J. A14012/14

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SHERRY LYNN HARVEY, : No. 1778 MDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, August 14, 2013,

in the Court of Common Pleas of Wyoming County

Criminal Division at No. CP-66-CR-0000229-2013

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014

This is an appeal from the judgment of sentence entered by the Court 

of Common Pleas of Wyoming County. On July 12, 2013, appellant, 

Sherry Lynn Harvey, entered a guilty plea to one count of introducing 

contraband into a correctional facility and one count of simple assault. 

Appellant was sentenced on August 14, 2013, to an aggregate term of 

imprisonment of 50 months to 132 months. Appellant challenges the 

discretionary aspects of her sentence. Upon review, we affirm.

The trial court summarized the details of this case as follows:

On July 5, 2013 a Criminal Information was filed in 

the Court of Common Pleas of Wyoming County 

setting forth that between January 21, 2013 and 

May 2, 2013 in Tunkhannock Township, Defendant 

Sherry Lynn Harvey (hereinafter “Defendant”) did 

sell, give, transmit or furnish to a convict in a prison 

owned or leased by the Commonwealth or a county a 
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controlled substance without a written permit signed 

by the physician of such institution. More 

specifically, Defendant unlawfully furnished 

suboxone, a Schedule III controlled substance, to 

Wyoming County Correctional Facility inmate, 

Shawn Miller and Eric Simonson, by opening the 

stitching on the tongue of a sneaker and inserting 

the suboxone inside and sealing it shut with super 

glue. As a result, Defendant was charged with 

Contraband, 18 Pa.C.S.A. §5123(a) and Possession 

of a Controlled Substance, 35 Pa.C.S.A. 

§ 13(a)16[sic]. That same day, July 5, 2013, a 

separate Criminal Information was filed in Wyoming 

County charging Defendant with Simple Assault,

18 Pa.C.S.[A.] §2701(a)(1), Disorderly Conduct, 

18 Pa.C.S.A. §5503(a)(1) and Harassment, 

18 Pa.C.S.A. §2709(a)(1). On or about May 31, 

2013, while an inmate at the Wyoming County 

Correctional Facility on the Contraband charge, 

Defendant engaged in fighting by striking another 

inmate with a closed fist, requiring the victim to seek 

medical attention from the local hospital. 

Defendant’s actions caused much disorder for the 

Wyoming County Facility and jeopardized the safety 

of the staff and inmates. Immediately following the 

assault, Defendant was relocated to the 

Susquehanna County Correctional Facility.

On July 12, 2013 Defendant pleaded guilty to 

one count of Introducing Contraband into a 

Correctional Facility and one count of Simple Assault. 

On August 14, 2013 Defendant appeared before this 

Court for sentencing with a prior record score of 

two (2). Pursuant to 18 Pa.C.S.A. §5123, Defendant 

was subject to a twenty four (24) month mandatory 

minimum sentence in docket 2013-CR-229.

After comments from counsel for the 

Commonwealth and the Defendant, in 2013-CR-229, 

Defendant was sentenced to forty eight (48) months 

to one hundred twenty (120) months on the charge 

of Contraband, 18 Pa.C.S.A. §5123(a), a felony of 

the second degree. Defendant was further 

sentenced in docket number 13-CR-259 to two (2) to 
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twelve (12) months on the charge of Simple Assault, 

18 Pa.C.S.A. § 2701(a)(1), a misdemeanor of the 

third degree, to run consecutive to the previous 

sentence. Defendant is not eligible for an RRRI 

minimum sentence due to the mandatory minimum 

sentence. The aggregate sentence imposed on 

Defendant was fifty (50) months to one hundred and 

thirty two (132) months. 

Trial court opinion, 10/28/13 at 1-3.

A motion to modify sentence was filed on August 23, 2013. By order 

filed on September 16, 2013, the motion was denied. Appellant filed a 

timely appeal on October 1, 2013. Appellant was ordered to file a concise 

statement of errors raised on appeal ,and she timely complied.

Appellant raises one issue for our consideration:

1. THIS HONORABLE COURT ERRED IN 

SENTENCING THE APPELLANT FOR A SINGLE 

COUNT OF INTRODUCING CONTRABAND TO A 

SECURE FACILITY, TO A SENTENCE OF 48 TO 

120 MONTHS IN A STATE CORRECTIONAL 

INSTITUTION WHEN SUCH A SENTENCE WAS 

IN VIOLATION OF THE FUNDAMENTAL NORMS 

OF THE SENTENCING PROCESS AND WAS NOT 

SUPPORTED BY REASONS STATED ON THE 

RECORD THAT WERE SUFFICIENT AS A 

MATTER OF LAW TO SUPPORT THE 

IMPOSITION OF SUCH A SENTENCE.

Appellant’s brief at 4.

Appellant’s claim challenges the discretionary aspects of her sentence.

