J-S29030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DWIGHT RUTLEDGE

                            Appellant                  No. 2038 EDA 2016


       Appeal from the Judgment of Sentence dated September 18, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013043-2008

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                  FILED SEPTEMBER 29, 2017

        Appellant Dwight Rutledge appeals from the judgment of sentence

imposed after the trial court revoked his probation on September 18, 2012.

We affirm.

        We recount the facts and history as set forth in the trial court’s

opinion:

        On June 22, 2008, Appellant and his girlfriend, Lashakeen
        Spears-Garrison (“Spears”) began arguing about paying rent for
        the apartment at which they were co-tenants. Spears called
        911, prompting two Philadelphia Police Department (“PPD”)
        officers to respond to the disturbance. The officers attempted to
        defuse the situation by talking to both Appellant and Spears,
        advised Spears to apply for a protection order if she wanted
        Appellant to be removed from the apartment, and then left. This
        intervention failed to have the intended effect, however, as
        Spears and Appellant continued to quarrel, culminating with
        Appellant menacing Spears with a loaded handgun and
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S29030-17


     threatening to kill her. Spears then fled the apartment, found
     the aforementioned officers in the street outside, and told them
     about what had just transpired. The officers reentered the
     apartment and, following direction from Spears, discovered a
     loaded, silver-and-black 9mm semiautomatic handgun in
     Appellant’s dresser, as well as a small amount of marijuana in
     one of Appellant’s shirts inside a closet. Consequently, Appellant
     was arrested.

     Appellant was then held in pre-sentence detention and, on
     January 5, 2009, filed a Petition for Release on Nominal Bail,
     which this Court granted on February 3, 2009. Trial was then
     scheduled for May 5, 2009; however, Appellant failed to appear
     on that date, prompting th[e trial c]ourt to issue a bench
     warrant. This warrant was lifted on May 19, 2009, and trial was
     rescheduled for July 13, 2009.         The Commonwealth then
     requested a continuance, which this Court granted on July 13,
     2009. Appellant waived his right to a jury trial and, after a
     bench trial on September 14, 2009, th[e trial c]ourt found him
     guilty of Unlawful Possession of a Firearm,1 a second-degree
     felony. Appellant was then released, pending sentencing on
     November 19, 2009, but failed to appear on that date, causing
     th[e trial c]ourt to issue another bench warrant. Appellant was
     subsequently apprehended and, on January 7, 2010, th[e trial
     c]ourt lifted the bench warrant and granted the Commonwealth’s
     Motion to Revoke/Release and Forfeit Bail. On March 16, 2010,
     [the trial c]ourt sentenced Appellant to a term of time served to
     23 months, along with five years of probation, and ordered him
     to be paroled immediately.

           1
               18 Pa. C.S. § 6105(a)(1).

     Appellant quickly chose not to comply with the terms of his
     release, failing drug tests on two occasions, being extremely
     uncooperative, and going to great lengths to circumvent
     mandatory reporting and drug testing. Another bench warrant
     was issued on November 29, 2010, which was replaced by a
     detainer order on December 7, 2010. On December 21, 2010,
     th[e trial c]ourt lifted the detainer order and continued
     Appellant’s parole.

     Throughout all of this, Appellant and Spears had apparently
     maintained their romance and continued to live together;
     however, the passage of time had done nothing to diminish the

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     volatility of their relationship as, on April 27, 2011, Appellant
     was arrested after allegedly stabbing Spears multiple time[s] in
     her thighs and arms with a kitchen knife. A bench warrant was
     issued the following day, due to this technical violation of
     Appellant’s probation, which was replaced by a detainer order on
     May 6, 2011.        On May 24, 2011, this Court ordered that
     Appellant’s Violation of Probation (“VOP”) hearing would be
     continued until further notice, so as to allow for disposition of the
     criminal case stemming from the April 27, 2011 incident.
     Ultimately, Spears failed to appear in court on April 27, 2012,
     prompting the Commonwealth to nolle pros all of the stabbing-
     related charges that had been lodged against Appellant. Th[e
     trial c]ourt then revoked Appellant’s probation on May 25, 2012
     and scheduled his VOP hearing for June 1, 2012. On that date,
     th[e trial c]ourt sentenced Appellant to a term of Time Served to
     23 months’ incarceration, plus three years of probation, ordered
     that he be paroled immediately, and explicitly told him that he
     was not allowed to live with Spears anymore.

