J-S46014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

CRAIG POUST

                        Appellant                  No. 2016 MDA 2016


         Appeal from the Judgment of Sentence October 13, 2016
             In the Court of Common Pleas of Snyder County
           Criminal Division at No(s): CP-55-CR-0000106-2016


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 21, 2017

     Craig Poust appeals from the aggregate judgment of sentence of eight

and one-half to twenty years incarceration imposed following his conviction

at a bench trial for numerous drug and gun crimes.           We affirm the

convictions, but vacate judgment of sentence and remand for further

proceedings.

     The Commonwealth established the following. On February 29, 2016,

authorities from the Pennsylvania State Police executed a search warrant on

a residence.   N.T., 10/11/16, at 30.    The property to be searched was

described as a “36 to 38 foot, fifth-wheel camper with a couple slide-outs.”

Appellant and his live-in girlfriend, Chanel Kantz, were present when the

warrant was executed. Id. at 11. Corporal Brent Bobb asked Appellant if


* Former Justice specially assigned to the Superior Court.
J-S46014-17



there were any weapons in the residence, and Appellant showed the

authorities a handgun located near the entrance on top of a small wooden

cabinet. Id. at 12, 34.

      Located within approximately six inches of the firearm was an oil filter

with a hole at the end, such that a bullet could pass through. Suspecting

that the device was a homemade sound suppressor, Corporal Chad Shultz

placed the oil filter on the firearm’s muzzle and observed that the filter fit on

the threaded portion. He further testified that the oil filter, which would not

otherwise fit the gun’s threading, had a special adapter.         Id. at 37-38.

Appellant told Corporal Bobb that the adapter was a solvent catcher, and

claimed that the hole in the oil filter resulted when “[Kantz] was cleaning her

gun and accidentally fired a round through the oil can.”       Id. at 39.    The

officers then proceeded to search a separate structure immediately next to

the camper, which contained a marijuana growing operation. Id. at 41-42.

      Appellant was subsequently charged with four counts pertaining to the

marijuana: possession with intent to deliver, manufacture, conspiracy to

manufacture, and possession of drugs.        Respecting the firearm, he was

charged with prohibited possession of a firearm and possession of a

prohibited offensive weapon.     Following a bench trial, Appellant was found

guilty of all charges except conspiracy.     The court imposed sentence two

days after trial, over Appellant’s objection, and without the benefit of a pre-

sentence investigation report.

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        On   October    20,   2016,     Appellant   filed   counseled   post-sentence

motions. Five days later, Appellant filed a pro se notice of appeal. The trial

court accepted the pro se motion, granted his request for in forma pauperis

status notwithstanding the fact Appellant was already represented, and

denied the post-sentence motion as moot due to the filing of the pro se

notice of appeal.      This order also states that the post-sentence “[m]otion

would be denied in any event.” Order, 10/27/16, at 1.

        The judge then directed counsel to file a concise statement of matters

complained of on appeal.             Appellant’s counsel complied, and filed a

statement raising the same seven issues presented in the October 20, 2016

post-sentence motion. Counsel then mistakenly filed a notice of appeal to

the Commonwealth Court of Pennsylvania, which transferred the appeal to

this Court.    Order, 11/28/16, at 1.          Thus, counsel apparently treated the

October 25, 2016 order as validly denying the post-sentence motions.

        Preliminarily, we note the procedure irregularities that implicate our

jurisdiction. Appellant’s pro se notice of appeal should have been accepted

for filing and forwarded to counsel.1 Counsel had already filed post-sentence

____________________________________________


1
    Rule of Criminal Procedure 576(A)(4) states:

        In any case in which a defendant is represented by an attorney,
        if the defendant submits for filing a written motion, notice, or
(Footnote Continued Next Page)


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motions, and it was improper to deny those motions as moot due to a pro se

notice of appeal. See Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011)

(litigant, unbeknownst to counsel, filed pro se notice of appeal which

proceeded    on   its     course;    counsel     simultaneously   filed   post-sentence

motions, resulting in parallel appeals).

