J-S37022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LEE TAYLOR,

                        Appellant                   No. 1957 EDA 2014


           Appeal from the Judgment of Sentence June 3, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CP-0006459-2009


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 24, 2015

     Appellant, Lee Taylor, appeals from the judgment of sentence entered

following the revocation of his probation. We affirm.

     In a prior decision addressing Appellant’s direct appeal, this Court

summarized the underlying facts of this case as follows:

            [Appellant, at the age of forty-three,] lived next door to
     thirteen-year-old [Victim] on the 6100 block of Edmund Street in
     Philadelphia. [Victim’s] mother was friendly with [Appellant],
     and he would occasionally babysit [Victim’s] two younger
     brothers. In June of 2008, [Victim] accidently locked herself out
     of her house and went to [Appellant’s] home to await her
     mother’s return from work. [Victim] testified that while she was
     there, [Appellant] began to play with [Victim’s] hair and
     attempted to kiss her. [Victim] left [Appellant’s] house, but she
     testified that she did not tell her mother about the incident
     because [Victim] was scared.

           Later that summer, [Appellant] entered [Victim’s] home
     unannounced. [Victim] testified that, while her mother and
     brothers were out of sight, [Appellant] began to kiss [Victim] on
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      the lips.    [Victim] did not tell her mother about this second
      incident.

            On the morning of December 24, 2008, while [Victim] was
      sleeping in her bedroom in the basement of her home,
      [Appellant] came downstairs and approached [Victim].
      According to [Victim’s] testimony, [Appellant] sat on her bed and
      proceeded to kiss [Victim] on her lips and rub her buttocks.
      [Appellant] then fondled [Victim’s] breasts under her shirt and
      attempted to put his tongue in her mouth.             During this
      encounter, [Appellant] told [Victim] that he missed her and
      loved her. After telling [Appellant] to leave, [Victim] left and
      walked to her uncle’s home, where she told her uncle’s girlfriend
      about [Appellant’s] actions. [Appellant] was arrested later that
      morning.

Commonwealth v. Taylor, 2322 EDA 2010, 82 A.3d 1057 (Pa. Super. filed

July 8, 2013) (unpublished memorandum at 1-2) (citations omitted).

      On April 12, 2010, at the conclusion of a nonjury trial, Appellant was

convicted of indecent assault, unlawful contact with a minor, simple assault,

and corruption of minors.      On July 12, 2010, the trial court sentenced

Appellant to serve a term of incarceration of two and one-half to five years

for the conviction of unlawful contact with a minor, plus a term of probation

of five years.    For the convictions of indecent assault, simple assault, and

corruption of minors, the trial court also sentenced Appellant to serve

concurrent terms of probation of five years, which were to run consecutive

to the term of incarceration. Appellant then filed a direct appeal, and this

Court affirmed his judgment of sentence on July 8, 2013. Taylor, 2322 EDA

2010, 82 A.3d 1057 (unpublished memorandum).            The record does not

reflect that Appellant sought any further appellate review.


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       After serving the five-year maximum term of incarceration, Appellant

began serving the probationary portion of his sentence on January 5, 2014.

N.T., 6/3/14, at 6.       On February 19, 2014, Appellant tested positive for

cocaine use. Id. at 13. Then, on April 12, 2014, Appellant participated in

an altercation at the home of Michele Hutchinson. Id. at 6-11.

       The trial court summarized the events of April 12, 2014, as follows:

               On the evening of April 12, 2014, [Appellant] assaulted
       Hutchinson at her home while she was holding a benefit for her
       father, who had recently passed away.          Before [Appellant]
       arrived, two attendees got into an argument. Wayne Simmons
       (“Simmons”) and his girlfriend were arguing because she was
       talking to another man. Simmons pulled out a baseball bat, but
       Hutchinson stopped him and took the bat. Simmons then left.
       Approximately five minutes later, Simmons returned with
       [Appellant] and a third man named Dana Baynes (“Baynes”).
       They were in search of the man who had spoken with Simmons’
       girlfriend. Hutchinson tried to prevent an altercation and asked
       the men to leave. [Appellant] grabbed Hutchinson’s wrist and
       threw her to the ground.[1] Hutchinson tried to get away but
       [Appellant] tackled her. Others intervened and [Appellant] and
       his associates fled when they heard police sirens.

