J-S25041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

WALTER VEGA, JR.

                          Appellant                No. 1585 WDA 2015


             Appeal from the Judgment of Sentence June 18, 2014
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000368-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED MAY 17, 2016

      Walter Vega, Jr. appeals from a judgment of sentence of 2½-5 years’

imprisonment imposed following revocation of his probation. His sole issue

in this appeal is:

      Did the trial court abuse its discretion by imposing consecutive
      statutorily allowed maximum revocation sentences, without
      considering [Vega’s] age, family history, rehabilitative needs,
      and a pre-sentence investigative report, resulting in an
      aggregate excessive, unreasonable, and harsh sentences
      contrary to the fundamental norms that underlie the sentencing
      process considering the nature of the crimes?

Brief For Appellant, at 5.    In essence, Vega contends that the trial court

failed to review a pre-sentence investigation report (“PSI”) before imposing

Vega’s post-revocation sentence. Vega has waived this issue; accordingly,

we affirm.
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        On September 6, 2013, the Commonwealth filed an information

charging Vega with, inter alia, resisting arrest, institutional vandalism and

disorderly conduct.1 On October 16, 2013, Vega entered a negotiated guilty

plea to these offenses, and the court sentenced him to two years’ probation

for institutional vandalism, a concurrent term of two years’ probation for

resisting arrest, and one year of probation, consecutive to the other

sentences, for disorderly conduct.

        The transcript from Vega’s October 16, 2013 guilty plea hearing is not

in the certified record.

        On June 18, 2014, Vega appeared for a revocation of probation

hearing before the same judge who imposed his initial sentence.           Vega

admitted that he violated multiple terms of probation, including (1) failing to

report to his probation officer between December 2013 and January 2014,

(2) moving from his approved residence without notifying his probation

officer, (3) consuming alcohol, and (4) pleading guilty to a new charge of

simple assault2 for a domestic incident with his girlfriend on February 6,

2014. N.T., 6/18/14, at 2-4. Following his arrest on the new simple assault

charge, Vega damaged a prison cell and brawled with his cellmate. Id. at 3-

4.
____________________________________________


1
    18 Pa.C.S. §§ 5104, 3307(a)(3) and 5503(a)(1), respectively.
2
  18 Pa.C.S. § 2701. Vega was sentenced to 2 years’ probation for this new
offense. Id. at 2.



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       The   court    revoked     Vega’s       probation   and    imposed   consecutive

sentences of 1-2 years’ imprisonment for institutional vandalism, 1-2 years’

imprisonment for resisting arrest and 6-12 months’ imprisonment for

disorderly conduct, the maximum available sentence for each offense.3 N.T.,

6/18/14, at 4.        The court explained that it was sentencing Vega to

imprisonment because the convictions underlying his probationary sentence

were    “anger-type”      in   nature,   and      his   conduct   while   on   probation

demonstrated no attempt to reform.                 N.T., 6/18/14, at 4.        The court

admitted in its Pa.R.A.P. 1925 opinion that it did not obtain a pre-sentence

investigation report (“PSI”) for purposes of Vega’s revocation hearing or

state on the record that it had considered Vega’s age, family history or

rehabilitative needs. Id. at 2. Nevertheless, the court justified its sentence

by observing that Vega’s “crime and character” were “foremost in this

Court’s mind” at the revocation hearing. Id.

       Vega did not appeal within thirty days after the new judgment of

sentence. On February 23, 2015, however, he filed a PCRA petition alleging

that his trial counsel failed to comply with his request to file a direct appeal.
____________________________________________


3
  Resisting arrest is a second degree misdemeanor, 18 Pa.C.S. § 5104, for
which the maximum sentence is 1-2 years’ imprisonment. 18 Pa.C.S. §
106(b)(7). Vega’s offense of institutional vandalism was graded as a second
degree misdemeanor under 18 Pa.C.S. § 3307, for which the maximum
sentence is 1-2 years’ imprisonment. Vega’s offense of disorderly conduct
was graded as a third degree misdemeanor under 18 Pa.C.S. § 5503, for
which the maximum sentence was 6 months–1 year of imprisonment. 18
Pa.C.S. § 106(b)(8).



