J-S81042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARCIA KALISTA RICHARDS

                            Appellant                 No. 3612 EDA 2015


            Appeal from the Judgment of Sentence October 12, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005424-2014


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                     FILED JANUARY 19, 2017

        Marcia Kalista Richards (“Appellant”) appeals from the judgment of

sentence entered by the Court of Common Pleas of Lehigh County after she

pled guilty to one count each of Aggravated Assault and Burglary committed

within the context of a domestic dispute. Sentenced to an aggravated range

sentence of not less than four nor more than ten years’ incarceration,

Appellant challenges the discretionary aspects of her sentence by claiming it

was, inter alia, the product of an erroneous application of the Deadly

Weapon Enhancement-Possessed (“DWE”) Matrix. For the following reasons,

we vacate judgment of sentence and remand for resentencing.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       The pertinent facts of this case, gleaned from Appellant’s guilty plea

and sentencing hearings, are as follows: 59 year-old Appellant pled guilty to

one count of Aggravated Assault—Attempt to Cause Serious Bodily Injury

and one count of Burglary for breaking into the residence of her estranged

husband, John Richards, on June 7, 2014, at just before midnight and

assaulting a houseguest, 33 year-old Jen Fink. According to Ms. Fink, she

and her nine year-old son were at Richards’ residence that evening only

because he had helped her resolve car troubles earlier in the day and then

suggested he could watch her son in the event she was called in for an

evening shift at St. Luke’s Hospital, where both she and Richards worked.1

She explained that she later decided to stay overnight because she had

drunk several beers at Richards’ place and thought it imprudent to drive her

rental car home under those circumstances. N.T. 5/18/15 at 8; 10/12/15 at

40-41.
____________________________________________


1
  John Richards attested that he was romantically involved with Fink both
while Appellant and he still resided together and on the day in question.
Fink, however, denied ever having a “real” relationship with Richards and
insisted on the witness stand that they had not seen one another for about
six months prior to her staying at Richard’s home that evening.

In an effort to impeach Fink’s credibility as a witness, defense counsel
confronted Fink with a series of emails in which she referred to Richards by
an affectionate pet name, said she would follow him down to Florida for a
vacation—which she eventually did, and said “Yes, a ring from you would
mean the world to me.” N.T. 10/12/15 at 55, 58. Fink first suggested that
she was referring to her grandfather’s ring which Richards had in his
possession, but she later abandoned that position. Id.




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         Earlier that same day, Appellant had visited Richards at his residence,

which she owned, and she claimed she had asked him for a divorce. She

said her husband of 27 years denied her request because he believed that

divorce was “not right.” N.T. at 68. Instead, Richards asked Appellant to go

to bed with him, an offer which Appellant declined.          Id.   According to

Appellant, Richards gave the impression that he would be alone all night.

N.T. at 67.

         Appellant went out to a concert in Jim Thorpe with friends that

evening, and, afterwards, she testified, she decided to return to Richards’

home to get her dog and to continue their discussion about getting an

amicable divorce. N.T. at 68-69. When Appellant arrived, however, she saw

Fink through the living room window and reacted violently, breaking a

window on the door to gain access inside. N.T. at 44; Affidavit of Probable

Cause, 6/7/15. Fink had already called 911 because she did not know who

was entering the home. N.T. at 45.

         According to Fink, Appellant attacked with punches and hair pulling,

but she was able to get Appellant into a corner and sat on top of her in an

effort to gain control.    N.T. at 45-46.    At that point, Appellant got Fink’s

hand in her mouth and bit down hard on a pinky finger. N.T. at 46. Fink

managed to break free and, with her son still sleeping in a nearby room, ran

out the kitchen door in the hope that Appellant would follow her outside, she

testified. N.T. at 46. Appellant, however, locked the door behind Fink. N.T.

at 47.

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     Fink redialed 911 and the dispatcher connected her to the State Police

barracks in Bethlehem.    N.T. at 47.   At some point during the call, she

approached the kitchen door with the intention of entering the house again,

but Appellant opened it from the inside, as Appellant ushered Fink’s son

outside to his mother and closed the door a second time. N.T. at 47, 60.

