J-A18037-16

                               2016 PA Super 210



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

GABRIEL PIO JESUS SHULL,

                         Appellee                     No. 1607 MDA 2015


          Appeal from the Judgment of Sentence August 11, 2015
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0001772-2014


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

GABRIEL PIO JESUS SHULL,

                         Appellant                    No. 1670 MDA 2015


          Appeal from the Judgment of Sentence August 11, 2015
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0001772-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and Stevens, P.J.E.*

OPINION BY STEVENS, P.J.E.:                     FILED SEPTEMBER 13, 2016


      The Commonwealth appeals from the judgment of sentence entered in

the Court of Common Pleas of Centre County, Senior Judge Michael

Williamson presiding, who, sitting as finder of fact in Gabriel Pio Jesus Shull’s

(“Shull”) non-jury trial, convicted Shull of one count each of Robbery—Fear

*Former Justice specially assigned to the Superior Court.
J-A18037-16



of Serious Bodily Injury, Unlawful Restraint, Simple Assault, Possessing an

Instrument of Crime (“PIC”), and Possession of Drug Paraphernalia. 1 Raised

in the Commonwealth’s appeal are the contentions that the trial court

abused its sentencing discretion in refusing to apply a deadly weapon

enhancement, in sentencing Shull below the guideline range, and in

modifying Shull’s sentence for the sole purpose of changing his place of

confinement.

       In his cross-appeal, Shull asserts the trial court committed error when

it denied his motion to disqualify the District Attorney, failed to transfer his

case to juvenile court, denied his objection to the admission of other bad

acts evidence, and failed to award credit for pre-trial time served for his

voluntary admission in privately run, inpatient rehabilitation facilities. Shull

also contends that evidence was insufficient to support his Robbery

conviction.     After careful review, we affirm Shull’s convictions, but we

remand for resentencing and caution the trial court to impose sentence in a

manner consistent with this decision and in accordance with appropriate law.

       This matter stems from then-seventeen year-old Gabriel Shull’s

conduct during the early morning hours of October 13, 2014, as he drove in

Centre County smoking marijuana with a former high school acquaintance,

Paul Sepich, who had entered his freshman year at Penn State University.
____________________________________________


1
 18 Pa.C.S. §§ 3701(a)(1)(ii), 2902(a)(1), 2701(a)(1), 907(a), and 35
Pa.C.S. § 780-113(a)(32), respectively.



                                           -2-
J-A18037-16



N.T., 6/17/15 at 15-20. Sepich and Shull were not friends in high school,

but they had crossed paths very briefly at a mutual friend’s house a week

earlier, Sepich would later testify at trial. He said he entered Shull’s car as it

pulled up that night thinking a different “Gabe”—Gabe Sandoval—had

phoned and invited him to “smoke weed” and drive around town.                  Id.

Despite his surprise at seeing Shull, Sepich remained in Shull’s company for

the duration of the night.

        During the course of the night, Shull made stops at a convenience

store and two different Walmart stores.       At the North Atherton Walmart,

Sepich and Shull walked to the sporting goods department and were looking

at pellet guns. According to Sepich’s testimony, he told Shull he hoped to

buy one of the guns once he saved enough money. N.T., at 34-37. Shull

took the box off the shelf and began to tamper with it, prompting Sepich to

to disassociate himself with an apparent shoplifting in progress by walking

away.     Id.   On cross-examination, Sepich denied the suggestion that he

supported the theft by advising Shull to take a gun without an orange tip if

he intended to use it for a robbery. N.T., at 80.

        Walmart surveillance video admitted at trial captured Shull removing a

Daisy CO-2 pellet gun—which replicates an actual handgun—from the box,

placing it underneath his clothing, rejoining Sepich in a nearby aisle, and

leaving the store without paying.     N.T., at 108-09, 112.      Lacking a CO-2

cartridge, however, the pellet gun was incapable of firing a pellet that night.

N.T., at 116.

                                      -3-
J-A18037-16



      At approximately 3:00 a.m., the two were driving in downtown State

College as 23 year-old Penn State student Morgan Grego was walking home

after she had completed work at a local pub and stopped for groceries. N.T.,

at 160-162.     Carrying grocery bags and her purse, Grego elected to turn

down less-traveled Calder Avenue in order to avoid walking by “the drunk

students that normally take College Avenue” during the early morning hours.

N.T., at 162.

      As she walked along Calder toward her residence on South Burrowes

Street, Grego noticed two men in a car pull out of a nearby parking deck,

drive past her “a little faster than what was appropriate,” and turn right onto

South Burrowes. N.T., at 181-82. She did not think anything of it at the

time, and she continued to walk.         Before Grego reached the corner,

however, Shull had alighted his vehicle and intercepted her on the pretext

that he needed directions to a gas station. N.T., at 162-63.

      Grego stopped and pointed the way to the convenience store where

she had just been, to which Shull replied “[o]kay, do you think you can spot

me some money?”       N.T., at 163.   Feeling uncomfortable, Grego answered

“no” and attempted to walk away, but Shull, with his hands remaining in his

hoodie pocket, blocked her path. N.T., at 163, 168. As Grego repeatedly

tried to walk around Shull, he continued to block her path in an increasingly

aggressive manner. N.T., at 163-68. Now frightened, Grego pushed Shull,

but he remained in front of her. Id. She pushed harder, and, according to

Grego, he “got really mad and kind of snapped and came at me.” N.T., at

                                      -4-
J-A18037-16



163. At that point, Shull grabbed for Grego’s purse with one hand and held

her body with the other. N.T., at 171.

     “When he couldn’t separate me from any of my things, he just

whipped me down on the ground[,]” Grego testified.        N.T., at 169.     With

Grego on her back, Shull reached down, grabbed her by her hair, and

dragged her as he walked in the direction opposite from her destination. Id.

It was at this point that Grego looked up and saw a gun in Shull’s other

hand. N.T., at 169-70. Utterly panicked, Grego began to scream as Shull

continued to drag her “like luggage” without either looking down at her or

saying anything for just under ten seconds, Grego estimated, before a police

car turned the corner. N.T.,at 172-73. Grego described her experience and

observations as follows:

     Q:    I mean, were you afraid?

     A:    I was very afraid. I didn’t feel very human just because,
     like I said, when you are on your back, you are completely
     submissive. The person that is kind of controlling you, I guess,
     if they’re not even looking at you, I just felt kind of
     dehumanized, I guess. I have never felt that way before.

           So, like I said, I looked up at him. Saw just the back of
     his head as he was pulling me. I saw the gun and that’s when I
     got really afraid. So I just looked straight up. I thought, okay,
     look for anything that you can get assistance from. I’m looking
     at the apartment buildings, looking for a parked car, like, just
     any kind of assistance, No lights were on in the tops of the
     windows. No lights. No cars. Obviously, no store is open.

           So I just felt very alone. There was no one else on the
     streets. So, yeah, I just felt very helpless and, like I said, I was
     screaming. But then after I [] belted out a good four of them, I
     kind of realized there’s no one here to help me and screaming

                                    -5-
J-A18037-16


     might not work. I kind of felt like a statistic. I thought, you
     know, this happens every day to people and you hear about it in
     the news but I never thought it was going to happen to me, but
     I guess this is going to happen. Whatever is going to happen is
     going to happen. So, there’s that odd, like, sad, acceptance that
     --
     Q:    You realize you were –

     A:    --I had no control.

     ***
     Q:    Can you describe what you saw of the gun/

     A:    I saw – he was holding it as if you were going to, you
     know, shoot something, you know, finger in the right place for
     the trigger. He was holding the end of it. I saw the – I don’t
     know anatomy.

     Q:    That’s okay.

     A:   I saw the barrel, if you will. So that’s what I saw. I knew
     immediately what it was. It looked like a gun a police officer
     might carry. So I recognized it very –

     Q:    Did you[--]

     A:    -- quickly.

     Q:    --think it was real?

     A:    Yes. That’s when, like I said, I looked up and just looked
     for help because I knew that this is real right now. It’s not
     someone just, you know, messing with me. He’s – something
     bad is going to happen right now and I have no idea what it is.

     ***
     Q:   So, he had it out – just out in the open holding it in his one
     hand?

     A:    Yes, and me in the other.

     ***
     Q:    Do you know anything about guns?


                                    -6-
J-A18037-16


      A:    A little. My parents are police officers and my dad and my
      brother and grandpa hunt. So I have always been around them.
      I don’t use them for anything.

      Q:   Did you have an impression of what kind of gun you
      thought it was?

      A:    Like I said, it looked exactly like the ones that kind of [sic]
      police officers carry.

N.T., at 174-75, 176-77, 178-79. On cross-examination, Grego confirmed

that Shull was holding the gun as if he was going to shoot someone. N.T.,

at 185-86.

      Officer Adam Salyards of the State College Police Department was

passenger in his patrol car at the intersection of West College Avenue and

South Burrowes Street at approximately 3:00 a.m. when he and fellow

officer, Officer Jeremy Gibson, heard what Salyards described as a “blood-

curdling scream” from nearby. N.T., at 86. Sensing something was “very

bad…very wrong” from the “worst scream” he had ever heard in his 13

years’ service, Officers Salyards and Gibson turned down South Burrowes,

where the officers immediately saw Grego near the corner at Calder and a

man, Shull, running away.       N.T., at 87-88.     The officers pursued Shull

approximately 200 feet onto New Alley where they saw him getting into the

driver’s side of a vehicle already occupied by a passenger. N.T., at 89. The

officers used their patrol car to block this vehicle and approached the vehicle

on foot.




                                      -7-
J-A18037-16



       Officer Salyards encountered Sepich in the passenger seat and, seeing

what appeared to be a black semi-automatic handgun2 at Sepich’s feet,3

alerted Officer Gibson of a gun and pulled Sepich out and down to the

ground, where he handcuffed him, performed a weapons frisk, and placed

him under arrest. N.T., at 91. Officer Gibson did the same with Shull. Id.