Challenges to the discretionary aspects of 

sentencing do not entitle an appellant to review as of 

right. An appellant challenging the discretionary 

aspects of his sentence must invoke this Court’s 

jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to 

determine: (1) whether appellant has 

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at 

sentencing or in a motion to reconsider 

and modify sentence, see Pa.R.Crim.P. 

[720]; (3) whether appellant’s brief has 

a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial 

question that the sentence appealed 

from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Objections to the discretionary aspects of a sentence 

are generally waived if they are not raised at the 

sentencing hearing or in a motion to modify the 

sentence imposed. 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citations 

omitted).

Instantly, appellant filed a post-sentence motion for reconsideration 

and then filed a timely notice of appeal. In addition, appellant has complied 

with the briefing requirements of Commonwealth v. Tuladziecki, 522 A.2d 

17 (Pa. 1987), and Pa.R.A.P. 2119(f) by including a concise statement of her 

reasons for challenging the discretionary aspects of her sentence. Last, 

appellant presents a substantial question for our review. We have held that 

“when a sentence exceeds the aggravated range of the guidelines and there 

is an allegation of excessiveness, this Court must review the record to 

determine whether there was an abuse of discretion.” Commonwealth v. 
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Monahan, 860 A.2d 180, 182 (Pa.Super. 2004), appeal denied, 878 A.2d 

863 (Pa. 2005). 

Appellant argues her sentence was in violation of the fundamental 

norms of the sentencing process because the trial court did not follow the 

statutory mandate of Section 9721(b) as it did not consider the gravity of 

the offense, or the rehabilitative needs of appellant. According to appellant, 

the result is a sentence that is clearly excessive in that it ranges far beyond 

that which is necessary to address the Section 9721(b) factors. Additionally, 

appellant contends the trial court failed to set forth logical and legally sound 

reasons for the deviation from the guidelines. 

Our standard of review for sentencing claims is as follows: 

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. [A]n abuse 

of discretion is more than a mere error of judgment; 

thus, a sentencing court will not have abused its 

discretion unless the record discloses that the 

judgment exercised was manifestly unreasonable, or 

the result of partiality, prejudice, bias, or ill-will. In 

more expansive terms, our Court recently offered: 

An abuse of discretion may not be found merely 

because an appellate court might have reached a 

different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or 

ill-will, or such lack of support so as to be clearly 

erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) 

(quotation omitted).

In exercising its discretion, the trial court must 

consider the character of the defendant and the 
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particular circumstances of the offense in light of the 

legislative Guidelines for sentencing, and the court 

must impose a sentence that is consistent with the 

protection of the public, the gravity of the offense 

and the rehabilitative needs of the defendant.

Commonwealth v. Guth, 735 A.2d 709, 711 (Pa.Super. 1999), appeal 

denied, 743 A.2d 915 (Pa. 1999), quoting Commonwealth v. Burkholder, 

719 A.2d 346, 350 (Pa.Super. 1998), appeal denied, 747 A.2d 364 (Pa. 

1999); see 42 Pa.C.S.A. § 9721(b).

Our review is guided by 42 Pa.C.S.A. § 9781(c) and (d) which provide:

§ 9781. Appellate review of sentence

(c) Determination on appeal.--The appellate 

court shall vacate the sentence and remand 

the case to the sentencing court with 

instructions if it finds:

(1) the sentencing court purported to 

sentence within the sentencing 

guidelines but applied the 

guidelines erroneously; 

(2) the sentencing court sentenced 

within the sentencing guidelines 

but the case involves 

circumstances where the 

application of the guidelines would

be clearly unreasonable; or 

(3) the sentencing court sentenced 

outside the sentencing guidelines 

and the sentence is unreasonable. 

In all other cases the appellate court shall 

affirm the sentence imposed by the sentencing 

court.
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Section 9781(d) provides that when we review the record, we must 

have regard for:

(1) The nature and circumstances of 

the offense and the history and 

characteristics of the defendant.

(2) The opportunity of the sentencing 

court to observe the defendant, 

including any presentence 

investigation.

(3) The findings upon which the 

sentence was based.

(4) The guidelines promulgated by the 

commission.

42 Pa.C.S.A. § 9781(c), (d). 

Our supreme court in Commonwealth v. Walls, 926 A.2d 957 (Pa. 

2007), observed that under this statute, we must review a sentence that is 

outside of the guidelines in terms of whether it is unreasonable. It stated 

that the term “unreasonable,” while not defined, generally means a decision 

that is either irrational or not guided by sound judgment. It continued that 

the context of the term’s use in Section 9781 also indicates that the 

legislature “intended the concept of unreasonableness to be inherently a 

circumstance-dependent concept that is flexible in understanding and lacking 

precise definition.” Id. at 963. Our supreme court indicated that a sentence 

can be found to be unreasonable after review of the four elements contained 

in Section 9781(d) or if the sentencing court failed to take into account the 

factors outlined in 42 Pa.C.S.A. § 9721(b). However, the court concluded 
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that when the proper standard of review is utilized, “rejection of a 

sentencing court’s imposition of sentence on unreasonable grounds [should] 

occur infrequently, whether the sentence is above or below the guideline 

ranges.” Id. at 964.

