v.
Leeks, B.
J.S45036/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRIAN ANTHONY LEEKS, : : Appellant : No. 1961 MDA 2014
Appeal from the Judgment of Sentence June 12, 2014 In the Court of Common Pleas of Dauphin County Criminal Division No(s).: CP-22-CR-0000105-2014
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015
Appellant, Brian Leeks, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas. He contends (1) the trial court failed to conduct a sufficient colloquy before allowing him to
proceed pro se, (2) the verdict was against the weight of the evidence, and (3) the court imposed an excessive and unreasonable sentence. We affirm.
We adopt the recitation of facts as set forth by the trial court. Trial Ct.
Op., 6/26/14, at 1-3. On June 4, 2013, following a colloquy, the trial court
permitted Appellant to proceed pro se with stand-by counsel. On June 6, 2014, following a jury trial, Appellant was found guilty of aggravated
* Former Justice specially assigned to the Superior Court. J.S45036/15 assault1 and terroristic threats with intent to terrorize another.2 On June 12, 2014, Appellant was sentenced to seven-and-a-half to fifteen years’ imprisonment. He was ordered to pay restitution in the amount of $768.30. On June 23, 2014, appellate counsel filed a post-sentence motion contending his sentence was excessive and the verdict was against the weight of the evidence. The trial court denied the motion on October 21, 2014. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court filed a responsive opinion. Appellant raises the following issues for our review: I. Whether the trial court erred by failing to conduct a complete and thorough, on-the-record colloquy of Appellant before allowing him to proceed to his trial pro se in violation of Pa.R.Crim.P. Rule 121, resulting in an unknowing, involuntary, and unintelligent waiver of his right to counsel under the Fifth and Sixth Amendments to the United States Constitution and Articles I and V, Section 9 of the Pennsylvania Constitution? II. Whether the trial court erred in denying Appellant’s Post-Sentence Motion where his convictions were against the weight of the evidence so as to shock one’s sense of justice where: Appellant was never shown to have engaged in acts which constitute the crimes of which he was convicted, and[ ] Appellant acted in self-defense? III. Whether the trial court erred in denying Appellant’s Post-Sentence Motion where Appellant’s sentence of 7.5 to 15 years’ incarceration and $768.30 in restitution is 1 18 Pa.C.S. § 2702(a)(1). 2 18 Pa.C.S. § 2706(a)(1).
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excessive and unreasonable given Appellant’s lack of a significant prior record, this [h]onorable [c]ourt’s failure to inquire into Appellant’s background during sentencing, and Appellant’s significant history of mental health issues?
Appellant’s Brief at 7.
First, Appellant argues that when a defendant seeks to waive his right to counsel, the trial court “must conduct a colloquy on the six elements listed in Pa.R.Crim.P. 121.” Id. at 17. Additionally, he contends “the trial
court must inquire about the defendant’s age, educational background, and basic comprehension skills.” Id. at 18. Appellant argues the court did not comply with these precepts. We disagree.
Our review is governed by the following principles:
A criminal defendant’s right to counsel under the Sixth Amendment includes the concomitant right to waive counsel’s assistance and proceed to represent oneself at criminal proceedings. Faretta v. California, 422 U.S. 806 . . . (1975). The right to appear pro se is guaranteed as long as the defendant understands the nature of his choice. [Id.] at 835. In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework for inquiry into a defendant’s request for self-representation. Pa.R.Crim.P. 121. Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court, in keeping with Faretta, must allow the individual to proceed pro se. See also Commonwealth v. McDonough . . . 812 A.2d 504, 508 ([Pa.] 2002) (concluding that Faretta requires an on-the-record colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy may be conducted by the court, the prosecutor, or defense counsel.)
Commonwealth v. El, 977 A.2d 1158, 1162-63 (Pa. 2009) (footnotes and some citations omitted).
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Rule 121 provides as follows:
(2) To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant.
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2)(a)-(f). In Commonwealth v. Phillips, 93 A.3d 847
(Pa. Super. 2014), this Court stated:
When reviewing a trial court’s basic compliance with the requirements of Rule 121, we do not first apply a “totality of the circumstances” test. In this context, we look at the totality of the relevant circumstances only after we decide J.S45036/15
[*4]the trial court has met the minimum requirements of Rule 121, to determine whether the defendant’s waiver of the constitutional right to counsel was a knowing, voluntary, and intelligent waiver.
