J. A25036/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
GERALD STOKES,                              :
                                            :
                          Appellant         :     No. 349 EDA 2014

            Appeal from the Judgment of Sentence January 31, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0405691-2001

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
GERALD STOKES,                              :
                                            :
                          Appellant         :     No. 350 EDA 2014

            Appeal from the Judgment of Sentence January 31, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0008894-2011

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 23, 2015

        Appellant, Gerald Stokes, appeals from judgment of sentence entered

in the Philadelphia Court of Common Pleas following the third revocation of

his probation.     Appellant argues the sentence of ten to twenty years’




*
    Former Justice specially assigned to the Superior Court.
J.A25036/15


imprisonment for his rape1 conviction is excessive because he has only

incurred technical violations of probation—aside from a failure to report

under Megan’s Law2—and he is at a relatively advanced age and suffers

health issues.3 We affirm.

      The trial court summarized Appellant has appeared before it “many

times in this matter over the past decade.” Trial Ct. Op., 1/12/15, at 1. On

February 13, 2003, Appellant pleaded guilty to rape of a four-year old

victim.4 On May 23rd, the trial court imposed a sentence of eleven-and-a-

half to twenty-three months’ imprisonment and a consecutive seven years’

probation.

      In January of 2005, Appellant’s probation was revoked for the first

time, for a technical violation.5 The court imposed a new sentence of eleven


1
  18 Pa.C.S. § 3121. The record does not indicate under which subsection of
the rape statute Appellant was convicted.
2
 As the trial court noted, Megan’s Law, 42 Pa.C.S. §§ 9791-9799, expired
on December 20, 2012, and was replaced by the Sexual Offender
Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41.
3
  This sentence for the rape conviction is docketed at CP-51-CR-0405691-
2001. On the same day, the trial court imposed sentence in Appellant’s case
at docket CP-51-CR-0008894-2011, for failure to comply with Megan’s Law
reporting requirements. On appeal, Appellant challenges only the rape
sentence.
4
  Prior to Appellant’s plea, in October of 2002, a jury trial resulted in a hung
jury.
5
  Neither the trial court opinion nor certified record indicates the nature of
the technical violation.



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and a half to twenty-three months, to be followed by seven years’ probation.

        “In 2009 allegations arose that Appellant failed to comply with

important requirements of his sex offender probation . . . . Appellant could

not be located and a probation bench warrant was issued on July 15, 2009.”

Trial Ct. Op. at 2. Two years later, “[i]n July 2011, Appellant was arrested.

New charges were lodged pursuant to 18 Pa.C.S.A. § 4915 [ ] based upon his

failure to comply with Megan’s Law.” Id. On December 21, 2011, Appellant

pleaded guilty to the Megan’s Law violation and the court imposed six years’

probation.      On the same day, the trial court also revoked Appellant’s

probation in his rape sentence, and imposed a new sentence of time served

to twenty-three-months’ imprisonment, to be followed by seven years’

probation. The two probationary terms were to run consecutively.

        Additionally, we note that at this hearing, Appellant responded

specifically to questioning as follows: (1) he lived at “1201 Friendship Street,

apartment-2;” (2) he intended to return to that apartment; (3) there were

no minors in that building;6 and (4) his “brother has been trying to keep that


6
    Appellant testified as follows:

              [Probation   officer:]   Are   there   any   minors   in   the
           building?

              [Appellant:] No.

              [Probation officer:] No minors at all?

              [Appellant:] No.



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J.A25036/15


apartment for” him.      N.T., 12/21/11, at 37.   Appellant’s brother, Eugene

Stokes, testified the apartment was available to Appellant until December

31, 2011, and “[a]fter that [he had] to start to move everything out.” Id. at

39. In response to the court’s question of how many apartments were in the

building, Eugene stated “it’s a duplex.” Id. The court also asked if he knew

if minor children lived in the property, and Eugene responded, “[N]ot to my

knowledge.” Id.

      Forty-one days later, on January 31, 2012 Appellant appeared before

the court for the instant violation of probation hearing. The probation officer

averred that on the evening of or the morning after the December 21st

hearing, it received a complaint, from another tenant in Appellant’s

apartment building, about Appellant living in the building. Id. at 4-5. The

probation officer investigated, and learned the building had six apartments

and “three of the units [were] occupied with families with minor children.”

