J-S64020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM H. EVANS JR.

                            Appellant                  No. 266 EDA 2016


      Appeal from the Judgment of Sentence Entered December 22, 2015
                In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000125-1987

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

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 12, 2016

        Appellant, William H. Evans, Jr., appeals from the judgment of

sentence imposed after the trial court determined that Appellant violated the

terms of his probation. We affirm.

        On June 11, 1994, Appellant entered a nolo contendere plea to three

counts of rape by forcible compulsion.1        N.T., 5/11/94, at 3, 11-12.   As

discussed below, the Commonwealth charged that Appellant repeatedly had

beaten, bound, gagged, threatened, and raped eight-year-old H.S., five-

year-old W.E., and three-year-old L.E. between June 1982 and August 1983,

while he was living with them and their mother in Allentown, Lehigh County.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(1)-(2).
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On June 29, 1994, the Honorable Lawrence J. Brenner sentenced Appellant

to an aggregate 10-20 years’ incarceration, followed by 20 years’ probation.

N.T., 6/29/94, at 19-20. On March 28, 2013, Appellant was released from

incarceration. N.T., 10/15/13, at 10.

     Beginning on June 21, 2013, Appellant violated his probation by failing

to reside at a verified and approved residence.      Judge Brenner having

retired, the Honorable William E. Ford held a revocation hearing on October

15, 2013, at which Appellant’s probation/parole agent testified about the

violation. According to that testimony, Appellant had been expelled from the

boardinghouse where he was approved to live due to assaultive behavior

towards the house manager. N.T., 10/15/13, at 11-12. The house manager

stated that he had discovered a woman in Appellant’s room, which was

against house rules.   Id. at 24-25, 27, 30.     When the house manager

informed Appellant that he was in violation of the rules, Appellant screamed

obscenities at him and threatened to “kill” him and to “bust [him] up,” at

which time the house manager instructed Appellant to leave. Id. at 31-32,

34-35. Appellant was taken into custody on June 27, 2013. Id. at 13.

     On October 21, 2013, Judge Ford revoked Appellant’s probation and

imposed a new sentence of 9-24 months’ incarceration, followed by 18

years’ probation on each of two separate counts, to be served concurrently.

The next day, Judge Ford entered another order correcting “concurrently” to

“consecutively,” for an aggregate probation term of 36 years. On November

1, 2013, Appellant filed a motion to modify his sentence, which Judge Ford

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denied on November 6, 2013. Appellant appealed his sentence to this Court,

and we affirmed on January 26, 2015.2

       Appellant served the entire two years’ incarceration after his first

probation revocation and was once more released.                    During this period,

Appellant again violated his probation. On December 22, 2015, Judge Ford

held a second revocation hearing.               The Commonwealth presented the

testimony of Appellant’s psychotherapist and treatment evaluator, who was

a Certified Sexual Offender Treatment Specialist. N.T., 12/22/15, at 7. The

therapist testified that Appellant resisted adhering to probation conditions

and    engaged      in   impulsive     and     risky   behaviors,    including   having

“indiscriminate” sexual contact with at least two women. Id. at 8, 15, 19.

Appellant had an altercation with one of these women, which required police

intervention. Id. at 8-9, 21.

       The Commonwealth also presented testimony at the December 2015

revocation hearing by the probation/parole agent who supervised Appellant

during his second period of probation.           N.T., 12/22/15, at 18.      The agent

testified that he had told Appellant to have no further contact with the

woman with whom he had the altercation.                  Id. at 8-9, 21.      However,

Appellant continued to communicate with her, which, in part, resulted in his

eviction from his approved residence. Id. at 21, 25. Appellant then moved

____________________________________________


2
  Commonwealth v. Evans, No. 3235 EDA 2013 (Pa. Super. Jan. 26, 2015)
(unpublished memorandum).


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to a new residence without notifying his probation/parole agent in advance.

Id. at 22, 31.

      Based on the foregoing, Judge Ford again revoked Appellant’s

probation and sentenced him to another 1-2 years’ incarceration, followed

by an aggregate 36 years’ probation.      On December 30, 2015, Appellant

filed a motion to modify sentence, which was denied the same day.