             The police instructed Hutchinson to file a private criminal
       complaint. When Hutchinson filed the complaint, she learned
       that [Appellant] was on probation, which prompted her to file a
       second complaint with the probation department.

Trial Court Opinion, 12/18/14, at 3 (citations omitted).



____________________________________________


1
  When Appellant threw Ms. Hutchinson to the ground, she struck her face
on the street and a tire, causing road burn and abrasions, and
Ms. Hutchinson will have permanent marks on her face as a result. N.T.,
6/3/14, at 8-9, 11.



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       As a result of the incident, the trial court held a Daisey Kates hearing2

on June 3, 2014. At the conclusion of the hearing, the trial court revoked

Appellant’s probation and imposed a new sentence.         Specifically, the trial

court sentenced Appellant to serve a term of incarceration of one and one-

half to three years for the conviction of indecent assault, and a consecutive

term of probation of four years for the conviction of corruption of minors.

The trial court imposed no further penalty on Appellant’s conviction of simple

assault.

       The record further reflects that on June 6, 2014, Appellant filed a post-

sentence petition to vacate and reconsider sentence, which the trial court

never acted upon. Appellant filed a timely notice of appeal on July 3, 2014.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       1. Did not the lower court err by failing to correct the illegal
       sentence originally imposed on appellant under the charge of
       unlawful contact with a minor?

       2. Did not the lower court err by imposing a manifestly excessive
       and grossly disproportionate sentence of 1 ½ to 3 years of
       incarceration plus 4 years of reporting probation where appellant
       had only committed technical violations of his probation and
       where the lower court failed to fashion an individualized
       sentence that accounted for appellant’s rehabilitative needs?
____________________________________________


2
   Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973). In Kates, our
Supreme Court held that when a probationer has been charged with a new
offense, his probation may be revoked prior to a trial on the new charge
provided that the court supervising the probationer holds a hearing on the
matter. Id. at 708-709.



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Appellant’s Brief at 3.

       In his first issue, Appellant argues that the original judgment of

sentence imposed upon Appellant by the trial court following his conviction

in 2010 was illegal. Specifically, Appellant states the following:

       [T]he original sentence on unlawful contact with a minor as a
       third degree felony was 2 ½ to 5 years of incarceration to be
       followed by 5 years of probation. Thus, the sentence required a
       total of 10 years of supervision.     However, the maximum
       sentence for a third degree felony is 7 years. 18 Pa.C.S.A.
       § 1103(3). Accordingly, the sentence was illegal.

             The revocation court failed to correct that sentence. The
       revocation court was originally going to impose its new sentence
       on the unlawful contact with a minor charge (N.T. 6/3/14, 23).
       However, defense counsel pointed out that [Appellant] had
       almost maxed out that charge and the lower court instead
       constructed the sentence with the misdemeanors. The issue of
       the unlawful contact with a minor charge was not readdressed.
       See (N.T. 6/3/14) generally. Accordingly, the illegal portion of
       [Appellant’s] sentence is still in effect and [Appellant’s] sentence
       must be vacated.

Appellant’s Brief at 11-12.

       As a prefatory matter, we observe that “[i]ssues relating to the legality

of a sentence are questions of law[; as a result, o]ur standard of review over

such   questions   is     de   novo,   and our   scope   of   review   is   plenary.”

Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013)

(citations omitted).      However, Appellant does not allege that the instant

judgment of sentence is illegal.         Rather, he contends that his original

judgment of sentence, which was revoked following his violation of

probation, was illegal.


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      This Court has concluded that where an appellant receives a new

sentence upon resentencing and fails to allege that his current sentence is

illegal, an attack on his original judgment of sentence is rendered moot.

See Commonwealth v. McGriff, 638 A.2d 1032, 1035 (Pa. Super. 1994)

(explaining that where the appellant was resentenced due to probation

violations, and does not challenge the legality of the new sentence, claim

that original sentence was illegal is moot).     Instantly, Appellant does not

allege that the instant judgment of sentence, which was imposed upon

revocation of his probation, is illegal. Rather, he attacks the legality of the

original judgment of sentence. Therefore, any illegality in Appellant’s 2010

sentence for unlawful contact with a minor was corrected on June 3, 2014,

when his probation was revoked and he was resentenced.          Hence, to the

extent that Appellant argues that his original sentence was illegal, we will

not address this claim as it is moot. McGriff.

