J-S04046-16

                               2016 PA Super 41

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JAMES PAUL FINNECY,

                          Appellant                  No. 1871 WDA 2014


            Appeal from the Judgment of Sentence October 7, 2014
              In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000498-2013
                           CP-61-CR-0000688-2009


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                             FILED FEBRUARY 18, 2016

       Appellant James Finnecy appeals from the aggregate judgment of

sentence of twelve and one-half to twenty-five years incarceration.      After

careful review, we affirm.

       The instant appeal is the latest of Appellant’s multiple appearances

before the trial court relating to his underlying offenses.     Appellant was

initially sentenced on January 22, 2010, to a maximum of two years

incarceration for counts of unauthorized use of a motor vehicle and theft by

unlawful taking, as well as two consecutive terms of 18 months probation for

escape, resisting arrest, forgery, and identity theft.     Upon concluding his

term of incarceration on October 26, 2011, Appellant was placed on Venango

County Probation. He was assigned to an officer on October 30, 2011, with

a maximum date of supervision of October 26, 2014.           The next several
*
    Retired Senior Judge assigned to the Superior Court.
J-S04046-16



months saw multiple probation violations and failed attempts at treatment

for Appellant’s recurring drug use, all supervised by the trial court.    In

response to his penultimate violation, the trial court revoked Appellant’s

probation and sentenced him to twelve to twenty-four months incarceration

in the Venango County Jail. His subsequent conduct was summarized by the

trial court as follows.

            On April 10, 2014, [Appellant] was released from Venango
      County Prison and paroled to the Oxford House located at 1417
      Chestnut Street, Franklin, PA. Thereafter, [Appellant] began his
      drug and alcohol treatment with Venango County Substance
      Abuse program. [Appellant] also held employment for a short
      period of time at Venango County Steel. On May 30, 2014, a
      Special Field Report was prepared for Venango County Court
      requesting a bench warrant to declare [Appellant] an absconder.
      On June 4, 2014, a bench warrant was issued by Venango
      County Court. Constable Craig Westover and the Oil City Police
      Department arrested [Appellant] on July 6, 2014.

             On July 18, 2014, the Commonwealth filed a petition to
      revoke [Appellant’s] probation/parole. On August 28, 2014,
      [Appellant] appeared at a hearing to determine whether his
      probation should be revoked. [Appellant] was represented by
      counsel, Jeffrey Misko, Esq. With the advice of counsel in open
      court, [Appellant] waived Gagnon I and proceeded to Gagnon
      II. At Gagnon II, [Appellant] admitted that while on parole
      and probation status[,] he changed his residence, failed to
      report, violated curfew, used crack cocaine, associated with drug
      users or dealers, and consumed alcohol. As these were material
      violations of the conditions of parole and probation, parole and
      probation were revoked. [Appellant] appeared for resentencing
      on October 7, 2014, and was sentenced to 12½ years to 25
      years in a state institution of the Department of Corrections.
      [The trial court] determined at sentencing that [Appellant] was
      not RRRI eligible.

Trial court opinion, 11/18/14, at unnumbered pages 4-5 (emphasis added).



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J-S04046-16



       Appellant filed a 1925(b) concise statement of errors complained of on

appeal, and the trial court declined to author a 1925(a) opinion, opting

instead to rely upon its November 18, 2014 Opinion in which it denied

Appellant’s post-sentence motion. The matter is now ready for our review.1

    Appellant levels three issues for our consideration:

    1. Whether the trial court erred as a matter of law or abused its
       discretion in failing to order a pre-sentence investigation report
       (PSI) as required by Pennsylvania Rule of Criminal Procedure
       702(A)(2)(A) as [Appellant] was facing a sentence of one year or
       more?

    2. Whether the trial court erred as a matter of law or abused its
       discretion in determining that [Appellant] is not eligible for the
       Recidivism Risk Reduction Incentive (RRRI) program and,
       therefore, denying his eligibility for said program?

