J-A28015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
DOUGLASS CASEY                           :
                                         :
                  Appellant              :         No. 1494 EDA 2015

           Appeal from the Judgment of Sentence April 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004121-2010,
                          CP-51-CR-0004540-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 21, 2017

     Appellant, Douglass Casey, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following

revocation of his probation at both docket numbers. We affirm.

     In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case.    Therefore, we have no reason to restate them.

Procedurally, we add Appellant entered a negotiated guilty plea on August

19, 2010, to theft by unlawful taking and access device fraud at Docket No.

4121-2010. That same day, the court sentenced Appellant to an aggregate

term of nine (9) to twenty-three (23) months’ incarceration, plus three (3)

years’ probation. Appellant filed no post-sentence motion or direct appeal.

     While on probation on July 11, 2013, Appellant entered a negotiated

guilty plea to forgery at Docket No. 4540-2013. That same day, the court
J-A28015-17


sentenced Appellant at Docket No. 4540-2013 to three (3) to twelve (12)

months’ incarceration, plus one (1) year probation. The court also revoked

Appellant’s probation at Docket No. 4121-2010 and resentenced Appellant to

nine (9) to twenty-three (23) months’ incarceration, plus two (2) years’

probation, to run consecutive to the sentence at Docket No. 4540-2013. On

July 22, 2013, Appellant filed a motion for reconsideration of his new

sentence at Docket No. 4121-2010, which the court denied on July 25, 2013.

Appellant subsequently sought no appellate review.

     While on probation on December 9, 2014, Appellant entered a

negotiated guilty plea to robbery at Docket No. 9228-2014. With the benefit

of a pre-sentence investigation (“PSI”) report, the court conducted a

sentencing hearing on April 20, 2015. At the conclusion of the hearing, the

court sentenced Appellant, to two (2) to four (4) years’ incarceration, plus

four (4) years’ probation at Docket No. 9228-2014. The court also revoked

Appellant’s probation and resentenced Appellant at Docket No. 4121-2010

and Docket No. 4540-2013.         At Docket No. 4121-2010, the court

resentenced Appellant to an aggregate term of two (2) to four (4) years’

incarceration, plus one (1) year probation, to run consecutive to the

sentence at Docket No. 9228-2014.     At Docket No. 4540-2013, the court

resentenced Appellant to one (1) to two (2) years’ incarceration, to run

consecutive to the new sentence at Docket No. 4121-2010.       In sum, the

court imposed an aggregate sentence of five (5) to ten (10) years’


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J-A28015-17


incarceration, plus five (5) years’ probation.

      Within thirty days of resentencing, Appellant filed a post-sentence

motion, which the court denied, and a timely notice of appeal from the

revocation sentences at Docket No. 4121-2010 and Docket No. 4540-2013.

On January 27, 2016, the court ordered Appellant to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely

complied on February 9, 2016.

      Appellant raises one issue for our review:

         DID NOT THE [SENTENCING] COURT ERR AND ABUSE ITS
         DISCRETION   WHEN    IT  IMPOSED  A   MANIFESTLY
         EXCESSIVE VIOLATION OF PROBATION SENTENCE WHICH
         FAR SURPASSED WHAT WAS REQUIRED TO PROTECT THE
         PUBLIC, THE COMPLAINANT OR THE COMMUNITY AND
         WAS WELL BEYOND WHAT WAS NECESSARY TO FOSTER
         APPELLANT’S REHABILITATION?

(Appellant’s Brief at 3).

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining that, notwithstanding prior decisions which stated our

scope of review in revocation proceedings is limited to validity of

proceedings and legality of sentence, this Court’s scope of review on appeal

from revocation sentencing can also include discretionary sentencing

challenges).


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J-A28015-17


       Appellant argues the court disregarded Appellant’s rehabilitative needs

when it imposed the revocation sentences at Docket No. 4121-2010 and

Docket No. 4540-2013.           Appellant avers the sentencing court failed to

consider Appellant’s childhood history as a victim of physical, emotional, and

sexual abuse, as well as his need for mental health and substance abuse

treatment. Appellant maintains the court did not consider that Appellant had

participated in rehabilitation programs while in custody and had the support

of two service providers, who attended the April 20, 2015 sentencing

hearing.      Appellant concludes the           court imposed an excessive and

unreasonable sentence. Appellant’s challenge is to the discretionary aspects

of his sentence.1       See Commonwealth v. Lutes, 793 A.2d 949, 964

(Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653,

676 A.2d 1195 (1996) (stating allegation court ignored mitigating factors

challenges discretionary aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). When appealing the discretionary aspects of a

sentence, an appellant must also invoke the appellate court’s jurisdiction by,
____________________________________________


1Appellant preserved this claim in his motion for modification of sentence,
Rule 1925(b) statement, and Rule 2119(f) statement.