     Unfortunately, this did not dissuade Appellant from continuing to
     violently lash out at Spears. Less than two weeks later, on
     June 12, 2012, Philadelphia Police Officers Brison and DiGenio
     responded to a domestic incident at Spears’ residence. They
     entered Spears’ apartment building and, hearing a woman
     screaming for help, rushed up the building’s stairs to Spears’
     third-floor apartment. The door was locked, so the officers
     began banging on it and calling for the apartment’s occupants to
     allow them entry. Spears then yelled for help from inside the
     apartment, and made clear that she was being prevented from
     opening the door, whereupon the officers started banging harder
     and told whoever was inside that they were going to kick in the
     door. At that point, they heard a lot of furniture moving and
     Appellant finally opened the door. Officers Brison and DiGenio
     then subdued Appellant, while Spears was [“completely
     hysterical crying,” “disarrayed,” and] screaming that he had put
     a knife to her. Spears’ clothes were a mess and the furniture in
     the apartment was completely destroyed. [N.T., 7/17/12, at 13-
     15.] As recounted to the officers by Spears, Appellant had
     forced his way into her apartment and turned violent when she
     asked him to leave, striking her a number of times, attempting
     to stab her, and holding both Spears and one of her
     grandchildren at knifepoint. Consequently, the officers arrested
     Appellant, after which he was charged with Aggravated Assault,


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     Simple Assault, Reckless Endangerment of Another Person, and
     Endangering the Welfare of a Child.

     Appellant was then brought before th[e trial c]ourt on July 17,
     2012 for yet another VOP hearing. After listening to testimony
     from Officer [Mark] DiGenio, [whose testimony that Spears’
     screams for help and communication to him that Appellant had
     held a knife to her were admitted over Appellant’s objection,
     N.T., 7/17/12, at 12-14, the trial c]ourt terminated Appellant’s
     parole and revoked his probation, expressing disbelief at the
     situation and telling Appellant:

        I couldn’t have been more clear that you should contact
        Spears under no circumstances – you’ve been telling me
        that Spears is crazy. And yet you were there at her
        apartment. You have told me repeatedly that you keep
        being put in jail by her lies and manipulations and mental
        health issues, that’s what you’ve been telling me for years
        and I said to you, “Then you stay away from her.”

     Th[e trial c]ourt then ordered a pre-sentence investigation, and
     informed the parties that Appellant would be sentenced after a
     hearing on September 18, 2012.

     At that hearing, Appellant vigorously declared his innocence,
     telling th[e trial c]ourt that Spears was a mentally ill drug addict
     whom he cared for and considered to be his wife, but who, in
     spite of this bond, had nevertheless fabricated all of her
     allegations over the years about his violent behavior. Coupling
     this claim with ones about his poor health, as well as the harm
     caused by these “false accusations” to his family and his
     livelihood, Appellant asked th[e trial c]ourt not to give him a
     sentence necessitating time in state prison. . . . [The trial c]ourt
     sentenced Appellant to a term of 5-to-10 years’ incarceration
     due to his technical violation of the probation terms for his
     Unlawful Possession of a Firearm conviction, with credit for time
     served, and ordered him to stay away from Spears upon his
     release from prison. [The sentencing hearing transcript contains
     no objection from Appellant challenging the discretionary aspects
     of his sentence. N.T., 9/18/12, at 18-19.]

