J-S76026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    PURNELL MCCALL

                             Appellant                   No. 3573 EDA 2016


       Appeal from the Judgment of Sentence imposed October 20, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos: CP-51-CR-0013037-2014,
                           CP-51-CR-0013063-2014


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED FEBRUARY 12, 2018

        Appellant, Purnell McCall, appeals from the sentence imposed on

October 20, 2016, in the Court of Common Pleas of Philadelphia after the trial

court revoked his probation.         Appellant contends the trial court abused its

discretion by imposing a manifestly excessive sentence and failing to order a

presentence report. Finding no abuse of discretion, we affirm.

        A review of the record reveals that Appellant was arrested on November

2, 2014, and was charged with various offenses, including aggravated assault

and receiving stolen property.          On June 18, 2015, Appellant’s cases were



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*   Retired Senior Judge assigned to the Superior Court.
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transferred to the jurisdiction of the Mental Health Court (MHC) based on an

evaluation indicating Appellant needed mental health treatment. Trial Court

Opinion, 2/8/17, at 1. Appellant’s cases were reviewed in June, July, August,

October and December of 2015, before an appropriate placement was

identified and he formally entered into MHC. Id.1

       On January 7, 2016, Appellant entered a negotiated guilty plea to

aggravated assault and receiving stolen property and was sentenced to 11-

1/2 to 23 months’ incarceration with credit for time served, followed by three

years’ probation on each charge. He was paroled to a residential treatment

program for adults on January 20, 2016.          As a condition of his sentence,

Appellant was ordered to comply with MHC conditions and to participate in

mental health treatment as well as drug and/or alcohol treatment with

occasional random drug screening. Id. at 1-2.2

       Appellant’s probation officer, Shimia Dawkins, testified at Appellant’s

revocation hearing. She explained that on three consecutive days beginning

on January 26, 2016, she received telephone calls from the treatment center,



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1 The trial court and Appellant refer to various documents, including reports
reviewed by the trial court. However, Appellant has not included these reports
in the record certified to this Court. “Appellant has the duty to ensure that all
documents essential to his case are included in the certified record.”
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).

2 Appellant has not included the transcripts of the January 7, 2016 plea
hearing in the record certified to this Court. See n.1.


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advising that Appellant was acting inappropriately with staff and other

residents, was not medication compliant, and was asking to leave the center

with his father. Notes of Testimony, 10/20/16, at 7-8. On the following day,

January 29, 2016, Appellant went out to smoke a cigarette after lunch and did

not return to the center. Id. at 8. Ms. Dawkins issued wanted cards. On

February 4, Appellant was arrested and charged with theft of a vehicle,

receiving stolen property, fleeing, and unauthorized use.3             In light of

Appellant’s probation violations, Ms. Dawkins recommended that Appellant’s

probation be revoked and that he be removed from MHC. Id.

       The trial court found Appellant in both direct and technical violation of

his probation, revoked it, and proceeded to sentencing.             Based on Ms.

Dawkins’ report, the testimony from the hearing, including reference to

Appellant’s prior record score of five, and Appellant’s failure to avail himself

of MHC programs, the trial court sentenced Appellant to two to five years of

incarceration, concurrent with the state sentence Appellant was serving. Id.

at 13-14.    This timely appeal followed.        Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant asks us to consider one issue in this appeal:

            Did not the lower court err by imposing an unduly harsh,
       manifestly excessive and unreasonable punishment, in
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3Appellant received a state sentence of one to two years in prison and three
years of probation for these crimes. See Notes of Testimony, 10/20/16, at 8-
9.


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      contravention of the general standards set forth by 42 Pa.C.S.A.
      § 9721 when it sentenced [Appellant] to a term of total
      incarceration in a state institution for an aggregate period of 2 to
      5 years after failing to adequately examine and consider
      [Appellant’s] background, character and rehabilitative needs and
      the circumstances of his violations and after failing to order a pre-
      sentence investigation report or placing its reasons on the record
      for dispensing with such a report?

