J-A23044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PARIS FUQUE GLENN,                         :
                                               :
                        Appellant              :      No. 1338 WDA 2018

       Appeal from the Judgment of Sentence Entered September 5, 2018
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005744-2016

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 16, 2019

        Paris Fuque Glenn (“Glenn”) appeals from the judgment of sentence

imposed following the revocation of his probation. We affirm.

        On April 30, 2016, Glenn, armed with a handgun, confronted and yelled

at the female victim while she was outside of her apartment, and fired four

shots in her general vicinity. Glenn subsequently entered a negotiated guilty

plea to aggravated assault1 and terroristic threats.2 On April 6, 2017, the trial

court sentenced Glenn to serve an aggregate sentence of 11½ to 23 months

in jail, followed by three years of probation. Prior to imposing this sentence,




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1   See 18 Pa.C.S.A. § 2702(a)(4).

2   Id. § 2706(a)(1).
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the trial court reviewed a pre-sentence investigation report (“PSI”) that was

prepared regarding Glenn.

       In October 2017, Glenn was released on parole. Merely two months

later, he was arrested and charged with indecent assault of a person less than

13 years of age and corruption of minors.3

       On September 5, 2018, Glenn appeared for a probation violation hearing

(the “PV Hearing”) in the instant case. After considering the arguments of

counsel for Glenn and the Commonwealth, as well as the PSI prepared in

advance of Glenn’s April 2017 sentencing, the trial court revoked Glenn’s

probation/parole and imposed a new sentence of 14 to 48 months in prison.4

       Glenn thereafter timely filed a Notice of Appeal. The trial court ordered

Glenn to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal, and he timely complied. The court then issued a Rule 1925(a)

Opinion.

       Glenn presents the following issue for our review:

       Was the 14-to-48 month state prison [sentence] imposed on
       [Glenn] at his probation violation hearing manifestly excessive
       given that (A) he had completed multiple rehabilitative programs
       while incarcerated, (B) he was an adult victim of childhood sexual


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3 See 18 Pa.C.S.A. §§ 3126(a)(7), 6301. A jury convicted Glenn of these
charges in May 2018, after which the trial court imposed an aggregate
sentence of two to four years in prison (hereinafter “the sexual assault
sentence”).

4 The court ordered this sentence to run consecutively to the sexual assault
sentence.

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      assault, (C) he was the child of a drug-addicted mother, and (D)
      he was the gainfully employed father of five children?

Brief for Appellant at 4 (some capitalization omitted).

      Glenn challenges his sentence as being harsh and excessive, where the

trial court purportedly failed to consider his rehabilitative needs and the

above-mentioned circumstances.       See id. at 13-16; see also id. at 16

(asserting that the sentencing court improperly focused solely on [Glenn’s]

mistakes, and did not take into consideration the sincerity of his remorse.”).

      This issue challenges the discretionary aspects of Glenn’s sentence. “A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,

815 (Pa. Super. 2017).      Prior to reaching the merits of a discretionary

sentencing issue,

      [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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Here, although Glenn filed a timely Notice of Appeal and properly

included a Rule 2119(f) Statement in his brief, he did not object at sentencing

to the court’s allegedly excessive sentence, nor did he file a post-sentence




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motion.5 See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super.

2009) (stating that a challenge to the discretionary aspects of a sentence is

waived where the appellant failed to preserve such challenge at sentencing or

in a post-sentence motion). Accordingly, Glenn has waived his sole issue on

appeal. See id.; see also Commonwealth v. Barnhart, 933 A.2d 1061,

1066-67 (Pa. Super. 2007). However, even if Glenn had not waived this claim,

which presents a “substantial question,”6 we would conclude that it does not

entitle him to relief.

             [O]ur 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. We further note that the 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. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016)

(citations, quotation marks and brackets omitted).


____________________________________________


5 Glenn, in his brief, represents that he, in fact, filed a timely motion to modify
sentence, which the trial court denied. See Brief for Appellant at 12.
However, this purported motion, and the court’s denial thereof, is not
contained within the electronic record certified to this Court, nor is it notated
on the trial court’s docket. See Commonwealth v. Edwards, 71 A.3d 323,
324 n.1 (Pa. Super. 2013) (stating that “[i]t is axiomatic that an appellate
court is limited to considering only those facts which have been duly certified
in the record on appeal and, for purposes of appellate review, what is not of
record does not exist.” (citation omitted)).

6 See, e.g., Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super.
2013) (holding that “[a]ppellant’s claim that the [trial] court disregarded
rehabilitation and the nature and circumstances of the offense in handing
down its sentence presents a substantial question for our review.”).

