J-S18028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SEAN SIMMONS,

                         Appellant                  No. 1740 EDA 2014


        Appeal from the Judgment of Sentence entered May 8, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0008336-2009


BEFORE: BENDER, P.J.E., ALLEN and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED MARCH 23, 2015

      Sean Simmons (“Appellant”) appeals from the judgment of sentence

imposed following the trial court’s revocation of his probation. We affirm.

      The trial court summarized the pertinent factual and procedural history

as follows:

            On September 25, 2009, Appellant was sentenced to 3
         years probation by the Honorable Roger Gordon after
         pleading guilty to criminal trespass (18 Pa.C.S.A. §
         3503(A)(1)(ii)) as a second degree felony. Appellant’s
         probation was to be supervised by the mental health unit
         of the probation department.       On October 18, 2010,
         [A]ppellant was arrested and charged with aggravated
         assault (18 Pa.C.S.A. § 2702), as a felony of the first
         degree, [a] potential direct violation of Judge Gordon’s
         probation. A violation hearing was scheduled before Judge
         Gordon but had to be continued several times pending
         resolution of [A]ppellant’s open bills. On December 14,
         2011, Judge Gordon ordered a pre-sentence investigation
         report, in the event it would be needed for sentencing, and
         continued the hearing for a status of [A]ppellant’s mental
         health. Thereafter, Judge Gordon relinquished jurisdiction,
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       the matter was transferred and [A]ppellant was formally
       accepted into Mental Health Court (MHC).         Both the
       potential direct violation of Judge Gordon’s probation and
       the new conviction were consolidated before [the
       Honorable Judge Sheila Woods Skipper]. On May 3, 2012,
       [A]ppellant pleaded nolo contendere to the aggravated
       assault and was sentenced to 11½ - 23 months
       confinement followed by 15 years probation (CP-51-CR-
       0015449-2010). He was also sentenced to 11½ - 23
       months confinement followed by 5 years probation, to run
       concurrently, for the direct violation of Judge Gordon’s
       probation (CP-51-CR-0008336-2009). Appellant was to be
       paroled to a treatment facility upon bed availability and
       ordered to comply with treatment and all the conditions of
       his sentence.

           As is the procedure in MHC, [A]ppellant was scheduled
       for status of mental health and treatment hearings at
       regular intervals to monitor his compliance and progress.
       At [A]ppellant’s July 19, 2012 status hearing, [A]ppellant’s
       probation officer reported that [A]ppellant was paroled to
       Eagleville Hospital on July 12, 2012, and was in
       compliance with his treatment program. Appellant was
       reported in compliance at the August 9, 2012 hearing.
       However, on August 28, 2012, [A]ppellant’s probation
       officer issued wanted cards after receiving a report that
       [A]ppellant absconded from the treatment program on
       August 20, 2012, and did not contact his probation officer.
       At the September 27, 2012 hearing the bench warrant was
       lifted, and [A]ppellant was scheduled for a FIR evaluation
       the following day, which he did attend. Appellant was
       reported to be in compliance again at the October 18,
       2012 status hearing.      But on November 26, 2012, a
       probation violation warrant was again issued after
       [A]ppellant failed to report to probation as scheduled. At
       the December 6, 2012 status hearing, [A]ppellant was
       taken into custody from the courtroom and a violation
       hearing was scheduled. ... [A] violation hearing was
       scheduled for January 24, 2013 [following which,] despite
       [A]ppellant’s     technical     violations,    [A]ppellant's
       probation/parole was continued and he was directed to re-
       enroll in treatment and report to his probation officer as
       scheduled. Appellant was reported to be in compliance
       with the conditions of his probation at the January 31,


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        2013, March 14, 2013, May 16, 2013, June 20, 2013 and
        August 15, 2013 [status conference] listings.

