J-S17026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

RAMONA JENNINGS

                          Appellant                No. 1022 EDA 2016


              Appeal from the Judgment Entered March 4, 2016
            In the Court of Common Pleas of Philadelphia County
  Criminal Division at Nos: CP-51-CR-1207761-2004; CP-51-CR-0301031-
                                   2005


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MAY 26, 2017

     Appellant, Ramona Jennings, appeals from the March 4, 2016

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County (“trial court”), following a probation revocation hearing. Upon review

we affirm.

     The trial court summarized the procedural and factual history of the

matter as follows.

            On June 30, 2005, [Appellant] pled guilty to two counts of
     possession with intent to deliver a controlled substance (PWID)
     and one count of conspiracy. On the same day, [the trial court]
     sentenced [Appellant] to a negotiated sentence of 11 ½ to 23
     months county incarceration plus 1 year probation with
     immediate parole to New Directions when a bed was available.
     [Appellant] subsequently absconded from New Directions and
     failed to report to the Probation Department. On October 14,
     2005, wanted cards were issued based on [Appellant’s] failure to
     report.
J-S17026-17


           On July 7, 2007, [Appellant] was arrested under the name
     “Ramona Jones” in Montgomery County. On May 20, 2009,
     [Appellant] was convicted of simple assault before the Honorable
     William T. Nichols and sentenced to 2 years probation. On
     November 17, 2009, [Appellant’s] supervision was transferred
     from Montgomery County authorities to the Philadelphia
     Probation Department. [Appellant] subsequently reported nine
     times to the Philadelphia Probation Department from January
     2010 through May 2011, when her probation was terminated.

           On November 1, 2015, [Appellant] was arrested on her
     outstanding warrant from 2005 under the name Ramona
     Jennings. On December 15, 2015, [Appellant] appeared before
     [the trial court] for a violation of probation hearing. [Appellant]
     was represented at the hearing by Alexandra Lipsky, Esquire,
     and the attorney for the Commonwealth was Alisa Shiver,
     Esquire. Ms. Lipsky conceded at the hearing that [Appellant]
     was in technical violation of her probation/parole based on her
     absconding and sentenced was deferred to February 12, 2016[,]
     so that a Pre-Sentence Investigation Report could be completed.
     On February 9, 2016, the Pre-Sentence Investigation Report was
     completed and brought to light [Appellant’s] prior arrest and
     conviction in Montgomery County for the first time.
     [Appellant’s] sentencing hearing was subsequently continued to
     allow the assigned Probation Officer to be present.

           On March 4, 2016, [the trial court] held a violation of
     probation hearing. [Appellant] was represented at the hearing
     by Randi Fensterer, Esquire, while the attorney for the
     Commonwealth was Whitney Golden, Esquire. After [the trial
     court] reviewed [Appellant’s] procedural history, the assigned
     Probation Officer, Peter Davis (“Davis”), testified that on
     November 17, 2009, the out-of-county division of the Adult
     Probation and Parole Department was assigned a case from
     Montgomery County under the name of “Ramona Jones” with no
     Philadelphia police photo number. Davis further testified that
     [Appellant] reported consistently from January 2010 through
     May 2011 and was admitted to Southwest New Stop in
     December 2010. Davis stated that [Appellant] was drug-tested
     once per week and all of her tests came back clean. Davis
     further stated that [Appellant] was working at the Radisson in
     Valley Forge. Davis testified that when Montgomery County
     transferred the case to Philadelphia, they never noted that
     [Appellant] had an outstanding warrant from Philadelphia and


                                    -2-
J-S17026-17


     she was supervised under a different name without her assigned
     Probation Officer knowing that she had a warrant.

