J-S62010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY ALLEN, J.:                          FILED OCTOBER 06, 2014



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

      a negotiated sentence of eleven and a half to twenty-three
      months of incarceration followed by two years of probation.

      violation of his parole for the criminal trespass conviction. Also,

      on the criminal trespass conviction and sentenced him to the
      balance of his back time followed by two years of probation.
J-S62010-14


           On    November    19,   2011,   the   trial   court   granted

     [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

     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,

     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

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



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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 and on July 10,

2012; 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, thi

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
                                                                  re

              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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J-S62010-14




        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

                                      tatement 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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J-S62010-14


            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.

Santi

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




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 blurred

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



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

                                                       d not want to discuss

                                  Id. at 12.   Thereafter, Ms. Santiago also




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J-S62010-14


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

police. Id. at 12-13.

                                                                           t




Moreover, the trial court re

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




      utterance exception to the hearsay rule because:      (1) Officer

      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


      and uncooperative demeanor.

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

      Upon review, we find no error



Although Appellant argues that Ms.

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



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



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

                                                                  sufficient to



                                                    Additionally, we note that



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

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

                                 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 cour

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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J-S62010-14


                                               -of-

at 23-26.

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



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

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

            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,



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
                          Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa.
Super. 2013). Here, Appellant argues that Ms. Santiag                 -of-court
                                                               Crawford, the
Commonwealth could not deny Appellant the right to confront and cross
                                                          -of-court statement
was therefore constitutional                                               -26.
                    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
                 State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (Neb.,
2014). Rather, at a probation revocation hearing, hearsay is admissible

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).



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J-S62010-14


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



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);
     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



allowing the confrontation.   As the Commonwealth Court has observed,



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

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J-S62010-14




Grello v. Com., Pennsylvania Bd. of Probation and Parole, 477 A.2d 45

(Pa. Cmwlth. 1984).

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



Commonwealth had demonstrated that Ms. Santiago

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

                                  -of-court statement] is determined to be

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

trial cour                                                      Id. at 20-21.

                                   -of court statement fell within the excited

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

                                       ed for depriving Appellant of his right

to confront Ms. Santiago.

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



confrontation, regardless of whether Ms. San



       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




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J-S62010-14


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

                                                                           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




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



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



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




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J-S62010-14


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



12-

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

t

speak with police, the Commonwealth demonstrated the requisite good

                                                                             -

of-court statement.

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

                                                                     -

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

evi

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

(citations and internal quotations omitted).



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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J-S62010-14


              Id

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              Commonwealth v. Allshouse, 33 A.3d



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



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

and internal quotations omitted).

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.

      Here, 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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J-S62010-14


      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

      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).




      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

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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J-S62010-14


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

evidence that probation had proven ineffective in rehabilitating [the



find no error in t

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



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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J-S62010-14


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

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



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

Brief at 15-

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

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

Crump

sentence of total confinement after the revocation of probation for a

technical   violation,    and   not    a   new      criminal   offense,   implicates   the



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


2
                               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.

permit a post-sentence motion to be filed nunc pro tunc within thirty days




                                           - 16 -
J-S62010-14


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

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

its underlying technical violations can present a question that we should



      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

      discretion, as he or she is in the best position to measure factors
                                                                     and


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,




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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J-S62010-14


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).



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

                                                          Commonwealth        v.

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

omitted); 42 Pa.

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 th

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

      Here, at the November 16, 2012 sentencing hearing, the trial court




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J-S62010-14


health 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

      unsuccessful attempt of treatment.


      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




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                                               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: 10/6/2014




                                    - 20 -
