J-S45024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD TERRELL

                            Appellant                 No. 1671 EDA 2013


            Appeal from the Judgment of Sentence of May 10, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos.: CP-51-CR-01103791-2005,
           CP-51-CR-02065551-2006, and CP-51-CR-0016127-2009


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

MEMORANDUM BY WECHT, J.:                         FILED NOVEMBER 26, 2014

       Richard Terrell (“Terrell”) appeals from the judgment of sentence

imposed on May 10, 2013, following revocation of probation for both

technical and direct violations. We vacate and remand.

       The trial court set forth the background of this case as follows:

       Following plea negotiations, on September 13, 2012, [Terrell]
       entered a guilty plea pursuant to CP-51-CR-00016127-2009 to
       the charges of Simple Assault and Resisting Arrest. [See 18
       Pa.C.S.A. §§ 2701, 5104.] [The trial c]ourt sentenced [Terrell]
       to time served to twenty-three months’ incarceration in the
       county jail followed by one year of reporting probation. With
       respect    to    CP-51-CR-[02065551-2006]      and    CP-51-CR-
       [0]1103791-2005, [Terrell] pleaded guilty on October 16, 2007,
       before the [court] to the charge of Carrying a Firearm without a
       License under both bills of information and received concurrent
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45024-14


       sentences of six to twelve months’ incarceration followed by four
       years’ probation. [See 18 Pa.C.S.A. § 6106.]

       [Terrell] thereafter appeared before [the trial c]ourt on May 10,
       2013, for a violation of probation hearing for each of the above
       cases. At the conclusion of the hearing, [the c]ourt revoked
       [Terrell’s] probation in each of the cases.        On CP-51-CR-
       0016127-2009, [Terrell] received a sentence of one to two
       years’ incarceration on the Resisting Arrest charge. On the
       Simple Assault charge, [the c]ourt revoked his parole and
       ordered [Terrell] to serve the remainder of his sentence. On CP-
       51-CR-[02065551]-2006, [the c]ourt imposed a sentence of two
       to four years’ incarceration and ordered that the sentence be
       served consecutive to the sentence imposed on the Resisting
       Arrest charge. Finally, with respect to CP-51-CR-[0]1103791-
       2005, a sentence of two to four years’ incarceration was imposed
       on [Terrell], said sentence to run consecutively to the two
       sentences imposed in the other cases.

Trial Court Opinion (“T.C.O.”), 10/28/2013, at 1-2 (footnotes omitted).

       On May 16, 2013, Terrell filed a motion for reconsideration of his

sentence, which the trial court denied on May 31, 2013.         Terrell timely

appealed on June 10, 2013.1 See Pa.R.Crim.P. 708(E). On August 8, 2013,

Terrell filed a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) and a request for an extension of time on the grounds

that counsel had not received a copy of the revocation hearing transcript.

The court granted the extension, and, on September 25, 2013, Terrell filed a

supplemental Rule 1925(b) statement challenging the discretionary aspects

of his revocation sentence. On October 28, 2013, the trial court entered its

opinion. See Pa.R.A.P. 1925(a).
____________________________________________


1
       June 9, 2013, fell on a Sunday.



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      Terrell raises the following question for our review:

      Was not the sentencing court’s imposition of consecutive state
      incarceration sentences on each case for a first probation
      revocation unreasonable, manifestly excessive and an abuse of
      discretion where the court failed to conduct an individualized
      sentencing, did not properly consider the sentencing factors,
      failed to order and evaluate a pre-sentence investigation,
      ignored whether the sentence was the least stringent to protect
      the community, and [Terrell’s sentence] was the result of
      partiality, bias and ill will as demonstrated by the court inter alia
      referring to [Terrell] as “this animal”, a “crime wave” and
      presuming without evidence that he is likely to kill his wife?

Terrell’s Brief at 3.

      Terrell’s challenge to the discretionary aspects of his revocation

sentence is within this Court’s scope of review.      See Commonwealth v.

Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013).              “Revocation of a

probation sentence is a matter committed to the sound discretion of the trial

court and that court’s decision will not be disturbed on appeal in the absence

of an error of law or an abuse of discretion.” Commonwealth v. Ahmad,

961 A.2d 884, 888 (Pa. Super. 2008) (citation omitted).         In addition, our

standard of review is well-settled:

      [T]here is no absolute right to appeal when challenging the
      discretionary aspect of a sentence.      42 Pa.C.S. § 9781(b).
      Rather, an [a]ppeal is permitted only after this Court determines
      that there is a substantial question that the sentence was not
      appropriate under the sentencing code. In determining whether
      a substantial question exists, this Court does not examine the
      merits of the sentencing claim.

      In addition, issues challenging the discretionary aspects of a
      sentence must be raised in a post-sentence motion or by
      presenting the claim to the trial court during the sentencing
      proceedings. Absent such efforts, an objection to a discretionary

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J-S45024-14


      aspect of a sentence is waived. Furthermore, a defendant is
      required to preserve the issue in a court-ordered Pa.R.A.P.
      1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.

Cartrette, 83 A.3d at 1042 (case citations and quotation marks omitted).

      Terrell raises three challenges to the discretionary aspects of his

sentence: that his sentence is excessive and unreasonable; that the court

failed to apply relevant sentencing criteria and fashion an individualized

sentence; and that the court exhibited bias, ill will and partiality in its

comments during sentencing. Terrell’s Brief at 14-16. Terrell asserted each

of these challenges in his Rule 1925(b) statement.           See Rule 1925(b)

Statement, 9/25/2013, at 2 ¶ 3.           Further, Terrell’s brief contains a

statement of reasons for allowance of appeal from the discretionary aspects

of his sentence pursuant to Rule 2119(f), which statement also includes

these challenges.    See id. at 13-17.      Accordingly, it remains for us to

determine whether these three challenges were “raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings.” Cartrette, 83 A.3d at 1042.

      Terrell’s first and second challenges clearly are preserved in his post-

sentence motion, in which he argues that his “aggregate sentence is

excessive given the nature of the violations and [Terrell’s] prior record.”

Post-Sentence Motion, 5/16/2013, at 1 ¶ 2. Terrell did not raise the issue of

bias, ill will and partiality by the trial court in his post-sentence motion. Id.

However, our examination of the record reveals that Terrell presented this

claim to the trial court during the sentencing proceeding.

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      The crux of Terrell’s third claim is that his sentence “was the result of

partiality, bias and ill will as demonstrated by the court inter alia referring to

[Terrell] as ‘this animal’, a ‘crime wave’ and presuming without evidence

that he is likely to kill his wife[.]”   Terrell’s Brief at 3; see also Notes of

Testimony (“N.T.”), 5/10/2013, at 16.          At the sentencing hearing, counsel

for Terrell responded to the trial court’s remarks as follows:

      [Counsel for Terrell]: Your Honor, I’m not disputing that he’s in
           violation for not reporting. I understand that. I conceded
           that he is in technical violation for not reporting. And he’s
           made a lot of dumb decisions with regard to that.

            But this notion that he’s an animal who is going to kill
            somebody, I mean, I gave you what his total sum
            convictions are—

      The Court:       I believe that, [Counselor]. I believe that. I
           believe that if there is repetitious domestic violence, it
           eventually becomes very, very serious.

Id. at 20-21. Having been cut off by the trial court, counsel moved on to

argue favorable mitigating factors.       Id. at 21-22.      The trial court then

proceeded to revoke Terrell’s parole and sentence him to the above-

mentioned period of incarceration. Id. at 23.

      In Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013),

we granted relief to an appellant where it was “the trial court that prevented

Appellant from asserting which right he sought to invoke.” Smith, 69 A.3d

at 265. Here, after labeling Terrell an “animal” and a “crime wave,” the trial

court interrupted Terrell’s counsel’s attempt to express concern with that

language.   It would have been the better practice for Terrell’s counsel to


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reiterate this challenge in Terrell’s post-sentence motion. However, we will

not penalize Terrell by imposing a hypertechnical waiver in circumstances

where Terrell’s counsel expressly made a record of his concern with the

court’s characterization of Terrell as “an animal who is going to kill

somebody.”         N.T., 5/10/2013, at 20.      This was sufficient to preserve an

objection to the trial court’s language for our review, an objection cut short

by   the   trial    court’s   interruption.     See   Smith,   69   A.3d   at   265;

Commonwealth v. Turner, 450 A.2d 9, 11 (Pa. Super. 1982) (rejecting

Commonwealth’s waiver argument where “appellant’s attorney challenged

the admissibility of the testimony of [a witness] even though he did not utter

the magic words, ‘I object’”).        Accordingly, Terrell has preserved all three

challenges to the discretionary aspects of his sentence. See Cartrette, 83

A.3d at 1042.

