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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
RAFIYQ DAVIS,                               :         No. 2129 EDA 2015
                                            :
                           Appellant        :


             Appeal from the Judgment of Sentence, June 23, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0009574-2008


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 20, 2016

        Rafiyq Davis appeals from the judgment of sentence entered by the

Court of Common Pleas of Philadelphia County on June 23, 2015, after the

sentencing court revoked appellant’s probation and sentenced him to 6 to

24 months of incarceration followed by 4 years of probation. We affirm.

        The trial court set forth the following:

                     Appellant was on probation after a guilty
              verdict following a bench trial before the Honorable
              Ellen Ceisler. Appellant was found guilty of carrying
              a firearm on the streets of Philadelphia,[1] carrying a
              firearm without a license,[2] and possession of a
              firearm by a prohibited person.[3] On March 20,
              2009, Judge Ceisler sentenced Appellant to an

1
    18 Pa.C.S.A. § 6108.
2
    18 Pa.C.S.A. § 6106(a)(1).
3
    18 Pa.C.S.A. § 6105(a)(1).
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           aggregate three to six years of incarceration,
           followed    by     four     years     of   reporting
           probation.[Footnote 1]    Subsequently, Appellant’s
           supervision was transferred to this court.

                 [Footnote 1] [Judgment] of sentence was
                 affirmed at 920 EDA 2009. Allowance of
                 appeal was denied at 254 EAL 2010.

                  This instant appeal arises from this court’s
           judgment of sentence following a violation hearing
           on June 23, 2015. At the violation hearing, the court
           was presented with the Gagnon II Summary filed by
           Appellant’s probation officer.       The court was
           informed that Appellant had given positive urinalysis
           for marijuana on all four of his tests since his last
           violation hearing on April 20, 2015, and that one test
           was additionally positive for PCP.          Notes of
           Testimony, 6/23/2015, p. 7-8.         The court was
           informed that Appellant had tested positive for
           marijuana seven times prior to his previous violation
           hearing. Id., at 15-16. The court was informed that
           Appellant was neither seeking employment, nor
           attempting to complete his court-ordered twenty
           hours of community service. Id. The court was
           informed that Appellant smirked and laughed at his
           probation officer when she confronted him about his
           inconsistent    attendance     at  Gaudenzia     drug
           treatment, telling her that he had better things to
           do. Id.

                 The court revoked probation and sentenced
           appellant to a period of six to twenty-four months[’]
           incarceration, followed by four years of probation.
           This appeal followed.

Sentencing court opinion, 10/6/15 at 1-2.

     Appellant raises the following issues for our review:

           1.    Did not the lower court err and violate the
                 requirements of 42 Pa.C.S.A. § 9771(c) by
                 sentencing appellant to total confinement
                 absent his having been convicted of a new


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                   crime, absent any indication that he was likely
                   to commit a new crime, and absent a need to
                   vindicate the authority of the court?

            2.     Did not the lower court err and abuse its
                   discretion when it failed to order a
                   pre-sentence investigation report, or state its
                   reasons for dispensing with one on the record,
                   in violation of the Rules of Criminal Procedure?

Appellant’s brief at 3.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            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 more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912


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            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (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,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, the record reflects that appellant filed a timely notice of appeal,

properly preserved his sentencing issues in his post-sentence motion, and

included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we must now

determine whether appellant raises a substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.     Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).      “A substantial question exists only

when an 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.” Id. (citation omitted).




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            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

      Here, appellant first contends that the sentencing court violated

42 Pa.C.S.A. § 9771(c) by imposing a sentence of total confinement

following a technical probation violation absent his having been convicted of

a new crime, absent any indication that he was likely to commit a new

crime, and absent a need to vindicate the authority of the court.            The

imposition of a sentence of total confinement following the revocation of

probation for a technical violation, and not a new criminal offense, implicates

the   “fundamental    norms      which    underlie   the   sentencing   process.”

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

(citation omitted).

            When imposing a sentence of total confinement after
            a probation revocation, the sentencing court is to
            consider the factors set forth in 42 Pa.C.S.[A.]
            § 9771. Commonwealth v. Ferguson, [893 A.2d
            735, 738 (Pa.Super. 2006)]. Under 42 Pa.C.S.[A.]
            § 9771(c), a court may sentence a defendant to total
            confinement subsequent to revocation of probation if
            any of the following conditions exist:

            1.    the defendant has been convicted of
                  another crime; or


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              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 this court.

              See also Commonwealth v. Coolbaugh, [] 770
              A.2d 788 (Pa.Super. 2001).

