J-S39038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 EDWARD SEELEY                           :
                                         :
                   Appellant             :   No. 2342 EDA 2018

       Appeal from the Judgment of Sentence Entered July 13, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004747-2008


BEFORE:   GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 21, 2019

     Appellant, Edward Seeley, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after the court

determined he violated the conditions of his probation. We affirm.

     The trial court summarizes the pertinent history of the case, as follows:

     On September 12, 2012, Appellant entered into a negotiated
     guilty plea to Violation of the Uniform Firearms Act § 6105, a
     felony of the second degree.          Appellant was immediately
     sentenced to 1 to 4 years state incarceration and 5 years reporting
     probation to run consecutive.

     On August 18, 2016, a violation of probation hearing was held
     before the Honorable Timika Lane after Appellant tested positive
     for amphetamines numerous times. Appellant was found in
     technical violation and probation was continued.

     Several instances occurred throughout 2016 wherein Appellant
     either expressed his desire to commit suicide to his probation
     officer or physically attempted suicide. On January 5, 2017,
     Appellant’s federal probation was revoked and he was sentenced
     by a federal judge to 12 months’ incarceration.

____________________________________
* Former Justice specially assigned to the Superior Court.
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     In January 2018, Appellant notified his county probation officer
     that he was having issues with his ex-girlfriend, that a Protection
     From Abuse petition (“PFA”) had been filed against him, and that
     she was threatening to call his probation officers. On February
     26, 2018 and March 26, 2018, Appellant tested positive for
     amphetamines. Appellant told his probation officer that the
     positive tests were the result of a nasal decongestant and/or
     prescription medications. He was told by his probation officer to
     get a prescription for any necessary medication.

     In April 2018, the probation department was notified that a PFA
     was filed against Appellant and that Appellant’s ex-girlfriend
     claimed that Appellant was increasingly abusive after having
     recently resumed drug use. On April 2, 2018, Appellant informed
     the probation department that he was admitting himself to Friends
     Hospital.

     On April 3, 2018, after never receiving notification from Friends
     Hospital, Appellant’s probation officer contacted Appellant for
     verification. Having not heard from Appellant, a contact notice
     was sent informing Appellant to report on April 10, 2018.
     Appellant did not report on April 10, 2018, as required.

     On April 11, 2018, Appellant contacted his probation officer to
     inform him that he had overdosed on medication and spent a week
     in the hospital. Penn Medicine paperwork submitted to the
     probation department verified that Appellant did overdose on
     antidepressant medication.

     Appellant did not report for his next scheduled visit on April 17,
     2018. On April 19, 2018, a SWAT team from the Philadelphia
     Police Department was called to Appellant’s residence after he
     barricaded himself in the residence, which reportedly was
     broadcast on local television, related to violating his PFA. On June
     7, 2018, the charges related to the violation of the PFA were
     withdrawn.

     On June 8, 2018, the court held a violation of probation hearing.
     During the hearing, the report from the probation officer, dated
     6/1/18, was incorporated by reference.            The probation
     department’s recommendation was for probation to be revoked
     and for Appellant to receive a mental health evaluation, mental


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     health treatment, and be further supervised by the mental health
     unit of the probation department. (N.T. 6/08/18), p.6).

     The court was informed that Appellant tested positive for
     amphetamines on [March 26, 2018]. Defense counsel argued that
     the positive result was from prescription medication Vyvanse,
     however, the probation officer testified that such medication
     would only test positive if it were being abused and if the individual
     had high dosages in [his] system. Id. at 7. Appellant denied
     abusing his prescription medication, but this argument was
     rebuked by the probation officer, who stated that Appellant has a
     history of testing negative and then positive, off and on, which
     indicated that his positive tests were the result of drug abuse
     rather than the result of normal prescription drug use. Id. at 13.

     The court found Appellant in technical violation for abusing
     amphetamines. His probation was revoked and a mental health
     evaluation was ordered to be completed while in custody. Id.

