J-S64035-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                      v.

DAVID S. IRVIN

                           Appellant                   No. 432 MDA 2017


         Appeal from the Judgment of Sentence January 24, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at No(s):
                        CP-22-CR-0001146-2016

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 14, 2017

        Appellant, David S. Irvin, appeals from the judgment of sentence of 54

to 120 months’ imprisonment imposed in the Dauphin County Court of

Common Pleas after a jury found him guilty of two counts of delivering a

controlled substance.1 Appellant claims that (1) the verdict was against the

weight of the evidence, (2) the sentence was manifestly excessive, and (3)

the trial court erred in finding him ineligible for the Recidivism Risk

Reduction Incentive (“RRRI”) program.2       We affirm in part, vacate in part,

and remand for further consideration of Appellant’s RRRI-eligibility.

        The trial court summarized the facts history of this case as follows:

*   Former Justice specially assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30).

2   See 61 Pa.C.S. §§ 4501-4512.
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           At trial, Detective Nicholas Licata testified to the
       circumstances and events of September 15, 2015 and
       September 17, 2015 that lead to [Appellant’s] arrest for
       delivery of a controlled substance. The Detective testified
       that while using a confidential informant (“CI”) two
       separate drug buys were made from [Appellant]. The CI
       was a trusted informant that had worked with the
       Detective on previous cases.

          On September 15, 2015, the CI set up a drug buy with
       a person the CI identified as [Appellant]. In order to
       contact [Appellant], the CI called the phone number (717)
       329-3241. The CI was searched by the Detective to
       ensure the CI did not have drugs or money on his or her
       person and the Detective then gave the CI $70 to make
       the drug buy. The CI walked to meet [Appellant]3 and did
       not have contact with anyone else before entering a white
       Hyundai sedan with a Pennsylvania license plate, JPF-
       4162.    The Commonwealth entered into evidence as
       exhibit one, a video of the CI entering a white car. The CI
       rode in the car until he or she was dropped off. The
       Detective picked up the CI and upon searching the CI,
       found a bundle of heroin and no money. The bundle of
       heroin and a lab report determining the substance
       contained in the bundle was heroin were entered into
       evidence by the Commonwealth as exhibits two and three,
       respectively.


          3 Detective Licata and the CI initially drove to a
          location in order to complete the drug sale. At that
          location, [Appellant] called the CI and had him walk
          to a different location to meet [Appellant].


          On September 17, 2015, the CI set up another
       controlled buy after contacting a person the CI again
       identified as [Appellant]. The CI called the same phone
       number as was called on September 15, 2015. Following
       the same process as the first buy, the CI was searched and
       then given money before walking to meet [Appellant]. The
       CI again entered a white Hyundai bearing the same license
       plate as the first drug sale. After the CI was dropped off,
       he or she was picked up by the Detective and searched.


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         The CI again had a bundle of heroin and no money. The
         CI informed the detective that it was [Appellant] who sold
         the drugs to him or her. The Commonwealth had the
         second bundle of heroin and a lab report identifying the
         substance as heroin entered into evidence as exhibits four
         and five, respectively.

            [Appellant] was arrested on September 18, 2015.
         [Appellant] was searched and the search found a cell
         phone and car keys. The Detective called the number the
         CI had called and the phone found in [Appellant’s]
         possession rang and displayed the Detective’s phone
         number as the incoming call. The car keys found in
         [Appellant’s] possession unlocked the car that had picked
         up the CI on the two separate occasions. A search warrant
         was obtained for the car, which turned up wax bags
         commonly used to package heroin and a rental agreement
         showing that the car was rented to a person other than
         [Appellant].

            Another Harrisburg Police Department Officer was called
         to testify for the Commonwealth. The officer’s duty during
         the investigation was to conduct surveillance.         The
         Commonwealth entered into evidence, as exhibits eight
         through eleven, various videos and photographs showing
         [Appellant] entering and operating the vehicle. [Appellant]
         did not testify at the trial and did not put on evidence or
         call any witnesses. [Appellant] attacked the use of a CI,
         the lack of eyewitness evidence of the actual drug
         exchange, and the lack of physical proof such as DNA and
         fingerprints.