    3. Whether the trial court allowed bias, prejudice or ill will in
       crafting an emotionally motivated sentence that was manifestly
       unreasonable in relation to the previous sentences related to
       [Appellant] in these cases and whether the sentence imposed by
       this Honorable Court is contrary to the fundamental norms
       underlying the sentencing process?

Appellant’s brief at unnumbered page 1.

       Appellant’s first and third issues challenge the discretionary aspects of

his sentence.     He must therefore petition for permission to appeal those
____________________________________________


1
  While we have the benefit of a thoughtful opinion from the Honorable
Robert Boyer to inform our disposition, we note that the Commonwealth
declined to file a brief in this matter. We regret that the Venango County
District Attorney did not see fit to weigh in on this issue, which had not
previously been addressed in a published decision by this Court and has
recently been examined in reference to another offense by the Pennsylvania
Supreme Court.



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issues,   as   “the   right   to   pursue        such    a   claim   is   not   absolute.”

Commonwealth v. Rhoades, 8 A.3d 912 (Pa.Super. 2010). Additionally,

            When challenging the discretionary aspects of the sentence
      imposed, an appellant must present a substantial question as to
      the appropriateness of the sentence. Two requirements must be
      met before we will review this challenge on its merits. First, an
      appellant must set forth in his brief a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence. Second, the appellant must
      show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code.

Id.

      Appellant provided as part of his brief a proper Pa.R.A.P. 2119(f)

concise statement for reasons relied upon for allowance of appeal, and each

issue addressed in his brief is sufficiently stated and explained.                     We

therefore individually examine each to determine if it presents a substantial

question that warrants our review.               If an issue presents a substantial

question, then our “scope of review in an appeal following a sentence

imposed after probation revocation is limited to the validity of the revocation

proceedings     and    the     legality     of     the       judgment     of    sentence.”

Commonwealth v. Ferguson, 893 A.2d 735 (Pa.Super. 2006). We further

note that “[t]he imposition of sentence following the revocation of probation

is vested within the sound discretion of the trial court, which, absent an

abuse of that discretion, will not be disturbed on appeal.” Commonwealth

v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super. 2012).




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J-S04046-16



      At his first issue, Appellant argues that the trial court erred in failing to

order a pre-sentence investigation (“PSI”) report prior to his sentencing.

That failure deprived the court of “information regarding [Appellant] and

many factors that could aid the court in developing a sentence upon the

individual needs of [Appellant].”    Appellant’s brief at 4.   As the trial court

neither ordered a PSI report nor explained its decision on the record,

Appellant alleges that the trial court violated Pa.R.Crim.P. 702(A)(2)(a)

(“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” where “incarceration for one year or more is a possible

disposition under the applicable sentencing statutes[.]”).           Accordingly,

Appellant argues that he is entitled to resentencing because a proper PSI

report would have provided essential information that would have allowed

the trial court “to view [Appellant’s] case with the most recent information

related to [Appellant] possible.” Id. at 5.

      Appellant relies on Commonwealth v. Flowers, 950 A.2d 330

(Pa.Super. 2008), in support of his argument. In Flowers, this Court held

that a sentencing court abused its discretion in failing to either order a PSI

report or explain on the record its reasons for doing so.              We noted

specifically that the court’s offering of only a limited colloquy with the

defendant at his sentencing hearing was inadequate, even in light of that

court’s familiarity with the defendant due to his frequent appearances before

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J-S04046-16



it. Importantly, our holding advanced a policy to “guard against potential for

recidivism” by requiring a trial court to become fully informed regarding

defendant’s history and background or to explain adequate reasons for its

refusal to do so. Id. at 334.

      The Commonwealth did not file a brief in this matter, and the trial

court rested upon its denial of Appellant’s post-sentence motion rather than

author a separate 1925(a) opinion. In that denial, the trial court explained

that it “did indeed apprise itself sufficiently of [Appellant’s] history” and that

it relied upon a PSI report prepared in anticipation of Appellant’s March 7,

2014 sentencing hearing, as well as victim impact statements and the

specific charges against Appellant.             Trial court opinion, 11/18/14, at

unnumbered page 6. In the months following that hearing, the trial court

“actively explored the defendant’s character and his potential response to

rehabilitation programs.” Id. at 7 (citation omitted).

