J-S55023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
SHAHEED CAMERON,                        :
                                        :
                       Appellant        :     No. 3285 EDA 2013


     Appeal from the Judgment of Sentence Entered October 17, 2013,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0901821-2004.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED NOVEMBER 06, 2014

      Appellant, Shaheed Cameron, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

      The trial court summarized the procedural history of this case as

follows:

             On March 18, 2005, [A]ppellant pleaded guilty before the
      Honorable Denis P. Cohen to possession of a firearm as a felony
      of the second degree, and was sentenced to 11 1/2- 23 months
      incarceration followed by 4 years probation.1 As a condition of
      his sentence, he was to remain in mental health treatment and
      be supervised by the Mental Health Unit of the Probation
      Department. Subsequently, [A]ppellant’s probation/parole was
      revoked and he was resentenced by Judge Cohen on July 20,
      2005, April 3, 2007, January 30, 2009 and September 23, 2011.
      On July 6, 2012, [A]ppellant’s case was again listed for a
      violation hearing before Judge Cohen. It was determined that
      [A]ppellant may need additional supports and the case was
      transferred to Mental Health Court. On October 11, 2012, the
      violation hearing was held before [the trial court and J. Woods-
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     Skipper].   The Court found [A]ppellant in violation of his
     probation and his probation was revoked. He was re-sentenced
     to 11 1/2- 23 months incarceration followed by 2 years
     probation with participation in drug and mental health treatment
     as conditions of his sentence.       At that time, he was also
     approved for Mental Health Court (MHC).           Appellant was
     released to a treatment housing program a[t] Gaudenzia New
     Beginnings on March 28, 2013. However, his compliance with
     treatment was inconsistent and a violation hearing was held on
     October 17, 2013.2
          1
              18 Pa.C.S. § 6105.
          2
            Appellant was committed under the Mental Health
          Procedures Act several times which delayed
          commencement of the violation hearing.

            At the violation hearing, [A]ppellant’s assigned Mental
     Health Court probation officer testified that [A]ppellant was in
     violation because he had tested positive for drugs, failed to
     report to his residential placement and failed to report to
     probation after being discharged. She testified that [A]ppellant
     was admitted to Fairmount Behavioral Health (Fairmount) on
     May 31, 2013 for depression. While an inpatient, [A]ppellant
     tested positive for cocaine and PCP.        On June 11, 2013,
     [A]ppellant was released from Fairmount but failed to return to
     his housing program at Gaudenzia New Beginnings as required
     under his MHC treatment plan. On June 17, 2013, [A]ppellant’s
     probation officer received information that [A]ppellant had been
     taken back to Einstein Hospital, and, because of his behavior,
     committed under Section 302 of the Mental Health Procedures
     Act (MHPA). On June 20, 2013, [A]ppellant was discharged from
     Einstein Hospital and taken into custody from the hospital by the
     Warrant Unit of the Probation Department, and a forthwith
     mental health evaluation was ordered.        On July 11, 2013,
     [A]ppellant was deemed incompetent and committed for
     treatment under Section 305 via Section 405 of the MHPA for a
     period of 60 days. On September 26, 2013, [A]ppellant was
     found to be competent to proceed and the violation hearing was
     held on October 17, 2013. Following presentation of evidence
     that [A]ppellant had tested positive for illegal substances, had
     failed to report to the probation department and had failed to


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      report to his residential treatment program, [A]ppellant was
      found to be in technical violation of his probation. His probation
      was revoked and he was sentenced to 5-10 years incarceration.
      Post sentence motions were filed and denied.          This appeal
      followed.

Trial Court Opinion, 3/12/14, at 1-3.

      Appellant presents the following issue for our review:

            Did not the court abuse its discretion by imposing an
      unduly     harsh,    manifestly    excessive     and    unreasonable
      punishment, in contravention of the general standards set forth
      by 42 Pa.C.S.A. § 9721, when it sentenced [Appellant] to a term
      of total incarceration in a state institution for a period of 5 to 10
      years after failing to adequately examine and consider
      [Appellant’s] background, character and rehabilitative needs and
      the circumstances of his technical violations, and after failing to
      order a pre-sentence investigation report or placing its reasons
      on the record for dispensing with such a report?

Appellant’s Brief at 4.

      Appellant’s issue challenges the discretionary aspects of his sentence.

See Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001)

(recognizing a claim that a sentence imposed after probation revocation was

excessive is treated as a challenge to the discretionary aspects of

sentencing).1 Where an appellant challenges the discretionary aspects of a

sentence there is no automatic right to appeal, and an appellant’s appeal

should be deemed a petition for allowance of appeal.       Commonwealth v.



1
  In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013)
(en banc), this Court unequivocally held that our “scope of review in an
appeal from a revocation sentencing includes discretionary sentencing
challenges.” Thus, there is no impediment to our review.

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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, 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)).

     Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept

bald assertions of sentencing errors.   Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. Super. 2006).         An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id.

