J-S04046-16

2016 PA S uper 41

* Retired Senior Judge assigned to the Superior Cou rt. COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JAMES PAUL FINNECY, Appellant No. 1871 WDA 2014

Appeal from the Judgment of Sentence October 7, 201 4 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000498-2013

CP-61-CR-0000688-2009

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ. OPINION BY BOWES, J.: FILED FEBRUARY 18, 2016 Appellant James Finnecy appeals from the aggregate judgment of sentence of twelve and one-half to twenty-five year s incarceration. After careful review, we affirm. The instant appeal is the latest of Appellant’s mu ltiple appearances before the trial court relating to his underlying o ffenses. Appellant was initially sentenced on January 22, 2010, to a maxim um of two years incarceration for counts of unauthorized use of a m otor vehicle and theft by unlawful taking, as well as two consecutive terms o f 18 months probation for escape, resisting arrest, forgery, and identity the ft. Upon concluding his term of incarceration on October 26, 2011, Appellan t was placed on Venango County Probation. He was assigned to an officer on October 30, 2011, with a maximum date of supervision of October 26, 2014. The next severalJ-S04046-16

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months saw multiple probation violations and failed attempts at treatment for Appellant’s recurring drug use, all supervised by the trial court. In response to his penultimate violation, the trial co urt revoked Appellant’s probation and sentenced him to twelve to twenty-fou r months incarceration in the Venango County Jail. His subsequent conduct was summarized by the trial court as follows.

On April 10, 2014, [Appellant] was released from Ve nango County Prison and paroled to the Oxford House locat ed at 1417 Chestnut Street, Franklin, PA. Thereafter, [Appell ant] began his drug and alcohol treatment with Venango County Subs tance Abuse program. [Appellant] also held employment fo r a short period of time at Venango County Steel. On May 30, 2014, a Special Field Report was prepared for Venango Count y Court requesting a bench warrant to declare [Appellant] a n absconder. On June 4, 2014, a bench warrant was issued by Vena ngo County Court. Constable Craig Westover and the Oil City Police Department arrested [Appellant] on July 6, 2014. On July 18, 2014, the Commonwealth filed a petition to revoke [Appellant’s] probation/parole. On August 2 8, 2014, [Appellant] appeared at a hearing to determine whet her his probation should be revoked. [Appellant] was repre sented by counsel, Jeffrey Misko, Esq. With the advice of co unsel in open court, [Appellant] waived Gagnon I and proceeded to Gagnon II . At Gagnon II , [Appellant] admitted that while on parole and probation status[,] he changed his residence, f ailed to report, violated curfew, used crack cocaine, associ ated with drug users or dealers, and consumed alcohol. As these w ere material violations of the conditions of parole and probatio n, parole and probation were revoked. [Appellant] appeared for r esentencing on October 7, 2014, and was sentenced to 121⁄2 years t o 25 years in a state institution of the Department of C orrections. [The trial court] determined at sentencing that [Ap pellant] was not RRRI eligible. Trial court opinion, 11/18/14, at unnumbered pages 4-5 (emphasis added).J-S04046-16

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Appellant filed a 1925(b) concise statement of err ors complained of on appeal, and the trial court declined to author a 19 25(a) opinion, opting instead to rely upon its November 18, 2014 Opinion in which it denied Appellant’s post-sentence motion. The matter is no w ready for our review. 1 Appellant levels three issues for our consideration : 1. Whether the trial court erred as a matter of law or abused its discretion in failing to order a pre-sentence inves tigation report (PSI) as required by Pennsylvania Rule of Criminal Procedure 702(A)(2)(A) as [Appellant] was facing a sentence o f one year or more? 2. Whether the trial court erred as a matter of law or abused its discretion in determining that [Appellant] is not e ligible for the Recidivism Risk Reduction Incentive (RRRI) program and, therefore, denying his eligibility for said program ? 3. Whether the trial court allowed bias, prejudice or ill will in crafting an emotionally motivated sentence that was manifestly unreasonable in relation to the previous sentences related to [Appellant] in these cases and whether the sentence imposed by this Honorable Court is contrary to the fundamental norms underlying the sentencing process? Appellant’s brief at unnumbered page 1. Appellant’s first and third issues challenge the d iscretionary aspects of his sentence. He must therefore petition for permi ssion to appeal those

