J-S62010-14



                              2014 PA Super 242



COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LUIS COLON,

                         Appellant                   No. 3481 EDA 2012


    Appeal from the Judgment of Sentence entered November 16, 2012,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0005223-2010
                        and CP-51-CR-000973-2011


BEFORE: ALLEN, OLSON, and OTT, JJ.

OPINION BY ALLEN, J.:                             FILED OCTOBER 24, 2014

      Luis Colon (“Appellant”) appeals from the judgment of sentence

imposed after the trial court determined he violated the conditions of his

probation. We affirm.

      The trial court summarized the pertinent facts and procedural history

as follows:

             On September 9, 2010, [Appellant] was found guilty of
      criminal trespass, graded as a felony of the second degree. On
      November 10, 2010, the trial court sentenced [Appellant] to nine
      to twenty months of incarceration followed by two years of
      probation. On August 17, 2011, [Appellant] pleaded guilty to
      possession with intent to deliver (“PWID”) and was sentenced to
      a negotiated sentence of eleven and a half to twenty-three
      months of incarceration followed by two years of probation.
      [Appellant’s] plea to the PWID charge placed him in direct
      violation of his parole for the criminal trespass conviction. Also,
      on August 17, 2011, the trial court revoked [Appellant’s] parole
J-S62010-14


     on the criminal trespass conviction and sentenced him to the
     balance of his back time followed by two years of probation.

           On November 19, 2011, the trial court granted
     [Appellant’s] early parole petition with the condition that
     [Appellant] receive mental health and drug/alcohol treatment at
     Eagleville Hospital. On December 12, 2011, [Appellant] was
     released from custody and transported to the Eagleville Hospital
     for inpatient treatment. On January 17, 2012, [Appellant] was
     released from Eagleville because he successfully completed
     inpatient treatment at that facility.

           On January 18, 2012, just one day after being released
     from Eagleville Hospital, Philadelphia police officer Mark Brown
     responded to Third and Cambria Streets in Philadelphia where he
     observed the complainant, Lynette Santiago, crying, yelling and
     screaming. Officer Brown described her as “upset” and “frantic.”
     Santiago told Officer Brown that [Appellant] punched her in the
     face causing her lip to bleed. Officer Brown observed that
     Santiago was bleeding from her lower lip, had scratches on her
     face, and that her shirt was torn.       On January 27, 2012,
     [Appellant] was charged with simple assault for the January 18,
     2012 incident.

           On September 5, 2012, the Commonwealth filed a Motion
     to Proceed with Probation Violation Hearing Pursuant to
     Commonwealth v. Daisey Kates, 305 A.2d 701 (Pa. 1973).
     On September 19, 2012, the trial court conducted the Daisey
     Kates hearing. At the end of the hearing, the trial court found
     [Appellant] in violation of both his parole/probation matters,
     revoked [Appellant’s] parole and probation on each case, and
     determined a new sentence of total confinement was warranted.
     On November 16, 2012, the trial court sentenced [Appellant] to
     new sentences of one and a half to five years of incarceration on
     the criminal trespass conviction and a consecutive two and a half
     to seven years of incarceration on the PWID conviction.

Trial Court Supplemental Opinion, 2/11/14, at 1-2 (citations to notes of

testimony omitted).

     Appellant filed a petition to vacate and reconsider sentence nunc pro

tunc on November 29, 2012, and on November 30, 2012, the trial court


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entered an order approving the nunc pro tunc filing but denying the petition.

Appellant filed a timely notice of appeal on December 17, 2012, and on

December 20, 2012, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant did not file a timely Pa.R.A.P. 1925(b) statement; nonetheless, the

trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      On July 26, 2013, Appellant filed a motion to vacate the briefing

schedule and remand the certified record to the trial court for completion of

the appellate record.   On August 20, 2013, this Court granted Appellant’s

motion and remanded the record. Appellant subsequently filed a statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and on

February 11, 2014, the trial court filed a supplemental Pa.R.A.P. 1925(a)

opinion.