              A sentencing court need not undertake a lengthy
              discourse for its reasons for imposing a sentence or
              specifically reference the statute in question, but the
              record as a whole must reflect the sentencing court’s
              consideration of the facts of the crime and character
              of the offender. Commonwealth v. Malovich, []
              903 A.2d 1247 (Pa.Super. 2006).

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

        Here, the record reflects that appellant appeared before the sentencing

court at a probation revocation hearing on April 20, 2015, which was two

months prior to the June 23, 2015 probation revocation hearing that is the

subject of this appeal.      (Notes of testimony, 6/23/15 at 4-9.)       At the

April 20, 2015 proceeding, the sentencing court found appellant in technical

violation of his probation for, among other things, testing positive for

marijuana on 7 occasions and failing to provide a required urinalysis. (Id. at

6-7.)    At that proceeding, the sentencing court gave appellant another

opportunity and continued his probation. (Id. at 7, 16.)

        The record further reflects that following the April 20, 2015 revocation

hearing, appellant tested positive 4 out of 4 times for marijuana, and on

1 occasion, he tested positive for phencyclidine, known as PCP. (Id. at 7.)


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Appellant also failed to complete his community service and attend drug

treatment. (Id. at 7-8.) These violations necessitated the June 23, 2015

probation revocation hearing. (Id. at 4-8.)

          At the June 23, 2015 probation revocation proceeding, the sentencing

court conducted a colloquy with appellant concerning appellant’s continued

and constant marijuana use and his failure to attend drug treatment. (Id. at

12-33.) The record also reflects that at the time of the hearing, appellant

was unemployed, not seeking employment, and that he had failed to

perform court-ordered community service. (Id. at 24.)

          Therefore, the record supports the conclusion that a sentence of total

confinement was necessary to vindicate the court’s authority and because

appellant’s continued and constant drug use and his failure to attend drug

treatment make it likely that he will commit another crime.                      See

Commonwealth v. Cappellini, 690 A.2d 1220, 1225 (Pa.Super. 1997)

(total confinement following probation revocation appropriate because

appellant’s “continued drug use, combined with his resistance to treatment

and       supervision,   is   enough   to   make   a   determination   that,   unless

incarcerated, appellant would in all likelihood commit another crime”).

Therefore, appellant’s first discretionary sentencing challenge warrants no

relief.

          In his second and final challenge, appellant claims that the sentencing

court abused its discretion because it failed to order a pre-sentence



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investigation report (“PSI”) and failed to state its reasons for dispensing with

one on the record.     We have held that this claim presents a substantial

question.   See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724-725

(Pa.Super. 2013).

      Pennsylvania Rule of Criminal Procedure 702 vests a sentencing judge

with the discretion to order a PSI to aid the court in imposing an

individualized sentence.    See Pa.R.Crim.P. 702.     While case law does not

require that the sentencing court order a PSI under all circumstances, it

does restrict the court’s discretion to dispense with a PSI to circumstances

where   the     necessary   information   is   provided   by   another   source.

Carrillo-Diaz, 64 A.3d at 726 (citations omitted).             Case law further

establishes 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.     Id. (citations omitted).     Although Pa.R.Crim.P. 702(A)(2)

requires that the sentencing court document the reasons for not ordering a

PSI, this court has made it clear that sentencing courts have some latitude

in how to fulfill this requirement. Carrillo-Diaz, 64 A.3d at 726 (citations

omitted). Therefore, where the sentencing court elicits sufficient information

during the colloquy to substitute for a PSI, thereby allowing a fully informed

sentencing decision, technical non-compliance with the requirements of

Pa.R.Crim.P. 702(A)(2) is rendered harmless. Carrillo-Diaz, 64 A.3d at 726

(citations omitted).



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      Here, in addition to the record facts we set forth when disposing of

appellant’s first challenge, our review of the record also supports the

following as set forth in the sentencing court’s Rule 1925(a) opinion:

                    During the revocation hearing, the court
             inquired as to Appellant’s home life, familial-social
             support, and employment situation.        [(Notes of
             testimony, 6/23/15 at 12-13.)]       The court also
             inquired as to the nature of Appellant’s drug abuse.
             [(Id. at 14-16.)] The court was able to evaluate
             Appellant’s candor and contrition, or lack thereof.
             [(Id. at 17-19.)] The court evaluated Appellant in
             terms of personal responsibility.     [(Id. at 29.)]
             Based on its inquiries, the court was comfortable
             that it had sufficient information to render an
             individualized sentence, based on Appellan[t’s]
             circumstances.

Sentencing court opinion, 10/6/15 at 8.

      Following a careful review of the record before us, we find that the

sentencing court conducted a proper pre-sentence inquiry in the absence of

a PSI that allowed for a fully informed sentencing decision. Consequently,

appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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