____________________________________________ 1 While we have the benefit of a thoughtful opinion from the Honorable Robert Boyer to inform our disposition, we note tha t the Commonwealth declined to file a brief in this matter. We regret that the Venango County District Attorney did not see fit to weigh in on th is issue, which had not previously been addressed in a published decision b y this Court and has recently been examined in reference to another offe nse by the Pennsylvania Supreme Court.J-S04046-16

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issues, as “the right to pursue such a claim is not absolute.” Commonwealth v. Rhoades , 8 A.3d 912 (Pa.Super. 2010). Additionally,

When challenging the discretionary aspects of the s entence imposed, an appellant must present a substantial qu estion as to the appropriateness of the sentence. Two requireme nts must be met before we will review this challenge on its mer its. First, an appellant must set forth in his brief a concise sta tement of the reasons relied upon for allowance of appeal with re spect to the discretionary aspects of a sentence. Second, the a ppellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Cod e. Id

. Appellant provided as part of his brief a proper Pa .R.A.P. 2119(f) concise statement for reasons relied upon for allow ance of appeal, and each issue addressed in his brief is sufficiently stated and explained. We therefore individually examine each to determine if it presents a substantial question that warrants our review. If an issue pre sents a substantial question, then our “scope of review in an appeal fo llowing a sentence imposed after probation revocation is limited to th e validity of the revocation proceedings and the legality of the judgment of sen tence.” Commonwealth v. Ferguson , 893 A.2d 735 (Pa.Super. 2006). We further note that “[t]he imposition of sentence following t he revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal.” Commonwealth v. Simmons

, 56 A.3d 1280, 1283-84 (Pa.Super. 2012).J-S04046-16

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At his first issue, Appellant argues that the trial court erred in failing to order a pre-sentence investigation (“PSI”) report p rior to his sentencing. That failure deprived the court of “information reg arding [Appellant] and many factors that could aid the court in developing a sentence upon the individual needs of [Appellant].” Appellant’s brie f at 4. As the trial court neither ordered a PSI report nor explained its deci sion on the record, Appellant alleges that the trial court violated Pa. R.Crim.P. 702(A)(2)(a) (“The sentencing judge shall place on the record th e reasons for dispensing with the pre-sentence investigation report if the j udge fails to order a presentence report” where “incarceration for one year or more is a possible disposition under the applicable sentencing statute s[.]”). Accordingly, Appellant argues that he is entitled to resentencin g because a proper PSI report would have provided essential information th at would have allowed the trial court “to view [Appellant’s] case with th e most recent information related to [Appellant] possible.” Id . at 5. Appellant relies on Commonwealth v. Flowers , 950 A.2d 330 (Pa.Super. 2008), in support of his argument. In Flowers , this Court held that a sentencing court abused its discretion in fa iling to either order a PSI report or explain on the record its reasons for doi ng so. We noted specifically that the court’s offering of only a li mited colloquy with the defendant at his sentencing hearing was inadequate, even in light of that court’s familiarity with the defendant due to his f requent appearances beforeJ-S04046-16

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it. Importantly, our holding advanced a policy to “guard against potential for recidivism” by requiring a trial court to become fu lly informed regarding defendant’s history and background or to explain ad equate reasons for its refusal to do so. Id . at 334. The Commonwealth did not file a brief in this matte r, and the trial court rested upon its denial of Appellant’s post-se ntence motion rather than author a separate 1925(a) opinion. In that denial, the trial court explained that it “did indeed apprise itself sufficiently of [Appellant’s] history” and that it relied upon a PSI report prepared in anticipatio n of Appellant’s March 7, 2014 sentencing hearing, as well as victim impact s tatements and the specific charges against Appellant. Trial court op inion, 11/18/14, at unnumbered page 6. In the months following that he aring, the trial court “actively explored the defendant’s character and hi s potential response to rehabilitation programs.” Id . at 7 (citation omitted). We initially note that this challenge presents a s ubstantial question. See Commonwealth v. Kelly , 33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n appellant's allegation that the trial court imposed sentence without considering the requisite statutory factors or stat ing adequate reasons for dispensing with a pre-sentence report [raises] a su bstantial question.”). We therefore address the merits of his argument. Although Appellant is correct in his assertion that the statutory language requiring a PSI report is clear, he ignore s the fact that this CourtJ-S04046-16

