J-A13025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH TRUSH                              :
                                               :
                       Appellant               :   No. 1065 EDA 2018

             Appeal from the Judgment of Sentence March 8, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005392-2010


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 18, 2019

        Appellant Kenneth Trush appeals from the judgment of sentence

imposed following the revocation of his probation. Appellant challenges the

discretionary aspects of his sentence. We affirm.

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

of this case as follows:

        On November 5, 2010, [Appellant] pled nolo contendere to one
        count of possession with intent to deliver a controlled substance
        [(PWID), 35 P.S. § 780-113(a)(30)]. On that date, the [trial
        c]ourt imposed the negotiated sentence of five years’ reporting
        probation.

        [Appellant] immediately absconded from supervision, putting him
        in technical violation of the terms of his probation. Since he failed
        to report at all after the November 5, 2010 sentencing, he also
        failed to comply with the probation requirements that he submit
        to drug testing and provide a DNA sample. As a result, his
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A13025-19


     probation officer issued an absconder warrant for his arrest on
     March 23, 2011.

     After issuing the warrant, the Probation Department discovered
     that on March 11, 2011, [Appellant] had been arrested in Bucks
     County for aggravated assault and related charges. On July 11,
     2011, [Appellant] was permitted to resolve the Bucks County
     charges by pleading guilty to simple assault, resisting arrest, and
     disorderly conduct, and was sentenced to 6 to 12 months in
     county prison.

     On October 13, 2011, [Appellant] appeared before the [trial court]
     for a hearing to address the alleged violations of the terms of his
     probation (VOP). At that time, the [trial c]ourt found that
     [Appellant] was in direct and technical violation, revoked
     [Appellant’s] probation, and resentenced him to 5½ to 11 months’
     incarceration, with a consecutive term of three years’ reporting
     probation. While the [trial c]ourt ordered that [Appellant’s]
     sentence be consecutive to the 6 to 12 month sentence
     [Appellant] was currently serving for his Bucks County conviction,
     the [trial c]ourt made him work release eligible.

     The [trial c]ourt paroled [Appellant] on January 8, 2013.
     However, [Appellant] once again absconded from supervision,
     reporting for the last time on September 9, 2014. [Appellant’s]
     probation officer subsequently discovered that [Appellant] had
     been arrested on August 22, 2014, for a PWID in Bucks County
     that allegedly had occurred on April 29, 2014. [Appellant] was
     released on bail after that arrest, but failed to disclose the arrest
     to his probation officer when [Appellant] reported for the last time
     about two weeks later in September. The probation officer also
     learned that on February 17, 2015, [Appellant] had failed to
     appear in Bucks County for his trial on the PWID charge, and was
     therefore a fugitive in that case. On May 4, 2015, the probation
     officer issued an absconder warrant for [Appellant].

     [Appellant’s] whereabouts were unknown to the Probation and
     Parole Department until more than two years later, when on July
     31, 2017, he was arrested for retail theft. That arrest enabled
     him to be brought back to face the Bucks County PWID charge.
     On September 14, 2017, he pled guilty to that charge. On
     December 28, 2017, the Bucks County court sentenced him to 1½
     to 3 years’ incarceration in state prison.


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      On March 8, 2018, [Appellant] came before the [trial court] once
      again for a VOP premised upon his second time absconding from
      supervision and his PWID conviction in Bucks County. Following
      the hearing, the [trial c]ourt revoked [Appellant’s] probation and
      resentenced him to 2 to 5 years’ incarceration, consecutive to the
      1½ to 3 years’ incarceration [Appellant] was serving for his PWID
      conviction in Bucks County.

Trial Ct. Op., 7/17/18, at 1-3 (record citations omitted).

      Appellant timely filed a post-sentence motion on March 16, 2018.

Appellant argued that his “sentence was excessive in that it far surpassed

what was required to protect the public and was well beyond what was

necessary to foster [Appellant’s] rehabilitation for a non-violent offense.”

Post-Sentence Mot., 3/16/18, at 2 (unpaginated). The court denied the post-

sentence motion on March 27, 2018.

      Appellant timely filed a notice of appeal on April 9, 2018. On May 1,

2018, Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The trial court subsequently

filed a responsive Rule 1925(a) opinion, concluding that it imposed an

appropriate and reasonable sentence.

      Appellant now raises one question for this Court’s review:

      Did the sentencing court abuse its discretion, violate Sections
      9771 and 9721 of the Sentencing Code, and violate the general
      sentencing norms when, following a revocation of probation, it
      imposed an aggregate consecutive sentence which was manifestly
      excessive and unreasonable, was based upon Appellant’s criminal
      history exclusively without an adequate substitute for a pre-
      sentence investigation report, and ignored his individualized
      needs, rehabilitation, and circumstances?

Appellant’s Brief at 3.



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      On appeal, Appellant claims that the trial court did not properly consider

his background, character, and rehabilitative needs when fashioning the

sentence it imposed following revocation. Appellant’s Brief at 12. Appellant

acknowledges that he waived his right to have a pre-sentence investigation

(PSI) report prepared to inform the court about the relevant sentencing

factors. Id. Nevertheless, Appellant insists that the “court failed to conduct

a thorough colloquy to ensure that it had adequate substitute information.”

Id.

      Further, Appellant complains that the court ordered his sentence to run

consecutive to his prison term for the Bucks County PWID conviction.

Appellant argues that the imposition of a consecutive sentence is excessive in

light of the fact that he committed a non-violent drug offense, which was

related to his addiction issues. Id. at 18. Appellant concludes that the trial

court “failed to consider each required sentencing factor, and imposed a

manifestly excessive sentence.” Id. at 10.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

      (1) whether the appeal is timely; (2) whether [the a]ppellant preserved
      his issues; (3) whether [the a]ppellant’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
      inappropriate under the [S]entencing [C]ode.