            On September 27, 2013, [A]ppellant’s probation officer
        issued a probation warrant after it was determined that
        [A]ppellant was apprehended on September 30, 2013. At
        the October 17, 2013 status hearing, [A]ppellant’s
        probation officer reported that [A]ppellant had tested
        positive for drugs. Appellant remained in custody until the
        November 14, 2013 violation hearing.          Following the
        hearing, [A]ppellant was found in violation of his
        probation/parole due to the technical violations and, in lieu
        of a new sentence, the [trial court] considered
        [A]ppellant’s time spent in custody as his sanction. At the
        December 12, 2013 listing, [A]ppellant was once again
        reported to be in compliance with the conditions of his
        treatment, however he failed to appear for the hearing, ...
        and a bench warrant nunc pro tunc was issued. Appellant
        did appear for the February 28, 2014 listing. His probation
        officer reported that he was once again not in compliance
        with his treatment program and a violation hearing was
        scheduled for May 8, 2014. At the hearing, [A]ppellant’s
        probation officer testified that [A]ppellant was not
        reporting as scheduled to the probation department and
        she received information that [A]ppellant had not been to
        his treatment program since March 11, 2014. When she
        spoke with [A]ppellant, he falsely assured her that he was
        back in the program.       However, when she contacted
        Wedge Franklin she learned that [A]ppellant was not
        attending and had been discharged from the program on
        April 11, 2014.       Appellant also tested positive for
        marijuana.

Trial Court Opinion, 8/21/14, at 1-4 (footnotes omitted).

     At the conclusion of the May 8, 2014 hearing, the trial court found

Appellant in technical violation of his probation and re-sentenced him to

three (3) – six (6) years of incarceration.     Appellant filed a motion for

reconsideration on May 16, 2014, which the trial court denied on June 3,




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2014.     This appeal followed.     Both Appellant and the trial court have

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

        Appellant presents the following issue for our review:

               Did not the [trial court] abuse its discretion and impose a
        sentence that was manifestly excessive where it failed to order,
        consider, or state its reasons for dispensing with a pre-sentence
        investigation report in violation of the Rules of Criminal
        Procedure, Rule 702(A)(2), and where it sentenced [A]ppellant
        to total confinement absent his having been convicted of a new
        crime, absent any indication that he was likely to commit a new
        crime, and absent a need to vindicate the authority of the court,
        in violation of the requirements of 42 Pa.C.S.A. § 9771(c)?

Appellant’s Brief at 3.

        Appellant asserts that at the sentencing hearing, the trial court failed

to order a pre-sentence investigation report, and failed to provide reasons

on the record for its decision not to order the report, thereby abusing its

sentencing discretion. Appellant’s Brief at 11-15.

        Appellant’s challenge to the discretionary aspects of his sentence is not

appealable as of right.     Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

A.2d 1254, 1257 (Pa. Super. 2004).

              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. The third and fourth of
        these requirements arise because Appellant's attack on his
        sentence is not an appeal as of right. Rather, he must petition

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      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.

Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion”).

      Here, Appellant preserved his claim in his motion for reconsideration,

and filed a timely notice of appeal. Appellant has additionally included in his

brief a concise statement pursuant to Pa.R.A.P. 2119(f).       See Appellant’s

Brief at 6-8. Moreover, Appellant’s claim that the trial court failed to order a

pre-sentence investigation report, or provide reasons for its failure to do so,

raises a substantial question for our review.       See Commonwealth v.

Flowers, 950 A.2d 330, 332 (Pa. Super. 2008).

      In Commonwealth v. Pasture --- A.3d ----, 2014 WL 7392242 (Pa.

2014), our Supreme Court recently reiterated the “broad discretion and

deferential standard of appellate review” we afford to a trial court when

presented with a challenge to the discretionary aspects of a sentence. The

High Court in Pasture emphasized that “the sentencing court sentences

flesh-and-blood defendants and the nuances of sentencing decisions are


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difficult to gauge from the cold transcript used upon appellate review.