Appellant’s Brief at 3.    As such, Appellant presents a challenge to the

discretionary aspects of 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) (citation omitted). Before we can reach

the merits of a discretionary aspects challenge,

      [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).

Id. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (citations omitted)).    Here, Appellant filed a timely notice of

appeal, preserved the issue in a post-sentence motion, and included a

statement in compliance with Pa.R.A.P. 2119(f).           Therefore, we must

determine whether Appellant has presented a substantial question that his

sentence is not appropriate under the Sentencing Code. “The determination

of what constitutes a substantial question must be evaluated on a case-by-


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case basis.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

Super. 2011)).

       Appellant contends the trial court imposed a sentence that was

manifestly excessive and unreasonable in violation of the provisions of the

Sentencing Code. Appellant’s Brief at 11-13. He also contends the trial court

failed to apprise itself of Appellant’s mental health issues by failing to order a

pre-sentence report or stating on the record the reasons for dispensing with

a report.4 Id. at 13. This Court has held that a claim “the trial court imposed

sentence ‘without considering the requisite statutory factors or stating

adequate reasons for dispensing with a pre-sentence report’ does raise a

substantial question.” Commonwealth v. Flowers, 950 A.2d 330, 332 (Pa.

Super. 2008) (quoting Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.

Super. 2000)).        Therefore, we find Appellant’s Rule 2119(f) statement

sufficient and grant allowance of appeal.

       In Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa. Super. 2013),

this Court explained:



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4 Pa.R.Crim.P. 702(A)(1) provides that a “sentencing judge may, in the judge’s
discretion, order a pre-sentence investigation report in any case.” In absence
of a report, the sentencing judge is to place on the record the reasons for
dispensing with the report under certain circumstances. Relevant to this case
is the requirement to provide reasons “when incarceration for one year or
more is a possible disposition under the applicable sentencing statutes.”
Pa.R.Crim.P. 702(A)(2)(a).

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     Although Rule 702(A)(2) provides the requirement to document
     the reasons for not ordering a pre-sentence report is mandatory,
     in Flowers, this Court made clear that sentencing courts have
     some latitude in how this requirement is fulfilled. Citing to
     Goggins, we stated that “technical noncompliance with the
     requirements of Rule 702(A)(2) might have been rendered
     harmless had the court elicited sufficient information during the
     colloquy to substitute for a PSI report, thereby allowing a fully
     informed sentencing decision[.]”

Id. at 727 (quoting Flowers, 950 A.2d at 333) (additional citations omitted).

“The essential inquiry is . . . whether the sentencing court was apprised of

comprehensive information to make the punishment fit not only the crime but

also the person who committed it.” Commonwealth v. Finnecy, 135 A.3d

1028, 1032 (Pa. Super. 2016) (internal quotations and citation omitted),

appeal denied, 159 A.3d 935 (Pa. 2016).

     At Appellant’s October 20, 2016 hearing, after hearing argument from

counsel for the Commonwealth and for Appellant, the trial court announced:

     Mr. McCall, I have reviewed the report and listened to all of the
     testimony. I considered your information as well.

     Noting once again your prior record score and the nature of the
     offenses, this offense, the fact that there is a direct violation as
     well, and the fact that you did not avail yourself of the
     opportunities of mental health court and the program, I do think
     the state sentence is warranted under all these circumstances.

     So, on this matter where I found you to be in violation and having
     revoked your probation, I will give you the sentence of two to four
     years of incarceration.

Notes of Testimony, 10/20/16, at 13-14.      In response to a request from

Appellant’s counsel that the court consider making the sentence concurrent to

the one Appellant was serving, the trial court responded:

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      That’s what I’m looking at.        This is what—I want to—I’m
      reconsidering that on my own. And I will make the sentence two
      to five years of incarceration, but I will make it concurrent to the
      sentence that you’re serving now.

