Com. v. Flaherty, T., 89 A.3d 286

89 A.3d 286

Pa. Super. Ct.

2014

COMMONWEALTH OF PENNSYLVANIA v. TIMOTHY NOLAN FLAHERTY

No. 1034 EDA 2013 | No. 1440 EDA 2013

IN THE SUPERIOR COURT OF PENNSYLVANIA

MARCH 31, 2014

2014 PA Super 59

BENDER, P.J., LAZARUS, J., and FITZGERALD, J.*

Appeal from the Order Entered March 11, 2013 and May 2, 2013, In the Court of Common Pleas of Pike County, Criminal Division at No(s): CP-52-CR-0000320-2012, CP-52-CR-0000321-2012

CONCURRING STATEMENT BY FITZGERALD, J.: FILED MARCH 31, 2014

I am constrained to agree with the majority that the trial court’s authority to furlough Appellant was circumscribed by the five-year maximum sentence it imposed. See 42 Pa.C.S. § 9813(a). I also agree that the parole authority of the trial court under 75 Pa.C.S. § 3815 was limited. See 75 Pa.C.S. § 3815(b)(1) (discussing eligibility provisions for parole following the expiration of the offender’s mandatory minimum term of imprisonment), (b)(2) (discussing mandatory conditions of parole). Moreover, I agree that neither Section 9813 nor Section 3815 vested the trial court with the authority either to furlough or parole Appellant under the circumstances of this case. I write separately, however, to express my view that the record supported the trial court’s equitable balancing of the individualized sentencing factors presented in this case.

Appellant is presently thirty-two years old. In 2000, he entered military service in the United States Army, where he achieved the rank of staff sergeant. Two years after his enlistment, he was deployed to Afghanistan, at which time he was twenty years old. Three years later, in 2005, an improvised explosive device destroyed the vehicle in which he was traveling. Appellant was the sole survivor of that ambush, but was severely wounded. Prior to this event, Appellant had no criminal record or documented substance abuse issues.

Thereafter, while still in the service, Appellant’s alcohol and substance abuse issues became manifest. He was arrested and convicted for driving under the influence in North Carolina in May of 2008 and in Pike County, Pennsylvania in January of 2010.¹ Additionally, he received a nonjudicial punishment under the Uniform Code of Military Justice in February of 2009, for using cocaine. He was demoted from sergeant to private. He ultimately sought and received an honorable discharge from the military in November of 2010. He was formally diagnosed with post traumatic stress disorder and bipolar disorder. During his three-plus years out of the service, he compiled two more convictions for driving under the influence, one in Harrisburg, Pennsylvania, and the instant offense in Pike County.

There is no doubt that Appellant was previously afforded opportunities for rehabilitation, but did not do so. Moreover, the offense sub judice were grave, and the impacts on the community and the life of the injured victim were serious. Nevertheless, I believe the trial court appropriately considered the protection of the public, the gravity of the offense as it related to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant when it ordered treatment through a specialized residential PTSD program. See 42 Pa.C.S. § 9721(b).

Under the circumstances presented by this case, I believe that the trial court’s decision to seek the protection of society and the rehabilitation of Appellant by means other than incarceration was both reasonable and just. However, as noted by the majority, the governing provisions of sections 9813 and 3815 restrained the trial court’s discretion in this regard. Accordingly, given the text of the statutes at issue, and without additional procedures or rules for problem solving in Pike County, it was not within the province of the trial court, or this Court, to fashion an equitable exception.

On a final note, only seventeen of the Commonwealth’s sixty-seven counties have adopted alternative dispute resolution processes for veterans, and Pike County is not one of the seventeen to have done so. In my view, this disparity in the adoption of alternative procedures and rules to address situations such as this one cries for greater attention by the proper policy makers to the laws that necessarily govern our review of this appeal.²

I thus respectfully, but reluctantly, join in the result reached in the above opinion.

BENDER, President Judge, joins.

* Former Justice specially assigned to the Superior Court.

Notes

Appellant was also charged with assault related to this offense. However, the present record did not contain any details regarding the assault charges.

For example, it appears Appellant’s DUI charges in Harrisburg were diverted to a veteran’s program.