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J-A13025-19



Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted). “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted).

     Here, Appellant timely filed a notice of appeal, arguably preserved his

claim in a post-sentence motion, and included a concise statement of reasons

relied upon for allowance of appeal in his brief. See Corley, 31 A.3d at 296.

Additionally, the claim that the trial court failed to consider the required

sentencing factors raises a substantial question. See Derry, 150 A.3d at 999

(holding that “the failure to consider Section 9721(b) factors does present a

substantial question for our review of the discretionary aspects of sentences

imposed for violations of probation”). Therefore, we will review Appellant’s

claim.

     Our well-settled standard of review is as follows:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by 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
     judgments for reasons of partiality, prejudice, bias or ill will, or
     arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).


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      The statute governing the modification or revocation of probation

provides:

      § 9771. Modification or revocation of order of probation

                                    *      *    *

      (c) Limitation on sentence of total confinement.—The court
      shall not impose a sentence of total confinement upon revocation
      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.

42 Pa.C.S. § 9771(c).

      Following revocation, “[o]ur review is limited to determining the validity

of the probation revocation proceedings and the authority of the sentencing

court to consider the same sentencing alternatives that it had at the time of

the initial sentencing.”   Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.

Super. 2000) (citation omitted).         “[T]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.”      Id.        “Generally, Pennsylvania law affords the

sentencing   court   discretion    to    impose     its   sentence   concurrently   or

consecutively to other sentences being imposed at the same time or to

sentences already imposed.” Commonwealth v. Austin, 66 A.3d 798, 808

(Pa. Super. 2013) (citation omitted).


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J-A13025-19



     “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S. § 9721(b) . . . .” Commonwealth v. Caldwell,

117 A.3d 763, 768 (Pa. Super. 2015) (citation omitted).

     While parts of § 9721(b) do not govern revocation proceedings,
     as our sentencing guidelines are not required to be consulted in
     such instances, . . . other provisions of that section do apply. For
     example, the sentencing court must 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. In
     addition, in all cases where the court resentences an offender
     following revocation of probation, county intermediate
     punishment or State intermediate punishment or resentences
     following remand, 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.

Derry, 150 A.3d at 993 (citations and quotation marks omitted).

     Instantly, the trial court explained its sentencing decision as follows:

     [T]he record demonstrates that [Appellant’s] sentence was
     appropriate and reasonable. As the Court noted during the
     sentencing hearing, [Appellant’s] utter disregard for any
     conditions of supervisions, despite repeated opportunities to
     comply, fairly gives rise to concern about the protection of the
     public.      After having originally been given a probationary
     sentence, [Appellant] failed to report to probation even one time,
     and picked up a felony aggravated assault charge that was
     ultimately reduced to simple assault in a plea bargain. After that
     flagrant abuse of the privilege of probation, the [trial c]ourt gave
     [Appellant] a generous county sentence with work release
     eligibility.    [Appellant] responded to this second chance by
     absconding once again, this time for more than two years, and by
     committing the very same crime for which he had been placed on
     probation by the [trial c]ourt. As the [trial c]ourt stated at the
     sentencing hearing, this history of lawless conduct fully warranted
     time in prison in addition to the sentence that he had received for
     his new drug case in Bucks County.


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J-A13025-19


        As to [Appellant’s] claim that the [trial c]ourt failed to conduct an
        individualized sentencing, the [trial c]ourt, during the sentencing
        hearing, explicitly took into account the evidence presented
        throughout the history of the case, the original sentencing
        guidelines, [Appellant’s] history while on probation, and
        [Appellant’s] application for parole that the [trial c]ourt had
        granted in 2013. The [trial c]ourt also had before it the detailed
        Gagnon II[1] hearing summaries prepared by the Probation and
        Parole Department from October 7, 2011, August 14, 2017, and
        January 18, 2018.

Trial Ct. Op. at 5-6 (record citations omitted).

        Contrary to Appellant’s assertions, the trial court considered the

relevant sentencing factors.        The court recognized that a prison term was

appropriate in light of Appellant’s repeated probation violations, as well as his

commission of new crimes.           See Derry, 150 A.3d at 993; 42 Pa.C.S. §

9771(c); see also Malovich, 903 A.2d at 1254 (finding no abuse of discretion

in the trial court’s sentence of total confinement because the “[a]ppellant was

not responding to the court’s authority; incarceration was necessary”).

        Further, Appellant waived his right to have a PSI report prepared. Even

if Appellant had not made this waiver, the absence of a PSI report did not

inhibit the court’s ability to make an informed sentencing decision:

        [T]he availability of relevant data to the sentencing judge was so
        extensive that defense counsel believed that no additional helpful
        information would be found in a PSI [report]. The [trial c]ourt had
        before it a wealth of information from a prior parole petition, three
        Gagnon II hearing summaries, two prior sentencing hearings,
        and a prior VOP hearing. Accordingly, the [trial c]ourt had more
        than sufficient information to impose an individualized sentence,
        and thus a PSI [report] was not necessary.

____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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J-A13025-19



Trial Ct. Op. at 8-9. Our examination of the record supports the trial court’s

assertion. See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 727-28 (Pa.

Super. 2013) (holding that the revocation court possessed sufficient

information to substitute for a PSI report where, among other things, the same

judge presided at the probationer’s original plea hearing, sentencing, and

revocation proceeding, and the court possessed a summary of the

probationer’s underlying offense, criminal record, and violation history). We

conclude that the court did not abuse its discretion, and Appellant is not

entitled to relief on his challenge to the discretionary aspects of sentencing.

See Raven, 97 A.3d at 1253.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/19




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