      We initially note that this challenge presents a substantial question.

See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n

appellant's   allegation   that   the   trial   court   imposed   sentence   without

considering the requisite statutory factors or stating adequate reasons for

dispensing with a pre-sentence report [raises] a substantial question.”). We

therefore address the merits of his argument.

      Although Appellant is correct in his assertion that the statutory

language requiring a PSI report is clear, he ignores the fact that this Court

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J-S04046-16



has   provided     “some    latitude    in    how    this   requirement      is   fulfilled.”

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

(citing Flowers, supra at 333). Indeed, case law does not require a PSI

report in all instances.          Commonwealth v. Goggins, 748 A.2d 721

(Pa.Super. 2000) (en banc).          The essential inquiry is instead whether the

sentencing court was “apprised of comprehensive information to make the

punishment fit not only the crime but also the person who committed it.”

Id.

      While Flowers is instructive, the analysis contained therein is

inapplicable to the instant matter. The sentencing court in Flowers, which

was familiar with the defendant’s conduct, had no PSI report and instead

relied upon its own knowledge of the defendant and his history.                     To the

contrary, the sentencing court herein ordered a PSI report in January 21,

2014, in advance of Appellant’s March 7, 2014 sentencing on the charges

that underlie this appeal. In addition to the court’s “sufficient knowledge of

[Appellant’s]    character,       background,      and   his   potential    response      to

supervision programs,” the court recognized that Appellant violated the

conditions of his probation just seven months after his March 7, 2014

sentencing. Trial court opinion, 11/18/14, at unnumbered page 7.

      The PSI report, in addition to the trial court’s familiarity with

Appellant’s     past   criminal    conduct    and    the    extensive      discussions    of

Appellant’s rehabilitative options, goals, and needs on the record, rendered

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J-S04046-16



the trial court sufficiently informed such that its sentence reflected the

unique nature of his character and the various offenses.            Since the PSI

report was just seven months old and Appellant presented no argument or

evidence of changed circumstances that warranted an updated report, we

are satisfied that the sentencing court was sufficiently apprised of the unique

facts of the case to render an individually tailored punishment. Therefore,

we affirm the trial court at Appellant’s first issue.

       Appellant next challenges the trial court’s finding that he is ineligible

for the RRRI. In order to be eligible for RRRI, a defendant, inter alia, must

not have committed one of several crimes or have a history of present or

past violent behavior.      Those crimes rendering a defendant RRRI ineligible

include a history of violence, sexual offenses, personal injury crimes, and

offenses involving deadly weapons.             See 61 Pa.C.S. § 4503.   Appellant,

having not been convicted of any crimes enumerated in the RRRI statute

and contending he has no history of violence, argues that the court’s finding

of ineligibility was erroneous.        He specifically challenges the trial court’s

classification of “resisting arrest” as a violent crime, which excluded him

from eligibility for RRRI.2


____________________________________________


2
  Though Appellant has not challenged whether his sole conviction for
resisting arrest is sufficient to show a history of violence, we recognize this
Court’s recent decision in Commonwealth v. Cullen-Doyle, 2016 PA Super
(Footnote Continued Next Page)


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J-S04046-16



      In its opinion, the trial court explained that resisting arrest, under

Pennsylvania law, necessarily includes conduct that presents serious

potential risk of physical injury to another.      Relying on United States v.

Stinson, 592 F.3d 460 (3d Cir. 2010), the court further recognized that

resisting arrest involves challenging the authority of a police officer, who is

charged with effectuating apprehension and is most likely armed, and is

likely to result in injury or, at the very least, risk of injury.    Trial court

opinion, 11/18/14, at unnumbered page 8.            As RRRI is available only to

those who do “not demonstrate a history of present or past violent behavior

and because the offense of resisting arrest indicates such violent behavior,”

the court maintains that its finding that Appellant is ineligible for RRRI is

proper. Id.

