J-A17008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TROY ROBINSON,

                            Appellant                    No. 529 EDA 2015


            Appeal from the Judgment of Sentence January 23, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002155-2013

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED SEPTEMBER 06, 2016

        Appellant, Troy Robinson, appeals from the judgment of sentence

imposed following revocation of his probation.1 We affirm.

        We take the relevant facts and procedural history of this case from the

trial court’s March 24, 2015 opinion and our independent review of the

certified record.    On June 25, 2013, Appellant entered a negotiated guilty

plea to one count each of intimidation of a witness or victim, and contempt

for violation of order or agreement.2          The charges stem from Appellant’s

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We have amended the caption to reflect that Appellant is appealing from
the trial court’s January 23, 2015 sentence, rather than from the June 2,
2014 sentence, which the court vacated.
2
    18 Pa.C.S.A. § 4952(a)(1) and 23 Pa.C.S.A. § 6114(a), respectively.
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intimidation of an over eighty-year-old woman in an underlying rape case

against him.3 As Appellant’s trial date neared in the rape case, the victim

became uncooperative. Recorded prison phone conversations showed that

Appellant had called the victim numerous times, and instructed her to hide

from police and not show up for court. At the guilty plea hearing, the trial

court advised Appellant that the witness/victim intimidation offense was

graded as a second-degree felony, and it sentenced him to a term of five

years’ probation.       (See N.T. Guilty Plea, 6/25/13, at 13, 32; Order,

6/25/13). It further ordered Appellant to have no contact with the victim.

(See N.T. Guilty Plea, 6/25/13, at 34-35).

       On October 20, 2013, police arrested Appellant at the victim’s home

because he violated the court-imposed stay-away order. (See N.T. Hearing,

12/17/13, at 5, 12, 14-17).           On December 17, 2013, the court held a

violation of probation hearing. It ordered that Appellant’s probation was to

continue, with the added requirement that, upon release, he contact his

probation officer and enroll in a treatment program. (See id. at 21-22, 24-

26). It scheduled a status hearing for January 8, 2014. Appellant failed to

appear at the status hearing, and the court issued a bench warrant. (See

Order, 1/08/14).
____________________________________________


3
  In the underlying case, Appellant was charged with rape, aggravated
assault, and sexual assault, 18 Pa.C.S.A. §§ 3121, 2702, and 3124.1,
respectively. (See Trial Court Opinion, 3/24/15, at 7; N.T. Guilty Plea,
6/25/13, at 16; Commonwealth’s Brief, at 9).



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       On March 17, 2014, the court held a violation of probation hearing.

The probation department had advised the court that Appellant never

contacted the probation office or reported to the treatment facility.         (See

N.T. Hearing, 3/17/14, at 3-4; Trial Ct. Op., at 8).             The court found

Appellant in violation, revoked his probation, and deferred sentencing for

completion of a mental health evaluation. (See N.T. Hearing, 3/17/14, at

8). On June 2, 2014, the court sentenced Appellant to a term of not less

than two nor more than four years’ incarceration on the witness/victim

intimidation offense, with no further penalty on the remaining count. (See

N.T. Sentencing, 6/02/14, at 24-25).

       On June 10, 2014, Appellant filed a timely pro se motion for

reconsideration of sentence, which counsel supplemented on June 26, 2014.

See Pa.R.Crim.P. 708(E). The court vacated the sentence on June 26, 2014,

pending disposition of the motion.              On January 23, 2015, following a

hearing, the court denied Appellant’s motion. It re-imposed its sentence of

incarceration of not less than two nor more than four years on the

witness/victim intimidation charge.            (See Order, 1/23/15).   This timely4

appeal followed.5
____________________________________________


4
  “The filing of a motion to modify sentence [after a revocation] will not toll
the 30-day appeal period.” Pa.R.Crim.P. 708(E). “However, the trial court
may extend the appeal period by expressly granting reconsideration or
vacating the sentencing order within the 30-day jurisdictional period.”
Commonwealth v. Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998)
(citation omitted); Pa.R.Crim.P. 708(E), comment. Because Appellant filed
(Footnote Continued Next Page)


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      Appellant raises the following issues for our review:

      1. Where the [trial] [c]ourt vacated a sentence, after a violation
      of probation hearing had been held, and then resentenced
      [A]ppellant after more than 210 days had passed, did this
      lengthy period of inaction violate the tenets of Pa.R.Cr[im].P.
      720, which requires that a [c]ourt rule on a post-sentence
      motion within 150 days?

