J-S35027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ERIC WHITHERS,

                         Appellant                 No. 1195 EDA 2015


      Appeal from the Judgment of Sentence Entered March 31, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0306711-1998


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 14, 2016

      Appellant, Eric Whithers, appeals from the judgment of sentence of 5

to 10½ years’ imprisonment, imposed after the trial court anticipatorily

revoked his term of probation and resentenced him.          Appellant solely

challenges the discretionary aspects of his sentence. We affirm.

      In July of 1997, Appellant shot 20-year-old Horace White in the head

with a shotgun. White was pronounced dead the following day. Appellant

subsequently confessed to his involvement in the shooting.         On July 19,

1999, Appellant pled guilty to third-degree murder and the court imposed a

‘split sentence’ of 7½ to 20 years’ incarceration, followed by 10 years’

probation, for that offense.

      In May of 2008, while Appellant was on parole for his murder

conviction, he was arrested and charged with possession of a firearm in
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violation of 18 Pa.C.S. § 6105 (Persons not to possess, use, manufacture,

control sell or transfer firearms).     Following a trial in October of 2014,

Appellant was convicted of that offense, and was sentenced by the

Honorable Steven R. Geroff to serve 5 to 10 years’ imprisonment.

Additionally, based on the firearm conviction, Appellant was recommitted by

the state parole board on his third-degree murder sentence of incarceration,

and was ordered to serve 24 months of ‘back time’ remaining on that

sentence.     Judge Geroff’s sentence was ordered to run consecutively to

Appellant’s 24 months of ‘back time.’

     Thereafter, on March 31, 2015, the trial court in the present case

anticipatorily revoked Appellant’s term of probation for his third-degree

murder conviction, and sentenced him to a term of 5 to 10½ years’

imprisonment. The court ordered that this sentence be served consecutively

to Judge Geroff’s sentence for Appellant’s firearm offense. Appellant filed a

timely post-sentence motion, which was denied. He thereafter filed a timely

notice of appeal, and timely complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement.    Herein, Appellant presents one question for

our review:

     Did not the lower court err, abuse its discretion, and violate
     general sentencing principles when, following the anticipatory
     revocation of probation, the court imposed a consecutive five (5)
     to ten and a half (10½) years of incarceration, where this
     sentence was manifestly excessive and unreasonable, far
     surpassed what was required to protect the public, went well
     beyond what was necessary to foster [A]ppellant’s rehabilitation,
     and the lower court failed to state adequate reasons for
     imposing such a lengthy sentence on the record?

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Appellant’s Brief at 3.1

       Appellant’s claim clearly constitutes a challenge to the discretionary

aspects of his sentence.

       A challenge to the discretionary aspects of a sentence must be
       considered a petition for permission to appeal, as the right to
       pursue such a claim is not absolute. When challenging the
       discretionary aspects of the sentence imposed, an appellant
       must present a substantial question as to the inappropriateness
       of the sentence. Two requirements must be met before we will
       review this challenge on its merits. First, an appellant must set
       forth in his brief a concise statement of the reasons relied upon
       for allowance of appeal with respect to the discretionary aspects
       of a sentence. Second, the appellant must show that there is a
       substantial question that the sentence imposed is not
       appropriate under the Sentencing Code. That is, [that] the
       sentence violates either a specific provision of the sentencing
       scheme set forth in the Sentencing Code or a particular
       fundamental norm underlying the sentencing process.           We
       examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
       determine whether a substantial question exists. Our inquiry
       must focus on the reasons for which the appeal is sought, in
       contrast to the facts underlying the appeal, which are necessary
       only to decide the appeal on the merits.

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks and footnote omitted; emphasis in original).




____________________________________________


1
  Appellant raised several other claims in his Rule 1925(b) statement,
including a challenge to the court’s ability to anticipatorily revoke his term of
probation and sentence him to another term of incarceration for his third-
degree murder conviction. However, Appellant has abandoned those claims
on appeal, and even concedes that “the lower court did have the authority to
anticipatorily revoke his probation and impose a new period of incarceration
given the [probation] violation.” Appellant’s Brief at 13.