     On July 13, 2018, Appellant appeared before the court for
     sentencing on his technical violation.     The court sentenced
     Appellant to 11 ½ to 23 months incarceration plus 3 years’
     probation with the option to be paroled if placement could be
     found in a long-term dual diagnosis inpatient program.

     On August 6, 2018, Appellant filed a Notice of Appeal with the
     Superior Court. On October 31, 2018, the court sent a 1925(b)
     order directing Appellant to file a Concise Statement of Errors
     Complained of on Appeal. On November 19, 2018, Appellant filed
     his Statement of Errors Complained of on Appeal. A supplemental
     Statement of Errors Complained of on Appeal was filed with the
     court on November 28, 2018.

Trial Court Opinion, 12/21/18, at 2-4.

     Appellant presents the following questions for our consideration:

     1. Was not the evidence introduced at the probation revocation
        hearing insufficient as a matter of law to establish a technical
        violation of probation?

     2. Did not the trial court err and violate the requirements of 42
        Pa.C.S.A. § 9771(c) by sentencing appellant to total
        confinement absent him having been convicted of a new crime,

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         absent any indication that he was likely to commit a new crime,
         and absent a showing that the sentence was “essential to
         vindicate the authority of the court”?


      3. Did not the trial court err as a matter of law and violate the
         discretionary aspects of sentencing when it imposed a
         manifestly excessive and unreasonable sentence, where it
         failed to consider appellant’s personal history and rehabilitative
         needs, and the sentence was in excess of what was necessary
         to address the gravity of the offense, the protection of the
         community and appellant’s rehabilitative needs?

Appellant’s brief, at 4.

      At the outset, we observe that “in an appeal from a sentence imposed

after the court has revoked probation, we can review the validity of the

revocation proceedings, the legality of the sentence imposed following

revocation, and any challenge to the discretionary aspects of the sentence

imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015)

(citation omitted). Further,

      [r]evocation of a probation sentence is a matter committed to the
      sound discretion of the trial court and that court's decision will not
      be disturbed on appeal in the absence of an error of law or an
      abuse of discretion. When assessing whether to revoke probation,
      the trial court must balance the interests of society in preventing
      future criminal conduct by the defendant against the possibility of
      rehabilitating the defendant outside of prison. In order to uphold
      a revocation of probation, the Commonwealth must show by a
      preponderance of the evidence that a defendant violated his
      probation. [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.

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

citations and quotation marks omitted; some brackets added).

        In Appellant’s first issue, he contends the record is “devoid of any

evidence that he committed any technical violations of his probation.           Mr.

Seeley offered valid explanations regarding his use of prescription medications

and his contact with the probation department, and the Commonwealth

introduced no evidence to refute Mr. Seeley’s assertions.” Appellant’s brief,

at 21.     Having mental health issues and attempting suicide, Appellant

continues, likewise fails to constitute probation violations.

        Appellant’s argument goes to the sufficiency of evidence offered against

him at his Gagnon II,1 probation revocation hearing. With respect to such a

claim, we observe:

        there is a lesser burden of proof in a Gagnon II hearing than in
        a criminal trial because the focus of a violation hearing is “whether
        the conduct of the probationer indicates that the probation has
        proven to be an effective vehicle to accomplish rehabilitation and
        a sufficient deterrent against future antisocial conduct.”
        [Commonwealth v. Sims, 770 A.2d 346, 350 (Pa.Super. 2001)]
        (internal citation omitted). Thus, the Commonwealth need only
        prove a violation of probation by a preponderance of the evidence.
        Id.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa.Super. 2009).

        The terms of Appellant’s probation required him to comply with his drug

treatment plan and obey the law.               As described in the court’s opinion,

____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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reproduced above, the Commonwealth introduced both the written report2 and

the testimony of Appellant’s probation officer to prove by preponderance that

Appellant willfully abused drugs in violation of his drug treatment plan.

Specifically, the probation officer indicated Appellant tested positive for

amphetamines six times, including once when he attempted suicide, which

established a pattern indicating an “abuse cycle” involving either ingesting too

many of his prescribed medications or ingesting additional medications not

prescribed. N.T. 6/8/18, at 12-13. The probation officer thus opined that

Appellant’s innocuous explanation for his positive results was not credible.