      2. Where the count to which [A]ppellant pled guilty should have
      resulted in a maximum sentence of two years, given the facts of
      the plea and dearth of aggravating factors in the bill of
      information reflected that the grade of the offense rose no higher
      than a second degree misdemeanor, was the Court’s sentence of
      2-4 years illegal, imposed without proper jurisdiction, and did it
      violate the tenets of Apprendi v. New Jersey, 530 U.S. 466
      (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013)?

      3. Where no evidence was presented by the Commonwealth or
      the [p]robation [d]epartment at the violation of probation
      hearing, was the trial [c]ourt permitted to revoke probation
      based on this dearth of evidence?

(Appellant’s Brief, at 3).

      Our review is guided by the following principles:

            The imposition of sentence following the revocation of
      probation is vested within the sound discretion of the trial court,
      which, absent an abuse of that discretion, will not be disturbed
      on appeal. An abuse of discretion is more than an error in
      judgment—a sentencing court has not abused its discretion
      unless the record discloses that the judgment exercised was
                       _______________________
(Footnote Continued)

his notice of appeal on February 11, 2015, within thirty days of the court’s
January 23, 2015 sentencing order, this appeal is timely. See Pa.R.A.P.
903(a).
5
  Although not ordered to do so by the trial court, Appellant filed a concise
statement of errors complained of on appeal on March 10, 2015. The court
entered an opinion on March 24, 2015. See Pa.R.A.P. 1925.




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        manifestly unreasonable, or the result of partiality, prejudice,
        bias or ill-will.

                                      *        *   *

               Our 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.A. §
        9771(b).    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.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84, 1286–87 (Pa.

Super. 2012), affirmed, 91 A.3d 102 (Pa. 2014), cert. denied, 135 S.Ct. 366

(2014) (case citations omitted).

        In his first issue, Appellant argues the trial court lacked jurisdiction to

impose the January 23, 2015 sentence where approximately seven months

had passed since it vacated the original June 2, 2014 sentence.              (See

Appellant’s Brief, at 9-12). In support, Appellant relies on Pennsylvania Rule

of Criminal Procedure 720(B)(3)(a), which governs post-sentence motions,

and sets an 120-day time limit for the trial judge to decide the motion.6

(See id. at 10-12). This issue does not merit relief.
____________________________________________


6
    The Rule states:

(B) Optional Post-Sentence Motion.

                                       *       *   *

(3) Time Limits for Decision on Motion. The judge shall not vacate
sentence pending decision on the post-sentence motion, but shall decide the
motion as provided in this paragraph.
(Footnote Continued Next Page)


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      Preliminarily, we observe that Rule 720 does not govern motions to

reconsider sentence filed after a court revokes probation.        Instead, as

referenced above, Rule 708(E) (addressing “motion[s] to modify a sentence

imposed after a revocation”) expressly governs such motions, and does not

include any time limit for ruling on the motion analogous to Rule 720.

Pa.R.Crim.P. 708(E).           Therefore, Appellant’s reliance on Rule 720 is

misplaced.

