J-S75003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

VALENCIA LAWRENCE

                            Appellant                      No. 1822 EDA 2013


               Appeal from the Judgment of Sentence May 9, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007521-2010


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                 FILED JANUARY 20, 2015

        Appellant,   Valencia    Lawrence,     appeals   from   the   May   9,   2013

aggregate judgment of sentence of five to ten years’ imprisonment, plus ten

years’ probation, imposed after Appellant entered an open guilty plea to one

count each of aggravated assault and endangering the welfare of a child

(EWOC).1 After careful review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows.     On June 29, 2010, the Commonwealth filed an information,

charging Appellant with the above-mentioned offenses, as well as one count

each of criminal conspiracy, recklessly endangering another person, and two


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1
    18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively.
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counts of simple assault.2        On December 19, 2012, Appellant entered an

open guilty plea to one count each of aggravated assault and EWOC. The

remaining charges were nolle prossed.                  On May 9, 2013, the trial court

imposed an aggregate sentence of five to ten years’ imprisonment, plus ten

years’ probation.3       The trial court sentenced Appellant in absentia as

Appellant had failed to appear for sentencing on numerous occasions.                 On

May 15, 2013, Appellant filed a timely motion for reconsideration of

sentence, which the trial court denied on May 20, 2013. On June 19, 2013,

Appellant filed a timely notice of appeal.

       On appeal, Appellant raises three issues for our review.

              [1]. Whether th[e] trial court erred in sentencing
              Appellant    without   obtaining   a    pre-sentence
              investigation report [(PSI)] and a mental health
              evaluation [(MHE)] prior to sentencing [A]ppellant in
              absentia[?]

              [2]. Whether the sentence imposed upon Appellant
              was excessive and made without consideration
              and/or reference to the applicable sentencing
              guidelines[?]

              [3]. Whether the trial court committed an abuse of
              discretion in vindictively sentencing [A]ppellant to
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2
   18 Pa.C.S.A.        §§    903(a)(1),        2705,     2701(a)(1),   and   2701(b)(2),
respectively.
3
   Specifically, the trial court sentenced Appellant to five to ten years’
imprisonment, plus ten years’ probation for aggravated assault, and three-
and-one-half to seven years’ imprisonment for EWOC. The periods of
incarceration were to run concurrently to each other, but the probationary
period was to run consecutive to the imprisonment term.



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              the mandatory minimum sentence and maximum
              sentencing allowable under the law for her failing to
              appear at sentencing on seven (7) separate
              occasions and ultimately sentencing her in absentia,
              despite an agreement on the record that the
              Commonwealth      would   not   be   invoking     the
              mandatory minimum at sentencing[?]

Appellant’s Brief at 5.4

       At the outset, we note that Appellant’s issues on appeal pertain to the

discretionary aspects of her sentence.              It is axiomatic that in this

Commonwealth “[t]here is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”           Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards

an argument pertaining to the discretionary aspects of the sentence, this

Court considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, --- A.3d ---, 403 MAL 2014 (Pa.
____________________________________________
4
  Appellant’s brief also contains the issue as to whether this Court should
remand this case for the filing of a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), as
prior counsel did not file one when the trial court ordered her to do so.
Appellant’s Brief at 5. However, on May 30, 2014, this Court provided this
relief in an order remanding this case for the filing of a Rule 1925(b)
statement and a supplemental Rule 1925(a) opinion. Superior Court Order,
5/30/14, at 1. Our order also vacated the briefing schedule and directed the
Prothonotary to establish a new briefing schedule when the certified record
was returned to this Court. Id. On June 2, 2014, Appellant filed his Rule
1925(b) statement, and the trial court filed its supplemental opinion on July
16, 2014. Nevertheless, as Appellant’s Rule 1925(b) statement lists the
same issues previously included in his first brief, we decline to order further
supplemental briefing in this case.



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2014).    “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.” Commonwealth v. Cartrette, 83 A.3d 1030,

1042 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted).

     Prior to reaching the merits of a discretionary sentencing issue, this

Court is required to conduct a four-part analysis to determine whether a

petition for permission to appeal should be granted. Specifically, we must

determine the following.