Trial Ct. Op., 3/3/17, at 2-4 (record citations and some footnotes omitted).

      On December 6, 2016, a jury found Appellant guilty of two counts of

delivering controlled substance.    On February 21, 2017, the trial court

sentenced Appellant to serve two consecutive terms of twenty-seven to sixty

months’ imprisonment. Appellant filed post-sentence motions seeking RRRI

eligibility and a downward modification of his sentence, both of which the



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trial court denied. Appellant filed a timely appeal and complied with the trial

court’s order to submit a Pa.R.A.P. 1925(b) statement.

      Appellant presents the following questions for our review:

         I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
         APPELLANT’S POST-SENTENCE MOTION BECAUSE THE
         VERDICT WAS SO CONTRARY TO THE WEIGHT OF THE
         EVIDENCE AS TO SHOCK ONE’S SENSE OF JUSTICE?

         II. WHETHER THE IMPOSITION OF AN AGGREGATE
         SENTENCE OF 54 TO 120 MONTHS’ INCARCERATION WAS
         CLEARLY UNREASONABLE, SO MANIFESTLY EXCESSIVE AS
         TO CONSTITUTE AN ABUSE OF DISCRETION, AND
         INCONSISTENT WITH THE PROTECTION OF THE PUBLIC,
         THE GRAVITY OF THE OFFENSES, AND APPELLANT’S
         REHABILITATIVE NEEDS WHERE THE COURT IMPOSED
         CONSECUTIVE JAIL SENTENCES ON COUNTS ONE AND
         TWO?

         III. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
         APPELLANT’S ELIGIBILITY FOR [RRRI] AT THE TIME OF
         HIS SENTENCING?

Appellant’s Brief at 8 (footnote omitted).

      Appellant first claims that the verdict was against the weight of

evidence. Appellant emphasizes that there was no direct evidence that he

delivered the drugs to the CI because the transactions took place beyond the

sight of the officers surveilling the controlled buys and the CI did not testify

at trial. Id. at 21. Appellant further contends that the Commonwealth failed

to preserve the text messages or phone calls allegedly arranging the buys.

Id.. Lastly, Appellant asserts that the evidence obtained from the search of

the white Hyundai sedan was inconclusive because he did not rent the

vehicle, the “baggies” found in the car did not match the packaging


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materials used in the controlled buys, and the money found in the car did

not include the buy money used by the CI. Id.. No relief is due.

      The standards for reviewing a challenge to the weight of the evidence

are well settled.

         A weight of the evidence claim concedes that the evidence
         is sufficient to sustain the verdict, but seeks a new trial on
         the ground that the evidence was so one-sided or so
         weighted in favor of acquittal that a guilty verdict shocks
         one’s sense of justice. On review, an appellate court does
         not substitute its judgment for the finder of fact and
         consider the underlying question of whether the verdict is
         against the weight of the evidence, but, rather, determines
         only whether the trial court abused its discretion in making
         its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted).

      Instantly, the trial court denied Appellant’s post-sentence motion for a

new trial.   The court determined there was ample circumstantial evidence

supporting the jury’s verdict and the jury properly determined the credibility

of the witnesses.   Trial Ct. Op. at 4, 6 & n.4.      The record reveals that

Detective Licata had the CI arrange the two controlled purchases by

contacting Appellant’s cellular phone.     The detective searched the CI for

contraband before both purchases.        Appellant was observed driving the

rented white Hyundai involved in both purchases. Detective Licata saw the

CI enter the passenger side of the vehicle after which Appellant drove

around several blocks and then returned to an area near the initial location

of the meetings. After exiting the vehicle, the CI gave the detective bundles


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of heroin.      Additionally, following Appellant’s arrest, Detective Licata

confirmed that the cellular phone contacted by the CI was Appellant’s by

calling it.   Thus, although Appellant’s arguments reveal minor gaps in the

evidence,     we   discern   no   abuse   of   discretion   in    the   trial   court’s

determinations that the verdicts did not shock one’s sense of justice. See

Lyons, 79 A.3d at 1067. Accordingly, Appellant’s first claim fails.