            Ms. Fensterer, on behalf of [Appellant], stated that
     [Appellant’s] 2007 arrest derived from an incident where
     [Appellant] was brought to Lankenau Hospital while she was
     having a seizure and struck a hospital employee. Ms. Fensterer
     further stated that drug paraphernalia was recovered from
     [Appellant’s] person when she was arrested and the hospital
     assumed [Appellant’s] seizure was drug-related. Ms. Fensterer
     testified that [Appellant] had successfully addressed her drug
     problem during her probation, had gone to a drug treatment
     program and has submitted negative urinalyses. Ms. Fensterer
     further testified that [Appellant] had been working as a
     housekeeper since 2007 and sought work for All City
     Transportation, a bus company, in 2013. Ms. Fensterer stated
     that [Appellant] had to get fingerprinted and submit her
     information to the state to get clearance for that job and the
     Pennsylvania State Police reports showed her Philadelphia cases
     and the case from Montgomery County. Ms. Fensterer further
     stated that the cases were listed under the same CID and that
     the reports did not indicate that [Appellant] had an outstanding
     warrant.

             Ms. Fensterer testified that [Appellant] continued to work
     for All City Transportation through 2015, until she had a seizure
     on her way to work and was subsequently picked up on the
     outstanding warrant.        Ms. Fensterer further testified that
     [Appellant] had been waiting for the bus when she had her
     seizure and was transported to the hospital without her purse of
     any identification. Ms. Fensterer stated that [Appellant] was
     fingerprinted by the hospital and her warrant was discovered at
     that time.

           Ms. Fensterer argued that there was a timeliness issue
     which needed to be addressed. Ms. Fensterer noted that there
     was a 6½ year delay from the date of [Appellant’s] Montgomery
     County conviction to the instant hearing and argued that
     [Appellant] faced a loss of liberty as well as the loss of her job if
     she was incarcerated. Ms. Fensterer argued that [Appellant] had
     expected to be arrested on her warrant when she first reported
     to the Philadelphia Probation Department and, when they did not
     arrest her, she assumed that the warrant had expired. Ms.
     Fensterer argued that [Appellant] was not the same person as


                                     -3-
J-S17026-17


       she was in 2005 or 2007 and her successful completion of
       probation showed that she was amenable to probation. Ms.
       Fensterer recommended that [Appellant] receive a time-served
       sentence. Ms. Fensterer stated that [Appellant] had already
       served 4 months since being picked up on her warrant and
       would show that she would not be a further burden to [the trial
       court].

             Ms. Golden, on behalf of the Commonwealth, deferred to
       [the trial court’s] discretion. [Appellant] next spoke on her own
       behalf. [Appellant] apologized for absconding and stated that
       she had made a lot of bad decisions but was doing better.
       [Appellant] further stated that she had five children and five
       grandchildren in her life and that she wanted another chance to
       prove to [the trial court] that she was not going to be a problem
       again.

              [The trial court] found [Appellant] to be in technical
       violation of her probation/parole, terminated parole and revoked
       probation. [The trial court] then sentenced [Appellant] to 11½
       to 23 months county incarceration plus 5 years probation. In
       imposing this sentence, [the trial court] stated that the sentence
       was absolutely necessary to vindicate the authority of [the trial
       court] based on [Appellant’s] 10-year period of absconding.
       [The trial court] further stated that [Appellant] knew that her
       case was still open and had numerous opportunities to turn
       herself in but failed to do so. [The trial court] noted that, during
       [Appellant’s] period of absconding, the safe surrender program
       was in effect twice and [Appellant] could have surrendered
       herself then but chose not to.

              On March [1]4, 2016,[1] [Appellant] filed a motion for
       reconsideration. On April 4, 2016, [Appellant], through counsel,
       filed a Notice of Appeal to the Superior Court. On May 20, 2016,
       after receiving the complete notes of testimony, [the trial court]
       ordered [Appellant] to file a Concise Statement of Errors
       pursuant to Pa.R.A.P. 1925(b) and [Appellant] did so on June 8,
       2016.

____________________________________________


1
  The trial court’s opinion incorrectly lists the date Appellant filed her post-
sentence motion. Appellant’s motion was timely filed on March 14, 2016.



                                           -4-
J-S17026-17



Trial Court Opinion, 6/17/16, at 1-5 (citations omitted).       The trial court

issued an opinion on June 17, 2016.

      Appellant raises two issues on appeal, which we quote verbatim.