             (1) [W]hether appellant has filed a timely notice of
             appeal, Pa.R.A.P. 902, 903; (2) whether the issue
             was properly preserved at sentencing or in a motion
             to reconsider and modify sentence, Pa.R.Crim.P.
             [708]; (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. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014).

     In the case sub judice, we note that Appellant filed a timely notice of

appeal.     We further observe that Appellant has included a Rule 2119(f)

statement     in   her   brief.   Appellant   also   filed   a   timely   motion   for

reconsideration of sentence in the trial court.         Therefore, we proceed to

determine whether Appellant has raised a substantial question for our

review.


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      Instantly, Appellant’s Rule 2119(f) statement avers that the trial

court’s sentence “was excessive, made without any reference to the factors

to be taken into consideration at the time of sentencing and failed to

articulate the reason for the sentence other than [Appellant]’s failure to

appear at sentencing.”   Appellant’s Brief at 13-14.   Appellant also argues

that the trial court erred in sentencing Appellant “without the benefit of a

[PSI] and a mental health evaluation [MHE] prior to sentencing Appellant in

absentia.” Id. at 14. Finally, Appellant argues that the trial court imposed a

“vindictively” high sentence, equivalent to the mandatory minimum sentence

that could have been sought by the Commonwealth, because Appellant did

not appear for sentencing. Id.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71

A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d

75 (Pa. 2013).    “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Id. (citations omitted). “Additionally, we cannot look beyond the

statement of questions presented and the prefatory 2119(f) statement to

determine whether a substantial question exists.”        Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).


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      As noted above, Appellant argues the trial court erred in sentencing

Appellant “without the benefit of a [PSI] and a [MHE] prior to sentencing

Appellant in absentia.” Appellant’s Brief at 14. This Court has held that the

trial court’s dispensation with the preparation of a PSI raises a substantial

question. Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011)

(citation omitted).   The same is true with a trial court’s failure to order a

[MHE]. Commonwealth v. Hill, 66 A.3d 365, 369 n.4 (Pa. Super. 2013).

In addition, we have stated that a failure to consider the required sentencing

factors under 42 Pa.C.S.A. § 9721(b) raises a substantial question.       See,

e.g., Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)

(stating, “to the extent that [Appellant]’s claim impugns the trial court’s

failure to offer specific reasons for the sentence that comport with the

considerations required in section 9721(b) … we conclude that it raises a

substantial question of the court’s justification in extending Coulverson’s

standard range sentences to the statutory maximum[]”).              Finally, we

observe that an argument alleging the trial court considered an improper

factor, raises a substantial question for our review.     Commonwealth v.

Dowling, 990 A.2d 788, 792 (Pa. Super. 2010).           As a result, we grant

Appellant’s petition for permission to appeal the discretionary aspects of her

sentence, and we proceed to address the merits of Appellant’s claims.

      We begin by noting our well-settled standard of review.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be

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            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)

(citations omitted).

      We first address Appellant’s argument that the trial court failed to

order a PSI or MHE before imposing sentence. Appellant’s Brief at 15. The

preparation of these two documents is governed by Pennsylvania Rule of

Criminal Procedure 702, which provides in relevant part, as follows.

            Rule 702. Aids in Imposing Sentence

            (A) Pre-sentence Investigation Report

                  (1) The sentencing judge may, in the judge’s
                  discretion, order a pre-sentence investigation
                  report in any case.

                  (2) The sentencing judge shall place on the
                  record the reasons for dispensing with the pre-
                  sentence investigation report if the judge fails
                  to order a pre-sentence report in any of the
                  following instances:

                        (a) when incarceration for one year or
                        more is a possible disposition under the
                        applicable sentencing statutes;

                        (b) when the defendant is less than 21
                        years old at the time of conviction or
                        entry of a plea of guilty; or




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                         (c) when a defendant is a first offender
                         in that he or she has not heretofore been
                         sentenced as an adult.

                    (3) The pre-sentence investigation report shall
                    include     information      regarding      the
                    circumstances of the offense and the character
                    of the defendant sufficient to assist the judge
                    in determining sentence.

                    (4) The pre-sentence investigation report shall
                    also include a victim impact statement as
                    provided by law.

