Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
KAIN HUMPERDINCK FIGUEREO
Appellant No. MDA 2016 Appeal from the Judgment of Sentence January 14, 2016 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001323-2011 CP-40-CR-0001419-2012
BEFORE: OTT, J., DUBOW, J., and PLATT, J.* FILED MARCH 20, 2017
MEMORANDUM BY OTT, J.: Kain Humperdinck Figuereo appeals from the judgment of sentence entered January 14, 2016, Luzerne County Court of Common Pleas. On October 2015, the trial court, sitting without jury, found Figuereo guilty but mentally ill one count each false alarm an agency of public safety, false reports (reported offense occur), simple assault, criminal mischief (damage property).1 imposed aggregate sentence of months' incarceration. The sole issue appeal challenge discretionary aspects of sentencing. After thorough * Retired Senior Judge assigned to the Superior Court.
[1] respectively. §§ 4905(a), 4906(b)(1), 2701(a)(3), Pa.C.S. 3304(a)(5), review of the submissions by the parties, the certified record, and relevant law, we affirm the judgment sentence.
The facts and procedural history are summarized follows. Figuereo was charged at two criminal dockets two separate incidents. Both cases were tried together October 2015.2 With respect to Docket No. CP- 40-CR-0001419-2012 ("Docket No. 1419"), we note October 22, 2011, the victim, Pamela Bromiley,3 was at her home, located Hollywood Boulevard, Hazle Township, Pennsylvania, when she noticed her neighbor, Figuereo, across the street. She observed Figuereo pacing back and forth, and then run down the street after car was occupied Bromiley's son and his girlfriend. At the time, Bromiley was in her driveway she saw turn around run onto her property. Bromiley got in her own car because she now saw wielding large kitchen knife. She testified:
[Figuereo] ran up the side of the car started pounding on the window of the car. Umm, yelling, Get out of the car, get out of the car, along lot of other ... multiple languages. We have set forth facts of the two cases order they were presented at trial.
We note the incidents happened approximately four years before trial. The delay apparently because Figuereo was out of mental health treatment facilities. See N.T., 1/14/2016, 53. sentencing transcript spells victim's last name "Bromley." See
N.T., 1/14/2016, 18. For ease of our analysis, will use spelling as found trial transcript.
And ... then, he raised his arm, and he had knife, and was ... hitting the window and screaming.
N.T., 10/16/2015, at Bromiley stated she started to back up when Figuereo began stabbing the tires and side of the car. Bromiley's husband then came out of the home yelled to Figuereo get off property. As this point, Bromiley was able to drive her car away down road where she called 9-1-1. See generally id. at 11-28.
In his defense, Figuereo provided assortment reasons his actions October 22nd which included: (1) he suffered from hallucinations result inadvertently inhaling bath salts night before, which he believed his half -brother's brain Bromiley's dog and he wanted free dog cutting leash with the knife; (2) Bromiley's son approached him first threatening manner made gestures; (3) he merely wanted talk Bromiley about the dog and she accelerated the car Id. at 40-66. almost ran over his foot so he tried deflate the tire. indicated taking medications at the time, which would have helped mental health. Id. 66.4 At the conclusion of the Docket No. trial, found Figuereo guilty but mentally ill of simple assault criminal mischief. On cross-examination, stated even though was
hallucinating, it had no effect on his memory what happened day. 77.
Next, regard Docket No. CP-40-CR-0001323-2011 ("Docket No. 1323"), note February 25, 2011, Figuereo made several phone calls to the Hazleton police department, claiming a bomb located apartment 1015 Lincoln Street. Id. at 105-106.5 Police responded the scene, evacuated the area and searched the apartment well an adjacent apartment. No explosives or anything resembling a bomb were found the area. Figuereo was taken into custody admitted lived in apartment issue.
Figuereo claimed again had hallucinated day of the incident due to bath salts. He heard about a Libyan revolution radio thought neighbor had packed bomb a container. He thought his hair conditioner might bomb. Lastly, Figuereo stated brain was damaged due to taking bad medicine long periods of time. at 121- At the conclusion of the Docket No. trial, found guilty but mentally ill of false alarm false reports.
On January 2016, the found deadly weapon enhancement applied matter sentenced Figuereo to following: (1) term of ten months' incarceration the simple assault charge; (2) consecutive term of days' incarceration the criminal mischief offense; (3) consecutive term four eight months' imprisonment for identified himself the dispatcher. false alarm conviction, followed three years' probation.6' [7] Figuereo did not file post -sentence motions, but file this direct appeal.8' [9]
In his sole issue on appeal, claims entitled a new sentencing hearing because trial court abused its discretion by sentencing him the aggravated range of the sentencing guidelines "without properly considering mental health issues other mitigating factors[,] for relying on factors already set forth the Guidelines." Figuereo's Brief at 6.