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has provided “some latitude in how this requirement is fulfilled.” Commonwealth v. Carrillo-Diaz , 64 A.3d 722, 726 (Pa.Super. 2013) (citing Flowers , supra at 333). Indeed, case law does not require a PSI report in all instances. Commonwealth v. Goggins , 748 A.2d 721 (Pa.Super. 2000) ( en banc ). The essential inquiry is instead whether the sentencing court was “apprised of comprehensive inf ormation to make the punishment fit not only the crime but also the pers on who committed it.” Id

. While Flowers is instructive, the analysis contained therein is inapplicable to the instant matter. The sentencing court in Flowers , which was familiar with the defendant’s conduct, had no PSI report and instead relied upon its own knowledge of the defendant and his history. To the contrary, the sentencing court herein ordered a PSI report in January 21, 2014, in advance of Appellant’s March 7, 2014 sente ncing on the charges that underlie this appeal. In addition to the cour t’s “sufficient knowledge of [Appellant’s] character, background, and his potent ial response to supervision programs,” the court recognized that Ap pellant violated the conditions of his probation just seven months after his March 7, 2014 sentencing. Trial court opinion, 11/18/14, at unnu mbered page 7. The PSI report, in addition to the trial court’s fa miliarity with Appellant’s past criminal conduct and the extensive discussions of Appellant’s rehabilitative options, goals, and need s on the record, renderedJ-S04046-16

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the trial court sufficiently informed such that its sentence reflected the unique nature of his character and the various offe nses. Since the PSI report was just seven months old and Appellant pres ented no argument or evidence of changed circumstances that warranted an updated report, we are satisfied that the sentencing court was suffici ently apprised of the unique facts of the case to render an individually tailore d punishment. Therefore, we affirm the trial court at Appellant’s first issu e. Appellant next challenges the trial court’s finding that he is ineligible for the RRRI. In order to be eligible for RRRI, a defendant, inter alia , must not have committed one of several crimes or have a history of present or past violent behavior. Those crimes rendering a de fendant RRRI ineligible include a history of violence, sexual offenses, per sonal injury crimes, and offenses involving deadly weapons. See 61 Pa.C.S. § 4503. Appellant, having not been convicted of any crimes enumerated in the RRRI statute and contending he has no history of violence, argue s that the court’s finding of ineligibility was erroneous. He specifically ch allenges the trial court’s classification of “resisting arrest” as a violent c rime, which excluded him from eligibility for RRRI. 2

____________________________________________ 2 Though Appellant has not challenged whether his so le conviction for resisting arrest is sufficient to show a history of violence, we recognize this Court’s recent decision in Commonwealth v. Cullen-Doyle , 2016 PA Super (Footnote Continued Next Page)J-S04046-16

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In its opinion, the trial court explained that resi sting arrest, under Pennsylvania law, necessarily includes conduct that presents serious potential risk of physical injury to another. Rely ing on United States v. Stinson , 592 F.3d 460 (3d Cir. 2010), the court further re cognized that resisting arrest involves challenging the authority of a police officer, who is charged with effectuating apprehension and is most likely armed, and is likely to result in injury or, at the very least, r isk of injury. Trial court opinion, 11/18/14, at unnumbered page 8. As RRRI i s available only to those who do “not demonstrate a history of present or past violent behavior and because the offense of resisting arrest indicat es such violent behavior,” the court maintains that its finding that Appellant is ineligible for RRRI is
proper. Id

. A challenge to a court's failure to impose an RRRI sentence implicates the legality of the sentence. Commonwealth v. Tobin , 89 A.3d 663, 670 (Pa.Super. 2014). “It is legal error to fail to im pose a RRRI minimum on an eligible offender.” Id . Thus, as “statutory interpretation implicates a question of law, our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Gerald , 47 A.3d 858, 859 (Pa.Super. 2012) (citation omitted).