Appellant filed this appeal on January 19, 2016.

      Because Judge Ford retired, the Honorable Maria L. Dantos wrote an

opinion for the lower court that supported Judge Ford’s ruling. She stated:

“In the instant case, [Appellant] failed to comply with the terms of his

probation.   Indeed, [Appellant] deliberately chose not to comply with the

terms of his probation.    Therefore, the Court had ample justification to

impose a sentence of total confinement as it did.”     Trial Court Opinion,

1/21/16, at 2-4.

      Appellant presents one issue for review:

         WAS THE SENTENCE IMPOSED BY THE LOWER COURT
         MANIFESTLY EXCESSIVE OR OTHERWISE UNJUSTIFIED
         BASED UPON THE LACK OF ANY PROPORTIONAL
         PUNISHMENT BASED UPON THE NATURE OF THE
         DEFENDANT’S PROBATION VIOLATION AND NEED FOR
         REHABILITATION AS WELL AS THE COURT’S PERCEIVED
         DISLIKE OF THE DEFENDANT?

Appellant’s Brief at 8.


      Appellant argues that the trial court abused its discretion when it

resentenced him to 1-2 years of incarceration followed by 20 years of


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probation, which he asserts is excessive. Such a challenge to the

discretionary    aspects    of   a   sentence    is    not    appealable   as   of   right.

Commonwealth v. Colon, 102 A.3d 1033, 1042–1043 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).                 Therefore, before we exercise

jurisdiction to reach the merits of Appellant’s 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 an appeal

with respect to the discretionary aspects of his sentence; and (4) whether

the concise statement raises a substantial question regarding the sentence’s

impropriety under the Sentencing Code.                Id.    Only if the appeal satisfies

each of these four requirements may we proceed to decide the substantive

merits of the case. Id.

       Instantly, Appellant filed a timely notice of appeal and properly

preserved his issue in his post-sentence motion.                Additionally, Appellant’s

brief contains a concise statement of the grounds on which he relies.

Appellant’s Brief at 12.3 Finally, because Appellant challenges the sentence
____________________________________________


3
  Under Rule 2119(f) of the Rules of Appellate Procedure, the statement
must “set forth . . . the reasons relied upon for allowance of appeal.”
Appellant’s statement asks for review of his sentence “based upon his belief
that, even though the Defendant was violated from his probation for only a
technical violation, there must be an appropriate balancing of the type and
length of sentence that was being imposed for that violation.” Appellant’s
Brief at 12. Appellant adds, “There has to be a reasonable proportionality of
the sentence to the violations and the new sentence cannot be imposed
(Footnote Continued Next Page)

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as contrary to the fundamental norms underlying the sentencing process,

e.g., concerns for proportionality and rehabilitation, he raises a substantial

question.    See Colon, 102 A.3d at 1043.4        Thus, we will consider the

substantive merits of Appellant’s sentencing claim.

        Generally, the Sentencing Code requires a sentencing court to impose

a sentence 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

                       _______________________
(Footnote Continued)

because of any emotional or personal dislike that the Court may have for the
Defendant or the Defendant’s original offense.” Id. Appellant’s statement
does not explain how his sentence failed to include the “appropriate
balancing” that he references or how it lacks “reasonable proportionality.”
Appellant develops these issues in the remainder of his brief, however, and
the Commonwealth does not seek dismissal of the appeal on the basis of
Rule 2119(f).    Therefore, we will proceed to consider the merits of
Appellant’s claims.   See Commonwealth v. Shugars, 895 A.2d 1270,
1274 (Pa. Super. 2006).

4
    The determination of what constitutes a substantial question is evaluated

on a case-by-case basis. Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.

Super. 2012).      A substantial question exists “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.”    Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010).



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community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §

9721(b); Commonwealth v. Walls, 926 A.2d 957, 962 (Pa 2007). In the

revocation context, as in sentencing generally, sentencing is vested in the

sound discretion of the sentencing judge, and a sentence will not be

disturbed    on     appeal   absent    a    manifest   abuse     of   discretion.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015). An abuse of discretion is not merely an

error in judgment. Rather, the appellant must establish, by reference to the

record, that the sentencing court ignored or misapplied the law; exercised its

judgment for reasons of partiality, prejudice, bias or ill will; or arrived at a

manifestly unreasonable decision. Id.