As presented, Figuereo's issue challenges the discretionary aspects of sentence. See Commonwealth v. Lutes, 793 A.2d (Pa. Super. 2002) (explaining argument sentence manifestly excessive challenges discretionary aspects of sentencing). "A challenge to the discretionary aspects of sentence must considered petition for permission to The false reports crime merged with the false alarm charge for sentencing purposes.
Applying the deadly weapon enhancement the simple assault conviction, the standard range was six to seven months (plus or minus three months aggravated/mitigated range). Moreover, the standard range false alarm restorative sanctions to one month (plus or minus three months aggravated/mitigated range). Trial counsel filed petition withdraw, which granted on February
29, New counsel was appointed represent appeal. On March 1, 2016, the trial ordered Figuereo to file concise statement errors complained of appeal pursuant Pa.R.A.P. 1925(b). Figuereo filed concise statement two days later. trial court issued an opinion pursuant Pa.R.A.P. 1925(a) August 2016. the right pursue such a claim is not absolute."
appeal, as Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citations quotation marks omitted). To reach merits of a discretionary issue, this Court must determine:
(1) whether appellant has filed timely notice of appeal; (2) whether issue was properly preserved at sentencing or a motion reconsider modify sentence; (3) whether appellant's brief has fatal defect; (4) whether there is substantial question the sentence appealed from not appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (footnotes omitted).
Here, Figuereo filed timely notice of appeal included the requisite statement pursuant Pa.R.A.P. 2119(f) appellate brief. Moreover, at the January 2016, proceeding, Figuereo's counsel challenged the Commonwealth's request to impose sentence the aggravated range. See N.T., 1/14/2016, 48-50 (general challenge asking consider certain mitigating factors).1° Therefore, may proceed determine whether presented substantial question sentence appealed from appropriate under the Sentencing Code. Commonwealth v. Edwards, A.3d 323, 330 (Pa. Super. 2013), appeal denied, A.3d (Pa. 2013). We note Figuereo not file any post -sentence motions.
With respect whether an issue presents substantial question, we are guided by following: determination of what constitutes substantial question
must evaluated on case -by -case basis. See Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825 (Pa. Super. 2007). "A substantial question exits only when the appellant advances colorable argument that the sentencing judge's actions were either: (1) inconsistent with specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932, 2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted). Furthermore, this Court has previously "held that substantial question raised where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration mitigating circumstances." Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012), appeal denied, 64 A.3d 630 (Pa. 2013).11 specifically states: "[I]t appears trial took no
consideration mental illness, instead relied solely upon the testimony of the victim." Figuereo's Brief (record citation omitted). Figuereo concludes aggregate sentence "for misdemeanor offenses with no prior record[] amounts an abuse of discretion the sentence is See Commonwealth v. Lawrence, A.2d (Pa. Super. 2008) (substantial question presented respect to "a claim sentencing imposed unreasonable sentence sentencing outside guidelines") (citation omitted), appeal denied, 980 A.2d 606 (Pa. 2009). manifestly excessive contrary the fundamental norms which underlie the Sentencing Code." 9. To the extent that Figuereo's argument amounts a claim that the trial court erred by imposing an aggravated range sentence without consideration mitigating circumstances, find he raised a substantial question will proceed to an examination of argument on appea1.12 standard of review claim challenging a discretionary aspect of sentencing is well -established:
Sentencing is matter vested in the sound discretion of judge, will not be disturbed on appeal absent manifest abuse discretion. An abuse of discretion not shown merely by an error in judgment. Rather, appellant must establish, reference the record, the sentencing ignored or law, exercised its judgment reasons of misapplied partiality, prejudice, bias or ill will, or arrived at manifestly unreasonable decision.