(Footnote Continued) _______________________ 10 (Pa.Super. filed January 21, 2016), which held t hat one instance of misconduct may constitute a “history” for RRRI purp oses.J-S04046-16

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Section 4503 of the RRRI Act defines “eligible offe nder” in relevant part as follows: A defendant or inmate convicted of a criminal offen se who will be committed to the custody of the department and who meets all of the following eligibility requirements: (1) Does not demonstrate a history of present or past violent behavior. * * * (3) Has not been found guilty of or previously convicted of or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the act of November 24, 1998 (P. L. 882, No. 111),[ ] known as the Crime Victims Act, except for an offense und er 18 Pa.C.S. § 2701 (relating to simple assault) when the offense is a misdemeanor of the third degree, o r an equivalent offense . . . . 61 Pa.C.S. § 4503(1), (3).
In Commonwealth v. Chester , 101 A.3d 56, 57 (Pa. 2014), the Pennsylvania Supreme Court resolved whether a convi ction for first-degree burglary demonstrates “violent behavior” under Sect ion 4503(1) as a matter of law. Though the Chester Court observed that “the RRRI Act does not define what constitutes a ‘history of present or pa st violent behavior,’” it noted that Section 4503(2)-(6) enumerates crimes “t hat render an offender ineligible to receive a reduced minimum sentence[.] ” Id. at 58, 63. Although burglary is not included as a per se disqualifying crime, the Court construed “Section 4503(1) as a broad, ‘catchall’ p rovision” that coveredJ-S04046-16

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“violent behaviors not otherwise identified in the RRRI Act’s definition of ‘eligible offender.’” Id. The Chester

Court held that a first-degree burglary conviction renders a defendant ineligible to receive an RRRI-reduced m inimum sentence under Section 4503(1). Id

. at 65. The Court reviewed the treatment of the offense at law as well as the structure and languag e of the burglary statute. See id

. at 64–65. It observed that “burglary has been tre ated as a crime of violence dating back to the common law of England,” which “punished burglars with death because of the great public pol icy involved in shielding the citizenry from being attacked in their homes an d in preserving domestic tranquility.” Id

. at 64 (brackets removed). Tracing the treatment o f burglary at law, the Court recognized that “all bur glaries are crimes of violence for the purposes of the significant histor y of violent felony convictions aggravating circumstance for capital se ntence.” Id

. (discussing 42 Pa.C.S. § 9711(d)(9)). Moreover, first-degree b urglary is expressly listed as a crime of violence under Pennsylvania's recidiv ist sentencing statute, as well as a disqualifying offense for boot camp. Id

. (discussing 42 Pa.C.S. § 9714(g) and 61 Pa.C.S. § 3903). The Chester

Court further reviewed the text of the burglary st atute and discerned a distinction between first and secon d degree offenses, “as first-degree burglary contemplates the potential fo r confrontation, whereas second-degree burglary does not.” Id

. (distinguishing the finding inJ-S04046-16

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Commonwealth v. Gonzalez , 10 A.3d 1260 (Pa.Super. 2010), that second-degree burglary does not render an individua l per se ineligible for RRRI). The Court emphasized a conviction for first -degree burglary imputed a risk of confrontation and violence because the st ructure invaded was either adapted for overnight use or an individual was pres ent at the time of entry. Id

. at 65. The Chester

Court, in holding that Section 4503(1) encompasses all “‘violent behavior’ in addition to the enumerated c rimes contained in Section 4503(2)-(6)[,]” explicitly rejected the defendant's application of expressio unius est exclusio alterius , a principle of statutory interpretation holding that, when one or more things of a class are expres sly stated, others of the same class are to be excluded