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     Here, Appellant has presented a Rule 2119(f) statement in his brief, in

which he avers that this Court “should grant allowance of appeal from the

discretionary aspects of sentence because the lower court violated the

express provisions of the Sentencing Code, imposed an excessive sentence,

and failed to state the reasons for the sentence on the record, contrary to

the fundamental norms which underlie the sentencing process.” Appellant’s

Brief at 6 (citing Commonwealth v. Mouzon, 812 A.2d 617, 624, 627 (Pa.

2002) (holding that, while this Court is not required to accept “bald

allegations of excessiveness[,]” a claim that a sentence is excessive is not

“per se precluded from receiving appellate review” and will be reviewed

where the “Rule 2119(f) statement sufficiently articulates the manner in

which the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process”)).   After reviewing Mouzon, and other

cases cited by Appellant, we conclude that he has presented a substantial

question for our review.      See Mouzon, supra; Commonwealth v.

Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (citing Mouzon in concluding

that a substantial question existed where Williams claimed the court

imposed a sentence that was unreasonably disproportionate to her crimes

and was unduly excessive); Commonwealth v. Parlante, 823 A.2d 927,

929 (Pa. Super. 2003) (finding a substantial question was raised where

Parlante claimed the court imposed a “grossly disproportionate” sentence

and failed to “provide adequate reasons on the record for the sentence”).

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     The thrust of Appellant’s argument is that the court imposed an

excessive sentence, mainly because it ordered its sentence of 5 to 10½

years to run consecutively to Judge Geroff’s 5 to 10 year sentence, and to

the 24 months of ‘back time’ that remained on Appellant’s initial sentence of

incarceration for third-degree murder.    Appellant also contends that the

court failed to state adequate reasons on the record for imposing his

sentence, and that the court erred by not considering his rehabilitative

needs.

     In reviewing this claim, we apply the following, well-settled standard

of review:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by an error in judgment.
     Rather, the appellant must establish, by reference to the record,
     that the sentencing court ignored or misapplied the law,
     exercised its judgment for reasons of partiality, prejudice, bias
     or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).

     We also note that,

     contrary to when an initial sentence is imposed, the Sentencing
     Guidelines do not apply [when sentencing a defendant following
     revocation of probation], 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.



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            Upon revoking probation, “the sentencing alternatives
      available to the court shall be the same as were available at the
      time of initial sentencing, due consideration being given to the
      time spent serving the order of probation.” 42 Pa.C.S. §
      9771(b). Thus, upon revoking probation, the trial court is limited
      only by the maximum sentence that it could have imposed
      originally at the time of the probationary sentence, although
      once probation has been revoked, 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).

            Moreover, 42 Pa.C.S. § 9721(b) specifies that in every
      case following the 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.”

             However, following revocation, a sentencing court need not
      undertake a lengthy discourse for its reasons for imposing a
      sentence or specifically reference the statutes in question.
      Simply put, since the defendant has previously appeared before
      the sentencing court, the stated reasons for a revocation
      sentence need not be as elaborate as that which is required at
      initial sentencing. The rationale for this is obvious. When
      sentencing is a consequence of the revocation of probation, the
      trial judge is already fully informed as to the facts and
      circumstances of both the crime and the nature of the
      defendant, particularly where, as here, the trial judge had the
      benefit of a PSI during the initial sentencing proceedings.

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

citations and footnote omitted).




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      Having reviewed the record of the revocation/resentencing hearing in

Appellant’s case, and keeping in mind the legal principles set forth in

Pasture, we ascertain no abuse of discretion in the court’s fashioning of

Appellant’s sentence.   Notably, as the court pointed out in its opinion, it had

the benefit of a presentence report, which outlined Appellant’s lengthy

criminal history. See Trial Court Opinion, 7/27/15, at 7 n.3. The court also

discussed other factors it considered in sentencing Appellant, stating:

      Defense counsel pointed out that [Appellant] got his GED in
      custody, and has always worked when he was out of custody
      ([N.T. 3/31/15,] at 9). [Appellant] had low level drug use in the
      past, and some minor prison infractions (id. at 9-10).

