J-A17021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT WILLIAMS                            :
                                               :
                      Appellant                :   No. 730 EDA 2016

           Appeal from the Judgment of Sentence February 17, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011614-2007


BEFORE:      GANTMAN, P.J., RANSOM, J. and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                           FILED SEPTEMBER 08, 2017

        Appellant, Robert Williams, appeals from the judgment of sentence of

six to twelve months of county incarceration plus six years of reporting

probation, entered on February 17, 2016, following the revocation of his

probation for technical violations. We affirm.

        On August 28, 2008, Appellant was found guilty of possession with

intent to deliver a controlled substance, intentional possession of a

controlled substance, carrying a firearm without a license, carrying a firearm

in public in Philadelphia, possession of an instrument of crime, possession of

a loaded weapon, and simple assault.1 The trial court sentenced Appellant

to an aggregate of eleven and one-half to twenty-three months of county
____________________________________________


1
 See 35 P.S. §§ 780-113(a)(30), 780-113 (a)(16); 18 Pa.C.S. §§ 6106(1),
6108, 907(a), 6106.1(a), and 2701(a), respectively.


*
    Retired Senior Judge assigned to the Superior Court.
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incarceration, plus seven years reporting probation. In June 2009, Appellant

was released from prison and paroled to house arrest with electronic

monitoring and additional restrictions.2 On December 15, 2009, the house

arrest order was vacated by the court and probation continued.

       Between 2010 and 2014, Appellant appeared before the court for a

number of technical violations. During this time, Appellant’s probation was

revoked in July 2014; he was sentenced to an aggregate term of three to six

months of county incarceration followed by five years of reporting probation.

In December 2014, Appellant was granted early parole and released from

county jail.

       In December 2015, Appellant again appeared before the trial court for

technical violations of probation.             Specifically, the trial court expressed

concern that Appellant was not following probation reporting requirements or

travel restriction requirements and that he submitted a sample of cold water

for a urinalysis. See Trial Court Opinion (TCO), 9/19/16, at 16. In February

2016, the court revoked Appellant’s probation and sentenced him to six to

twelve months of county incarceration followed by six months of reporting

probation.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The court issued a responsive opinion.
____________________________________________


2
 Appellant was given permission to work but ordered to earn his GED and
undergo drug treatment.



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       Appellant presents the following questions for our review:

       1.     Whether the trial court committed legal error and abused
       its discretion in the procedures utilized in sentencing Appellant,
       including in imposing a six-year term of probation, when Mr.
       Williams’ prior record, time already served, and the nature of the
       underlying offense are considered?

       2.    Whether the trial court committed legal error and abused
       its discretion when it determined that Appellant committed a
       technical violation of his probation despite testimony that the lab
       technician did not follow the standard procedures of the adult
       parole department by refusing to test Appellant’s urine specimen,
       throwing that specimen in the trash can, and refusing to permit
       Appellant to give a second sample despite Appellant’s request to
       do so?

Appellant’s Brief at 6.3

       This Court’s standard of review regarding an appeal from a sentence

imposed following the revocation of probation is as follows:

          [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. Perreault, 930 A.2d 553 (Pa. Super. 2007)(internal

citation omitted).

       Appellant first claims that the court committed legal error and abused

its discretion in imposing a sentence that was manifestly excessive.         See

Appellant’s Brief at 21-22.



____________________________________________


3
  Appellant’s brief does not address his issues in the order they are listed in
the Statement of Questions. We will address them in the order listed.



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       Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).           Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1)

whether the appeal is timely; 2) whether Appellant preserved his issue; 3)

whether Appellant’s brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether

that   statement   raises   a   substantial   question   that   the   sentence   is

inappropriate under the sentencing code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

       Although Appellant timely filed a notice of appeal, he did not preserve

his claim at sentencing or in a timely post-sentence motion.                 See

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (noting

that issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the court

during sentencing proceedings; absent these efforts the issue is waived).

Accordingly, Appellant has waived his challenge to the discretionary aspects

of his sentence. Id.

       Next, Appellant purports to challenge the sufficiency of the evidence

presented at the revocation hearing. First, he claims that the evidence was

insufficient to support his revocation because Appellant’s submission of cold

water as a urinalysis sample was not “willful conduct” amounting to a

probation violation. See Appellant’s Brief at 28-29. Second, he claims that

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there was no evidence for ten of the eleven travel violations.            See

Appellant’s Brief at 25.

      When reviewing a sufficiency challenge to revocation, we examine

whether, when viewed in the light most favorable to the Commonwealth, the

evidence   and    its   inferences   supported   revoking    probation.   See

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014).

Revocation of probation will be upheld where the Commonwealth proved by

a preponderance of evidence that a defendant violated his probation. See

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011).

Willfulness of conduct is not a requirement for probation revocation; a court

may revoke upon proof of violation of specified conditions of probation. See

42 Pa. C.S. 9771(b).

      Appellant was required to submit a urine sample for a mandatory drug

screen as a term of his probation.       TCO at 17.      Appellant admitted to

submitting a false sample for the urinalysis in violation of his terms of

probation. See N.T., 12/10/15, at 49. This admission alone is sufficient to

find a violation of probation. Accordingly, Appellant’s claim fails.

      Finally, Appellant’s 1925(b) statement does not raise the issue of the

sufficiency of the evidence regarding the other ten violations. Thus, he has

waived this claim for purposes of appeal. See Commonwealth v. Castillo,

888 A.2d 775, 780 (Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues

not included in the Statement and/or not raised in accordance with the

provision of this paragraph (b)(4) are waived.”). The evidence was sufficient

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to support the revocation of probation, and Appellant is not entitled to relief.

Colon, 102 A.3d at 1041.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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