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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  v.                     :
                                         :
MICHAEL RHODY,                           :         No. 419 WDA 2015
                                         :
                       Appellant         :


        Appeal from the Judgment of Sentence, February 11, 2015,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0011813-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 12, 2016

     Michael Rhody appeals from the judgment of sentence entered by the

Court of Common Pleas of Allegheny County on February 11, 2015, following

revocation of his probation.       We are constrained to vacate appellant’s

judgment of sentence and remand for resentencing.

     The record reflects that from May 12, 2011 through July 27, 2011,

appellant, then 49 years old, communicated on the internet and through a

webcam with an undercover investigator who appellant believed to be a

14-year-old girl. These communications resulted in appellant being arrested

and charged with two counts of unlawful contact with minor, one count of

criminal use of a communication facility, one count of criminal solicitation,
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and   one    count       of   criminal   attempt.1     In   a    negotiated    plea,   the

Commonwealth agreed to withdraw the criminal solicitation charge, and

appellant agreed to plead guilty to the remaining charges. On April 2, 2012,

the sentencing court sentenced appellant to one year of electronic

monitoring with a concurrent seven-year term of probation on the unlawful

contact with minor charge.               The sentencing court assessed no further

penalty with respect to the remaining charges.                     Following a status

conference on April 26, 2012, the sentencing court entered an order that

amended appellant’s sentence and sentenced him to a seven-year term of

probation.

      Following      a    probation-violation     hearing   on   July    15,   2013,   the

sentencing court revoked appellant’s probation because, among other

things, appellant had violated the terms of his probation by viewing

pornography, having contact with minors, failing to participate in therapy,

and initiating an altercation with his probation officer. The sentencing court

then sentenced appellant to 10 to 20 months’ incarceration, followed by

6 months of electronic monitoring and 5 years’ probation.

      On     February         11,   2015,   the   sentencing     court    held   another

probation-violation hearing, during which the court revoked appellant’s

probation, and sentenced him to 5 to 10 years’ incarceration.



1
  18 Pa.C.S.A. §§ 6318(a)(1) and (a)(4), 18 Pa.C.S.A. § 7512(a),
18 Pa.C.S.A. § 902(a), and 18 Pa.C.S.A. § 901(a), respectively.


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      On February 24, 2015, appellant filed a motion to reconsider sentence,

which the sentencing court denied. On March 12, 2015, appellant then filed

a notice of appeal to this court. The sentencing court ordered appellant to

file a concise statement of matters complained of on appeal in accordance

with Pa.R.A.P. 1925(b).      Appellant complied, and the sentencing court

addressed the merits of appellant’s claims in its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following two issues for our review:

            I.    In revoking [appellant’s] probation and
                  sentencing him to a sentence of total
                  confinement      of   5-10    years[’]    state
                  incarceration, whether the [sentencing] court
                  abused     its  sentencing  discretion    when
                  [appellant] committed only technical violations
                  of probation and the requirements of
                  42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A.
                  § 9725 were not met?

            II.   In revoking [appellant’s] probation and
                  sentencing him to a state sentence of total
                  confinement of 5-10 years[’] incarceration,
                  whether the [sentencing] court abused its
                  sentencing discretion when it failed to order a
                  pre-sentence investigation report or conduct
                  an appropriate colloquy at the probation-
                  violation hearing, and it also relied on
                  misinformation in imposing sentence?

Appellant’s brief at 5 (footnotes omitted).

      Appellant challenges the discretionary aspects of his sentence.

            To reach the merits of a discretionary sentencing
            issue, we conduct a four-part analysis to determine:
            (1) whether Appellant has filed a timely notice of
            appeal; (2) whether the issue was properly
            preserved at sentencing or in a motion to reconsider
            and modify sentence; (3) whether Appellant’s brief


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             has a fatal defect; and (4) whether there is a
             substantial question that the sentence appealed from
             is not appropriate under the sentencing code.

Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.Super. 2004).

     We must first decide whether appellant’s claims are properly before us.

Where an appellant challenges the discretionary aspects of sentencing,

appellant must raise the claim in a post-sentence motion or during the

sentencing proceedings.     Commonwealth v. Mann, 820 A.2d 788, 794

(Pa.Super. 2003).

     Here,     the   sentencing   court   revoked    appellant’s   probation   and

sentenced him on February 11, 2015. Trial counsel filed a timely notice of

appeal, but did not object at sentencing. As for his post-sentencing motion,

appellant concedes that the certificate of service attached to his motion is

dated February 18, 2015, but that the document is time stamped as having

been filed of record on February 24, 2015.          (Appellant’s brief at 13 n.5.)