. Id

. at 63. Furthermore, the Court dismissed the defendant's argument that his prior burglaries did not involve violent behavior, concluding: “it is an offender's non-priv ileged entry, which ‘invit[es] dangerous resistance’ and, thus, the pos sibility of the use of deadly force against either the offender or the victim, th at renders burglary a violent crime, not the behavior that is actually ex hibited during the burglary.” Id

. (citation omitted). In light of the guidance from Chester , we consider whether a prior conviction for resisting arrest falls within the me aning of “violent behavior” as used in Section 4503(1), rendering an offender i neligible for RRRI. Section 5104 of the Crimes Code provides:J-S04046-16

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A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effe cting a lawful arrest or discharging any other duty, the person cr eates a substantial risk of bodily injury to the public ser vant or anyone else, or employs means justifying or requiring subs tantial force to overcome the resistance. 18 Pa.C.S. § 5104 (emphasis added). Notably, resis ting arrest contains alternative bases for liability, i.e. , acts creating a substantial risk of injury or requiring substantial force to overcome. See Commonwealth v. Thompson , 922 A.2d 926, 928 (Pa.Super. 2007). The use of th e term “substantial” is consistent with the 1972 Official Comment that “this section changes existing law somewhat by not extending to m inor scuffling which occasionally takes place during an arrest.” 18 Pa. C.S. § 5104, 1972 Official Comment. Similarly, the Model Penal Code drafters indicated their suggested “language exempts from liability nonviole nt refusal to submit to arrest and such minor acts of resistance as running from a policeman or trying to shake free of his grasp.” Model Penal Co de § 242.1, Explanatory Note for Sections 242.1–242.8. Appellant contends that “the actual crime of resis ting arrest . . . does not have to contain any violent act. The mere acti on of laying oneself on the ground could incur a citizen the charge of resistin g arrest.” Appellant’s brief at unnumbered 11. However, that conduct is already excluded by the very definition of the statute. An individual who has b een convicted of resisting arrest necessarily created a substantial risk of bo dily injury or required anJ-S04046-16

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officer to use substantial force. We cannot agree with Appellant that a conviction for resisting arrest is not “violent beh avior” for the purposes of the RRRI statute as understood and analyzed by the Chester Court. See Chester

, 101 A.3d at 64–65 (noting first-degree burglary is a crime of violence because of the potential for confrontation and possibility of deadly force). See also Stinson , 592 F.3d at 466 (“[T]he crime of resisting arrest in Pennsylvania does not encompass passive resisten ce[.]”).
In Commonwealth v. Clark , 761 A.2d 190 (Pa.Super. 2000), we sustained a conviction for resisting arrest based o n the following: The Carlisle Police responded to a fight in front o f the Carlisle Tavern on South Hanover Street, just south of the C ourthouse. The defendant was first observed in a crosswalk. He then approached Officer Kevin Roland at which time he wa s screaming profanity. When Officer Roland attempted to arrest the defendant for disorderly conduct, the defendant avo ided arrest by walking backwards and walking in circles. From t ime to time, the defendant would assume a fighting stance. The o fficer then sprayed the defendant with pepper spray in an effor t to subdue him. The defendant then began running down South Ha nover Street in the travel lanes of the roadway. The offi cer ran after the defendant until Mr. Clark slipped on the wet ro adway and fell down. The officer then turned the defendant over on to his stomach and handcuffed him. Clark , 761 A.2d at 191. In light of that record, the Clark Court concluded that “substantial force was thus required to overco me [the defendant's] resistance to the arrest.” Id

. at 193–94.
In Thompson , supra , the defendant and her husband were involved in an argument with employees and another driver in side a parking garage.J-S04046-16

