COMMONWEALTH of Pennsylvania, Appellee v. Abraham GONZALEZ, Appellant.
Superior Court of Pennsylvania.
Argued April 13, 2010. Filed Dec. 13, 2010.
2 A.3d 1260
Finally, in support of her third question, Brookins asserts that the trial court erred in allowing the testimony of Agent Kenneth Bellis as a prosecution expert on the language used by the co-defendants on various wiretap tapes. Brief for Appellant at 19. Nevertheless, the only tape she challenges specifically is Commonwealth Exhibit C-49, a voicemail message left by Kevin Jordan for Shannon McKeiver. Id. at 20-21. The message included the following sentence: “So hit me up so that I could let you know what the scoop is and you could peep it out and we can knock this shit out before the boy pull up.” Id. at 21. Agent Bellis interpreted Jordan‘s language to mean that “Kevin‘s leaving a message telling Shannon McKeiver he can come check it out, look what he‘s talking about as far as who he‘s talking about robbing.” Id. Significantly, Bellis did not interpret the languаge to be in any way related to the charges then pending against Brookins. Thus, Brookins‘s claim of prejudice is limited to the fact that Bellis‘s testimony concerning the robbery charge was unduly prejudicial to her case. In view of our disposition of Brookins‘s first question, however, we find this issue to be moot. Pursuant to our rationale, supra, the trial court erred in joining Brookins‘s trial with those of Jordan, McKeiver, and Thompson. Thus, on Brookins‘s retrial, Exhibit C-47 will not be in evidence, as it concerns only the charges against those thrеe defendants. Accordingly, we shall not address Agent Bellis‘s testimony in this appeal.
For the foregoing reasons, we vacate Brookins‘s judgment of sentence and remand this case for further proceedings consistent with this Opinion.
Judgment of sentence VACATED. Case REMANDED for a new trial. Jurisdiction RELINQUISHED.
Bradley S. Bridge, Public Defender, Philadelphia, for appellant.
William Q. Young, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: FORD ELLIOTT, P.J., BOWES, J., and McEWEN, P.J.E.
OPINION BY McEWEN, P.J.E.:
The germane facts of this case are not in dispute. Appellant was arrested in March of 2006 based upon probable cause of the sale of drugs in Philadelphia. At the time of his arrest he had in his possession 52 individual “packets” of heroin that had an aggregate weight of 1.216 grams. On September 11, 2008,1 appellant entered a negotiated plea of guilty to a single count of possession of a controlled substance with intent to deliver. A pre-sentence report was prepared, which indicated, inter alia, that appellant had a prior conviction for burglary—graded as a felony of the second degree (hereinafter referred to as an F2 burglary). The sentence to serve a term of imprisonment of from two and one-half years to six years was imposed by the trial judge on January 23, 2009. The judge simultaneously denied appellant‘s request to have the sentence designated as a Recidivism Risk Reduction Incentive (RRRI)2 minimum sentence, a designation that would have enabled appellant to reduce the term of his minimum sentence if he complied with all the obligations of certain rehabilitative programs. Appellant filed a petition to modify sentеnce, which was denied, and this appeal followed.
Appellant, in the brief filed in support of this appeal, advances the argument that “[t]he sentencing judge erred by not imposing an [RRRI] minimum sentence based upon his erroneous belief that a prior F2 burglary automatically disqualified [appellant] from receiving the benefit of that statutory program.” Brief of Appellant, p. 9.
We commence our examination of the relevant statutory language mindful of the well settled rule that “[s]tatutory intеrpre
The RRRI Act constitutes an ameliorative statute enacted by the General Assembly for the following purpose:
This [statute] seeks to create a program that ensures appropriate punishment for persons who commit crimes, encourages inmate participation in evidence-based programs that reduce the risks of future crime and ensures the openness and accountability of the criminal justice process while ensuring fairness to crime victims.
As we consider the question whether the phrase “present or past violent bеhavior” was intended to include an F2 burglary within its scope, we first find guidance in the graduated definition of burglary as set forth in the Pennsylvania Crimes Code, which provides in relevant part:
(a) Offense defined.—A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
...