       Crediting the testimony of the probation officer, the court reasonably

inferred from the totality of these circumstances that Appellant willfully abused

amphetamines and represented a danger to himself and the public. Discerning

no abuse of discretion with the court’s determination, we conclude Appellant’s

sufficiency claim lacks merit.

       Appellant remaining issues coalesce to challenge the imposition of a

sentence of total confinement as excessive and against the norms of

sentencing given what was, he posits, a lack of evidence that he had

committed another crime or was likely to commit another crime if not

imprisoned. There was no evidence of record to support the court’s conclusion

____________________________________________


2 The written report also described Appellant’s admissions to overdosing on
drugs, his recent suicide attempt, the Protection from Abuse allegations filed
against him, and his confrontation with law enforcement officers investigating
such allegations.


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that Appellant suffered from mental health issues that caused him to be a

danger to society, Appellant maintains, and he had demonstrated at the

hearing through his “apt explanations regarding his medications” that he was

compliant with his treatment program. Appellant’s brief, at 17. We disagree.

      Such a challenge to the discretionary aspects of a sentence is not

appealable as of right. Rather, Appellant must petition for allowance of appeal

pursuant to 42 Pa.C.S.A. § 9781.      Commonwealth v. Hanson, 856 A.2d

1254, 1257 (Pa.Super. 2004).

      Before we reach the merits of this [issue], we must engage in a
      four part analysis to determine: (1) whether the appeal is timely;
      (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of sentence; and (4) whether the concise statement raises
      a substantial question that the sentence is appropriate under the
      sentencing code. The third and fourth of these requirements arise
      because Appellant's attack on his sentence is not an appeal as of
      right. Rather, he must petition this Court, in his concise statement
      of reasons, to grant consideration of his appeal on the grounds
      that there is a substantial question. Finally, if the appeal satisfies
      each of these four requirements, we will then proceed to decide
      the substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (citations

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289

(Pa.Super. 2008) (“[W]hen a court revokes probation and imposes a new

sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a post-sentence motion.”).




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      Here, Appellant preserved his claim in his motion for reconsideration,

and he filed a timely notice of appeal. Appellant has also included in his brief

a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at

16–19. Moreover, Appellant's claim that the trial court sentenced him to a

term of total confinement based solely on a technical violation raises a

substantial question for our review. See Commonwealth v. Crump, 995

A.2d 1280, 1282 (Pa.Super. 2010) (holding revocation sentence of total

confinement, based on technical violation rather than new criminal offense,

implicates fundamental norms underlying sentencing process). We, therefore,

review Appellant’s discretionary aspects claim.

      Our standard of review is well-settled. We have explained:

            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.

      Commonwealth v.         Simmons,      56    A.3d   1280,   1283–84
      (Pa.Super. 2012).

            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.



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

     Upon revoking probation, a sentencing court may choose from any
     of the sentencing options that existed at the time of the original
     sentencing, including incarceration. 42 Pa.C.S.A. § 9771(b).
     “[U]pon 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.
     Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (internal quotation
     marks and citations omitted). However, 42 Pa.C.S.A. § 9771(c)
     provides that once probation has been revoked, a sentence of total
     confinement may only 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.A. § 9771(c).

     “In addition, in all cases where the court resentences an offender
     following 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
     [and] [f]ailure to comply with these provisions shall be grounds
     for vacating the sentence or resentence and resentencing the
     defendant.” Commonwealth v. Cartrette, 83 A.3d 1030, 1040–
     1041 (Pa.Super. 2013) (internal quotations omitted); 42 Pa.C.S.
     § 9721(b). “A trial 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.” Crump, 995 A.2d at 1282–1283.

Commonwealth v. Colon, 102 A.3d 1033, 1043–44 (Pa.Super. 2014).