Id. at 853-54 (emphases added).3
Appellant relies on the following footnote in McDonough in support of his argument that the trial court failed to conduct a thorough colloquy because “the court failed to inquire into [Appellant’s] age before permitting him to proceed pro se.” Appellant’s Brief at 19.
In addition to these six factors, a waiver colloquy must, of course, always contain a clear demonstration of the defendant’s ability to understand the questions posed to him during the colloquy. Although Appellant does not challenge his colloquy in this regard, the record clearly demonstrates that Appellant understood the questions posed during the colloquy. See infra p. 507 (prosecutor inquiring during colloquy about Appellant’s age, educational background, and basic comprehension skills).
McDonough, 812 A.2d 507 n.1.4 J.S45036/15
[*5]In the case sub judice, the following colloquy was conducted by the Commonwealth:
MS. GETTLE:5 How far did you go in school?
[APPELLANT]: To the 11th –or to the 12th grade.
MS. GETTLE: Did you graduate?
[APPELLANT]: No.
MS. GETTLE: Did you get a GED?
[APPELLANT]: No.
MS. GETTLE: Do you read, write, and understand the English language?
[APPELLANT]: I do.
* * *
MS. GETTLE: [A]re you under the influence of any alcohol or controlled substances that are impacting your ability to understand what you’re doing here today?
[APPELLANT]: No.
MS. GETTLE: Now, you take prescription medications, is that correct?
[APPELLANT]: That’s correct.
* * *
MS. GETTLE: What types of prescriptions are you prescribed?
5 Jennifer W. Gettle was the Commonwealth’s attorney and was instructed by the court to conduct the colloquy after she informed Appellant of the charges he faced and the potential maximum sentences. N.T. Trial, 6/4/14, at 2-4.
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[APPELLANT]: [M]y therapist at the jail has tooken [sic] me off the medications. I’m not prescribed any medication at this time. * * * MS. GETTLE: What is your diagnosis? * * * [APPELLANT]: Major depression, psychotic features or something like that. MS. GETTLE: . . . And you have been seeing a therapist for that? [APPELLANT]: I was in CMU, the Case Management Unit. They closed my case out. They said I didn’t need it. * * * THE COURT: CMU is the mental health component of Dauphin County. MS. GETTLE: In terms of the fact that you do have a mental health diagnosis and you’re not taking your prescriptions at this time, are you having any types of difficulties understanding what you’re doing here today? [APPELLANT]: No. MS. GETTLE: Now, you’ve indicated that you do understand the fact that you in this case could have the representation of the Public Defender’s Office. You understand that? [APPELLANT]: I understand that. MS. GETTLE: You qualify for their services and Ms. [Mary L.] Klatt was representing you in this case. [APPELLANT]: I understand that.
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MS. GETTLE: And that is your─you have a constitutional right to have─
[APPELLANT]: And to refuse counsel also, right?
MS. GETTLE: And to refuse counsel . . . .
* * *
MS. GETTLE: . . . In terms of the nature of the charges that have been filed against you, do you understand the elements that the Commonwealth must prove beyond a reasonable doubt in this case?
[APPELLANT]: In understand that.
MS. GETTLE: . . . And you’ve also been advised, and we’ve talked about already this morning, the different types of sentences if you are convicted of any of those offenses?
[APPELLANT]: I understand that.
MS. GETTLE: Do you understand that if you waive your right to have counsel that you are going to be bound by the same rules, court rules, that apply to attorneys when they try cases?
[APPELLANT]: I understand that.
* * *
MS. GETTLE: Do you understand that there may be possible defenses to the trial and that if you because of the fact that you do not have a law license, you’re not necessarily as familiar with the rules, that you can permanently lose those defenses if you do not argue them in court? Do you understand that?
[APPELLANT]: I understand.
* * *
MS. GETTLE: Do you understand that in the event that something were to occur during court that procedurally J.S45036/15
[*8]shouldn’t have happened or something of that nature and you don’t object, that then later on down the road you can’t then say on appeal . . . I missed the objection, you’ve lost that right to make that objection on appeal? Do you understand that?
[APPELLANT]: What do you mean by that?
MS. GETTLE: . . . Let’s say something were to come into evidence and an attorney would normally . . . object to it, the evidence.
If that comes into evidence and if you haven’t lodged an objection, then if you are convicted, you can’t argue . . . I missed this objection and I should have done this and objected here; you’ve lost the right to take that any further on appeal. Do you understand that?