     Here, Appellant has satisfied the first three requirements. He filed a

timely appeal; he preserved his sentencing claim in a post-sentence motion;

and Appellant’s brief includes a Pa.R.A.P. 2119(f) statement of reasons



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relied upon for allowance of appeal. Appellant’s Brief at 10. Thus, we next

determine if Appellant’s sentencing challenge raises a substantial question.

      In his Rule 2119(f) statement, Appellant states:

            In this matter, for technical violations of [Appellant’s]
      supervision, the lower court imposed a term of incarceration of 5
      to 10 years. This revocation sentence was imposed for violation
      of 18 Pa.C.S. § 6105. This Court should grant allowance of
      appeal from the discretionary aspects of [Appellant’s] sentence
      because the sentencing court violated the express provisions of
      the Sentencing Code and imposed a manifestly excessive and
      unreasonable sentence contrary to the fundamental norms which
      underlie the sentencing process.

                                    ***

             Here, the sentencing court failed to carefully consider all
      relevant factors as set forth in Section 9721(b) of the Sentencing
      Code (Title 42).      The sentence imposed far surpassed that
      required to protect the public and failed to address [Appellant’s]
      rehabilitative needs. Specifically, the lower court failed to order
      a pre-sentence investigation report, and thereby failed to apprise
      itself of [Appellant’s] current level of mental health problems and
      current degree of contributing social stresses, despite obvious
      indications that [Appellant’s] circumstances had changed since
      the court had last reviewed [Appellant’s] case, that he had
      undergone significant personal loss due to the death of his
      grandmother, and that his mental health had deteriorated to the
      degree that he had attempted suicide and had been involuntarily
      committed on multiple occasions.

Appellant’s Brief at 14.

      We conclude that, in this instance, Appellant has raised a substantial

question.   See Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.

2012) (providing that claims of a manifestly excessive and unduly harsh

sentence raise a substantial question); see also Commonwealth v.



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Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (opining that an appellant’s

claim that a sentence following probation revocation was unreasonably

disproportionate to her crimes and unduly excessive raised a substantial

question); Commonwealth v. Flowers, 950 A.2d 330, 332 (Pa. Super.

2008) (holding that an appellant’s allegation that the trial court imposed

sentence “without considering the requisite statutory factors or stating

adequate reasons for dispensing with a pre-sentence report” raised a

substantial question.)

      Accordingly, because Appellant has stated a substantial question, we

will consider his issue on appeal.

      Our standard of review in appeals of sentencing is well settled:

      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. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

      In determining whether a sentence is manifestly excessive, the
      appellate court must give great weight to the sentencing court’s
      discretion, as he or she is in the best position to measure factors
      such as the nature of the crime, the defendant’s character, and
      the defendant’s display of remorse, defiance, or indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).




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      Additionally, upon sentencing following a revocation of probation, the

trial court is limited only by the maximum sentence that it could have

imposed      originally   at   the   time     of   the   probationary   sentence.

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000); 42 Pa.C.S.

§ 9771(b).     In other words, “[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 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). Once probation has been revoked,

a sentence of total confinement may be imposed if any of the following

conditions exist: “(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)(1-3); Fish, 752

A.2d at 923.

      It was uncontroverted that Appellant had violated conditions of his

probation by testing positive for drugs and having failed to report to

Gaudenzia New Beginnings as required upon his release from the hospital.

N.T., 10/17/13, at 4-5, 7-8. Following the trial court’s finding that Appellant

violated probation, Appellant was sentenced to five to ten years of




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imprisonment on the original conviction, with credit for time served. Id. at

19-20.    This sentence was within the range of potential sentencing

alternatives available to the court upon Appellant’s original conviction. See

18 Pa.C.S. § 1103(2) (providing that a person may be convicted, “[i]n the

case of a felony of the second degree, for a term which shall be fixed by the

court at not more than ten years.”)       Thus, the sentencing court did not

impose an illegal sentence following the probation revocation.

      Furthermore, we cannot agree with Appellant’s claim that the sentence

was manifestly excessive and unreasonable.       The trial court provided the

following basis for the sentence it imposed on Appellant:


      The evidence indicated that this was [A]ppellant’s sixth violation
      hearing since his guilty plea in 2005.          On each occasion
      [A]ppellant’s probation was revoked, and in an effort to
      accomplish rehabilitation and treat his mental health issues, he
      received sentences to be served in a County jail facility, and
      probation.    However, his behaviors did not improve.             He
      continued to test positive for the use of illegal substances, failed
      to report to his probation officer as required, failed to report to
      his residential treatment facility, and failed to participate in
      treatment or follow the conditions of Mental Health Court and
      probation. Based upon the number of violations, and out of
      concern for the public’s safety, the [trial court] determined that
      [A]ppellant was no longer amenable to any type of County
      sentence and that a sentence of incarceration to be served in a
      state correctional facility was necessary not only because of
      [A]ppellant’s likelihood to commit future offenses, but also to
      vindicate the Court’s authority.

Trial Court Opinion, 3/12/14, at 5.