      Appellant next claims that the trial court’s aggregate sentence of 54 to

120 months’ imprisonment was manifestly excessive.               Appellant’s Brief at

16, 24. He contends that the trial court focused solely on the gravity of the

offense and failed to consider mitigating circumstances.                 Id. at 26.

Additionally, he notes that the detective could have arrested him after the

first controlled buy, but arranged a second buy for which he was sentenced

consecutively. Id. at 27. Appellant concludes he is entitled to resentencing.

Id. We disagree.

      It is well settled that

          a challenge to the discretionary aspects of a sentence is a
          petition for permission to appeal, as the right to pursue
          such a claim is not absolute. Before this Court may review
          the merits of a challenge to the discretionary aspects of a
          sentence, we must engage in the following four-pronged
          analysis:

              [W]e 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


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            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S. § 9781(b).

Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (some

citations omitted).

      This Court has stated that

         [t]he determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis.
         Further:

            A substantial question exists only when the appellant
            advances a colorable argument that the sentencing
            judge’s actions were either: (1) inconsistent with a
            specific provision of the Sentencing Code; or (2)
            contrary to the fundamental norms which underlie
            the sentencing process.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.), appeal

denied, 633 Pa. 774, 126 A.3d 1282 (2015).

      Appellant timely filed the instant appeal, and he included a Pa.R.A.P.

2119(f) statement in his brief. Appellant also filed a post-sentence motion in

which he that the aggregate sentence was “clearly unreasonable” and

“excessive” because it was too severe a punishment in light of his

rehabilitative needs.   Appellant’s Post-Sentence Motion, 1/30/17, ¶¶ 6-7.

Therefore, Appellant’s post-sentence motion adequately preserved his

arguments that the sentence was excessive because the trial court

improperly focused on the gravity of the offense and failed to consider

mitigating circumstances. Further, we conclude that these arguments raise

a substantial question under the circumstances of this case. See Caldwell,


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117 A.3d at 770 (finding substantial question raised by “challenge to the

imposition of his consecutive sentences as unduly excessive, together with

his claim that the court failed to consider his rehabilitative needs upon

fashioning its sentence”). Therefore, we grant review as to these questions.

      However,    Appellant’s   post-sentence     motion    did   not   include   an

argument that the consecutive nature of the sentences was unreasonable

because the detective did not to arrest him after the first controlled

purchase.   Moreover, that argument was not fairly raised at sentencing.

Therefore, that argument is waived, and we will not consider it in this

appeal. See Williams, 151 A.3d at 625.

      It is well settled that

         [t]he proper standard of review when considering whether
         to affirm the sentencing court’s determination is an abuse
         of discretion. [A]n abuse of discretion is more than a mere
         error of judgment; thus, a sentencing court will not have
         abused its discretion unless the record discloses that the
         judgment exercised was manifestly unreasonable, or the
         result of partiality, prejudice, bias, or ill-will. . . . An abuse
         of discretion may not be found merely because an
         appellate court might have reached a different conclusion,
         but requires a result of manifest unreasonableness, or
         partiality, prejudice, bias, or ill-will, or such lack of support
         so as to be clearly erroneous.

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 25 (Pa. Super. 2017)

(citation omitted).

      When reviewing a sentence, this Court should consider four factors:

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



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         (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. § 9781(d)(1)-(4).