[APPELLANT]: I understand that.
Id. at 4-9, 11-13. The trial court continued the colloquy, addressed the elements and permissible range of sentences for the charges against
Appellant. Id. at 13-19.
In the instant case, the trial court opined:
A review of the transcript reflects that the court and the Commonwealth’s Attorney fully addressed each requisite element of the colloquy. [Appellant] acknowledged that: he had the right to counsel; he qualified for representation by a public defender; he understood the nature of the charges and possible sentences; if he chose to represent himself, he would be bound by the same rules as an attorney familiar with such rules including rules relating to preservation of rights for purposes of appeal; if he invoked the right to remain silent, he could not present testimony by way of opening or closing statements.
The court further inquired into [Appellant’s] ability to understand the proceedings. [Appellant] stated that he had been diagnosed with depression with psychotic features but had been discharged from care. [Appellant] J.S45036/15
[*9]consistently acknowledged that he understood the information provided. [Appellant’s] prior counsel . . . who served as standby counsel, stated that based upon her extensive dealings with him she had no doubt as to [Appellant’s] complete competency to stand trial. Nevertheless, out of an abundance of caution, prior to trial, [standby counsel] requested that a mental health advocate meet with [Appellant]. The advocate believed [Appellant] to be competent to stand trial. Further, the court placed on the record its observations of [Appellant] and its conclusion that it found [Appellant] competent to stand trial.
Accordingly, [Appellant] knowingly, intelligently and voluntarily waived the right to counsel.
Trial Ct. Op. at 5.
We find Appellant’s claim that the trial court’s failure to inquire about his age rendered the colloquy deficient is unavailing. Instantly, the colloquy satisfied Rule 121. See Pa.R.Crim.P. 121(A)(2)(a)-(f). Applying the totality
of the circumstances test, we find that Appellant’s waiver of the constitutional right to counsel was knowing, voluntary and intelligent. [6] See
Phillips, 93 A.3d at 853-54; El, 977 A.2d at 1162-1163.
Next, Appellant argues “his convictions were against the weight of the evidence”7 because he “was never shown to have engaged in acts which ( ) /.") Circulated 08/31/2015 01:05 PM
Officer Charles Pensyl responded to the domestic violence call. At the hospital, Officer Pensyl questioned Ms. Jagdeo. She told what happened to her, but refused to tell the officer who did this to her. Officer Pensyl testified that he had never seen a domestic violence victim in such Detective John O'Connor was assigned to this case. Detective O'Connor executed a search ----'-Narrant of Ms-Jagdee's-home-ea-Neveraber 13, 2013. (/d.p~eteetive-G'Connor observed--·~--- a blood smear on the neighbor, Ms. Thompson's door. (Id.) He found the living room of Ms. Jagdco's home in disarray. (Id. p. 90). Detective O'Connor found an apology letter with a heart on it which read, "Sorry for everything. I'll come back. Love always." (Id. pp. 95-96). In an interview with Detective John O'Connor, Defendant stated that Ms. Jagdeo was the aggressor, that he pushed her into a wall and she hit her head and foll into the bathtub.(Jd. p. 113 ). Defendant stated that Ms. Jagdeo threatened to kill him and that he became afraid and ran away. (Id.) DISCUSSION A. THE COURT AND THE COMMONWEALTH ATTORNEY CONDUCTED A THOROUGH AND COMPLETE COLLOQUY WHICH DEMONSTRATED THAT DEFENDANT KNOWINGLY) INTELLIGENTLY AND VOLUNTARILY CHOSE TO PROCEED PRO SE. The colloquy conducted on the record on June 4, 2013 at pages 5-14 provided a complete and thorough explanation of Defendant's rights, the charges he faced and the risk of proceeding pro se which satisfied the requirements of Pennsylvania Rule of Criminal Procedure 121 (a)(2). Rule 12l(a)(2) requires that, .\ Circulated 08/31/2015 01:05 PM ;
To ensure that the defendant's waiver of the right to counsel is knowing, voluntary and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant: represented by counsel, and the right to have free counsel appointed if -------------the-defe11dant-is-indigent;·---·---~---------------- (b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges; (c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged; (d) that the defendant understands that if he 01· she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules; (e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and (f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be permanently lost. Pa.R.Crim.P. 121 (a)(2).
