source: Caselaw Access Project

author: BATEMAN J., J.,

license: Public Domain

text:
    Commonwealth v. Perry

      C.P. of Bucks County,
    no. 0160-10.

      Adam Heath Tanker, for Commonwealth.

      Keith J. Bidlingmaier, for defendant.
    February 1, 2011
   BATEMAN J., J.,

On May 26, 2010, Sylvester Perry (hereinafter “appellant”) was found guilty of possession with intent to deliver and was sentenced to not less than three and one half nor more than seven years in a state correctional facility. On October 6, 2010, a reconsideration hearing was held and appellant was resentenced to not less than three nor more than seven years in a state correctional facility. On October 28, 2010, appellant filed a notice of appeal with the Superior Court. On October 29, 2010, appellant was directed to file a concise statement of errors complained of on appeal in accordance with Pennsylvania Rule of Appellate Procedure 1925(b) and did so on November 12, 2010. We file this supplemental opinion pursuant to Pennsylvania Rule of Appellate Procedure § 1925(a).

PROCEDURAL AND FACTUAL BACKGROUND

On August 20,2009, at about 7:10 p.m., Officer Anthony Durle along with his partner, Officer Ed O’Brien, were patrolling the Venice-Ashby section of Bristol Township, Bucks County. N.T. 5/26/10 p. 43. They received a call from Officer Dennis Leighton to respond to the area of Foster Avenue. Officer Leighton reported observing a white male, later identified as Andrew Valentis, on a bicycle stopped at the curb engaged in a conversation with appellant. Officer Leighton then observed the two engage in what appeared to be a hand-to-hand transaction. This conclusion was based on the fact that when Valentis retrieved his hand from the handshake with appellant, his hand was cupped and the Valentis immediately placed his hand into his front right pocket and left. N.T. 5/26/10 p. 58. Officer Leighton provided Officers Durle and O’Brien with a description of Valentis. N.T. 5/26/10 p. 44. All three officers came into contact with Valentis approximately 300 meters from the sight of the transaction, and a search of his person turned up a blue-tinted plastic bag, half-inch by half-inch in size, containing crack cocaine. N.T. 5/26/10 p. 45, 61-62. This time elapsed between the transaction and the stop of Valentis was approximately two to three minutes. N.T. 5/26/10 p. 63. Upon discovering the crack cocaine, Officer Leighton radioed Officer Phillips and Officer Sarcewicz and instructed them to detain appellant. N.T. 5/26/10 p. 62. Incident to arrest, the Officer Phillips recovered a black cap that appellant was wearing, a silver wristwatch, a gold ring, and $49 in U.S. currency in the form of one $20 bill, two $10 dollar bills, one $5 bill, and four $1 bills from appellant’s person. N.T. 5/26/10 p. 90.

Appellant was transported back to the station, placed in an interview room, and read his Miranda rights. Appellant waived his rights and at first denied any involvement, but then stated that he had sold a “dime bag” to “the white male on the bike,” but that he was only doing it to help out an individual named Marcus Neil. N.T. 5/26/10 p. 68, 92, 95. Based on his experience and training, Officer Leighton understood a “dime bag” to be .05 grams of crack cocaine with a monetary value of $10. N.T. 5/26/10 p. 71-72.

Pre-trial hearings were held on May 26, 2010 on appellant’s petition for haebas corpus wherein appellant made two arguments: insufficiency of the evidence and a corpus delecti argument. At the conclusion of the hearing, the petition was denied. N.T. 5/26/10 p.26. At that time, appellant knowingly and intelligently waived his right to a jury trial. N.T. 5/26/10 p. 33. Defense counsel then indicated that he and appellant had established that though counsel was court-appointed, appellant would be representing himself to an extent with counsel serving as stand-by counsel. N.T. 5/26/10 p. 36. It was further discussed that while counsel would handle the majority of the trial, including cross examining witnesses, there may be times that appellant would want to interject and represent himself in certain matters. N.T. 5/26/10 p. 37.

With that, a bench trial commenced. At the conclusion of the Commonwealth’s case-in-chief, appellant made a motion to dismiss based upon the Commonwealth’s failing to prove beyond a reasonable doubt that appellant delivered the controlled substance arguing that before appellant’s confession may be considered, the Commonwealth is required to prove the existence of the corpus delicti. N.T. 5/26/10 pp. 106-111. After lengthy legal argument, the motion was denied, and appellant took the stand. N.T. 5/26/10 p. 130. During his testimony, appellant denied selling drugs and denied making the statement that Officer Leighton and Officer Phillips testified to. N.T. 5/26/10 pp. 130-152. With that, the defense rested. N.T. 5/26/10 p. 152. Closing arguments were made by both defense counsel and the Commonwealth, and the court adjourned for the day.

The trial resumed the next day, and at the outset, defense counsel noted that appellant had something he himself wished to introduce into evidence. Based upon appellant’s personal request to open the case and there being no objection from the Commonwealth, the case was reopened. N.T. 5/27/10 pp. 1-5. At that time, appellant introduced D-2, a statement from Valentis stating that he had been sold crack cocaine on the night in question, but it did not identify appellant as the seller. Defense counsel and the Commonwealth presented legal argument once again, at the close, appellant was found guilty.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant raises only one issue on appeal: whether the trial court erred in allowing evidence of appellant’s statement without proof of the corpus delicti of the crime with which he was charged.

DISCUSSION

The instant appeal alleges that the Commonwealth failed to meet its burden to establish corpus delicti, and therefore, the statement made by appellant to Officer Leighton and Officer Phillips was not admissible.

