENDANT")                                               argues that we are not.                      For

reasons we will articulate           in more detail below, we disagree.


L     FACTS

      DEFENDANT             in this case is well known to the Court.                                                 For years, she

has appeared in court on charges that were                                                       largely drug-related.                On

practically      every     occasion       she    has appeared· in Court,                                               DEFENDANT

proffered impassioned pleas for mercy based upon the needs of her children

and her self-proclaimed           desire to obtain drug and alcohol treatment.
      On multiple past occasions,           this Court acquiesced to the requests            of

DEFENDANT.           We permitted her in lieu          of incarceration    to spend time at

treatment facilities      sponsored      by Bowling       Green,   Gaudenzia        and White

Deer Run.      We also afforded      her with countless opportunities         for outpatient

counseling.        On more than one occasion, this Jurist imposed                   sentences

upon DEFENDANT            that focused   upon o pporturutyand rehabilitation instead

of retribution.

       in response to the opportunities          afforded by the Court,        DEFENDANT

responded as follows:

       •     By lying on multiple occasions to her probation and parole officers;

       •     By failing to report as directed by. her probation and parole officers;

        e    By failing to report for mandatory drug testing;

        •    By attempting to pass false urine as her own;

        •    By committing     additional    crimes;     and

        •    By continuing to use heroin and other drugs, even while pregnant.

        On May 18, 2016,         DEFENDANT         was brought before        this Court as a

 result of Driving Under the influence           and yet another Retail Theft offense.

 According to the Affidavit of Probable Cause submitted to the Court at the

 time of sentencing, DEFENDANT               stole $515 worth of DVDs from Wal-Mart

 with the intent to sell those DVDs in order to raise                     money to purchase

 heroin.      The     DUI occurred       when   DEFENDANT          drove    while    under   the

 influence        of opiates   and   became      involved      in a one-vehicle       accident.
Because        of DEFENDANT's   prior history,   her standard     sentencing     range

permitted the Court to incarcerate her for up to 12 months.

         During her pre-sentence interview, DEFENDANT           was asked what she

likes to do in her free time. She responded:       "Besides     getting high?"    After

being advised      that her response was not appropriate,        she indicated     that

she "did not remember" what she did for fun because she "spends             all of her

time and money getting high."

         Vvhen DEFENDANT        appeared    m court for sentencing       on May i 8,

2016, we stated to her attorney:

         What you may not remember or that you may not know because
         you weren't with her at the time is how much I have attempted
         to work with her to get her help in the past. I remember· Kristin
         Michele Zimmerman.       I don't remember most people that stand
         before me. I remember her as a young lady that had a lot of
         potential. And just paid lip service to the need for treatment
          and used it as a game. I am done. I am done. You know, fool
          me once, shame on you. Fool me twice, okay. I'll take some of
          the blame, but still shame on you. Fool me three or four or five
          times, it's not happening.

 (N.T.   3).   Despite this rather gruff language, DEFENDANT        once again asked

 for inpatient treatment in lieu of jail.   She stated:

         I want an opportunity to go somewhere that is spiritually based.
         I was contemplating the U-Turn For Christ or the Salvation
         Army .... The problem I had with Guadenzia Ia prior treatment
         opportunity] is that there was no spiritual foundation there.
         There was nothing to build my house on. So if I didn't have a
         strong foundation, my house was bound to fail. I've shown that
          I can be clean for periods of time. Yes, I've stumbled.     I've
         fallen. A lot of people have. I am not using rehab as a game ....

          It's not a game. It's my life. My kids are· growing up without
          me. I'm so tired. There's nothing for me in Lebanon County.
          There's not.   There's no treatment.   i do everything I can,




                                            3
        Renaissance, twelve steps,                  NA.      I'm   completely         at your mercy.
        I have an open plea.

(N.T.   5-6).

        Before    imposing          sentence,       we reminded            DEFENDANT               that she had
                                                                                                                        I
violated    the terms of probation or parole                       on ten prior occasions.                We also       I
                                                                                                                        I
reminded        her    of the       flippant       comments         she     made       to the presentence               l

investigation         interviewer        and stated:         "And that's from someone                     who has
                                                                                                                            I
                                                                                                                            j



four children         and    has on multiple          occasions           come into court and tried             to

convince me that she deserves a break so that she can raise her children

and be with her children."                 (N.T.    7).