      Furthermore, the trial court addressed the issue of its jurisdiction as

follows:

            Pursuant to 42 Pa.C.S.[A.] § 5505, a court upon notice to
      the parties may modify or rescind any order within 30 days after
      its entry, notwithstanding the prior termination of any term of
      court, if no appeal from such order has been taken or allowed.7
      This court vacated its June 2, 2014 sentencing order on June 26,
      2014 and was well within the applicable 30[-]day window.
      [Appellant] had filed a timely post-sentence motion for
                       _______________________
(Footnote Continued)

      (a) Except as provided in paragraph (B)(3)(b) [(permitting a
      defendant to request an extension)], the judge shall decide the
      post-sentence motion, including any supplemental motion, within
      120 days of the filing of the motion. If the judge fails to decide
      the motion within 120 days, or to grant an extension as provided
      in paragraph (B)(3)(b), the motion shall be deemed denied by
      operation of law.

Pa.R.Crim.P. 720(B)(3)(a).
7
 [See] 42 Pa.C.S.[A.] § 5505 [(providing “a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”)].




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      reconsideration of sentence on June 10, 2014 and this court
      permitted newly retained counsel to supplement the motion via a
      new motion for reconsideration of sentence on June 26, 2014.
      There were several defense requests for continuation of the
      motion, resulting in the seven[-]month gap between the June 2,
      2014 original sentence and the January 23, 2015 re-imposed
      sentence on the charge of [i]ntimidation of [w]itnesses or
      [v]ictims (F2). This court retained proper jurisdiction to impose
      sentence throughout the proceeding and thus, [Appellant’s]
      claim must fail.

(Trial Ct. Op., at 5-6) (emphasis in original).

      Upon review, we conclude that the trial court properly disposed of this

issue. See Simmons, supra at 1286–87. Appellant’s first claim does not

merit relief.

      In his second issue, Appellant argues that his sentence of not less than

two   nor   more   than four years’ incarceration on the       witness/victim

intimidation offense is illegal because it was improperly graded as a second-

degree felony. (See Appellant’s Brief, at 12-24). He acknowledges that he

pleaded guilty to the felony charge, but asserts that the facts demonstrate a

misdemeanor of the second degree, carrying a maximum sentence of two

years’ incarceration. (See id. at 12-13, 23). He maintains the plea colloquy

reflects that he merely told the witness not to appear in court and instructed

her how to do so; he did not employ violence or deception, offer any

pecuniary benefit to the witness, or engage in any other type of conduct

warranting a felony grading.      (See id. at 14-16 (citing 18 Pa.C.S.A. §

4952(b)(1)(i)-(v))). We disagree.

      At the outset, we note:



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     The proper grading of a criminal offense is an issue of statutory
     interpretation and implicates the legality of the sentence
     imposed.     For this reason, it may not be waived.          The
     interpretation of a statute is a pure question of law, and
     therefore our standard of review is de novo and our scope of
     review is plenary.

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013), appeal

denied, 85 A.3d 482 (Pa. 2014) (citations omitted).

     Section 4952(b) of the Crimes Code sets forth the framework for

grading the offense of witness/victim intimidation and provides:

     (b) Grading.—

          (1) The offense is a felony of the degree indicated in
     paragraphs (2) through (4) if:

           (i) The actor employs force, violence or deception, or
           threatens to employ force or violence, upon the
           witness or victim or, with the requisite intent or
           knowledge upon any other person.

           (ii) The actor offers any pecuniary or other benefit to
           the witness or victim or, with the requisite intent or
           knowledge, to any other person.

           (iii) The actor’s conduct is in furtherance of a
           conspiracy to intimidate a witness or victim.

           (iv) The actor accepts, agrees or solicits another to
           accept any pecuniary or other benefit to intimidate a
           witness or victim.

           (v) The actor has suffered any prior conviction for
           any violation of this section or any predecessor law
           hereto, or has been convicted, under any Federal
           statute or statute of any other state, of an act which
           would be a violation of this section if committed in
           this State.




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     (2) The offense is a felony of the first degree if a felony of
     the first degree or murder in the first or second degree
     was charged in the case in which the actor sought to
     influence or intimidate a witness or victim as specified in
     this subsection.

