J-A11033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      v.

DEREK SMALL,

                                 Appellant              No. 2922 EDA 2014


             Appeal from the Judgment of Sentence April 25, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0003213-2009

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                             FILED JULY 15, 2016

        Appellant, Derek Small, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following the

revocation of his probation.        He challenges the discretionary aspect of the

revocation sentence. Appellant argues his sentence of eight and one-half to

nineteen years’ imprisonment is manifestly excessive because he committed

only technical violations. We affirm.

        The trial court stated

             [t]he facts of the underlying crime, armed robbery,
           summarized from the police paperwork . . . :

              On February 25, 2009, at 12:30 a.m., at Rising Sun
              and Wyoming Avenues in Philadelphia, [Appellant]
              and his cohort produced a black firearm, placed it to
              the victim’s head and demanded his property.
              Codefendant patted down the victim and took his cell

*
    Former Justice specially assigned to the Superior Court.
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              phone. [Appellant] patted down the victim and took
              $50.00 from him. They forced the victim to lie on
              the ground while they fled on foot.     The victim
              identified both [Appellant and codefendant] within
              three (3) minutes of the crime.

              On April 7, 2010, after an open guilty plea for the
           underlying armed robbery, this court imposed a
           mitigated/non-mandatory sentence of 42 to 84 months[’]
           (3½ to 7 years[’]) incarceration followed by 48 months[’]
           reporting probation for 18 Pa.C.S. § 3701, a largely
           concurrent probation sentence of 148 months for criminal
           conspiracy, 18 Pa.C.S. § 903, and a 60 month probation
           sentence for possessing an instrument of crime (P.I.C.)
           consecutive to the robbery sentence and [con]current with
           the robbery probation, 18 Pa.C.[S.] § 907.

              [Appellant] was paroled on September 4, 2012.

              Over eight months later, on May 26, 2013, [Appellant]
           was arrested and charged with violating the Uniform
           Firearms Act (VUFA) under 18 Pa.C.S. § 6105,[1] 6106,[2]

1
    Section 6105 provides:

           A person who has been convicted of an offense
           enumerated in subsection (b), within or without this
           Commonwealth, regardless of the length of sentence or
           whose conduct meets the criteria in subsection (c) shall
           not possess, use, control, sell, transfer or manufacture or
           obtain a license to possess, use, control, sell, transfer or
           manufacture a firearm in this Commonwealth.

18 Pa.C.S. § 6105(a). Subsection (c) identifies robbery as an enumerated
offense. See id. § 6105(c).
2
    Section 6106 provides, in pertinent part, as follows.

           [A]ny person who carries a firearm in any vehicle or any
           person who carries a firearm concealed on or about his
           person, except in his place of abode or fixed place of
           business, without a valid and lawfully issued license under
           this chapter commits a felony of the third degree.



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           and § 6108.[3] This new crime, in the adjoining police
           district, had strikingly similar background facts to his
           underling robbery conviction described above. As counsel
           noted at the VOP sentencing, “[t]his could have easily
           been a prelude to another robbery.”[4] The facts compiled
           from the record are:




18 Pa.C.S. § 6106(a)(1).
3
    Section 6108 provides:

           No person shall carry a firearm, rifle or shotgun at any
           time upon the public streets or upon any public property in
           a city of the first class unless:

              (1) such person is licensed to carry a firearm . . . .

18 Pa.C.S. 6108(1).
4
    At the VOP sentencing hearing, the Commonwealth stated:

              [Appellant is] in violation of your probation and parole
           because he had a gun. I’ve read the facts of the robbery
           in which he pled guilty to you, and it almost reads as if it’s
           a prelude to that crime. It’s him walking down the street
           with an individual with a gun. It’s a case that he pled
           guilty to for [sic]. They robbed somebody on the street,
           and were apprehended immediately after that by two
           police officers who recovered the gun.

               In this case Officers Ridowski and Cobrowski get a flash,
           they see this individual along with someone else. He
           placed the gun and tried to hide it because he knows he’s
           not supposed to have it. They stop both individuals. The
           officers clear it. They realize that he is the one who put
           the gun under the wheel-well, and they recovered the gun.
           This could have easily been a prelude to another robbery.

N.T. Sentencing Hr’g, 4/25/14, at 7.




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                At 200 E. Cambria Street, in Philadelphia, at 3:05
             a.m., police received a radio call “person with a
             gun.” When police arrived on scene, they observed
             two males that fit the flash. Police stopped their
             vehicle, got out of the vehicle, one male stopped and
             [Appellant] reached down and placed a fully loaded
             black Kel-Tec 9MM Luger on the wheel-well of a
             green jeep and kept walking.

             On January 12, 2015, [Appellant] pleaded nolo
          contendere to this crime, VUFA, 18 Pa.C.S. § 6105, . . .
          and was sentenced to 3 years[’] probation.

