J-S65033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARY GENE HETRICK, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 831 MDA 2018

Appeal from the Judgment of Sentence April 5, 2018

In the Court of Common Pleas of Huntingdon County Criminal Division at 

No(s): CP-31-CR-0000547-2017

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 28, 2019

Gary Gene Hetrick, Jr. appeals from the judgment of sentence entered 

following his guilty plea to three counts of resisting arrest and one count each 

of criminal trespass (defiant trespasser), disorderly conduct (engages in 

fighting), and public drunkenness.1 Hetrick challenges the discretionary 

aspects of his sentence and claims the trial court erred in not permitting him 

to receive a copy of his pre-sentence investigation report (“PSI”). We affirm.

On January 16, 2018, Hetrick pled guilty to the above-referenced 

offenses. According to the Affidavit of Probable Cause attached to the Criminal 

Complaint, Hetrick was at Memories Bar, where he became belligerent and

yelled at the other customers. The establishment’s owner asked him to leave, 

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1 18 Pa.C.S.A. §§ 5104, 3503(b)(1)(i), 5503(a)(1), and 5505, respectively.
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and Hetrick refused. When the police officers arrived, they again asked him to 

leave. Hetrick failed to leave, fought with the officers, and resisted arrest. 

On April 5, 2018, the trial court sentenced Hetrick. At the sentencing 

hearing, the trial court asked whether Hetrick’s counsel had any additions or 

corrections to the PSI. Counsel responded: “I do not. In speaking with my 

client, he believes that he may have an extra day of time that he had served 

over what the [PSI] says, but I feel that 256 days is not inaccurate.” N.T., 

4/5/18, at 2. His counsel argued that the incident was the result of a “bad 

day,” because Hetrick was having a “falling out” with his girlfriend. Id. at 3. 

Counsel stated, “It was a very bad day. He made some poor choices and 

reacted very poorly when the police arrived.” Id. at 4. 

After reviewing the PSI, hearing argument from Hetrick’s counsel and 

the Commonwealth, and hearing Hetrick’s allocution, the trial court stated:

Well, Mr. Hetrick, I don’t think this is out of character for 

you. I think it is totally in character for you. Looking at your 

record, you have had a [driving under the influence (“DUI”)] 

in Centre County, a DUI in Blair County, drug charges in 

Mifflin County, simple assault charges in Huntington County, 

harassment charges in Huntington County. I think this is 

totally in character. And you put the public at risk. 

And as a result, I have considered the protection of the 

public, the gravity of the offenses as it relates to the impact 

on the life of the victims, the law enforcement officers, the 

community, and I have also considered your rehabilitative 

needs. I don’t think the statutory sentencing guidelines are 
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appropriate in this case. I have considered them, and I am

going to sentence outside the sentencing guidelines.[2]

You caused a great disturbance to the members of the 

public, but you also put the health and safety of three 

Huntington Borough Police officers at risk, and that’s a great 

concern. You simply could have left when asked by the 

owner of the establishment to leave, and you didn’t do that. 

And you stayed there and you wanted a fight, and you got 

a fight. And from what I’m reading, it looks like not only did 

you lose the fight, but you’re also, as a result, going to state 

prison. 

Id. at 6-7. For the three resisting arrest convictions, the court imposed one 

term of nine to 24 months’ imprisonment and two terms of four to 24 months’ 

imprisonment and, for the criminal trespass conviction, the court imposed a 

term of three to 12 months’ imprisonment.3 The court ordered the sentences 

to run consecutively, for an aggregate sentence of 20 to 84 months’ 

imprisonment.

Hetrick filed a post-sentence motion arguing that the sentence was 

excessive considering the nature of the offenses and Hetrick’s criminal history 

and rehabilitative needs. Hetrick also filed a motion for disclosure of the PSI. 

The PSI included a statement stating “the offender has no right to personally 

review the report.” Motion for Disclosure of Pre-Sentence Investigation 

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2 For the resisting arrest convictions, the sentencing guideline range was 

restorative sanctions to four months’ imprisonment, with an aggravated range 

of seven months’ imprisonment. For the criminal trespass conviction, the 

standard sentencing guideline range was restorative sanctions to three

months’ imprisonment, with an aggravated range of six months’ 

imprisonment. 