      A challenge to a court's failure to impose an RRRI sentence implicates

the legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 670

(Pa.Super. 2014). “It is legal error to fail to impose a RRRI minimum on an

eligible offender.”       Id.    Thus, as “statutory interpretation implicates a

question of law, our scope of review is plenary and our standard of review is

de novo.” Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa.Super. 2012)

(citation omitted).

                       _______________________
(Footnote Continued)

10 (Pa.Super. filed January 21, 2016), which held that one instance of
misconduct may constitute a “history” for RRRI purposes.



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J-S04046-16



      Section 4503 of the RRRI Act defines “eligible offender” in relevant

part as follows:

      A defendant or inmate convicted of a criminal offense who will be
      committed to the custody of the department and who meets all
      of the following eligibility requirements:

            (1) Does not demonstrate a history of present or
            past violent behavior.

            ***

            (3) Has not been found guilty of or previously
            convicted of or adjudicated delinquent for or an
            attempt or conspiracy to commit a personal injury
            crime as defined under section 103 of the act of
            November 24, 1998 (P. L. 882, No. 111),[ ] known
            as the Crime Victims Act, except for an offense under
            18 Pa.C.S. § 2701 (relating to simple assault) when
            the offense is a misdemeanor of the third degree, or
            an equivalent offense . . . .

61 Pa.C.S. § 4503(1), (3).

      In Commonwealth v. Chester, 101 A.3d 56, 57 (Pa. 2014), the

Pennsylvania Supreme Court resolved whether a conviction for first-degree

burglary demonstrates “violent behavior” under Section 4503(1) as a matter

of law. Though the Chester Court observed that “the RRRI Act does not

define what constitutes a ‘history of present or past violent behavior,’” it

noted that Section 4503(2)-(6) enumerates crimes “that render an offender

ineligible to receive a reduced minimum sentence[.]”        Id. at 58, 63.

Although burglary is not included as a per se disqualifying crime, the Court

construed “Section 4503(1) as a broad, ‘catchall’ provision” that covered



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J-S04046-16



“violent behaviors not otherwise identified in the RRRI Act’s definition of

‘eligible offender.’” Id.

      The Chester Court held that a first-degree burglary conviction renders

a defendant ineligible to receive an RRRI-reduced minimum sentence under

Section 4503(1).     Id. at 65.   The Court reviewed the treatment of the

offense at law as well as the structure and language of the burglary statute.

See id. at 64–65. It observed that “burglary has been treated as a crime of

violence dating back to the common law of England,” which “punished

burglars with death because of the great public policy involved in shielding

the citizenry from being attacked in their homes and in preserving domestic

tranquility.”   Id. at 64 (brackets removed).     Tracing the treatment of

burglary at law, the Court recognized that “all burglaries are crimes of

violence for the purposes of the significant history of violent felony

convictions aggravating circumstance for capital sentence.” Id. (discussing

42 Pa.C.S. § 9711(d)(9)). Moreover, first-degree burglary is expressly listed

as a crime of violence under Pennsylvania's recidivist sentencing statute, as

well as a disqualifying offense for boot camp. Id. (discussing 42 Pa.C.S. §

9714(g) and 61 Pa.C.S. § 3903).

      The Chester Court further reviewed the text of the burglary statute

and discerned a distinction between first and second degree offenses, “as

first-degree burglary contemplates the potential for confrontation, whereas

second-degree burglary does not.”       Id.   (distinguishing the finding in

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J-S04046-16



Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa.Super. 2010), that

second-degree burglary does not render an individual per se ineligible for

RRRI). The Court emphasized a conviction for first-degree burglary imputed

a risk of confrontation and violence because the structure invaded was either

adapted for overnight use or an individual was present at the time of entry.

Id. at 65.