      Appellant presents the following issues for our review:

            1. Did not the [trial] court err when it admitted hearsay
               statements that a non-testifying complainant made
               while under the influence of PCP, where such
               statements were not “excited utterances” and where
               the admission of such statements violated [Appellant’s]
               right to confrontation?

            2. Was not the evidence introduced at the probation
               revocation hearing insufficient as a matter of law to
               establish a technical violation of probation?

            3. Did not the [trial court] abuse its discretion and violate
               the Sentencing Code by sentencing [A]ppellant to four
               to twelve years state incarceration, a manifestly
               excessive violation of probation sentence, for a
               technical violation of probation?



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Appellant’s Brief at 4.

        In his first issue, Appellant argues that the trial court erred when it

permitted Officer Brown to testify about out-of-court statements made to

him by Ms. Santiago. Specifically, Appellant argues that the trial court erred

in concluding that Ms. Santiago’s statement to Officer Brown that Appellant

had assaulted her fell within the excited utterance exception to the hearsay

rule.

        With regard to the excited utterance exception, our Supreme Court

recently explained:

             As is well-settled, excited utterances fall under the common
        law concept of res gestae. Res gestae statements, such as
        excited utterances, present sense impressions, and expressions
        of present bodily conditions are normally excepted out of the
        hearsay rule, because the reliability of such statements are
        established by the statement being made contemporaneous with
        a provoking event. While the excited utterance exception has
        been codified as part of our rules of evidence since 1998, see
        Pa.R.E. 803(2), the common law definition of an excited
        utterance remains applicable, and has been often cited by this
        Court:

            [A] spontaneous declaration by a person whose mind
            has been suddenly made subject to an overpowering
            emotion caused by some unexpected and shocking
            occurrence, which that person has just participated in
            or closely witnessed, and made in reference to some
            phase of that occurrence which he perceived, and this
            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.... Thus, it must be shown first,
            that [the declarant] had witnessed an event
            sufficiently startling and so close in point of time as to
            render her reflective thought processes inoperable


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            and, second, that her declarations were a spontaneous
            reaction to that startling event.

     The circumstances surrounding the statements may be sufficient
     to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, 83 A.3d 137, 157-158 (Pa. 2013) (citations

omitted).

     At the September 19, 2012 revocation hearing, in concluding that Ms.

Santiago’s statement constituted an excited utterance, the trial court relied

on the credible testimony of Officer Brown that on January 18, 2012, when

he initially encountered Ms. Santiago, she was “crying ... doing a lot of

yelling and screaming,” and “seemed very upset.”       N.T., 9/19/12, at 7.

Officer Brown further noticed that Ms. Santiago had scratches on her face

and fresh blood on her lip and that her shirt was torn. Id. at 7-8, 11-12.

Officer Brown asked Ms. Santiago what happened, to which she immediately

responded that Appellant had struck her and punched her. Id. at 11. Officer

Brown additionally testified that Ms. Santiago appeared to him to be under

the influence of narcotics based on her having a blank stare and slurred

speech. Id. at 15. Officer Brown also observed that Appellant was lying in

the street nearby with “fresh blood” on him from injuries to his face and

hands.   Id. at 16.   When Officer Brown attempted to question Appellant,

Appellant became “very irate and stated ... that he did not want to discuss

any matters with the police.”     Id. at 12.   Thereafter, Ms. Santiago also




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refused to answer any more questions or provide any more information to

police. Id. at 12-13.

      Based on Officer Brown’s testimony, the trial court determined that

Ms. Santiago’s statement constituted an excited utterance, concluding that

the statement was in response to a “startling event” and “was made under

the stress [of] the excitement caused by that event.” N.T., 9/19/12, at 24.

Moreover, the trial court reasoned that Appellant’s presence in close

proximity to Ms. Santiago, as well the fact that both of their injuries were

fresh, corroborated Ms. Santiago’s statement. As the trial court explained:

             The trial court properly allowed Officer Brown’s testimony
      about Santiago’s statements into evidence under the excited
      utterance exception to the hearsay rule because: (1) Officer
      Brown’s observations indicated that Santiago was under the
      stress and trauma of suffering the observed injuries, including
      her elevated voice, frantic and upset demeanor, immediate
      responses to questions without reflection, torn clothing,
      scratches on her face, and fresh blood from her lip, (2) Santiago
      spoke with Officer Brown shortly after sustaining her injuries,
      while [Appellant] was still laying on the ground and a crowd was
      still gathered, and (3) the similar injuries to [Appellant], who
      was “lying in the street,” with several injuries to his head and
      hands, fresh blood from those injuries, and [Appellant’s] irate
      and uncooperative demeanor.