(c) Grading.—
(1) Except as provided in pаragraph (2), burglary is a felony of the first degree.
(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.
This distinctive treatment of the two grades of burglary is consistently recognized in various sentencing related statutes. For example, Section 9714(g) of the
As used in this section, the term “crime of violence” means murder of the third degree, voluntary manslaughter, aggravated assault as defined in
18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight аccommodation in which at the time of the offense any person is present, robbery as defined in18 Pa.C.S. § 3701(a)(1)(i) , (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in a another jurisdiction.
Consequently, in light of the fact that the RRRI statute constitutes a remedial Aсt5 enacted by the General Assembly to provide a means for the Department of Corrections to encourage “inmate participation in evidence-based programs that reduce the risks of future crime,”6 and given consistent legislative distinctions made by the General Assembly in its treatment of F2 burglary offenses, we conclude that appellant‘s prior F2 burglary should not have been construed as an indication of “past violent behavior” sufficient to disqualify him from an RRRI sentence.7
Accordingly, we vacate the judgment of sentence, and remand this case for proceedings consistent with this Opinion. Jurisdiction relinquished.
The motion for post-submission communication is granted.
BOWES, J., files a dissenting opinion.
I disagree with the learned majority‘s conclusion that the sentencing court erred as a matter of law in finding that Abraham Gonzalez‘s prior conviction of burglary graded as a second-degree felony demonstrated a history of violent behavior that rendered him ineligible to receive an incentive minimum sentence pursuant to the Recidivism Risk Reduction Incentive Act (“RRRIA” or “RRRI“),
At the outset, I observe that this case does not implicate the subsection of the statute that automatically disqualifies certain offenders with prior convictions for certain enumerated offenses. It is beyond argument that burglary graded as a felony of the second degree is not one of the enumerated disqualifying offenses. Instead, this case revolves upon whether the trial court erred in finding that Appellant‘s prior conviction for burglary graded as a second-degree felony cоnstituted “past violent behavior,” which the RRRIA deems one of several alternative bases for disqualification. Accordingly, unlike the majority, I would focus less upon how the General Assembly viewed the lesser-graded burglary offense in unrelated statutory provisions and focus more upon our Supreme Court‘s traditional perspective of burglary. As discussed infra, the majority minimized the Supreme Court‘s conventional viewpoint in overruling the sentencing court‘s eligibility determination.
As the majority accurately summarized the pertinent facts and procedural history, I will not repeat them herein. However, I point out that while statutory interpretation implicates a question of law, the threshold question of Appellant‘s RRRI eligibility in this case was a matter of the sentencing court‘s discretion. See
The RRRIA defines an eligible offender, in pertinent part, as follows:
“Eligible offender.” A defendant or inmate convicted of a criminal offense who will be committed to the custody of the department and who meets all of the following eligibility requirements:
(1) Does not demonstrate a history of present or past violent behavior.
....
(3) Has not been found guilty of or previously convicted of or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the act of November 24, 1998 (P.L. 882, No. 111), known as the Crime Victims Act, or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbiа, the Commonwealth of Puerto Rico or a foreign nation.
....
Herein, the trial court proffered the following reasons for denying Appellant RRRI еligibility.
[Appellant] argued at sentencing that since an F2 Burglary was not part of the enumerated list of offenses for which disqualification is automatic, i.e., [a personal injury crime as defined under the Crime Victims Act such as] homicide, assault, kidnapping and related offenses, he was entitled to an RRRI minimum. His argument, however, fails to take into consideration the portion of the definition of “eligible offenders” which specifically excludes an individual with a history of present or past violent behavior. This jurist [is] оf the opinion that any breaking and entering into a structure, regardless of the inhabitation of the structure, is a violent act, especially in light of the fact that a conviction for burglary also requires proof that the defendant intended to commit a crime therein.