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J-A28015-17


inter alia, including in his brief a separate concise statement demonstrating

that there is a substantial question as to the appropriateness of the sentence

under the Sentencing Code.     Commonwealth v. Mouzon, 571 Pa. 419,

425-26, 812 A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). “The requirement

that an appellant separately set forth the reasons relied upon for allowance

of appeal ‘furthers the purpose evident in the Sentencing Code as a whole of

limiting any challenges to the trial court’s evaluation of the multitude of

factors impinging on the sentencing decision to exceptional cases.’”

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal

denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129

S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams,

562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

      A claim of excessiveness can raise a substantial question as to the


                                    -5-
J-A28015-17


appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….”       Id.     See, e.g., Cartrette, supra (indicating claim that

revocation court ignored appropriate sentencing factors raises substantial

question).   Significantly, an allegation that the sentencing court failed to

consider certain mitigating factors, absent more, does not raise a substantial

question for our review. Commonwealth v. Rhoades, 8 A.3d 912, 918-19

(Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert.

denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012). See also

Commonwealth v. Berry, 785 A.2d 994, 997 (Pa.Super. 2001) (holding

claim that sentencing court ignored appellant’s rehabilitative needs failed to

raise substantial question).

      In   the    context   of   probation   revocation   and   resentencing,   the

Sentencing Code provides, in pertinent part:

           § 9771.        Modification or revocation of order of
           probation

             (a)       General rule.—The court may at any time

                                        -6-
J-A28015-17


           terminate continued supervision or lessen or increase the
           conditions upon which an order of probation has been
           imposed.

              (b) Revocation.—The court may revoke an order of
           probation upon proof of the violation of specified 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(a)-(c).      “The reason for revocation of probation need

not necessarily be the commission of or conviction for subsequent criminal

conduct.    Rather, this Court has repeatedly acknowledged the very broad

standard that sentencing courts must use in determining whether probation

has been violated.”       Commonwealth v. Colon, 102 A.3d 1033, 1041

(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).

     “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,


                                        -7-
J-A28015-17


absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).               The

Sentencing Guidelines do not apply to sentences imposed following a

revocation of probation. Commonwealth v. Ferguson, 893 A.2d 735, 739

(Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006).

“[U]pon sentencing following a revocation of probation, the trial court is

limited only by the maximum sentence that it could have imposed originally

at the time of the probationary sentence.” Commonwealth v. Coolbaugh,

770 A.2d 788, 792 (Pa.Super. 2001).

      Pursuant to Section 9721(b), “the court shall follow the general

principle 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(b).   “[T]he

court shall 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.”    Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy     discourse   for   its   reasons   for   imposing   a   sentence….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole

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

and character of the offender.” Id. See also Commonwealth v. Carrillo-


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J-A28015-17


Diaz, 64 A.3d 722, 727-28 (Pa.Super. 2013) (explaining where revocation

court presided over defendant’s no contest plea hearing and original

sentencing, as well as his probation revocation hearing and sentencing, court

had sufficient information to evaluate circumstances of offense and character

of defendant when sentencing following revocation).

      Instantly, Appellant’s claim that the court failed to consider specific

mitigating factors (Appellant’s rehabilitative needs, history as a victim of

abuse, participation in rehabilitative programs, and support from service

providers) and his bald claim of excessiveness do not raise substantial

questions meriting review.    See Mouzon, supra; Berry, supra.           In any

event, the court had the benefit of a PSI report at sentencing. Therefore, we

can presume the court considered the relevant factors when it sentenced

Appellant. See Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super.

2005) (holding where sentencing court had benefit of PSI report, law

presumes court was aware of and weighed relevant information regarding

defendant’s character and mitigating factors).