        Following           the    exchanges         outlined       above,         we initially       imposed       a

sentence of 9 months to 3 years in a state correctional                                facility.     We declared

DEFENDANT             to be RRRI eligibie.                After wishing       DEFENDANT              "good luck,"

 she responded          "Have a great fucking day."                    We then immediately                changed

 our sentence         to require that DEFENDANT                      spend 11 months in prison                 with

 an RRRI minimum                  of 8 months and 7 days.                  (N.T.     12).     In response      to a

 question       from defense             counsel    about why we changed                    our sentence,       the

 Court cited the expletive                uttered    by DEFENDANT                  toward the Court and we

 indicated      that her          comments         reflected       an extreme          lack of remorse          and

 additional      evidence that "this is a game to her."                     We also reminded everyone

 that   the     revised           sentence     we     imposed         remained          within      the   standard

 sentencing       range applicable             to DEFENDANT's               charge.         (N. T. 13).

           DEFENDANT               has     appealed         our     sentence.           The        sole   argument

 proffered       by DEFENDANT                in her Post-Sentence                  Motion     is that we lacked


                                                             A
the authority to modify the sentence we had originally imposed. We issue

th is Opinion in support of our belief that we did possess the authority to do

exactly what we did at the time of sentencing.


IL      DtSCUSSION

        As a general proposition,          sentencing     of a criminal    defendant    is

determined at the ·discretion of the Trial Judge.           See, e.g. Commonwealth

v. Moury, 992 A.2d 162 (Pa.Super.              2010).     "The rationale    behind such

broad discretion and concomitantly deferential standard of appeal review is

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." Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007).         As a general proposition,     when a Court's      sentence is within the

 standard       range prescribed by the Pennsylvania Sentencing Guidelines, it

 will    not     generally    be    deemed    excessive     or   unreasonable.         See

 Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super.                     1995). in fact,

 so-called       "standard    range sentences"   will only rarely be overturned on

 appeal.        See,   generally,   Commonwealth v. Wallace,          2015 WL6114473

 (Pa. Super. 2015);          Commonwealth v. Moury, supra; Commonwealth v.

 Wright, 600 A.2d 1289 (Pa. Super. 1991).               in fact, when a standard range

 sentence        is imposed, Pennsylvania's       Sentencing Code         does   not even

 require    a   judge to a rticuiate the reasons for the sentence imposed.         See 42

 Pa.C.S.A.       § 9721; Commonwealth v. Wright, supra.
          In this case, we imposed                    a sentence           upon DEFENDANT that was

within the standard sentencing range.                            In fact, the sentence             was not even

at the very top of the standard sentencing ran~e.                                   Moreover, we declared

DEFENDANT               to be eligible for the RRRI program that will enable her to

obtain a further             reduction of her minimum sentence.                             Had we originally

imposed the sentence we ended up imposing, DEFENDANT                                             would not even

have an argument that could be proffered on appeal.                                         However, because

we increased DEFENDANT's sentence by two months foliowing                                              her profane

comment in court, DEFENDANT                           argues on appeal that we erred.

           At common            law, a Court retains              the authority to "change its mind"

regarding a sentence provided that the change is articulated                                      promptly.          See,

e.g. Commonwealth v. Mackley, 380 Pa. 70 (Pa.                                          1955).       This    authority

was codified within Pennsylvania's Judiciary Code in 1976.                                             That statute

 states:

            Modification of Orders

            Except as otherwise provided or prescribed by iaw, a court upon
            notice to the parties may modify or rescind any order within 30
            days after its entry, notwithstanding the prior termination of any
            term of court, if no appeal from such order has been taken or
            allowed.1

 Section 5505 has been invoked in cases involving sentencing.                                               See, e.g.

 Commonwealth                    v.     Fleming,           480      A. 2d       1214       (Pa. Super.           1984);

 Commonwealth v. Kotz, 601 A.2d 811 (Pa.Super.                                       1992).




 1   This statute was patterned off of an earlier law related to rehearing of cases. See former 20 Pa.C.S. § 3521.
      The most analogous        case to the one at bar is Commonwealth             v.

Unger, 462 A.2d 259 (Pa.Super.       1983).       In Unger, the Defendant appeared

for a sentencing     hearing   on January 14,      1982.   At sentencing, the Court

verbally imposed a sentence of 6 months to 5 years.              The Defendant was

thereafter     told about his appellate   rights.      Following this   colloquy, the

Commonwealth        asked the Court to reconsider the sentence because the

Defendant had threatened the prosecuting             officer.   Thereafter, the Court

vacated its pronounced sentence and increased the Defendant's                 time in

prison from 6 months to 2 Yi years.       The Defendant appealed, claiming that

the Court exceeded its authority.

