J-S04046-16 

 2016 PA Super 41 

*

 Retired Senior Judge assigned to the Superior Court. 

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, 2014 

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 years incarceration. After 

careful review, we affirm. 

 The instant appeal is the latest of Appellant’s multiple appearances 

before the trial court relating to his underlying offenses. Appellant was 

initially sentenced on January 22, 2010, to a maximum of two years 

incarceration for counts of unauthorized use of a motor vehicle and theft by 

unlawful taking, as well as two consecutive terms of 18 months probation for 

escape, resisting arrest, forgery, and identity theft. Upon concluding his 

term of incarceration on October 26, 2011, Appellant 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 several 
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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 court revoked Appellant’s 

probation and sentenced him to twelve to twenty-four 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 Venango 

County Prison and paroled to the Oxford House located at 1417 

Chestnut Street, Franklin, PA. Thereafter, [Appellant] began his 

drug and alcohol treatment with Venango County Substance 

Abuse program. [Appellant] also held employment for a short 

period of time at Venango County Steel. On May 30, 2014, a 

Special Field Report was prepared for Venango County Court 

requesting a bench warrant to declare [Appellant] an absconder. 

On June 4, 2014, a bench warrant was issued by Venango 

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 28, 2014, 

[Appellant] appeared at a hearing to determine whether his 

probation should be revoked. [Appellant] was represented by 

counsel, Jeffrey Misko, Esq. With the advice of counsel 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, failed to 

report, violated curfew, used crack cocaine, associated with drug 

users or dealers, and consumed alcohol. As these were material 

violations of the conditions of parole and probation, parole and 

probation were revoked. [Appellant] appeared for resentencing 

on October 7, 2014, and was sentenced to 121⁄2 years to 25 

years in a state institution of the Department of Corrections. 

[The trial court] determined at sentencing that [Appellant] was 

not RRRI eligible. 

Trial court opinion, 11/18/14, at unnumbered pages 4-5 (emphasis added). 
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 Appellant filed a 1925(b) concise statement of errors complained of on 

appeal, and the trial court declined to author a 1925(a) opinion, opting 

instead to rely upon its November 18, 2014 Opinion in which it denied 

Appellant’s post-sentence motion. The matter is now 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 investigation report 

(PSI) as required by Pennsylvania Rule of Criminal Procedure 

702(A)(2)(A) as [Appellant] was facing a sentence of 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 eligible 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 discretionary aspects of 

his sentence. He must therefore petition for permission to appeal those 

____________________________________________ 

1

 While we have the benefit of a thoughtful opinion from the Honorable 

Robert Boyer to inform our disposition, we note that 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 this issue, which had not 

previously been addressed in a published decision by this Court and has 

recently been examined in reference to another offense by the Pennsylvania 

Supreme Court. 
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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 sentence 

imposed, an appellant must present a substantial question as to 

the appropriateness of the sentence. Two requirements must be 

met before we will review this challenge on its merits. First, an 

appellant must set forth in his brief a concise statement of the 

reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence. Second, the appellant must 

show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code. 

Id. 

Appellant provided as part of his brief a proper Pa.R.A.P. 2119(f) 

concise statement for reasons relied upon for allowance 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 presents a substantial 

question, then our “scope of review in an appeal following a sentence 

imposed after probation revocation is limited to the validity of the revocation 

proceedings and the legality of the judgment of sentence.” 

Commonwealth v. Ferguson, 893 A.2d 735 (Pa.Super. 2006). We further 

note that “[t]he imposition of sentence following the 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). 
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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 prior to his sentencing. 

That failure deprived the court of “information regarding [Appellant] and 

many factors that could aid the court in developing a sentence upon the 

individual needs of [Appellant].” Appellant’s brief at 4. As the trial court 

neither ordered a PSI report nor explained its decision 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 the reasons for dispensing 

with the pre-sentence investigation report if the judge fails to order a presentence report” where “incarceration for one year or more is a possible 

disposition under the applicable sentencing statutes[.]”). Accordingly, 

Appellant argues that he is entitled to resentencing because a proper PSI 

report would have provided essential information that would have allowed 

the trial court “to view [Appellant’s] case with the 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 failing to either order a PSI 

report or explain on the record its reasons for doing so. We noted 

specifically that the court’s offering of only a limited colloquy with the 

defendant at his sentencing hearing was inadequate, even in light of that 

court’s familiarity with the defendant due to his frequent appearances before 
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it. Importantly, our holding advanced a policy to “guard against potential for 

recidivism” by requiring a trial court to become fully informed regarding 

defendant’s history and background or to explain adequate reasons for its 

refusal to do so. Id. at 334. 

The Commonwealth did not file a brief in this matter, and the trial 

court rested upon its denial of Appellant’s post-sentence 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 anticipation of Appellant’s March 7, 

2014 sentencing hearing, as well as victim impact statements and the 

specific charges against Appellant. Trial court opinion, 11/18/14, at 

unnumbered page 6. In the months following that hearing, the trial court 

“actively explored the defendant’s character and his potential response to 

rehabilitation programs.” Id. at 7 (citation omitted). 