The rule of corpus delicti operates to establish a foundation for the admission of a defendant’s extrajudicial confession. The rule is grounded in the reluctance of the judicial system to convict a person of a crime solely on the basis of his or her own statements. Commonwealth v. Buck, 626 A.2d 176 (Pa. Super. 1993). The rule requires that the fact that a crime has been committed must be corroborated by independent evidence. Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871 (Pa. 1998), cert. denied, 119 S.Ct. 350 (U.S. 1998).

The corpus delicti rule involves two phases. First, the Commonwealth must prove, by a preponderance of the evidence, that a crime has been committed. Commonwealth v. Ahlborn, 657 A.2d 518 (Pa. Super. 1995). This is a threshold question of the admissibility of the accused’s confession and requires a showing of a specific kind of injury or loss and that someone’s criminality caused the loss. Id. This prong does not require the Commonwealth to establish any connections between the accused and the crime, merely that a crime has been committed. Commonwealth v. Meder, 611 A.2d 213 (Pa. Super. 1992). The second prong’s applicability comes after the confession has been admitted and requires the Commonwealth to prove the corpus delicti of the crime beyond a reasonable doubt. Ahlborn, 657 A.2d 518; see also, Commonwealth v. Chambliss, 847 A.2d 115 (Pa. Super. 2004).

In the case sub judice, a thorough review of the record indicates that the Commonwealth has satisfied both phases discussed above, and appellant’s claim is without merit. The Commonwealth must first establish, by a preponderance of the evidence and without appellant’s confession, that a crime has been committed. Officer Leighton testified that he observed a hand-to-hand transaction occurred, that one of the parties to the transaction was Valentis and a subsequent search of Valentis resulted in the recovery of .05 grams of crack cocaine. Furthermore, appellant introduced a statement, written by Valentis, stating that he was sold crack cocaine on the night in question. Officer Leighton identified appellant as the other party to the transaction, but this is not necessary as the Commonwealth is not required to connect the crime to appellant. We reiterate now, as we did during the trial, that we find Officer Leighton’s testimony to be clear and credible in its entirety. In addition, we disregard appellant’s testimony in that it conflicts with Officer Leighton’s credible testimony and is self-serving. Based on these facts, the Commonwealth has proved that a crime has been committed by a preponderance of the evidence.

Next, the Commonwealth must prove beyond a reasonable doubt, the corpus delicti of the crime. Officer Leighton testified that appellant confessed to having sold Valentis the drugs, but that appellant stated he was doing it to help out another person. This testimony was corroborated by Officer Phillips, who was also present for the interrogation. Furthermore, the hat taken from appellant at the time of his arrest matched the description provided by Officer Leighton at the time of the incident. Within minutes of discovering the crack cocaine on Valentis, Officer Leighton radioed to two other officers to detain appellant, referring to him by name, and positively identified appellant when Officer Leighton returned to the scene. These facts, taken together with those discussed supra., demonstrates that the Commonwealth has proved the corpus delicti of the crime beyond a reasonable doubt.

CONCLUSION

For the reasons stated above, appellant’s claim is without merit.

      . 35 P.S. 780-113 §§A30, amended by H.B. No. 196 effective January 23,2011.

      . Officer Leighton is employed with the Bristol Township police in the gang suppression unit and narcotics unit at the township. In addition, he also does work for the FBI as a task force officer. N.T. 5/26/10 p. 53. Officer Leighton has received training in narcotics investigations from the DEA as well as the ATF and FBI. N.T. 5/26/10 p. 55.

      . Appellant and his counsel entered into a stipulation with the Commonwealth regarding the chain of custody of the drugs as well as the lab results. N.T. 5/26/10 p. 102.

      . Miranda v. Arizona, 86 S. Ct. 1602 (U.S. 1966).


author: HESS, P.J.,

text:
    Protect Blacksburg v. South Carolina Dep’t of Health and Environ. Control

      C.P. of Cumberland County,
    no. 10-7853 CIVIL.

      John Martin Foster, for plaintiffs.

      Roger Page Hall and Stephen P Hightower, for SCDHEC.

      George B. Faller, Hubert X Gilroy, and Katie J. Maxwell, for defendant Sloan Construction.
    March 1, 2011
   HESS, P.J.,

In this civil case, Nathan C. Wolf, Esquire, was directed to appear at a scheduled deposition for the purpose of disclosing the identity of the source of certain deposit(s) referenced in letters rogatory received by us from the Honorable Shirley C. Robinson, an Administrative Law Judge in South Carolina, and/or requesting a corporate designee of Sovereign Bank to do the same (Order of court, Jan. 13, 2011). Mr. Wolf, having indicated that he intended to assert the attorney/ client privilege at any deposition and would thereby be refusing to make the requested disclosure, was adjudged in contempt (Order of court, Jan. 13,2011). Thereafter, Mr. Wolf filed a notice of appeal to the Pennsylvania Superior Court on January 18, 2011 (Notice of appeal, filed Jan. 18, 2011). The basis for the appeal may be summarized as follows:

Whether the January 13, 2011 order of court, directing Mr. Wolf to appear for a scheduled deposition for the purpose of disclosing the identity of the source of the deposit(s) and/or requesting a corporate designee of S overeign B ank to do the same, and thereafter adj udging him in contempt, was in error as a result of the attorney/ client privilege claimed by Mr. Wolf?