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              Moreover, the sentencing court enjoys an institutional
      advantage to appellate review, bringing to its decisions an
      expertise, experience, and judgment that should not be lightly
      disturbed.    The sentencing court’s institutional advantage is,
      perhaps, more pronounced in fashioning a sentence following the
      revocation of probation, which is qualitatively different than an
      initial sentencing proceeding. At initial sentencing, all of the rules
      and procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      appears before the court for sentencing proceedings following a
      violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to
      when an initial sentence is imposed, the Sentencing Guidelines do
      not apply, and the revocation court is not cabined by Section
      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.” 42 Pa.C.S.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (paragraph break,

and some citations and quotation marks omitted).

      Upon the revocation of probation, a sentencing court may choose from

any of the sentencing options that existed at the time of the original sentence,

including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c). Finally, “[i]n every case in which the court …

resentences an offender following revocation of probation, … the court shall

make as part of the record, and disclose in open court at the time of

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sentencing, a statement of the reason or reasons for the sentence imposed.”

Id. § 9721(b).

       Here, the trial court addressed and rejected Glenn’s challenge to his

sentence, in its Opinion, as follows:

       The record in this case supports the sentence imposed by th[e trial
       c]ourt. [Glenn] had violated the original probationary term in this
       case. This [c]ourt noted at the [PV] [H]earing that [Glenn] was
       serving a term of probation after being convicted of aggravated
       assault for conduct involving [Glenn’s] firing of a gun toward a
       female victim. In that case, [Glenn] approached the victim as she
       was entering her house. He yelled at her and fired three shots
       near her. The victim ran behind a motor vehicle and [Glenn] fired
       a shot at the vehicle. [Glenn] chased the victim and he attempted
       to fire his weapon at her[,] but the weapon malfunctioned. [At
       the PV Hearing, the trial c]ourt noted the seriousness of these
       original charges. While on probation for those serious charges,
       [Glenn] then engaged in additional assaultive conduct, of a sexual
       nature, against a minor child. T[he trial c]ourt views this new
       conduct[, of which Glenn was] convicted[,] as very serious[,]
       demonstrating a complete disregard for [Glenn’s] probationary
       obligations.

              Th[e trial c]ourt further observed [Glenn’s] additional
       criminal history from the [PSI.7] [Glenn] was previously convicted
       of corruption of minors in 2006. He was arrested multiple times
       for assault-type charges. He has prior convictions for drug
       offenses. [Glenn] has demonstrated a pattern of criminal activity
       that went undeterred despite his prior involvement in the criminal
       justice system and efforts at rehabilitation. [Glenn’s] persistent
       criminal conduct makes clear that a probationary sentence would
       not have addressed the purposes of sentencing. The need to
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7 The trial court expressly stated at the PV Hearing that it had considered
Glenn’s PSI prior to imposing sentence. See N.T., 9/5/18, at 5-8, 12. Where
a sentencing court is informed by a PSI, it is presumed that the court is aware
of all appropriate sentencing factors and considerations (including, inter alia,
a defendant’s rehabilitative needs, history, and circumstances). Moreover,
“where the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).

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         protect society from [Glenn’s] behavior and his need for
         confinement in a state prison facility warranted the sentence
         imposed in this case.

Trial Court Opinion, 11/8/18, at 3-4 (footnote added). We conclude that the

trial court’s foregoing rationale is supported by the record, and agree with the

court’s determination.

         We additionally note that at the PV hearing, the trial court considered

Glenn’s counsel’s argument that Glenn was (1) “the product of an addicted

mother[;]” and (2) “himself a victim of sexual assault while he was in foster

care.”     N.T., 9/5/18, at 6.   The trial court determined that despite these

circumstances, a sentence of total confinement was appropriate, for the

reasons listed above. We discern no abuse of the trial court’s discretion in

this regard. Moreover, the record is clear that the trial court fully considered

Glenn’s individual circumstances and rehabilitative needs. See, e.g., id. at

10 (wherein the trial court stated that, because it had presided over Glenn’s

original sentencing hearing in April 2017, the court “recall[ed] the sentencing

in this case about the stressors on [Glenn] and so forth.”).

         Accordingly, we conclude that the trial court acted amply within its broad

discretion in revoking Glenn’s probation and imposing a state prison sentence,

where he had violated his probation by committing serious sexual offenses

merely two months after his release on parole. Moreover, the sentence is not

unduly harsh or excessive.

         Judgment of sentence affirmed.


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           P.J.E. Bender joins the memorandum.

           Judge Kunselman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2019




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