           (B) Psychiatric or Psychological Examination.
           After a finding of guilt and before the imposition of
           sentence, after notice to counsel for both parties, the
           sentencing judge may, as provided by law, order the
           defendant to undergo a psychiatric or psychological
           examination. For this purpose the defendant may be
           remanded to any available clinic, hospital, institution,
           or state correctional diagnostic and classification
           center for a period not exceeding 60 days.

Pa.R.Crim.P. 702.

                  [While case law does not] require that the trial
           court order a pre-sentence investigation report under
           all circumstances, the cases do appear to restrict the
           court’s discretion to dispense with a PSI report to
           circumstances where the necessary information is
           provided by another source. Our cases establish, as
           well, that the court must be apprised of
           comprehensive information to make the punishment
           fit not only the crime but also the person who
           committed it.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 726 (Pa. Super. 2013),

quoting Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa. Super. 2000)

(en banc), appeal denied, 759 A.2d 920 (Pa. 2000).




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                      Although    Rule  702(A)(2)    provides  the
              requirement to document the reasons for not
              ordering a pre-sentence report is mandatory, in
              [Commonwealth v. Flowers, 950 A.2d 330 (Pa.
              Super. 2008)], this Court made clear that sentencing
              courts have some latitude in how this requirement is
              fulfilled.    Citing to Goggins, we stated that
              “technical noncompliance with the requirements of
              Rule 702(A)(2) might have been rendered harmless
              had the court elicited sufficient information during
              the colloquy to substitute for a PSI report, thereby
              allowing a fully informed sentencing decision[.]”
              [Id.] at 333 (citation omitted).

Carrillo-Diaz, supra at 726-727.

       In the case sub judice, the trial court noted that prior to sentencing it

had ordered a PSI and MHE. N.T., 5/9/13, at 17. However, the trial court

also stated that because Appellant was voluntarily absent from the

appointments required to assist in their preparation, the PSI and MHE were

not prepared. Id. We note that, in her brief, Appellant does not challenge

the trial court’s sentencing her in absentia. Appellant’s voluntary choice to

not appear for sentencing resulted in no fewer than five continuances

granted by the trial court.5 In our view, the trial court was not required to

grant further continuances of sentencing in the hope that Appellant would

eventually assist in the preparation of a PSI and MHE for her sentencing

hearing.     Additionally, at the May 9, 2013 sentencing hearing, despite
____________________________________________
5
  Appellant’s motion for reconsideration of sentence acknowledges that she
failed to appear “for the listing of January 7, 2013, and subsequently failed
to appear for listings of January 30, February 26, March 26, May 1, and May
9, 2013.” Motion for Reconsideration of Sentence, 5/15/13, at ¶ 3.



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Appellant’s absence, defense counsel communicated with the trial court

concerning Appellant’s family history, her children, her family history of

post-partum depression and diabetes. Id. at 18-19. Defense counsel also

had certain mental health records read into the record at sentencing,

pertaining to Appellant’s suicide attempts at age 19, and complaints of

sleeping and eating disorders.       Id. at 20.        The Commonwealth also

recounted the facts and circumstances of the offense to the trial court. Id.

at 22-28. The record reveals that the trial court substantially considered the

required information. Based on these considerations, we conclude the trial

court did not abuse its discretion in sentencing Appellant without a PSI or

MHE.    See Carrillo-Diaz, supra.        As a result, Appellant is not entitled to

relief on this argument. See Raven, supra.

       Next, Appellant argues that the trial court abused its discretion by

imposing sentence without considering the required factors under Section

9721(b) and the sentencing guidelines.         Appellant’s Brief at 20.   Section

9721(b) addresses the factors that a sentencing court must consider, and

provides in relevant part, as follows.

            § 9721. Sentencing generally

                                          …

            (b) General standards.--In selecting from the
            alternatives set forth in subsection (a), the 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

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            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
            [s]tate 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. In every case where the
            court imposes a sentence or resentence outside the
            guidelines adopted by the Pennsylvania Commission
            on Sentencing under sections 2154 … the court shall
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines to the commission, as established under
            section 2153(a)(14) (relating to powers and duties).
            Failure to comply shall be grounds for vacating the
            sentence for resentence and resentencing the
            defendant.