      The question is what effect those circumstances have on this appeal.

We could quash the appeal and remand for consideration of the timely post-

sentence motions. Commonwealth v. Borrero, 692 A.2d 158 (Pa.Super.

1997) (treating as interlocutory an appeal filed while post-sentence motions

were still pending when appeal was filed, trial court ordered to deem post-

sentence motions filed nunc pro tunc on date the certified record was

remanded). However, we believe that action is unwarranted in light of our

conclusion that Appellant is entitled to a resentencing hearing, and Appellant

is therefore free to file post-sentence motions regarding any issues arising

from that proceeding.




                       _______________________
(Footnote Continued)

      document that has not been signed by the defendant's attorney,
      the clerk of courts shall accept it for filing, time stamp it with the
      date of receipt and make a docket entry reflecting the date of
      receipt, and place the document in the criminal case file. A copy
      of the time stamped document shall be forwarded to the
      defendant's attorney and the attorney for the Commonwealth
      within 10 days of receipt.




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     As to the remaining legal claims, we shall address them in the interest

of judicial economy.    Quashing this appeal would serve only to delay the

resentencing. Significantly, the remaining legal questions are amenable to

disposition at this time as the record is complete. “The Superior Court had

everything it needed to dispose of the appeal on its merits, and there was no

basis for returning the matter to the trial court.” C.f. Cooper, supra at

1008; Borrero, supra (observing that quashing appeal was necessary due

to fact one of the issues challenged the weight of the evidence, which must

be first addressed by the trial judge); Hence, we decline to quash despite

the improper denial of post-sentence motions, and address the issues

presented by Appellant for our consideration.

     I. Whether the Commonwealth proved by sufficient evidence that
     the appellant farmed 21 marijuana plants?

     II. Whether the guilty verdict on count 5 (felon not to possess
     firearm) was supported by sufficient evidence to establish that
     the appellant constructively possessed a firearm which was
     lawfully owned and possessed by his live-in girlfriend?

     III. Whether the guilty verdict on count 6 (prohibited offensive
     weapons) was supported by sufficient evidence to establish that
     the appellant constructively possessed the oil filter/suppressor
     device which was ordered, owned, and possessed by his live-in
     girlfriend?

     IV. Whether the trial court erred in permitting Ms. Chanel Kantz
     to invoke her Fifth Amendment right to remain silence [sic] with
     respect to the facts surrounding counts 5 as she did not face
     criminal jeopardy on the same?

     V. Whether the trial court erred in sentencing Mr. Poust on two
     days short notice after verdict without the benefit of a pre -



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      sentence investigation report and without time to prepare
      evidence in support of leniency?

      VI. Whether the trial court erred in imposing consecutive
      sentences on the theory that Mr. Poust was a dangerous, armed
      drug dealer when that theory was based on pure speculation and
      there was no basis for concluding that Mr. Poust used the
      handgun or suppressor device in furtherance of illegal acts?

Appellant’s brief at 5-6.

      Appellant’s first three claims are presented as challenges to the

sufficiency of the evidence. Whether the evidence was sufficient to support

the conviction presents a matter of law; our standard of review is de novo

and our scope of review is plenary.    Commonwealth v. Walls, 144 A.3d

926, 931 (Pa.Super. 2016) (citation omitted). In conducting our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      First, Appellant faults the adequacy of the Commonwealth’s evidence

that he grew twenty-one marijuana plants, as opposed to sixteen. Since the

number of plants is not relevant to the sufficiency of the evidence for any of

Appellant’s convictions, but rather the offense gravity score, see 204

Pa.Code. § 303.15 (for manufacture/possession with intent to deliver,

offense gravity score is seven for twenty-one to fifty-one plants, and five for

ten to twenty-one plants), we defer discussion of this issue.