     Thereafter, Appellant did not appeal this decision; however, he
     did submit a Post-Conviction Relief Act Petition (“PCRA Petition”)
     on April 18, 2013, followed by an Amended PCRA Petition on

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J-S29030-17


       February 3, 2015, in which Appellant claimed that his VOP
       hearing counsel had provided ineffective assistance by failing to
       act on Appellant’s timely request that he file such an appeal.
       Accordingly, Appellant requested that he be granted permission
       to both submit post-sentence motions and appeal th[e trial
       c]ourt’s judgment of sentence nunc pro tunc.

Trial Ct. Op. at 1-5 (internal brackets, citations to the record, ellipses, and

some quotation marks omitted).

       On December 14, 2015, the trial court entered an order scheduling a

hearing on the PCRA petition for April 25, 2016. On April 25, 2016, the trial

court granted a motion for continuance and rescheduled the PCRA hearing

for June 27, 2016. Then --

       On June 14, 2016, th[e trial c]ourt granted Appellant’s Amended
       PCRA Petition in part, thereby denying him the chance to file
       untimely post-sentence motions, while reinstating his direct
       appeal rights and giving him 30 days within which to file such an
       appeal.[1] Appellant subsequently filed the instant appeal on
       June 22, 2016[.]

Trial Ct. Op. at 5 (citations to the record omitted).    Appellant raises the

following issues:

       [I.] Did the trial court at the VOP hearing err in accepting into
       evidence statements made to a police officer by [A]ppellant’s
       alleged wife/girlfriend because these statements were not
       excited utterances but hearsay?

       [II.] Did the trial/PCRA court err in denying [A]ppellant the
       right to file post sentence motions from the VOP/judgment of
____________________________________________
1
  The certified record is therefore unclear as to whether a hearing was ever
held on the PCRA petition, including on Appellant’s request to reinstate his
post-sentence rights nunc pro tunc. However, the Commonwealth states in
its brief to this Court that no evidentiary hearing was held. Commonwealth’s
Brief at 18.


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J-S29030-17


      sentence nunc pro tunc because this denied [A]ppellant his right
      to contest the excessiveness of his sentence on appeal?

      [III.] Was the sentence imposed by the trial court, which was 5
      to 10 years in state prison, the maximum allowable
      punishment[,] unjust, improper, manifestly unreasonable, and
      an abuse of discretion because the sentence imposed was
      contrary to the fundamental norms which underlie the
      sentencing process?

Appellant’s Brief at 2 (issues reordered).

                           Admission of Evidence

      Appellant contends that “the trial court erred in considering the

statements made [by Spears] to the police officer.” Appellant’s Brief at 6, 9.

In particular, Appellant objects to consideration of Spears’ cries for help and

her assertion that Appellant held a knife to her throat during Appellant’s

confrontation with her.   In Commonwealth v. McFadden, 156 A.3d 299

(Pa. Super. 2017), we stated:

      The admission of evidence is committed to the sound discretion
      of the trial court and an appellate court may reverse only upon a
      showing that the trial court clearly abused its discretion.

         Admissibility depends on relevance and probative value.
         Evidence is relevant if it logically tends to establish a
         material fact in the case, tends to make a fact at issue
         more or less probable, or supports a reasonable inference
         or presumption regarding a material fact. Once evidence
         is found to be relevant, it will be inadmissible only if its
         probative value is substantially outweighed by the danger
         of unfair prejudice or confusion.

      “Unfair prejudice” is “a tendency to suggest a decision on an
      improper basis or to divert the jury’s attention away from its
      duty of weighing the evidence impartially.” Pa.R.Evid. 403 cmt.
      ...


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J-S29030-17


      A trial court acting as the fact-finder is presumed to know the
      law, ignore prejudicial statements, and disregard inadmissible
      evidence.

156 A.3d at 309 (brackets and most quotation marks and citations omitted).

      Preliminarily, we note that the trial court found this issue waived “due

to insufficient specificity” in a “manifestly deficient Statement of Errors.”