             This [c]ourt explained that [Appellant], on state parole for
      third[-]degree murder, should not have a gun (N.T. 3/31/15, p.
      24). He could have been statutorily sentenced to up to 40 years
      in prison for the murder conviction (id. at 18-19). This court
      explained that a 5 to 10½ year prison sentence consecutive to
      all other sentences would be “an individualized sentence that
      takes into consideration [Appellant’s] possibility of being
      rehabilitated. And that has to be balanced against [the court’s]
      duty to protect the public” (id. at 25). What was very clear to
      this court at the [violation of probation] hearing is that
      [Appellant] is in no way rehabilitated. His actions demonstrate
      that he has no intention of leading a crime free life outside of
      incarceration.    [Appellant] has taken no ownership of his
      [firearm offense]; he denied the crime in the Presentence Report
      and mentioned at the [violation of probation] hearing that he is
      still seeking to overturn that conviction (N.T. 3/31/15, p. 23).
      The probationary sentence given by [the prior trial court] for
      [Appellant’s] murder conviction was structured for this exact
      scenario -- [Appellant] was given a generous sentence despite
      killing a 20 year-old man by shooting him in the head. Instead
      of reforming himself, he chose to go back out on the streets …
      with several other males[,] and armed with a gun that he is not
      permitted to carry[,] to one of the worst crime intersections in
      America -- these facts are strikingly similar to the dynamics that
      occurred when [Appellant] committed the underlying murder

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      with a group of males in a car armed with guns. [Appellant] is
      not a reformed felon, but rather demonstrates that he is likely to
      be involved in another murder statistic in Philadelphia. The
      probationary sentence given by [the initial trial court judge] for
      murder was structured consecutive to [Appellant’s] 7 ½ to 20
      years[’] incarceration sentence so the court could increase the
      incarceration portion of the sentence to protect society from
      [Appellant] should he choose not to change his criminal
      behavior. We are in that exact scenario now.

           Therefore, contrary to [Appellant’s] claim, the [violation of
      probation] sentence imposed by the court was not error or an
      abuse of discretion. The sentence imposed was not manifestly
      excessive and unreasonable, and this court did examine
      [Appellant’s] background, character and rehabilitative needs.
      And, as cited above, this court did disclose in open court at the
      time of sentencing a statement of the reasons for the sentence
      imposed.

Id. at 7-9 (footnotes and internal quotation marks omitted).

      Based on the revocation court’s explanation for its sentence, and the

record of the revocation/resentencing hearing conducted on March 31, 2015,

Appellant has not convinced us that the court abused its discretion by

imposing a 5 to 10½ year sentence, or in ordering that sentence to run

consecutively to his other terms of incarceration.    The court’s decision to

order its sentence to run consecutively to Appellant’s other sentences was

reasonable. Appellant’s act of possessing a gun constituted a violation of his

probation that was separate and distinct from his conviction under section

6105 before Judge Geroff. Moreover, the conduct triggering the probation

violation was completely unrelated to his third-degree murder offense, for

which 24 months of ‘back time’ remained to be served. Thus, it was not an




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abuse of discretion for the court to require Appellant to serve a consecutive

sentence for his probation violation.

      Additionally, contrary to Appellant’s claim, the record of the sentencing

hearing, as a whole, demonstrates that the court stated sufficient reasons

for imposing the sentence that it did, as discussed by the court in its

opinion. We also conclude that Appellant’s claim that the court abused its

discretion by failing to consider his rehabilitative needs is meritless. Initially,

Appellant did not mention this claim in his Rule 2119(f) statement;

therefore, he has not demonstrated that a substantial question exists to

warrant our review.       Nevertheless, Appellant’s argument in this regard is

meritless. As clarified by the Pasture Court, the revocation court was not

bound by section 9721(b)’s requirement that it consider the rehabilitative

needs of Appellant.    In any event, the court did examine this factor, and

reasonably concluded that Appellant’s conduct exhibited an unwillingness to

rehabilitate himself or change his criminal behavior.

      Finally, we note that Appellant contends, for the first time on appeal,

that the court abused its discretion by “consider[ing] inappropriate factors in

imposing [its] sentence….”         Appellant’s Brief at 18.   This claim was not

raised in Appellant’s post-sentence          motion, or   in his Rule     1925(b)

statement. Therefore, it is waived. See Commonwealth v. Bromley, 862

A.2d 598, 603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s

challenge to the discretionary aspects of his sentence is waived if the

[a]ppellant   has   not    filed   a   post-sentence   motion   challenging    the

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discretionary aspects with the sentencing court.”) (citations omitted);

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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