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      As noted, this was Appellant’s sixth violation of probation.          The

sentences issued by the trial court previously, in an effort to accomplish

rehabilitation and treat Appellant’s mental health issues, were insufficient to

modify his behavior. Additionally, there was evidence that Appellant was a

risk to himself and to others. Thus, the sentence of total confinement was

appropriately imposed because Appellant’s conduct indicates that it is likely

he will commit another crime if he is not imprisoned, and such a sentence is

essential to vindicate the authority of court.    42 Pa.C.S. § 9771(c)(1-3);

Fish, 752 A.2d at 923. Appellant has failed to establish 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.   Mann, 957 A.2d at 749.     Accordingly, the sentence imposed by

the trial court was not manifestly excessive or unreasonable.

      Appellant further argues that the trial court erred in failing to order a

pre-sentence investigation report and in failing to place on the record its

reasons for not doing so.    Appellant’s Brief at 20-21. Appellant maintains

that as a result, the trial court did not have adequate information on which

to sentence Appellant. Id. at 22.

      The Pennsylvania Rules of Criminal Procedure vest a sentencing judge

with the discretion to order a pre-sentence investigation report (“PSI”) as an




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aid in imposing an individualized sentence.    Specifically, Pa.R.Crim.P. 702

provides, in relevant part, the following:

      702. Aids in Imposing Sentence

      (A) Pre-sentence Investigation Report

      (1) The sentencing judge may, in the judge’s discretion, order a
      pre-sentence investigation report in any case.

      (2) The sentencing judge shall place on the record the reasons
      for dispensing with the pre-sentence investigation report if the
      judge fails to order a pre-sentence report in any of the following
      instances:

            (a) when incarceration for one year or more is a
            possible disposition under the applicable sentencing
            statutes[.]

Pa.R.Crim.P. 702(A)(1),(2)(a).2

      Although Rule 702(A)(2) provides that the requirement to document

the reasons for not ordering a pre-sentence report is mandatory, in

Commonwealth v. Flowers, 950 A.2d 330 (Pa. Super. 2008), this Court

made clear that sentencing courts have some latitude in how this

requirement is fulfilled.   Citing to Commonwealth v. Goggins, 748 A.2d

721 (Pa. Super. 2000),3 we stated that “technical noncompliance with the



2
  This Court has held that Pa.R.Crim.P. 702 is applicable to sentences
imposed following the revocation of probation. Commonwealth v. Kelly,
33 A.3d 638, 642 (Pa. Super. 2011).

3
   This Court in Goggins, 748 A.2d at 728 opined “[A] sentencing judge
must either order a PSI report or conduct sufficient presentence inquiry such
that, at a minimum, the court is apprised of the particular circumstances of

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requirements of Rule 702(A)(2) might have been rendered harmless had the

court elicited sufficient information during the colloquy to substitute for a PSI

report, thereby allowing a fully informed sentencing decision[.]”      Flowers,

950 A.2d at 333.

      Here, a review of the sentencing hearing transcript reflects that the

parties provided the trial court with information regarding Appellant’s

personal background and criminal and psychiatric history prior to sentencing.

Indeed, all of the factors outlined in Appellant’s Rule 2119(f) statement, of

which Appellant maintains the trial court did not apprise itself, were raised

and addressed at the sentencing hearing. Specifically, Appellant’s attorney

provided the court with information regarding Appellant’s traumatic and

volatile childhood. N.T., 10/17/13, at 6. Appellant addressed the court and

described his mental illness and his attempt at self-medicating with street

drugs. Id. at 7-8. Appellant also reported the stress he endured since his

grandmother had died. Id. at 7. Appellant’s attorney advised the trial court

that Appellant had attempted suicide and was taken into custody for his own

protection.     Id. at 13.     Appellant’s personal, criminal, medical and

psychiatric histories was covered during the sentencing hearing . Id. at 4-5,

10-14, 16-17.




the offense, not limited to those of record, as well as the defendant’s
personal history and background.”

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      Additionally,   the   trial   judge,   J.   Woods-Skipper,   had   previous

knowledge of Appellant and his history.            Appellant was before her on

October 11, 2012, for a hearing regarding a previous probation violation and

was, at that time, approved for Mental Health Court (“MHC”).             Thus, we

conclude that the trial court elicited sufficient information during the colloquy

to substitute for a PSI report.

      We further note that the trial court considered all of these factors

when it made the determination that Appellant was in need of a sentence

that could provide him additional help:

            Frankly, I don’t believe that Gaudenzia can handle
      [Appellant], and I do think it is time, really, in terms of public
      safety, for someone who’s had at least six prior violations, all of
      which have been given county sentences, none of which have,
      obviously, worked for [Appellant], he obviously is not a good
      candidate to remain in the county system.

             He needs some additional help and assistance. So, it’s not
      that I’m losing faith in wanting to help [Appellant], but I think he
      needs to get the help in a different system, because all of our
      help has failed him[.]

N.T., 10/17/13, at 15-16. The trial court also recommended that Appellant

serve his sentence at SCI Waymart, so that he could continue with mental

health treatment. Id. at 20. As such, we conclude that the trial court made

an informed sentencing decision and did not abuse its discretion in

sentencing Appellant without a PSI report or placing on the record its

reasons for dispensing with the PSI report.




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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2014




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