J-S54009-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICA HARVEY SAUNDERS

Appellant No. 204 MDA 2014

Appeal from the Judgment of Sentence December 31, 2013

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002157-2008

BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J. FILED OCTOBER 27, 2014

Mica Harvey Saunders appeals from the judgment of sentence imposed 

by the Court of Common Pleas of Lancaster County following revocation of 

his probation. After a careful review of the record, we affirm. 

The trial court set forth the facts of this case as follows:

On November 6, 2008, . . . Saunders pled guilty before the 

Honorable Michael J. Perezous to four counts of indecent 

exposure and four counts of open lewdness and received an 

aggregate sentence of two years of probation. At the guilty plea 

hearing, [Saunders] admitted to exposing his penis in public to 

two women and to rubbing it in a circular motion. 

Less than one year into his sentence, [Saunders] violated his 

probation by being unsuccessfully discharged from his court 

mandated sex offender treatment. Several months later, on 

December 7, 2009, [Saunders] violated his probation a second 

time by frequenting a place where children congregated. On 

December 13, 2010, [Saunders] violated his probation by 

missing an appointment and by being discharged, once again, 

from sex offender treatment. After his third violation, 
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[Saunders] was sentenced to nine to twenty-three months of 

incarceration. 

On September 25, 2013, [Saunders] appeared before this Court 

for a probation violation hearing on his fourth violation, the 

matter which is the subject of the instant appeal. At the 

hearing, Dr. Suzanne Ashworth, a psychotherapist, testified that 

[Saunders] had been discharged from sex offender treatment 

with Commonwealth Clinical Group. This was [Saunders’] third 

violation for being discharged from sex offender treatment, and 

exhausted all treatment provider options approved by the 

Lancaster County Court of Common Pleas. 

Dr. Ashworth stated that [Saunders] was discharged for 

persistently being dishonest about his sexual behavior, having 

thoughts of minors for masturbatory reasons, photographing his 

penis, and failing to disclose information about contact with a 

female coworker. [Saunders] admitted to these behaviors after 

failing a polygraph exam that he was administered as part of his 

treatment. Dr. Ashworth also informed the Court that all three 

therapists at her agency believed [Saunders] should be 

incarcerated until he was able to adapt to treatment in order to 

prevent him from having a hands-on victim. Following the 

hearing, the Court found that [Saunders] violated the terms of 

his supervision, revoked his probation, and ordered a presentence investigation report. 

On December 31, 2013, a sentencing hearing was conducted on 

[Saunders’] probation violation. At the hearing, the Court 

resentenced [Saunders] to a total aggregate sentence of one 

and one half to three years of incarceration. 

On January 9, 2014, [Saunders] filed a post sentence motion for 

arrest of judgment, motion for a new trial and motion to modify 

sentence. On January 30, 2014, before the court had the 

opportunity to rule on the motion, [Saunders] appealed to the 

Superior Court, divesting this court of jurisdiction.

Trial Court Opinion, 3/20/14, at 1-3 (citations omitted).

On appeal, Saunders claims that this sentence constituted an abuse of 

discretion because the length of incarceration was manifestly unreasonable 
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under the circumstances and the record evidences the court’s bias or ill will 

towards him. 

Before this Court may hear an appeal concerning the discretionary 

aspects of a sentence, an appellant must: (1) file a timely notice of appeal, 

(2) properly preserve the issue at sentencing or in a motion to reconsider 

and modify sentencing, (3) provide in his brief a concise statement of the 

reasons relied upon for relief, pursuant to Pennsylvania Rule of Appellate 

Procedure 2119(f), and (4) present a “substantial question” as to whether 

the sentence appealed from is not appropriate under the Sentencing Code. 

42 Pa.C.S. § 9781(b); Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. 

Super. 2008). 

Saunders has satisfied all of these requirements. He preserved the 

issue for appeal by filing a post-sentence motion to modify sentence within 

ten days of the original sentence. The notice of appeal was timely filed 

within thirty days of the resentencing in accord with Pennsylvania Rule of 

Criminal Procedure 708, under which the filing of a post-sentence motion 

does not toll the appeal period. Commonwealth v. Parlante, 823 A.2d 

927, 929 (Pa. Super. 2003). Saunders has included in his brief a concise 

statement pursuant to Pa.R.A.P. 2119(f). Finally, because a sentence of 

total incarceration exceeding the original sentence was imposed for a 

technical violation of probation, we find that a substantial question has been 

raised. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
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Initially we note that imposition of a sentence of total incarceration 

was within the trial court’s discretion. The sentencing alternatives available 

to the court upon revocation of probation are “the same as were available at 

the time of initial sentencing.” 42 Pa.C.S. § 9771(b). A court may impose a 

sentence of total confinement if it finds that “the conduct of the defendant 

indicates that it is likely that he will commit another crime if he is not 

imprisoned; or . . . such a sentence is essential to vindicate the authority of 

the court.” 42 Pa.C.S. § 9771(c). If confinement is warranted, the judge 

shall select an appropriate length of sentence 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.” 42 Pa.C.S. § 9721(b). Therefore, we turn to examine 

Saunders’ claim that the trial court abused its discretion in sentencing him to 

one and one half to three years of incarceration. 

