J-S21014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

COURTNEY PITTS,

                          Appellant                     No. 552 EDA 2014


             Appeal from the Judgment of Sentence January 9, 2014
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CR-51-CP-0002318-2011, CR-51-CP-0012208-
                          2008, CR-51-CP-0012256-2008


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 10, 2015

        Courtney Pitts appeals from the judgment of sentence of two to five

years incarceration with a three year probationary tail that was imposed

following the revocation of his probation. We affirm.

        The trial court succinctly summarized the relevant facts and procedural

history.
               On November 13, 2008, appellant pleaded guilty to two
        counts of possession with intent to deliver a controlled substance
        (PWID) before the Honorable Joan Brown, in exchange for
        concurrent sentences of 6-23 months incarceration followed by 2
        years probation. On April 8, 2009, a bench warrant was issued
        for appellant for a potential direct violation. . . . Sometime
        thereafter, Judge Brown relinquished jurisdiction, and appellant
        was entered into the Mental Health Court program. The open
        matter and the potential violations were consolidated before this
        Court. On October 13, 2011, appellant pleaded guilty to
        aggravated assault before this Court which represented a direct
        violation of Judge Brown's probation. Probation was revoked and
        appellant was sentenced to an aggregate sentence of 11½ - 23
        months incarceration followed by 7 years probation. As is the

*
    Retired Senior Judge assigned to the Superior Court.
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       protocol in mental health court, regular status hearings were
       scheduled to closely monitor appellant's progress. Initially,
       appellant was in compliance with his program. However, at the
       May 31, 2012, status listing, it was reported that appellant had
       been involved in a physical dispute with his girlfriend and
       admitted having used drugs, which resulted in appellant
       receiving an essay sanction instead of a violation. At the July
       19, 2012 status listing, it was reported that, on July 10, 2012,
       appellant was taken into custody after he tested positive for
       drugs six consecutive times between May 25, 2012 and July 10,
       2012. At the August 9, 2012 listing, in lieu of being violated,
       appellant received a “time in” sanction and was ordered to
       comply with his treatment team.          On October 12, 2012,
       appellant was taken into custody pursuant to a bench warrant
       after appellant's sister filed a report with appellant's probation
       officer alleging that appellant had assaulted her. A hearing was
       scheduled to present witnesses to substantiate the allegations.
       On December 13, 2012, appellant's probation officer received a
       report from appellant's girlfriend that appellant had assaulted
       her. In addition, appellant failed to come into the office for his
       scheduled visit and refused to turn himself in upon suggestion of
       the probation officer. On December 31, 2012, the probation
       officer issued an absconder warrant for appellant. Appellant also
       failed to appear at the January 3, 2013 status listing before this
       Court and a bench warrant was issued for appellant's arrest. On
       September 27, 2013, appellant was apprehended and a violation
       hearing was scheduled.        At the January 9, 2014 violation
       hearing, appellant's probation summary, which included all of
       the above information, was entered into evidence, however, no
       witnesses were available and the assault allegations could not be
       substantiated.[1]

Supplemental Opinion, 6/26/14, at 1-3.

____________________________________________


1
  To the extent that Appellant asserts that the trial court erred in revoking
probation due to the unproven assault allegations, that claim is a red
herring. The certified record confirms that the trial court revoked probation
due to Appellant’s several technical violations of the conditions of probation,
including absconding from supervision. See N.T., 1/9/16, at 6. Moreover,
defense counsel conceded, “[Appellant] had . . . technical violation[s] for
absconding and for missing office visits.” Id.



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       Following the January 9, 2014 violation of probation (“VOP”) hearing,

the trial court found Appellant in technical violation of his probation, revoked

the probationary sentence, and imposed two to five years incarceration

followed by three years probation.2              The trial court denied Appellant's

ensuing motion to reconsider the judgment of sentence.             On February 10,

2014, Appellant filed a timely notice of appeal.3

       Appellant presents a single question for our review:

       Did not the sentencing court abuse its discretion and impose a
       manifestly excessive sentence when, during a revocation
       hearing, it sentenced Mr. Pitts to two to five years of
       incarceration followed by three years of reporting probation for
       technical violations, where Mr. Pitts had not been convicted of
       any new crimes and had a long history of mental illness and
       substance abuse that required treatment rather than
       punishment?

Appellant’s brief at 3.