         [W]hile a sentence may be found to be unreasonable after
         review of Section 9781(d)’s four statutory factors, in
         addition a sentence may also be unreasonable if the
         appellate court finds that the sentence was imposed
         without express or implicit consideration by the sentencing
         court of the general standards applicable to sentencing
         found in Section 9721, i.e., the protection of the public;
         the gravity of the offense in relation to the impact on the
         victim and the community; and the rehabilitative needs of
         the defendant. 42 Pa.C.S. § 9721(b). Moreover, even
         though the unreasonableness inquiry lacks precise
         boundaries, we are confident that rejection of a sentencing
         court’s imposition of sentence on unreasonableness
         grounds would occur infrequently, whether the sentence is
         above or below the guideline ranges, especially when the
         unreasonableness inquiry is conducted using the proper
         standard of review.

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

      Instantly, the trial court heard arguments from the parties.        The

Commonwealth noted that based on Appellant’s prior record score of five,

the standard range minimum sentence was twenty-one to twenty-seven

months with an aggravated range of thirty-three months. N.T. Sentencing,

1/24/17, at 3. The Commonwealth emphasized that Appellant had two prior

convictions for selling heroin and, in this case, engaged in the two sales one

month after being release on parole.      Id. at 2-5.    The Commonwealth

requested a sentence of 60 to 120 months’ imprisonment based on


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Appellant’s repeated criminality and unwillingness to comply with the law.

Id. at 5. Appellant responded that he was “a family man” and although he

was the youngest of ten children, he was looked upon as the breadwinner for

the family. Id. at 6. He conceded that he was on parole at the time of the

present offense, but noted that the maximum sentence for his prior

conviction would be “pushed back” beyond 2025. Id. at 5-6. Appellant thus

requested concurrent, standard-range sentences with the “understanding

that he is going to be receiving a consecutive back hit of almost two years.”

Id. at 7.

      When sentencing Appellant to consecutive terms of 27 to 60 months’

imprisonment, the trial court explained:

            [A]s the district attorney appropriately pointed out, we all
            know the dangers of heroin in our community. We see it
            here every day, and that’s of serious concern. What
            makes this all the more serious is the fact that you had
            just been released from state prison for that same offense
            and you are back to selling or distributing heroin once
            again.

            So I guess there is a fair argument that that previous
            sentence didn’t necessarily grab your attention.        So I
            believe that has to be taken into account as well. And, of
            course, in this case, there are two separate incidents; very
            close in time, but, nevertheless, two separate incidents.

Id. at 8-9.

      The record thus reveals that the trial court considered the gravity of

the offense, the protection of the community, and Appellant’s rehabilitative

needs. Moreover, we discern no abuse of discretion in its weighing of the



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relevant sentencing factors. Accordingly, Appellant’s claim that the sentence

was clearly unreasonable or manifestly excessive warrants no relief.

       Appellant lastly claims that the trial court erred in finding him ineligible

the RRRI program based on his 2008 conviction for felony-one burglary.

Appellant argues that his prior convictions did not involve any acts of

violence.      Appellant’s Brief at 28.   He further asserts that the General

Assembly “only intended to exclude repeat offenders of violent behavior

from participation in the RRRI program.” Id. at 29 (emphasis added).

       At the time Appellant briefed this issue, the Pennsylvania Supreme

Court was considering the question of whether a defendant was RRRI-eligible

when he was convicted and sentenced for a single crime of violence but had

no other convictions disqualifying him from the RRRI program.                    See

Commonwealth v. Cullen-Doyle, 138 A.3d 609 (Pa. 2016) (granting

allowance of appeal); see also Appellant’s Brief at 28-29. The Pennsylvania

Supreme Court has decided Cullen-Doyle during the pendency of this

appeal       and   answered   the   question    for   review   in   the   affirmative.

Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017).                     However,

we are constrained to conclude that Cullen-Doyle does not entitle Appellant

to relief.

       The RRRI Act is a penal statute.         Commonwealth v. Chester, 101

A.3d 56, 60 n.6 (Pa. 2014). Eligibility for the RRRI is codified in 61 Pa.C.S.

§ 4503, and questions of eligibility raise questions of law. Commonwealth



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v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super.), appeal denied, 159 A.3d 935

(Pa. 2016).     Thus, our standard of review is de novo, and our scope of

review is plenary. Id.

