J-S65025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HAKEEM WILLIAMS,

                            Appellant                No. 3065 EDA 2014


         Appeal from the Judgment of Sentence September 24, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0015407-2010


BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 06, 2015

       Appellant, Hakeem Williams, appeals from the judgment of sentence

entered on September 24, 2014, following the revocation of his probation.

We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

            [Appellant] (A/K/A Hakim King) first appeared before this
       Court on August 10, 2011, when he pled guilty to Criminal
       Trespass, 18 Pa. C.S.A. § 3503(a) (1) (ii), a felony of the second
       degree; and Simple Assault, 18 Pa. C.S.A. § 2701(A), a
       misdemeanor of the second degree.[1] This Court sentenced
____________________________________________


1
  The underlying charges in this matter originated from Appellant’s attack on
a woman he followed home. Appellant broke inside the victim’s house,
knocked the victim to the floor, dragged her outside, pulled out a knife,
threatened to use the knife, stole the victim’s telephone, and attempted to
steal her purse. Criminal Complaint, 11/19/10, at 2.
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     [Appellant] to 11½ to 23 months [of] incarceration followed by
     60 months reporting probation for Criminal Trespass, and 24
     months reporting probation for Simple Assault running
     concurrent to the first two years of probation on the Criminal
     Trespass charge. This Court also issued a Protection From Abuse
     - Stay Away Order barring [Appellant] from being in the
     neighborhood of the victim of his crimes. [Appellant] was eligible
     for a county re-entry program and was also credited with 30
     days time served.1
           1
            [Appellant] was represented during the guilty plea
           and sentencing by the Defender Association of
           Philadelphia.

            [Appellant] was paroled from county prison on October 10,
     2011. [Appellant] never reported following his parole. On
     October 19, 2011, [Appellant’s] probation officer received a call
     from the victim of [Appellant’s] crimes stating that neighbors
     told her they had seen [Appellant] lurking around her block. The
     victim also informed the probation officer that a man came to
     her door and told her that he had been sent by [Appellant] to
     ascertain whether or not she still lived there. A warrant was
     issued for [Appellant] on October 24, 2011 and he was arrested
     on October 26, 2011. [Appellant] was released, pending a
     Violation of Probation (VOP) hearing, on a certified detainer by
     Philadelphia Prison Population Management on November 25,
     2011 despite his refusal to sign a document containing a promise
     to show up for all future court hearings. On December 5, 2011,
     [Appellant] failed to appear for his VOP hearing and this Court
     issued a bench warrant.

            On February 21, 2012, while a fugitive, [Appellant] was
     arrested in connection with armed robberies at two convenience
     stores. The United States Attorney’s Office indicted [Appellant]
     on robbery and gun charges related to both of the robberies. On
     April 8, 2014, [Appellant] was found guilty in the United States
     District Court for the Eastern District of Pennsylvania of two
     counts of “Robbery which interfered with interstate commerce;
     Aiding & Abetting” (18 U.S.C. § 1951(a); 18:2) and two counts
     of “Using and carrying a firearm during and in relation to a crime
     of violence; Aiding & Abetting” (18 U.S.C. § 924 (C) (1); 18:2).2
     On May 15, 2014, [Appellant] was sentenced to 498 months
     incarceration followed by five years of supervised release as well
     as $1,914 in restitution, and a $400 special assessment.

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              2
                United States v. Hakim King, 2014 WL 7330456
              (E.D.P.A. 2014). A “Memorandum of Reasons for
              Sentencing Procedures” was written by Baylson, J.,
              on December 19, 2014.

              [Appellant] next appeared before this Court on September
       24, 2014 for a VOP hearing. Although the VOP hearing was
       originally scheduled due to [Appellant’s] technical violation of
       failing to report, the subsequent federal indictments and
       convictions constituted a direct violation. At this hearing, this
       Court found [Appellant] in direct violation of probation. On the
       same date, with the aid of a Pre[-]sentence Investigation (PSI)
       Report prepared on August 8, 2014, this Court sentenced
       [Appellant] to 42-84 months incarceration in state prison for
       Criminal Trespass followed by 24 months of reporting probation
       for Simple Assault. These sentences are consecutive to the
       [Appellant’s] 498 month federal sentence.