Trial Court Supplemental Opinion, 2/11/14, at 4 (citations omitted).

      Upon review, we find no error in the trial court’s decision to admit

Officer Brown’s hearsay tesimony under the excited utterance exception.

Although Appellant argues that Ms. Santiago’s excited behavior was the

result of her having ingested PCP, the trial court, within its province as

factfinder, did not find this argument persuasive.    N.T., 9/19/12, at 23.

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Instead, the trial court reasoned that although Officer Brown testified that he

believed Ms. Santiago was under the influence of PCP, the officer’s belief

constituted mere supposition and was not supported by any test results or

statements by Ms. Santiago that she was in fact under the influence of a

controlled substance.   Id.   Rather, the trial court concluded that based on

the surrounding circumstances, Ms. Santiago’s excitement was the product

of her having experienced a startling event. See Murray, 83 A.3d at 157-

158 (“the circumstances surrounding the statements may be sufficient to

establish the existence of a sufficiently startling event”). Our review of the

record supports the trial court’s determination.    Additionally, we note that

“[t]he jurisprudence of this Commonwealth makes it clear that a statement,

which otherwise qualifies as an excited utterance, is not precluded from

falling within the excited utterance exception to the hearsay rule when made

in response to questioning.”     Commonwealth v. Jones, 912 A.2d 268,

282-283 (Pa. 2006) (citations omitted).        Therefore, the fact that Ms.

Santiago identified Appellant as her assailant only after Officer Brown asked

her what happened does not disqualify her statement from the excited

utterance exception to the hearsay rule. Id.

      Appellant next argues that the trial court’s admission of Ms. Santiago’s

out-of-court statement violated his right to confrontation under the Sixth

Amendment, and additionally that the Commonwealth failed to demonstrate




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“good cause” for admission of the out-of-court statement. Appellant’s Brief

at 23-26.

       With regard to the Sixth Amendment right to confrontation, this Court

has explained “[t]he Confrontation Clause in the Sixth Amendment to the

United States Constitution provides that [i]n all criminal prosecutions, the

accused shall enjoy the right ... to be confronted with the witnesses against

him ...” Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014)

(citations and internal quotations omitted).1 Probation and parole revocation

hearings however, are not equivalent to criminal prosecutions.          Rather,

because “[p]robation, like parole, is not part of the criminal prosecution ...

the full panoply of rights due a defendant in a criminal trial does not apply to
____________________________________________


1
  “In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), the United States Supreme Court held that the Confrontation
Clause of the Sixth Amendment prohibits the use of testimonial hearsay
obtained by police officers against a criminal defendant, even if such hearsay
is reliable, unless the defendant has the opportunity to cross-examine the
unavailable declarant.” Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa.
Super. 2013). Here, Appellant argues that Ms. Santiago’s out-of-court
statement was “testimonial” and therefore, pursuant to Crawford, the
Commonwealth could not deny Appellant the right to confront and cross
examine her, and the admission of Ms. Santiago’s out-of-court statement
was therefore constitutionally impermissible. Appellant’s Brief at 24-26.
However, “[s]ince Crawford was decided, the majority of jurisdictions have
held that Crawford concerns only Sixth Amendment confrontation rights in
criminal prosecutions and that because parole or probation revocation
proceedings are not criminal prosecutions, neither Crawford nor the Sixth
Amendment Confrontation Clause applies to parole or probation revocation
proceedings.” State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (Neb.,
2014). Rather, at a probation revocation hearing, hearsay is admissible
upon a finding of “good cause” for not allowing confrontation.
Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).



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probation revocation.      Probation is a suspended sentence of incarceration

served upon such terms and conditions as imposed by the sentencing court.