      Section 4503 states in relevant part:

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

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

61 Pa.C.S. § 4503(1).3 The Pennsylvania Supreme Court has concluded that

“a conviction for first-degree burglary constitutes ‘violent behavior’ under

Section 4503(1).”    Chester, 101 A.3d at 65.    However, the Court did not

consider whether a single conviction for felony-one burglary constitutes a

history of violent behavior. Id.

      In Cullen-Doyle, the defendant pleaded guilty to one count of felony-

one burglary, as well as several counts of conspiracy to commit felony-one

burglary.   Cullen-Doyle, 164 A.3d at 1241.      The defendant requested a

RRRI sentence, which the trial court denied based on its belief that the


3 Section 4503 contains five additional criteria that renders a defendant
ineligible for a RRRI sentence, inter alia, (1) a prior conviction or sentence
based on the use of a deadly weapon, (2) prior adjudications or convictions
for personal injury crimes and certain sexual offenses, (3) prior sentences
for certain drug offense based on certain former mandatory minimums, and
(4) a pending trial or sentencing for a charge that would cause the
defendant to become ineligible if convicted or sentenced. See 61 Pa.C.S. §
4503(2)-(6).



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defendant had a prior felony-one burglary conviction.         Id.    The defendant

appealed, and this Court affirmed.      Id.    We noted that the record did not

support the trial court’s finding that the defendant had a prior record. Id.

Nevertheless, we concluded the defendant’s present conviction for felony-

one burglary rendered him ineligible for the RRRI program.4             Id. (citing

Commonwealth v. Cullen-Doyle, 133 A.3d 14 (Pa. Super. 2016)).

        The defendant appealed to the Pennsylvania Supreme Court arguing

that Section 4503(1) was not “intended to encompass a first-time, single-

count offender.” Id. The Supreme Court granted allowance of appeal, and

the defendant asserted that if the General Assembly intended to preclude

such offenders from RRRI-eligibility, it could have used broader language in

Section 4503(1) to encompass any conviction involving violent behavior.5

Id.     The defendant further suggested that excluding first-time offenders

would undermine the program’s goals of offering offenders “a second chance

to become law abiding citizens” and relieving taxpayers of some of the

burdens     of   “warehousing    offenders[.]”     Id.   (citation   omitted)   The

Commonwealth responded that the phrase “history of present or past violent

behavior” was sufficiently broad to disqualify an offender based on a single




4 The parties in Cullen-Doyle agreed that felony-one burglary established
“violent behavior.” Cullen-Doyle, 164 A.3d at 1240.

5   Appellant raises a similar argument in this appeal. Appellant’s Brief at 29.



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violent crime. Id. Alternatively, the Commonwealth asserted that a remand

was necessary to clarify the defendant’s prior record. Id. at 1241-42.

     The Pennsylvania Supreme Court vacated this Court’s order, holding

that a “single, present conviction for a violent crime does not constitute a

history of violent behavior.” Cullen-Doyle, 164 A.3d at 1244. The Court

noted that the phrase “history of present or past violent behavior” in Section

4503(1) “could be read . . . to allow for the word history to encompass a

single, present offense[, or] to expressly authorize the inclusion of the

present offense in consideration of whether there is an overall history,

comprised of more than one offense.” Id. at 1242 n.2. The Court concluded

that the Section 4503(1) was “materially ambiguous” because “the word

‘history’ ordinarily concerns past events and can refer to a pattern of

behavior” and proceeded to construe the intent of General Assembly in light

of the purposes of RRRI. Id. at 1242.

     The Cullen-Doyle Court first noted the RRRI program’s express

purpose was to encourage eligible offenders to participate in the program

and reduce the likelihood of recidivism.      Id.   (discussing 61 Pa.C.S. §

4504(b)). The Court recognized a “commonly accepted corollary . . . that

first-time offenders are usually more amenable to reform than inmates who

have persisted in criminal conduct.”    Id. (footnote omitted). In this light,

the Court concluded that the General Assembly “sought to offer greater




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reform opportunities for first-time offenders than repeat offenders.” Id. at

1243.