Trial Court Opinion, 1/23/15, at 1-3 (footnote added). On October 22, 2014,

Appellant filed a timely appeal.          Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.2



____________________________________________


2
  Following the imposition of sentence after the revocation of his probation,
Appellant filed a timely post-sentence motion. However, Appellant filed his
notice of appeal before the trial court ruled on the motion. The
Commonwealth argues that Appellant failed to preserve his sentencing issue
because he deprived the trial court of jurisdiction when he filed his appeal
while his post-sentence motion was pending. Commonwealth’s Brief at 8.
Pursuant to our Rules of Criminal Procedure, a motion to modify a sentence
imposed following revocation of probation does not toll the appeal period.
Commonwealth v. Burks, 102 A.3d 497, 499-500 (Pa. Super. 2014);
Pa.R.Crim.P. 708(E). Therefore, while Appellant filed a timely post-sentence
motion, he was, nevertheless, required to file his notice of appeal before the
trial court addressed his motion. Moreover, while Appellant states that the
trial court denied this motion on October 2, 2014, Appellant’s Brief at 6, no
order appears on the docket.



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      On appeal, Appellant raises the following issue:

             Did not the sentencing court err as a matter of law, abuse
      its discretion, and violate general sentencing principles when,
      following a revocation of probation, it imposed an aggregate
      sentence of 3½         to 7 years’ incarceration to be served
      consecutively to the underlying federal direct violation term of
      41½ years’ imprisonment where: the sentence was manifestly
      excessive and unreasonable; surpassed what was required to
      protect the public, the complainants, and the community; greatly
      exceeded      what    was    necessary   to   foster   Appellant’s
      rehabilitation; and failed to state adequate reasons for imposing
      such a harsh consecutive sentence?

Appellant’s Brief at 4.

      Appellant’s claim challenges the discretionary aspects of his sentence.

An appellant seeking to appeal the discretionary aspects of a probation-

revocation sentence has no absolute right to do so but, rather, must petition

this Court for permission to do so. Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b).        However, before this

Court may review the merits of a challenge to the discretionary aspects of a

sentence, we must engage in a four-pronged analysis:

      [W]e 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. [708]; (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 sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

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

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).               See

also Pa.R.Crim.P. 708, cmt. (discussing proper preservation of issues

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challenging discretionary aspects of a sentence imposed following a

revocation hearing).

        We note that Appellant has met the first three parts of the four-prong

test:   Appellant timely filed an appeal; Appellant preserved the issue in a

post-sentence motion; and Appellant included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has

raised a substantial question.

        A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000). This Court will grant the appeal “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

912–913.

        In his Rule 2119(f) statement, Appellant argues that the trial court

imposed a manifestly excessive sentence and relied on improper factors.3

____________________________________________


3
  We note the disparity between Appellant’s Pa.R.A.P. 2119(f) statement and
the issues Appellant raised in his statement of questions presented. The
only issue presented in Appellant’s Pa.R.A.P. 2119(f) statement is the trial
court’s consideration of improper factors. However, in Appellant’s statement
of questions presented, he assails the aggregated length of his sentences
and the trial court’s alleged failure to provide its reasons for the sentence.
Appellant’s Brief at 4. We also point out that the Commonwealth has
objected to Appellant’s Pa.R.A.P. 2119(f) statement. Commonwealth’s Brief
at 9. While Appellant’s Pa.R.A.P. 2119(f) statement fails to raise all of the
(Footnote Continued Next Page)


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Appellant’s Brief at 8-9. We conclude that Appellant has raised a substantial

question. See Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super.

2006)    (holding      that    a    claim   that   the   sentencing    court   considered

impermissible factors raises a substantial question).