Trial Ct. Op. at 6. Paragraph 7 of Appellant’s Statements of Errors provided:

“The trial court erred at the VOP hearing in allowing the hearsay testimony

of an alleged female know[n] as Karatin Spears (ph) NT 7-17-12 @ 9-17.”

We disagree with the trial court and find that this challenge sufficiently

articulates what Appellant alleges to be the trial court’s error, i.e., that the

testimony that appears at pages 9 to 17 of the notes of testimony for July

17, 2012, includes alleged hearsay that the trial court erroneously admitted.

We thus conclude that Appellant has properly preserved this issue for our

review. See generally Pa.R.A.P. 1925(b)(4).

      According to Appellant:

      [T]he statement[s] made to the Police Officer were hearsay and
      not excited utterances because the declarant had time to reflect
      when she made these statements and was not under the stress
      of excitement caused by the event. [Appellant is] entitled to a
      new VOP hearing because improper hearsay was admitted at the
      VOP hearing.

Appellant’s Brief at 9.   The trial court held that Spears’ statements were

admissible under an exception to the hearsay rule “which enables a trial

court to admit ‘excited utterances,’ which are statements relating to a

startling event or condition, made while the declarant was under the stress

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J-S29030-17


of excitement that it caused.’” Trial Ct. Op. at 7 (citing Pa.R.E. 801(c), 802,

803(2); Commonwealth v. Stokes, 615 A.2d 704, 712 (Pa. 1992) (quoting

Commonwealth v. Green, 409 A.2d 371, 373-74 (Pa. 1979))). The trial

court declared that Ms. Spears’ statements “clearly constituted excited

utterances, meaning they were admissible and that th[e trial c]ourt properly

overruled Appellant’s objection.” Id.

      Under the Rules of Evidence, “Hearsay is not admissible except as

provided by these rules, by other rules prescribed by the Pennsylvania

Supreme Court, or by statute.” Pa.R.E. 802. However, “[c]ommunications

that are not assertions are not hearsay.     These would include questions,

greetings, expressions of gratitude, exclamations, offers, instructions,

warnings, etc.” Comment to Pa.R.E. 801 (emphasis added). “The following

are not excluded by the rule against hearsay, regardless of whether the

declarant is available as a witness: . . . A statement relating to a startling

event or condition, made while the declarant was under the stress of

excitement that it caused.”    Pa.R.E. 803(2).   “[T]his declaration must be

made so near the occurrence both in time and place as to exclude the

likelihood of its having emanated in whole or in part from his reflective

faculties.” Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013).

      Viewed under these standards, this issue merits no relief.      The first

statements in question – Spears’ screams for help – were merely




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exclamations and thus are excluded from the definition of hearsay.       See

Trial Ct. Op. at 3 (citing N.T., 7/17/12, at 10-11); Pa.R.E. 801 cmt.

      Spears’s second statement – that Appellant had held a knife to her

throat – was made while police were arresting Appellant. Trial Ct. Op. at 3

(citing N.T., 7/17/12, at 13).       Spears was described as “completely

hysterical,” “crying, screaming,” and “disarrayed” at the time she made the

statement. N.T., 7/17/12, at 16. There is no indication in the record that

Spears’ statement was made in response to a police officer’s question or that

it “emanated in whole or in part from [her] reflective faculties.” Murray, 83

A.3d at 157. The trial court was therefore well within its discretion to admit

Officer DiGenio’s testimony about Spears’ second statement pursuant to the

excited utterance exception to the hearsay rule. Pa.R.E. 803(2).

                                 Sentencing

      Appellant’s remaining issues relate to his sentencing, and we address

them together.   “A challenge to the discretionary aspects of a sentence is

not appealable as of right. Therefore, before we may exercise jurisdiction to

reach the merits of Appellant’s claim, we must verify that Appellant’s appeal

is properly before this Court[.]”   Commonwealth v. Luketic, 162 A.3d

1149, 1159 (Pa. Super. 2017) (quotation marks, citations, and internal

brackets omitted).