      Secondly, Appellant argues that the trial court abused its discretion in

imposing the sentence following the revocation of his probation. Appellant’s

Brief at 12-16. Specifically, Appellant contends that the sentence imposed

was manifestly excessive and disproportionate in light of the technical

violations of his probation, and thus the court failed to fashion an

individualized sentence based upon his rehabilitative needs.

      As this Court recently clarified in Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc), our scope of review following the


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revocation of probation is not limited solely 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.   Rather, it also includes challenges to the discretionary

aspects of the sentence imposed.      Specifically, we unequivocally held that

“this Court’s scope of review in an appeal from a revocation sentencing

includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034.

Further, as we have long held, 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. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

      We are also mindful that “[t]he right to appeal a discretionary aspect

of sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999).         Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.    Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      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,

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            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.
            [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).   The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the 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. Sierra, 752 A.2d at 912-913.

      Herein, the first three requirements of the four-part test are met,

those being that Appellant brought an appropriate appeal, raised the

challenge in a post-sentence motion, and included in his appellate brief the

necessary separate concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f).       Therefore, we next

determine whether Appellant raises a substantial question requiring us to

review the discretionary aspects of the sentence imposed by the trial court.

      Appellant argues in his Pa.R.A.P. 2119(f) statement that the trial court

abused its discretion by imposing a sentence following the revocation of

probation that was unduly excessive and failed to consider his rehabilitative

needs.    Appellant’s Brief at 8-9.   Essentially, Appellant asserts that the

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sentencing court failed to properly consider factors set forth under 42

Pa.C.S. § 9721(b).3 Thus, we conclude that, in this instance, Appellant has

raised a substantial question.         See Commonwealth v. Fullin, 892 A.2d

843, 847 (Pa. Super. 2006) (concluding that the appellant raised a

substantial question where it was alleged that the trial court failed to

consider the factors set forth in 42 Pa.C.S. § 9721(b)).      Nevertheless, we

conclude that Appellant is entitled to no relief on his claim, as the record

reveals that the court properly considered Appellant’s rehabilitative needs in

fashioning the sentence.

       Again, we are mindful of our standard of review, which is as follows:

             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.

Sierra, 752 A.2d at 913 (citations and quotation marks omitted).

       With regard to our review of a sentence imposed following the

revocation of probation, we observe that, “[p]ursuant to 42 Pa.C.S.

§ 9771(b), when a defendant is found in violation of his probation, upon

revocation the sentencing alternatives available to the court shall be the
____________________________________________


3
   The factors to be considered under 42 Pa.C.S. § 9721(b) include the
protection of the public and rehabilitative needs of the defendant.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).



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same as were available at the time of initial sentencing, due consideration

being    given   to   the   time    spent   serving   the   order   of   probation.”

Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010). 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. § 9771(c)

and 42 Pa.C.S. § 9721(b).          Commonwealth v. Ferguson, 893 A.2d 735

(Pa. Super. 2006).     Pursuant to Section 9771(c), a court may sentence a

defendant to total confinement after a revocation of probation if one of the

following conditions exists:

        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
        this court.

42 Pa.C.S. § 9771(c); 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, 1253 (Pa. Super. 2006).

See also Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000)

(reiterating that although a court is required to explain its reasons for

imposing sentence, it need not specifically cite or include the language of the



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sentencing code; it must only demonstrate that the court had considered the

factors specified in the code.).

      Appellant argues that the sentence of incarceration and probation he

was ordered to serve, which was within the statutory maximum, is

manifestly excessive and unreasonable. In effect, Appellant contends that

his sentence was disproportionate to the probation violations he committed

and that the court did not consider his rehabilitative needs.

      Our review of the record reflects that, at the time of sentencing, the

court heard a detailed stipulated account of the altercation in which

Appellant was involved and also viewed photographs of the victim’s injuries.