This opinion in support of the January 13, 2011, order of court is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

The facts of this case may be summarized as follows. A lawsuit was initiated in South Carolina wherein plaintiffs sought to reverse a decision from the South Carolina Department of Health and Environmental Control approving permits for a quarry to be operated and developed by defendant Sloan Construction Company, Inc. (hereinafter “Sloan”). Plaintiffs are members of a citizen’s group called “Protect Blacksburg” who reside adjacent to the quarry site. Plaintiffs have opposed the issuance of the permits claiming that, as a result of the permits, they will be exposed to potential injury in the form of lost property values and the quiet enjoyment of their property.

In the South Carolina litigation, Sloan sought to discover the source of plaintiffs’ finances for the litigation, believing that plaintiffs may actually be receiving funding from a Sloan competitor. The Administrative Law Judge in South Carolina determined that the information sought by Sloan was both relevant and discoverable; as a result, that court issued orders which were used to obtain financial records from plaintiffs. Plaintiffs’ financial records indicated that the group was, in large part, being funded by checks written from the IOLTA account of Wolf & Wolf, a Carlisle, Pennsylvania law firm, and signed by Nathan C. Wolf, Esquire. The total amount received by Protect Blacksburg from Attorney Wolf’s Sovereign Bank IOLTA account was $26,160.15. Because Sloan was still unable to determine the source of the funding, Sloan filed a motion to take document depositions outside the state of South Carolina which requested that the administrative law court issue letters rogatory to the Commonwealth of Pennsylvania. The motion requested that the letters rogatory seek the issuance of a subpoena requiring the deposition of attorney Wolf and/or a corporate representative of the bank for the purpose of producing documents which would identify the source of the funds sent to plaintiffs.

The South Carolina court granted the motion and issued letters rogatory on December 20,2010, which were thereafter filed with the Cumberland County prothonotary on December 22,2010. Upon receiving the letters rogatory, local counsel for Sloan notified both attorney Wolf and the undersigned, and a conference was held in chambers. At that time, attorney Wolf indicated that he would invoke the attorney-client privilege concerning the request for his client’s name, and he claimed that he could not produce the documents requested in the subpoena as a result.

Following the conference, briefs were requested from the parties and argument was conducted on the record. Subsequently, we issued the following order:

And now, this 13th day of January, 2011, pursuant to letters rogatory issued by Administrative Law Judge Shirley C. Robinson in and for Columbia, South Carolina, and following argument on the matter of privilege, Nathan C. Wolf, Esquire, is directed to appear at a scheduled deposition for the purpose of disclosing the identity of the source of the deposit(s) referenced in said letters and/or request a corporate designee of Sovereign Bank to do the same. Mr. Wolf, having indicated that he intends to assert the attorney/ client privilege at any deposition and will decline to make the requested disclosure, he is adjudged in contempt. Sanctions in the matter are stayed pending the perfection of an appeal in this case (order of court, Jan. 13,2011).

Initially, we note that because the South Carolina court has already determined that the information being sought by defendants is both relevant and discoverable, the full faith and credit clause of the United States Constitution precludes this court from engaging anew in an examination of its relevancy and discoverability. U.S. Const. Art. IV, § 1. “[F]ull faith and credit typically requires that a state give a judgment the same res judicata effect the judgment would have been afforded in the state which it was rendered.” Wilkes ex rel. Mason v. Phoenix Home Life Mutual Ins. Co., 587 Pa. 590, 902 A.2d 366, 375-76 (2006), cert denied, Wilkes v. Phoenix Home Life Mut. Ins. Co., 549 U.S. 1054, 127 S.Ct. 688 (2006).

The attorney-client privilege has long been rooted in the administration of justice; it being inherently essential to the sound administration of justice that client and advocate be allowed to fully and freely communicate, the privilege is founded in the need for the advocate to possess all reasons the client may have for seeking representation. Beltzhoover v. Blackstock, 3 Watts 20, 1834 WL 3292 (Pa. 1834); Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The Pennsylvania Supreme Court has held the intended beneficiary of the privilege not to be the individual client, but rather the “sound administration of justice which depends on frank and open client-attorney communication.” In Re Investigating Grand Jury of Philadelphia Co., 527 Pa. 432, 440, 593 A.2d 402, 406 (1991). As a result, the attorney-client privilege “exists only to aid in the administration of justice, and when it is shown that the interest of justice can only be frustrated by the exercise of the privilege, the court may require the communication to be disclosed.” Brennan v. Brennan, 422 A.2d 510 (Pa. Super. 1980).

In Pennsylvania, the attorney-client privilege is codified in statutory law at 42 Pa. C. S .A. § 5928. The statute provides that, “In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa. C.S.A. § 5928. While the privilege is statutorily mandated, it has certain requirements which must be satisfied in order to trigger its protections. “First and foremost is the rule that the privilege applies only to confidential communications made by the client to the attorney in connection with providing legal services.” Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (citing Slater v. Rimar, Inc., 462 Pa. 138, 148, 338 A.2d 584, 589 (Pa. Super. 1975); Commonwealth v. duPont, 730 A.2d 970, 977 (Pa. Super. 1999), appeal denied, 561 Pa. 669, 749 A.2d 466 (2000)). It is clear, therefore, that for the privilege to become applicable there must be a confidential communication, between attorney and client, made in connection with the providing of legal services. duPont, 730 A.2d at 977.