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       Appellant’s second and third issues concern the crimes of prohibited

possession of a firearm and prohibited offensive weapon.                The former

offense criminalizes the following:

       (a) Offense defined.--

       (1) A person who has been convicted of an offense enumerated
       in subsection (b), within or without this Commonwealth,
       regardless of the length of sentence or whose conduct meets the
       criteria in subsection (c) shall not possess, use, control, sell,
       transfer or manufacture or obtain a license to possess, use,
       control, sell, transfer or manufacture a firearm in this
       Commonwealth.

18 Pa.C.S. § 6105(a)(1). The latter crime reads as follows:

       (a) Offense defined.--A person commits a misdemeanor of the
       first degree if, except as authorized by law, he makes repairs,
       sells, or otherwise deals in, uses, or possesses any offensive
       weapon.

18 Pa.C.S. § 908. 2

       Appellant’s    argument      regarding    both   convictions   overlaps   and

exclusively challenges the element of possession. Since Appellant was not in

actual possession of the firearm, the Commonwealth’s case rests on

constructive possession, which is “a legal fiction, a pragmatic construct to

deal with the realities of criminal law enforcement. Constructive possession

is an inference arising from a set of facts that possession of the contraband

____________________________________________


2
  We note that the definition of offensive weapon includes a “firearm . . .
specially adapted for concealment or silent discharge[.]” 18 Pa.C.S. §
908(c).



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was more likely than not.”    Commonwealth v. Mudrick, 507 A.2d 1212,

1213 (Pa. 1986). The Commonwealth must establish “conscious dominion,”

which is defined as “the power to control the contraband and the intent to

exercise that control.”   Commonwealth v. Parker, 847 A.2d 745, 750

(Pa.Super.    2004)   (citation   omitted).    In   assessing   whether    the

Commonwealth has established the power and intent to exercise control, we

look to the totality of the circumstances.

      Constructive possession may be proven by circumstantial
      evidence and the requisite knowledge and intent may be inferred
      from examination of the totality of the circumstances. Moreover,
      we review circumstantial evidence under the same standard as
      direct evidence, i.e., that a decision by the trial court will be
      affirmed “so long as the combination of the evidence links the
      accused to the crime beyond a reasonable doubt.

Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (quotation

marks and citations omitted).     The Commonwealth cannot satisfy its case

through evidence so patently unreliable that only conjecture will lead to the

necessary factual finding.   “It is well settled that facts giving rise to mere

‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case of

constructive possession.” Commonwealth v. Valette, 613 A.2d 548, 551

(Pa. 1992).    Thus, we have established that a minimum requirement in

constructive possession cases is that the defendant have knowledge of the

item’s existence.     Commonwealth v. Hamm, 447 A.2d 960, 962

(Pa.Super. 1982) (“At the least, the evidence must show that the defendant

knew of the existence of the item.”) (citations omitted).

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      Appellant   argues   that   the   evidence   establishing   constructive

possession was nothing more than conjecture.       He highlights that the gun

was found on a shelf, and, as such, both he and his girlfriend had equal

access to the firearm. Appellant also states that he was well aware of his

inability to lawfully possess firearms and therefore avoided possessing the

firearm.

      Appellant is correct that the fact multiple persons have equal access to

the item cannot conclusively establish possession. “[W]here another person

has equal access to the area where illegal contraband or weapon is found,

the defendant cannot be said to have either the power to control or the

intent to control such contraband or a weapon per se.” Commonwealth v.

Heidler, 741 A.2d 213, 216 (Pa.Super. 1999) (en banc).

      Nevertheless, equal access is not an affirmative defense, as more than

one person can constructively possess an item.           Commonwealth v.

Macolino, 469 A.2d 132, 136 (Pa. 1983) (“It is no defense that the

appellee's wife could also have maintained a conscious dominion over the

cocaine.   Possession of an illegal substance need not be exclusive; two or

more can possess the same drug at the same time.”). “[I]t is possible for

two people to have joint constructive possession of an item of contraband.”