Id. at 5. The probation officer also learned of a letter, dated December 7th

and addressed to both Appellant and his brother, evicting Appellant from the

apartment effective December 31st.7 Finally, we note the probation officer




N.T., 12/21/11, at 37.
7
  The sole witness at this hearing was Appellant’s brother, Eugene. Eugene:
(1) denied receiving the eviction letter but stated he talked with the landlord
on the telephone; (2) stated the eviction was based on nonpayment of rent
but he, Eugene paid it and therefore “that should have been alleviated;” (3)
he “wasn’t really familiar” with how many apartment units there were, but



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stated Appellant “is considered a high risk to reoffend sexually.” Id. at 14.

        Appellant’s sole statement to the court was as follows:

             First of all, I don’t know—you know, I did what you told
           me to do. Well, the rest—I ain’t know—I ain’t know no
           address but that address on Friendship Street. Right. So
           you know—but I didn’t do anything wrong. I apologize,
           you know. So you know, I’m—it’s the only thing I can say.

Id. at 20-21.

        The trial court found Appellant in violation of his probation, revoked his

probation for the third time in this matter, and imposed the instant sentence

of ten to twenty years’ imprisonment. The court also imposed a consecutive

six years’ probation for the failure to report under Megan’s Law violation.

        On February 10, 2012, Appellant filed a timely motion to reconsider

sentence, which was denied.        Appellant filed a direct appeal, but it was

discontinued on July 19th.      Appellant then filed a timely, counseled Post

Conviction Relief Act8 petition on February 21, 2013, seeking reinstatement

of his direct appeal rights nunc pro tunc. The trial court granted relief on

January 16, 2014, and this appeal followed.

        On appeal, Appellant argues the trial court abused its discretion in



conceded the landlord told him there were “six or eight;” and (4) when
asked about his statement at the last hearing that there were no minors in
the building, responded “Not to my knowledge.” N.T., 1/31/12, at 26.
Eugene further stated Appellant could now live with him at his house. Id. at
23. The trial court specifically found Eugene, as well as Appellant, “very
clearly lied to this Court under oath.” Id. at 28.
8
    42 Pa.C.S. §§ 9541-9546.



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imposing the maximum sentence of ten to twenty years’ imprisonment.

Appellant concedes he violated his probation and that “the court was called

upon . . . to impose a substantial sentence of incarceration.”                Appellant’s

Brief at 13-14. In support, Appellant avers his violations of probation were

only “‘technical’ in nature” and the only direct violation was the failure to

register his residence under Megan’s Law. Id. at 14. Appellant also cites

his “(relatively) advanced age for an offender (61 [years]), debilitated

physical condition—confinement to a wheel chair, HIV positive, diabetic and

failing kidneys [sic]” in arguing “the court’s primary goal—protection of the

public—could have been accomplished with a significantly lesser sentence.”

Id. He proposes “a state sentence of 5 or 6 or 7 to 20 years . . . followed by

very strict supervision on state parole for approximately 10 to 12 years.”

Id. at 16. We hold Appellant is due no relief.

         Preliminarily, we note Appellant preserved this issue in his post-

sentence motion, includes a Pa.R.A.P. 2119(f) statement in his appellate

brief,    and   raises    a     substantial   question      for   our    review.      See

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (stating

defendant must raise discretionary aspect of sentencing issue either during

sentencing proceedings or in post-sentence motion); Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (stating, “The imposition of

a sentence of total confinement after the revocation of probation for a

technical    violation,   and    not   a   new   criminal     offense,   implicates   the



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‘fundamental norms which underlie the sentencing process,’” and finding

substantial question raised).   Accordingly, we find Appellant has preserved

his discretionary aspect of sentencing issue for our review. See Tobin, 89

A.3d at 666; Crump, 995 A.2d at 1282.

     We consider the relevant standard of review:

        [A] trial court has broad discretion in sentencing a
        defendant, and concomitantly, the appellate courts utilize a
        deferential standard of appellate review in determining
        whether the trial court abused its discretion . . . .

        . . . At initial sentencing, all of the rules and procedures
        [for a court’s] discretionary sentencing authority [apply].
        However, it is a different matter when a defendant
        reappears . . . following a violation . . . of a probationary
        sentence. For example, . . . 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.