Commonwealth v. Sheller, 961 A.2d 187, (Pa. Super. 2008) (citation omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
Moreover, pursuant to 42 Pa.C.S. § 9721(b), "the court shall follow the general principle the sentence imposed should call for confinement that We note part of Figuereo's argument, in which alleges court relied factors already set forth the sentencing guidelines or double counted those factors, waived because raise it at sentencing or post -sentence motion. See Commonwealth v. Malovich, 903 A.2d (Pa. Super. 2006) ("To preserve an attack discretionary aspects of sentence, appellant must raise issues at sentencing or post -sentence motion. Issues not presented to the sentencing are waived cannot raised first time appeal.") (citations omitted); see Pa.R.A.P. 302(a). consistent with the protection of the public, the gravity of the offense it
relates the impact the life of the victim and on the community, the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b). Additionally, "the court shall make part of the record, disclose open court at time sentencing, statement of the reason or reasons the sentence The record toto "must reflect the [trial] court's imposed." consideration facts of the crime character of the offender." Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).13 "In particular, court should refer to the defendant's prior criminal record, age, personal characteristics potential rehabilitation." Commonwealth v. Griffin, 804 A.2d 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert denied, U.S. (2005).
Turning the present matter, court indicated it had reviewed the presentence investigation report ("PSI"). See Trial Court Opinion, 8/3/2016, 2; N.T., 1/14/2016, 18.14 had prior record score A trial court "need not undertake lengthy discourse its reasons for imposing sentence or specifically reference the statute question[.]" Crump, 995 A.2d at 1283. We note PSI not included the certified record. Nevertheless,
"where the sentencing had benefit of presentence investigation report ('PSI'), we can assume the sentencing aware of relevant information regarding defendant's character weighed those considerations along with mitigating statutory factors." Commonwealth v. (Footnote Continued Next Page)
of zero an offense gravity score ("OGS") of 3 for false alarm charge, an OGS false reports charge, an OGS the simple assault charge. See Commonwealth's Sentencing Memorandum, 1/12/2016, Commonwealth Exhibit 1.
At the sentencing proceeding, the court heard from Ronald Thomas Colbert, mental health professional with Correct Care Solutions at Luzerne County Correctional Facility, who has been providing counseling services to since 2012. Colbert testified "is on Invega Sustenna, which injectable antipsychotic which is injected once month and he has additional oral medications Invega, also antipsychotic medications daily basis." N.T., 1/14/2016, 5. Colbert stated he sees "significant reduction [Figuereo's] delu[s]ional thinking" when Figuereo is the medication "[h]e much more reality based, much more oriented everything around him see an elimination of any further psychotic symptoms primarily auditory." Lastly, Colbert stated believed Figuereo could be productive member of society if he (Footnote Continued)
Moury, 992 A.2d 162, 171 (Pa. Super. 2010), quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotations omitted). "The sentencing judge can satisfy requirement reasons imposing sentence placed record by indicating or she been informed pre -sentencing report; thus properly considering weighing all relevant factors." Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d (Pa. 2009). - continued take the medication but would still need some additional support like ongoing mental health treatment services. Id. at 7-8.
The court also noted report Dr. Richard Fischbein had been submitted court December of 2012, which indicated Figuereo Id. Moreover, another suffered from schizoaffective disorder. report, May from Pennsylvania Department of Human Services, noted Figuereo still had the schizoaffective disorder well history hypertension, hyperlipidemia, primary support problems. Id. 11.1-5
The then heard from Bromiley, who testified about the effect of the assault her:
There was life before Kain there's life after. In the year two are not the same never will be. following the attack, I became increasingly withdrawn and fearful. I would awaken the middle of the night due to some terrible thing had fallen loved one. Fortunately, my family tolerant of my continuing phone calls to check up on them. By June, when I didn't want to leave my house even to walk end of our driveway our mailbox, I realized I needed help began treatment.
I was diagnosed post -traumatic stress disorder placed medications. I have continued with therapy over course of more than three years during which time I have used several medications caused multiple life altering side effects adding the residual psychological effect of the attack itself. made several statements regarding his medication. at 13-14.
Part of the inability I experienced being able to heal from this experience lack of resolution. I have been able to begin healing process because the case has persisted over four years. first local hearing at the From Magistrate's quarters when I became violently ill upon seeing array of symptoms I suffered from his Figuereo to conviction.
I live with the health effects of anxiety caused by the actions of poor choices. Following attack the 2011, school year along, I missed days of work. I've missed multiple days of work every year since then due to doctor's appointments, anxiety and effects of medication. My family has suffered emotionally seeing how this affected me, as well living fear frustration themselves whenever he is nearby.
Immediately after the attack, we placed our home 18 years market for six months, during which time it not sell. We are now forced once again to give up our home while he will be returning his. Our home will remain market until it sells even at financial loss because I will never at ease with Figuereo living across street from me. I will not be able go home once returns. We are currently struggling where will go, what we will do and how we will leave upon release.
In addition, I have given up professional social opportunities out fear go out at night. This was exacerbated when was released home visits when exited from Clark Summit Hospital during winter of 2014.