      Moreover, even if Appellant had raised substantial questions, we would

affirm on the basis of the trial court’s opinion. (See Trial Court Opinion, filed

July 25, 2016, at 5-6) (finding: sentencing court fashioned sentence that

accounted for need to protect public, rehabilitative needs of Appellant, and

gravity of Appellant’s offenses; Appellant’s previous periods of incarceration

and probation failed to dissuade him from continuing to commit crimes;


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J-A28015-17


Appellant’s three crimes were similar in nature and progressively offensive;

despite mitigating factors, Appellant’s most recent offense warranted lengthy

period of incarceration to break his pattern of behavior and victimization;

Appellant required more appropriate sentence to protect community;

further, Appellant’s sentences were under statutory maximum for those

offenses).   The record supports the trial court’s rationale.   See Hoover,

supra. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




                                    - 10 -
                                                                                          Circulated 12/01/2017 11:40 AM



                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                       TRIAL DIVISION - CRIMINAL SECTION


COMMONWEALTH OF PENNSYLVANIA                                            CP-51-CR-0004540-2013
                                                                        CP-51-CR-0004121-2010
                      v.
                                                                        1494 EDA 2015
            DOUGLASS CASEY




COVINGTON, J.
                                           OPINION
                                                                                            FILED
                                      CP-51-CR--0004121-2010 Comm. v. Casey O la
                                                          Opinioo          , oug SS
                                                                                             1
                                                                                              JUL 2 5- 2016
                                                                                        Criminal Appeals unit
PROCEDURAL IDSTORY
                                     -
                                          Ill/ llll II I lllll llll !I
                                           7476954751
                                                                                      First Judicial Oistrict of PA

       On August 19, 2010, following a negotiated guilty plea, the defendant was found guilty

on docket CP-5 l-CR-0004121-2010, of Theft by Unlawful Taking-Movable Property (18

§3921 §§A), and Access Device Fraud (18 §3925 §§A) and was sentenced to nine (9) to twenty

three (23) months incarceration followed by three (3) years probation.

       On July 11, 2013, following a negotiated guilty plea, the defendant was found guilty on
                                                                             'I
docket CP-51-CR-0004540-2013, of Forgery-Alter Writing (18 §4101 §§Al), and sentenced to

three (3) to twelve (12) months. That same day the Court revoked the defendant's probation on

transcript CP-51-CR-0004121-2010, and imposed a new sentence of nine (9) to twenty three (23)

months incarceration followed by two (2) years probation.

       A pre-sentence investigation was completed on January 20, 2015. On April 20, 2015,

following a violation of probation hearing, the Court revoked Defendant's probation on both

dockets and resentenced Defendant. On transcript CP-51-CR-0004121-2010, Defendant was

resentenced to two (2) to four (4) years incarceration, On transcript CP-51-CR-0004540-2013,



                                                      1
Defendant was resentenced to one (1) to two (2) years incarceration, consecutive to the

incarceration sentence on transcript CP-5 l-CR-0004121-2010. On a transcript not subject to this

appeal, CP-51-CR-0009228-2014, Defendant was found guilty of Robbery and sentenced to two

(2) to four (4) years incarceration, followed by four (4) years probation.

       On May 4, 2015, Defendant filed a post sentence motion to reconsider sentence. On May

18, 2015, the Court denied Defendant's post sentence motion. Defendant filed a timely Notice of

Appeal on May 20, 2015. On February 1,2Pl0)Defendant filed a Statement of Errors pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b).



FACTUAL HISTORY

       The facts of the first underlying case, transcript CP-51-CR-0004121-2010, involved the

Defendant going to the complaining witness's home in response to a Craig's List ad for a

roommate, and proceeding to take the complaining witness's key, wallet, and cellphone.

Defendant then used the complaining witness's debit card to make unauthorized purchased.

       The facts of the second underlying case, transcript CP-51-CR-0004540-2013, involved

Defendant going to a different complaining witness's apartment, engaging in sexual activity,

then telling the complaining witness he was only seventeen (17) years old and the complaining

witness needed to pay him money for "fooling around."

       In the new case, transcript CP-51-CR-0009228-2014, Defendant met another

complaining witness on a social media site. Defendant met the complaining witness at his hotel

room. Shortly after arriving, Defendant indicated he had a gun and told the complaining witness

to perform oral sex on him while he videotaped the act. The complaining witness complied. The

Defendant then told the complaining witness that he was underage and that he needed to pay



                                                 2
him. The complaining witness gave Defendant money from his wallet. Defendant then forced

the complaining witness to go to several ATMs to withdraw more money for him. The

complaining witness handed over about three thousand (3,000) dollars to Defendant over the

course of the evening. At the final ATM, the complaining witness tried to grab Defendant's

phone, and Defendant proceeded to kick and punch him in the head, until he was able to signal

for help. See Pre-Sentence Investigation.