3 The court imposed sentences of guilty with no further penalty for the 

convictions for disorderly conduct and public drunkness. 
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Report, at ¶ 3. Hetrick maintained that he had a right to review the report, 

noting there was no evidence the disclosure would be detrimental to Hetrick 

or sources of information. Id. at ¶ 6. On May 14, 2018, the trial court denied 

both motions. Hetrick filed a timely notice of appeal.

Hetrick raises the following claims on appeal:

1. Is Mr. Hetrick’s sentence of total confinement in state 

prison unreasonably excessive, when it exceeds the 

presumptive limit of the Sentencing Guidelines and is based 

on a factor already weighed by the Sentencing Guidelines,

considering that his conduct caused no injury or harm and 

was situational?

2. Was Mr. Hetrick entitled to receive a copy of the presentence investigation report, given the fact that neither the 

probation department nor the Commonwealth provided any 

grounds for withholding it from him?

Hetrick’s Br. at 6.

I. Discretionary Aspects of Sentence

Hetrick claims the trial court failed to articulate its reasons for 

concluding that a sentence of total confinement was necessary and claims the 

court considered his prior record score, which had already been considered in 

the sentencing guidelines. He further argues the court imposed an excessive 

sentence and focused too heavily on his criminal history and failed to consider 

mitigating circumstances, including that his “ill-considered conduct was 

largely situational.” Hetrick’s Br. at 11. 

A challenge to the discretionary aspects of a sentence is not appealable 

as of right. Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa.Super. 

2014). Before we exercise jurisdiction to reach the merits of a claim, we must 
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determine whether: (1) the appeal is timely; (2) the appellant has preserved 

his issue; (3) his brief includes a concise statement of the reasons relied upon 

for allowance of an appeal with respect to the discretionary aspects of his 

sentence; and (4) the concise statement raises a substantial question whether 

the sentence is inappropriate under the Sentencing Code. Id. at 1042-43; see 

also Pa.R.A.P. 2119(f) (mandating that an appellant “set forth in a separate 

section ... the reasons relied upon for allowance of appeal”). Only if the appeal 

satisfies each of these four requirements may we proceed to decide the 

substantive merits of the claim. Colon, 102 A.3d at 1043. In so doing, we 

review the sentence imposed for an abuse of discretion. Id.

Hetrick timely filed a notice of appeal and his brief contains a concise 

statement of the reasons on which he relies. Hetrick, however, did not raise 

in his post-sentence motion his claim that the court considered an 

impermissible factor by basing his sentence on a factor already considered in 

the sentencing guidelines. Hetrick, therefore, waived this claim. 

Further, even if Hetrick had preserved this claim, we would conclude it 

lacked merit. Contrary to Hetrick’s contention, the court did not rely solely on 

his criminal history as its reason for sentencing him outside the sentencing 

guideline range.4 Rather, it sentenced above the aggravated range because 

Hetrick’s conduct put the public at risk and, in doing so, the court considered 

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4 The court imposed outside the sentencing guidelines for one resisting arrest 

conviction. For the remaining convictions, it imposed sentences at the highend of the standard range of the guidelines.
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Hetrick’s criminal history, as well as the protection of the public, the gravity 

of the offense as it relates to the victims, the community, and Hetrick’s 

rehabilitative needs. N.T., 4/5/18, at 6-7; see also Commonwealth v. 

Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) (noting “court should refer to the 

defendant’s prior criminal record, his age, personal characteristics and his 

potential for rehabilitation”); Cf. Commonwealth v. Simpson, 829 A.2d 

334, 339 (Pa.Super. 2003) (finding claim that court considered impermissible 

factor already weighed in sentencing guidelines as sole reason for imposing 

sentence in aggravated range raised substantial question). This was not an 

abuse of discretion.

Hetrick’s post-sentence motion did include his claim that the court 

imposed an excessive sentence without considering mitigating factors. 

Further, the claim raises a substantial question. Commonwealth v. Raven, 

97 A.3d 1244, 1253 (Pa.Super. 2014) (holding “excessive sentence claim—in 

conjunction with an assertion that the court failed to consider mitigating 

factors—raises a substantial question”). We will therefore review Hetrick’s 

claim to determine whether the trial court abused its discretion in sentencing 

him to 20 to 84 months’ imprisonment.

Here, the court considered the PSI, the arguments of counsel, Hetrick’s 

allocution, and the factors set forth in the Sentencing Code, and the court put 

its reasons for the sentence on the record. The trial court did not find credible 

Hetrick’s claimed mitigating factor, that is, that he was having a bad day and 

the conduct would not occur again. As it did not find it credible, it did not err 
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in not using such a factor as a mitigating factor. We conclude the trial court 

did not abuse its discretion in sentencing Hetrick to an aggregate sentence of 

20 to 84 months’ imprisonment.