      I.       Was not [A]ppellant denied her right to a speedy
              revocation hearing in violation of Pa.R.Crim.P. 708, when
              her hearing was delayed 6½ years after her conviction in
              the criminal case constituting a direct violation of her
              probation, and [A]ppellant was prejudiced by the delay?

      II.     Did not the lower court err and abuse its discretion in
              imposing a manifestly unreasonable sentence where
              [A]ppellant had not incurred a new arrest or conviction
              since successfully completing probation on another matter
              in 2007 and [A]ppellant completed drug treatment and
              maintained gainful employment since 2009, and these
              facts did not establish sufficient conditions for imposing
              total confinement nor was the sentence essential to
              vindicate the authority of the [trial] court?

Appellant’s Brief at 4.

      Appellant’s first challenge is whether she was denied her right to a

speedy revocation hearing in violation of Pa.R.Crim.P. 708.          Rule 708

provides in part that a probation revocation hearing must be “held as

speedily as possible at which the defendant is present and represented by

counsel.” Pa.R.Crim.P. 708(B)(1). “In evaluating the reasonableness of a

delay, the court examines three factors:       the length of the delay; the

reasons for the delay; and the prejudice resulting to the defendant from the

delay.”     Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa. Super.

2004).      “When examining the reasons for the delay, the court looks at

circumstances     surrounding    the   delay   to   determine    whether   the



                                       -5-
J-S17026-17



Commonwealth acted with due diligence in scheduling the revocation

hearing.” Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super.

2010) (citing Clark, 847 A.2d at 124).      Moreover, “a court should not

attribute to the Commonwealth delays caused by the defendant.” Id. (citing

Commonwealth v. Gaus, 446 A.2d 661, 663-64 (Pa. Super. 1982) (holding

only two months of four year and eight month delay attributable to the

Commonwealth where defendant fled and concealed his whereabouts for

four years and six months)).

     In the matter sub judice, there was a six plus year delay between the

direct violation of probation and Appellant’s probation revocation hearing.

However, the reasons for the delay are attributable to Appellant.      It is

undisputed that Appellant absconded from the trial court’s supervision in

Philadelphia in 2005. See Appellant’s Brief at 11. A warrant was issued for

Appellant’s arrest on October 14, 2005.     Moreover, it is undisputed that

Appellant violated her probation in 2009 when she was convicted of simple

assault in Montgomery County under her married name.        Thus, Appellant

concealed her whereabouts from the requisite authorities.   See generally

Gaus, 446 A.2d at 663-64.       While Appellant’s probation was transferred

from Montgomery County to Philadelphia County, that alone does not

attribute the delay onto the Commonwealth.       The reason for the delay

originated from Appellant’s absconding from her original sentence in October

2005. Therefore, the delay between October 2005 and November 2015, is

attributable to Appellant.   See Christmas, 995 A.2d at 1263.     The time

                                    -6-
J-S17026-17



between her November 2015 arrest and the December 15, 2015 hearing is

attributable to the Commonwealth; however, this minimal delay does not

violate Appellant’s speedy trial rights.       See Pa.R.Crim.P. 708.    Appellant’s

claim fails.

         Even if this Court were to find the delay unreasonable, Appellant’s

argument fails because she fails to establish prejudice. “To demonstrate a

violation of his right to a speedy probation revocation hearing, a defendant

must allege and prove the delay in holding the revocation hearing prejudiced

him.” Christmas, 995 A.2d at 1263 (citations omitted).

         Prejudice in this context has been interpreted as being
         something which would detract from the probative value and
         reliability of the facts considered, vitiating the reliability of the
         outcome itself. One specific purpose of our rule in requiring a
         prompt revocation hearing is to avoid such prejudice by
         preventing the loss of essential witnesses or evidence, the
         absence of which would contribute adversely to the
         determination. Another is to prevent unnecessary restraint of
         personal liberty.

Id. (quoting Commonwealth v. Marchesano, 544 A.2d 1333, 1336 (Pa.

1988)). Appellant claims she was prejudiced by the loss of her employment;

however, Appellant fails to cite to any authority for the proposition that this

would constitute prejudice under Pa.R.Crim.P. 708. Thus, Appellant’s claim

fails.