      We will exercise our discretion to consider such a petition only if (1)

the appellant has filed a timely notice of appeal; (2) he has preserved the


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sentencing issue at the time of sentencing or in a motion to reconsider and

modify his sentence; (3) he presents the issue in a properly framed

statement in his brief under Rule 2119(f) of the Rules of Appellate

Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42

Pa.C.S. § 9781(b), “it appears that there is a substantial question that the

sentence imposed is not appropriate under this chapter.”          See, e.g.,

Commonwealth v. Flowers, 149 A.3d 867, 870 (Pa. Super. 2016);

Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015), appeal

denied, 140 A.3d 12 (Pa. 2016); Commonwealth v. Zelinski, 573 A.2d

569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).

     Here, Appellant filed a timely appeal and included a Rule 2119(f)

statement in his brief.   Thus, he has clearly satisfied the first and third

requirements.   He also has satisfied the fourth requirement by raising a

“substantial question” regarding his sentence.   We have explained:

     A defendant presents a substantial question when he sets forth a
     plausible argument that the sentence violates a provision of the
     sentencing code or is contrary to the fundamental norms of the
     sentencing process. . . . Thus, a sentencing court abuses its
     discretion when it considers the criminal act, but not the criminal
     himself. The Sentencing Code prescribes individualized
     sentencing by requiring the sentencing court to consider the
     protection of the public, the gravity of the offense in relation to
     its impact on the victim and the community, and the
     rehabilitative needs of the defendant, and prohibiting a sentence
     of total confinement without consideration of the nature and
     circumstances of the crime, and the history, character, and
     condition of the defendant.


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Luketic, 162 A.3d at 1160 (quotation marks, brackets, and citations

omitted).   “[A] substantial question that the sentence was not appropriate

under the Sentencing Code may occur even where a sentence is within the

statutory limits.”   Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.

Super.) (citation omitted), appeal denied, 13 A.3d 475 (Pa. 2010).

According to Appellant’s Rule 2119(f) statement, “the sentence imposed was

contrary to the fundamental norms which underlie the sentencing process”

and was “not appropriate.” Appellant’s Brief at 3. Appellant has thus raised

a substantial question. See Luketic, 162 A.3d at 1160; Crump, 995 A.2d

at 1282.

      With respect to the second requirement, the sentencing hearing

transcript contains no objection from Appellant challenging the discretionary

aspects of his sentence.      N.T., 9/18/12, at 18-19.      The docket sheet

accompanying the certified record does not indicate that any post-sentence

motion was filed.    In his amended PCRA petition, Appellant claimed trial

counsel was ineffective for failing to file this requested post-sentence motion

and requested reinstatement of his post-sentence rights.       Am. PCRA Pet.,

2/3/15, at 2 ¶ 4.a. & ad damnum clause; Mem. in Supp. of Am. PCRA Pet.,

2/3/15, at 1; Trial Ct. Op. at 5; see Commonwealth v. Fransen, 986 A.2d

154 (Pa. Super. 2009) (PCRA petitioner-appellant must plead in PCRA

petition that he was deprived of right to file post-sentence motion in order to

be entitled to relief on that issue). The record clearly reflects that Appellant


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J-S29030-17


was granted permission to file a direct appeal nunc pro tunc and has done so

in a timely manner, but the PCRA court did not reinstate Appellant’s right to

file a post-sentence motion nunc pro tunc. Appellant contends that it was

error for the trial court to not reinstate his right to file a post-sentence

motion.2

       We conclude that we need not reach this reinstatement issue because

even if Appellant had been permitted to file a post-sentence motion nunc pro

tunc, he would not be entitled to relief. Cf. Commonwealth v. Griffin, 65

A.3d 932, 936 (Pa. Super. 2013) (remanding to allow the record to be

supplemented to include post-sentence motion was unnecessary, because

appellant’s allegation that his sentence failed to take into account his

rehabilitative needs under 42 Pa.C.S. § 9721(b) and thus was manifestly

excessive entitled him to no relief, even if properly preserved via post-

sentence motion), appeal denied, 76 A.3d 538 (Pa. 2013). We reach that

conclusion because a trial court has broad discretion when imposing a

sentence. We find no abuse of that discretion here.