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A review of the transcript reflects that the court and the Commonwealth's Attorney fully addressed each requisite element of the colloquy. Defendant acknowledged that: he had the right
to counsel; he qualified for representation by a public defender; he understood the nature of the · -- -----clmrges·~arrd-pussibh~· sentenc-es;·if-Ire-c-hoseto represent rnllTSelf;he wou){I-bebmmd-bylhe same
rules as an attorney familiar with such rules including rules relating to preservation of rights for ----ttplli'j3oses of appealjif-heinvoked-the right to-remain-silent, he-eoold--flet-prescnt testwim-owll)\1-' ...,b,~1-------- way of opening or closing statements. (N.T. 2, pp. 6-19).
The court further inquired into Defendant's ability to understand the proceedings. Defendant stated that he had been diagnosed with depression with psychotic features but had been
discharged from care. (Id. p. 6). Defendant consistently acknowledged that he understood the information provided. Defendant's prior counsel, Attorney Mary Klatt, who served as standby counsel, stated that based upon her extensive dealings with him she had no doubt as to
Defendant's complete competency to stand trial. Nevertheless, out ofan abundance of caution, prior to trial, Attorney Klatt requested that a mental health advocate meet with Defendant. The advocate believed Defendant to be competent to stand trial. (Id. pp. 23-24). Further, the court placed on the record its observations of Defendant and its conclusion that it found Defendant competent to stand trial. (Id. p. 24)
Accordingly, Defendant knowingly, intelligently and voluntarily waived the right to counsel.
A. THE WEIGHT OF EVIDENCE SUPPORTS THE VERDICT. The court properly denied the Defendant's Motion for a New Trial or Arrest of Judgment which challenged that the verdict was against the weight of the evidence.
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The Superior Court has explained the "crucial distinction between evidentiary weight and sufficiency" as follows: Sufficiency of the evidence and weight of evidence are discreet inquiries. In reviewing the sufficiency of the evidence, we must view the evidence presented ---~anu-aH-remrmmb-Jeinferences1akentherefrom in tneltgnt most favoraoletotn~e---- Commonwealth, as verdict winner. The test is whether the evidence> thus viewed> is sufficient to prove guilt beyond a reasonable doubt. .. A motion for a new trial on grounds that the verdict s contrary to the weight of the ----~·----evideace concedes thatthere is sttfficient-cvidenee-to-sustain-the--ver"Hdwic4-t-"'bu™tt------------- contends> nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his discretion will not be reversed on appeal unless there has been an abuse of discretion ... The test is not whether the court would have decided the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Whiteman, 336 Pa. Super 120, 124-25, 485 A.2d 459, 461-62 (1984), citing, Commonwealth v. Taylor, 324 Pa. Super, 420, 425, 471 A.2d 1228, 1229-30 (1984); Commonwealth v. Sample, 321 Pa. Super.457, 468 A.2d 799 (1983)(allocatur denied); Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1982) and Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) cert. denied, ~U.S._, 104 S.Ct. 1603, 80 L.Ed. 2d J 33 (1984). We note at the outset that neither Defendant's Motion for a New Trial nor Arrest of Judgment nor Statement of Matters Complained of On Appeal identify which of the charges arc unsupported by the weight of evidence. Rather, Defendant asserts only the boilerplate claim that "the verdict was against the weight of the evidence so as to shock one's sense of justice where Defendant was never shown to have engaged in acts which constitute the crimes of which he was convicted." (Defendant's Post-Sentence Motion, para. 7). The facts set forth briefly in this Opinion and at greater length in the Commonwealth's Brief For Appellee, with complete citation to the testimony, demonstrate that ample evidence supports the verdict of guilty at each charge. Findings as to "the weight of the evidence [are] exclusively Circulated 08/31/2015 01:05 PM
for the finder of fact who is free to believe all, part, or none of the evidence, and to determine the credibility of the witnesses." Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (Pa. 2003). ·------~1mevtcl"enceeastlysatisfieo1heelements oftliecliarge ofAggravatea Assaulr.Thestatute provides: ·~------A-person is guiltyof-aggreveted-assaelt-if-her- ------·~---------- (1) attempts to causes serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.] 18 Pa. C.S.§2702. In reaching the verdict of guilty of Aggravated Assault, the jury considered and accepted the evidence that Defendant brutally beat Ms. Jagdeo with a towel bar causing head injury, punched her in the stomach and strangled her to the point of unconsciousness. In his Statement of Matters Complained of on Appeal, Defendant raised the claim that Defendant acted in self-defense. The record is devoid of evidence to support Defendant's suggestion that he acted in self defense. Even if the jury considered such claim, it was free to accept the testimony of Detective John O'Connor that he did not observe any bruises or injuries on the Defendant and therefore conclude that Defendant did not act in self-defense.