Fink testified that her son was unharmed but “covered in blood” from coming

in contact with Appellant’s superficial cuts sustained from the broken

window. N.T. at 47-48. Fink and her son walked away from the house and

waited for police in a nearby patch of woods. N.T. at 47.

     Appellant then turned her attention to her husband, who was sleeping

in his upstairs bedroom. According to the police report, Richards awoke to

Appellant’s screaming and stabbing his mattress with a kitchen knife. N.T.

at 21. She then dropped the knife and started striking Richards with closed

fists until Richards pushed her away and she relented.         Investigators

subsequently saw multiple cuts in the mattress and their search of Richards’

bedroom uncovered a bent knife lying at the foot of the bed.

     Richards refused to cooperate with the investigation against Appellant,

however, as he blamed himself for her violent outburst, citing his long

history of infidelity and mistreatment of Appellant as pushing her beyond her

breaking point. N.T. at 26. It was mainly Richards’ unwillingness to admit

that Appellant posed any risk of harm to him that the Commonwealth

dropped the aggravated assault charge related to her conduct in his

bedroom.    N.T. at 26.    Richards reiterated this position at Appellant’s

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sentencing hearing, where he testified that Appellant never threatened him

with a knife and that he never even saw a knife until a police officer brought

it outside and showed it to him. N.T. at 23-26.

      For her part, Appellant admitted she stabbed Richards’ bed, but only

after he was out of harm’s way:

      THE COURT:         I have some [questions for Appellant after she
      read a statement to the court]. So when you pled guilty to these
      offenses, factually, do you admit that you grabbed , as you said,
      grabbed the knife, went upstairs and stabbed the bed?

      APPELLANT:          I do. I did do that.

      Q:      All right. And at that time, Mr. Richards was in the bed?

      A:    No. He removed himself from the bed, or he was moving
      out of the bed. I stabbed the bed because it demonstrated – to
      me it represented infidelity.

      I had no intention of ever hurting my husband. Based on the
      lifestyle that we’ve had, I never had to hurt my husband. My
      husband periodically and very commonly attempted suicide and I
      stopped him. I loved my husband and I always will but I know I
      cannot be with him.

N.T. at 37.

      Ms. Fink sustained a lacerated and broken pinky resulting in a

permanent loss of sensation to the finger.       N.T. 8/18/15 at 10.   Fink also

testified that she and her son “didn’t sleep for months” after the episode and

that, for nearly one year her son would get “a little worried and scared” if he

heard noises at night. N.T. 10/12/15 at 49.

      Character witnesses included an oncologist, fellow dieticians and

college professors, and neighbors testifying to Appellant’s lifetime of caring,

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kindness, honesty, and integrity in both her personal and professional life.

They spoke of how Appellant, a nationally published, master’s degree-level

dietician considered a premier renal specialist in her field, tended to dialysis

and cancer patients’ needs expertly and compassionately during her long

career. She was described as an engaging public speaker and educator who

uniquely inspired colleagues and college students, alike, with empathetic

stories about her patients and the medical complexities they face.

Witnesses spoke emotionally about her ability to make lasting personal

connections with patients and their families during very difficult times. They

also   discussed   the   remorse,   embarrassment,    and   sadness   Appellant

displayed after committing the crimes in question.

       The court noted that Appellant had no previous criminal record. It was

also in possession of a defense-obtained psychological evaluation and

violence risk assessment performed by a board-certified clinical psychologist,

Dr. Frank M. Dattilo, Ph.D., who opined to a reasonable degree of

psychological certainty that Appellant’s behavior in the instant offense was

       highly atypical of her and should be considered an aberration.
       This aberrant behavior came on the heels of years of marital
       deterioration and stress which was very unfortunate.           Ms.
       Kalista-Richards is truly remorseful for her behavior and had
       taken responsibility even beginning with cooperating with her
       arrest by Pennsylvania state troopers on the scene. She has
       also continued to seek treatment and rehabilitation and is, in my
       opinion a low risk for future psychological certainty[.]