42 Pa.C.S.A. § 9721(b).     We note that “a sentencing judge may satisfy

requirement of disclosure on the record of his reasons for imposition of a

particular sentence without providing a detailed, highly technical statement.”

Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation

omitted), appeal denied, 880 A.2d 1237 (Pa. 2005).

      In this case, the trial court gave the following reasons before imposing

sentence.

            This is one of those unfortunate situations, assuming
            the [trial c]ourt would have liked to have heard more

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             and to have heard from [Appellant]. Particularly
             given the zero prior record score, the whole dynamic
             of the other children being favored and this child
             seeming to be dis-favored [sic] and put in danger by
             both defendants. So it is an unfortunate situation
             that [the trial court does not] have the complete
             picture.

                   But what I do have speaks to a young woman
             who abused this child, put this child in danger,
             possibility of even death if these injuries had not
             been discovered at the time that they were. Again,
             not understanding how either of the defendants
             could have let this go on. Even the grandmother
             who claims to have just been absent and didn’t
             know. But given doctor’s testimony about the smell
             and all of that, it just seems, how could you miss
             that?     And most certainly [Appellant]’s behavior
             since she pled guilty.

                   So it’s a sad situation because most certainly
             there are things that counsel could have argued on
             her behalf. Studies that could have been conducted
             to see what was going on with her.          But she
             voluntarily absented herself from that. So we’re left
             with what we have.

N.T., 5/9/13, at 29-30. The trial court’s analysis was made with the benefit

of defense counsel’s submissions to the trial court regarding Appellant’s

family history, her children, her family history of post-partum depression

and diabetes. Id. at 18-19. The trial court also stated that it did consider

the sentencing guidelines. Trial Court Opinion, 7/16/14, at 4. In our view,

this substantially complies with Section 9721(b).         As the trial court

adequately stated its reasons for its sentence on the record, Appellant is not

entitled to relief on this issue.




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       In her final argument, Appellant avers that the trial court vindictively

imposed a higher sentence in absentia because Appellant did not appear for

sentencing.6      Appellant’s Brief at 24.         Specifically, Appellant likens her

argument to one raised in North Carolina v. Pearce, 395 U.S. 711 (1969).

In Pearce, the Supreme Court held that the Due Process Clause is violated

“[w]here … an original conviction has been set aside because of a

constitutional error, [and] the [trial court imposes] … a [higher] punishment,

[to] ‘penalize[e] those who choose to exercise’ constitutional rights[.]” Id.

at 724.

              Due     process   of   law,   then,   requires    that
              vindictiveness against a defendant for having
              successfully attacked his first conviction must play
              no part in the sentence he receives after a new trial.
              And since the fear of such vindictiveness may
              unconstitutionally deter a defendant’s exercise of the
              right to appeal or collaterally attack his first
              conviction, due process also requires that a
              defendant be freed of apprehension of such a
              retaliatory motivation on the part of the sentencing
              judge.

Id. at 725.



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6
   To the extent that Appellant argues that the trial court imposed a
mandatory minimum sentence under Section 9718(a)(2) of the Sentencing
Code, we note that the record confirms the Commonwealth agreed, as part
of the plea agreement, not to seek said mandatory minimum. N.T., 5/9/13,
at 15. We further note that the Commonwealth did not file a notice that it
was requesting a mandatory minimum sentence, nor did the trial court at
any time purport to rely on such a statute in imposing sentence. See Trial
Court Opinion, 7/16/14, at 4 (stating, “the sentence was not vindictive[]”).



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      In this case, Appellant was not exercising any constitutional right as

Appellant does not have any right, constitutional or otherwise, to fail to

appear for sentencing. We also note that Appellant’s characterization of the

trial court imposition of sentence as “vindictive” due to her failure to appear

for sentencing is belied by the record.      As noted above, the trial court’s

references to Appellant’s failure to appear, when taken in the appropriate

context, reveal disappointment, rather than anger or vindictiveness, that the

trial court was not able to hear more from Appellant during the sentencing

process. See generally N.T., 5/9/13, at 29-30. Therefore, we conclude the

trial court did not abuse its discretion. See Raven, supra.

      Based on the foregoing, we conclude that all of Appellant’s issues on

appeal are devoid of merit.     Accordingly, the trial court’s May 9, 2013

judgment of sentence is affirmed.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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