      Now, we’re doing each charge to run concurrent to each other and
      concurrent to the sentence you’re now serving. All the other
      conditions of the original sentence still remain.

Id. at 14.

      Although the trial court did not address the lack of a pre-sentence report

during the October 20, 2016 hearing, the court did address the issue in its

Rule 1925(a) opinion, explaining:

      Furthermore, the court did not err by foregoing a pre-sentence
      investigation report. The first responsibility of the sentencing
      judge is to be sure that she has sufficient information to enable
      her to make a determination of the circumstances of the offense
      and the character of the defendant. Commonwealth v. Carrillo-
      Diaz, 2013 PA Super 75, 64 A.3d 722, 725 (2013). In the instant
      case, the court had more than sufficient information to fashion an
      appropriate sentence for [A]ppellant. Prior to his negotiated guilty
      plea and formal entry into MHC, the court received [A]ppellant’s
      mental health evaluation, which included detailed information on
      his background and mental health concerns. Appellant’s cases
      were reviewed prior to entry of the plea on at least four occasions
      where the court received updates and information necessary to
      assure that [A]ppellant was placed in a setting appropriate to his
      specific needs, including his activities and the progress of
      treatment. As is the policy in MHC, following his formal entry into
      MHC, [A]ppellant’s case was reviewed approximately every thirty
      days between January 7, 2016 and September 29, 2016.
      Moreover, the court received an additional mental health and
      psychiatric evaluation on May 23, 2016. Additionally, the court
      considered [A]ppellant’s specific circumstances by ordering that
      his sentences run concurrent to the sentence he was already
      serving. The court’s comprehensive history with [A]ppellant gave
      the court sufficient information to determine a proper
      individualized sentence, see Commonwealth v. Carrillo-Diaz,
      64 A.3d 722, 726 (Pa. Super. 2013) (holding that the combination


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        of Gagnon II[5] hearing summaries, clinician reports, and work
        history provided the trial court with sufficient information to
        substitute for the contents of a presentence investigation report).
        Furthermore, as required by 42 Pa.C.S.A. § 9721(b), the court
        stated the reasons for the sentence on the record and stayed
        within any relevant statutory and sentencing guidelines. 42
        Pa.C.S.A. § 9721(b); Commonwealth. v. Walls, 926 A.2d 957,
        962 (Pa. 2007). Thus the court did not err in dispensing with the
        pre-sentence investigation and this claim fails.

Trial Court Opinion, 2/8/17, at 6-7 (some capitalization omitted).

        We conclude that the record reflects the scope of the trial court’s review

and the statement of reasons for the sentence imposed as well as the court’s

consideration     of   the   circumstances       of   the   offenses   and   Appellant’s

background. We conclude that Appellant is not entitled to relief based on the

absence of a pre-sentence report. Further,

        When imposing a sentence, the sentencing court must consider
        the factors set out in 42 Pa.C.S. § 9721(b), that is, the protection
        of the public, gravity of offense in relation to impact on victim and
        community, and rehabilitative needs of the defendant. And, of
        course, the court must consider the sentencing guidelines.

Commonwealth v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006)

(brackets and internal citations omitted). Here, the trial court considered the

§ 9721 factors and imposed a sentence within the guidelines.6 As this Court

has recognized:

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5   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

6 Although Appellant does not challenge the sentence itself, we note that
“[u]pon revocation the sentencing alternatives available to the court shall be
the same as were available at the time of initial sentencing, due consideration



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       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. To constitute an abuse of
       discretion, the sentence imposed must either exceed the statutory
       limits or be manifestly excessive. 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. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(citations and internal quotations omitted).

       Appellant has failed to demonstrate that the trial court ignored or

misapplied the law, improperly exercised its judgment, or arrived at a

manifestly unreasonable decision. Therefore, we shall not disturb Appellant’s

sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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being given to the time spent serving the order of probation.” 42 Pa.C.S.A.
§ 9771(b).

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