Sentences imposed by trial courts following a revocation of probation 

will not be disturbed upon appeal unless the trial court abused its discretion. 

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). 

Trial courts are in the best position to weigh various relevant factors, 

including the defendant’s character and the gravity of the offense, and 

therefore their selections of sentencing alternatives are accorded great 

weight. Commonwealth v. Fries, 523 A.2d 1134, 1135 (Pa. Super. 1987). 

To establish an abuse of discretion, an appellant “must establish, by 

reference to the record, that the sentencing court ignored or misapplied the 
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law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, 

or arrived at a manifestly unreasonable decision.” Commonwealth v. 

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). “If the sentence imposed is 

within statutory limits, there is no abuse of discretion, unless the sentence is 

manifestly excessive so as to inflict too severe a punishment.” 

Commonwealth v. Martin, 477 A.2d 555, 501 (Pa. Super. 1984). 

Saunders’ brief, although not explicitly clear, makes two claims, which 

will be analyzed separately. He first claims that the sentence of one and a 

half to three years of incarceration is manifestly excessive under the 

circumstances. We disagree. 

Judge Wright imposed a sentence that was within the statutory 

guidelines for Saunders’ probation violation. This violation was one in a 

series of Saunders’ probation violations, and his fourth probation violation in 

under five years. Saunders’ discharge from Commonwealth Clinical Group 

was his third violation of probation for being discharged from court-approved 

sex offender treatment programs, thereby exhausting all Lancaster County 

treatment options available to him. 

The court heard testimony from Dr. Susan Ashworth, a 

psychotherapist with the Commonwealth Clinical Group, who stated that 

Saunders was discharged from the treatment program for withholding 

information necessary for treatment and repeatedly violating the rules and 

procedures of the clinic. She testified that Saunders failed to disclose 

inappropriate fantasies of raping minors, accurate information regarding 
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contact with a female coworker, and past sexual harassment allegations. 

Because Saunders continually relied upon activities associated with a cycle of 

abuse, such as photographing his penis, masturbating to thoughts of minors, 

and flirting with women, Dr. Ashworth recommended that Saunders be 

confined until he could successfully complete treatment. According to Dr. 

Ashworth, all three therapists at her treatment group agreed that 

confinement was appropriate considering Saunders’ behavior. 

Further testimony from a probation officer, Mr. Auker, added weight to 

this recommendation. As a probation officer with the sex offender unit for 

the past nine years, Mr. Auker testified that Saunders’ discharge from all 

three court-approved sex offender treatment programs placed him in a 

highly unusual category of sex offenders. In Mr. Auker’s experience, 

Saunders’ dishonest behavior mirrored that of other sex offenders who had 

moved from internal fantasies to seeking hands-on victims.

Given Saunders’ repeated violations of the terms of his probation, and 

his demonstrated refusal or inability to amend his conduct through 

treatment, Judge Wright’s sentence of one and one half to three years’ 

incarceration was not manifestly excessive. The record shows that Judge 

Wright considered all relevant evidence and circumstances in making a 

sentencing determination, including the report of Saunders’ expert, 

psychologist Dr. Timothy Foley, who recommended that, as an alternative to 

incarceration, Saunders be referred for psychiatric assessment and placed on 

an antidepressant regimen. 
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Under the circumstances of this case, it was reasonable for Judge 

Wright to conclude that total incarceration was necessary to protect the 

public and validate the authority of the court. The length of sentence is 

within the statutory guidelines for the original crime, and is tailored to the 

rationale of confining Saunders so that he can receive sex-offender 

treatment in a secure location. Therefore, because the sentence was not 

manifestly excessive, Judge Wright did not abuse his discretion with respect 

to sentence selection. 42 Pa.C.S. §9721(b). 

Saunders next claims that the record shows that the judgment 

exercised by Judge Wright was the product of bias or ill will, and therefore 

constitutes an abuse of discretion. He alleges the harsh language in the trial 

court opinion shows that Judge Wright failed to evaluate fairly his claim that 

Dr. Ashworth falsely stated that Saunders had “failed” his polygraph test 

while enrolled in the sex offender program. We reject this claim. 

While the tone of Judge Wright’s language is perhaps harsh, it is clear, 

when read in context with the substance of Saunders’ claim at the 

sentencing hearing, that Judge Wright’s response is simply a strongly 

worded rejoinder. Although Saunders was technically correct to note that 

Dr. Ashworth misspoke when she testified that Saunders “failed” his 

polygraph exam, this does not attenuate the uncontested nature of her 

testimony, as well as other witness testimony, that shows that Saunders was 

dismissed from his third sex offender treatment program for noncompliant 

behavior. Judge Wright’s strong comments merely indicate his justifiable 
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conclusion that Saunders’ claim did not undermine the strength and validity 

of Dr. Ashworth’s testimony as a whole. They do not evidence bias or ill will 

towards Saunders. 

For the foregoing reasons, we conclude that the trial court did not 

abuse its discretion when sentencing Saunders.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2014