       Probation is a privilege within the sentencing court’s discretion.

Commonwealth v. Newman, 310 A.2d 380, 381 (Pa. Super. 1973). When

probation is violated, the sentencing court possesses the same sentencing

alternatives in the revocation context that it had at the time of initial

sentencing. See 42 Pa.C.S. § 9771(b); Commonwealth v. Fish, 752 A.2d

921,   923   (Pa.   Super.   2002).   Where   probation   is   ineffective   as   a

rehabilitative tool, a more severe sentence, up to and including total

incarceration, will often be warranted and appropriate. Commonwealth v.

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

669 A.2d 1008, 1011 (Pa. Super. 1996). Total confinement may be imposed

if (1) the defendant has been convicted of another crime; (2) the conduct of


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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. Fish, 752 A.2d at 923 (citing 42 Pa.C.S. § 9771(c)).

         Here, following Appellant’s second violation of probation, he was

sentenced to 1-2 years’ incarceration followed by 20 years of probation.

Trial Court Opinion, 1/21/16, at 1. In challenging this sentence, Appellant

argues that the court did not properly balance the nature of the violation,

the “appropriate form of punishment,” the need for incarceration, the length

of incarceration, and his “cooperation during his supervision.”         Appellant’s

Brief at 13, 17.        He adds that the court did not adequately review the

general sentencing standards prior to imposing the sentence and that the

sentence was “influenced” by the court’s “personal feelings regarding

[Appellant] and the background and history of the original charges.” Id.

         Appellant believes the court imposed a sentence that is “harsh,”

excessive, and disproportionate to his conduct in violating his probation and

that it did so because his original offense in 1994 was a serious sexual

offense.       Appellant’s Brief at 18-19.   He asserts that the sentencing court

failed    to    consider   and   properly    weigh   “the   present   circumstances

surrounding [him,] including his overall rehabilitation and ability to live in

society rather than to be returned to incarceration and lose all of the

benefits that he may have earned during his period of freedom.” Id. at 18.

He states that his resentence “should be based upon clear evidence of [his]


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intentional violation of his probation and not based upon suspicions about his

mental status or his possible dangerousness.”           Id. at 19.     He believes

alternatives to incarceration should have been considered and better reasons

given than “the perceived seriousness of the original offenses and the need

for absolute compliance with all conditions of supervision” in the probation

context. Id. at 20.

      Prior to imposing sentence, Judge Ford explained his reasons.          First,

he expressed his understanding that sex offenders have a variety of

restrictions placed on them, making it difficult for them to live in society. He

acknowledged that Appellant believes his punishment had been sufficient by

that point, after he had already spent so much time incarcerated. However,

Judge Ford also considered the facts of Appellant’s offenses in order “to

make sure that no one else is victimized,” and he stated that the underlying

crimes, which were forcible rapes of young children, were “some of the most

horrendous facts” he had ever encountered: “[A]part from the sexual

offenses, there was absolute cruelty involved.”          N.T., 12/22/15, at 44.

Judge Ford also found that Appellant failed to be “meticulous about the

supervision requirements” of his second probation, including his sexual

offender   treatment,   despite   knowing   by   this    time   that   neither   his

probation/parole agent nor the court would tolerate violations. Id. at 44-46.

In imposing 1-2 years of re-incarceration, Judge Ford stated that he must do

what is necessary to protect society. Id. at 44.


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      Upon review, we discern no abuse of discretion by the trial court,

which credited the Commonwealth’s witnesses and evidence regarding

Appellant’s probation violations at the December 2015 revocation hearing,

the second such proceeding involving Appellant over which the court had

presided in five years.