       At the violation of probation hearing, Defendant submitted a pre-sentence social history

prepared by Defendant's social worker. This report detailed an extensive history of neglect,

sexual abuse, physical abuse, rape, and adolescent trauma. Defendant also had family members

and other people to support him at the violation of probation hearing. Counsel further presented

evidence that Defendant suffered. from a terminal illness.



STANDARD OF REVIEW

       "When reviewing sentencing matters, [an appellate court] must accord the sentencing

court great weight as it is in the best position to view defendant's character, displays or remorse,

defiance or indifferences, and the overall nature of the crime." Commonwealth v. Cappellini, 690

A.2d 1220, 1225 (Pa. Super. 1997) (quoting Commonwealth v. Viera, 659 A.2d 1024, 1030

(Pa.Super. 1995). The sentencing function is vested in the sound discretion of the trial court,

whose judgment will not be disturbed by an appellate court in the absence of an abuse of

discretion. Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).



DISCUSSION




                                                  3
           Pursuant to the 1925(b) Statement of Errors Complained of on Appeal, the defendant

asserts that the Court imposed a sentence that was excessive in that it far surpassed what was

required to protect the public, the complainant or the community, and was well beyond what was

necessary to foster Defendant's rehabilitation.

      I.       The Court's Sentence Was Appropriate

           "While it is true that [our superior] court and our supreme court have the power and

responsibility to vacate a sentence determined to be so manifestly excessive as to constitute too

severe a punishment, it is insufficient to simply assert an unduly harsh sentence, the record must

show it." Commonwealth v. De Luca, 418 A.2d 669, 671 (Pa. Super. 1980) (citing

Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976)). In order to constitute an abuse of

discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to

constitute an abuse of discretion. Commonwealth v. Pickering, 533 A.2d 735, 738 (Pa. Super.

1987). "We must constantly recall that when it becomes apparent that the probationary order is

not serving the desired end, the court's discretion in imposing a more appropriate order should

not be fettered ... and we should not be hasty in constraining the discretion of the trial judge."

Id. (citing Commonwealth v. Kates 305 A.2d 701 (Pa. 1973)). The Court fashioned a sentence

which took into account the need to protect the public from the defendant, the rehabilitative

needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the
                                          •
citizens of Philadelphia. Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super.2002)

(quoting Commonwealth v, Burkholder, 719 A.2d 346, 350 (Pa.Super.1998)).

           "[The Superior Court's] review is limited to determining the validity of the probation

revocation proceedings and the authority of the sentencing court to consider the same sentencing

alternatives that it had at the time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also



                                                    4
Commonwealth v. Gheen, 688 A.2d 1206, 1207 (Pa. Super. 1997) (the 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). Also, upon sentencing

following a revocation of probation, the trial court is limited only by the maximum sentence that

it could have imposed originally at the time of the probationary sentence. Id. at 1207-1208.

Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.Super.1999)." Commonwealth v.

MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006).

       In the instant case, it was exceedingly clear that Defendant's previous periods of

incarceration and probation failed to dissuade Defendant from continuing to commit crimes.

Most troubling, as noted by the Court at the violation hearing, is the similarity of Defendant's

three crimes, and the escalation in their magnitude. See N.T. 4/20/2015, p. 26. Defendant began

with a simple theft offense, then escalated to lying about his age to trick his victim into giving

him money, and then escalating further to using a gun and forcing his victim to not only perform

a sex act on camera, but then to make withdrawals from several ATMs. Although Defendant has

several mitigating factors, including family support and an unspeakable history of abuse,

Defendant's new infraction warranted a lengthy period of incarceration to break the pattern of his

behavior and victimization. Defendant's original sentence was not serving its desired end, and a

more appropriate sentence was required to protect the community.

       Beyond this, Defendant's sentences was substantially under the maximum statutory

sentence. Defendant was sentenced to two to four years for the third degree felony theft offense,

one to two years for the third degree felony forgery offense, and three months to twenty three

months for the first degree misdemeanor access device fraud offense. These sentences were




                                                  5
clearly below the statutory maximum offive years for a first degree misdemeanor and seven

years for a third degree felony.



CONCLUSION

       For the foregoing reasons, it is respectfully requested the Trial Court's sentence be

affirmed.



                                                  BY THE COURT:


                                                    ��--
                                                  Roxanne E. Covington
                                                  July 25, 2016




                                              6