      The Chester Court, in holding that Section 4503(1) encompasses all

“‘violent behavior’ in addition to the enumerated crimes contained in Section

4503(2)-(6)[,]” explicitly rejected the defendant's application of expressio

unius est exclusio alterius, a principle of statutory interpretation holding

that, when one or more things of a class are expressly stated, others of the

same class are to be excluded. Id. at 63. Furthermore, the Court dismissed

the defendant's argument that his prior burglaries did not involve violent

behavior, concluding: “it is an offender's non-privileged entry, which

‘invit[es] dangerous resistance’ and, thus, the possibility of the use of deadly

force against either the offender or the victim, that renders burglary a

violent crime, not the behavior that is actually exhibited during the

burglary.” Id. (citation omitted).

      In light of the guidance from Chester, we consider whether a prior

conviction for resisting arrest falls within the meaning of “violent behavior”

as used in Section 4503(1), rendering an offender ineligible for RRRI.

Section 5104 of the Crimes Code provides:

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J-S04046-16



      A person commits a misdemeanor of the second degree if, with
      the intent of preventing a public servant from effecting a lawful
      arrest or discharging any other duty, the person creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force
      to overcome the resistance.

18 Pa.C.S. § 5104 (emphasis added).             Notably, resisting arrest contains

alternative bases for liability, i.e., acts creating a substantial risk of injury or

requiring   substantial   force   to   overcome.      See   Commonwealth         v.

Thompson, 922 A.2d 926, 928 (Pa.Super. 2007).               The use of the term

“substantial” is consistent with the 1972 Official Comment that “this section

changes existing law somewhat by not extending to minor scuffling which

occasionally takes place during an arrest.” 18 Pa.C.S. § 5104, 1972 Official

Comment.       Similarly, the Model Penal Code drafters indicated their

suggested “language exempts from liability nonviolent refusal to submit to

arrest and such minor acts of resistance as running from a policeman or

trying to shake free of his grasp.” Model Penal Code § 242.1, Explanatory

Note for Sections 242.1–242.8.

      Appellant contends that “the actual crime of resisting arrest . . . does

not have to contain any violent act. The mere action of laying oneself on the

ground could incur a citizen the charge of resisting arrest.” Appellant’s brief

at unnumbered 11. However, that conduct is already excluded by the very

definition of the statute. An individual who has been convicted of resisting

arrest necessarily created a substantial risk of bodily injury or required an



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J-S04046-16



officer to use substantial force.   We cannot agree with Appellant that a

conviction for resisting arrest is not “violent behavior” for the purposes of

the RRRI statute as understood and analyzed by the Chester Court. See

Chester, 101 A.3d at 64–65 (noting first-degree burglary is a crime of

violence because of the potential for confrontation and possibility of deadly

force). See also Stinson, 592 F.3d at 466 (“[T]he crime of resisting arrest

in Pennsylvania does not encompass passive resistence[.]”).

      In Commonwealth v. Clark, 761 A.2d 190 (Pa.Super. 2000), we

sustained a conviction for resisting arrest based on the following:

      The Carlisle Police responded to a fight in front of the Carlisle
      Tavern on South Hanover Street, just south of the Courthouse.
      The defendant was first observed in a crosswalk. He then
      approached Officer Kevin Roland at which time he was screaming
      profanity. When Officer Roland attempted to arrest the
      defendant for disorderly conduct, the defendant avoided arrest
      by walking backwards and walking in circles. From time to time,
      the defendant would assume a fighting stance. The officer then
      sprayed the defendant with pepper spray in an effort to subdue
      him. The defendant then began running down South Hanover
      Street in the travel lanes of the roadway. The officer ran after
      the defendant until Mr. Clark slipped on the wet roadway and fell
      down. The officer then turned the defendant over onto his
      stomach and handcuffed him.

Clark, 761 A.2d at 191. In light of that record, the Clark Court concluded

that “substantial force was thus required to overcome [the defendant's]

resistance to the arrest.” Id. at 193–94.

      In Thompson, supra, the defendant and her husband were involved

in an argument with employees and another driver inside a parking garage.