             After a “Daisy Kates”[5] hearing on February 24, 2014,
          this court found that [Appellant] had violated his
          probation.     On April 25, 2014, after reviewing the
          “Modified Presentence Report” and listening to counsel’s
          argument and [Appellant’s] statement during allocation
          [sic], this court sentenced [Appellant] to 8½ to 19 years[’]
          incarceration for conspiracy to commit robbery, allowed
          the robbery sentence stand [sic] (even though the court
          could have found [Appellant] in anticipatory violation of
          that probation also), and made the PIC sentence a
          consecutive period of two years[’] probation to the
          conspiracy sentence. [6]

5
    We note that

          [w]hen the basis for revocation arises from evidence of
          intervening criminal conduct, a VOP hearing may be held
          prior to any trial arising from such criminal conduct. See
          Commonwealth v. Kates, [ ] 305 A.2d 701 ([Pa.] 1973)
          (no statutory or constitutional bar to holding VOP hearing
          prior to trial for criminal charges based on same activities
          which gave rise to alleged probation violation).

Commonwealth v. Ortega, 995 A.2d 879, 882 n.1 (Pa. Super. 2010).
6
  We note that in the January 30, 2015 opinion, the court misstated
Appellant’s sentence. See Trial Ct. Op., 1/30/15, at 2. The recitation of the
sentence in the supplemental Rule 1925(a) comports with the sentence
imposed at the sentencing hearing. See N.T. Sentencing Hr’g, 4/25/14, at
13.



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J-A11033-16



Trial Ct. Op., 8/12/15, at 2-3 (citations omitted).

        Appellant filed a motion for reconsideration of sentence. On April 30,

2014, the trial court denied the motion.     Appellant filed a Post Conviction

Relief Act7 (“PCRA”) petition seeking allowance of appeal nunc pro tunc.

The court reinstated Appellant’s appeal rights on October 8, 2014. Appellant

filed a notice of appeal on October 10, 2014.         The trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant was granted an extension of time to file his Rule 1925(b)

statement.    He filed the statement on December 5, 2014.      The trial court

filed a responsive opinion pursuant to Pa.R.A.P. 1925(a).

        On June 8, 2015, this Court issued a per curiam order remanding the

case to the trial court , upon consideration of Appellant’s “Petition to Vacate

Briefing Schedule and Remand Record for Completion, and for the Filing of a

Supplemental Statement of Errors or, in the Alternative, for an Extension of

Time in which to File Appellant’s Brief.” Order, 6/8/15. The trial court was

ordered to supplement the record with the notes of testimony from the VOP

hearing.     Appellant was directed to file a supplemental Rule 1925(b)

statement. The trial court was directed to file a supplemental Rule 1925(a)

opinion. Appellant filed a supplemental Rule 1925(b) statement and the trial

court filed a responsive opinion.


7
    42 Pa.C.S. §§ 9541-9546.



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J-A11033-16


      Appellant raises the following issue for our review: “Was not the

sentence of eight and one-half to nineteen years[’] incarceration manifestly

excessive and disproportionate for a first-time technical violation of

probation?”     Appellant’s Brief at 4.     Appellant argues that his illegal

possession of a firearm while on probation was only a technical violation and

thus the sentence was manifestly excessive and disproportionate. Id. at 15.

      This Court has stated that

         discretionary aspects of [an appellant’s] sentence are not
         appealable as of right. Rather, an appellant challenging
         the sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

                 We 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).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely filed this appeal, preserved the issue of an

excessive sentence in his motion for reconsideration of sentence, and

included a statement in his brief which conforms with Pa.R.A.P. 2119(f). 8


8
  This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular



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J-A11033-16


See Appellant’s Brief at 10.      Accordingly, we ascertain whether Appellant

has raised a substantial question. See Leatherby, 116 A.3d at 83.

      “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Dodge, 77 A.3d at 1268 (quotation marks and citation omitted).

      “An argument that the trial court imposed an excessive sentence to

technical      probation    violations    raises   a    substantial   question.”

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation

omitted).     “Additionally, a substantial question that the sentence was not

appropriate under the Sentencing Code may occur even where a sentence is

within the statutory limits.”    Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010) (citation omitted). We therefore find Appellant has

raised a substantial question. Dodge, 77 A.3d at 1272 n.8; Schutzues, 54

A.3d at 98; Crump, 995 A.2d at 1282.

      We consider the relevant standard of review:

            [A] trial court has broad discretion in sentencing a
            defendant, and concomitantly, the appellate courts utilize a


provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement
failed to include a statement of where his sentence fell within the sentencing
guidelines. See Appellant’s Brief at 8-10. However, as the Commonwealth
did not argue this defect in his Rule 2119(f) statement, we decline to find
waiver on these technical grounds. See Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013).




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J-A11033-16


        deferential standard of appellate review in determining
        whether the trial court abused its discretion . . . .