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In an order dated September 15, 2015, the trial court reinstated Vega’s

direct appeal rights and authorized him to file post-sentence motions within

the next ten days.

        On September 24, 2015, Vega filed a timely motion to modify his

sentence. The court denied this motion the next day. Vega filed a timely

notice of appeal, and both Vega and the trial court complied with Pa.R.A.P.

1925.

        Vega’s appeal consists of a challenge to the discretionary aspects of

his sentence.       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.
        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. Colon, 102 A.3d 1033, 1041 (Pa.Super.2014).

        “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

        An appellant challenging the discretionary aspects of his
        sentence must invoke this Court’s jurisdiction by satisfying a

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      four-part test: (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. [720]; (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.

Allen, 24 A.3d at 1064.

      Here, Vega filed a timely appeal, raised his claim of excessiveness in a

post-sentence motion and provided a concise statement in his brief for

allowance of appeal with respect to the discretionary aspects of sentence. In

addition, the argument in Vega’s brief – imposition of consecutive sentences

without first reviewing a PSI – presents a substantial question for appeal.

See Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa.Super.2008)

(claim that trial court failed to order PSI or conduct appropriate colloquy at

sentencing hearing raised substantial question).

      Despite satisfying Allen’s four-part test, Vega has waived this issue

for a different reason. The court’s failure to review a PSI at the revocation

hearing is excusable when the court had the benefit of a PSI at the original

sentencing hearing. See Commonwealth v. Pasture, 107 A.3d 21, 27-29

(Pa.2014).   Here, the transcript from Vega’s initial sentencing hearing on

October 16, 2013 is missing from the record. Consequently, we cannot tell

whether the court reviewed a PSI at Vega’s initial sentencing hearing, which

in turn prevents us from determining whether the court abused its discretion

at Vega’s revocation hearing. As the appellant, Vega has the duty to ensure


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that the certified record is complete for purposes of appellate review. See

Commonwealth v. Gonzalez, 109 A.3d 711, 725 (Pa.Super.2015). Vega

must bear the blame for the absence of the October 16, 2013 transcript

from the record.

      For the benefit of the parties, we explain Vega’s waiver in further

depth.   The Pennsylvania Rules of Criminal Procedure vest a sentencing

judge with the discretion to order a PSI as an aid in imposing an

individualized sentence. The Rules provide in relevant part:

      (1) The sentencing judge may, in the judge's discretion, order a
      [PSI] in any case.

      (2) The sentencing judge shall place on the record the reasons
      for dispensing with the [PSI] if the judge fails to order a [PSI] in
      any of the following instances:

            (a) when incarceration for one year or more is a
            possible disposition under the applicable sentencing
            statutes[.]

Pa.R.Crim.P. 702(A)(1), (2)(a). When ordered, the PSI shall be available to

the sentencing judge and other specified individuals for review, but it cannot

become part of the record. Pa.R.Crim.P. 703(A).

      We have discussed the role of the PSI as follows:

      The first responsibility of the sentencing judge [is] to be sure
      that he ha[s] before him sufficient information to enable him to
      make a determination of the circumstances of the offense and
      the character of the defendant. Thus, a sentencing judge must
      either order a PSI report or conduct sufficient presentence
      inquiry such that, at a minimum, the court is apprised of the
      particular circumstances of the offense, not limited to those of
      record, as well as the defendant's personal history and
      background....The court must exercise “the utmost care in

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     sentence determination” if the defendant is subject to a term of
     incarceration of one year or more[.]