The question of whether the attorney-client privilege protects a particular communication from disclosure is a question of law to be decided by the court. Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259, 1265 (Pa. Super. 2007) (citing In re Estate of Wood, 818 A.2d 568, 571 (Pa. Super. 2003)). Much has been written regarding the distinction between a communication from a client to an attorney and a communication from an attorney to a client. It is well-settled that communications which flow from a client to an attorney are protected. See Nationwide Mutual Ins. Co., 924 A.2d 1259, 1264. Indeed, the title of § 5928 reads “Confidential communications to attorney.” 42 Pa. C.S.A. §5928 (emphasis added). It has also been held, however, that communications which flow from an attorney to a client will also be protected “to the extent the communications are based upon confidential facts that the client disclosed initially to the attorney.” Slusaw v. Hoffman, 861 A.2d 269, 273 (Pa. Super. 2004). In either event, however, there is no dispute regarding the nature of those communications; they must be “confidential” and “made in connection with the providing of legal services or advice.” Nationwide Mutual Ins. Co., 924 A.2d 1259, 1264.

After review, no Pennsylvania case appears to specifically address the issue sub judice. It is clear, however, that a communication made from a client to an attorney must be confidential. Standing on its own, it is also clear that a “confidential communication,” by definition, is one which must be made in confidence between the client to the attorney, and the confidence is the reasonable belief that the attorney will not thereafter disclose the information to a third party, or otherwise transmit that information other than in furtherance of that client’s interest. The definition of “confidential communication” is, therefore, extremely broad. It does not follow, however, that the definition is all-inclusive.

Because Pennsylvania courts do not typically favor evidentiary privileges, as they are in derogation of the search for the truth, our courts have held that, in general, in order to justify such a privilege, the confidentiality of the communication is one which should also be “essential to the full and satisfactory maintenance of the relationship which seeks to assert that privilege. See Matter of Adoption of Embick, 506 A.2d 445, 461 (Pa. Super. 1986) (upholding a lower court’s decision to permit a psychologist to testify despite the psychologist-client privilege statute). With regards to a client’s identity, it cannot be said that confidentiality of a client’s name, and only his name, is “essential to the full and satisfactory maintenance of’ the attorney-client relationship. The name or identity of a client is not a communication to an attorney which a person could reasonably expect to be protected from disclosure. Indeed, a client comes to an attorney in order for that attorney to act as an advocate on his behalf, and, furthermore, as one who is to speak for the client. Black’s Law Dictionary defines “advocate” as “[a] person who assists, defends, pleads, or prosecutes for another” and also as “[a] person who is trained in both canon and secular law and can (1) appear in an ecclesiastical or admiralty court on another’s behalf....” Black’s Law Dictionary (9th ed. 2009) (emphasis added). It flows from the definition that one who is to act on another’s behalf must, when called on to do so, identify himself and acknowledge the person for whom he speaks. It cannot realistically be believed that an attorney, who is to speak for someone else, is able to refuse to disclose the name of his client because the attorney considers the client’s identity to be a “confidential communication” within the meaning of the attorney-client privilege. In other words, the name of a client, while, in a sense, a communication, is not one which would fall within the general realm of a confidential communication protected by the attorney-client relationship.

It can even be argued that the “sound administration of justice” is frustrated by an attorney’s refusal to identify his client. The attomey-c lient privilege ought not to act as a shield to prevent disclosure of the identity of a client when an attorney is called upon by the court to do so.

A client’s identity is also not protected by the attorney-client privilege for the additional reason that the identity alone is not a confidential communication “made in connection with the providing of legal services or advice.” Nationwide Mutual Ins. Co., 924 A.2d 1259, 1264 (emphasis added). Just as not every communication between a client and an attorney is confidential, neither is every communication between a client and an attorney made in connection with the provision of legal services or advice. The privilege only applies if a communication is made for the purpose of securing either legal services or an opinion of law. That is to say, the privilege “only applies where the client’s ultimate goal is legal advice.” National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053 (Pa. Commw. 2001). In the context of the case sub judice, attorney Wolf accepted money into his IOLTA account, not for the purpose of giving legal advice to his unidentified client, but rather, simply to shield the identity of a “client” in order that the client remain unknown in the South Carolina litigation.

In Slusaw v. Hoffman, supra, the Superior Court held that the trial court had not abused its discretion by denying a motion to quash subpoenas which sought to elicit testimony regarding the attorneys’ work as guardian ad litem. Slusaw, 861 A.2d 269, 273. That court held that the attorney-client privilege could not be claimed to prohibit the production of invoices received by a client from his attorneys. Slusaw, 861 A.2d 269, 273. The court found that “[t]he subpoenaed invoices are not privileged documents to the extent that they do not disclose confidential communications which Slusaw disclosed to Attorneys Wallitsch and Reich.” Id. at ¶ 13.

In Marian Bank v. Lawrence Voluck Associates, Inc., Marian Bank obtained a judgment against the defendant and thereafter filed writs of execution and interrogatories in attachment against defendant’s attorney. Marian Bank v. Lawrence Voluck Associates, Inc., 26 Pa.D. & C.3d 48 (1982). The defendant’s attorney claimed that he could not answer the interrogatories because of the attorney-client privilege. The court held that it was “well-established” that an attorney may be “examined as to the existence of the relationship of the attorney and client.” Marian Bank, 26 Pa. D. & C. 3d at 52 (citing Sargent v. Johns, 206 Pa. 386 (1903), 8 Wigmore §2313). The court also found the following:

It is of the very essence of the attorney-client privilege that it be limited to those communications which the client either expressly made confidential or which the client could reasonably assume under the circumstances would be understood by the attorney to be confidential: McCormick §91; 8 Wigmore § 2311 (“the privilege assumes, of course, that the communications are made with the intention of confidentiality.”) The mere relationship does not raise a presumption of confidentiality, and in order to be privileged, the circumstances must indicate that the communication was of a sort intended to be confidential.
Id. It is clear, therefore, that the mere acknowledgement and identification of the existence of an attorney-client relationship is not one which lends itself to the protection of the privilege.