Trial Court Opinion, 8/12/09, at unnumbered pages 4-5. From my viewpoint, the sentencing court‘s consideration of Appellant‘s prior burglary conviction as grounds to find him ineligible to receive an RRRI sentence pursuant to subsection 4503(1) is not tantamount to an abuse of discretion. Mindful of the statutory language in section 4505(a) and (c), supra, and the General Assembly‘s stated purposes of the RRRIA to, inter alia, ensure appropriate punishment, accountability of the criminal justice process, and fairness to victims, I believe that the legislature granted sentencing courts discretion pursuant to subsection 4503(1) to restrict participation in the program to offenders who pose the least risk to the public upon their early release from prison.1
The mаjority‘s contrary position, that “an F2 burglary, by definition, does not involve the risk of violence, or injury, to another person,” misapplies Supreme Court case law supporting the proposition that burglary has traditionally been considered a violent crime regardless of the grading. Majority Opinion at 1262. In Commonwealth v. Pruitt, 597 Pa. 307, 321, 951 A.2d 307, 321 (2008), our Supreme Court addressed whether a defendant‘s prior conviction for burglary that did not involve the threat of violence could be considered as an aggravating circumstance during the penalty phase of a first-degree murder trial. Pursuant to
[T]his Court has recently reiterated that “burglary is always classified as a violent crime in Pennsylvania.” Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 814 (2007). We made expressly clear that this was the law when the Rios appellant was sentenced to death (in 1993), and it remains the lаw today. Id. We reached the same conclusion in Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1075 n. 15 (1995) and in Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553, 559 (1988). In Rolan, this Court explained in detail the historical rationale behind the classification of burglary as a crime of violence, drawing on the common law recognition that burgla
ry by its very nature involves the use or threat of violence to the person. Id. at 558-59. We pointed out that an unprivileged entry into a building or structure “where people are likely to be found is a clear threat to their safety” and that “every burglar knows when he attempts to commit his crime that he is inviting dangerous resistancе.” Id. at 559. Based on the precedent and the reasoning of Rios and Rolan, we conclude that the Commonwealth was entitled to pursue Appellant‘s burglary convictions as an aggravating circumstance....
Pruitt, supra at 321, 951 A.2d 307 (footnote omitted).
While our General Assembly has carved certain specific exceptions to the traditional perspective, two of which were cited by the majority, i.e., sentencing for recidivist offenders pursuant to
Moreover, I find that the majority‘s concentration on the definition of “Crime of violence” as it is defined in the recidivist statute is misplaced. In fact, I do not believe that the RRRIA‘s reference to a “history of present or past violent behavior” necessarily equates to a prior criminal offense. There are myriad circumstances where violent behavior does not result in a criminal conviction, e.g., a mutual fight where neither party files a criminal complaint, an assault on a family member who refused to cooperate with the criminal investigation, an indicated claim of child abuse that lacked sufficient proof to proceed to trial, or where prosecution of a violent offense is barred by the statute of limitations. Nothing in the statute reveals an intent to limit the sentencing court‘s consideration under this subsection to convictions. Instead, the broad statutory language encompasses any violent behavior regardless of criminal liability. I also note that the recidivist statute is punitive and was designed to impose harsh penalties upon a narrow class of repeat offenders. In сontrast, the RRRI program was designed to grant leniency to non-violent offenders who could benefit from a program to reduce their risk of recidivism, and who do not pose a risk to the public upon their early release from prison.
Similarly, I do not believe the General Assembly‘s exclusion of burglary as a second-degree felony from the list of offenses that are ineligible for motivational boot camp is dispositive of the issue in the case sub judice. While the primary purpose of both statutes is tо alleviate prison crowding, the General Assembly designed the motivational boot camp program “to sal
In addition, I am not persuaded by the majority‘s reference to the Pennsylvania Crime Victims Act in support of the proposition that the General Assembly consistently recognizes a distinction between the two grades of burglary. While the majority accurately observed, “the Pennsylvania Crime Victims Act does not include an F2 burglary as a ‘personal injury crime’ within its definition,” I am obliged to point out that the Act omits both grades of burglary from its definition of a “personal injury crime.” See
In fact, from my perspective, the significance of the distinction between the two grades of burglary is inflated under the circumstances of this case. While the certified record does not elucidate the faсtual scenario underlying Appellant‘s burglary conviction, by definition, Appellant had to enter a building that was not adapted for overnight use and committed the offense when no individuals were present. See
For all of the foregoing reasons, I do not believe the sentencing court erred in find