As the officers transported Shull and Sepich to the police station, they

received a dispatch stating a female called to report an armed man wearing

a black checkered shirt and dark jeans had just attacked her at Calder

Street. N.T., at 92. Officer Salyards advised the dispatch center that Officer

Gibson and he had just arrested a suspect observed fleeing the scene and

matching the physical description perfectly. N.T., at 92-93.4 A subsequent

investigation of Shull’s vehicle revealed that the gun in question was, in fact,

a CO-2 powered BB gun made to replicate a real firearm. N.T., at 95-96.


____________________________________________


2
   Officer Salyards would testify at trial that he is very familiar with firearms
as a police officer, is a certified firearms instructor, and grew up with
firearms as a member of a family of hunters. He testified that the gun in
question looked like a real firearm. N.T., at 91-92.
3
 Sepich testified that Shull threw the gun into the passenger side of the car
as he returned. N.T., at 54.
4
  The Commonwealth also introduced surveillance video from an interior
camera at the Elliott Building depicting a man in a black checkered hoodie
and dark pants jogging toward the Calder Street scene and, minutes later,
“running hastily” away with Officers Salyards and Gibson giving chase. N.T.,
at 153-54.




                                           -8-
J-A18037-16



         State College Police Officer Ken Ferron met with Grego outside her

apartment a few minutes after she placed her emergency phone call. N.T.,

at 145-46.        He described her physical and emotional appearance as

consistent with the report she had given to the dispatcher, as her hair was

dirty and messy, her clothing was disheveled, and she was crying at times

while relating the attack. N.T., at 147. Grego agreed to provide a “show-up

identification,” and Officer Ferron transported her to the arrest scene, where

Shull and Sepich were seated in the patrol car. Without hesitation, Grego

identified Shull as her assailant. N.T., at 150-51, 180. She also identified

the car as the one she observed at the parking deck shortly before her

ordeal. N.T., at 181. Grego then agreed to go to the State College Police

Station to provide a written statement. N.T., at 151.

         On November 4, 2014, Shull was charged with one count of first-

degree felony Robbery—Fear of Serious Bodily Injury and other offenses

listed, supra.     Shull subsequently filed a December 2, 2014, Petition to

Transfer Criminal Proceedings to Juvenile Court. After a hearing, the court

entered an order denying Shull’s petition, voicing concerns about Shull’s

failed    rehabilitation   efforts   to-date   and   reasoning   that   the   robbery,

committed by an armed perpetrator, posed a serious threat to both the

victim, individually, and the public, as it had a harmful impact on the

community’s sense of safety. Order, filed 2/13/15, at 2-5.

         On April 2, 2015, Shull filed a Motion to Disqualify the Centre County

District Attorney, Stacy Parks Miller, based on civil proceedings she had filed

                                          -9-
J-A18037-16



naming defense counsel as one of the defendants.          Specifically, the civil

matter stemmed from an unrelated case in which defense counsel had

unsuccessfully sought recusal of the presiding judge for the appearance of

impropriety stemming from an alleged relationship between the judge and

the District Attorney. The court denied this motion on April 27, 2015.

      On June 17, 2015, the trial court presided as finder of fact in Shull’s

waiver trial, and, at the conclusion of evidence, it convicted Shull of all

charges. Specifically, the court made a finding of fact that Shull possessed a

deadly weapon during the commission of his crimes.

      During the sentencing hearing of August 11, 2015, the court made a

determination that the Deadly Weapon Possession sentencing enhancement

applied under the facts proven at trial, but refused to apply the more severe

Deadly Weapon Used enhancement sought by the Commonwealth.                  The

court applied the enhancement matrix as its sentencing starting point and,

from there, deviated downward to issue a mitigated range sentence of 29 to

59 months’ incarceration, to be followed by 5 years’ probation on the count

of Robbery, with concurrent sentences entered on the remaining charges.

Furthermore, the court insisted and ruled, over Commonwealth objection,

that Shull was to serve his sentence in a county correctional facility.

      The Commonwealth filed a timely Motion to Modify Sentence seeking

application of the Deadly Weapon Used sentencing enhancement and a

standard range sentence based upon that sentencing matrix.                   The



                                     - 10 -
J-A18037-16



Commonwealth also contested county placement for Shull, insisting that he

serve a state sentence in a state correctional facility.

      The court conducted a hearing on the post-sentence motion on

September 2, 2015, and, as detailed more fully, infra, withdrew its previous

sentence in favor of an even more lenient sentence of incarceration of 11 ½

to 24 months, less one day, in a county correctional facility, provided Shull

agree to waive his right to parole and serve the full 24 months, less one day.

The court explained that it was reducing Shull’s sentence in order to avoid a

statutory provision that conditions county placement for a maximum

sentence of between two and five years’ incarceration on a district attorney’s

prior consent. In the case sub judice, District Attorney Parks Miller did not

consent to county placement for a crime she insisted warranted state

placement.

      On September 16, 2015, the Commonwealth filed timely notice of

appeal, while Shull filed his timely notice of appeal on September 25, 2015.

This Court, sua sponte, consolidated the two appeals.

      In its appeal, the Commonwealth presents the following three

questions for our review:

      1. WHETHER   THE   LOWER   COURT  ABUSED   ITS
         DISCRETION BY REFUSING TO APPLY THE DEADLY
         WEAPON    USED    ENHANCEMENT   SINCE  THE
         DEFENDANT’S   USE   OF  THE   WEAPON   WAS
         UNDISPUTED?

      2. WHETHER    THE          LOWER    COURT   ABUSED  ITS
         DISCRETION   BY          SENTENCING  THE   DEFENDANT


                                     - 11 -
J-A18037-16


          OUTSIDE THE GUIDELINES                   WITHOUT   SUFFICIENT
          JUSTIFICATION?

       3. WHETHER   THE   LOWER    COURT   ABUSED  ITS
          DISCRETION WHEN IT IMPROPERLY MODIFIED THE
          DEFENDANT’S SENTENCE FOR THE SOLE PURPOSE OF
          CHANGING THE PLACE OF CONFINEMENT?

Commonwealth’s brief at 6.

       In its first issue, the Commonwealth argues that the trial court abused

its sentencing discretion when it applied the Deadly Weapon Possessed

enhancement rather than the Deadly Weapon Used enhancement in setting

Shull’s sentence.5    6
                          At the sentencing hearing, the trial court determined
____________________________________________


5
  The Deadly Weapon enhancement appearing at “§ 303.10. Guideline
sentence recommendations: enhancements[,]” provides, in pertinent part:

    (a) Deadly Weapon Enhancement.

       (1) When the court determines that the offender possessed a
       deadly weapon during the commission of the current conviction
       offense, the court shall consider the DWE/Possessed Matrix (§
       303.17(a)). An offender has possessed a deadly weapon if any
       of the following were on the offender's person or within his
       immediate physical control:

              (i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
              whether loaded or unloaded, or

              (ii) Any dangerous weapon (as defined in 18 Pa.C.S.
              § 913), or

              (iii) Any device, implement, or instrumentality
              designed as a weapon or capable of producing death
              or serious bodily injury where the court determines
              that the offender intended to use the weapon to
              threaten or injure another individual.

(Footnote Continued Next Page)


                                          - 12 -
J-A18037-16


                       _______________________
(Footnote Continued)

      (2) When the court determines that the offender used a deadly
      weapon during the commission of the current conviction offense,
      the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
      offender has used a deadly weapon if any of the following were
      employed by the offender in a way that threatened or injured
      another individual:

             (i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
             whether loaded or unloaded, or

             (ii) Any dangerous weapon (as defined in 18 Pa.C.S.
             § 913), or

             (iii) Any device, implement, or instrumentality
             capable of producing death or serious bodily injury.

204 Pa. Code § 303.10.
6
  The imposition of the deadly weapon sentencing enhancement does not
implicate the Supreme Court of the United States' holdings in Alleyne v.
United States, –––U.S. ––––, 133 S.Ct. 2151 (2013), or Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). As this Court explained:

      In both [Alleyne and Apprendi ], the Supreme Court
      determined that certain sentencing factors were considered
      elements of the underlying crime, and thus, to comply with the
      dictates of the Sixth Amendment, must be submitted to the jury
      and proven beyond a reasonable doubt instead being determined
      by the sentencing judge. However, this inquiry is not relevant to
      our case because of the nature of the DWE.

      Alleyne and Apprendi dealt with factors that either increased
      the mandatory minimum sentence or increased the prescribed
      sentencing range beyond the statutory maximum, respectively.
      Our case does not involve either situation; instead, we are
      dealing with a sentencing enhancement. If the enhancement
      applies, the sentencing court is required to raise the standard
      guideline range; however, the court retains the discretion to
      sentence outside the guideline range. Therefore, neither of the
      situations addressed in Alleyne and Apprendi are implicated.

(Footnote Continued Next Page)


                                           - 13 -
J-A18037-16



that the CO-2 BB gun he held during the robbery was a deadly weapon for

purposes of the Deadly Weapon Possessed enhancement, 204 Pa.Code §

303.10(a)(1), and the court acknowledged it was, thus, bound to consider

the DWE/Possessed matrix at § 303.17(a) in fashioning Shull’s sentence.

The Commonwealth, however, filed a post-sentence motion asserting that

evidence establishing Shull’s open display of the gun while attacking Grego

supported application of the more severe Deadly Weapon Used enhancement

at § 303.10(a)(2) and, therefore, mandated consideration of the DWE/Used

matrix at § 303.17(b).

      At the hearing on the Commonwealth’s motion, the court noted that

the Commonwealth had limited its charges against Shull to possession,

rather than use, of a firearm during the commission of a crime. N.T., 9/2/15

at 5-6.   Moreover, it was the court’s view that Grego’s testimony did not

prove, beyond a reasonable doubt, “that the defendant ‘used’ the weapon in

a manner that would require the imposition of . . . an enhanced sentence.”