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J-S04046-16



Thompson, 922 A.2d at 927.        Two officers on horseback arrived and the

following occurred:

      Officer Deborah Ewing heard profanities as she approached the
      garage. Once inside, she observed [the defendant's unoccupied]
      vehicle by the booth. [The defendant] was standing behind the
      car, and [the defendant's husband] was shouting at the driver of
      the other vehicle. When Officer Ewing attempted to get [the
      defendant's husband’s] attention by calling and whistling, he
      began flailing his arms and hitting the officer. While trying to
      control her horse, Officer Ewing informed [the defendant's
      husband] that he was under arrest.... [The defendant]
      approached Officer Ewing, yelling and waving her hands in an
      attempt to scare the horse. [The defendant] hit the horse's nose,
      causing the animal to rear up.

      Officer Canfield then arrived on the scene, dismounted his horse
      to [defuse] the activity among [the defendant], Officer Ewing,
      and Officer Ewing's horse. As the couple attempted to re-enter
      their vehicle, Officer Canfield yelled, pushed them against the
      car, threw them to the ground, and a struggle ensued. [The
      defendant] and her husband interlocked their arms and legs and
      refused to respond to Officer Canfield's verbal commands to
      release their hands. The officers attempted to pry the couple
      apart to handcuff and place them in custody. After struggling
      with the officers for a few minutes, [the defendant] was
      eventually disengaged from Mr. Thompson and handcuffed after
      pepper spray was deployed.

Id. The defendant was convicted of resisting arrest, disorderly conduct, and

taunting a police animal. Id.

      On appeal, the defendant in Thompson challenged her resisting arrest

conviction and argued “her ‘passive’ resistance to the officers' attempts to

place her in custody belie[d] any intent to strike or use force against them.”

Id. at 928. This Court rejected that argument, relying in part upon Clark.

Specifically, we observed, “Officer Ewing ... struggled to pull [the defendant]

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J-S04046-16



apart from her husband with whom she interlocked her arms and legs”

despite the officers' commands to disengage from her husband.         Id.   We

further noted “Officer Canfield testified that his attempts to restrain the

couple to place them under arrest left him ‘exhausted.’”         Id. (citation

omitted).   Thus, the Thompson Court concluded the defendant's “use of

passive resistance requiring substantial force to overcome provided sufficient

evidence for upholding the resisting arrest conviction.” Id.

      Chester precludes this Court from engaging in a case-by-case analysis

of the facts to determine whether a per se disqualifying crime imputes

violent behavior.   See Chester, supra at 65.         Tellingly, however, our

decisions in Clark and Thompson reveal that conduct constituting resisting

arrest, even by passive resistance, requires such a substantial use of force

that an officer or offender may be harmed, thereby causing significant risk of

injury, and invites the same potential for confrontation that greatly

concerned the High Court in considering the offense of first-degree burglary.

Indeed, the Chester Court was concerned with “the possibility of the use

of deadly force against either the offender or the victim” and “not the

behavior that is actually exhibited” during the commission of the crime. Id.

(emphasis added).

      We further recognize that, relying on decisions by our courts, the

federal courts have found that the essence of resisting arrest is the creation

of a substantial risk of bodily injury and thus explicitly constitutes a “crime

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J-S04046-16



of violence.”   See Stinson, 592 F.3d at 466 (citing Commonwealth v.

Miller, 475 A.2d 145, 146 (Pa.Super. 1984) (noting that resisting arrest

requires the creation of substantial risk, not that an offender show

“aggressive use of force such as striking or kicking of the officer”)).

      The trial court asserts that, even if resisting arrest is not enumerated

as disqualifying offense, it should be considered a violent crime that permits

a trial court to find that a defendant has a history of violence such that he is

ineligible for RRRI. The trial court relied upon Stinson, supra, to support

its finding that resisting arrest is a violent crime. For the following reasons,

we agree that Stinson is persuasive.

      Under the federal sentencing guidelines, a defendant is considered a

“career offender” if in relevant part he has “at least two prior felony

convictions of ... a crime of violence [.]” U.S.S.G. § 4B1.1. The guidelines

define a “crime of violence” as “any offense under federal or state law,

punishable by a imprisonment exceeding one year, that ... otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a)(2).