 We initially note that this challenge presents a substantial 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 stating adequate reasons for 

dispensing with a pre-sentence report [raises] a substantial 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 ignores the fact that this Court 
J-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 information to make the 

punishment fit not only the crime but also the person 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 sentencing on the charges 

that underlie this appeal. In addition to the court’s “sufficient knowledge of 

[Appellant’s] character, background, and his potential response to 

supervision programs,” the court recognized that Appellant violated the 

conditions of his probation just seven months after his March 7, 2014 

sentencing. Trial court opinion, 11/18/14, at unnumbered page 7. 

The PSI report, in addition to the trial court’s familiarity with 

Appellant’s past criminal conduct and the extensive discussions of 

Appellant’s rehabilitative options, goals, and needs on the record, rendered 
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the trial court sufficiently informed such that its sentence reflected the 

unique nature of his character and the various offenses. Since the PSI 

report was just seven months old and Appellant presented no argument or 

evidence of changed circumstances that warranted an updated report, we 

are satisfied that the sentencing court was sufficiently apprised of the unique 

facts of the case to render an individually tailored punishment. Therefore, 

we affirm the trial court at Appellant’s first issue. 

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 defendant RRRI ineligible 

include a history of violence, sexual offenses, personal 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, argues that the court’s finding 

of ineligibility was erroneous. He specifically challenges the trial court’s 

classification of “resisting arrest” as a violent crime, which excluded him 

from eligibility for RRRI.2

____________________________________________ 

2

 Though Appellant has not challenged whether his sole 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) 
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In its opinion, the trial court explained that resisting arrest, under 

Pennsylvania law, necessarily includes conduct that presents serious 

potential risk of physical injury to another. Relying on United States v. 

Stinson, 592 F.3d 460 (3d Cir. 2010), the court further recognized 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, risk of injury. Trial court 

opinion, 11/18/14, at unnumbered page 8. As RRRI is available only to 

those who do “not demonstrate a history of present or past violent behavior 

and because the offense of resisting arrest indicates 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 impose 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 that one instance of 

misconduct may constitute a “history” for RRRI purposes. 
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Section 4503 of the RRRI Act defines “eligible offender” in relevant 

part as follows: 

A defendant or inmate convicted of a criminal offense who will be 

committed to the custody of the department and who meets all 

of the following eligibility requirements: 

(1) Does not demonstrate a history of present or 

past violent behavior. 

* * * 

(3) Has not been found guilty of or previously 

convicted of or adjudicated delinquent for or an 

attempt or conspiracy to commit a personal injury 

crime as defined under section 103 of the act of 

November 24, 1998 (P. L. 882, No. 111),[ ] known 

as the Crime Victims Act, except for an offense under 

18 Pa.C.S. § 2701 (relating to simple assault) when

the offense is a misdemeanor of the third degree, or 

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 conviction for first-degree 

burglary demonstrates “violent behavior” under Section 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 past violent behavior,’” it 

noted that Section 4503(2)-(6) enumerates crimes “that 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’ provision” that covered 
J-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 minimum sentence under 

Section 4503(1). Id. at 65. The Court reviewed the treatment of the 

offense at law as well as the structure and language of the burglary statute. 

See id. at 64–65. It observed that “burglary has been treated as a crime of 

violence dating back to the common law of England,” which “punished 

burglars with death because of the great public policy involved in shielding 

the citizenry from being attacked in their homes and in preserving domestic 

tranquility.” Id. at 64 (brackets removed). Tracing the treatment of 

burglary at law, the Court recognized that “all burglaries are crimes of 

violence for the purposes of the significant history of violent felony 

convictions aggravating circumstance for capital sentence.” Id. (discussing 

42 Pa.C.S. § 9711(d)(9)). Moreover, first-degree burglary is expressly listed 

as a crime of violence under Pennsylvania's recidivist 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 statute 

and discerned a distinction between first and second degree offenses, “as 

first-degree burglary contemplates the potential for confrontation, whereas 

second-degree burglary does not.” Id. (distinguishing the finding in 
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Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa.Super. 2010), that 

second-degree burglary does not render an individual per se ineligible for 

RRRI). The Court emphasized a conviction for first-degree burglary imputed 

a risk of confrontation and violence because the structure invaded was either 

adapted for overnight use or an individual was present 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 crimes 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 expressly 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-privileged entry, which 

‘invit[es] dangerous resistance’ and, thus, the possibility of the use of deadly 

force against either the offender or the victim, that renders burglary a 

violent crime, not the behavior that is actually exhibited 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 meaning of “violent behavior” 

as used in Section 4503(1), rendering an offender ineligible for RRRI. 

Section 5104 of the Crimes Code provides: 
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A person commits a misdemeanor of the second degree if, with 

the intent of preventing a public servant from effecting a lawful 

arrest or discharging any other duty, the person creates a 

substantial risk of bodily injury to the public servant or anyone 

else, or employs means justifying or requiring substantial force 

to overcome the resistance. 

18 Pa.C.S. § 5104 (emphasis added). Notably, resisting 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 the term 

“substantial” is consistent with the 1972 Official Comment that “this section 

changes existing law somewhat by not extending to minor 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 nonviolent 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 Code § 242.1, Explanatory 

Note for Sections 242.1–242.8. 