Id. 19-21.16 trial heard from Figuereo, who alleged Bromiley
suffered from extreme paranoia "used her car weapon" against Bromiley gave additional testimony regarding the effect of Figuereo's actions her her family's life. 21-24. -
him. Id. He claimed Bromiley was romantically obsessed with him. at 41.
At the conclusion of the hearing, the set forth its rationale for sentence:
As noted, I had opportunity be a part of this case for many years now. I've had opportunity to listen Mr. Figuereo in times of treatment while he was at Clark Summit and medication; times of nontreatment when he was released from Clark Summit. I heard violation his bail in this matter. I will note that I revoked his bail.
Mr. more than one occasion went to Norristown for treatment be restored competency. I have seen him, through his medication highs and lows, and quite frankly, he has been consistent with medication first time in a long time most recently.
What most concerning today is that he is consistent with oral medication and his injections, yet made statements that cause me grave concern community where lives, specifically that Ms. Brom[i]ley a romantic obsession with him. I know you believe she does, sir, but this with
Okay. you taking all your coeds being in best place that you've been in while you're making statements cause me to so concerned this community, your neighborhood. I will note there was recommendation of the prosecution this matter for sentence the aggravated I will note that range recommendation of the victim. [Figuereo] did plead guilty this case and went trial where testimony specifically provided the Court [Figuereo] found guilty.
I will note there's little remorse being shown Mr. today. And I understand previously medication lapse competency, but no time today Mr. Figuereo - apologize neighbors, instead he attacked his neighbors, saying they're obsessed with him. That they did it. He called them paranoid. That causes me extreme concern.
I will note that know Mr. mental health issues. We will note what happened throughout the course of those, but he lives himself in a residence across the street from the people today he called paranoid and romantically obsessed with him.
I will note that I have concerns ... to him being danger society and danger the community. I will note that he failed while bail because I heard the testimony and found him guilty while he was released on bail and today he tells me that Ms. Brom[i]ley followed him to Wal-Mart and was basically stalking him when I already heard the testimony and reviewed that matter and found that he had violated the terms and conditions bail, noting at that time he not medicated. I find that the guideline sentences are too lenient clearly appropriate this case. I'm concerned the fact that possessed weapon at time of this offense of the simple assault and that attempted and threatened injure victim. I will note her testimony today clear that it infliction of extreme mental cruelty to her which she suffers from until this day. 50-53.
In the Rule 1925(a) opinion, the trial further explained its rationale departure from the guidelines:
[Figuereo]'s claim belied by record, which reveals the Court gave consideration the factors listed 42 Pa.C.S. § 9721(b) and stated the reasoning the sentencing of [Figuereo] the aggravated range. Specifically the sentencing considered the PSI the sentencing guidelines which prescribed standard sentence noted it record. The Court considered facts underlying the offense including the impact the assault had on victim gravity of the offense it related to her continuing fearful, leaving her home difficulty sleeping at night. -
The Court considered all the aforementioned factors, that standard determined range sentence would be inconsistent with the gravity of the offense. Accordingly, the court sentenced [Figuereo] aggravated range due in part of the determination [he] continues be danger the community.
Trial Court Opinion, 4/3/2016, 4-5.
Based upon our standard of review, conclude trial court did not abuse its discretion sentencing Figuereo the aggravated range. in Contrary Figuereo's argument, it evident from the sentencing hearing Rule 1925(a) opinion court indeed consider the required factors under Section 9721(b). Moreover, the court acknowledged its understanding of the sentencing guidelines, and did articulate sufficient statement of reasons for sentencing the aggravated range.
Furthermore, court indicated it had reviewed relied PSI. See Moury, 992 A.2d at 171. The court articulated its concern protection of the community, including the victim. The emphasized even though medication mental health concerns, denied any responsibility and placed the blame victim therefore, continued danger society. provided further explanation the sentence imposed its Rule 1925(a) opinion, these additional comments support its decision. -
Additionally, we note, concedes,'' person who is found guilty but mentally ill or who pleads guilty but mentally ill "may have any sentence imposed him which may lawfully imposed any defendant convicted of the same offense." Pa.C.S. § Therefore, his argument did not consider mental illness mitigating factor of no merit because the court not required do so. Nevertheless, as
provided above, record replete evidence statements it consider Figuereo's mental state when sentencing him. Accordingly, demonstrated the trial court abused its discretion imposing sentence. Therefore, Figuereo's sole claim on appeal fails, affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 3/20/2017 Figuereo's Brief at 8. -