       We have frequently noted that we review only to determine whether

there was an abuse of discretion:



____________________________________________
2
   The Commonwealth argues Appellant waived the sentencing issue by
failing to raise it at his VOP sentencing hearing or by not filing a post-
sentence motion; it does not argue that Appellant waived the issue because
the PCRA court denied him permission to file a post-sentence motion nunc
pro tunc. Commonwealth’s Brief at 7.


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J-S29030-17


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

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (quotation

marks and citations omitted).   When probation is revoked, the Sentencing

Code states that “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). Total confinement may be imposed only if:

     (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.

Id. § 9771(c).

     [A] trial court does not necessarily abuse its discretion in
     imposing a seemingly harsher post-revocation sentence where
     the defendant received a lenient sentence and then failed to
     adhere to the conditions imposed on him. 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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Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014) (citation

omitted).

     Appellant asserts:

     The sentence imposed by the trial court, which was 5 to 10 years
     in state prison, the maximum allowable sentence, was unjust,
     improper, manifestly unreasonable, and an abuse of discretion
     because the trial court failed to consider [Appellant’s] age,
     rehabilitative needs and family history[.] The trial court in
     imposing sentence considered only [Appellant]’s criminal history
     including, improperly, arrests that did not lead to convictions . . .
     [T]here was no reason stated on the record to impose the
     maximum state sentence especially in light of [Appellant]’s
     medical conditions which include congestive heart failure,
     hypertension, diabetes and anxiety. . . . The [trial] court[] not
     only violated, 42 Pa.[C.S. §] 9771(b)[-](c) in imposing its
     sentence of total confinement, [but it] did not consider any of
     the factors required by 42 Pa.[C.S. §] 9721(b).

Appellant’s Brief at 7-8 (emphasis omitted).

     In response to this argument in the trial court, the court stated:

     Th[e trial c]ourt found [Appellant’s] excuses and arguments to
     be utterly lacking, responding:

        You know, family members will try to stand by and support
        loved ones in relationships that have addictions and mental
        health problems, but that support doesn’t always end up in
        the police arriving at the scene with the victim stabbed and
        barricades and arrests. So, the kind of support that,
        whatever is happening, it always ends up with the police
        there, at least the cases that you and I have had over and
        over again, with Spears being stabbed and guns and
        knives being involved, and her in a state of utter, complete
        panic, and you know, she’s crying and she’s a mess. It’s
        absolutely not normal.

        Every time we’ve been together, you’ve told me this same
        story. I’ve known about your medical conditions. I’m
        trying to take your word for it about Spears manipulating
        you. Over and over again, I’ve -- the guidelines way back

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        when for Unlawful Possession of a Firearm were 48 to 60
        months. You know what I’ve been doing. And at that last
        listing, on June 1, 2012, we had a very, very clear
        discussion that you were not to have any contact with
        Spears, and the police reports indicate that it was a very
        chaotic and violent scene at her house 11 days later.
        Independent witnesses came in about a week and a half
        after it. I am very concerned for the safety of this victim.
        You have a history now of 10 arrests, three convictions,
        four commitments, five violations, three revocations, and
        you were arrested for a major felony, with I guess the
        same victim as before, a week and a half after I sentenced
        you. For all these reasons, I can no longer take any
        chances keeping you in county.