       Psychological Evaluation and Violence Risk Assessment, 2/17/15, at

18.


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      The court announced that it was applying the DWE-Possessed Matrix

to Appellant’s sentence and, as noted supra, imposed an aggravated range

sentence on the count of Aggravated Assault and a standard range sentence

on the count of Burglary, both sentences to run concurrently. When defense

counsel questioned the propriety of an aggravated range sentence the

following discussion took place:

      THE COURT:        It is an aggravated sentence. The charge was
      reduced to the Felony 2 as a –

      PROSECUTOR:       It’s a Felony 1.

      THE COURT:        All right. Okay. Then the Court finds the
      defendant is a danger to the community. I don’t believe the
      guidelines adequately reflect the facts of this case. There was a
      child present during the assault and there was – how do we
      classify Mr. Richards’ testimony?      There was – there were
      additional victims that charges were not pursued on. Okay.
      That will take care of the record. Now do you understand your
      sentence?

N.T. 10/12/15 at 65-66.    After the denial of Appellant’s motion to modify

sentence, this timely appeal followed.

      Appellant presents the following questions for our review:

      1. Did the lower court err when it found [Appellant] possessed a
         Deadly Weapon for the purpose of sentencing enhancement?

      2. Did the lower court err when it imposed a sentence in the
         aggravated range of the sentencing guidelines?


      3. Did the lower court err when it failed to state sufficient
         reasons for a sentence in the aggravated range of the
         sentencing guidelines?




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Appellant’s brief at 6.

      Initially, we recognize that “[i]t is firmly established that a plea of

guilty generally amounts to a waiver of all defects and defenses except those

concerning the jurisdiction of the court, the legality of sentence, and the

validity of the guilty plea.” Commonwealth v. Dalberto, 648 A.2d 16, 18

(Pa.Super. 1994) (citations omitted).     “A defendant,” however, “who has

pled guilty may challenge the discretionary aspects of his sentence as long

as the defendant did not agree to a negotiated sentence as part of a plea

agreement.”      Commonwealth       v.   Johnson,    758   A.2d   1214,   1216

(Pa.Super. 2000) (citation omitted).     Instantly, Appellant, who entered an

open plea of guilty, may challenge the discretionary aspects of her sentence.

See id.

      This Court has stated that

      [c]hallenges to the discretionary aspects of sentencing do not
      entitle an appellant to appellate review as of right. Prior to
      reaching the merits of a discretionary sentencing issue:

            We conduct a four part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            [720]; (3) whether appellant's brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing


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      or raised in a motion to modify the sentence imposed at that
      hearing.

Commonwealth v. Evans, 901 A.2d 528, 533–34 (Pa.Super. 2006) (some

citations and punctuation omitted).

      Concluding   that   Appellant   has    complied   with      the   first   three

requirements to discretionary review, we consider whether she raises a

substantial question in her Pa.R.A.P. 2119 concise statement for allowance

of appeal. In her statement, she contends that the lower court erroneously

applied the deadly weapons-possessed sentencing enhancement to her

Aggravated    Assault   conviction.   This   claim   not   only    addresses     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.”), it also raises a substantial question meriting review:

      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.”
      [Commonwealth v. Pennington, 751 A.2d 212, 215-16
      (Pa.Super. 2000) ] (citing 42 Pa.C.S.A. § 9781(b))

      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

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      enhancement in a situation where the appellant used a knife to
      threaten the victims); [Commonwealth v.] Scullin, 414
      Pa.Super. 442, [607 A.2d 750, 752–53 (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).

Commonwealth v. Shull, --- A.3d --- 2016 WL 4769512, at **6-7

(Pa.Super. September 13, 2016) (quoting 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.”).         We, therefore,

shall address the first discretionary aspects claim raised herein.

      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, 626 Pa. 681, 95 A.3d 275 (2014).