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Thompson , 922 A.2d at 927. Two officers on horseback arrive d and the following occurred: Officer Deborah Ewing heard profanities as she appr oached the garage. Once inside, she observed [the defendant's unoccupied] vehicle by the booth. [The defendant] was standing behind the car, and [the defendant's husband] was shouting at the driver of the other vehicle. When Officer Ewing attempted to get [the defendant's husband’s] attention by calling and whi stling, he began flailing his arms and hitting the officer. Wh ile trying to control her horse, Officer Ewing informed [the defe ndant's husband] that he was under arrest.... [The defendan t] approached Officer Ewing, yelling and waving her ha nds in an attempt to scare the horse. [The defendant] hit the horse's nose, causing the animal to rear up. Officer Canfield then arrived on the scene, dismoun ted his horse to [defuse] the activity among [the defendant], Off icer Ewing, and Officer Ewing's horse. As the couple attempted to re-enter their vehicle, Officer Canfield yelled, pushed them against the car, threw them to the ground, and a struggle ensue d. [The defendant] and her husband interlocked their arms a nd legs and refused to respond to Officer Canfield's verbal com mands to release their hands. The officers attempted to pry the couple apart to handcuff and place them in custody. After struggling with the officers for a few minutes, [the defendant ] was eventually disengaged from Mr. Thompson and handcuf fed after pepper spray was deployed. Id

. The defendant was convicted of resisting arrest, disorderly conduct, and taunting a police animal. Id

. On appeal, the defendant in Thompson challenged her resisting arrest conviction and argued “her ‘passive’ resistance to the officers' attempts to place her in custody belie[d] any intent to strike or use force against them.” Id

. at 928. This Court rejected that argument, relyin g in part upon Clark

. Specifically, we observed, “Officer Ewing ... strug gled to pull [the defendant]J-S04046-16

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apart from her husband with whom she interlocked he r arms and legs” despite the officers' commands to disengage from he r husband. Id

. We further noted “Officer Canfield testified that his attempts to restrain the couple to place them under arrest left him ‘exhaust ed.’” Id

. (citation omitted). Thus, the Thompson Court concluded the defendant's “use of passive resistance requiring substantial force to o vercome provided sufficient evidence for upholding the resisting arrest convict ion.” Id

. Chester

precludes this Court from engaging in a case-by-ca se analysis of the facts to determine whether a per se disqualifying crime imputes violent behavior. See Chester , supra at 65. Tellingly, however, our decisions in Clark

and Thompson reveal that conduct constituting resisting arrest, even by passive resistance, requires such a substantial use of force that an officer or offender may be harmed, thereby causing significant risk of injury, and invites the same potential for confront ation that greatly concerned the High Court in considering the offense of first-degree burglary. Indeed, the Chester Court was concerned with “the possibility of the use of deadly force against either the offender or the victim” and “not the behavior that is actually exhibited” during the com mission of the crime. Id

. (emphasis added). We further recognize that, relying on decisions by our courts, the federal courts have found that the essence of resis ting arrest is the creation of a substantial risk of bodily injury and thus exp licitly constitutes a “crimeJ-S04046-16

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of violence.” See Stinson , 592 F.3d at 466 (citing Commonwealth v. Miller , 475 A.2d 145, 146 (Pa.Super. 1984) (noting that re sisting arrest requires the creation of substantial risk, not that an offender show “aggressive use of force such as striking or kickin g of the officer”)). The trial court asserts that, even if resisting arr est is not enumerated as disqualifying offense, it should be considered a violent crime that permits a trial court to find that a defendant has a histor y of violence such that he is ineligible for RRRI. The trial court relied upon Stinson , supra , to support its finding that resisting arrest is a violent crim e. For the following reasons, we agree that Stinson is persuasive. Under the federal sentencing guidelines, a defendan t is considered a “career offender” if in relevant part he has “at le ast two prior felony convictions of ... a crime of violence [.]” U.S.S. G. § 4B1.1. The guidelines define a “crime of violence” as “any offense under federal or state law, punishable by a imprisonment exceeding one year, th at ... otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).
In Stinson , the Third Circuit held that resisting arrest was a categorical “crime of violence” for sentencing purp oses because “it involves conduct that presents a serious potential risk of p hysical injury to another.” Stinson , 592 F.3d at 466. The Court reasoned:J-S04046-16