N.T., at 5.     Accordingly, as noted above, it used the Deadly Weapon

Possessed enhancement matrix as the starting point for imposing Shull’s

sentence.


                       _______________________
(Footnote Continued)

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n. 10 (Pa.Super.
2014), appeal denied, 104 A.3d 1 (Pa. 2014).




                                           - 14 -
J-A18037-16



     Though the Commonwealth concedes that the trial court applied a

deadly weapons enhancement, its Pa.R.A.P. 2119(f) statement asserting

that the court failed to apply the correct enhancement raises a substantial

question regarding the exercise of sentencing discretion.       These claims

challenge the discretionary aspects of sentencing. See Commonwealth v.

Kneller, 999 A.2d 608, 613 (Pa.Super. 2010) (en banc) (“a challenge to the

application of the deadly weapon enhancement implicates the discretionary

aspects of sentencing.”). Moreover:

           [t]o be reviewed on the merits, a challenge to the
     discretionary aspects of sentence must raise a substantial
     question that the sentence imposed is not appropriate.
     [Commonwealth v. ]Pennington, [751 A.2d 212, 215
     (Pa.Super. 2000)] (citing 42 Pa.C.S.A. § 9781(b)). A substantial
     question is raised when the appellant advances a “colorable
     argument” that the sentence was either “inconsistent with a
     specific provision of the Sentencing Code” or “contrary to the
     fundamental norms which underlie the sentencing process.” Id.
     at 215–16.

            Our case law has established that application of the deadly
     weapons enhancement presents a substantial question. See id.
     at 216 (concluding that the appellant raised a substantial
     question by challenging the trial court's application of the deadly
     weapons enhancement, based on the appellant's assertion that
     he had not had actual possession of the deadly weapon, a gun);
     Commonwealth v. Hatcher, 746 A.2d 1142, 1144 (Pa.Super.
     2000)      (same);    Commonwealth           v.   Magnum,      439
     Pa.Super.616, 654 A.2d 1146, 1149–50 (1995) (concluding that
     the Commonwealth raised a substantial question by challenging
     the trial court's failure to consider a deadly weapons
     enhancement in a situation where the appellant used a knife to
     threaten the victims); [Commonwealth v.] Scullin, [607 A.2d
     750, 752–53 (Pa.Super. 1992)] (concluding that the
     Commonwealth raised a substantial question by challenging the
     trial court's determination that a tire iron thrown by the appellee
     was not a deadly weapon).

                                   - 15 -
J-A18037-16



Commonwealth v. Raybuck, 915 A.2d 125, 127–28 (Pa.Super. 2006).

See also Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa.Super.

2008) (recognizing “this Court has repeatedly instructed that the sentencing

court must correctly apply the sentencing guidelines to reach the correct

point of departure, before exercising its discretion to depart from the

guidelines in any particular case. These rules apply to the deadly weapons

enhancement.”)

     When reviewing a challenge to the discretionary aspects of sentencing,

we observe the following standard:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by an error in judgment.
     Rather, the appellant must establish, by reference to the record,
     that the sentencing court ignored or misapplied the law,
     exercised its judgment for reasons of partiality, prejudice, bias
     or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

     In its brief, the Commonwealth reiterates the position it took in its

post-sentence motion that Shull “used” the realistic gun replica, thus

triggering the deadly weapon enhancement, when he held it in Grego’s plain

view during his attempted robbery.            In support of its position, the

Commonwealth points to Grego’s testimony that she felt an utter sense of

hopelessness upon seeing Shull’s finger on the trigger as he dragged her

away from her intended destination.


                                     - 16 -
J-A18037-16



      Shull responds that the evidence fails to support that he used the gun

in furtherance of the commission of his crime.     According to Grego, Shull

never pointed the gun at her, referred to it in any way, or even looked at

Grego while he held the gun in his hand. Though the gun was, therefore,

visible during the crime, Shull maintains, it was not used as part of the

crime. We disagree.

      As noted above, Section 303.10(a)(2) provides, in pertinent part, that

an offender has used a deadly weapon if he or she employed a firearm,

loaded or unloaded, in a way that threatened another individual.      Viewed

under this statutory definition, Shull’s mere possession of a gun transcended

to his use of the gun as an implement of submission and fear when he

decided to remove it from under his clothing and hold it—with finger on

trigger—directly above Grego’s face as she lay helplessly under his forcible

control.   Indeed, Shull’s presentation of the gun in this manner had a

terrifying effect on Grego, who testified her concern amplified when she first

saw the gun in her assailant’s hand, as she realized at that point this was

not someone just “messing with me” and believed something “bad is going

to happen right now.”

      Under these circumstances, the fact that Shull never actually stopped

and pointed the gun at Grego in the several seconds before he heard police

sirens and fled is of no moment to the inquiry before us, as he had already

made the gun a component part of his use of force when he revealed it to

his victim as he brutally dragged her to some intended location. See, e.g.,

                                    - 17 -
J-A18037-16



Commonwealth v. Chapman, 528 A.2d 990 (Pa.Super. 1987) (deadly

weapon used enhancement applied where defendant openly held a straight

razor during robbery, though never made explicit threat with it).

      Accordingly, because the record established that Shull used the gun in

a threatening way during his attack of Grego, we conclude the trial court’s

rejection   of   the   Deadly   Weapon   Used   enhancement   was   manifestly

unreasonable. We, therefore, vacate sentence and remand for resentencing,

where the court shall acknowledge and apply the proper guideline range

before exercising its sentencing discretion.

      In its remaining two issues, the Commonwealth asserts that the court

unreasonably departed from both the enhancement and the robbery

guideline ranges when it imposed a below-mitigating range departure

sentence designed for the sole purpose of securing a county sentence for

Shull. For Shull’s conviction of Robbery—Fear of Serious Bodily Injury, the

sentencing guidelines’ standard range sentence was 22 to 36 months

without application of any weapons enhancement, 31 to 45 months with a

DWE/Possessed application, and 40 to 54 months with an DWE/Used

application.     At the initial sentencing hearing, the court applied a

DWE/Possessed enhancement and, in its discretion, imposed a mitigated

range 29 to 59 month sentence with the intention of placing Shull in a

county correctional facility.




                                     - 18 -
J-A18037-16



       At the post-sentence motion hearing, however, the court observed

that, under 42 Pa.C.S. § 9762(b)(2),7 it was unable to place Shull in the

county facility unless the District Attorney consented, and she did not

consent.     For this reason, alone, the court sua sponte reduced Shull’s




____________________________________________


7
  Section 9762(b)(2), “Sentencing proceeding; place of confinement,”
provides, in pertinent part:

       (b) Sentences or terms of incarceration imposed after a
       certain date.--All persons sentenced three or more years after
       the effective date of this subsection to total or partial
       confinement shall be committed as follows:

       ***

       (2) Maximum terms of two years or more but less than five
       years shall be committed to the Department of Corrections for
       confinement, except upon a finding of all of the following:

       (i) The chief administrator of the county prison, or the
       administrator's designee, has certified that the county prison is
       available for the commitment of persons sentenced to maximum
       terms of two or more years but less than five years.

       (ii) The attorney for the Commonwealth has consented to the
       confinement of the person in the county prison.

       (iii) The sentencing court has approved the confinement of the
       person in the county prison within the jurisdiction of the court.

       (3) Maximum terms of less than two years shall be committed to
       a county prison within the jurisdiction of the court.

42 Pa.C.S. § 9762(b)(2) and (3).
     i



                                          - 19 -
J-A18037-16



sentence to 11 ½ to 24 months, less one day, to circumvent the restrictions

of Section 9762(b)(2):

     THE COURT:       It was my desire that this defendant be
     sentenced locally. Maybe he’s changed his mind now, and
     [defense counsel] can interrupt me and say, fine, we’ll go to the
     State, and we can all go home, but it’s my intention this
     defendant serve a sentence in a County correctional facility.

     First, he is relatively young. He was only 17 when this offense
     took place. Secondly, if you put him in a facility such as a State
     Correctional Institution, it just seems to me that he’s going to be
     destroyed by the people that are there, particularly because of
     his ethnic background.

     And I say that in two ways. No. 1 is that perhaps he’s going to
     be picked on because of his ethnic background. Secondly,
     because he does have a particular ethnic background they may
     ver well put him into some kind of a gang or something in the
     State Correctional Institution that might not as readily occur in a
     County facility. So I want him in a County facility.

     Finally, there was testimony throughout these proceedings about
     the treatment locally, either provided by the county or financed
     by his parents, that could be provided here in Centre County.

     All they do is warehouse people in State Correctional
     Institutions. They don’t provide any kind of treatment, and they
     don’t do anything for people except hold them as long as they
     possibly can and then subject them to the whims of the parole
     board as to when they should be released.

     So for a number of reasons I think he should serve his sentence
     here. His parents obviously can see him more readily if he’s
     here and maintain the family relationships that are manifested in
     all of the letters that were written in his support at the time of
     his sentencing.

     It just seems to me that logically the place of incarceration
     should be the county, and although I agree to some extent with
     the Commonwealth’s position that I’m not totally positive that
     this young man is going to straighten himself out, I don’t see

                                   - 20 -
J-A18037-16


     him as being the type of threat to the public at this point that
     requires him being locked up in a State correctional facility. So
     that’s why I want him sentenced locally.

     In order to do that, the way I had to do that was to fashion the
     29-month to 59-month sentence that I did, and of course
     immediately at the conclusion [the prosecutor] said you can’t do
     that.

     I said, well, I just did it, but as I’m walking back, I’m thinking to
     myself there is something here I’m kind of forgetting. [Court
     goes on to discuss the need to obtain the District Attorney’s
     consent to county placement.] So I agree that unless the
     Commonwealth approves a County sentence a 29 to 59-month
     sentence has to be served in State.