Probation revocation requires a truncated hearing by the sentencing court to

determine whether probation remains rehabilitative and continues to deter

future antisocial conduct. Such a hearing takes place without a jury, with a

lower    burden    of   proof,   and   with   fewer   due   process   protections.”

Commonwealth v. Holder, 805 A.2d 499, 503-504 (Pa. 2002).                     At a

probation or parole revocation hearing, the following procedural safeguards

apply:

        (a) written notice of the claimed violations of [probation or]
        parole; (b) disclosure to the [probationer or] parolee of evidence
        against him; (c) opportunity to be heard in person and to
        present witnesses and documentary evidence; (d) the right to
        confront and cross-examine adverse witnesses (unless
        the hearing officer specifically finds good cause for not
        allowing confrontation); (e) a “neutral and detached” hearing
        body such as a traditional parole board, members of which need
        not be judicial officers or lawyers; and (f) a written statement by
        the factfinders as to the evidence relied on and reasons for
        revoking [probation or] parole.

Commonwealth v. Ferguson, 761 A.2d 613, 617-618 (Pa. Super. 2000)

quoting Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36

L.Ed.2d 656 (1973) (emphasis added).

        Thus, pursuant to Gagnon, supra, an out-of-court statement of an

adverse witness may be admitted if the trial court finds “good cause” for not

allowing the confrontation.       As the Commonwealth Court has observed,

however, “‘[g]ood cause’ in this context (probation and parole revocation

hearings), has not been legislatively defined and the scant case law on the

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subject reflects an individual determination based on the facts of each case.”

Grello v. Com., Pennsylvania Bd. of Probation and Parole, 477 A.2d

45, 46-47 (Pa. Cmwlth. 1984).

       At the revocation hearing in this matter, the trial court determined

that   a   finding   of   “good   cause”   was   not   necessary    because   the

Commonwealth had demonstrated that Ms. Santiago’s statement fell within

the excited utterance exception.       N.T., 9/19/12, at 20.       The trial court

concluded that only “if [the out-of-court statement] is determined to be

hearsay and not subject to an exception to the hearsay rule ... would [the

trial court] have to have a finding of good cause shown.”           Id. at 20-21.

Concluding that Ms. Santiago’s out-of court statement fell within the excited

utterance exception, the trial court accordingly declined to make a separate

finding of whether “good cause” existed for depriving Appellant of his right

to confront Ms. Santiago.

       Appellant argues, however, that the trial court was required to make a

separate, specific finding of “good cause” for depriving him of the right to

confrontation, regardless of whether Ms. Santiago’s statements fell within

the “excited utterance” exception to the hearsay rule.

       Given the dearth of case law on this issue, we look for guidance to the

Commonwealth Court, which, addressing the admissibility of hearsay

testimony in parole and probation revocation hearings, has regularly

concluded that “[g]ood cause to admit hearsay when the declarant is



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unavailable may be based upon a finding of some intrinsic indicia of

reliability and corroboration by other evidence of record.”                Majors v.

Pennsylvania Bd. of Probation and Parole, 808 A.2d 296, 298 (Pa.

Cmwlth. 2002); see also Rodriguez v. Com., Pennsylvania Bd. of

Probation & Parole, 516 A.2d 116 (Pa. Cmwlth. 1986).                   Here, at the

revocation   hearing,   the   trial   court     established   that   the   challenged

statements contained the requisite “indicia of reliability” given the trial

court’s findings that the statements were made while Ms. Santiago was still

under the stress of a startling event, and that her identification of Appellant

as her assailant was corroborated by other evidence of record including the

visibly fresh injuries to her face and the fact that Appellant was in close

proximity to her at the time and displayed injuries of his own.              Thus, in

reaching its conclusion that the challenged statements constituted an excited

utterance, the trial court also satisfied the “good cause” requirement by

stating on the record the reasons for its belief that the challenged

statements were reliable.

