J-S40021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
JAMES OTIS LOWE,                           :
                                           :
                   Appellant               : No. 1748 WDA 2014

           Appeal from the Judgment of Sentence September 24, 2014,
                    Court of Common Pleas, Allegheny County,
                Criminal Division at No. CP-02-CR-0011211-2007

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 8, 2015

      Appellant, James Otis Lowe (“Lowe”), appeals from the judgment of

sentence entered on September 24, 2014 in the Court of Common Pleas,

Allegheny County. For the reasons set forth herein, we affirm.

      A brief summary of the relevant facts and procedural history is as

follows.    On June 22, 2007, City of Pittsburgh firefighters and police were

called to a fire at the house where Lowe resided with his girlfriend, Angie

Sanders (“Sanders”). The fire, which was located on the second floor, was

easily extinguished by the firefighters.    Upon extinguishing the fire, the

firefighters and police noticed a “pungent” smell of gasoline in the bedrooms,

on the steps to the second floor, and on the steps to the basement.

      Fire investigator Bryan Marrone (“Marrone”) determined that the fire

originated in a bedroom that belonged to Sanders’ son based upon the




*Retired Senior Judge assigned to the Superior Court.
J-S40021-15


damage and indicators of the movement of heat. Marrone also discovered a

container holding gasoline in the bedroom.

       Lowe informed fire investigator Michael Ralston (“Ralston”), and arson

detective John Gilkey (“Detective Gilkey”), that he planned to cut the grass

and accidentally spilled gasoline on the second floor bedroom and hallway

when he attempted to attach a spout to the container of gasoline.      Lowe

then informed them that he dropped his cigarette on the floor, which ignited

the bedroom floor. Detective Gilkey sensed there was more to Lowe’s story

and read Lowe his Miranda1 warning, to which Lowe responded that he

wanted to continue talking and that he was there to “cooperate completely.”

N.T., 4/1/09, at 84.   Detective Gilkey, who knew that Sanders had asked

Lowe to move out of the house earlier in the week, “developed a theory, and

[] told [Lowe] that [he] thought that [Lowe] might have been upset with his

current relationship situation where he was asked to move out of the house

and he might have spilled the gasoline accidentally.” Id. at 85. Detective

Gilkey testified that Lowe responded, “You’re kind of close.” Id. Detective

Gilkey followed up by saying “I think you were walking through the house,

and the gas was spilling and you’re upstairs and you lit the fire and thought

about lighting the fire[,]” to which Lowe stated, “You’re kind of right. …

Yeah, I did.” Id.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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      Lowe was taken into custody and transported to Allegheny County Jail

where he was charged with two counts of arson – endangering persons, 18

Pa.C.S.A. § 3301(a), one count of arson – endangering property, 18

Pa.C.S.A. § 3301(c), one count of causing or risking catastrophe, 18

Pa.C.S.A. § 3302(b), and two counts of criminal mischief, 18 Pa.C.S.A. §

3304(a)(1).

      On April 1, 2009, a jury found Lowe guilty of all charges. A sentencing

hearing was held on June 22, 2009.         At the sentencing hearing, it was

determined that Lowe had a prior record score of zero. In addition, although

Lowe claimed that he was voluntarily treating a mental health diagnosis, the

presentence report indicated that Lowe had denied having mental health

issues and reported that he was not taking any medication. Lowe, however,

also informed the presentence investigator that he had been hearing voices

for over ten years. The trial court sentenced Lowe on count one, arson –

endangering persons, to two to four years of incarceration with no further

penalty for the remaining charges. The trial court also ordered no contact

between Lowe and Sanders and imposed a ten-year period of probation to

run consecutive to the period of incarceration. With respect to the probation

period, the trial court stated:

              If during that period Mr. Lowe can show the Court
              that he’s sought mental health treatment and he’s
              complying, if he can show the Court that he’s gotten
              a job, if he can show the Court any of a number of
              matters that would show that he’s in touch with



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             reality at this point, those would be all factors I
             would consider in potentially reducing his period of
             probation.

N.T., 6/22/09, at 18.    On July 2, 2009, Lowe filed a motion to reconsider

sentence.    The trial court denied Lowe’s motion to reconsider on July 9,

2009.