       The following principles are pertinent to our review.         “Generally, in

reviewing an appeal from a judgment of sentence imposed after the

revocation of probation, this Court's scope of review includes the validity of

the hearing, the legality of the final sentence, and if properly raised, the
____________________________________________


2
  Specifically, the trial court imposed two to five years incarceration for each
of the two PWID convictions. For the aggravated assault, the court imposed
two to five years imprisonment followed by three years probation. All three
sentences were imposed concurrently and with credit for time served.
3
  Pursuant to Pa.R.Crim.P. 708, the motion for reconsideration did not toll
the thirty-day appeal period. However, since the thirtieth day was a
Saturday, Appellant had until Monday, February 10, 2014, to file a timely
appeal.



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discretionary aspects of the appellant's sentence.”      Commonwealth v.

Kuykendall, 2 A.3d 559 (Pa.Super. 2010); Commonwealth v. Cartrette,

83 A.3d 1030, 1033 n.1 (Pa.Super. 2013) (en banc) (Superior Court’s scope

of review includes claim challenging discretionary aspects of sentence

following revocation of probation). However, before we reach the merits of

a discretionary sentencing issue, we must ascertain whether: 1) a timely

appeal was filed from the judgment of sentence; 2) the issue was preserved

during the trial court proceedings; 3) the appellant complied with Pa.R.A.P.

2119(f); and 4) the Rule 2119(f) statement reveals a substantial question

that the sentence was not appropriate under the sentencing code.

Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008).

      Herein, Appellant filed a timely notice of appeal. Likewise, he raised

the pertinent complaints below, preserved the issues in his Rule 1925(b)

statement, and complied with Pa.R.A.P. 2119(f) by including in his brief a

concise statement of the reasons relied upon for allowance of appeal. See

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). Accordingly, we

must determine whether Appellant’s claims raise a substantial question that

the sentence was not appropriate under the sentencing code.

      The crux of Appellant’s argument is that the trial court violated the

sentencing code by imposing a sentence of total confinement for violating

the technical conditions of his probation. This contention raises a substantial

question. See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.


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2010) (“The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process.’”). Accordingly, we address the merits of Appellant’s claim.

      In Crump, we reiterated the following pertinent principles:

            When imposing a sentence of total confinement after a
      probation revocation, the sentencing court is to consider the
      factors set forth in 42 Pa.C.S. § 9771. Commonwealth v.
      Ferguson, [893 A.2d 735 (Pa.Super. 2006)]. Under 42 Pa.C.S.
      § 9771(c), a court may sentence a defendant to total
      confinement subsequent to revocation of probation if any of the
      following conditions exist:

         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 this court.

Crump, supra, at 1282-1283. “Sentencing is a matter vested within the

discretion of the trial court and will not be disturbed absent a manifest abuse

of discretion.” Id. at 1282. The trial court does not have to engage in a

lengthy discourse of its reasons for imposing a given sentence or specifically

identify the statute in question.   Id. at 1283.   However, “the record as a

whole must reflect the sentencing court’s consideration of the facts of the

crime and character of the offender.” Id.

      Instantly, Appellant’s argument has two facets. First, he contends that

the sentence of imprisonment was not individualized.       This contention is

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based upon the premise that the trial court failed to acknowledge Appellant’s

mental health issues, substance abuse, and rehabilitative needs.         Next,

Appellant complains that the court was not authorized to impose total

confinement unless it found one of the enumerated reasons outlined in §

9721(c).    For the reasons discussed below, we conclude that both of

Appellant’s assertions fail.

      As it relates to Appellant’s argument that the trial court did not engage

in individualized sentencing, we observe that the trial court was thoroughly

acquainted with Appellant’s involvement with his mental health concerns,

substance abuse, and his inappropriate behavior while under the supervision

of the probation department. The trial court possessed the full probationary

record, the VOP summary, which the trial court introduced as an exhibit

during sentencing, and the court’s personal experiences with Appellant over

the two years that it supervised the probation proceedings.        During the

sentencing, the trial court stressed,

             [A]s I am reviewing my file I do see the number of
      opportunities that you have had. I seen [sic] where you were
      going well for a little period of time. And when you had this
      spiral downward. And where I could have sent you back to jail
      on . . . some occasions, I did not.

            And, while you may be remorseful as you sit here today, I
      do believe that you have not taken full advantage of the
      opportunities that have been given you, that probation and
      parole has not been a suitable tool to supervise you and I do
      think that a county sentence is no longer appropriate for you[.]