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Although the language of Pennsylvania's resisting a rrest statute “does not require the aggressive use of force such as striking or kicking of the officer,” we have found no decision under Pennsylvania law that affirmed a conviction for res isting arrest based on a defendant's inaction or simply “lying do wn” or “going limp.” Counsel arguing before us on this appeal cou ld cite to none in response to our questions. In fact, there a re several cases in which Pennsylvania courts have recognized that resisting arrest does not extend to “minor scuffle[ s] incident to an arrest.” It is only when a defendant who was “s truggling and pulling, trying to get away from [the arresting off icer who was physically restraining him],” that he was convicted of resisting arrest, and such cases are rare. Id

. (citations omitted). The Stinson Court rejected the defendant's argument, which parallels the one presented here, t hat under Thompson , a Pennsylvania conviction could reflect “active” or “ passive” resistance. In doing so, the Stinson Court was called to rule on the implication of appellant’s resisting arrest conviction on his fede ral sentencing guideline score and specifically whether it is a “crime of vi olence,” a task similar to the one presented to this Court. Thus, we only look to Stinson and other federal cases for guidance as persuasive authority with respect to the Commonwealth’s RRRI statute. Appellant did not present, and the trial court did not address, any secondary argument that Appellant is ineligible for RRRI. N.T. Sentencing, 10/7/14, at 44. We therefore conclude that Appella nt’s prior conviction for resisting arrest demonstrates “a history of present or past violent behavior” for the purposes of determining RRRI eligibility. Accordingly, we agree with the trial court’s finding in this respect and affir m.J-S04046-16

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We move to Appellant’s third argument that his sent ence was “contrary to the fundamental norms underlying the s entencing process” because all of his crimes were non-violent offenses “motivated by [his] addiction to illegal drugs.” Appellant’s brief at unnumbered 13. Specifically, he argues that the sentencing court did “not take i nto account the goals of individualized sentencing that takes into account t he individual’s needs.” Id

. By alleging that the sentencing court did not adequ ately consider all of the requisite factors in fashioning Appellant’s sen tence, he presents a substantial question. See , e.g. , Commonwealth v. Bricker , 41 A.3d 872, 876 (2012) (recognizing that an appellate court is to determine “whether the [sentencing] court imposed an individualized senten ce) (citation omitted). He complains that the sentencing court was improper ly motivated by its personal frustration with Appellant, his many unsuc cessful attempts at rehabilitation, and the frequency with which he int eracts with the court. As discussed supra , the sentencing court had the benefit of a recent PSI report. “[W]here the sentencing judge had the benefit of a presentence investigation report, it will be presumed that he o r she was aware of the relevant information regarding the defendant's char acter and weighed those considerations along with mitigating statutory fact ors.” Commonwealth v. Clarke , 70 A.3d 1281, 1287 (2013), appeal denied , 85 A.3d 481 (Pa. 2014). Further, in issuing Appellant’s sentence, the court specifically addressed his rehabilitative needs and history, as well as previous violationsJ-S04046-16

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and punishments. In its frustration with Appellant ’s repeated misconduct and inability to reform, the sentencing court demon strated that it had intimate familiarity with Appellant and his needs a nd that the sentence was imposed both to vindicate the authority of the cour t and because Appellant had “repeatedly and significantly violated conditio ns of supervision, and most recently was an absconder from supervision. T he conduct of [Appellant] indicates that [he] will commit another crime if not imprisoned.” N.T. Sentencing, 10/7/14, at 44. In light of the sentencing court’s access to a curr ent PSI report and the explanation provided to Appellant for his sentence at his hearing, we cannot find that the court abused its discretion in imposi ng its sentence of twelve and one-half to twenty-five years incarceration. Judgment of sentence affirmed. Jurisdiction relinq uished. Judge Olson joins the majority. Judge Strassburger files a Concurring Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/18/2016J-S04046-16

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