 Appellant contends that “the actual crime of resisting arrest . . . does 

not have to contain any violent act. The mere action of laying oneself on the 

ground could incur a citizen the charge of resisting arrest.” Appellant’s brief 

at unnumbered 11. However, that conduct is already excluded by the very 

definition of the statute. An individual who has been convicted of resisting 

arrest necessarily created a substantial risk of bodily injury or required an 
J-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 behavior” 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 resistence[.]”). 

In Commonwealth v. Clark, 761 A.2d 190 (Pa.Super. 2000), we 

sustained a conviction for resisting arrest based on the following: 

The Carlisle Police responded to a fight in front of the Carlisle 

Tavern on South Hanover Street, just south of the Courthouse. 

The defendant was first observed in a crosswalk. He then 

approached Officer Kevin Roland at which time he was screaming 

profanity. When Officer Roland attempted to arrest the 

defendant for disorderly conduct, the defendant avoided arrest 

by walking backwards and walking in circles. From time to time, 

the defendant would assume a fighting stance. The officer then 

sprayed the defendant with pepper spray in an effort to subdue 

him. The defendant then began running down South Hanover 

Street in the travel lanes of the roadway. The officer ran after 

the defendant until Mr. Clark slipped on the wet roadway and fell 

down. The officer then turned the defendant over onto 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 overcome [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 inside a parking garage. 
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Thompson, 922 A.2d at 927. Two officers on horseback arrived and the 

following occurred: 

Officer Deborah Ewing heard profanities as she approached 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 whistling, he 

began flailing his arms and hitting the officer. While trying to 

control her horse, Officer Ewing informed [the defendant's 

husband] that he was under arrest.... [The defendant] 

approached Officer Ewing, yelling and waving her hands 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, dismounted his horse 

to [defuse] the activity among [the defendant], Officer 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 ensued. [The 

defendant] and her husband interlocked their arms and legs and 

refused to respond to Officer Canfield's verbal commands 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 handcuffed 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, relying in part upon Clark. 

Specifically, we observed, “Officer Ewing ... struggled to pull [the defendant] 
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apart from her husband with whom she interlocked her arms and legs” 

despite the officers' commands to disengage from her husband. Id. We 

further noted “Officer Canfield testified that his attempts to restrain the 

couple to place them under arrest left him ‘exhausted.’” Id. (citation 

omitted). Thus, the Thompson Court concluded the defendant's “use of 

passive resistance requiring substantial force to overcome provided sufficient 

evidence for upholding the resisting arrest conviction.” Id. 

Chester precludes this Court from engaging in a case-by-case 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 confrontation 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 commission 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 resisting arrest is the creation 

of a substantial risk of bodily injury and thus explicitly constitutes a “crime 
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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 resisting arrest 

requires the creation of substantial risk, not that an offender show 

“aggressive use of force such as striking or kicking of the officer”)). 

The trial court asserts that, even if resisting arrest 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 history 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 crime. For the following reasons, 

we agree that Stinson is persuasive. 

Under the federal sentencing guidelines, a defendant is considered a 

“career offender” if in relevant part he has “at least 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, that ... 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 purposes because “it involves 

conduct that presents a serious potential risk of physical injury to another.” 

Stinson, 592 F.3d at 466. The Court reasoned: 
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Although the language of Pennsylvania's resisting arrest 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 resisting arrest 

based on a defendant's inaction or simply “lying down” or “going 

limp.” Counsel arguing before us on this appeal could cite to 

none in response to our questions. In fact, there are 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 “struggling and 

pulling, trying to get away from [the arresting officer 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, that 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 federal sentencing guideline 

score and specifically whether it is a “crime of violence,” 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 Appellant’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 affirm. 
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We move to Appellant’s third argument that his sentence was 

“contrary to the fundamental norms underlying the sentencing 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 into account the goals of 

individualized sentencing that takes into account the individual’s needs.” Id. 

By alleging that the sentencing court did not adequately consider all of 

the requisite factors in fashioning Appellant’s sentence, 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 sentence) (citation omitted). 

He complains that the sentencing court was improperly motivated by its 

personal frustration with Appellant, his many unsuccessful attempts at 

rehabilitation, and the frequency with which he interacts 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 or she was aware of the 

relevant information regarding the defendant's character and weighed those 

considerations along with mitigating statutory factors.” 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 violations 
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and punishments. In its frustration with Appellant’s repeated misconduct 

and inability to reform, the sentencing court demonstrated that it had 

intimate familiarity with Appellant and his needs and that the sentence was 

imposed both to vindicate the authority of the court and because Appellant 

had “repeatedly and significantly violated conditions of supervision, and 

most recently was an absconder from supervision. The 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 current PSI report and the 

explanation provided to Appellant for his sentence at his hearing, we cannot 

find that the court abused its discretion in imposing its sentence of twelve 

and one-half to twenty-five years incarceration. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judge Olson joins the majority. 

Judge Strassburger files a Concurring Opinion. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 2/18/2016 
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