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N.T., 1/9/14, at 19. Additionally, the trial court subsequently explained that

it recommended Appellant continue to receive “mental health and drug

treatment as needed” while he is incarcerated in a state facility. Id. at 22-

23.

      The foregoing confirms that the trial court was aware of Appellant’s

background, history, character, and rehabilitative needs when it fashioned

the revocation sentence.     In reality, the sentence reflected the years of

experience that the trial court had with Appellant and the court’s recognition

that Appellant had exhausted the less restrictive sentencing alternatives.

Accordingly, we reject Appellant’s assertion that the trial court failed to

impose an individualized sentence.     Cf. Commonwealth v. DeLuca, 418

A.2d 669, 671 (Pa.Super. 1980) (“In light of the fact that [the VOP court]

was familiar with appellant from the initial sentencing and pre-sentence

report, this indicates a sufficient consideration of the pertinent sentencing

factors.”).

      Next, we address Appellant’s claim that the court erred in imposing

total confinement for a technical violation. Again, no relief is due. As noted

supra, prior to imposing total confinement, the trial court considered

Appellant’s criminal history, past probation violations, including the fact that

he absconded from the probation department and remained a fugitive for

eight months, and the ineffectiveness of the less-restrictive sanctions the

court previously imposed in lieu of revocation. In sum, the court concluded

that total confinement was warranted pursuant to Pa.C.S. § 9771(c) (2) and

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(3).    Specifically, the court determined that, in light of Appellant’s

comprehensive     disregard for   the    conditions governing his    probation,

including his ongoing non-compliance and inability to utilize the rehabilitative

services that probation provided, confinement was needed to vindicate its

authority.

       The trial court summarized its rationale as follows:

       Appellant's probation was initially revoked and new sentences
       imposed on October 13, 2011, when appellant's cases were
       transferred to the supervision of mental health court. Since that
       time, appellant's compliance was spotty at best. On at least
       three occasions in the six months prior to this revocation,
       instead of violating appellant, the Court imposed an essay
       sanction, a "time in" sanction and a custody sanction in effort to
       encourage appellant to comply with his probation. Thereafter,
       appellant absconded from the probation department and failed to
       appear before the Court until he was apprehended on September
       27, 2013. Based upon appellant's continued non-compliance, the
       Court determined that appellant had failed to take full advantage
       of the opportunities that have been given him, that probation
       and parole had not been a suitable tool to supervise him, and
       that a county sentence was no longer appropriate. (N.T.
       01/09/14 pg. 19) Accordingly, a sentence of total confinement
       was appropriate where appellant's conduct indicated a likelihood
       of future offenses and was necessary to vindicate the court's
       authority.   As   a    consequence,    this  claim    fails.  See
       Commonwealth v. Malovich, 2006 PA Super 183, 903 A.2d
       1247, 1254 (Pa. Super. Ct. 2006) (state incarceration was
       necessary to vindicate the court's authority where appellant had
       not complied with previous judicial efforts such as Drug Court,
       probation and prior revocations).

Trial Court Supplemental Opinion, 6/26/14, at 4-5.

       The certified record confirms the trial court’s finding that confinement

was necessary to vindicate the court’s authority.      The trial court recalled

that, between October 2011 and the date that Appellant became a fugitive

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for eight months, he had one formal violation of probation and at least two

alternative sanctions in lieu of formal violations. Likewise, Appellant failed

six consecutive drug screens and openly admitted to using marijuana. It is

clear that Appellant’s course of conduct while he was on probation

demonstrated his disdain for the court’s directions and the need for total

confinement pursuant to § 9771(b)(3).            Thus, his claim that confinement

was not warranted in this case fails.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




____________________________________________


4
  Additionally, while not articulated by the trial court, the certified record
also supports the court’s conclusion that incarceration was warranted under
§ 9771(b)(2), particularly in light of the fact that the probation is predicated
in part upon his pleading guilty to two counts of possession of a controlled
substance with intent to deliver.         As discussed in the body of this
memorandum, Appellant tested positive for drugs on six consecutive tests
between May 25, 2012 and July 10, 2012 and proved resistant to
rehabilitation.   Indeed, Appellant admitted during his January 2014
allocution that he smoked marijuana during the eight months that he had
absconded from supervision.



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