      Our    standard         of   review   in   cases   involving    challenges   to   the

discretionary aspects of a sentence is well settled. We have explained that:

          [t]he 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. Simmons, 56 A.3d 1280, 1283–84 (Pa.
      Super. 2012).

                In determining whether a sentence is manifestly
          excessive, the appellate court must give great weight to
          the sentencing court’s discretion, as he or she is in the
          best position to measure factors such as the nature of the
                       _______________________
(Footnote Continued)

issues Appellant purports to argue in his brief, we conclude that the
Commonwealth did not specifically raise an objection on this basis requiring
waiver. See Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super.
2012) (if a defendant fails to include an issue in his Pa.R.A.P. 2119(f)
statement, and the Commonwealth objects, the issue is waived). However,
while Appellant mentions the trial court’s alleged failure to state its reasons
for the sentence imposed and the consecutive nature of the sentences,
Appellant’s Brief at 12, 13, these claims are undeveloped and, therefore,
waived. See Commonwealth v. Scarborough, 89 A.3d 679, 687 (Pa.
Super. 2014) (stating that claims that are not developed in briefs are
waived).




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        crime, the defendant’s character, and the defendant’s
        display of remorse, defiance, or indifference.

     Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
     2003).

           Upon revoking probation, a sentencing court may choose
     from any of the sentencing options that existed at the time of
     the original sentencing, including incarceration. 42 Pa.C.S.A. §
     9771(b). “Upon 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. Infante, 63 A.3d 358, 365 (Pa. Super.
     2013) (internal quotation marks and citations omitted).
     However, 42 Pa.C.S.A. § 9771(c) provides that once probation
     has been revoked, a sentence of total confinement may only be
     imposed if any of the following conditions exist:

        (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.

     42 Pa.C.S.A. § 9771(c).

Commonwealth v. Colon, 102 A.3d 1033, 1043-1044 (Pa. Super. 2014).

Finally, this Court must show a high degree of deference to the trial court’s

sentencing determinations, because the trial court is in the best position to

determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.     Commonwealth v.

Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted).

     In the case at bar, Appellant complains that the trial court relied on

improper factors when it imposed his sentence.          Specifically, Appellant

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argues “the trial court noted only two factors when imposing its sentence:

first, what it regarded as Appellant’s zero potential for rehabilitation, thus

neatly combining vindictiveness with an adopted clairvoyance, and second,

its duty to protect the public, which, is in effect, the same thing.”

Appellant’s Brief at 14 (internal citations and quotation marks omitted). We

conclude that Appellant’s argument is meritless as the trial court considered

all   relevant   sentencing   factors,   had   the   benefit   of   a   pre-sentence

investigation report, and stated numerous reasons for the sentence

imposed.     N.T., Sentencing, 9/24/14, 10-14; 21-24.               In its Pa.R.A.P.

1925(a) opinion, the trial court addressed Appellant’s claims of sentencing

error as follows:

       The sentence imposed by this court, with the aid of the PSI
       Report, was reasonable and conforms to all statutory standards.4
             4
                “Where pre-sentence reports exist, we shall
             continue to 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. In order to dispel any lingering
             doubt as to our intention of engaging in an effort of
             legal purification, we state clearly that sentencers
             are under no compulsion to employ checklists or any
             extended or systematic definitions of their
             punishment procedure. Having been fully informed
             by the pre-sentence report, the sentencing court’s
             discretion should not be disturbed. This is
             particularly true, we repeat, in those circumstances
             where it can be demonstrated that the judge had
             any degree of awareness of the sentencing
             considerations, and there we will presume also that
             the weighing process took place in a meaningful

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           fashion. It would be foolish, indeed, to take the
           position that if a court is in possession of the facts, it
           will fail to apply them to the case at hand”.
           Commonwealth v. Devers, 519 Pa. 88, 101-102 (Pa.
           1988).