The Third Circuit has also held as much. In Maulch v. Commissioner of Internal Revenue, infra, the Third Circuit court of appeals held that the court has the right to know that the “client whose secret is treasured is actual flesh and blood, and demand his identification, for the purpose, at least, of testing the statement which has been made by the attorney who places before him the shield of this privilege.” Maulch v. Commissioner of Internal Revenue, 113 F.2d 555, 557 (3d Cir. 1940) (quoting Tomlinson v. United States, 68 app. D.C. 106, 93 F.2d 652, 655). While this case is not binding on this court with regard to the attorney-client privilege, we conclude that requesting the identity of a client is an entirely reasonable right of a court.

Accordingly, we continue to be satisfied that our order of court, dated January 13, 2011, directing attorney Wolf to appear at a scheduled deposition for the purpose of disclosing the identity of the source of certain deposit(s) referenced in letters rogatory received by us from the Honorable Shirley C. Robinson, an Administrative Law Judge in South Carolina, and/or requesting a corporate designee of Sovereign Bank to do the same, was properly entered.

      . [F]our elements must be satisfied in order to successfully invoke the protections of attorney-client privilege:
      1) The asserted holder of the privilege is or sought to become a client.
      2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
      3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
      4) The privilege has been claimed and is not waived by the client.

        Carbis Walker, LLP v. Hill, Barth and King, LLC, 2007 Pa. Super. 221, ¶ 10, 930 A.2d 573, 579 (citing Nationwide Mutual Ins. Co. v. Fleming, 2007 Pa. Super 145, ¶9, 924 A.2d 1259(intemal quotation marks and citations omitted)).

      . It should be noted that the range of applicability of Pennsylv - nia’s psychologist-client privilege has been defined as being the same as the attorney-client privilege. 42 Pa.C.S. § 5944.


author: STEINBERG, J.,

text:
    Commonwealth v. Kibler

      C.P. of Lehigh County,
    no. CR-4433-2009.

      Anna-Kristie Morffi, deputy district attorney, for Commonwealth.

      Andrea Olsovsky, for defendant.
    March 1, 2011
   STEINBERG, J.,

On September 8, 2010, the appellant entered a nolo contendere plea to aggravated assault. The appellant kicked Trooper Louis Rosenthal in the nose, causing a bilateral fracture which required surgery. Trooper Rosenthal was also diagnosed with post-concussion syndrome, and his life has been dramatically affected by the appellant’s conduct.

A presentence report was received and reviewed prior to the sentencing, as well as a Psychological Evaluation prepared by Frank M. Dattilio, Ph.d. Counsel for the appellant also submitted a “sentencing memorandum” with Dr. Dattilio’s report and letters from Susan Matta, DO, and Officer Alvin Knighton, a close personal friend of the appellant who is employed by the City of New Brunswick Police Department. This court was also provided and reviewed hospital surveillance footage of the events at the Lehigh Valley Hospital on June 13, 2009.

A sentencing hearing was held on November 10, 2010 at which Trooper Rosenthal and Trooper Arthur Johnson, the police prosecutor, testified on behalf of the Commonwealth. The appellant presented the testimony of William Thompson, a long-time friend of the appellant; SarahRoberts, the appellant’s 15-year-old daughter, as well as the appellant. All of the reports, letters, , and testimony were considered, along with the sentencing guidelines, prior to imposing a standard range sentence of not less than twelve (12) months nor more than forty-eight (48) months in the State Correctional Institution at Muncy.

On November 19, 2010 a “motion to reconsider and modify sentence” was filed and subsequently denied. A timely notice of appeal was filed, and appellant’s counsel filed a “concise statement of matters complained of on appeal” on January 13, 2011 pursuant to this court’s directive. It is alleged that although this court imposed a standard range sentence that the circumstances of the case made “the application of the guidelines...unreasonable... manifestly excessive...given the unique circumstances of the case; exceeded the pre-sentence investigator’s recommendation; failed to account for defendant’s cooperation; andorderedincarcerationinastate correctional facility when the guidelines permit confinement in a county facility...” The appellant also contends that this court failed to give “meaningful consideration to the facts of the crime or character of the defendant and...came to a manifestly unreasonable decision.”

FACTUAL BACKGROUND

On June 13, 2009, Trooper Rosenthal, and Trooper Christopher Maner responded to 5465 Amanda Drive, in North Whitehall Township to investigate a report of a domestic disturbance. According to Trooper Johnson, the state police had responded to that address approximately fourteen (14) times over the past four or five years for a variety of domestic related incidents. On this occasion, the appellant’s husband contacted the state police because the appellant had slapped her daughter, and an argument between the appellant and her husband was seemingly out of control.

When the troopers arrived, they observed that the appellant was agitated and irate. She was yelling “up and down the street” and threatening to commit suicide. A decision was made to transport the appellant to the hospital, and she initially agreed to go with the troopers. However, she then refused to accompany them to the hospital, began cursing, and attempted to go inside her home. The troopers prevented her from doing so by grabbing her wrist, and with that the appellant scratched both troopers and spit on Trooper Maner. EMS was requested to respond, and when they did, the appellant was tied to a gurney. She kicked one of the EMS workers and cursed at them.