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014). Therefore,

the fact Appellant’s girlfriend had equal access is simply a relevant

consideration under the totality of the circumstances.

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      We are satisfied that the totality of the circumstances warrants

affirmance. The threshold requirement of knowledge of the item’s existence

was clearly met, as the evidence established that Appellant lived at the

residence and directed the officers to the gun and oil filter.     Additionally,

Appellant identified the real firearm among a collection of “multiple airsoft

toys in the camper,” which Corporal Bobb testified were “very realistic

looking.” N.T., 10/11/16, at 21. The fact that Appellant knew the location

of the one real firearm among several air guns suggested intimate

knowledge.    Furthermore, Appellant and his girlfriend resided in a small

camper.   Appellant’s argument that he would refrain from possessing the

firearm due to his prior conviction proves the necessity of the constructive

possession doctrine, which is “a pragmatic construct to deal with the realities

of criminal law enforcement.” Mudrick, supra at 1213. Obviously, it would

frustrate legitimate law enforcement purposes if Appellant, who is prohibited

from lawfully possessing a firearm, could insulate himself from prosecution

by claiming his own legal disability as a pseudo defense to the charge.

      These circumstances are similar to Commonwealth v. Sanes, 955

A.2d 369 (Pa.Super. 2008), in which Sanes was convicted of, inter alia,

possession of a firearm discovered during a search warrant. Sanes, who was

discovered in a bedroom along with his girlfriend, showed police where two

guns were located. Id. at 371. We affirmed, stating, “[M]ere presence at

the scene is insufficient to prove constructive possession . . . [but] appellant

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lived in the residence, knew exactly where the firearms were, and led police

to them.”     Id. at 374 (citations omitted).    Viewing the totality of the

circumstances in the light most favorable to the Commonwealth as verdict

winner, we conclude that the evidence was sufficient to sustain the finding of

constructive possession.

      Appellant’s fourth issue challenges the trial court’s ruling that Chanel

Kantz, whom Appellant called as a defense witness, properly invoked her

Fifth Amendment privilege against offering testimony.          The following

discussion occurred.

      THE COURT: Well, Mr. Best, what questions because not all
      questions would be privileged I would assume. What questions
      would you pose to Ms. Kantz?

      MR. BEST: Your Honor, my questions are going to hone in on
      the issue of the firearm that specifically that she was the owner
      of the firearm. As to my understanding that she kept the
      firearm in a lock box or habit of keeping the firearm in a lock
      box, and as to where that firearm had been stowed on the day in
      question and as to whether or not Ms. Kantz had taken it out of
      the lock box on the date in question. And I was also intending to
      ask her about whether or not she had acquired the oil can with
      the intention of using it as a solvent catcher. I would argue to
      the Court if the privilege is invoked that those would be lawful
      activities for her and may not necessarily be covered by
      privilege. I represent to the Court that I do not intend at all to
      ask her anything to do with any allegations of marijuana
      cultivation or use.

N.T., 10/11/16, at 63.

      As reflected by Appellant’s response, there were at least two separate

topics with respect to the firearm: the generic possession of the firearm, and



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its adaptation for silent discharge. After Ms. Kantz stated under oath that

she intended to invoke her rights, the trial court granted a blanket privilege,

i.e. a privilege not to answer any questions, a practice our law generally

disfavors. “In addition, a witness may ordinarily only assert the privilege to

avoid responding to a particular question. A blanket privilege generally is not

permitted.”   Commonwealth v. Treat, 848 A.2d 147, 148 (Pa.Super.

2004) (citing Commonwealth v. Tielsch, 789 A.2d 216, 217 (Pa.Super.

2001)).

      The instant ruling is reviewed for an abuse of discretion.      Tielsch,

supra at 217; Commonwealth v. Doolin, 24 A.3d 998 (Pa.Super. 2011)

(“[W]e cannot conclude that the trial court abused its discretion by granting

[the witness] a blanket Fifth Amendment privilege in this case.”). The Treat

Court summarized the applicable legal principles.