      Both at his hearing and in his brief, Appellant has contended that,

during his second period of probation, he did nothing illegal or sexually

inappropriate, tried to cooperate with the sexual offender counseling, and

tried to limit his contact with his female sexual partner, as directed by his

probation/parole agent. Appellant’s Brief at 15; N.T., 12/22/15, at 34, 38-

40. But Judge Ford did not find Appellant’s argument to be convincing or his

testimony to be credible. N.T., 12/22/15, at 44-46. As an appellate court,

we “defer to the credibility determinations of the trial court, which had the

opportunity to observe the demeanor of witnesses and to hear them testify.”

Commonwealth        v.    Bomar,   826   A.2d   831    (Pa.   2003);   see   also

Commonwealth v. Smith, 416 A.2d 494, 496 (Pa. 1980) (within context of

a revocation hearing, issues of credibility are for the factfinder to resolve).

      Moreover, Appellant’s claim that the revocation sentencing court did

not consider or “balance” his actions and conduct, the “nature of his

violation,” or his rehabilitative needs, or comply with sentencing norms, is

unavailing. As required by Section 9721(b) of the Sentencing Code and the

Supreme Court’s decision in Walls, Judge Ford’s sentence, which he


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imposed “to make sure that no one else is victimized,” was consistent with

the need for protection of the public and considered the gravity and impact

of Appellant’s repeated and various offenses while he was on probation.

N.T., 12/22/15, at 44. The trial court acknowledged the difficulties that sex

offenders have in returning to and living in society after being released from

incarceration, as well as the likelihood that Appellant considers his

punishment sufficient after over 20 years of either incarceration or

supervised probation.    Id.    But the court nevertheless concluded that the

resentencing was appropriate.       We defer to that exercise of Judge Ford’s

discretion.

       As for the nature of Appellant’s violation, the sentencing court heard

and credited testimony of Appellant’s unapproved personal and sexual

relationships, disobedience of his probation/parole agent’s orders, a violent

altercation with a sexual partner that required police intervention, eviction

from    his   approved   residence,   and      relocation   without   advising   his

probation/parole agent.        As Judge Dantos’ opinion states, “[Appellant]

deliberately chose to not comply with the terms of his probation. Therefore,

the Court had ample justification to impose a sentence of total confinement

as it did.” Trial Court Opinion, 1/21/16, at 3-4. Appellant’s arguments to

the contrary lack support in the facts of record and the law, and he fails to

establish that the sentencing court abused its discretion in the sentence of




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1-2 years’ incarceration imposed here, which in light of the record evidence,

is not excessive.

      Moreover, Appellant’s sentence complies with clear precedent that

when, as here, probation is ineffective as a rehabilitative tool, a more severe

sentence, up to and including total incarceration, is warranted and

appropriate. See, e.g., Sierra, 752 A.2d at 913; Smith, 416 A.2d at 496.

Upon revocation of parole, total confinement may be imposed if the

defendant’s conduct indicates that it is likely that he will commit another

crime if he is not imprisoned, or if incarceration is essential to vindicate the

authority of the court. Fish, 752 A.2d at 923 (citing 42 Pa.C.S. § 9771(c)).

Appellant’s first release from incarceration was in March 2013. His conduct

in June 2013 (about three months after his initial release), led to his first

revocation of probation. He received a two-year term of incarceration and

was released in mid-2015.     Within months, he engaged in the conduct at

issue in this appeal, and the court was well within its discretion to conclude

that after two attempts at probation ended in rapid failure, the privilege of

supervised release was clearly ineffective as a rehabilitative tool and that

incarceration was warranted.     Again, Appellant fails to establish abuse of

discretion or excessiveness in this regard.

      As for Appellant’s assertion of the lower court’s “perceived dislike” of

him, Appellant’s Brief at 8, this claim is vague and unsubstantiated.

Appellant fails to cite to any notes of testimony or anything else on the


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record in support of this allegation.        Accordingly, any suggestion in this

appeal that Appellant’s sentence was the result of Judge Ford’s “partiality,

prejudice, bias or ill will” is meritless.

      Thus, based upon our review of the record, the lower court did not

abuse its discretion.      The sentence imposed upon Appellant during his

second probation violation hearing was not excessive, unreasonable,

unsupported, or prejudiced. Consequently, we find no basis to conclude that

the sentence was excessive or disproportionate.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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