Upon arrival at the hospital, the appellant was placed in a secure room with restraints. At some point the restraints were removed, and hospital staff alerted Trooper Rosenthal that they needed assistance because the appellant was uncontrollable. Trooper Rosenthal, in an effort to avoid having the appellant aim her expectorate at him, donned a mask and hospital gown. He stood by the doorway to the appellant’s room and repeatedly requested that she calm down. His requests were returned with obscenities and belligerence by the appellant. Trooper Rosenthal then displayed his taser in an effort to demonstrate to the appellant the seriousness of the situation.

The appellant returned to the stretcher, but continued her cursing and verbal abuse. Security guards then grabbed the appellant in an effort to restrain her on the stretcher, and with that the appellant attempted to kick or knee them in the face. Trooper Rosenthal made a decision to attempt to control the appellant with a dry stun from his taser. When he did so, the appellant “reeled back to get momentum and shot her foot straight at me; I did not have time to move or block, heel struck me in [the] nose. I heard a loud crack, like a large tree branch snapping.” Blood started to shoot out of his nose like a “geyser.” “It wasn’t even hitting my shirt, because it was shooting out like a fire-hose on the floor....”

Trooper Rosenthal remained in the hospital overnight and described his pain as being a nine (9) out of ten (10). His vision was greatly impaired and he experienced daily headaches. He underwent surgery a week after the injury and anticipates further surgeries. Trooper Rosenthal, who has been boxing since the age of fifteen (15), explained this as the “greatest impact I have ever felt to my nose.” After his surgery, Trooper Rosenthal was not breathing through his nose and was forced to miss a month and a half of work. He met with a list of specialists and is on a variety of medications. This surgery has had a detrimental affect on Trooper Rosenthal’s sleeping patterns, his vision, his social life, and his work performance, to the extent where Trooper Rosenthal believes his career may be in jeopardy.

Trooper Johnson, who saw Trooper Rosenthal the night of his injury, described him as being in extreme discomfort and pain. When he saw him one (1) to two (2) weeks later Trooper Rosenthal was still swollen “about his nose and face, below his eyes.” Specifically, Trooper Johnson stated “he hasn’t been the same since this happened.” Based on Trooper Johnson’s observations, the appellant’s actions were completely intentional in that she “makes a very conscious effort to kick at his face.”

The testimony of Mr. Thompson, a long-time friend of the appellant, described Randy Kibler, the appellant’s husband, as mentally and verbally abusive to the appellant. He also testified that Mr. Kibler admitted to consuming a beer at a neighbors’ the night the police responded. The appellant’s daughter, Sarah Roberts, also testified that Mr. Kibler had been drinking that day. This testimony was in sharp contrast with the testimony of Trooper Rosenthal, who saw no evidence that Mr. Kibler was under the influence of alcohol, nor even smelled alcohol on his breath.

Ms. Roberts also testified that since this incident, the appellant’s behavior has improved, and she’s “much more supportive.” She read a letter outlining how the appellant’s 21 medication adjustments have positively affected her behavior, and that she is “bettering herself as a person.”

Finally, the appellant, Catherine Kibler, testified on her own behalf. She was apologetic and described that she cannot recall the events that occurred on June 13, 2009 because she was over medicated. The appellant described the daily mental abuse she sustained in her relationship with Mr. Kibler. The appellant also explained that she has been making improvements in her lifestyle. Specifically, at the time of sentencing, the appellant’s physician had changed her medications, she was seeking a divorce, and was searching for employment.

DISCUSSION

“It is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003); and Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (Pa. 2002). The appellant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005).

The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). A claim that a sentence is unreasonable can raise a substantial question when an appellant “sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the sentencing code or a particular fundamental norm underlying the sentencing process. Mouzon, 812 A.2d at 627. However, a substantial question requires something more than alleging excessiveness. See Ladamus, 896 A.2d at 595.

Here, the appellant’s allegations do not present a substantial question. A standard range sentence was imposed, which did not violate either the sentencing scheme set forth in the sentencing code or a fundamental norm underlying the process. Claims of inadequate consideration of mitigating circumstances do not raise a substantial question for review. Id. at 595. Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008); Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007); Commonwealth v. Kraft, 737 A.2d 755 (Pa. Super. 1999). Additionally, when a sentence is imposed within the standard range of the sentencing guidelines, there is, generally, no substantial question. Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010), Commonwealth v. Maneval, 688 A.2d 1198 (Pa. Super. 1997); Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa. Super. 1995);

If the merits of the appellant’s sentencing claims are considered, then the sentencing court’s decision-making is scrutinized under an abuse of discretion standard. Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (Pa. 2007); Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. 2007). In determining whether there has been an abuse of discretion in the imposition of a sentence, “the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure the factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). The following explanation has been used as the starting point for determining if the sentencing court properly exercised its discretion:

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 is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en banc).

Essentially, the focus is on whether the court’s sentence is “clearly unreasonable.” An “unreasonable decision from the sentencing court would be one that is “’irrational’ or ‘not guided by sound judgment.’” Walls, 926 A.2d at 963, quoting The Random House Dictionary of the English Language, 2084 (2nd ed. 1987).

Here, a standard range sentence was imposed, which was also significantly less than the statutory limits. The appellant’s offense gravity score was a six (6), and her prior record score was zero (0). Therefore, the standard range of the sentencing guidelines was three (3) to twelve (12) months, and the minimum sentence of twelve (12) months imposed in this case was at the high end of the standard range of the guidelines.