        . . . [U]pon revoking probation, the trial court is limited
        only by the maximum sentence that it could have imposed
        originally at the time of the [initial] sentence, although . . .
        the court shall not impose a sentence of total confinement
        unless it finds that:

           (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.


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         42 Pa.C.S. § 9771(c).

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some

citations omitted). This Court has stated, “A trial court does not necessarily

abuse its discretion in imposing a seemingly harsh post-revocation sentence

where the defendant originally received a lenient sentence and then failed to

adhere the conditions imposed on him.” Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

      At sentencing in the case sub judice, the trial court stated:

            First of all, both [Appellant and his brother] had very
         clearly lied to this Court under oath. Their testimony is
         totally and completely incredible. This Court asked very
         specific questions on the record.           I was told very
         specifically by [Appellant] that there were only . . . two
         units present and that there were no children, that he had
         the ability to return, and that all of these things under oath
         were true and correct.

                                  *    *    *

         [Additionally,] the registration of [Appellant] and his
         compliance did not come until after sentencing [for the
         prior probation violation.]

             I find [Appellant] has consistently violated the
         conditions of his [probation]. He did not, in fact, report
         [or] go to the programs he was required to do. He has
         continued to deny his status as a sexual offender, and the
         Court notes that there is a high probability that [Appellant]
         will commit an offense while on probation and parole.

            And it is unbelievably clear to this Court that
         [Appellant] has manipulated the system because of his
         condition and his appearance in this court and that he has
         basically gone under the radar. . . . [T]he court is now
         convinced, having heard the testimony . . . that there has


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         been a continuing course of conduct which puts the
         children in the community of Philadelphia at risk[.]

            There is no effective vehicle for rehabilitation for
         [Appellant]. He has indicated in every sense of the way
         that he has complete disregard for this Court[ and the
         court’s orders and he believes] he can set his own rules,
         and he seems to think that it is okay to lie to a Court
         under oath.

N.T., 1/31/12, at 28-32.        The court further recommended, at the

Commonwealth’s suggestion, that Appellant be placed at the Laurel Springs

prison facility “which is specifically designed to take care of elderly inmates

that may or may not have various health problems.” See id. at 15, 32. In

addition, the court’s opinion noted that in his allocution, Appellant denied

any wrongdoing. Trial Ct. Op. at 5.

      We hold the court did not abuse its discretion. It properly considered,

under 42 Pa.C.S. § 9771(c), Appellant’s conduct which “indicate[d] it is likely

that he will commit another crime if he is not imprisoned” and that the

sentence was “essential to vindicate the authority of the court.”     See    42

Pa.C.S. § 9771(c)(2)-(3).    We reject Appellant’s premise that the court’s

“primary goal” in sentencing was to protect the public. See Appellant’s Brief

at 14. Instead, in imposing a sentence following revocation of probation, a

trial court is not required to consider the protection of the public.       See

Pasture, 107 A.3d at 27.

      Furthermore, we note that although Appellant stated at the December

21, 2011 hearing that he had diabetes, high blood pressure, and HIV, N.T.,



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12/21/11, at 4, he made no mention of his health issues at the instant

violation and sentencing hearing on January 31, 2012. The Commonwealth

did assert:

         I am not a hundred percent certain of the nature of
         [Appellant’s] health problems. I see he’s in a wheel chair
         today.    It’s my understanding he isn’t confined to a
         wheelchair. . . . [T]he state prison system has a facility
         called Laurel Springs which is specifically designed to take
         care of elderly inmates that may or may not have various
         health problems. . . . [T]he State would certainly do the
         proper evaluation[ and] put him in a facilitaty that can
         provide whatever medical needs he has . . . .

N.T., 1/31/12, at 15-16.        However, Appellant did not respond to these

statements.   Nevertheless, as stated above, the court recommended that

Appellant be housed at “Laurel Springs so they can accommodate [him]

while in custody.” Id. at 32.

      Appellant’s initial sentence for his rape conviction, as well as his first

two probation violation sentences, were each eleven-and-a-half to twenty-

three months’ imprisonment and a consecutive seven years’ probation.9

Although the instant sentence is substantially longer, at ten to twenty years’

imprisonment and six years’ probation, we find no abuse of discretion. See

Pasture, 107 A.3d at 27-28; Schutzues, 54 A.3d at 99.

      Judgment of sentence affirmed.




9
  We note the sentence for the second probation violation was “time served”
to twenty-three months.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2015




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