        . . . At initial sentencing, all of the rules and procedures
        [for a court’s] discretionary sentencing authority [apply].
        However, it is a different matter when a defendant
        reappears . . . following a violation . . . of a probationary
        sentence. For example, . . . contrary to when an initial
        sentence is imposed, the Sentencing Guidelines do not
        apply, and the revocation court is not cabined by Section
        9721(b)’s requirement 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.” 42 Pa.C.S. §
        9721.

        . . . [U]pon revoking probation, the trial court is limited
        only by the maximum sentence that it could have
        imposed originally at the time of the [initial] sentence,[9]
        although . . . the court shall not impose a sentence of total
        confinement 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).

Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some

citations omitted and emphases added). This Court has stated that “[a] trial


9
  At the time of the initial sentence, Appellant’s criminal conspiracy charge
was graded as a felony of the first degree which carried a maximum
sentence of twenty years’ imprisonment. See 18 Pa.C.S. § 1103(1).



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J-A11033-16


court does not necessarily abuse its discretion in imposing a seemingly harsh

post-revocation sentence where the defendant originally received a lenient

sentence and then failed to adhere the conditions imposed on him.”

Schutzues, 54 A.3d at 99.

     In Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000), this

Court opined:

           Although the offenses that triggered the parole and
        probation revocation-Sierra’s failure to keep parole
        appointments-were not assaultive or independently
        criminal, technical violations are sufficient to trigger the
        revocation of probation. See, e.g., Commonwealth v.
        Edwards, 450 A.2d 15 (Pa. Super. 1982) (probation
        revoked for failure to report to probation officer and attend
        community mental health facility for outpatient treatment).

Id. at 912.

     In Ortega, this Court opined:

        [T]he 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 must use in determining whether
        probation has been violated:

              A probation violation is established 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.

        Commonwealth v. Infante, [ ] 888 A.2d 783, 791 ([Pa.]
        2005). Moreover, the Commonwealth need only make this
        showing by a preponderance of the evidence.

Ortega, 995 A.2d at 886 (footnote and some citations omitted and


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J-A11033-16


emphasis added).

     In the instant case, the trial court found Appellant in violation of his

probation. At sentencing, the court stated:

        . . . You’re not required to say anything, but if there’s
        something you want to tell me either about yourself, your
        case, your background, anything that would supplement
        the modified presentence report, I will certainly be
        listening.

                                *     *      *

        [U]nfortunately, you were on probation for pretty serious
        crimes. Robbery, conspiracy to commit robbery and PIC.
        And then within 9 months or 8 months and some extra
        days, you were arrested for having─I believe it was a Kel-
        [T]ec 9MM, which you attempted to hide from the police . .
        ..

        . . . I see you’ve gotten a GED in your previous state
        prison sentence. I am disappointed that the state prison
        sentence that I imposed originally didn’t work, obviously. .
        ..

           You’ve made at least one gun a part of your life. . . .
        So what I have to do is try to balance my duty to help you
        get rehabilitated with my equally important duty to protect
        the public. . . .

           So I’m going to sentence you on the conspiracy to
        commit robbery to the minimum sentence─it’s also not my
        duty to warehouse you for as long as I can. Again, it’s my
        duty to strike that proper balance between trying to
        rehabilitate you and protecting the public, and protecting
        the public from the illegal possession and use of guns.

N.T. Sentencing Hr’g at 9-12.

     The court opined:

          Before the VOP sentence, this court was equipped with
        and reviewed the Modified Presentence Report (PSI).


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J-A11033-16


         Based on the facts presented at the Daisy Kates hearing,
         this court found a violation for new criminal behavior by a
         preponderance of the evidence, determined that the
         conduct of [Appellant] indicates that it is likely that he
         will commit another crime if he is not imprisoned,
         and the sentence was essential to vindicate the authority
         of the court. This court sentenced [Appellant] for his
         violation to 8½ to 19 years, without increasing the robbery
         or PIC sentences. This court could have legally sentenced
         [Appellant] to up to 20 years[’] imprisonment for a felony
         one offense. See 18 Pa.C.S. § 905.

Trial Ct. Op. at 5-6 (footnote omitted and emphasis added).

      First, we consider whether the trial court abused its discretion by

imprisoning Appellant following revocation of probation. See Pasture, 107

A.3d at 27-28. We find it did not. The court found that probation did not

satisfy his rehabilitative needs.   See Ortega, 995 A.2d at 886. Technical

violations can trigger the revocation of probation. See Sierra, 752 A.2d at

912. The court found that Appellant’s conduct indicated that it was likely he

would commit another crime if not imprisoned. See Pasture, 107 A.3d 21,

27-28.    Accordingly, we find that the trial court’s sentence was not

manifestly excessive. We discern no abuse of discretion. See Schutzues,

54 A.3d at 99.

      Judgment of sentence affirmed.




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J-A11033-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2016




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