A review of the sentencing proceedings reflects that this court considered the sentencing guidelines. The guidelines themselves are advisory and nonbinding, but the sentencing court must consider them in formulating a sentence. Walls, 926 A.2d at 964. The purpose of the guidelines was explained in Walls as follows:

Consultation of the guidelines will assist in avoiding excessive sentences and further the goal of the guidelines, viz., increased uniformity, certainty, and fairness in sentencing. Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgment regarding case-specific sentencing. Guidelines may help frame the exercise of judgment by the court in imposing a sentence. Therefore, based upon the above, we reaffirm that the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors - they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence. Id. at 964-965.

This court also considered the presentence report and Dr. Dattilio’s evaluation. See Commonwealth v. Rhodes, 8 A.3d 912, 919 (Pa. Super. 2010) quoting Commonwealth v. Moury, 992 A.2d at 171 (Pa. Super. 2010)([W]here the sentencing court had the benefit of a presentence investigation report it is assumed that the sentencing court was aware of relevant informationregarding the defendant’s character and weighed those factors along with mitigating statutory factors). See also Commonwealth v. Devers, 519 Pa. 88, 99, 546 A.2d 12, 18 (Pa. 1988); Commonwealth v. Pollard, 832 A.2d 517, 526 (Pa. Super. 2003). One of the appellant’s contentions is that this court’s sentence exceeded the presentence investigator’s recommendations which were contained in the presentence report. Not only are recommendations contained in a presentence report not binding on the sentencing court, but merely mirroring those recommendations would constitute an improper entrustment of the sentencing decision. Commonwealth v. Moore, 583 A.2d 1, 2 (Pa. Super. 1990) (A trial court must not delegate its sentencing decision to any person or group).

It is apparent that this court considered all of the relevant facts and circumstances in imposing the appellant’s sentence. In other words, in reaching the sentencing decision, “the protection of the public, the gravity of the offense as it relates to the impact on the victim and the community, the defendant’s rehabilitative needs and the sentencing guidelines” were all evaluated. 42 Pa. C.S. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).

The appellant’s out-of-control behavior may have cost Trooper Rosenthal his career. A review of the sentencing transcripts describes how the injuries have not only affected his employment, but also his personal life. These injuries, without question, caused “impairment of [his] physical condition [and] substantial pain.” 18 Pa. C.S. § 2301. They went beyond just causing immediate pain, but instead, have had long-term consequences to him. The appellant’s kick to the nose has literally impacted Trooper Rosenthal’s life for the almost two years since this offense, and for the foreseeable future.

The police responded to the appellant’s home, as they had many times in the past, in an effort to defuse a domestic disturbance. Due to the appellant’s threats of suicide and irrational behavior, it was determined that it was in her best interests to transport her to the hospital. Troopers Rosenthal and Maner recognized she needed treatment, even after she scratched both of them, spit repeatedly on Trooper Maner, and hurled epithets in their direction. This course of action was continued even after she kicked one of the paramedics in the shoulder and threatened to kill one of the troopers and his family. Ultimately, a 302 commitment was initiated, and the appellant remained hospitalized until June 25, 2009.

It is the appellant’s contention that her over-medicated condition and mental illness caused her to act in the manner previously described. It appears that these are the “unique circumstances” referenced in the appellant’s 1925(b) statement. The appellant does not deny kicking Trooper Rosenthal, but claims no memory of the events. Dr. Dattilio concluded that the appellant does have a “significant amount of psychopathology and tends to deny psychopathological problems.” She also produced a profile on the aggression questionnaire “that suggests that she may be prone towards acting-out her aggression physically and verbally, depending on the circumstances.” Finally, Dr. Dattilio reached the opinion that the appellant “was in a diminished state of consciousness at the time of instant offense and was therefore unable to conform her behaviors to the requirement of the law.”

The appellant’s mental health condition at the time of the offense was a mitigating circumstance that this court considered in imposing the standard range sentence. Likewise, her current stabilization on her most recent medications regimen was also weighed and evaluated. In other words, the gravity of the offense and its impact on the victim was balanced with the mitigating circumstances presented by the appellant. As a result, the difficulty in sentencing the appellant was not lost on this court. Contrary to the Pa. R.A.P. 1925(b) statement, “meaningful consideration” was given “to the facts and character of the defendant,” as well as her rehabilitative needs.

A review of the sentencing hearing also reflects that the appellant’s lack of criminal history was considered. Other factors, including her relationship with her husband and its effect on her behavior, were examined. The marital relationship, this court concluded, was “at best tumultuous...at worst...an abusive relationship. But it sounds like it was abusive on both sides.”

The mitigated circumstances presented by the appellant were not overlooked, but neither excused nor diminished the seriousness of her offense. The suggestion that her past and present mental health should require a mitigated range sentence would require a disregard for the other relevant factors, and blatantly ignore the injuries caused by the appellant. This court was not prepared to do so, and recognizes that the police are accorded the same protections as all victims. The appellant may not have been taking the proper medication at the time of the offense, but that failure does not require others to suffer the consequences. Mental health problems were a component, not a justifiable excuse, for the assault. Likewise, it is laudable that she is currently stabilized on her medication, but that does not turn the clock backwards, nor is it a guarantor of future conduct. The appellant’s responsibility for this offense is unchallenged, and a sentence within the standard range of the sentencing guidelines is not an abuse of discretion.

For all the foregoing reasons, the judgment of sentence should be affirmed.