     (3) The offense is a felony of the second degree if a felony
     of the second degree is the most serious offense charged
     in the case in which the actor sought to influence or
     intimidate a witness or victim as specified in this
     subsection.

     (4) The offense is a felony of the third degree in any other case
     in which the actor sought to influence or intimidate a witness or
     victim as specified in this subsection.

     (5) Otherwise the offense is a misdemeanor of the second
     degree.

18 Pa.C.S.A. § 4952(b)(1)-(5) (emphases added).

     Thus,

     . . . Subsection 4952(b) provides a clear roadmap for the
     grading of witness/victim intimidation offenses. If a felony of
     the first-degree . . . was charged in the case, then the offense of
     witness/victim intimidation is graded as a first-degree felony. 18
     Pa.C.S.A. § 4952(b)(2). If the most serious offense charged in
     the case was a second degree felony, then the witness/victim
     intimidation offense is graded as a second-degree felony. 18
     Pa.C.S.A. § 4952(b)(3). If no first-degree or second-degree
     felony was charged in the case, but the criminal defendant
     nevertheless sought to influence or intimidate a witness or victim
     in any manner described in subsection 4952(b)(1), then the
     witness/victim intimidation offense is graded as a third degree
     felony. 18 Pa.C.S.A. § 4952(b)(4). In all other cases, the
     offense of witness/victim intimidation is graded as a second-
     degree misdemeanor. 18 Pa.C.S.A. § 4952(b)(5).

     . . . [T]he statute’s focus on the most serious crime charged
     makes eminent sense, since the relevant charge is the most
     serious one a criminal defendant attempted to escape by use of
     intimidation.


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Felder, supra at 516–17 (quotation marks omitted) (holding “[b]ecause the

Commonwealth charged [appellant] with a first-degree felony (aggravated

assault), the trial court properly graded her conviction for witness/victim

intimidation pursuant to subsection 4952 as a first-degree felony.”).

      Here, Appellant contends that, under the plain meaning of section

4952, the grading for his offense fell under (b)(5), a misdemeanor, because

none of the grounds under subsection (b)(1) were met.        (See Appellant’s

Brief, at 15). The trial court disagreed, and addressed his claim as follows:

            The underlying case giving rise to the instant charge of
      intimidation of witnesses or victims contained the charges of
      rape (F1), aggravated assault (F1), and sexual assault (F2).
      While the Commonwealth could have required the instant case to
      go forward charged as a first[-]degree felony, it permitted
      [Appellant] to enter into a negotiated guilty plea to the charge
      as a second[-]degree felony. The sexual assault (F2) charge of
      the underlying case supports the instant conviction as a second[-
      ]degree felony and this court was well within its discretion to
      sentence [Appellant] to [two]-[four] years of incarceration.

(Trial Ct. Op., at 7-8) (some capitalization omitted); see also 18 Pa.C.S.A. §

106(b)(3) (setting maximum term of incarceration of ten years for second-

degree felony convictions).

      After review of the record, we agree with the trial court’s analysis.

Because the Commonwealth charged Appellant with first and second-degree

felonies in the underlying case, the court properly graded the witness/victim

intimidation offense pursuant to section 4952 as a second-degree felony.

See 18 Pa.C.S.A. § 4952(b)(2),(3); Felder, supra at 516–17.         Given the

serious felony offenses with which Appellant was charged in the underlying


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matter, the factors enumerated in section 4952(b)(1)(i)-(v) are irrelevant,

and grading the offense as a misdemeanor would have been inappropriate.

See Felder, supra at 516–17. Accordingly, Appellant’s second claim does

not merit relief.8

       In his third issue, Appellant argues the evidence was insufficient to

support revocation of his probation. (See Appellant’s Brief, at 24-28). He

asserts that at the revocation proceeding, the Commonwealth did not

present evidence of his violations, and the court merely referenced its notes

indicating that he did not report to the probation office or attend the

treatment program. (See id. at 24, 27). This issue lacks merit.

