J-S29002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICA DAWKINS,

                            Appellant                 No. 1413 WDA 2014


          Appeal from the Judgment of Sentence Entered July 29, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007941-2010


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 18, 2016

        Appellant, Mica Dawkins, appeals from the judgment of sentence of an

aggregate term of 3 to 10 years’ imprisonment, imposed after the court

revoked his term of probation based on new convictions in an unrelated

case. Appellant challenges the discretionary aspects of his sentence. After

careful review, we affirm.

        The record establishes that, on December 1, 2010, Appellant entered a

guilty plea to charges of Persons Not to Possess Firearms,1 Possession of a




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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
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Controlled Substance,2 and Possession of Drug Paraphernalia.3           The trial

court sentenced him to a term of three (3) years’ probation.          Trial Court

Opinion (TCO), 7/20/15, at 1.           No further action occurred until July 29,

2014, when Appellant appeared before the trial court for a probation

violation hearing. Id.

        At the probation violation hearing, Ashlee A. Lynn, the probation

liaison for Allegheny County, reported that Appellant was before the court

with technical violations and a new conviction.         N.T. Probation Violation,

7/29/14, at 2. The new conviction stemmed from an incident where two

officers observed Appellant’s operating a motor vehicle without a license.

Id.

        In that vehicle a large quantity of glassine stamp bags –
        actually, 2,500 stamp bags and one ounce of quinine was
        located. Those are often used in the processing and distribution
        of narcotics; namely, heroin. Those led to an approved search of
        his residence. That search was assisted by the North Versailles
        Police Department as well as agents from the Attorney General’s
        Office. In that residence[,] 59.9 grams of uncut heroin were
        located. This amount of heroin has approximate street value of
        $30,000. They also found a bulletproof vest and $16,500 in U.S.
        currency. [Appellant] was found guilty by the Honorable Judge
        Borkowski and sentenced on May 9th of 2014 at Count 3,
        possession with intent to deliver fifty or more grams of heroin, to
        five to ten years in a state correctional facility.



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2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).



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Id. at 2-3.     Based on this new conviction, the court revoked Appellant’s

probation in this case and resentenced him to three to ten years’

imprisonment.

      Appellant filed a motion to reconsider his sentence, which was denied

on August 19, 2014. A timely notice of appeal and a concise statement of

errors complained of on appeal followed.          Appellant now presents the

following issue(s) for our review:

      I.      Whether the revocation sentence of 3-10 years[’]
              incarceration was manifestly excessive, unreasonable, and
              an abuse of discretion when the trial court did not consider
              the nature, characteristics, and rehabilitative needs of
              [Appellant], and the sentence imposed was also improperly
              influenced by inflammatory and prejudicial information
              contained in the pre-sentence investigation report?

Appellant’s Brief at 4.    Although Appellant lists the above claims as one

issue, he is essentially raising two distinct claims for our review and, thus,

we will address these arguments separately.

      To the extent that Appellant raises issues regarding the discretionary

aspects of his sentence, we note the following:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

           We 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


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         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.A. § 9781(b).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.

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

and internal quotations omitted).

      Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and

included a Rule 2119(f) statement in his appellate brief in compliance with

the Pennsylvania Rules of Appellate Procedure.            Thus, we proceed to

determine whether Appellant has raised a substantial question to meet the

fourth requirement of the four-part test outlined above.

      As we explained in Moury:

      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.

Id. at 170 (citations and internal quotations omitted).

      Appellant first contends that his revocation sentence is manifestly

excessive, unreasonable, and an abuse of discretion, as the trial court failed

to consider the nature, characteristics, and rehabilitative needs of Appellant.

Appellant’s Brief at 15. We are precluded from reviewing this claim, because

it fails to raise a substantial question to meet the fourth requirement of the

four-part test outlined above.      See Commonwealth v. Griffin, 65 A.3d

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932, 936 (Pa. Super. 2013) (finding that defendant’s claim that his sentence

failed to take into account his rehabilitative needs did not raise a substantial

question); Commonwealth v. Cannon, 954 A.2d 1222, 1228-29 (Pa.

Super. 2008) (concluding that a claim that trial court failed to consider the

defendant’s rehabilitative needs, age, and educational background did not

present a substantial question).

      Even if we were to grant review of Appellant’s claim, we would

conclude that the underlying allegation is without merit. When we consider

an appeal from a sentence imposed following the revocation of probation,

our standard of review is well-settled:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following
      the revocation of probation, it is within our scope of review to
      consider challenges to both the legality of the final sentence and
      the discretionary aspects of an appellant’s sentence.

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

(citations omitted).

      Appellant asserts that the trial court failed to take into consideration

his statement to the court that he now has “a different perspective on life”

and that he is “becoming a new man.” Appellant’s Brief at 16. However,

Appellant was given the opportunity to make these statements on the record

to the court.      Moreover, the record indicates that a pre-sentence



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investigation report was ordered prior to sentencing and relied on by the

trial court. TCO at 3.

         When imposing sentence, a court is required to consider the
         particular circumstances of the offense and the character of the
         defendant. In considering these factors, the court should refer
         to the defendant’s prior criminal record, age, personal
         characteristics and potential for rehabilitation.   Where pre-
         sentence reports exist, we shall presume that the sentencing
         judge was aware of relevant information regarding the
         defendant’s character and weighed those considerations along
         with mitigating statutory factors.        A pre-sentence report
         constitutes the record and speaks for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).

Therefore, we can presume that the court weighed the appropriate factors in

determining Appellant’s sentence.

         We now address the second part of Appellant’s claim in which he

asserts that the trial court “considered inflammatory misinformation in

imposing sentence.        Specifically, the pre-sentence investigation report

claimed that [Appellant] was a gang member who was suspected of

involvement in a homicide, even though he was never charged with such

crime.”     Appellant’s Brief at 21.   Appellant’s assertion that the trial court

relied    on   misinformation   when   imposing   his   sentence   constitutes   a

substantial question. See Commonwealth v. McAfee, 849 A.2d 270, 274

(Pa. Super. 2004) (finding a substantial question existed where the appellant

claimed that the trial court relied upon incorrect factual assertions when

imposing sentence). Thus, we grant allowance of appeal on this issue.




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      After careful review of the record, however, we conclude that the trial

court properly considered the appropriate factors in determining Appellant’s

sentence.   The record belies Appellant’s claim that the court relied on his

rumored involvement with a gang:

      [F]rankly, I’m surprised that you’re alive or not standing here
      before me for a homicide charge. This is your fourth conviction
      in Criminal Court. You have never done well on supervision.
      You submitted urine positive for coke. You drove without a
      license. They found almost sixty grams of uncut heroin, a
      bulletproof vest … and $16,000. The heroin was worth about
      $30,000. You’ve had two prior gun convictions. It’s been
      rumored, which I’m not putting any emphasis on, that you’re a
      member of the Kelly Street Crips. In addition, you’ve been in
      total noncompliance. I don’t want to go there. You are certainly
      a danger to the community. I see no evidence of your desire to
      rehabilitate yourself, and I am going to revoke your probation
      and order you to serve three to ten years consecutive to any
      other sentence you may now be serving.

N.T. Probation Violation at 7-8 (emphasis added). In sum, we are convinced

that the court adequately considered all of the appropriate sentencing

factors, placing an emphasis on public safety due to Appellant’s lengthy

criminal history and failure to take advantage of rehabilitation opportunities.

We ascertain no abuse of discretion by the court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2016


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