     To assure that the trial court imposes sentence in consideration
     of both “the particular circumstances of the offense and the
     character of the defendant,” our Supreme Court has specified
     the minimum content of a PSI report. The “essential and
     adequate” elements of a PSI report include all of the following:

          (A) a complete description of the offense and the
          circumstances surrounding it, not limited to aspects
          developed for the record as part of the determination
          of guilt;

          (B) a full description of any prior criminal record of
          the offender;

          (C) a description of the educational background of
          the offender;

          (D) a description of the employment background of
          the offender, including any military record and
          including his present employment status and
          capabilities;

          (E) the social history of the offender, including family
          relationships, marital status, interests and activities,
          residence history, and religious affiliations;

          (F) the offender's medical history and, if desirable, a
          psychological or psychiatric report;

          (G) information about environments to which the
          offender might return or to which he could be sent
          should probation be granted;

          (H) supplementary reports from clinics, institutions
          and other social agencies with which the offender
          has been involved;

          (I) information about special resources which might
          be available to assist the offender, such as treatment
          centers, residential facilities, vocational training
          services, special educational facilities, rehabilitative

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              programs of various institutions to which the
              offender might be committed, special programs in
              the probation department, and other similar
              programs which are particularly relevant to the
              offender's situation;

              (J) a summary of the most significant aspects of the
              report, including specific recommendations as to the
              sentence if the sentencing court has so requested.

       [While case law does not] require that the trial court order a pre-
       sentence investigation report under all circumstances, the cases
       do appear to restrict the court's discretion to dispense with a PSI
       report to circumstances where the necessary information is
       provided by another source. Our cases establish, as well, that
       the court must be apprised of comprehensive information to
       make the punishment fit not only the crime but also the person
       who committed it.

Commonwealth v. Carillo-Diaz, 64 A.3d 722, 725-26 (Pa.Super.2013).

       When the court revokes probation, PSI procedures continue to apply,

Carillo-Diaz, 64 A.3d at 725 n.3, with one important modification.

Specifically, when the trial court obtains a PSI for an initial sentencing

hearing, it is not mandatory to obtain a new, second PSI before revoking

probation and imposing a new sentence. Pasture, 107 A.3d at 27-29.

       In Pasture, the defendant entered an Alford4 plea to aggravated

assault and corruption of minors.              The trial court initially sentenced the

defendant to 11½-23 months’ imprisonment, followed by 8 years of

reporting probation, for aggravated indecent assault, plus five consecutive
____________________________________________


4
  North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (trial court does not
commit constitutional error in accepting guilty plea despite defendant's claim
of innocence).



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years’ reporting probation for corruption of minors.        The court had the

benefit of a PSI before imposing sentence. Id. at 23, 28-29. While serving

his probationary term, the defendant began using drugs and alcohol in

violation of a condition of probation. Without obtaining a new PSI, the trial

court revoked the defendant’s probation and sentenced him to 2½-5 years’

imprisonment, followed by three years of probation, for his aggravated

indecent assault conviction, plus a consecutive five years’ probation for his

corruption of minors conviction. The Superior Court vacated the defendant’s

judgment of sentence and remanded for resentencing based on, inter alia,

the trial court’s failure to obtain a new PSI prior to resentencing.

      Our Supreme Court reversed and reinstated the defendant’s sentence.

The Court observed that following revocation of probation,

      a sentencing court need not undertake a lengthy discourse for its
      reasons for imposing a sentence or specifically reference the
      statutes in question. Simply put, since the defendant has
      previously appeared before the sentencing court, the stated
      reasons for a revocation sentence need not be as elaborate as
      that which is required at initial sentencing. The rationale for this
      is obvious. When sentencing is a consequence of the revocation
      of probation, the trial judge is already fully informed as to the
      facts and circumstances of both the crime and the nature of the
      defendant, particularly where, as here, the trial judge had the
      benefit of a PSI during the initial sentencing proceedings. See
      [Commonwealth v.] Walls, 926 A.2d [957,] 967 n.7
      [(Pa.2007)] (‘Where [a PSI] exist[s], we shall continue to
      presume that the sentencing judge was aware of the relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors’).
      Contrary to the Superior Court's suggestion in the instant case,
      there is no absolute requirement that a trial judge, who has
      already given the defendant one sentencing break after having


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     the benefit of a full record, including a PSI, must order another
     PSI before fashioning the appropriate revocation sentence.