      During sentencing, the court referred to Appellant’s acquisition of a

knife during the course of events and indicated it would apply the deadly


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weapon possessed enhancement for purposes of sentencing. N.T. at 62-63.

The court did not specify whether the enhancement applied to one or both

offenses, but it couched its deadly weapon enhancement discussion and

decision within a larger statement addressing all of Appellant’s actions and

expressing concern over what could have happened had Fink remained in

the home after Appellant grabbed the knife:

     And shaking heads or not [referring to supporters of Appellant in
     attendance], there was a nine-year old child there. So either
     you thought it out once you got there, had certain intentions
     when you went up to the bedroom, where I am convinced your
     husband was laying [sic] in bed and started screaming as he
     originally told the police, and started stabbing the bed and then
     beating him.

     So for purposes of sentencing I am going to find not deadly
     weapon used but we will do deadly weapon possessed, but those
     actions are almost like an animal.

     I mean, you don’t want to see yourself that way but that’s who
     you were that night, covered in your own blood, crawling
     through a window, trying to hurt someone. Then going up and, I
     mean, had you not been stopped, I don’t know what might have
     happened. Had she [Fink] not run out of the house and been
     able to get out, what would her fate have been? You don’t know
     that. I don’t know that.

     I know that it was an aggravated assault. I know that you
     caused her serious bodily injury and for that there is a
     consequence. [Brief discussion ensues, clarifying that plea was
     for attempted serious bodily injury]. So while I agree it’s not
     your normal behavior, given your life and your life’s work, all of
     which you should be commended for, frightening set of facts.

     Clearly there is another side of you that is, indeed, violent and
     did cause harm to another person. And for that, regardless of
     your request, you are going to jail.



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N.T. at 62-64.

       The court then imposed a period of incarceration of not less than forty-

eight months on the count of Aggravated Assault, a term which falls within

the aggravated range for both the Basic and the DWE/Possessed matrices.

The court thereafter segued seamlessly to the Burglary conviction and began

to sentence Appellant to a term of “not less than three years,” which, again,

would have represented an aggravated range sentence under both matrices,

but it immediately changed course and withdrew that sentence in favor of

what it called a “standard” range sentence of 33 months to 10 years.2 N.T.

at 64-65. Important for our purposes, this revised sentence was a standard

range sentence under the DWE/Possessed matrix alone, and it suggests that

the court had also been calculating the Aggravated Assault sentence in

accordance with the enhanced matrix.3

       The plain language of Section 303.10 provides that an enhancement

“shall apply to each conviction offense for which a deadly weapon is

possessed or used.” 204 Pa.Code § 303.10(a)(4). At no time during either
____________________________________________


2
   Specifically, the court stated “Count 2, burglary, is the costs of
prosecution, imprisonment for not less than, let’s see – not less than three
years – well, we will make that one standard – 33 months to 10 years,
concurrent to Count 1.” N.T. at 65. Notably, the 33-month DWE-Possessed
term is at the top end of the enhanced standard range and would reside
within the aggravated range of a basic matrix sentence.
3
  In its Pa.R.A.P. 1925(a) opinion, the court opines that it properly applied
the DWE-Possessed matrix within a discussion as to the propriety of both
sentences. Pa.R.A.P. 1925(a) Opinion, filed 10/27/2015, at 2-3.



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the guilty plea or sentencing hearing did the Commonwealth allege that

Appellant possessed the knife during her assault of Ms. Fink; nor did

testimony adduced at the hearing support the position that Appellant

possessed a knife at the time of the assault. Yet it appears from the notes

of testimony that the lower court applied the enhancement to its

computation of Appellant’s Aggravated Assault conviction. Accordingly, we

are   constrained     to   vacate     judgment      of   sentence   and   remand   for

resentencing, where the court shall clarify that it is applying the basic

sentencing matrix to achieve a proper starting point for imposing sentence

on the Aggravated Assault conviction.4

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2017




____________________________________________


4
  Given our vacation of Appellant’s sentence, we need not address her
second and third questions presented.




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