II. Right to Review PSI

Hetrick argues the trial court erred in denying his counsel’s request to 

share a copy of the PSI with Hetrick. He argues the PSI form states that “the 

offender has no right to personally review the report.” Hetrick’s Br. at 12. He 

argues the Sentencing Code presumes a defendant will have access to the PSI 

and that a defendant’s counsel should be permitted to disclose the PSI unless 

specifically ordered not to disclose it. Id. at 13. He also argues that the trial 

court’s policy of prohibiting a defendant from having a copy is “senseless,” 

because the court “allows both the prosecuting and defense attorneys to 

obtain a copy,” and “[d]efense counsel is allowed to discuss the PSI at length 

with the defendant, and even to read the PSI to the defendant in its entirety.” 

Id. at 16.

Pennsylvania Rule of Criminal Procedure 703 provides: 

(A) All pre-sentence reports and related psychiatric and 

psychological reports shall be confidential, and not of public 

record. They shall be available to the sentencing judge, and 

to:

. . .

(2) the attorney for the Commonwealth and counsel for the 

defendant, for inspection and copying, unless the 

sentencing judge orders that they be available for inspection 

only.
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Pa.R.Crim.P. 703(A)(2). Further, in Commonwealth v. Phelps, 301 A.2d 

678 (Pa. 1973), the Pennsylvania Supreme Court adopted the ABA Project on 

Minimum Standards for Criminal Justice, Standards Relating to Sentencing 

Alternatives and Procedures § 4.4 (Approved Draft, 1968), which provides:

Presentence report: Disclosure; parties.

(a) Fundamental fairness to the defendant requires that the 

substance of all derogatory information which adversely 

affects his interests and which has not otherwise been 

disclosed in open court should be called to the attention of 

the defendant, his attorney, and others who are acting on 

his behalf.

(b) This principle should be implemented by requiring that 

the sentencing court permit the defendant’s attorney, or the 

defendant himself if he has no attorney, to inspect the 

report. The prosecution should also be shown the report if it 

is shown to the defense. In extraordinary cases, the court 

should be permitted to except from disclosure parts of the 

report which are not relevant to a proper sentence, 

diagnostic opinion which might seriously disrupt a program 

of rehabilitation, or sources of information which has been 

obtained on a promise of confidentiality. In all cases where 

parts of the report are not disclosed under such authority, 

the court should be required to state for the record the 

reasons for its action and to inform the defendant and his 

attorney that information has not been disclosed. The action 

of the court in excepting information from disclosure should 

be subject to appellate review.

Phelps, 301 A.2d at 679.

In Commonwealth v. Kessinger, 441 A.2d 758, 759 (Pa.Super. 

1982), the appellant claimed the trial court abused its discretion in refusing 

to allow him to inspect the pre-sentence report. We concluded that the record 

did not support his contention, noting the appellant’s counsel had full access 

to the report, and noting the appellant did not contend counsel failed to review 
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it with him. Id. at 759-60. We explained this was in compliance with the 

applicable rule of criminal procedure,

5 Phelps, and the ABA Standards 

adopted therein. Id.

Here, as in Kessinger, Hetrick’s counsel reviewed a copy of the PSI and 

a review of the transcript and his appellate brief reveals counsel reviewed the 

PSI with Hetrick.6 Accordingly, we conclude that Hetrick’s claim lacks merit. 

Judgment of sentence affirmed.

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5 Rule 1404 previously governed the disclosure of PSIs and provided:

Disclosure of Reports

(a) All psychiatric and pre-sentence reports shall be 

confidential records. They shall be available only to:

(1) the sentencing judge;

(2) the attorney for the Commonwealth and counsel 

for the defendant for inspection, only, on conditions 

stated by the sentencing judge, provided that counsel 

shall not be supplied with copies of such reports unless 

ordered by the sentencing judge, but counsel shall be 

given the opportunity to comment thereon before the 

imposition of sentence[.]

Pa.R.Crim.P. 1404 (rescinded Jan. 1, 1992).

6 Commonwealth v. Herrick, cited by the trial court and in the PSI, 

addresses a defendant’s right to access the PSI of a witness testifying against 

him. 660 A.2d 51, 55-58 (Pa.Super. 1995). It does not address the 

defendant’s right to access his own PSI.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/28/2019