      We must now determine whether Terrell has raised a substantial

question that the sentence was not appropriate under the sentencing code, a

determination that would permit us to examine the merits of his sentencing

claims. See id.

      From an appellant’s Rule 2119(f) statement, the Superior Court
      decides whether to review the discretionary aspects of a
      sentence based upon a case-by-case determination as to
      whether a substantial question concerning the sentence exists.
      To demonstrate that a substantial question exists, a party must
      articulate reasons why a particular sentence raises doubts that
      the trial court did not properly consider [the] general guidelines
      provided by the legislature.




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Commonwealth v. Mouzon, 812 A.2d 617, 621-22 (Pa. 2002) (citations

omitted).

      An averment that the court “failed to consider relevant sentencing

criteria, including the protection of the public, the gravity of the underlying

offense and the rehabilitative needs” of an appellant raises a substantial

question. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

“A claim that a sentence is manifestly excessive such that it constitutes too

severe a punishment raises a substantial question.”         Commonwealth v.

Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted). Likewise, “an

allegation of bias in sentencing implicates the fundamental norms underlying

sentencing and hence, we find that it raises a substantial question.”

Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011).                Thus,

Terrell has raised substantial questions about his sentence, Terrell’s Brief at

14-16, and we will proceed to review their merits.

      First, Terrell contends that “the sentencing court did not consider the

required sentencing factors.”    Terrell’s Brief at 19.   Specifically, he argues

that the trial court abused its discretion because it focused on Terrell’s

failures to report instead of “the positives” of his probation history, failed to

order a pre-sentence investigation report (“PSI”), and did not permit

Terrell’s wife to testify. Id. at 22-26. We disagree.

      Our legislature has imposed the following general standards to observe

when fashioning a sentence:




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J-S45024-14


      [T]he court shall follow the general principle that the sentence
      imposed should call for confinement that is consistent with the
      protection of the public, the gravity of the offense as it relates to
      the impact on the life of the victim and on the community, and
      the rehabilitative needs of the defendant. The court shall also
      consider any guidelines for sentencing and resentencing adopted
      by the Pennsylvania Commission on Sentencing and taking effect
      under section 2155 (relating to publication of guidelines for
      sentencing, resentencing and parole and recommitment ranges
      following revocation). In every case in which the court imposes
      a sentence for a felony or misdemeanor, modifies a sentence,
      resentences an offender following revocation of probation,
      county intermediate punishment or State intermediate
      punishment or resentences following remand, the court shall
      make as a part of the record, and disclose in open court at the
      time of sentencing, a statement of the reason or reasons for the
      sentence imposed. . . . Failure to comply shall be grounds for
      vacating the sentence or resentence and resentencing the
      defendant.

42 Pa.C.S.A. § 9721(b).    “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.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.

Super. 2014).

      Here, the trial court heard testimony from Parole Officer Ngoc Lam,

who presented a detailed case history, including Terrell’s technical violations,

reporting history, arrests, drug testing results, and family history. See N.T.,

5/10/2013, at 3-13.      Contrary to Terrell’s claim that the court did not

consider “the positives” of his case history, the court heard Officer Lam

testify:



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J-S45024-14


      I’m going to provide you the positive things he did. He did
      complete the gun court stipulations, which was to complete the
      firearms education class.    He did complete his community
      service. He did complete the house arrest portion requirements.
      He submitted to 11 urine tests between the period of 7/29/2008
      to 11/12/2009. Nine were negative and two were positive for
      alcohol.

Id. at 6.     Terrell’s counsel also was given an opportunity to respond to

Officer Lam’s report and to provide additional context; counsel noted that

“[t]here is nothing in any of the sentencing documents to show that he was

ordered to stay away from alcohol.” Id. at 19; see id. at 17-22.

      Officer Lam’s testimony demonstrates that Terrell has three direct

violations of parole for arrests of disorderly conduct, aggravated assault,

simple assault, recklessly endangering another person, harassment, and

false identification. Id. at 5-6. He has been arrested twenty-three times.