        Second, the Court analyzed the consequences of the divergent

interpretations of the RRRI-eligibility requirements.         Id.    The Court

concluded that “broadly construing” Section 4503 to find a defendant

ineligible based on “a single instance of ‘violence’” would be “so stringent

that a large number of individuals who could potentially reform” would be

prevented from participating in the program. Id. Such a construction would

diminish the program’s “potential utility.” Id. (footnote omitted). The Court

recognized that Section 4503 excludes individuals based on discrete factors,

such as conviction for enumerated offenses. Id.; see also note 3, supra.

Because those discrete factors did not include burglary, the Court found apt

the principle of statutory interpretation that the “inclusion of specific matters

. . . implies the exclusion of other matters.”     Cullen-Doyle, 164 A.3d at

1243 (citation omitted). The Court thus inferred that the General Assembly

“did not intend for all crimes of violence to be disqualifying in and of

themselves.” Id. at 1244.

        Lastly, having found ambiguity in the phrase “history of present or

past violent behavior” the Cullen-Doyle Court applied the “rule of lenity” to

bolster its conclusion that a “single, present conviction for a violent crime

does not constitute a history of violent behavior.”     Id. 164 A.3d at 1244.

The Court emphasized that “any ambiguity surrounding the meaning of the



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word ‘history’ should be resolved in favor of those seeking admission into

the program.”6 Id.

      The specific holding of Cullen-Doyle—that a defendant’s “single,

present” conviction does not render the defendant ineligible for the RRRI

program—is not dispositive of the issue raised in the instant appeal, i.e., the

effect of a past conviction for a crime of violence. Nevertheless, the Court’s

reasoning in Cullen-Doyle persuades us that a single conviction for felony-

one burglary does not render Appellant RRRI-ineligible. As noted in Cullen-

Doyle, the phrase “history of present or past behavior” is ambiguous, and

an overly broad reading of the phrase would undermine the purposes of the

statute by unduly restricting access to the program with the potential to

reform.7   Moreover, the General Assembly’s election not to designate

burglary among numerous discrete factors disqualifying a defendant from


6 Although the Cullen-Doyle Court concluded that the defendant’s single
present conviction did not render him ineligible for the RRRI program, the
Court found that “the need for clarification concerning [the defendant’s]
prior record may now have renewed salience . . . .” Id. at 1244. The Court
noted that this Court previously denied the parties’ joint motion for remand
to determine the defendant’s prior record and whether, as the trial court
suggested, the defendant had a prior conviction for felony-one burglary. Id.
at 1241, 1244. The Pennsylvania Supreme Court, therefore, remanded the
case to this Court to resolve any further issues before remanding to the trial
court. Id. at 1244.

7 Additionally, eligibility for the RRRI program does not create a right to be
paroled on the expiration of the RRRI minimum sentence. Rather, release
on a RRRI sentence is contingent on the defendant’s successful completion
of the program as well as a discretionary decision by the Board of Probation
and Parole.



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RRRI implies the exclusion of a single conviction for burglary as a per se

disqualifying crime of violence. Lastly, we must apply the rule of lenity to

resolve the ambiguity in section 4503(1) in favor of eligibility. Applying this

reasoning to the present case, we hold that a single, past conviction for

felony-one burglary does not disqualify a defendant from eligibility in the

RRRI program.

      Accordingly, we conclude that the trial court erred in finding that

Appellant’s single, past conviction for burglary rendered him ineligible for the

RRRI program under section 4503(1).           Thus, we vacate the judgment of

sentence and remand for reconsideration of Appellant’s eligibility for the

RRRI program.

      Judgment of sentence affirmed in part and vacated in part.           Case

remanded for a new sentencing hearing to determine Appellant’s eligibility of

the RRRI program. Jurisdiction relinquished.

      Judge Panella Joins the Memorandum.

      Judge Shogan Notes Dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2017




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