     At the July 13, 2018, sentencing hearing, the trial court considered both

a newly prepared mental health evaluation and the facts adduced at the


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previous Violation of Probation hearing of June 8, 2018. N.T., 7/13/18, at 4-

5.   The evaluation contained the psychologist’s opinion that Appellant’s

“complex clinical picture,” which includes bipolar disorder, ADHD, and a

trauma history, presents a “somewhat poor prognosis” that will improve only

if Appellant maintains sobriety and cooperates with treatment. N.T. at 5-6.

Otherwise, the psychologist opined, Appellant “will continue to struggle with

poor judgment and impulsivity.” N.T. at 6.

      The court solicited each counsel’s sentencing request in light of the

evaluation. Defense counsel asked the court to allow Appellant to return to

his prior mental health treatment plan, as Appellant had already spent “some

time” in jail because of his recent troubles and he requires the continued care

of a physician. The prosecutor agreed that Appellant’s difficulties center on

his mental health issues, but it characterized the issues and Appellant’s recent

actions as too severe to permit community-based treatment, particularly

where outpatient treatment has proven unsuccessful, to date. N.T. at 8-9.

Coupled with Appellant’s prior convictions for robbery and VUFA violations, the

prosecutor asked for some type of secure inpatient treatment before the court

would consider revisiting the option of outpatient treatment as part of

probation. N.T. at 9-10. Finally, the court stated for the record the probation

officer’s recommendation of revocation with a mental health treatment from

custody. N.T. at 10.

      The court permitted Appellant the opportunity to address the court, and,

during their extensive exchange, the court expressed its impression that

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Appellant has suffered with mental health problems for “a very long period of

time” and has not adjusted well to the current treatment plan. N.T. at 12-13.

It indicated that Appellant’s fixation on talking about his house during their

exchange was indicative of his “complete denial about [his] mental health

issues,” N.T. at 11-12. In this vein, the court took judicial notice of the recent

episode requiring a SWAT Team’s arrival at his home during an investigation

of a PFA filed against him, to which Appellant replied that he was sleeping at

the time and did not know why they came. N.T. at 13.

      The court thereafter imposed a new sentence of 11 ½ to 23 months’

county incarceration, plus three years’ reporting probation. A condition of the

sentence was that Appellant complete mental health and drug treatment while

in jail. The court informed Appellant that it was willing to parole him earlier

than 11 ½ months if a FIR evaluation recommends a long-term, dual

diagnosis, inpatient treatment program and the county is able to place him in

such a facility. N.T. at 15, 18, 20.

      Finally, the court admonished Appellant, as follows:

      THE COURT:        If you get out earlier than 11 ½ to 23 to an
      inpatient program, you have to cooperate with them, you have to
      do everything that they tell you to do. You have to take all your
      medicines and do all your treatment sessions because if you don’t,
      they are going to send me a letter that you are not cooperating.
      And you’re going to be back in front of me and you might get a
      state sentence and go back into custody. So I’m sure you be [sic]
      out of custody because today you were asking me to let you go
      home, right?

      APPELLANT:         Yes.



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      THE COURT:        So you have to concentrate on addressing your
      mental health issues and not [on] making anybody think you don’t
      have them or make anybody think they are not there. They are
      there, you have the mental health issues and you have to address
      them every day for the rest of your life. Do you understand that?

      APPELLANT:        Yes.

N.T. at 20-21.

      Viewing the entirety of the record before us, we find it supports the trial

court’s exercise of sentencing discretion. Contrary to Appellant’s position, the

court considered both his rehabilitative needs and the likelihood that he would

violate the law again if he were simply to resume his clearly ineffective

probationary term and outpatient program. Indeed, the court acknowledged

evidence of Appellant’s history of drug abuse, failure to keep probation

appointments, encounters with law enforcement, and recent attempt to harm

himself as collectively warranting imposition of a sentence of incarceration

incorporating inpatient mental health treatment.        To the extent Appellant

contends that he explained away such episodes, the record was such that the

court was free to discredit Appellant’s explanations.

      In light of the foregoing, therefore, we perceive no basis upon which to

grant Appellant relief on his discretionary aspects claim, as the court’s

sentence of incarceration reasonably contemplated both the facts of the

probation violation and Appellant’s character.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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