        After he was released from incarceration, Lowe committed a probation

violation by failing to report.    At a violation of probation hearing on

September 24, 2014, testimony established that “Lowe refused to report,

had no worries about it, a non-chalant attitude.”   N.T., 9/24/14, at 2.   In

addition, Lowe’s attorney, Kevin Lee expressed that he was concerned about

Lowe’s mental health. Id. at 3. The trial court asked Lowe what he thought

the court should do. Id. Lowe asserted that he did not commit arson in the

first place and refused to participate in any programming.    Id.   The trial

court subsequently sentenced Lowe to two to four years of incarceration.

        On October 2, 2014, Lowe filed a motion to reconsider sentence,

claiming that the sentence was excessive. The trial court denied the motion

on October 9, 2014.     On October 24, 2014, Lowe filed a timely notice of

appeal to this court. On appeal, Lowe raises one issue for our review:

             1. Was the sentence of two to four years of
             incarceration, manifestly excessive, where the court
             did not consider [] Lowe’s serious rehabilitative
             needs?

Lowe’s Brief at 5.




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     Lowe’s challenge to his sentence is directed to the discretionary

aspects of his sentence.     This Court has held, “[w]here an appellant

challenges the discretionary aspects of a sentence, there is no automatic

right to appeal and an appellant’s appeal should be considered a petition for

allowance of appeal.” Commonwealth v. Crork, 966 A.2d 585, 590 (Pa.

Super. 2009).

           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.

Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super. 2013) (citing

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).

     In this case, Lowe filed a timely notice of appeal and preserved his

claim on appeal in a post-sentence motion as well as in his Rule 1925(b)

statement.2 Lowe also included a statement pursuant to Rule 2119(f) of the



2
  The trial court asserts that Lowe failed to preserve his issue on appeal and
therefore fails to satisfy the second prong of the analysis. The trial court
specifically states:

           A review of the sentencing hearing reveals no
           objection or argument that the punishment imposed
           was unjust, unreasonable or excessive. His Post-
           Sentence Motion pushed one issue – excessive
           sentence. The excessive claim was preserved. His


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Pennsylvania Rules of Appellate Procedure in his brief, which requires an

appellant to “set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Pa.R.A.P. 2119(f). We are left to determine, therefore, whether

a substantial question exists.

            The determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis.
            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.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citing

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      The trial court in this case sentenced Lowe to total confinement based

on a technical violation of his probation, rather than a new criminal offense.

This Court has held that a “claim that the trial court sentenced [the

appellant] to a term of total confinement based solely on a technical



            argument that his sentence         was   “unjust”   or
            “unreasonable” was not.

Trial Court Opinion, 2/17/14, at 4 (footnote omitted).

      Lowe’s only issue on appeal is whether the trial court imposed a
sentence that is excessive. By the trial court’s own admission, Lowe
preserved his excessiveness claim. See id. Moreover, although Lowe did
not use the words “unjust and unreasonable,” Lowe made clear that he was
challenging the length of the sentence imposed. Thus, we are satisfied that
Lowe preserved his argument for appeal.


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violation raises a substantial question for our review.” Commonwealth v.

Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citing Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010); Commonwealth v.

Sierra, 752 A.2d 910, 913 (Pa. Super. 2000); Commonwealth v.

Malovich, 903 A.2d at 1253). Thus, as our case law establishes, Lowe has

presented a substantial question for our review, thereby satisfying the fourth

prong of the analysis.   As a result, we now address the merits of Lowe’s

claim.

      In addressing Lowe’s claim, we begin with our well-settled standard of

review:

           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. An abuse
           of discretion is more than an error in judgment—a
           sentencing court has not abused its discretion unless
           the record discloses that the judgment exercised was
           manifestly unreasonable, or the result of partiality,
           prejudice, bias or ill-will.

           In determining whether a sentence is manifestly
           excessive, the appellate court must give great weight
           to the sentencing court’s discretion, as he or she is in
           the best position to measure factors such as the
           nature of the crime, the defendant’s character, and
           the defendant’s display of remorse, defiance, or
           indifference.

Commonwealth v. Colon, 102 A.3d at 1043 (citations omitted).

      In this case, Lowe asserts that the trial court’s sentence of two to four

years is manifestly excessive under the circumstances of the case. Lowe’s



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Brief at 10. Lowe argues that a sentence of two to four years on a technical

violation, and not on a new crime, is disproportionate to the violations and

“serves the interest of no one.” Id. at 10-11. Furthermore, Lowe argues

that the circumstances of the case, specifically, the fact that the trial court

was offended by his statements at the hearing, does not warrant the

imposition of such a harsh sentence. Id. at 11.