Id. at 15.    The complainant in several of the charges was his wife, who

repeatedly chose not to press charges. Id. at 7-8. Terrell rescheduled his

reporting appointments about seventy-five percent of the time, claimed that

he had foot surgery and that his daughter had been hospitalized but failed to

provide any proof of either incident, and then stopped reporting altogether.

Id. at 9-10. At this point, Terrell’s wife began calling his probation officer to

reschedule on his behalf. Id. at 10-11. He failed to obtain a phone line to

enroll in house arrest and then refused to report. Id. at 11-12.

      Thus,    the   record supports   the   trial   court’s   determination   that

“probation had not been effective at deterring [Terrell] from committing

more crimes.     [His] conduct demonstrated that he presented a continuing

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threat to the peace and harmony of the community and warranted the

imposition of a sentence that would prevent any future violations as well as

send a message to [Terrell] that he cannot snub his nose at authority.”

T.C.O. at 4; see Antidormi, 84 A.3d at 761.

      Terrell next contends that the court erred in failing to order a PSI,

claiming that the court “had made its decision at the outset of the hearing.”

Terrell’s Brief at 25-26.

      Rule of Criminal Procedure 702 provides: “The sentencing judge may,

in the judge’s discretion, order a pre-sentence investigation report in any

case.” Pa.R.Crim.P. 702(A)(1).

      The first responsibility of the sentencing judge [is] to be sure
      that he ha[s] before him sufficient information to enable him to
      make a determination of the circumstances of the offense and
      the character of the defendant. Thus, a sentencing judge must
      either order a PSI report or conduct sufficient presentence
      inquiry such that, at a minimum, the court is apprised of the
      particular circumstances of the offense, not limited to those of
      record, as well as the defendant’s personal history and
      background.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725-26 (Pa. Super. 2013)

(citing Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000)

(en banc)).

      As previously discussed, the trial court heard a detailed history of

Terrell’s record from Officer Lam and counsel for Terrell. See N.T. at 3-22.

Critically, Terrell fails to identify any additional information that would have

been provided in a PSI, and his claim that the court already had “made its


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decision” is belied by the court’s persistent questioning of both parties.

Thus, the court conducted a sufficient presentence inquiry to be apprised of

the particular circumstances of Terrell’s case, and did not commit reversible

error by not ordering a PSI. See Carillo-Diaz, 64 A.3d at 725-26.

      Furthermore, to the extent that Terrell claims that the court did not

permit his wife to testify, Terrell did not request that she do so, nor did the

Commonwealth call her as a witness.          See N.T. at 2, 16, 17.      The court

observed that she was “chomping at the bit,” but counsel declined to call

her, and did not object when the court stated it was not going to call her to

testify because it was not going to consider an additional civil issue

regarding a falsified sublease which implicated both Terrell and his wife. Id.

at 13, 17-18. Thus, the record shows that trial court was presented with,

and considered, the required sentencing factors under 42 Pa.C.S.A.

§ 9721(b), and Terrell’s assertions to the contrary lack merit. Terrell’s first

argument does not merit relief.

      Next, Terrell argues that “the sentence imposed was a product of bias

and   ill   will,   violating   the   fundamental   sentencing   norms    in   this

Commonwealth.”         Terrell’s Brief at 28.    Specifically, he claims that the

court’s remarks were hostile and inflammatory, and require reversal of his

sentence. Id. at 28-32. We agree.

      The sentencing decision is of paramount importance in our
      criminal justice system, and must be adjudicated by a fair and
      unbiased judge. This means, a jurist who assess[es] the case in
      an impartial manner, free of personal bias or interest in the
      outcome. Because of the tremendous discretion a judge has

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      when sentencing, a defendant is entitled to sentencing by a
      judge whose impartiality cannot reasonably be questioned. A
      tribunal is either fair or unfair. There is no need to find actual
      prejudice, but rather, the appearance of prejudice is sufficient to
      warrant the grant of new proceedings.