           When fashioning a sentence, a court should “follow the
     general principle 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.A. § 9721(b). “In every case in which
     the court imposes a sentence … following 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.” Id. Despite [Appellant’s]
     erroneous claim that this Court “failed to adequately state its
     reasons for imposing such a harsh sentence,” this Court stated
     on the record, at the VOP sentencing, its reasons for the
     sentence in accordance with the factors in § 9721:

           “This is the minimum sentence. I didn’t give him the
           maximum sentence. This is the minimum sentence
           that is consistent with his nonexistent likelihood of
           being rehabilitated. There is zero percent chance of
           him being rehabilitated. And balancing that zero
           percent with my duty to protect the public, which is
           what I have just done.”

           (N.T. 9/24/14, p. 23).

           Furthermore, a court may impose a sentence of total
     confinement upon revocation if it finds that “the defendant has
     been convicted of another crime” or “the conduct of the
     defendant indicates that it is likely that he will commit another
     crime if he is not imprisoned” or if total confinement is “essential
     to vindicate the authority of the court.” 42 Pa. C.S.A. § 9771(c).
     [Appellant] inexplicably argues that this court failed to comply
     with the requirements of § 9771(c), this argument is clearly
     erroneous. First, [Appellant] was convicted of not one, but four
     other crimes; making the sentence of total confinement
     reasonable and in accord with the statute. Second, based on
     [Appellant’s] actions in the original violent criminal act for which
     he was on probation, the armed robberies he committed while

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     the VOP hearing was pending, and the complete non-compliance
     and disregard for probation, this Court found that [Appellant] will
     commit another crime. Again, this is in compliance with §
     9771(c). Finally, the sentence of total confinement was
     necessary to vindicate the authority of this court. Not only did
     [Appellant] not report at all for this Court’s probation, the pre-
     sentence investigator noted in the PSI report, and this Court
     read aloud at the sentencing hearing, that “a review of
     [Appellant’s] criminal history indicates that he has violated
     nearly every period of community supervision that was ordered.
     It appears that he has a blatant disregard for the judicial system
     and this Court.” (N.T. 9/24/14, p. 21-22); (PSI Report, 8/5/14,
     Evaluative Summary).

           [Appellant’s] argument that the sentence is excessive
     because it is consecutive to his federal sentence is without merit.
     A claim of excessive sentence, based on the imposition of
     consecutive sentences, generally does not raise a substantial
     question for appellate review.” See Commonwealth v. Pass,
     914 A.2d 442, 446 (Pa. Super. 2006) (reinforcing Pennsylvania’s
     well settled precedent that a challenge of exercise of discretion
     by trial court in imposing a consecutive sentence fails to raise a
     substantial question). To find otherwise would eviscerate the
     discretion given to sentencing court by 42 Pa. C.S.A. § 9721(a).
     However, even if the merits of this claim are reached, this
     Court’s ability to sentence [Appellant] to any alternative
     available at the time of the original sentencing is in no way
     affected by another sentence [Appellant] is serving. To find
     otherwise would protect a defendant from any repercussions of
     committing a crime once they are punished for committing a
     completely separate crime.

           This Court focused on the statutory factors discussed
     above in fashioning the sentence. [Appellant] assaulted a woman
     after busting open the door to her home, and then, while still
     facing a VOP hearing for complete non-compliance, went on to
     commit two armed robberies, one of which involved discharging
     a firearm and wounding an employee of the store when the
     bullet sent debris into the employee’s eye. These facts, the
     danger to the public inherent in crimes involving such facts, and
     [Appellant’s] failure to abide by any type of community
     supervision or show any amenability to rehabilitation provide
     ample justification for the sentence imposed by this Court.


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            Therefore, this claim is without merit and should not serve
      as a basis for relief.

Trial Court Opinion, 1/23/15, at 5-8.

      After review, we discern no abuse of discretion.           The trial court

considered   the   relevant   sentencing   factors   including   a   pre-sentence

investigation report, and it explained its reasons for the sentence imposed.

The trial court sentenced Appellant to a term it deemed appropriate under

the individual circumstances presented following Appellant’s refusal to

comply with the terms of his probation and his commission of new crimes.

Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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