       “[A] court may revoke an order of probation upon proof of the

violation of specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b).

“There shall be no revocation . . . except after a hearing at which the court

shall consider the record of the sentencing proceeding together with

evidence of the conduct of the defendant while on probation.” Id. at (d).

          Revocation of a probation sentence is a matter committed to
       the sound discretion of the trial court and that court’s decision
____________________________________________


8
  We note for the sake of completeness that Appellant’s reliance on Alleyne,
supra and Apprendi, supra, is misplaced. (See Appellant’s Brief, at 13).
“Alleyne and Apprendi dealt with [sentencing] factors that either increased
the mandatory minimum sentence or increased the prescribed sentencing
range beyond the statutory maximum, respectively.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc), appeal
denied, 104 A.3d 1 (Pa. 2014). Because the instant case does not involve
either situation, Alleyne and Apprendi are not implicated. See id.



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     will not be disturbed on appeal in the absence of an error of law
     or an abuse of discretion. When assessing whether to revoke
     probation, the trial court must balance the interests of society in
     preventing future criminal conduct by the defendant against the
     possibility of rehabilitating the defendant outside of prison. In
     order to uphold a revocation of probation, the Commonwealth
     must show by a preponderance of the evidence that a defendant
     violated his probation. [T]he 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[.]
     A probation violation is established whenever it is shown that the
     conduct of the probationer indicates the probation has proven to
     have been an ineffective vehicle to accomplish rehabilitation and
     not sufficient to deter against future antisocial conduct.


                                *     *      *

        . . . It must be emphasized that a probation revocation
     hearing is not a trial: The court’s purpose is not to determine
     whether the probationer committed a crime. . . . The degree of
     proof necessary for probation revocation is less than that
     required to sustain a criminal conviction. Probation may be
     revoked on the basis of conduct which falls short of criminal
     conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041-42 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015) (citations and quotation marks

omitted).

     Here, the trial court explained its rationale for revoking Appellant’s

probation as follows:

            On December 17, 2013, this court conducted a violation
     hearing and although [Appellant] had violated the stay away
     order that was a condition of his probation, this court took the
     unique circumstances of the case into consideration and ordered
     that [Appellant’s] probation was to continue with the added
     requirement that, upon release, he must contact his probation
     officer and enroll for treatment at Men and Women in Progress,

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J-A17008-16


      located at 1809 East Tioga Street in the City of Philadelphia.
      (See N.T. Hearing, 12/17/13, at 9-10, 22, 24-26). This court
      then listed the case for status of treatment on January 8, 2014.
      (See id. at 25). On January 8, 2014, [Appellant] failed to
      appear and a bench warrant was issued. (See Order, 1/08/14).
      On March 17, 2014, this court conducted a violation hearing,
      wherein the Probation Department notified the court that
      [Appellant] never contacted the probation office and never
      reported to Men and Women in Progress, the specified treatment
      facility. (See N.T. Hearing, 3/17/14, at 3-4). Accordingly, this
      court found [Appellant] in violation and deferred sentencing for
      completion of a mental health evaluation. [Appellant’s] failure to
      report to both the Probation Department and the treatment
      facility were violations of the court’s December 17, 2013 order
      and his failure to appear at the January 8, 2014 status listing
      was further indicative of his non-compliance. As such, the
      court’s revocation was proper[.]

(Trial Ct. Op., at 8-9) (record citations added; footnotes omitted).

      Upon review, we discern no error of law or abuse of discretion in the

trial court’s decision to revoke Appellant’s probation. See Colon, supra at

1041-42.    The evidence of record reflects, by a preponderance of the

evidence, that Appellant violated the conditions of his probation, and that

probation was ineffective in accomplishing rehabilitation and had not

deterred future antisocial conduct.       See id.; see also 42 Pa.C.S.A. §

9771(b).      Therefore,   Appellant’s   final   issue   does   not   merit   relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2016




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