Commonwealth v. Williams, 69 A.3d 735, 744 (Pa. Super. 2013)

(citations and internal quotation marks omitted).     In Williams, this Court

concluded that a sentencing court’s motives and remarks exhibited bias

because the trial court focused on the defendant’s burglarizing Catholic

institutions, assailed prior adjudications as “mistakes” for being too lenient,

attempted to “sanitize” its inquiries by goading the defendant into

contradicting herself, and imposed a revocation sentence that was “severe

on its face” because the defendant would not be eligible for parole for thirty-

one years. Id. at 742. As we observed:

      If the invocation of such rhetoric is relied upon to serve as the
      foundation of subsequent conclusions, as it clearly was in this
      instance, the bias necessarily affects the conclusion. The trial
      court’s description of Appellant as being a “pathological liar” and
      a “classic sociopath” lacks any support in the record, and that
      error is not trivial in this instance. The bias it signals cannot be
      ignored when the trial court premises the imposition of such a
      severe sentence on the balance between Appellant’s “extremely
      low potential for rehabilitation against the duty to protect the
      public.”

Id. at 748. “Viewed collectively, the trial court’s [statements] strike a tone

of advocacy rather than dispassionate reflection.        This accumulation of

inappropriate remarks leads us to conclude that Appellant’s sentence cannot

be divorced from the appearance of bias.” Id. at 744.




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      Here, Terrell objects to the following statements by the court after

hearing Officer Lam’s report of Terrell’s case history:

      [Counsel for Terrell]:   Your Honor, I have argument, of course.

      The Court:      I won’t preclude you. But this is an outrage.
           And you know what? These are cases—is this his wife?

      [Counsel for Terrell]:   Yes.

      The Court:        She’s going to wind up dead.

      Mrs. Terrell:     Can I say something?

      The Court:        No.

            She’s going to wind up dead. That’s what this case is.
            And then we’re all going to be sitting here saying, We
            could have prevented this if we had kept this man in jail.
            He just can’t do it. So I’ll hear whatever you have to say.
            I’m not going to be deaf to it, by my God.

      [The Commonwealth]: Judge, just for the record, you heard that
            there were five arrests. There are 23 arrests.

      The Court:        Twenty-three?

      [The Commonwealth]: I just wanted to clarify.

      [Counsel for Terrell]: Your Honor, I don’t believe that is the
           correct number.

      [The Commonwealth]: Eighteen and five.        I have it on the
            report. It would be 23. It could be 22.

      The Court:      I mean, he’s a crime wave.           He’s not a
           criminal. He’s a crime wave.

      [Counsel for Terrell]: Your Honor, his convictions are the three
           cases that we have here today, the false ID to law
           enforcement in Delaware County, and the adjudication and
           delinquency brought on by his use of an automobile.
           That’s it.

      The Court:      Yeah, but he’s here for firearms, firearms, and
           aggravated assault.


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        [Counsel for Terrell]:   No. Resisting arrest and simple assault,
             your Honor.

        The Court:        Okay. All right. Two were nolle prossed. I’m
             sorry.

        [Counsel for Terrell]: So I still want to hear what Ms. Mitchell
             has to say with regard to [the alleged falsified sublease],
             but I’ll—

        [The Commonwealth]: Well, I’m not going to be calling Ms.
              Mitchell up. I don’t think we need to. I think we’ve gotten
              the summary.

        The Court:        Yeah, I only need a summary. I mean, Ms.
             Mitchell is here. [Mrs. Terrell] is absolutely chomping at
             the bit to testify because she’ll probably get up here and
             try to exonerate this animal, which I’ll hear none of.

              I mean, this is horrifying.   He’s a crime wave.   I’ll hear
              anything you want to say.

N.T. at 14-16. Upon review of this testimony, and the record as a whole, we

are simply unable to agree with the trial court when it protests that its

remarks did not exhibit bias but “pure hyperbole and simply manifested [the

c]ourt’s outrage at his repeated violations and disregard for the law.” T.C.O.

at 4.

        The court’s statements that Terrell’s wife would “end up dead” in

response to learning that she was the complainant in at least two of Terrell’s

cases, while hyperbolic, concern Terrell’s potential for rehabilitation, as well

as the impact of his actions against the victim and the community. Likewise,

the comment regarding a “crime wave” pertains to Terrell’s criminal history.

        Moreover, the court explicitly stated that it would not preclude Terrell

from argument and would “hear anything [counsel] wanted to say.” N.T. at


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16. Likewise, our review of the record shows (and Terrell does not contest)

that, even with total confinement upon revocation, he received sentences on

all three criminal informations well below the potential maximum sentences.