Pasture, 107 A.3d at 28. The Court further reasoned:

     [A]fter entering his plea, Pasture initially received a lenient
     sentence for aggravated indecent assault and corruption of
     minors. In fact, Pasture originally received a mitigated-range
     sentence, and the bulk of his sentence was probationary in
     nature. Despite this, he failed to adhere to the conditions
     imposed upon him, and the trial court, upon revocation of the
     probation, imposed a lengthier sentence, which was within the
     statutory bounds. We emphasize a trial court does not
     necessarily abuse its discretion in imposing a seemingly harsher
     post-revocation sentence where the defendant received a lenient
     sentence and then failed to adhere to the conditions imposed on
     him … In point of fact, where the revocation sentence was
     adequately considered and sufficiently explained on the record
     by the revocation judge, in light of the judge's experience with
     the defendant and awareness of the circumstances of the
     probation violation, under the appropriate deferential standard of
     review, the sentence, if within the statutory bounds, is peculiarly
     within the judge's discretion.

     In the instant case, the record confirms that the revocation court
     judge, who had previously presided over Pasture's plea, Megan's
     Law II, and original sentencing hearings, was in possession of a
     PSI from the initial sentencing proceedings and heard evidence
     at the revocation hearing regarding Pasture's conduct while he
     was on probation. Thus, the revocation court was provided with
     sufficient information to make a fully informed sentence
     following the revocation of Pasture's probation. Additionally, the
     revocation court explained the court's attempts to address
     Pasture's rehabilitative needs through probation in conjunction
     with drug treatment had failed, and despite the fact Pasture's
     probation officer had afforded him numerous opportunities to
     conform to the terms of his probation, Pasture continued to use
     prohibited substances similar to the ones he had used when he
     committed his prior sex offenses against children.

Id. at 28-29. In essence, although the trial court did not obtain a new PSI

for Pasture’s revocation hearing, his post-revocation sentence was proper


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because of (1) the trial court’s possession of a PSI prior to his initial

sentencing hearing and (2) his misconduct on probation.

      In this case, Vega contends that his sentence following revocation of

probation was improper because the court failed to review a PSI during his

revocation hearing.     At the time of Vega’s initial sentence, he faced the

possibility of a sentence of imprisonment of one year or more.     See n. 3,

supra. Thus, Rule 702 required the trial court either to obtain a PSI or to

place reasons on the record for dispensing with a PSI.      If the trial court

obtained a PSI at the time of initial sentencing, it was unnecessary to obtain

a new PSI for Vega’s revocation hearing, because (1) the same judge who

had presided over Vega’s initial sentencing hearing was in possession of a

PSI from initial sentencing and heard evidence at the revocation hearing

regarding Vega’s conduct while he was on probation, see Pasture, 107 A.3d

at 29; and (2) the PSI from initial sentencing would have addressed the

factors that Vega claims the court failed to consider at his revocation

hearing: his “age, family history and rehabilitative needs.”        Brief For

Appellant, at 5; see also Carillo-Diaz, 64 A.3d at 726 (PSI must include,

inter alia, offender’s complete social history, family history and resources

available for rehabilitation).

      To determine whether the trial court had a PSI at Vega’s initial

sentencing hearing, we need to review the transcript from this hearing,

which would either have stated that the court was in possession of a PSI or


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explained why the court dispensed with a PSI.      The omission of the initial

sentencing hearing transcript from the certified record prevents us from

learning whether the court obtained a PSI for Vega’s initial sentencing, which

in turn prevents us from addressing Vega’s argument that the court abused

its discretion at his revocation hearing. As a result, Vega has waived this

argument.     See Commonwealth v. Powell, 956 A.2d 406, 422–23

(Pa.2008) (defendant waived appellate review of claim that trial court erred

in admitting autopsy photograph during capital murder trial; photograph was

not contained in certified record, leaving appellate court unable to assess

defendant's claim that photograph was gruesome and was likely to inflame

jury’s passions); Gonzalez, 121 A.3d at 724-25 (appellant waived argument

that trial court erred in admitting victim’s audiotaped statement to police

into evidence, which he claimed inflamed the jury against him due to

victim’s sobbing voice, where certified record did not include audiotape).

      Judgment of sentence affirmed.

      Judge Mundy joins the memorandum.

      President Judge Emeritus Ford Elliott concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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