                                         -7-
J-S17026-17



       Next, Appellant challenges the discretionary aspects of sentencing of

her probation violation.2           To challenge the discretionary aspects of

sentencing, an appellant must raise “a substantial question that the

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

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015).

Furthermore, such determination is made on a case-by-case basis.            Id.

(citing Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011)). “A

substantial question exists only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Id.

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record,
       that the sentencing court ignored or misapplied the law,
       exercised its judgment for reasons of partiality, prejudice, bias,
       or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016)

(quoting Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014)

____________________________________________


2
  In order to challenge the discretionary aspects of sentencing, an appellant
must raise the issue in a post-sentence motion, file a timely appeal, include
a Pa.R.A.P. 2119(f) statement in appellant’s brief, and present a substantial
question for review. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013) (citing
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).



                                           -8-
J-S17026-17



(additional   citations   omitted)).     Moreover,   “following   revocation,   a

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statutes in question.”

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014). Furthermore,

      contrary to when an initial sentence is imposed, the Sentencing
      Guidelines do not apply, and the revocation court is not cabined
      by [42 Pa.C.S.A. §] 9721(b)’s requirement 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.”

Id. at 27 (citations omitted).         Thus, Appellant has failed to raise a

substantial question.     Even if Appellant raised a substantial question, her

claim is meritless.

      At sentencing the trial court stated

      [t]his sentence is absolutely necessary [to] vindicate the
      authority of this Court. [Appellant] unfortunately thinks it is
      okay to be on the run for ten years and know that this case is
      open. There were numerous opportunities to turn herself into
      the court.    The whole court system had a safe surrender
      program in operation. I think it went into effect twice and she
      should have surrendered herself and gotten this case behind her
      but she chose not to.

             This is 11 and a half to 23 sentence is essentially what she
      originally received but she got parole and house arrest. And
      there is no way to know what kind of conditions [Appellant] has
      because she is on the run so she will be tested. Her urine hasn’t
      been tested in years. Although she claims she has been clean
      for three or four years, we have no way of knowing that because
      she has been on the run and hasn’t been tested.

            So as I said, this sentence is absolutely necessary to
      vindicate the authority of [the trial court]. And if [Appellant]


                                       -9-
J-S17026-17


      apparently thinks that she should be awarded for staying on the
      run for ten years, and I’m not going to do that.

N.T. VOP Hearing, 3/4/16, at 15-16.           Thus, the trial court adequately

addressed the reasons for sentencing on the record.

      Furthermore, Appellant’s argument is centered on the trial court’s

purported failure to consider the sentencing factors pursuant to 42 Pa.C.S.A.

§ 9721(b).    This argument is flawed as such factors do not apply in the

context of a probation revocation.     See Pasture, 107 A.3d at 27.          The

applicable statute is 42 Pa.C.S.A. § 9771, which provides that

      (b) Revocation.--The court may revoke an order of probation
      upon proof of the violation of specific conditions of the probation.
      Upon revocation the sentencing alternatives available to the
      court shall be the same as were available at the time of initial
      sentencing, due consideration being given to the time spent
      serving the order of probation.

      (c) Limitation on sentence of total confinement.--The court
      shall not impose a sentence of total confinement upon revocation
      unless it finds that:

             (1) the defendant has been convicted of another crime; or

             (2) the conduct of the defendant indicates that it is likely
             that he will commit another crime if he is not imprisoned;
             or

             (3) such a sentence is essential to vindicate the authority
             of the court.

42 Pa.C.S.A. § 9771.     Appellant’s probation violation was a result of her

conviction of another offense; thus it was within the trial court’s authority to

fashion a sentence of total confinement pursuant to § 9771(c)(1).

Additionally, the trial court had the benefit of a presentence investigation



                                     - 10 -
J-S17026-17



report, thus we “presume that the sentencing judge was aware of relevant

information   regarding    the   defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors.” Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, the trial court’s revocation

sentence was for an identical period to the originally imposed sentence.

Thus, the trial court did not abuse its discretion when it imposed a sentence

of 11 ½ to 23 months incarceration after revoking Appellant’s parole.

Appellant’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




                                      - 11 -