     Now having said that, I want this defendant to serve a County
     sentence. So you know how I can resolve the problem. I can
     sentence even more mitigated than you think I did, and I can
     give him an 11 1/2 to 24 month less one day sentence in the
     County, and if I do that, I want – if I’m going to do that, I would
     ask the defense attorney to consult with his client and see
     whether his client would agree to that kind of a sentence on the
     condition that he never be paroled, so that he served 24 months
     less one day instead of the 29 months that I’ve already given
     him, five months less protection from the public than the district
     attorney’s office wants him to be, [sic] and that’s what I’m
     inclined to do unless you agree that he can serve his sentence in
     the County.

     That’s my position; do you want to respond?

     PROSECUTOR: Yes, sir. Well, first of all, Your Honor, I think
     case law actually provides you can’t fashion a sentence based on
     the results you want.

     When it comes to the deadly weapon enhancement, if you
     believe it’s appropriate, and you already ruled that you believed
     the deadly weapon enhancement was appropriate, you state
     there.

     THE COURT:       For possessed.     I’m sentencing below the
     mitigated range, and I’m giving my reasons, and if the appellate


                                    - 21 -
J-A18037-16


     court thinks the reasons aren’t appropriate, then they’ll remand
     for resentencing.

     But I can’t do it because you’re preventing me from imposing the
     sentence that I think is most appropriate for this defendant and
     the public and the judicial system.

     You’re preventing me from doing that by refusing to consent to a
     sentence in the County, and you have the right to do that, and
     you didn’t have it six days before my sentence date, but you do
     now, and I agree.

     PROSECUTOR: Your Honor, we don’t consent. I don’t believe
     that it’s our obligation to consent. The fact of the matter is the
     legislature said this sentence should be served unless we
     consent. There may be special extenuating circumstances in
     other cases, but we don’t believe it’s appropriate here for the
     reasons we’ve outlined in our motion.

     I think his sentence needed to be within the standard range,
     within even the possessed range. I don’t think you can get a –
     fashion a sentence to get a particular result. You base it off the
     guidelines and the considerations that are allowed by law.

     ***
     THE COURT:       I don’t have to sentence in a standard range or
     a mitigated range or an aggravated range. All I have to do is
     explain my reasons. . . . My reasons are to try to get this boy
     out of the public as long as possible consistent with a County
     sentence. You won’t let me do that.

     PROSECUTOR: Your Honor, for the reasons that we’ve already
     outlined, we think the sentence needed to be standard range
     and not based on his place of confinement.

     His place of confinement is statutory.      It’s not up to the DA’s
     office to consent to a particular result.

     ***
     The fact of the matter is it can’t be held over the DA’s head as to
     choose this, [‘] if you don’t consent I’m going to give him an
     even more mitigated sentence.[’] That’s not a mitigating factor,
     the fact the DA wouldn’t consent to what is statutory.


                                    - 22 -
J-A18037-16


      THE COURT:       There is nothing statutory, ma’am. The statute
      says you can agree to have him serve his sentence in the
      County. That’s a discretionary thing for the district attorney.

      I give him 29 months in the County if you agree to it. If you
      don’t agree to it, I’m forced to give him 11 ½ to 24 months less
      a day.

N.T., 9/2/15, at 10-15.

      We assess whether the trial court’s guideline departure sentence

represents an abuse of discretion in light of Section 9781 of the Sentencing

Code, which sets forth an appellate court's statutory obligations in reviewing

a sentence. Specifically, Subsection (c) provides:

      (c) Determination on appeal.—The appellate court shall
      vacate the sentence and remand the case to the sentencing
      court with instructions if it finds:

      (1) the sentencing court purported to sentence within the
      sentencing guidelines, but applied the guidelines erroneously;

      (2) the sentencing court sentenced within the sentencing
      guidelines but the case involves circumstances where the
      application of the guidelines would be clearly unreasonable or

      (3) the sentencing court sentenced outside the sentencing
      guidelines and the sentence is unreasonable.

      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c) (emphasis added). Thus, we must specifically review

a guideline departure sentence for reasonableness. See Commonwealth v.

Perry, 32 A.3d 232, 236–37 (Pa. 2011).        Subsection (d) sets forth the

factors to be considered in determining whether a departure sentence is

unreasonable:


                                    - 23 -
J-A18037-16


     (d) Review of record.—In reviewing the record the appellate
     court shall have regard for:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d). See Perry, supra. In turn, the sentencing court

shall impose its sentence in consideration of Section 9721(b) of the Code,

which provides:

     [T]he 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.

42 Pa.C.S.A. § 9721(b).

     Our own jurisprudence has expounded on the above authority:

     In every case where a sentencing court imposes a sentence
     outside of the sentencing guidelines, the court must provide in
     open court a contemporaneous statement of reasons in support
     of its sentence.        42 Pa.C.S.A. § 9721; see also
     Commonwealth v. Eby, 784 A.2d 204, 205–206 (Pa.Super.
     2001).

           The statute requires a trial judge who intends to
           sentence a defendant outside of the guidelines to
           demonstrate on the record, as a proper starting
           point, [its] awareness of the sentencing guidelines.
           Having done so, the sentencing court may deviate
           from the guidelines, if necessary, to fashion a
           sentence which takes into account the protection of
           the public, the rehabilitative needs of the defendant,
           and the gravity of the particular offense as it relates


                                    - 24 -
J-A18037-16


            to the impact on the life of the victim and the
            community, so long as [it] also states of record the
            factual basis and specific reasons which compelled
            [it] to deviate from the guideline range.

      Commonwealth v. Gibson, 716 A.2d 1275,                  1276–1277
      (Pa.Super. 1998) (internal quotations omitted).

      When evaluating a challenge to the discretionary aspects of
      sentence . . . it is important to remember that the sentencing
      guidelines are advisory in nature.         Id. at 1277.    If the
      sentencing court deems it appropriate to sentence outside of the
      guidelines, it may do so as long as it offers reasons for this
      determination. Id. “[O]ur Supreme Court has indicated that if
      the sentencing court proffers reasons indicating that its decision
      to depart from the guidelines is not un reasonable, we must
      affirm a sentence that falls outside those guidelines.”        Id.
      (citations omitted, emphasis in original).

Comnmonwealth v. Bowen, 55 A.3d 1254, 1263–64 (Pa.Super. 2012).

See also Commonwealth v. Rodda, 723 A.2d 212 at 216                  (Pa.Super.

1999) (holding record must demonstrate “with clarity that the court

considered the sentencing guidelines in a rational and systematic way and

made a dispassionate decision to depart from them); Commonwealth v.

Gause, 659 A.2d 1014, 1017 (Pa.Super. 1995) (noting it is not enough for

court to pay “token lip service” to sentencing guidelines simply as

prerequisite to impose whatever sentence it may choose; departure

sentence reasonable where particular facts differentiate case from typical

case of same offense).

      A sentencing court, therefore, in carrying out its duty to impose an

individualized sentence, may depart from the guidelines when it properly

identifies a particular “factual basis and specific reasons which compelled [it]


                                     - 25 -
J-A18037-16



to deviate from the guideline range.”        Gibson, supra.   In the case sub

judice, however, the court supplied an inexplicably inadequate factual basis

to substantiate a sentence significantly below the mitigating range for a

typical first-degree felony robbery conviction, let alone one for which a

deadly weapon enhancement also pertained.

      In fact, the notes of testimony reproduced, supra, clarify that the court

tailored a sentence according not to the individual history and circumstances

surrounding Shull and the crime he committed but, instead, to what was

necessary to avoid a State sentence for Shull, regardless of whether the

term was consistent with the principles promoted within the scheme.        For

example, other than citing Shull’s age and making unconfirmed, general

propositions about the fate of SCI inmates of Shull’s ethnicity, the court

engaged in no discussion as to why Shull’s particular circumstances

warranted a severe downward departure sentence. Neither Shull’s personal

history nor his amenability to rehabilitation were cited as militating in favor

of departing downward from the guideline ranges.       To the contrary, in its

previous sentencing hearing reference to the prospects of rehabilitation, the

court voiced serious doubts concerning Shull’s future, indicating that he

found himself in this position despite his parents’ considerable expenditure

of time and money in previous failed efforts to help their son right himself.

N.T. 8/11/15 at 40.

      The trial court had the opportunity to observe Shull in person, listened

to Shull’s allocution statement expressing remorse, and was fully cognizant

                                    - 26 -
J-A18037-16



of all relevant factors and circumstances regarding Shull’s situation.     It is

also clear from the sentencing hearing of August 11, 2015, that the court

considered Shull’s attack of Grego to be a terrifying one that reasonably

placed her in fear of sustaining serious injury or worse. N.T. at 18-19, 40.

Nevertheless, despite its global familiarity with Shull’s case, the court failed

to give an appropriate justification, rooted in the considerations and factors

espoused in statutory and decisional law, for the severe downward departure

sentence it imposed.

      The court’s skepticism concerning the state correctional system’s

ability to rehabilitate Shull as well as can the county system, a subjective

notion unsupported by any facts of record, provides insufficient grounds for

this sentence. See Commonwealth v. Wilson, 946 A.2d 767 (Pa.Super.

2008) (“second guessing” of SCI’s ability to administer adequate drug

treatment supplied no justification for less-than-mitigated-range county

sentence of 11 ½ to 23 month sentence for two first-degree felony

burglaries, robberies, and possession of instrument of crime; elevating

defendant’s needs without giving due weight to guidelines, victim, or societal

needs rendered sentence unreasonable under Section 9781(d)); See also

Commonwealth v. McIntosh, 911 A.2d 513 (Pa.Super. 2006) (deeming

sentence unduly lenient where sentencing court was “oddly deferential” to

defendant and concern for defendant's rehabilitative needs outweighed

court's consideration of section 9718 factors), aff'd in part and rev'd in

part on other grounds, 922 A.2d 873 (Pa. 2007).