      As we stated in [Commonwealth v. Kirwan, 847 A.2d 61
      (Pa.Super. 2003)], “[t]here is no formula for determining when
      and how the Fifth Amendment privilege can be asserted (nor do
      we think one should be created)....” Kirwan, 847 A.2d at 65.
      We are confident that trial courts can draw on their wealth of
      experience and fashion procedures appropriate to the
      practicalities of the case and that will allow the judge to make a
      sufficiently informed decision. We are likewise confident that
      lower courts will create a record sufficient to demonstrate the
      propriety of permitting or denying the privilege at the same time
      as preserving any Fifth Amendment right.

      The relevant parameters of the privilege are clear. The privilege
      extends not only to statements that by themselves would be
      evidence that the declarant has committed a crime, but also to
      assertions that would be “a link in the chain” of evidence needed
      to convict. Commonwealth v. Kopicz, 2003 PA Super 499, ¶

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      19, 840 A.2d 342. “An individual who invokes the privilege must
      have a reasonable basis for believing that the testimony to be
      given will be incriminatory.” Commonwealth v. Rizzo, 455
      Pa.Super. 311, 688 A.2d 185, 190 (1996), rev'd on other
      grounds, 556 Pa. 10, 726 A.2d 378 (1999)
      ....

      [T]he trial court must decide for itself whether the privilege
      exists. “It is for the court to say whether [the witness'] silence
      is justified.” Hoffman v. United States, 341 U.S. 479, 486, 71
      S.Ct. 814, 95 L.Ed. 1118 (1951). Unless the privilege clearly
      does not apply, the trial court should not require the witness to
      answer.

Id. at 148–49 (footnote and paragraph numbers omitted).

      We find no cause to disturb the trial court’s ruling. First, with respect

to any questions about the oil filter adapter, Kantz was awaiting trial on a

prohibited offense weapon charge. Thus, any questions regarding that topic

would clearly be covered by the privilege.

      Second, we find that the same logic extends to questions regarding

the possession of the gun. The parties did not dispute that Kantz purchased

the firearm, and her possession of the weapon in and of itself was not illegal.

Therefore, Appellant plausibly posited that Kantz could answer generic

questions about the gun and how it was stored. However, possession is an

element of the crime of prohibited offensive weapon. Thus, we cannot say

the privilege clearly does not apply, and therefore the court did not abuse its

discretion.




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      Additionally, we note that in Commonwealth v. Knox, 105 A.3d 1194

(Pa. 2014), our Supreme Court observed that a criminal defendant may be

held accountable for the illegal possession of a firearm by another.

      The facts underlying this appeal are cumbersome. In general,
      they reflect a recurring scenario in which a defendant (presently,
      Appellant) is charged with a possessory weapons offense
      deriving from the role of a firearm in a broader criminal
      undertaking, although, factually, another person (here,
      Appellant's brother) actually possessed the weapon during the
      episode and the defendant himself was unarmed.

Id. at 1195. This case implicates a variation of that scenario, as Appellant

was lawfully prohibited from possessing a firearm due to a prior conviction.

Thus, any admission by Kantz that she knowingly possessed the firearm and

permitted Appellant access could subject her to later prosecution, on a

theory of accomplice or conspiratorial liability for Appellant’s prohibited

possession of a firearm, assuming it could be established that Kantz knew

Appellant was not permitted to possess a firearm. Therefore, her testimony

would possibly provide a link in a chain of evidence needed to convict.

      Appellant’s remaining issues concern sentencing.     He posits that the

trial court erred by failing to order a pre-sentence investigation (“PSI”)

report. Next, regarding the actual sentence, Appellant argues that the trial

court abused its discretion in imposing consecutive sentences.         Finally,

Appellant maintains that the Commonwealth failed to establish that he

possessed twenty-one plants.     We conclude that Appellant is entitled to a

new sentencing hearing because the court erroneously sentenced Appellant

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without the benefit of a PSI report, and we do not reach the remaining

sentencing issues.