N.T., 6/3/14, at 6-11. In addition, our review of the record reflects that the

court accepted testimony from Appellant’s probation officer, as well as a

recommendation from the probation officer. Id. at 12-15, 21-22. The court

also heard Appellant’s apology to the victim of the altercation and his

request for forgiveness.     Id. at 15-16.     Moreover, Appellant’s counsel

presented facts surrounding Appellant’s mental health issues and need for

mental health treatment. Id. at 16-17. The record further reflects that the

court heard from the Assistant District Attorney regarding the details of

Appellant’s previous criminal history, the physical altercation that led to




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probation revocation, Appellant’s mental health concerns, and the need for

incarceration.4 Id. at 17-21.

       In explaining the reasons surrounding the sentence imposed, the trial

court offered the following:

             Here, [Appellant] presents a substantial question on
       appeal when he asserts that the Court imposed an excessive and
       unreasonable sentence; that that the Court failed to adequately
       examine [Appellant’s] background, character and rehabilitative
       needs; and that the Court failed to state adequate reasons on
       the record for imposing [Appellant’s] sentence. See Statement.

             The Court considered [Appellant’s] background, character
       and rehabilitative needs, and although [Appellant] states that
       the Court “imposed a sentence that was more than necessary to
       vindicate the authority of the Court” — presumably under 42
       Pa.C.S.A. § 9771(c)(3) — the Court imposed a new sentence,
       under 42 Pa.C.S.A. § 9771(c)(2), after weighing the evidence
       and concluding that [Appellant] will likely commit another crime
       as indicated by his conduct while on probation. See N.T., June
       3, 2014 at 5; also see Statement at ¶¶ 3(b).

            On April 12, 2010, [Appellant] was originally sentenced to
       two and one-half to five years [of] incarceration. On April 15,
       2014, after [Appellant’s] Daisey Kates hearing, the Court
       imposed a new legal sentence of one and one-half [to three]
       years of incarceration on the Indecent Assault, and four years
       consecutive reporting probation on the Corruption of Minors in
       compliance with 42 Pa.C.S.A. § 9771.

             At the hearing, the Court considered the [Appellant’s]
       record, sentence, and conduct while on probation. See N.T.,
       June 3, 2014 at 5, 17-19. The Court knew that [Appellant] was
       convicted of murder in 1983 and served the maximum term of
       twenty years before he was released in 2004. Id. at 17. The
____________________________________________


4
   Specifically, after arguing that Appellant is “not safe in the community,”
the Commonwealth requested that the court impose “a sentence of 4-to-8
years in state custody.” N.T., 6/3/14, at 21.



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      Court also considered that [Appellant] was convicted of child
      molestation in 2010, served his full five year sentence and was
      released on January 5, 2014. Id. at 18. The following month,
      on February 19, 2014, he tested positive for cocaine. Id.
      Within four months of release he violated probation again with
      the current offense. Id. at 17-19.

             Also considered was [Appellant’s] treatment after he
      tested positive for cocaine. Id. at 13. [Appellant] self-reported
      that he was schizophrenic, and he was diagnosed with cocaine
      abuse and mood disorder. His therapist stated that [Appellant]
      was compliant with the program, had perfect attendance,
      worked well within group sessions, and had excellent
      relationships with peers and staff. Id. at 13.

            Additionally, the Court considered [Appellant’s] therapist’s
      statement that [Appellant] needs anger management because
      “he constantly talks about issues ranging from personal rage and
      anger.” Id. The Court considered that [Appellant] had missed
      his appointment with his probation officer scheduled for April 15,
      2014, three days after the incident because he had reported to
      his therapist instead of his probation officer, where he told his
      therapist that an incident had occurred over the weekend and
      that he was suicidal; and that [Appellant] was taken to the
      hospital and then to an inpatient program for a week. Id. at 13-
      14. Finally, the Court considered that [Appellant] had been in
      custody for about six weeks. Id. at 17.

Trial Court Opinion, 12/18/14, at 6-7.

      Upon review, we discern no abuse of discretion.         The court carefully

considered    the   appropriate   factors,    including   Appellant’s    need   for

rehabilitation, when it imposed the prison sentence and term of probation

following revocation. Accordingly, Appellant is entitled to no relief.

      Judgment of sentence affirmed.

      Judge Lazarus joins the Memorandum.

      P.J. Gantman Concurs in the Result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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