      To the extent that Appellant argues that the Commonwealth was

required to additionally demonstrate “good cause” for Ms. Santiago’s

unavailability at trial, our review of the record reveals that Officer Brown

testified that on the date of the incident, after Ms. Santiago initially stated

that Appellant had assaulted her, Ms. Santiago subsequently refused to

speak any further with the police.       Officer Brown testified:      “I asked her


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several times if she would continue to elaborate to what happened, and she

refused.    I asked her if she would be interviewed by detectives further in

reference to this matter, at which time she also refused.” N.T., 9/19/12, at

12-13.     Officer Brown testified that Ms. Santiago then “walked away” and

left the scene. Id. at 17. Under the more relaxed standards applicable to

revocation proceedings, we conclude that given Ms. Santiago’s refusal to

speak with police, the Commonwealth demonstrated the requisite “good

cause” for Ms. Santiago’s unavailability at trial and for admission of her out-

of-court statement.

      In his second issue, Appellant argues that the evidence was insufficient

to support the revocation of his probation. Appellant’s Brief at 27-30. “A

challenge to the sufficiency of the evidence is a question of law subject to

plenary review. We must determine whether the evidence admitted at trial

and all reasonable inferences drawn therefrom, when viewed in the light

most favorable to the Commonwealth as the verdict winner, is sufficient to

support all elements of the offenses. A reviewing court may not weigh the

evidence     or   substitute   its   judgment    for   that   of   the   trial   court.”

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)

(citations and internal quotations omitted).

      “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court's decision will not be

disturbed on appeal in the absence of an error of law or an abuse of


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discretion.”   Id.    “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.” Commonwealth v. Allshouse, 33 A.3d

31, 37 (Pa. Super. 2011) (quotation marks and citations omitted). “[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[.]”

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations

and internal quotations omitted).        “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.”

Id.

       At the September 19, 2012 revocation proceeding, after hearing the

testimony of Officer Brown, the trial court concluded that the Commonwealth

had demonstrated by a preponderance of the evidence that Appellant had

violated his probation. The trial court explained:

       [The Commonwealth] demonstrated by a preponderance of the
       evidence, that [Appellant] engaged in assaultive conduct, that

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      probation was ineffective to rehabilitate [Appellant], and that
      [Appellant] would likely commit another crime if he were not
      imprisoned. The trial court based its decision upon the evidence
      that [Appellant] punched Lynette Santiago in her face causing
      her lip to bleed and that Santiago had scratches on her face and
      her shirt was torn. Such evidence is more than adequate to
      revoke [Appellant’s] probation and issue a new sentence of total
      confinement. Such sentence was also essential to vindicate the
      authority of the trial court given that [Appellant] failed to comply
      with the terms of his supervision only one day after being
      released from Eagleville Hospital.

Trial Court Opinion, 7/10/13 at 4 (citations omitted).

      We find no abuse of discretion in the trial court’s determination that

the evidence was sufficient to support revocation of Appellant’s probation.

      The burden of proof for establishing a violation of probation is a
      preponderance of the evidence, lesser than the burden in a
      criminal trial of proof beyond a reasonable doubt. But there are
      other noteworthy differences between a probation revocation
      hearing and a criminal trial, and the manner in which each
      proceeding affects the other also is significant:

      The focus [of] a probation hearing, even though prompted by a
      subsequent arrest, is whether the conduct of the probationer
      indicates that the probation has proven to be an effective vehicle
      to accomplish rehabilitation and a sufficient deterrent against
      future anti-social 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. Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (citations

and internal quotations omitted); see also Ortega, supra (“The question

before us, therefore, is not whether the evidence admitted at the VOP

hearing would, if admitted at trial, suffice to convict [the appellant] beyond a

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reasonable doubt ... but whether it showed by a preponderance of the

evidence that probation had proven ineffective in rehabilitating [the

appellant] and deterring him from antisocial behavior.”).        Accordingly, we

find no error in the trial court’s determination that the testimony of record

was sufficient to demonstrate, by a preponderance of the evidence, that

Appellant engaged in assaultive behavior and that Appellant’s probation was

ineffective in accomplishing rehabilitation and had not deterred future

antisocial conduct.