      “[A] claim that the court erred in failing to order a PSI report raises a

discretionary aspect of sentencing of which a defendant's right to appellate

review is exceptionally limited.”   Commonwealth v. Flowers, 950 A.2d

330, 331 (Pa.Super. 2008). Before we review such a claim on the merits,

we engage in a four part analysis to determine:


      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issue; (3) whether Appellant's brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence [see
      Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises
      a substantial question that the sentence is appropriate under the
      sentencing code. ...

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation

omitted). This appeal was timely filed and includes a separate statement of

reasons as required by Pa.R.A.P. 2119(f). Additionally, Appellant specifically

objected to the lack of a PSI report at the sentencing hearing, preserving the

issue for our review. Finally, Appellant alleges that the court did not state

adequate reasons for dispensing with the report. This claim presents a

substantial question. Flowers, supra.

      We now examine the merits. Pursuant to Pa.R.Crim.P. 702(A)(2)(a), a

judge is required to explain the reasons for dispensing with a PSI report

when, as here, incarceration for one year or more is a possible sentence.



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The trial court did not give an on-the-record explanation for its failure.

Instead, the trial court justified its decision in its Pa.R.A.P. 1925(a) opinion

as follows.

      The Court had the Sentencing Guideline forms and based the
      sentence on those. The sentences all were within the standard
      range of the Sentencing Guidelines and the Court did not deviate
      in any way from a standard range sentence.

      The defense has failed to cite any reason why a delay in
      sentencing would have aided the Defendant or assisted the Court
      in fashioning any type of a different sentence.

Trial Court Opinion, 12/29/16, at 8.

      The failure to set forth this rationale at the sentencing hearing itself

warrants reversal. “[A] sentencing court's reasons for a particular sentence

must be given contemporaneously with the imposition of the sentence. A

more extensive explanation in an opinion filed pursuant to Rule 1925(a) will

not cure a failure to articulate reasons at the time of sentencing.”

Commonwealth v. Serrano, 150 A.3d 470, 475, n.7 (Pa.Super. 2016)

(citation omitted).   Even if there is a distinction to be drawn between the

reasons for a sentence and the reasons for dispensing with a PSI, the trial

court incorrectly focused its analysis on the length of the sentence. Yet that

conclusion overlooks the fact that Appellant’s PSI claim pertains to whether

the sentence was appropriately individualized.     In other words, Appellant’s

claim challenges the means by which the trial court arrived at its sentence,

not the actual sentence.



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      We recognize that the failure to order a PSI does not warrant reversal

per se. In Flowers, supra, we held that Rule 702(A)(2) does not require a

court to specifically document the reasons for dispensing with a report if the

judge possesses the necessary information from another source.                Thus,

Flowers recognized that the harmless error doctrine might apply “[if] the

court elicited sufficient information during the colloquy to substitute for a PSI

report, thereby allowing a fully informed sentencing decision.” Id. at 333.

However, the fact that the trial court faulted Appellant for not offering

mitigating information after-the-fact amounts to a concession that the court

failed to “elicit[ ] sufficient information . . . to substitute for a PSI report” at

the time of sentencing. Flowers, supra. Appellant did not bear the burden

of establishing that a PSI would have been helpful.              Accordingly, this

sentence was not individualized and therefore must be vacated. Since we

conclude Appellant is entitled to resentencing we need not address

Appellant’s remaining sentencing claims.

      Finally, we note that, following submission of briefs in this matter,

counsel filed an application to withdraw representing that his contract with

Snyder County for court appointments terminated during the pendency of

these proceedings. We grant that application. Upon remand, the trial court

shall appoint new counsel for any further proceedings.

      Judgment of sentence vacated. The application of James L. Best, Esq.

to withdraw granted. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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