                                     - 27 -
J-A18037-16



       The court’s singular purpose of circumventing a statutory scheme

requiring state confinement for the sentence the court would have otherwise

imposed produced an inappropriate sentence that failed to reflect due

consideration of the deadly weapon enhancement guideline ranges, Shull’s

lack   of    amenability     to   prior    rehabilitation   efforts,   the   disturbing

circumstances of his crime and its effect on the victim, and the public safety

needs of society at large. Under the facts of the present case, therefore, we

deem the departure sentence entered in the court below unreasonable in

light of considerations set forth in Section 9781(d) of the Sentencing Code. 8

Accordingly, we vacate sentence and remand this matter for resentencing in

a manner consistent with sentencing principles discussed above.

       Turning to Shull’s cross-appeal, we note he presents the following

questions for our review:


       I.     WHETHER THE HONORABLE TRIAL COURT ERRED BY
              DENYING APPELLEE’S MOTION TO DISQUALIFY THE
              DISTRICT ATTORNEY DESPITE A CONFLICT OF
              INTEREST AND APPEARANCE OF IMPROPRIETY THAT
              EXISTED DUE TO TWO LAWSUITS FILED BY THE
              DISTRICT ATTORNEY AGAINST APPELLEE’S TRIAL
              ATTORNEY?

       II.    WHETHER THE HONORABLE TRIAL COURT ERRED BY
              DENYING TO TRANSFER [SIC] THE INSTANT MATTER
              TO JUVENILE COURT FOR MULTIPLE REASONS,
              INCLUDING, BUT NOT LIMITED TO THE FOLLOWING:
____________________________________________


8
 This Court is astonished at the efforts the trial court made to keep Shull
out of a state correctional institute.



                                          - 28 -
J-A18037-16



            a. THE CASE WAS NOT PROPERLY FILED IN ADULT
               COURT UNDER 42 Pa.C.S.A. § 6322 BECAUSE THE
               CONDUCT DID NOT MEET THE DEFINITION OF
               DELINQUENT ACT SINCE [CROSS-APPELLANT]
               DID NOT USE A DEADLY WEAPON DURING THE
               COMMISSION OF A ROBBERY (AS EVIDENCED BY
               THE   TRIAL COURT’S     DETERMINATION    AT
               SENTENCING NOT TO APPLY THE DEADLY
               WEAPON USED ENHANCEMENT);

            b. [CROSS-APPELLANT]    ESTABLISHED    BY    A
               PREPONDERANCE OF THE EVIDENCE THAT HIS
               TRANSFER TO JUVENILE COURT WOULD SERVE
               THE PUBLIC INTEREST PURSUANT TO 42 Pa.C.S.A.
               § 6322.

      III. WHETHER THE HONORABLE TRIAL COURT ERRED BY
           FINDING THE [CROSS-APPELLANT] GUILTY OF
           ROBBERY WHEN THE GOVERNMENT FAILED TO
           PROVE BEYOND A REASONABLE DOUBT ALL
           REQUISITE ELEMENTS OF ROBBERY AS DEFINED IN
           18 Pa.C.S.A. § 3701(A)(1)(ii), SPECIFICALLY THAT
           [CROSS-APPELLANT] THREATENED THE VICTIM OR
           INTENTIONALLY PUT THE VICTIM IN FEAR OF
           IMMEDIATE SERIOUS BODILY INJURY?

      IV.   WHETHER THE HONORABLE TRIAL COURT ERRED BY
            ADMITTING PRIOR INSTANCES OF CONDUCT OF
            [CROSS-APPELLANT]   ALLEGEDLY   COMMITTING
            THEFT WHEN THE PRIOR INCIDENTS WERE
            UNCHARGED CONDUCT, INADMISSIBLE PROPENSITY
            EVIDENCE PURSUANT TO PENNSYLVANIA RULES OF
            EVIDENCE 404(B) THAT THE HONORABLE TRIAL
            JUDGE HIMSELF STATED ON THE RECORD THAT THE
            EVIDENCE WAS IRRELEVANT?

      V.    WHETHER THE HONORABLE TRIAL COURT ERRED BY
            NOT PROVIDING CREDIT FOR TIME SERVED FOR
            [CROSS-APPELLANT’S]   PRE-TRIAL    INPATIENT
            TREATMENT DUE TO THE FACT THAT THE INPATIENT
            TREATMENT WAS COURT ORDERED?

Cross-Appellant’s brief at 6.

                                - 29 -
J-A18037-16



       In his first issue, Shull charges error with the trial court's ruling

denying his motion to disqualify District Attorney Parks Miller despite an

alleged conflict of interest and appearance of impropriety because of two

unrelated civil suits she filed naming defense counsel as one of many

defendants.9 At the April 10, 2015, hearing on the motion, defense counsel

requested that the Office of the Attorney General handle the matter at bar, a

request the prosecutor opposed and the court, ultimately, denied.

       According to defense counsel, the prosecutor’s “status as plaintiff in a

civil action against him, standing alone, constitutes an actual conflict of

interest.”    Cross-Appellant’s brief at 30.       Moreover, Shull’s mother, an

attorney, represents one of the named defendants in the civil suit filed by

the prosecutor, defense counsel maintains.         Although the suit post-dated

Shull’s conviction in the present case, defense counsel maintains, it pre-




____________________________________________


9
   Shull alleges that District Attorney Parks Miller filed her civil law suit,
asking for declaratory relief, in retaliation for defense counsel’s filing a Right
to Know Law request seeking discovery of records of electronic
communications between the District Attorney and the Honorable Judge
Bradly Lunsford of the Court of Common Pleas of Centre County. The suit
was filed prior to Shull’s conviction and sentence. Defense counsel was
ultimately dismissed from the matter, but prior to argument on Shull’s post-
sentence motions, District Attorney Parks Miller filed a second complaint
alleging, inter alia, defamation against defense counsel and eleven other
defendants. This second matter was removed to federal court.




                                          - 30 -
J-A18037-16



dated argument on post-sentence motions on September 2, 2015.           Cross-

Appellant’s brief at 32.10

       From Shull’s perspective, the Commonwealth exhibited its conflict of

interest throughout trial and during post-sentence motions.      For instance,

although prosecutor Nathan Boob indicated at a February 17, 2015 status

hearing that the Commonwealth intended to discuss a plea offer with Shull’s

family, N.T., 2/17/15 at 4-5, the District Attorney never made such an offer.

Before the commencement of Shull’s non-jury trial, defense counsel apprised

the court that this was the first time in his 17-year career that he had not

received a plea offer for a non-homicide case. N.T., 6/17/15, at 11. The

District Attorney replied that the decision to withhold a plea offer was

entirely evidence-based, as this was the type of “very serious case” in which

her office typically does not offer plea agreements.     N.T., at 17-18.   The

prosecutor also advised the court that the defense had not indicated a

willingness to plead guilty to anything. N.T., at 18.

       Defense counsel also alludes to the District Attorney’s refusal to

provide consent necessary for the trial court to act on its wish to place Shull

in a county correctional facility to serve his 29 to 54 month sentence as an
____________________________________________


10
   We question the relevancy of this aspect of defense counsel’s argument,
as the appellate challenge before us goes to the trial court’s April, 2015,
exercise of discretion in denying Shull’s motion to remove the prosecutor. It
is not explained how proceedings occurring months afterward could bear on
the court’s earlier exercise of discretion.




                                          - 31 -
J-A18037-16



additional indication of the prosecutor’s inability to serve the public interest.

Notably, however, the record reveals no attempt on defense counsel’s part

to renew his earlier motion to disqualify the prosecutor for taking these

positions later in the course of proceedings.

      In denying the existence of merit to Cross-Appellant’s claim, the

Commonwealth responds that jurisprudence of this Commonwealth has

consistently held that “conflicting out” a prosecutor requires a showing of

conflict   between   the   prosecutor    and    the   defendant.      Compare

Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa. 1992) (where district

attorney’s law firm represented car accident victims in personal injury suit

against defendant, actual conflict barring prosecution existed; defendant

need not prove actual prejudice in order to require that the conflict be

removed) with Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d

1027, 1037 (1997) (holding mere allegations of a conflict of interest,

however, are insufficient to require replacement of a district attorney). This

Court has also found that a new trial is warranted where the district attorney

has a non-economic, personal interest in the matter. See Commonwealth

v. Balenger, 704 A.2d 1385, 1386 (Pa.Super. 1997) (granting a new trial

where the prosecutor was involved in a romantic relationship with the

defendant's wife), appeal denied 727 A.2d 126 (Pa. 1998).            Again, the

Commonwealth maintains that the District Attorney has no personal interest

in the outcome of Shull’s matter, nor does the alleged conflict implicate Shull

personally.

                                     - 32 -
J-A18037-16



      Instead, the Commonwealth contends that the evidence of the case

and   the   implications   surrounding   its   outcome,   alone,   justified   the

prosecutorial posture taken below.         Regarding the District Attorney’s

decisions to withhold both a plea offer and consent to a county sentence, the

Commonwealth points to the severity of the crime—including its position that

Shull used a deadly weapon to threaten his victim—and the undeniable

concern it caused in the community as legitimate grounds for both decisions.

      After careful review of the record, the parties’ respective positions, and

governing decisional law as expressed in Eskridge and related cases, supra,

we conclude that the record before us does not demonstrate a conflict

suggesting a prosecutorial inability to serve as a steward of justice and of

the court in the proceedings below. In this regard, we find the record amply

supports the prosecutor’s position that the facts of the case supported the

decisions made by the District Attorney’s office.