Here, appellant pled guilty to a single count of introducing contraband 

to a secure facility, a second-degree felony, with a mandatory two-year 

minimum sentence. The trial court imposed a sentence of 48 to 120 months 

that fell beyond the aggravated range of the guidelines, but below the 

statutory maximum.1 The trial court offered the following seven reasons for 

its departure: 

[O]ne, the serious nature of this offense.

Two, the sentence includes a mandatory minimum. 

Three, the defendant engaged her younger sister 

and through deception and without her sister’s 

knowledge, involved her in the commission of this 

crime.

Four, the actions of the defendant directly affected 

the sobriety and treatment plans of the inmates in 

the Wyoming County Correctional Facility.

Five, the actions of the defendant placed the 

corrections officers at the Wyoming County 

Correctional Facility at risk by having illegal 

substances and items brought into the Wyoming 

County Correctional Facility.

Six, the actions of the defendant affected the 

integrity of the Wyoming County Correctional Facility 

Drug and Alcohol Treatment Programs administered 

 

1 The statutory maximum for this crime is 60 to 120 months.
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by A Better Today as funded by the taxpayers of 

Wyoming County.

Seven, the crime was not of one time, but an event 

that occurred five to seven times based upon the 

admissions of the defendant showing a continued 

course of conduct and intent.

Notes of testimony, 8/14/13 at 7-8.

Appellant argues that the trial court’s first and second reasons 

regarding the serious nature of the offense and mandatory minimum are 

both taken into account by the Pennsylvania Sentencing Guidelines and are 

already calculated into the guidelines. Appellant also takes issue with the 

trial court’s fourth, fifth, and sixth reasons for its sentence which concern 

the consequences of bringing drugs into a prison. 

Appellant also contends the facts of this case do not support the trial 

court’s conclusions. The trial court voiced its concern that other inmates and 

correctional officers were put at risk by appellant’s actions. Appellant claims 

there was no evidence that any individual at the prison other than the 

intended target of the drugs, Shawn Miller, who was appellant’s paramour, 

and his cellmate, Eric Simonson, received any of the drugs. The record 

shows that the contraband introduced into the correctional facility consisted 

of two eight-milligram suboxone strips hidden in the tongue of a sneaker 

that was intended for Miller. Miller’s cellmate, Simonson, tested positive for 

the drug; Miller refused to take a drug test. Appellant points out there was 

no evidence of record that the amounts delivered were of such quantity to 
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give rise to an inference of further distribution beyond the intended 

recipient. 

In light of our standard of review, we cannot conclude that the trial 

court abused its broad discretion in sentencing. While appellant may have 

pled guilty to one count of introducing contraband into a correctional facility, 

the record indicates a continuing course of conduct. In its opinion, the trial 

court opined, “Defendant’s actions, which based on her own admission 

occurred at least five (5) to seven (7) times, placed numerous individuals 

and programs in jeopardy.” (Trial court opinion, 10/28/13 at 5). According 

to the affidavit of probable cause, “[Appellant] admitted to doing this 5 to 

7 times with various amounts of strips secreted inside.” (Certified record, 

document #1). The criminal information filed by the district attorney states 

“that between January 21, 2013 and May 2, 2013, in Tunkhannock 

Township, [appellant] did sell, give, transmit or furnish to any convict in a 

prison . . . .” (Certified record, document #5). 

Additionally, the trial court noted appellant used her sister to deliver to 

the prison the sneakers containing contraband. Appellant’s sister was 

interviewed and stated she had no knowledge that appellant had placed 

illegal contraband in the sneakers or that she was facilitating a crime. (See

trial court opinion, 10/28/13 at 5.)

Despite appellant’s arguments for a two-year sentence, the sentencing 

court supported its sentence by noting appellant has a long criminal record; 
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she involved her sister in facilitating a crime on more than one occasion; she 

delivered drugs to two inmates; and she endangered prison staff and other 

inmates with those drugs as she cannot say for certain that the drugs never 

left her paramour or his cellmate. Despite several attempts at in-patient 

and out-patient treatment, appellant suffers from severe addiction and 

mental health issues. Thus, the sentencing court took into account the 

factors outlined by 42 Pa.C.S.A. § 9721(b)(“the court shall follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant). The court had and considered 

appellant’s presentence report. We cannot conclude appellant’s sentence of 

50 to 132 months was unreasonable. We, therefore, affirm.

Judgment of sentence affirmed.

Olson, J. joins the Memorandum.

Strassburger, J. files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2014