     Appellant’s allegation that th[e trial c]ourt committed an abuse
     of discretion regarding his revocation sentence simply has no
     basis in reality, given Appellant’s disturbingly consistent
     brutality, volatile relationship with Spears, and utter disregard
     for the probationary requirements that had been imposed upon
     him by th[e trial c]ourt. . . . [The trial court] gave Appellant
     multiple chances to avoid significant terms of incarceration,
     sentencing him to time served on two separate occasions and
     instructing him to stay away from the victim Ms. Spears. It was
     th[e trial c]ourt’s hope that Appellant would heed the call of
     reason after being shown such leniency, especially given its
     coupling with the threat of serious consequences for
     noncompliance. Instead, Appellant’s actions proved to th[e trial
     c]ourt that he posed a serious, clear-and-present danger to
     Spears and her family members. Consequently, in order to both
     punish Appellant for his violent intransigence and to protect
     Spears, as well as the public at-large, th[e trial c]ourt
     appropriately exercised its discretionary authority by sentencing
     Appellant to the statutory maximum for a second-degree felony.

Trial Ct. Op. at 4, 9-10 (footnote omitted; some formatting added) (quoting

N.T., 9/18/12, at 10-11, 17-18).

     There was no abuse of discretion.      Appellant’s argument that “[t]he

trial court in imposing sentence considered only [Appellant]’s criminal

history,” Appellant’s Brief at 7, is belied by the record, which demonstrates

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that the trial court considered a myriad of factors in imposing sentence. For

example, contrary to Appellant’s claim, the court did consider Appellant’s

medical conditions. Compare Trial Ct. Op. at 4 (quoting N.T., 9/18/12, at

17), with Appellant’s Brief at 7. Appellant does not explain his contention

that his age should have been a factor in imposing sentence, and we can

discern no reason why Appellant’s age should have required imposition of a

different sentence here. Likewise, Appellant provides no explanation why his

“family history” should be considered a mitigating factor.           The trial court

based its sentence on Appellant’s lack of success on probation and failure to

rehabilitate when given the opportunity, see Trial Ct. Op. at 4, thereby

refuting Appellant’s argument that the trial court did not consider his

rehabilitative needs, Appellant’s Brief at 7.

       As for Appellant’s claim that the trial court “improperly [considered]

arrests that did not lead to convictions,” Appellant’s Brief at 7, “[a] judge

may consider unadjudicated arrests in sentencing a defendant, so long as

the arrests are not regarded as establishing criminal conduct, and even

arrests that result in acquittals, if the judge is aware of the acquittal.”

Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa. Super. 2011), appeal

denied, 51 A.3d 837 (Pa. 2012).3               Here, the trial court recognized that

____________________________________________
3
  See also, e.g., Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa. Super.
2006); Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa. Super. 1980))
(“It was not improper for the sentencing judge to consider the defendant’s
alleged involvement in other unlawful activity for which he was not charged,
(Footnote Continued Next Page)

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Appellant had not been convicted of some of the charges.               See N.T.,

9/18/12, at 17; Trial Ct. Op. at 4.

      Finally, in conflict with Appellant’s assertion that the trial court “did not

consider any of the factors required by” 42 Pa.C.S. § 9721(b), Appellant’s

Brief at 8, is the fact that the trial court explicitly stated that Appellant’s

sentence was based on the court’s concern over the safety of the victim, her

family, and the independent witnesses at the “very chaotic and violent

scene” at Spears’ home; the trial court thus considered “the protection of

the public” and “impact on the life of the victim and the community.” Trial

Ct. Op. at 4 (quoting N.T., 9/18/12, at 17), 9; 42 Pa.C.S. § 9721(b). Thus,

based upon our review of the record, we hold that the trial court did not

abuse its discretion in sentencing Appellant and that Appellant’s sentencing

issues are without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017



                       _______________________
(Footnote Continued)
tried, or convicted” (internal brackets and quotation marks omitted)),
appeal denied, 906 A.2d 542 (Pa. 2006).


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