       In Unger, the Superior Court began its analysis by stating:

       Oral statements made by the judge in passing sentence, but not
       incorporated in the written judgment signed by him, are no part
       of the judgment of sentence. Commonwealth v. Foster, 229
       Pa.Super.Ct.    269, 271, 324 A.2d 538, 539 (1974).     In addition,
       an "initial oral pronouncement of sentence ... [is] not a 'sentence
       imposed" for purposes of double jeopardy." Commonwealth v.
       Hodge, 246 Pa.Super.Ct. 71, 81, 369 A.2d 815, 820 (1977). A
       violation of the double jeopardy clause occurs if the sentence is
       increased     after the    Defendant   has begun        serving   it.
       Commonwealth v. Allen, 443 Pa. 96, 104, 277 A.2d 803, 806
       (1971) (emphasis added)".

 Id. at 260.    The Superior Court affirmed the Judge's "final" sentence.         The

 Court stated:

       Only the second sentence was entered into the record and
       signed by the Court.   Not only was the lower court's original
       sentence oral, but appellant had not yet left the courtroom to
       begin serving his sentence. W~ cannot say, therefore that the
       initial sentence was actually "imposed" and, accordingly, find
       that the lower court's resentencing did not place appellant in
       double jeopardy.




                                              7
                                                                                                     I

                                                                                                     II

                                                                                                     I   I


Id. at 260-61.

      In this case, as in Unger, no written sentencing order had been signed

by the    Court when      the "final"    sentence   was      imposed.      As in Unger,

DEFENDANT         had not even left the courtroom.         Given the Court's        statutory

authority to modify orders within 30 days, and given the clear                   precedential

authority articulated    in Unger, supra, we conclude without hesitation                that a

Trial Judge has the authority to alter a sentence in the presence of the

Defendant     in open court in response to additional           information       or changed

circumstances.

         In this case, we freely acknowledge that we increased DEFENDANT's

minimum sentence by two months because of the words                         she uttered         in

response to the Court wishing       her "good luck."       By using the "f-word" toward

a judge in open court surrounded by dozens                    of spectators        and others

 awaiting sentencing, DEFENDANT             displayed     blatant   disrespect     toward the

 Court and the justice system.          Her statement,     and the demeanor by which

 it was uttered, clearly communicated that DEFENDANT                    had no remorse for

 her conduct.      After trying to convince the Court that her prior rehabilitation

 opportunities     had failed because they were not faith-based                  and that she

 wanted a spiritual     rehabilitation program, she turned around when we said

 "no" and hurled a profanity at the Court with venom and without one ounce

 of contrition.       If we had    any    doubt   about     whether     DEFENDANT          was

 attempting      to continue   her "rehab    instead of jail"       gamesmanship,       it was

 dispelled    by her outburst of profanity.




                                              0
         A courtroom must be a place governed by decorum.                               If we permit

courts    to become         arenas       where      shouting     and profanity        is encouraged,

pretty soon legal proceedings will become                        like "debates"       on CNN where

surrogates     for opposing          viewpoints shout at and interrupt one another with

impunity.          No    civilized     system       of justice       could   operate     in such    an

environment.            If our appellate courts            were to proclaim      that Trial Judges

should simply sit back and take no action when t-word profanities are hurled

at them in court, the first step toward courtroom chaos will have been taken.


Ill.      CONCLUSION

          This Court possesses the statutory authority to modify Court Orders

within 30 days.            In this case, we altered our Court Order within seconds

after the initial sentencing             decision    had been pronounced.             We did so in the

 presence     of DEFENDANT               before she left the courtroom.           We did so before
                                                                                                          '   ~
 the sentence       was issued in writing and signed.                    Under Pennsylvania law,              t
                                                                                                              !
                                                                                                              t
 we acted within our authority to increase DEFENDANT's minimum sentence                                       (
                                                                                                              I

                                                                                                              Il
 from 9 months           to 11       months   regardless of the reason for that decision.                         I

                                                                                                                  I
 Nevertheless,          our reason       was legitimate.          In order to preserve        decorum

 inside     a courtroom,         Judges       must     have    the    authority to respond         when

 individuals hurl the f-word             profanity at them in open court.

          We remind        DEFENDANT           that we increased         her sentence by only two

 months      (as    compared           with   the two year        increase     that    was ultimately

 approved     in Unger). We remind DEFENDANT that our sentence remained

 in the standard sentencing guideline range.                         Some might observe that our


                                                       0
response    to DEFENDANT's   courtroom        antics was restrained.    In simple

language,   DEF EN DANT should be reminded         that our response   to her use

of the t-word in open court could have been far worse.




                                         10