Moreover, the sentencing court enjoys an institutional advantage to

appellate review, bringing to its decisions an expertise, experience, and

judgment that should not be lightly disturbed.”     Pasture at 5 (citations

omitted).   With particular regard to probation revocation proceedings, the

Supreme Court explained:


            The sentencing court's institutional advantage is, perhaps,
     more pronounced in fashioning a sentence following the
     revocation of probation, which is qualitatively different than an
     initial sentencing proceeding. At initial sentencing, all of the
     rules and procedures designed to inform the court and to cabin
     its discretionary sentencing authority properly are involved and
     play a crucial role. However, it is a different matter when a
     defendant reappears before the court for sentencing proceedings
     following a violation of the mercy bestowed upon him in the form
     of a probationary sentence. For example, in such a case,
     contrary to when an initial sentence is imposed, the Sentencing
     Guidelines do not apply, and the revocation court is not cabined
     by Section 9721(b)'s requirement 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. § 9721.

           Upon revoking probation, “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.”         42 Pa.C.S. §
     9771(b).     Thus, upon revoking probation, the trial court is
     limited only by the maximum sentence that it could have
     imposed originally at the time of the probationary sentence,
     although once probation has been revoked, the court shall not
     impose a sentence of total confinement unless it finds that:

     (1)    the defendant has been convicted of another crime; or




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     (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. § 9771(c).

           Moreover, 42 Pa.C.S. § 9721(b) specifies that in every
     case following the revocation of probation, “the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating
     at the time of sentence following the revocation of probation,
     “[t]he judge shall state on the record the reasons for the
     sentence imposed.”).

            However, following revocation, a sentencing court need not
     undertake a lengthy discourse for its reasons for imposing a
     sentence or specifically reference the statutes in question.
     Simply put, since the defendant has previously appeared before
     the sentencing court, the stated reasons for a revocation
     sentence need not be as elaborate as that which is required at
     initial sentencing. The rationale for this is obvious. When
     sentencing is a consequence of the revocation of probation, the
     trial judge is already fully informed as to the facts and
     circumstances of both the crime and the nature of the
     defendant, particularly where, as here, the trial judge had the
     benefit of a [pre-sentence investigation report] during the initial
     sentencing proceedings. ... [T]here is no absolute requirement
     that a trial judge, who has already given the defendant one
     sentencing break after having the benefit of a full record,
     including a [pre-sentence investigation report], must order
     another [pre-sentence investigation report] before fashioning the
     appropriate revocation sentence.

                                    ***
     In point of fact, where the revocation sentence was adequately
     considered and sufficiently explained on the record by the
     revocation judge, in light of the judge's experience with the
     defendant and awareness of the circumstances of the probation
     violation, under the appropriate deferential standard of review,
     the sentence, if within the statutory bounds, is peculiarly within
     the judge's discretion.

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Pasture at 6 (citations omitted).

      Here, our review of the record confirms that the trial court was very

familiar with Appellant, having presided over numerous proceedings in this

matter. The record reflects that on May 3, 2012, the trial court conducted a

probation revocation hearing, at which Appellant was found in violation of his

probation and re-sentenced. Thereafter, the trial court repeatedly reviewed

Appellant’s progress at numerous treatment “status of mental health”

conferences, at which the trial court reviewed Appellant’s compliance with

his treatment program.    See e.g., Trial Court Orders, 7/19/12; 10/18/12;

12/06/12; 1/24/13 (finding Appellant competent and ordering him to report

to probation and re-enroll in treatment); 1/31/13 (finding Appellant in

compliance with his program); 3/14/13; 5/16/13 (finding Appellant in

compliance with his program). Thus, the trial court in the years preceding

the revocation proceeding at issue in this appeal, regularly reviewed

Appellant’s progress, and was quite familiar with Appellant and the facts and

circumstances of his case.