ORDER

And now, March 1,2011, it appearing that the appellant has filed a notice of appeal in the above-captioned matter; it further appearing that the appellant has filed a “concise statement of matters complained of on appeal” pursuant to Pa.R.A.P. 1925(b); and it further appearing that the attached opinion satisfies the requirements of Pa.R.A.P. 1925(a);

It is hereby ordered that the clerk of courts, criminal division, shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the clerk of courts shall include with the transmittal of the record the following documents:

1. A copy of the appellant’s pre-sentence investigation report and psychological evaluation by Frank M. Dattilio, Ph.D. for review by the Superior Court, and that said reports shall be sealed to preserve their confidentiality pursuant to Pa.R.Crim.P. 703.
2. Notes of testimony from the nolo contendere plea entered September 8, 2010.
3. Notes of testimony from the sentencing held on November 10, 2010.

      . 18 Pa.C.S. 2702(a)(3).

      . Notes of testimony, Sentencing (hereinafter N.T.S.) p. 43.

      .N.T.S. pp. 46-51.

      . Dr. Dattilio’s evaluation was attached to the presentence report as well as the sentencing memorandum submitted by appellant’s trial counsel.

      . Concise statement of matters complained of on appeal, ¶ 1(a).

      . Id. at% 1(b).

      .N.T.S. p. 11.

      . Notes of testimony, Guilty Plea (hereinafter N.T.G.P.), pp. 13-

      . N.T.G.P. p. 14.

      . Id.;N.T.S.pp. 34-35.

      . N.T.G.P. p. 14.

      . N.T.S.p. 34.

      . Id. atp. 35.

      . Id. at p. 36.

      . Id. atp. 37.

      . Id. at pp. 37-39, 54. According to Trooper Rosenthal, a dry stun is the use of a taser with the cartridge off so that the probes do not ignite. It is an electric current that causes slight muscle restrictions, but causes less pain than a “regular” stun.

      .N.T.S. atp. 58.

      . Id. atp. 40.

      . Id.

      . Id. atp. 41.

      . Id. at pp. 30,44.

      . N.T.S. p. 45.

      . Id. atpp. 45-46.

      . Id. at pp. 47-50.

        .Id. atpp. 14-15.

      . Id. atp. 16.

      . N.T.S. p. 20.

      . Id. atpp. 32-33.

      . Id. at p. 75.

      . Id. at p. 76.

        .Id. atpp. 82-84.

      . N.T.S. p. 89.

        .Id. atpp. 84-86.

      . Cf. Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007) (challenge to the discretionary aspects of standard range sentence requires demonstration that actions of sentencing court were either inconsistent with sentencing code or contrary to fundamental norms underlying-sentencing process).

      . The appellant entered a nolo contendré plea to aggravated a - sault, a felony of the second degree. A person convicted of a felony of the second degree may be sentenced “for a term which shall be fixed by the court at not more than ten years.” 18 Pa. C.S. § 1103(2). The appellant potentially faced a sentence of not less than five (5) years nor more than ten (10) years.

      . 204 Pa. Code § 303.15.

      . 204 Pa. Code § 303.16.

      . N.T.S. p. 100.

      . Id.

      . Neither the Pa.R.Crim.P. 702(A)(3) (Pre-Sentence Investigation Report) nor any caselaw requires the probation department to include a sentencing recommendation in a presentence report, nor compels the sentencing court to abide by it. See Commonwealth v. Monahan, 860 A.2d 180, 185 (Pa. Super. 2004); see also Moore supra, at 2, which recognizes that probation departments are not prohibited from making sentencing recommendations, but the court “does not look with favor” upon such recommendations.

      . Psychological Evaluation, Dr. Dattilio, p.9.

      . Id. at p. 11.

        .Id. atp. 13.

      . Id.

        .Id. atp. 14.

      . N.T.S. pp. 100-102.

      . Id. at pp. 97, 105, 107.

      . Id. at p. 98.

      . Id. atp. 102.

      . Id. at p. 103.

      . The appellant’s remaining claim that it was error to place her in a state correctional facility, rather than a county facility, mischaracter-izes the concept of sentencing levels which are found in the Sentencing Guidelines. See 204 Pa. Code § 303.11. The appellant was a Level 3 offender (Offense Gravity Score of 6) which permits the following considerations:
      (3) Level 3 - Level 3 provides sentence recommendations for serious offenders and those with numerous prior convictions, such that the standard range requires incarceration or County Intermediate Punishment, but in all cases permits a county sentence. The standard range is defined as having a lower limit of incarceration of less than 12 months. Included in Level 3 are those offenses for which a mandatory minimum sentence of less than 12 months applies and for which a state or county intermediate punishment sentence is authorized by statute. The primary purposes of this level are retribution and control over the offender. If eligible, treatment is recommended for drug dependent offenders in lieu of incarceration. The following sentencing options are available:

        Total confinement in a state facility.

      Total confinement in a state facility, with participation in the State Motivational Boot Camp (see § 303.12(b) for e'igibility criteria).
      State Intermediate Punishment (see § 303.12(c) for eligibility criteria).
      Total confinement in a county facility under a state or county sentence (see 61 P.S. §331.17).
      Partial confinement in a county facility.
      County Intermediate Punishment (see § 303.12(a) for eligibility criteria).
      (emphasis added)
      Confinement in a state correctional institution was an option in this case and the appellant “has no constitutional or other inherent right to serve [her] imprisonment in any particular institution or type of institution... [However,] a court should consider the differences between the state and county prison environment in choosing to sentence an individual to a state rather than a county facility.” Commonwealth v. Fullin, 892 A.2d 843, 852 (Pa. Super. 2006) citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en banc). The sentencing order reflects that it was recommended that the appellant be sent to a state correctional institution which could address her mental health problems. State facilities are better equipped to address mental health concerns then county prisons.