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Further, the weight of evidence well supports the verdict of guilty on the charge of Terroristic Threats with Intent to Terrorize Another pursuant to 18 PA.C.S. § 2706 (A)(l) which provides, in relevant part: 'I'e11'{)ristic 1'~ts. (a) Offense defined.- A person commits the crime of terroristic threats if the person ---~eommanieates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another; *** 18 PA.C.S. § 2706 (A)(l). The jury heard and accepted testimony of the victim's neighbor, Ms. Thompson, that she heard loud fighting noises at the victim Ms. Jagdeo's home next door and a voice she identified as Defendant's state that he was going to kill her. (N.T. 2, pp. 10-12). Therefore, the weight of the evidence supports the verdict and the trial court properly denied Defendant' s Motion for a New Trial or An-est of Judgment. B. THE COURT PROPERLY EXERCISED ITS DISCRETION IN SENTENCING DEFENDANT. Defendant challenges the discretionary aspects of the sentence by his assertion that the sentence was excessive and unreasonable and failed to consider Defendant's lack of prior record and to inquire as to Defendant's mental health concerns. The transcript belies Defendant's arguments. The court properly imposed a sentence in the aggravated range and stated its reasons therefore on the record. 1The court sentenced Defendant as follows: I The court ordered Defendant removed from the courtroom following Defendant's profanity laced outburst.
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THE COURT: On count two, the aggravated assault, the Court presided over the proceeding, Also, observed some things in the courtroom and was at least informed of what happened out at the prison with the assaults. This assa~lt·wasimrtic1Thn:Iy-dtsconcerting,tl~lengtlroftr,mttmgher 'yV_lt_n_a_m_e_t_a_l _ towel rack, poking her with a shower rod to the extent she had internal bleeding, bleeding ------ .....o-n-,.,her-bram,aad--ether-injuries that she-had. So v.·e recogt1i-ze-thtt•'f-.------------- I do believe I'm going to [g]o outside the standard range and impose a sentence of not less than 78 months to 156 months, fine of $25 and costs of prosecution. Condition of his sentence would be that he gets the mental health treatment, anger management, and any other mental health treatment that is recommended by a professional, while he is incarcerated. He can't keep himself in prison without fighting with others, so I have a serious concern about public safety issues should he be released without any treatment while he is in prison. On the terroristic threats count, at count three, impose a sentence of not less than one year nor more than two years in the state correctional institute, and that will run consecutively to the previous count; $25 fine and costs of prosecution. Twill give him the time credit from November 14, 2013 until today's date. We will set up a time to read him his appellate rights. We will do that promptly. Again, we are not going to start the thirty days until he knows his rights. We can do that from the prison. The restitution amount is $768.30. (Transcript of Proceedings, June 12, 13, 2014, pp. 5-9).
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In the exercise of its discretion, the court properly considered "the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing and [imposed] a sentence [that was] consistent with the protection of the public, the gravity of '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-4s--net-shown---merely by an error in judgment.Ritthe1.,-thc appellant must establish by reference to the record that the sentencing court ignored or misplaced the 1aw, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214(Pa. Super. 1999)(quoting Commonwealth v. Johnson, 666 A.2d 690,693(P A. Super. I 995). As reflected in its observations on the record, the court considered a sentence in the aggravated range proper based upon the particularly brutal and prolonged attack upon Ms. Jagdeo. Also, contrary to Defendant's argument, the court considered Defendant's mental health concerns in imposing the condition that Defendant undergo mental health treatment. The court deemed such treatment necessary to reduce danger to the community upon Defendant's release. Accordingly, the court properly denied Defendant's Post-Sentence Motion.
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CONCLUSION For all of the foregoing reasons, the judgment of sentence should be affirmed. o EWIS PRESIDENT JUDGE FOR TODD A HOOVER June 26, 2015 Distribution: Joseph Cardinale, Esq., Dauphin County District Attorney's Office Ryan Lysaght, Esq., Dauphin County Public Defender's Office
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