      Indeed, Shull points to no decisional law, and we are aware of none, in

which a court has construed a prosecutor’s failure to offer a plea deal, in and

of itself, as an indication of improper prosecutorial motivation.              See

Commonwealth v. Smith, 664 A.2d 622, 627 (Pa.Super. 1995) (holding

“Commonwealth is not generally obligated to plea bargain with a defendant

but may not refuse to bargain based on any invidious classification such as

race, religion or national origin.”).        Moreover, the District Attorney’s

authority to withhold consent to county placement in this matter was implied

by the very language of Section 9762(b)(2)(ii), which prohibits county

                                    - 33 -
J-A18037-16



placement without a District Attorney’s prior consent.                  Implicit in this

statutory condition is the understanding that the particular circumstances

supporting a maximum prison sentence of between two and five years will

often times make state placement the appropriate choice.                    Under this

statutory regime, therefore, the refusal to provide consent is clearly within

the discretion of the prosecutor, particularly in a case where the defendant’s

violent crime terrorized the victim.           Accordingly, discerning no abuse of

discretion with the trial court’s order denying Shull’s motion to disqualify the

District   Attorney,    we     decline   to    disturb   the   ruling   below.        See

Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa.Super. 2000) (holding

absent an abuse of discretion, appellate court constrained to accept the trial

court's finding that there was no conflict of interest in prosecutor).11         12



       In his next issue, Shull argues that the court erred in denying his

motion to transfer this matter to juvenile court because the Commonwealth

failed to establish that he used a deadly weapon during the commission of a

____________________________________________


11
   Notably, moreover, the two events Shull emphasizes most in making his
appellate argument asserting trial court error—the withholding of a plea offer
and of consent to county placement—occurred after the court had already
denied his motion to disqualify the prosecutor. We decline to find trial court
error with a ruling which preceded events that Cross-Appellant asserts as
grounds for reversal.
12
   As the certified record enabled meaningful review of Cross-Appellant’s first
issue, we deny Cross-Appellant’s motion to amend the reproduced record to
include a copy of the District Attorney’s civil complaint filed against defense
counsel.



                                          - 34 -
J-A18037-16



robbery, an act deemed so heinous by the General Assembly as to preclude

designation as a "delinquent act" suitable for the juvenile system. He also

claims that he established by a preponderance of the evidence that his

transfer to juvenile court would serve the public interest pursuant to 42

Pa.C.S. § 6322.

      “Decisions of whether to grant decertification will not be overturned

absent a gross abuse of discretion. An abuse of discretion is not merely an

error of judgment but involves the misapplication or overriding of the law or

the exercise of a manifestly unreasonable judgment passed upon partiality,

prejudice or ill will.”    Commonwealth v. Sanders, 814 A.2d 1248, 1250

(Pa.Super. 2003).         We will review Shull's allegation of error with this

standard in mind.

      The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., is designed to

effectuate the protection of the public while providing children who commit

delinquent acts with supervision, rehabilitation, and care while promoting

responsibility and the ability to become a productive member of the

community.     42 Pa.C.S.A. § 6301(b)(2).        The Act defines a “child” as one

who is under eighteen years of age.             42 Pa.C.S.A. § 6302.   Shull was

seventeen-years-old at the time he committed his robbery of Grego.             A

delinquent act is, inter alia, “an act designated as a crime under the law of

this Commonwealth.” Id.

      However, because the General Assembly has deemed some crimes so

heinous, a delinquent act does not include:

                                       - 35 -
J-A18037-16



      (i) The crime of murder.

      (ii) Any of the following prohibited conduct where the child was 15

years of age or older at the time of the alleged conduct and a deadly weapon

as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used during the

commission of the offense, which, if committed by an adult, would be

classified as:

      ***

      (D) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or

      (iii) (relating to robbery).

Id. A deadly weapon is defined by Section 2301 as

      [a]ny firearm, whether loaded or unloaded, or any device
      designed as a weapon and capable of producing death or serious
      bodily injury, or any other device or instrumentality which, in the
      manner in which it is used or intended to be used, is calculated
      or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301. Therefore, though Shull was seventeen at the time in

question, if he committed the offense of robbery while possessing a deadly

weapon, his crime would be considered ineligible for classification as a

delinquent act and, accordingly, require that his charges be filed with the

criminal court where original exclusive jurisdiction lies and is presumptively

proper.    See Commonwealth v. Ramos, 920 A.2d 1253, 1257–58

(Pa.Super. 2007).

      For support, Shull points to our decision in Ramos as placing the

burden on the Commonwealth to present expert testimony that a replica gun

was capable of producing death or serious bodily injury. Cross-Appellant's

                                     - 36 -
J-A18037-16



brief at 36.   Shull misconstrues Ramos, however, as the decision clearly

confirmed that the burden of proof in a decertification hearing rests with the

juvenile. Specifically, we made the following observations pertinent to the

case sub judice:

      To begin, we note that there was some discussion as to who
      bears the burden of proof relative to whether or not Appellant
      possessed a deadly weapon. The trial court stated its inclination
      that the burden was on the Commonwealth, and the
      Commonwealth accepted. The Commonwealth's acquiescence
      does not make this true, however, and we do not agree.

      It is well established that a juvenile seeking decertification has
      the burden of proving by the preponderance of the evidence that
      the transfer to juvenile court is warranted. 42 Pa.C.S.A. § 6322;
      Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217 (2000)
      (the Juvenile Act provides a mechanism for a minor to prove to
      the court that he does not belong in criminal court via § 6322).
      “The propriety of whether charges should be prosecuted in the
      juvenile court or adult court system implicates jurisdictional
      concerns.” Hughes, supra, 865 A.2d at 776. Nonetheless,
      when the crime involved is one excluded from the Juvenile Act's
      definition of a delinquent crime, the charge is automatically
      within the jurisdiction of the criminal court and jurisdiction is
      presumptively proper. Id. at 777, citing Commonwealth v.
      Kocher, 529 Pa. 303, 602 A.2d 1308, 1310 (1992) and
      Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101, 106–107
      (1975), superseded by statute. A challenge to the criminal
      court's jurisdiction falls on the juvenile. “To hold otherwise
      would create the anomalous situation whereby the party in
      whose favor a legislative presumption has been created is called
      upon to offer the evidence to support the presumption. Such a
      concept would be at variance with the well established principle
      of the law of evidence that a presumption shifts not only the
      burden of proof, but also shifts the burden of coming forward
      with the evidence to establish the fact in issue.”
      Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698, 701–
      702 (1978) (holding that the burden of proof rests on the
      Commonwealth when it seeks to transfer an accused from
      juvenile court to criminal court). “The legislative determination


                                    - 37 -
J-A18037-16


      to exclude [specified offenses] from the jurisdiction of the
      juvenile courts evidenced an assumption that the criminal justice
      system was the proper forum for the resolution of such matters
      unless the party seeking the juvenile court as a forum could
      establish reasons to the contrary.” Id. Accordingly, Appellant
      bore the burden of proving that the gun was not a deadly
      weapon.

Ramos, 920 A.2d at 1258–59.

      Ramos clearly indicates that just as a juvenile bears the overarching

burden of proving a transfer to juvenile court is warranted, he or she also

bears the burden of coming forward with evidence that a gun in his or her

possession was not a deadly weapon for purposes of Section 2301. There is,

therefore, no merit to Shull's argument placing this burden upon the

Commonwealth.

      The second part to Shull's decertification argument states that he

established his transfer would better serve the public interest. Specifically,

he points to the testimony of two psychiatrists who opined that he suffers

from bi-polar disorder and exhibits a level of functioning and maturity

comparable to a 14 year-old. The experts also testified Shull possesses a

benevolent disposition, lacks a history of aggression or delinquent behavior,

and displays no indicia of antisocial or psychotic traits, all of which

suggested he was amenable to treatment and counseling which could

"alleviate his diminished impulse control and aid his maturity and coping

skills[ ]" during his minority. Cross-Appellant's brief at 40.




                                     - 38 -
J-A18037-16



        Shull fails, however, to discuss how the many decertification factors

and considerations enumerated in 42 Pa.C.S. § 6355(a)(4)(iii) 13 bore on his


____________________________________________


13
     Section 6355(a) provides, in pertinent part:

        (a) General rule.--After a petition has been filed alleging
        delinquency based on conduct which is designated a crime or
        public offense under the laws, including local ordinances, of this
        Commonwealth, the court before hearing the petition on its
        merits may rule that this chapter is not applicable and that the
        offense should be prosecuted, and transfer the offense, where
        appropriate, to the division or a judge of the court assigned to
        conduct criminal proceedings, for prosecution of the offense if all
        of the following exist:

        (1) The child was 14 or more years of age at the time of the
        alleged conduct.
        (2) A hearing on whether the transfer should be made is held in
        conformity with this chapter.
        (3) Notice in writing of the time, place, and purpose of the
        hearing is given to the child and his parents, guardian, or other
        custodian at least three days before the hearing.
        (4) The court finds:
        (i) that there is a prima facie case that the child committed the
        delinquent act alleged;
        (ii) that the delinquent act would be considered a felony if
        committed by an adult;
        (iii) that there are reasonable grounds to believe that the public
        interest is served by the transfer of the case for criminal
        prosecution. In determining whether the public interest can be
        served, the court shall consider the following factors:
        (A) the impact of the offense on the victim or victims;
        (B) the impact of the offense on the community;
        (C) the threat to the safety of the public or any individual posed
        by the child;
        (D) the nature and circumstances of the offense allegedly
        committed by the child;
        (E) the degree of the child's culpability;
(Footnote Continued Next Page)


                                          - 39 -
J-A18037-16



case.     Simply citing some factors which, standing alone, could support

decertification does not establish the gross abuse of discretion required to

reverse a court's order refusing to decertify a case. Cf Commonwealth v.

Potts, 673 A.2d 956, 958 (Pa.Super. 1996) (given limited scope of review of

certification decisions, court "'will not set aside a certification unless an

appellant demonstrates that the court committed a gross abuse of

discretion.'” A gross abuse of discretion is not demonstrated by merely

reciting facts of record that would support a result contrary to the court's

actual decision.") (citation omitted).
                       _______________________
(Footnote Continued)

        (F) the adequacy and duration of dispositional alternatives
        available under this chapter and in the adult criminal justice
        system; and
        (G) whether the child is amenable to treatment, supervision or
        rehabilitation as a juvenile by considering the following factors:
        (I) age;
        (II) mental capacity;
        (III) maturity;
        (IV) the degree of criminal sophistication exhibited by the child;
        (V) previous records, if any;
        (VI) the nature and extent of any prior delinquent history,
        including the success or failure of any previous attempts by the
        juvenile court to rehabilitate the child;
        (VII) whether the child can be rehabilitated prior to the
        expiration of the juvenile court jurisdiction;
        (VIII) probation or institutional reports, if any;
        (IX) any other relevant factors; and
        (iv) that there are reasonable grounds to believe that the child is
        not committable to an institution for the mentally retarded or
        mentally ill.