At CP-51-CR-1103791-2005, the court imposed a two- to four-year sentence

for charges carrying a maximum penalty of seven years.       See Sentencing

Order, 5/10/2013; Guilty Plea Colloquy, 10/16/2006, at 1.       At CP-51-CR-

02065551-2006, Terrell’s revocation sentence was again two to four years

for charges carrying a maximum penalty of seven years.       See Sentencing

Order, 5/10/2013; Guilty Plea Colloquy, 10/7/2006, at 1. Finally, at CP-51-

CR-0016127-2009, Terrell’s revocation sentence was one to two years with

backtime on a potential two- to four-year sentence. See Sentencing Order,

5/10/2013; Guilty Plea Colloquy, 9/13/2012, at 1.         Therefore, Terrell’s

sentence, standing alone, does not reflect any alleged bias or fixed attitude

by the trial court.

      It cannot be gainsaid that this appeal presents us with a different

circumstance    than   Williams,   supra, where    the   court went beyond

permissible sentencing factors and focused on the religious affiliation of the

victim and unsubstantiated claims about the defendant’s mental health.

Compare Williams, 69 A.3d at 749; with Commonwealth v. Walls, 926

A.2d 957, 960 (Pa. 2007) (concluding that sentencing court permissibly

focused on “the principle of revenge and protection of the public”).

Moreover, the bulk of the court’s comments are supported by the record;

generally, we might say they appear to reflect considerations which are

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permissible factors to consider when fashioning a sentence.               See 42

Pa.C.S.A. § 9721(b); Antidormi, 84 A.3d at 761.

      But, try as we might (and surely we have), we are unable to square

the court’s “animal” statement with our law.            Our Supreme Court “has

declined to proscribe animal imagery in penalty-phase closing arguments.”

Commonwealth v. Paddy, 800 A.2d 294, 325 (Pa. 2002). However, it is

not   for   the   court     to   practice   “vigorous   prosecutorial   advocacy,”

Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996), but to render a

sentence with “dispassionate reflection.” Williams, 69 A.3d at 744.

      In regarding appellant, and in addressing him, as an animal, the
      sentencing judge violated the most fundamental premise of our
      law—that all persons are to be treated equally. That does not
      mean that some persons will not be punished for having violated
      the law. . . . But no one is punished as an animal is punished.

Commonwealth v. Spencer, 496 A.2d 1156, 1165 (Pa. Super. 1985).

      We might say that the court’s statements were intemperate but not

sufficiently egregious to merit relief. But we would then be faithless to our

traditions. Terrell is not an animal. He is a man. Perhaps he is a very, very

bad man. Perhaps he is a man whose parole should be revoked and who

should draw a revocation sentence every bit as severe as this trial judge

imposed upon him.         But Pennsylvania law does not confuse sentencing of

human beings with confinement or chastisement of animals. See Spencer,

496 A.2d 1165.




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       This statement cannot stand: “She’s absolutely chomping at the bit to

testify because she’ll probably get up here and try to exonerate this animal,

which I’ll hear none of.” N.T. at 16. For our part, we will hear none of this.

Pennsylvania courts impose sentences upon humans, not upon animals.

Once we start confusing the two, we have begun our descent down a

worrisome path. The court’s statement does more than give us pause. It

undermines—quite fatally—our faith in that court’s impartiality and our

willingness (adverted to above) to afford the court the benefit of the doubt

in all other particulars.

       We would blush were we to permit this to stand uncorrected.        The

court was no doubt frustrated and appalled. Perhaps it should have taken a

breather.2

       The matter will be returned to the trial court for a sober proceeding

governed by law, not passion.

       Judgment of sentence vacated. Remanded for proceedings consistent

with this Memorandum.

       Justice Fitzgerald concurs in the result.

       Judge Bowes files a concurring and dissenting memorandum.
____________________________________________


2
     Perhaps it should do so on remand. But that is not for us to decide.
See Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006) (“[T]he
sua sponte removal of the trial court judge on remand for sentencing
exceed[s] the authority of the Superior Court.”). What we do decide is that
the court’s judgment is vacated and that, upon remand, the court will
sentence a man, not an animal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2014




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