        Appellant next argues that the trial court abused its discretion when it

sentenced him to four to twelve years of incarceration. Such a challenge to

the discretionary aspects of a sentence is not appealable as of right. Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781.     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

              Before we reach the merits of this [issue], we must engage
        in a four part analysis to determine: (1) whether the appeal is
        timely; (2) whether Appellant preserved his issue; (3) whether
        Appellant's brief includes a concise statement of the reasons
        relied upon for allowance of appeal with respect to the
        discretionary aspects of sentence; and (4) whether the concise
        statement raises a substantial question that the sentence is
        appropriate under the sentencing code. The third and fourth of
        these requirements arise because Appellant's attack on his
        sentence is not an appeal as of right. Rather, he must petition
        this Court, in his concise statement of reasons, to grant
        consideration of his appeal on the grounds that there is a
        substantial question. Finally, if the appeal satisfies each of these
        four requirements, we will then proceed to decide the
        substantive merits of the case.


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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.

Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion.").

       Here, Appellant preserved his claim in his motion for reconsideration,

and filed a timely notice of appeal.2 Appellant has additionally included in

his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s

Brief at 15-17.     Moreover, Appellant’s claim that the trial court sentenced

him to a term of total confinement based solely on a technical violation

raises a substantial question for our review.                   See Commonwealth v.

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

‘fundamental       norms      which        underlie     the     sentencing    process.’”);

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


2
  We recognize that Appellant’s nunc pro tunc motion for reconsideration was
untimely. However, on November 30, 2012, the trial court entered an order
approving the nunc pro tunc filing, even though it denied the motion on its
merits, thereby permitting Appellant to preserve his discretionary claim.
See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724, n.1 (Pa. Super.
2013) (“It is well settled that a trial court may exercise its discretion and
permit a post-sentence motion to be filed nunc pro tunc within thirty days
after the imposition of sentence.”).



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Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (“a

claim that a particular probation revocation sentence is excessive in light of

its underlying technical violations can present a question that we should

review”).

      Our standard of review is well-settled. We have explained:


      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. 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 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).     “[U]pon 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)


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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).

      “In addition, in all cases where the court resentences an offender

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 [and] [f]ailure to comply

with these provisions shall be grounds for vacating the sentence or

resentence    and     resentencing   the   defendant.”     Commonwealth        v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations

omitted); 42 Pa.C.S. § 9721(b). “A trial court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court's consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1282-1283.

      At the November 16, 2012 sentencing hearing, the trial court heard

from Appellant’s counsel, who recounted Appellant’s various mental health


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and substance abuse problems, as well as his family circumstances.           N.T,

11/16/12, at 5-6.   Additionally, the trial court heard from Appellant, who

expressed his remorse       for   his actions,    and   outlined his efforts at

rehabilitation and his attempts to secure employment.        Id. at 10-12.   The

trial court also had the benefit of a pre-sentence investigation report which

included a mental health analysis.      The trial court then set forth on the

record the reasons for its sentence as follows:


            [T]he Commonwealth is requesting a five-to-ten year
      sentence. The defense is asking for a period of time served. ...
      Let me highlight the following presentence investigation, which is
      that [Appellant] had the benefit of juvenile supervision, which
      despite that benefit, was not successful.          Given the later
      convictions, [Appellant has] had many revocations. Also, several
      violent convictions, including robbery, resisting arrest and simple
      assault.

           [Appellant has] had minimal employment ... although [he]
      had some successful treatment, and I do give [him] that.
      [Appellant has] had successful treatment with the program in
      late December [but] in the main, there’s been a repeated
      unsuccessful attempt of treatment.

            So in my view, what’s reasonable and appropriate, given
      the protection of the public as well as rehabilitative needs,
      should be 1½ to five years on the criminal trespass.
      Consecutive to that would be 2½ to seven years on the
      possession with intent to deliver. Bringing the total sentence to
      four to twelve years of state time.

N.T., 11/16/12, at 12-13.

      Upon review, we discern no abuse of discretion, Simmons, supra,

where the trial court considered the appropriate factors in concluding that

Appellant’s repeated attempts at rehabilitation had failed.         The record

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supports the trial court’s determination that revocation and a sentence of

imprisonment for Appellant – who engaged in assaultive conduct one day

after his release from inpatient treatment for mental health and substance

abuse issues – was essential to vindicate the authority of the court.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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