42 Pa.C.S.A. § 6355(a)(1)-(4).




                                           - 40 -
J-A18037-16



      Here, the trial court considered, for example, that the experts'

prognoses for rehabilitation were qualified because Shull was already 18

years old at the time of the hearing and there existed insufficient time to

achieve full rehabilitation before he reached 21. "You have got Dr. Altman

saying it's [age] 25[,]" the court observed, a point which defense counsel

conceded before noting Dr. Robin Altman had testified that three years is

still a "pretty good start." N.T. 1/29/15 at 77. The court responded:

      THE COURT: You know, Mr. McGraw, I might feel differently
      about this case if Dr. Altman had come in here and said ["]he's
      doing really well at Caron [Foundation at Wernersville, Pa.],
      thinks [sic] are on the upswing, and I'm extremely hopeful,["]
      but since he's committed this offense he has gone to Caron, he's
      been removed from Caron for trying to kill himself, he goes and
      he spends much more time at --

      DEFENSE COUNSEL: Philhaven.

      THE COURT: Philhaven, then other people do, comes back to
      Caron, and is now acting out to the extent that Dr. Altman may
      want to diagnose him as schizophrenic. Isn't Caron the same
      kind of facility that the juvenile system would provide for him?
      And if it's not working in Caron, why is it going to work in the
      juvenile system?

      DEFENSE COUNSEL: Well no doubt it is -- it is similar but all of
      this is preferable to a State Correctional Institute. The public
      has no interest in seeing this young man, who is just 18 years of
      age, and inflicted with serious mental illness -- but that illness is
      by all accounts treatable....

N.T. at 77-78.

      On balance, it was the court's determination that factors going against

decertification outweighed those offered in support of decertification. In its

February 3, 2015, order denying decertification, the court alluded to its

                                     - 41 -
J-A18037-16



many considerations informing its decision, including: the serious effects of

Shull's crime on his 21 year-old victim; community fears about walking in

downtown State College at night; the circumstances surrounding the violent

crime--including Shull's theft of a CO-2 powered replica gun earlier that

night; his apparent lying in wait for an unsuspecting pedestrian and

positioning of his car to flee the scene; his admission to Dr. Altman that he

brandished a gun to scare the victim into turning over her purse; his

extensive record of unsuccessful rehabilitation efforts in private facilities

offering treatments comparable to those administered in juvenile facilities;

and his treating psychiatrists' own lingering questions about Shull's ability to

rehabilitate during his minority.   We discern no abuse of discretion in the

court's thoughtful application of Section 6355(a)(4)(iii) factors to deny

Shull's motion to decertify.

      Shull next argues that the Commonwealth failed to prove all elements

of Robbery at 18 Pa.C.S. § 3701(a)(1)(ii) beyond a reasonable doubt.

      Our standard for evaluating sufficiency of the evidence is
      whether the evidence, viewed in the light most favorable to the
      Commonwealth [as verdict winner], is sufficient to enable a
      reasonable [factfinder] to find every element of the crime
      beyond a reasonable doubt. [T]he entire trial record must be
      evaluated and all evidence actually received must be considered,
      whether or not the trial court's rulings thereon were correct.
      Moreover, [t]he Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Finally, the trier of
      fact, while passing upon the credibility of witnesses and the
      weight to be afforded the evidence produced, is free to believe
      all, part or none of the evidence.



                                     - 42 -
J-A18037-16



Commonwealth v. Bryant, 57 A.3d 191 (Pa.Super.2012) (case citations

and quotation marks omitted).

      Under Section 3701(a)(1)(ii), a defendant is guilty of robbery if, while

in the course of committing a theft, he "threatens another with or

intentionally puts him in fear of immediate serious bodily injury." 18 Pa.C.S.

§ 3701(a)(1)(ii); Commonwealth v. Jannett, 58 A.3d 818, 821-22

(Pa.Super. 2012). In Jannett, we observed:

      The evidence is sufficient to convict a defendant of robbery
      under this section “if the evidence demonstrates aggressive
      actions that threatened the victim's safety.” Commonwealth v.
      Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal denied,
      613 Pa. 642, 32 A.3d 1275 (2011). The court must focus “on
      the nature of the threat posed by an assailant and whether he
      reasonably placed a victim in fear of immediate serious bodily
      injury.” Id. (citations omitted). Additionally, this Court has held
      that the threat need not be verbal. Id.

Jannett, 58 A.3d at 821–22.

      In support of his position assailing the sufficiency of the evidence,

Shull notes Grego testified that in the seven to nine seconds Shull assaulted

her he issued no verbal threats, never pointed the gun at her or explicitly

referred to the gun, and never looked at her while he dragged her by her

hair. Cross-Appellant's brief at 45-46. Additionally, Shull states, Grego was

unable to describe precisely how she ended up on her back.

      As the trial court found, however, Grego's account allowed the finder

of fact to infer Shull acted with the intent to place her in fear of serious

bodily injury when he angrily responded to her defiant stance against his



                                    - 43 -
J-A18037-16



attempt to restrain her. Specifically, Grego described how, under cover of

darkness on an isolated street, Shull reacted violently after she tried to

shove him out of her way, physically overwhelmed her, and aggressively

dragged her by the hair while clutching a gun--with finger on trigger--

directly over her face. According to Grego, seeing the gun at this moment

as she lay overpowered and helpless terrified her, and she let out a series of

screams described by two seasoned police officers as "blood-curdling" and

unlike any scream they had heard in their many years of service. Only upon

the arrival of police did Shull release Grego and run for his vehicle. When

viewed in a light most favorable to the Commonwealth as verdict winner,

this evidence was sufficient to prove the intent element of Section

3701(a)(1)(ii), as Grego's belief that Shull was prepared to inflict serious

bodily harm upon her was entirely reasonable under the dire circumstance in

which Shull placed her.

      In his fourth issue, Shull charges error with the court's evidentiary

ruling overruling his objection to testimony recounting his apparent theft of

cigarillos from a convenience store and snacks from a different Walmart on

the night in question.       Specifically, Shull maintains the trial court

"considered inadmissible propensity evidence during [his] bench trial[,]

evidence that the court openly impugned as irrelevant during trial.      “The

admissibility of evidence is at the discretion of the trial court and only a

showing of an abuse of that discretion, and resulting prejudice, constitutes



                                    - 44 -
J-A18037-16



reversible   error.” Commonwealth v. Glass, 50            A.3d 720, 724–25

(Pa.Super. 2012) (citation and internal quotation marks omitted).

      In general, evidence of uncharged crimes and prior bad acts is

inadmissible to demonstrate a defendant's propensity to commit the crime

charged. Our Supreme Court has stated that

      The Commonwealth must prove beyond a reasonable doubt that
      a defendant has committed the particular crime of which he is
      accused, and it may not strip him of the presumption of
      innocence by proving that he has committed other criminal acts.
      There are, of course, important exceptions to the rule where the
      prior criminal acts are so closely related to the crime charged
      that they show, inter alia, motive, intent, malice, identity, or a
      common scheme, plan or design.

Stafford, 749 A.2d at 495 (citations omitted).

      Here, the notes of testimony reveal that the trial court, sitting as fact-

finder in Shull's bench trial, may not have technically sustained defense

counsel's relevance-based objection to evidence pertaining to Shull's

apparent theft of cigarillos and other items earlier that evening, but

nevertheless, the court openly disparaged the probity of such evidence to

the point of admonishing the prosecution that it would not consider such

evidence in rendering its verdicts, as the following notes of testimony show:

      PROSECUTOR:        Okay. The photograph that depicts him taking
      the cigarillos –

      DEFENSE COUNSEL: Objection.

      THE COURT:         What’s the objection?

      DEFENSE COUNEL:           It’s not relevant.     She’s having him
      testify about a theft. It’s prohibited by rule 404. I don’t know –

                                    - 45 -
J-A18037-16



      THE COURT:        The Court will not consider in determining
      whether the defendant is guilty of counts 1 through 5 on the
      information that he allegedly committed an offense at some
      other store. But I don’t understand why this case is getting
      down to the nitty-gritty.

      If you think that I’m going to find that he stole a gun an hour
      later based on the fact that he stole cigarillos and junk food at
      another store, you are absolutely wrong. But go ahead.

      This case is going to go quicker if I just let you put this stuff in
      that’s totally irrelevant. Because I’m telling you, I’m going to
      ignore it all, but you can put in on.

      PROSECUTOR:       I’ll try to move forward, Your Honor.

N.T., 6/17/15, at 104-105.

      As our Supreme Court has recognized, [h]armless error exists if the

record demonstrates either: (1) the error did not prejudice the defendant or

the prejudice was de minimis; or (2) the erroneously admitted evidence was

merely cumulative of other untainted evidence which was substantially

similar to the erroneously admitted evidence; or (3) the properly admitted

and uncontradicted evidence of guilt was so overwhelming and the

prejudicial effect of the error was so insignificant by comparison that the

error could not have contributed to the verdict.          Commonwealth v.

Hairston, 84 A.3d 657, 671–72 (Pa. 2014) (citation omitted).          Instantly,

even if we were to assume, arguendo, that the court erred in failing to

sustain the defense objection, we would discern no prejudicial effect from

the error given the court's unequivocal statement that such evidence would

not bear on its fact-finding or verdict on the charges at bar. In addition, the

                                     - 46 -
J-A18037-16


“uncontradicted evidence of guilt, namely, victim and police testimony

identifying Shull as the gun-toting assailant who violently assaulted Grego in

a robbery attempt, is so overwhelming, so that by comparison,” the errors at

issue are insignificant. See Commonwealth v. Kuder, 62 A.3d 1038, 1052

(Pa.Super. 2013).       Accordingly, Shull's evidentiary ruling challenge is

without merit.

