J-S57043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

RASHID CURTIS

                        Appellant                  No. 2871 EDA 2014


   Appeal from the Judgment of Sentence entered September 15, 2014
          In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-003689-2012


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                     FILED FEBRUARY 23, 2016

     Appellant, Rashid Curtis, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County (trial court) on

September 15, 2014. Upon review, we affirm.

     In its Pa.R.A.P. 1925(a) opinion, the trial court summarized the

relevant background as follows:

     [Appellant] first appeared before this [c]ourt on November 18,
     2013, when he pled guilty to Robbery, a felony of the first
     degree; Conspiracy [t]o Commit Robbery, a felony of the first
     degree; Possessing [a]n Instrument [o]f Crime, a misdemeanor
     of the first degree; and Recklessly Endangering Another Person,
     a misdemeanor of the second degree. This [c]ourt sentenced
     [Appellant] to: 11½ to 23 months incarceration followed by 72
     months reporting probation for Robbery, 98 months reporting
     probation on the Conspiracy charge, 24 months reporting
     probation on the Recklessly Endangering Another Person charge,
     and 60 months reporting probation for Possessing [a]n
     Instrument [o]f Crime. [Appellant] was eligible for a county
     reentry program and was also credited with 22 months for time
     served.
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       [Appellant] began his probationary sentences on November 18,
       2013. [Appellant] reported only two times, December 4, 2013
       and January 8, 2014. When [Appellant] reported on January 8th,
       he took a drug test, and his urine tested positive for marijuana.
       [Appellant] failed to respond to further instructions requiring him
       to report.    A warrant for absconding from supervision was
       requested on February 3, 2014 and [Appellant] was taken into
       custody on June 14, 2014.

       [Appellant] next appeared before this [c]ourt on July 8, 2014 at
       a Violation of Probation (VOP) hearing. At this hearing, this
       [c]ourt revoked [Appellant’s] probation and ordered a
       Presentence Investigation (PSI) be done.

       On September 15, 2014, after reviewing the PSI report, and
       hearing from both attorneys as well as [Appellant], this [c]ourt
       sentenced [Appellant] to 30-84 months state incarceration
       followed by 60 months of reporting probation for Robbery, 72
       months reporting probation for Conspiracy To Commit Robbery,
       60 months reporting probation for Possessing An Instrument Of
       Crime, and 1 year of reporting probation for Recklessly
       Endangering Another Person.

Trial Court Opinion (“T.C.O.”), 1/13/15, at 1-3 (some footnotes omitted).1

Appellant filed an untimely post-sentence motion, “Petition To Vacate And

Reconsider Sentence Nunc Pro Tunc,” on October 1, 2014. The trial court

denied the petition on October 2, 2014. Id. at 4 n.5.

       On appeal, Appellant argues only that the trial court abused its

discretion when it sentenced him to two and one-half to seven years of

incarceration.     Specifically, Appellant claims that this sentence “for a first

time   technical    violation    of   probation   was   manifestly   excessive   and

____________________________________________


1
  The trial court noted that all Appellant’s probationary sentences were
consecutive to incarceration and concurrent with each other.      T.C.O.,
1/13/15, at 3 n.3.



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unreasonable,   and   far    in   excess   of   what   was     necessary    to   foster

[Appellant’s] rehabilitation.” Appellant’s Brief at 11.

      A challenge, like Appellant’s, to the discretionary aspects of a sentence

is not appealable as of right.     Commonwealth v. Colon, 102 A.3d 1033,

1042 (Pa. Super. 2014) appeal denied, 109 A.3d 678 (Pa. 2015).

      Before we reach the merits of this [issue], we must engage in a
      four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. . . . Finally, if the
      appeal satisfies each of these four requirements, we will then
      proceed to decide the substantive merits of the case.

Id. at 1042-43. Additionally, regarding part two of this analysis, “[w]hen a

court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that new

sentence either by objecting during the revocation sentencing or by filing a

post-sentence motion.”      Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa. Super. 2008).

      Here,   Appellant     did   not   raise   this   issue    during     sentencing.

Additionally, because Appellant’s post-sentence motion was filed more than

ten days after Appellant’s sentencing, it was untimely pursuant to

Pa.R.Crim.P. 720(A)(1). Therefore, Appellant’s only issue raised on appeal is

waived.




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      Even if not waived, Appellant’s claim of a manifestly excessive and

unreasonable   sentence    would   fail   on    the    merits.    The   trial   court

appropriately considered the PSI report and recognized the mandate of 42

Pa.C.S.A. § 9721 to impose a sentence consistent with the protection of the

public, the gravity of the offenses in relation to the impact of the crime on

the victim and the community, and Appellant’s rehabilitative needs. T.C.O.,

1/13/15, at 5-6. Further, the trial court explained its rationale for imposing

a sentence of total confinement based on the likelihood Appellant would

commit another crime if not incarcerated, considering the original violent act

for which he was on probation and his “near-complete non-compliance with

probation.” Id. at 6 (references to Notes of Sentencing Hearing Testimony

omitted). The trial court explained, “[Appellant] committed a violent crime

that involved a man being beaten and kicked in the head, a high-powered

rifle with an obliterated serial number, and a standoff with a swat team.”

Id. at 7 (references to Notes of Sentencing Hearing Testimony omitted).

“These facts, the danger to the public inherent in a crime involving such

facts, and [Appellant’s] failure to accept any responsibility for his actions or

show any amenability to rehabilitation provide ample justification for the

sentence imposed by [the trial court.]”        Id.    The record supports the trial

court’s conclusion that Appellant’s sentence was “reasonable and conforms

to all statutory standards.” Id. at 4 (footnote omitted).

      Judgment of sentence affirmed.




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J-S57043-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2016




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