      It is well settled that “Pursuant to 42 Pa.C.S. § 9771(b), when a

defendant is found in violation of his 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.”          Commonwealth v.

Schutzues, 54 A.3d 86, 98-99 (Pa. Super. 2012) (citing Commonwealth

v. Crump, 995 A.2d at 1282).            Moreover, “[i]t is the law of this

Commonwealth that once probation has been revoked, a sentence of total

confinement may be imposed if any of the following conditions exist in

according with Section 9771(c) of the Sentencing Code:”

            (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.




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Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008);

42 Pa.C.S.A. § 9771(c).

      Here, the trial court found that incarceration in this instance was

necessary “to vindicate [the] [c]ourt’s authority.”      Trial Court Opinion,

2/17/15, at 5. In its 1925(a) opinion, the trial court held:

            The sentence was necessary to vindicate [the]
            [c]ourt’s authority. Lowe was adamant about not
            doing any programming. His tone of voice and his
            facial expression told that story loud and clear. He
            was just as convinced that there were no mental
            health issues. … The juxtaposition of these factors
            pushed the [c]ourt to the punishment it gave.

                                     ***

            Mr. Lowe does not want to accept the help that is
            available to him in this community. Protecting our
            community from Mr. Lowe can be accomplished with
            the mental health treatment options available to
            him, but when he refuses, the protection of the
            public becomes a more persuasive factor. At the
            original sentencing, the former paramour wanted Mr.
            Lowe put away for a long, long time.           At that
            moment, the Court felt her view needed tempered.
            But, when Mr. Lowe refuses to accept a jury’s verdict
            and refuses to accept help, the Court leans toward
            her goal of incapacitation. The Court believes Mr.
            Lowe can achieve some level of rehabilitation.
            However, he must take the first step. Perhaps, his
            second stint of no freedom will push him to believe
            that there is a better life out there for him provided
            that he takes advantage of the services which are
            readily available to him.

Id.




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      After our review, we conclude that the record supports the trial court’s

determination   in   this   regard.    This    Court   has   established   that   in

Pennsylvania, “cases that [have] upheld revocation on the basis of technical

violations [have] found ‘wilful or flagrant disrespect’ for the terms of

probation on the part of the defendants.”          Commonwealth v. Heilman,

876 A.2d 1021, 1027 (Pa. Super. 2005) (quoting Commonwealth v.

Ballard, 814 A.2d 1242, 1246 (Pa. Super. 2003)).              In this case, Lowe

demonstrated to the trial court that he had no intention of complying with

the terms of his probation. In addition to violating his probation by failing to

report, the trial court found that Lowe remained unapologetic and had “a

non-chalant attitude” about failing to report. N.T., 9/24/14, at 2-3. When

the trial court asked Lowe what he thought it should do, he replied,

“Whatever you find it should be[.]”      Id. at 3.     Furthermore, Lowe denied

having any mental health issues and remained steadfast in his refusal to

report and to participate in treatment for his mental health. Id. As the trial

court explained, its previous decision to give Lowe a less onerous sentence

(less incarceration, more probation) hinged on his ability to obtain services

while on probation to aid in his rehabilitation.

      The trial court’s imposition of a sentence of two to four years of

incarceration was a sentence that was available to the trial court at the time

of initial sentencing. Moreover, Lowe’s unapologetic demeanor regarding his

failure to report and his refusal to participate in programming demonstrated



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a flagrant disrespect for the terms of probation.    As a result, we conclude

that the trial court did not abuse its discretion when it sentenced Lowe to

two to four years of incarceration following his probation violation.3

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




3
    We note that Lowe asserts in his brief that the trial court abused its
discretion because “[n]o reasons were stated on the record for the
imposition of the sentence.” Lowe’s Brief at 11. This Court has held that
failure to “make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the sentence
imposed[,] … shall be grounds for vacating the sentence or resentence[.]”
Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013)
(citing 42 Pa.C.S.A. § 9721(b)). Lowe, however, failed to preserve this issue
by either raising the issue at the time of sentencing or in a post-sentence
motion, and accordingly, has waived this issue on appeal. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).


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