J-S77041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
VICTOR DICKERSON,                          :
                                           :
                       Appellant           :    No. 816 EDA 2017

          Appeal from the Judgment of Sentence January 30, 2017
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002028-2010

BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 30, 2019

      Victor Dickerson (Appellant) appeals from the judgment of sentence of

three to six years of incarceration imposed after the revocation of his

probation. We affirm.

      The revocation court set forth the following relevant procedural and

factual history of this case.

            On February 3, 2010, at approximately 10:30 A.M., the
      complainant, Clarence West, who is 84 years of age and confined
      to a wheelchair, found Appellant in his home without permission.
      Appellant claimed that complainant’s son, who was on deployment
      to Kuwait, gave him permission to enter the home. Appellant fled
      with approximately $5,000 … worth of valuables.

                                     ***

           Appellant entered into a non-negotiated guilty plea on
      August 30, 2010[,] admitting to the crime of burglary, a felony of


* Retired Senior Judge assigned to the Superior Court.
J-S77041-18


        the first degree. Sentencing was deferred for a presentence
        investigation [(PSI)] and mental health & psychiatric evaluation.
        On October 26, 2010, Appellant was sentenced to an aggregate
        total of 2 – 4 years of state incarceration followed by 3 years of
        probation.

Revocation Court Opinion, 5/21/2018, at 1-2 (footnotes and unnecessary

capitalization omitted).

        On August 29, 2016, while still serving his probationary sentence for the

aforementioned burglary, Appellant was convicted of two felonies. On January

30, 2017, the revocation court held a Gagnon II1 hearing, revoked

Appellant’s probation, and sentenced him to three to six years of incarceration

to be served consecutively to his other sentences. Appellant did not file post-

sentence motions, but did file a timely notice of appeal. Both Appellant and

the revocation court complied with Pa.R.A.P. 1925.

        On appeal, Appellant raises two claims for our review. First, Appellant

argues the revocation court erred because it “did not take into consideration

[Appellant’s] rehabilitative needs” when sentencing Appellant. Appellant’s

Brief at 3. Appellant also claims the revocation court erred by not ordering a

PSI or mental health evaluation. Id.

        Appellant’s claims implicate the discretionary aspects of his sentence.

See Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016) (noting that

a claim that the sentencing court failed to or did not adequately consider

rehabilitative needs challenges the discretionary aspects of a sentence);


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).
                                       -2-
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Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super. 2008) (pointing

out that “a claim that the court erred in failing to order a PSI report raises a

discretionary aspect of sentencing claim”).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant timely filed a notice of appeal. However, our review of

the record reveals that Appellant did not file a post-sentence motion or raise

these issues at sentencing. See N.T., 1/30/2017. Accordingly, Appellant has

not preserved these issues for our review, and he is not entitled to relief. See

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (stating

that an appellant waives for appeal issues challenging the discretionary

aspects of his sentence where he does not raise them at sentencing or in a

post-sentence motion).

      Judgment of sentence affirmed.

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J-S77041-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/19




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