      Moreover, at the revocation hearing on May 8, 2014, the trial court

heard a detailed account of Appellant’s progress from Appellant’s probation

officer, Keisha Adams. N.T., 5/8/14, at 3. Ms. Adams recounted Appellant’s

irregular reporting history, his family circumstances, his lack of compliance

with his treatment program, his submission of false urine samples, Ms.

Adams’ efforts to communicate with Appellant about his lack of compliance,


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and Appellant’s failure to respond to Ms. Adams’ requests. Id. at 3-5. The

trial court additionally heard from Appellant, who stated that he was “back in

treatment.” Id. at 6.

      As the trial court explained:

      Appellant’s sentence of 3-6 years is well below the maximum. …
      [A]ppellant’s behavior demonstrated to the Court that he had
      not benefitted from probation and the services provided during
      his probation, and was likely to re-offend. After numerous
      technical violations and failures to comply with the conditions of
      his sentence and MHC, it was obvious that [A]ppellant had no
      intention of conforming his behavior. Moreover, [A]ppellant’s
      sentence was necessary to vindicate the authority of the Court
      since [A]ppellant failed to comply with the conditions of his
      sentence despite the Court giving him several informal sanctions
      before violating him a second time.

                                       ***

      The record demonstrates that, having supervised [A]ppellant
      since May 2012, as a participant in Mental Health Court, the
      [trial court] was in possession of several reports and evaluations
      from psychiatrists, [A]ppellant’s social workers and case
      managers, treatment facility staff, and probation officers, and
      possessed more than sufficient information to enable it to make
      a determination of the circumstances of [A]ppellant’s offense
      and [A]ppellant’s character, and give individualized consideration
      to [A]ppellant’s needs at sentencing.         Prior to sentencing
      [A]ppellant, the [trial court] noted that while [A]ppellant did
      have some periods of compliance, there were also several
      instances where he had failed to report to his probation officer,
      had been sanctioned for non-compliance and had submitted
      positive drug screens. In addition, the [trial court] noted that
      this was [A]ppellant’s second violation hearing before the [trial
      court]. Therefore, the [trial court] had sufficient information to
      substitute for the [pre-sentence investigation report] when
      fashioning an individualized sentence for [A]ppellant and this
      claim fails.

Trial Court Opinion, 8/21/14 at 6-8 (citation to notes of testimony omitted).

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       We agree with the trial court that in the absence of a pre-sentence

investigation report, the trial court was sufficiently informed of the relevant

facts and circumstances to enable it to “fashion the appropriate revocation

sentence.” Pasture, supra. Appellant’s claim to the contrary lacks merit.

       To the extent Appellant argues that the trial court sentenced him to

total confinement based on his technical violations, and without considering

the applicable statutory factors set forth in 42 Pa.C.S.A. § 9771(c), this

claim also lacks merit.1 “Technical violations can support revocation and a

sentence of incarceration when such violations are flagrant and indicate an

inability to reform.” Carver, 923 A.2d at 498. As the trial court correctly

concluded, numerous attempts to rehabilitate Appellant had not only failed,

but led to a continuation of noncompliant behavior, with Appellant incurring

“escalating … infractions”, indicating that he “had not taken his supervision

seriously, and that [A]ppellant had the ability to make good decisions but

chose to do otherwise[.]”         Trial Court Opinion, 8/21/14, at 9.   Appellant

failed to comply with his court-ordered mental health treatment, provided

false urine samples to his probation officer, tested positive for marijuana,

repeatedly failed to meet with his probation officer, and provided her with

false information about his participation in the treatment program.         Upon
____________________________________________


1
   “[A] claim that a particular probation revocation sentence is excessive in
light of its underlying technical violations can present a question that we
should review.” Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super.
2007).



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J-S18028-15


review, we find no abuse of discretion in the trial court’s determination that

Appellant’s sentence of incarceration was appropriate to vindicate the

authority of the court. See Trial Court Opinion, 8/21/14, at 6. Therefore,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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