      In Stinson, the Third Circuit held that resisting arrest was a

categorical “crime of violence” for sentencing purposes because “it involves

conduct that presents a serious potential risk of physical injury to another.”

Stinson, 592 F.3d at 466. The Court reasoned:




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      Although the language of Pennsylvania's resisting arrest statute
      “does not require the aggressive use of force such as striking or
      kicking of the officer,” we have found no decision under
      Pennsylvania law that affirmed a conviction for resisting arrest
      based on a defendant's inaction or simply “lying down” or “going
      limp.” Counsel arguing before us on this appeal could cite to
      none in response to our questions. In fact, there are several
      cases in which Pennsylvania courts have recognized that
      resisting arrest does not extend to “minor scuffle[s] incident to
      an arrest.” It is only when a defendant who was “struggling and
      pulling, trying to get away from [the arresting officer who was
      physically restraining him],” that he was convicted of resisting
      arrest, and such cases are rare.

Id. (citations omitted).      The Stinson Court rejected the defendant's

argument, which parallels the one presented here, that under Thompson, a

Pennsylvania conviction could reflect “active” or “passive” resistance.

      In doing so, the Stinson Court was called to rule on the implication of

appellant’s resisting arrest conviction on his federal sentencing guideline

score and specifically whether it is a “crime of violence,” a task similar to the

one presented to this Court.       Thus, we only look to Stinson and other

federal cases for guidance as persuasive authority with respect to the

Commonwealth’s RRRI statute.

      Appellant did not present, and the trial court did not address, any

secondary argument that Appellant is ineligible for RRRI. N.T. Sentencing,

10/7/14, at 44. We therefore conclude that Appellant’s prior conviction for

resisting arrest demonstrates “a history of present or past violent behavior”

for the purposes of determining RRRI eligibility. Accordingly, we agree with

the trial court’s finding in this respect and affirm.

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      We move to Appellant’s third argument that his sentence was

“contrary to the fundamental norms underlying the sentencing process”

because all of his crimes were non-violent offenses “motivated by [his]

addiction to illegal drugs.” Appellant’s brief at unnumbered 13. Specifically,

he argues that the sentencing court did “not take into account the goals of

individualized sentencing that takes into account the individual’s needs.” Id.

      By alleging that the sentencing court did not adequately consider all of

the requisite factors in fashioning Appellant’s sentence, he presents a

substantial question. See, e.g., Commonwealth v. Bricker, 41 A.3d 872,

876 (2012) (recognizing that an appellate court is to determine “whether the

[sentencing] court imposed an individualized sentence) (citation omitted).

He complains that the sentencing court was improperly motivated by its

personal frustration with Appellant, his many unsuccessful attempts at

rehabilitation, and the frequency with which he interacts with the court.

      As discussed supra, the sentencing court had the benefit of a recent

PSI report. “[W]here the sentencing judge had the benefit of a presentence

investigation report, it will be presumed that he or she was aware of the

relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Clarke, 70 A.3d 1281, 1287 (2013), appeal denied, 85 A.3d 481 (Pa. 2014).

      Further,   in   issuing   Appellant’s    sentence,   the   court   specifically

addressed his rehabilitative needs and history, as well as previous violations

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and punishments.    In its frustration with Appellant’s repeated misconduct

and inability to reform, the sentencing court demonstrated that it had

intimate familiarity with Appellant and his needs and that the sentence was

imposed both to vindicate the authority of the court and because Appellant

had “repeatedly and significantly violated conditions of supervision, and

most recently was an absconder from supervision.            The conduct of

[Appellant] indicates that [he] will commit another crime if not imprisoned.”

N.T. Sentencing, 10/7/14, at 44.

     In light of the sentencing court’s access to a current PSI report and the

explanation provided to Appellant for his sentence at his hearing, we cannot

find that the court abused its discretion in imposing its sentence of twelve

and one-half to twenty-five years incarceration.

     Judgment of sentence affirmed. Jurisdiction relinquished.

     Judge Olson joins the majority.

     Judge Strassburger files a Concurring Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016


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