      In Shull's final issue, he challenges the trial court's ruling refusing to

credit him with time-served for his voluntary stay at the Caron Foundation

for inpatient rehabilitation.   Shull contends, however, that the court was

obligated to award him credit starting from the date of the decertification

hearing, when the court entered an order requiring him to remain in

inpatient rehabilitation.

      Specifically, Shull voluntarily entered a 90-day program at Caron one

week before his decertification hearing.      At the hearing, the court ordered

that the "bail bond executed by the defendant on October 16, 2014, is

amended to include the condition that Defendant remain at the Caron

Foundation in Warrensville, Pennsylvania and not leave that facility unless

accompanied by a Caron employee or to return for the next hearing." N.T.

1/14/15 at 135. At the sentencing hearing, the trial court explained it was

in consideration of the ongoing provision of treatment already secured by

Shull’s parents that the court agreed not to revoke bail on condition that

Shull not leave Caron.      In the court’s estimation, therefore, Shull was at


                                     - 47 -
J-A18037-16


Caron voluntarily and not as a condition of confinement.        N.T. 8/11/15 at

26-27.

       Employing an abuse of discretion standard of review governing the

exercise of sentencing discretion,14 we note the following:

       The Sentencing Code provides that a defendant shall receive
       credit for all time spent in custody prior to trial:

              § 9760. Credit for time served

              (1) Credit against the maximum term and any
              minimum term shall be given to the defendant for all
              time spent in custody as a result of the criminal
              charge for which a prison sentence is imposed or as
              a result of the conduct on which such a charge is
              based. Credit shall include credit for time spent in
              custody prior to trial, during trial, pending sentence,
              and pending the resolution of an appeal.

       42 Pa.C.S.A. § 9760(1). “The principle underlying [Section
       9760] is that a defendant should be given credit for time spent
       in custody prior to sentencing for a particular offense.”
       Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa.Super.
       2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008),
       quoting Commonwealth v. Hollawell, 413 Pa.Super. 42, 604
       A.2d 723, 725 (1992) (citation omitted) (emphasis deleted).
____________________________________________


14
   Shull's brief does not contain a “concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence” as required by Pa.R.A.P. 2119(f). However, the Commonwealth
has not objected. Therefore, we will not find Shull's discretionary claim to
be waived.      See Commonwealth v. Brougher, 978 A.2d 373, 375
(Pa.Super. 2009) (claims relating to the discretionary aspects of a sentence
are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in
his brief and the opposing party objects to the statement's absence; where
the appellant has failed to comply with the requirement of 2119(f) but the
Commonwealth did not object to the statement's absence, we will not find
appellant's claims waived).




                                          - 48 -
J-A18037-16



           The easiest application of [42 Pa.C.S.A. § 9760(1)] is
           when an individual is held in prison pending trial, or
           pending appeal, and faces a sentence of
           incarceration: in such a case, credit clearly would be
           awarded.     However, the statute provides little
           explicit guidance in resolving the issue before us
           now, where [the defendant] spent time [somewhere
           other] than in prison. This difficulty results in part
           from the fact that neither Section 9760, nor any
           other provision of the Sentencing Code, defines the
           phrase “time spent in custody.” The difficulty is also
           a function of the fact that there are many forms of
           sentence, and many forms of pre-sentencing release,
           which involve restrictions far short of incarceration in
           a prison.

     Id. at 595-596, quoting Commonwealth v. Kyle, 582 Pa. 624,
     632-633, 874 A.2d 12, 17 (2005) (citation omitted). “Courts
     have interpreted the word ‘custody,’ as used in Section 9760, to
     mean time spent in an institutional setting such as, at a
     minimum, an inpatient alcohol treatment facility.” Id. at 596,
     quoting Kyle, 582 Pa. at 634, 874 A.2d at 18.

Commonwealth v. Toland, 995 A.2d 1242, 1248–49 (Pa.Super. 2010).

     Shull points to the procedural history of his case wherein the court

placed him on house arrest upon the completion of his 103-day stay at

Caron and prior to issuing an order permitting him to enroll at the Linder

Hope Center on March 5, 2015, for a neuropsych evaluation and possible

ongoing treatment at the facility.    N.T. 3/3/15 at 3-12.    At a bail status

hearing on March 11, 2015, defense counsel asked that Shull be released on

bail to permit his enrollment in a partial hospitalization program at another

rehabilitation center following his upcoming discharge from the Lindner

Center on March 17, 2015.     The court denied this request, however, and

ordered that upon his discharge from Lindner he be returned to Center

                                     - 49 -
J-A18037-16



County Correction Facility where he would remain without bail. N.T. 3/11/15

at 3-6.

        Shull relies on Commonwealth v. Cozzone, 593 A.2d 860 (Pa.Super.

1991), in asserting that he is entitled to credit time for that portion of his

inpatient treatment served at the Caron Foundation and the Lindner Hope

Center     under      court   order   that    he      not     leave   such   facilities   unless

accompanied by a facility employee or for the purpose of attending a court

hearing.       In Cozzone, the DUI defendant enrolled in an inpatient

rehabilitation program in conformance with an explicit condition of his

release on bail. After spending 32 days at the facility prior to his pleading

guilty, defendant sought credit for his time served, which the sentencing

court denied.         We reversed, holding that the defendant only enrolled to

avoid     pre-trial    imprisonment,     making         his    case    distinguishable     from

precedent permitting the denial of credit for pre-trial time served where the

defendant voluntarily admitted himself for inpatient treatment.                     See, e.g.,

Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991) (holding voluntary

admission qualifies as pretrial custody for purposes of “imprisonment” for

purposes of awarding time served, but decision whether to award credit

resides in sound discretion of sentencing court). In particular, we noted that

the District Justice had allowed the defendant to admit himself to an alcohol

treatment facility in lieu of being committed to the county prison, and made

such admission a condition of his being released on bail.                      Cozzone, 593

A.2d at 866.

                                             - 50 -
J-A18037-16



      In Toland, we discussed how precedent distinguishes voluntary from

court-ordered pretrial, inpatient admissions when inquiring into whether

credit for time served should be granted or denied:

      Looking at these cases together, therefore, it seems that
      whether a defendant is entitled to credit for time spent in an
      inpatient drug or alcohol rehabilitation facility turns on the
      question of voluntariness.       If a defendant is ordered into
      inpatient treatment by the court, e.g., as an express condition of
      pre-trial bail, then he is entitled to credit for that time against
      his sentence. Cozzone. By contrast, if a defendant chooses to
      voluntarily commit himself to inpatient rehabilitation, then
      whether to approve credit for such commitment is a matter
      within the sound discretion of the court. Conahan. See also
      Commonwealth v. Mincone, 405 Pa.Super. 599, 592 A.2d
      1375 (1991) (en banc ) (trial court may exercise its discretion
      in determining whether to grant defendant credit towards his
      mandatory minimum sentence of imprisonment for time
      voluntarily spent at Gateway Rehabilitation Center, an
      institutionalized rehabilitation facility) (discussing Conahan,
      supra).

Commonwealth v. Toland, 995 A.2d 1242, 1250–51 (Pa.Super. 2010).

      Toland involved a third-time DUI offender who was facing a

mandatory one-year prison sentence.       After pleading guilty, he asked the

court for 354 days’ credit for pretrial detention served at several inpatient

rehabilitation facilities, noting that the magisterial district judge had ordered

that he enter inpatient rehabilitation. Despite the wording in the MDJ’s bail

information, the sentencing court denied credit for time served, because the

defendant had been released on bail and admitted himself only after he was

arrested again for DUI one month later.       More significantly, however, the

record established that the defendant entered inpatient rehab not to avoid


                                     - 51 -
J-A18037-16



going to jail but, instead, to obtain the best services available to save his

life.

        In this regard, the sentencing court found it critical that Toland had

spent over $100,000 at exclusive, private facilities in Oregon and Arizona.

In Oregon, the defendant spent 47 days engaged in group care and therapy

relating to his alcohol addiction.      When he completed this program, he

followed the Oregon staff’s recommendation to transfer to the Prescott

House in Arizona, where he lived in apartment-style housing, was free to go

out, and held a part-time job. The record also showed he had continued his

preliminary hearing numerous times before waiving it after he had spent

nearly one full year receiving this residential, inpatient treatment.          There

was nothing about this arrangement that resembled imprisonment or even

custody, opined the sentencing court, which described the Prescott House as

a “mile high scenic mountain getaway.” Id. at 1252.

        In affirming the court’s denial of credit, we agreed that the defendant’s

situation in no way resembled the “custodial hospital environment” involved

in Conahan. Id. We continued:

        In addition, we cannot ignore the trial court's cogent argument
        that allowing appellant credit in this case would invite
        defendants who can afford extended stays in inpatient
        rehabilitation facilities to “game the system.” (Trial court
        opinion, 1/7/09 at 17-18.) Most defendants cannot afford to pay
        in excess of $100,000 and continue their cases indefinitely while
        they “rehab” at addiction facilities in Oregon and Arizona. The
        trial court states that “If this Court were to allow credit for time
        spent in rehab in this case, the Court could not look similarly
        situated defendants in the eye.” (Id. at 18.).


                                       - 52 -
J-A18037-16



Id., at 1253.

      Here, as was the case in Toland, the trial court determined that

Shull—with the full emotional and financial support of his family—had

voluntarily admitted himself into an exclusive, private rehabilitation facility

not to avoid pre-trial detention but, instead, to acquire for himself the best

treatment available for his addiction and medical difficulties. Our review of

the record supports this determination, and so we decline to find the court

abused its exercise of sentencing discretion in refusing to credit time-served

for time he spent in voluntary rehabilitation.


      Accordingly, we affirm the convictions in the above captioned matters,

but vacate sentence and remand for resentencing consistent with this

decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




                                       - 53 -