The sentencing court, however, accepted appellant’s motion for filing and

then denied it. Appellant then filed a timely notice of appeal to this court

and raised the discretionary aspects of his sentence in his Rule 1925(b)

statement.    Thereafter, in its Rule 1925(a) opinion, the sentencing court

acknowledged appellant’s post-sentence motion as timely filed and then it

addressed the merits of appellant’s issues.          (Sentencing court opinion,

7/21/15 at 2-4.)       In its brief, the Commonwealth raised appellant’s

untimeliness, but then addressed appellant’s claims and suggested that we



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address them in the interests of judicial economy because if we find waiver,

appellant will merely raise the claims in a Post Conviction Relief Act 2 petition.

        Because the sentencing court deemed appellant’s post-sentence

motion as timely and addressed the merits of appellant’s challenges to the

discretionary aspects of sentence in its Rule 1925(a) opinion, and because

the Commonwealth also addressed the merits of appellant’s claims in its

brief, we find that appellant’s claims are properly before us.

             Sentencing is a matter vested in the sound discretion
             of the sentencing judge, whose judgment will not be
             disturbed absent an abuse of discretion. Appellant
             challenges the discretionary aspects of sentencing
             for which there is no automatic right to appeal. This
             appeal is, therefore, more appropriately considered a
             petition for allowance of appeal. Two requirements
             must be met before a challenge to the judgment of
             sentence will be heard on the merits. First, the
             appellant must set forth in his brief a concise
             statement of reasons relied upon for allowance of
             appeal with respect to the discretionary aspects of
             his sentence. Second, he must show that there is a
             substantial question that the sentence imposed is not
             appropriate under the Sentencing Code.

             The determination of whether a particular issue
             raises a substantial question is to be evaluated on a
             case-by-case basis.

Bromley, 862 A.2d at 604 (citation omitted).

        Appellant has set forth a concise statement of reasons relied upon for

allowance of appeal with respect to the discretionary aspects of his sentence

pursuant to Pa.R.A.P. 2119(f). Moreover, it is within the scope of our review


2
    42 Pa.C.S.A. §§ 9541-9546.


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to consider challenges to the discretionary aspects of sentence in an appeal

following a probation revocation. Commonwealth v. Ferguson, 893 A.2d

735, 737 (Pa.Super. 2006).       “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. Simmons, 56 A.3d 1280, 1283 (Pa.Super.

2012) (citation omitted). “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.” Id. at 1284 (citation omitted).

      Here, appellant’s challenge focuses upon the trial court’s failure to

order a pre-sentencing investigation report (“PSI”) and the trial court’s

failure to conduct an appropriate colloquy at the sentencing hearing. This

challenge presents a substantial question. See Commonwealth v. Kelly,

33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n 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 [raises] a substantial question.”).

      At the outset, we note that based upon our review of the record before

us, we are unable to determine what “technical violations” necessitated

appellant’s February 11, 2015 probation-violation hearing.           Although

probation officer Heather Bradford testified that “[d]ue to [appellant’s]



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technical violations, we are recommending that his probation be revoked,”

she stated that she is not appellant’s probation officer, and that after

speaking with her supervisor prior to the February 11, 2015 hearing, her

understanding as to why revocation was recommended was that appellant

“had a history of passive aggressiveness.” (Notes of testimony, 2/11/15 at

2-3.) Ms. Bradford then testified to an incident involving another probation

officer that resulted in appellant’s probation being revoked on July 15, 2013.

(Id. at 3.)     Ms. Bradford never definitively articulated what “technical

violations” necessitated the subject probation-violation hearing.       Although

she testified that appellant assaulted a resident at a halfway house, she then

testified that simple assault charges filed against appellant in connection

with that incident were withdrawn on December 3, 2014.                (Id. at 3.)

Ms. Bradford offered no further testimony concerning that alleged incident.

Therefore, we are unable to discern what “technical violations” necessitated

the probation-violation hearing that is the subject of this appeal.

      Additionally, at the subject hearing, the record reflects that the

sentencing court addressed previous hearings that it held in connection with

appellant and this case, as follows:

              THE COURT: Mr. Rhody, this is our sixth hearing,[ 3]
              and I have done whatever I could within my power
              to get you on the straight and narrow to get you to
              comply with the terms and conditions of your

3
  The record reflects that the probation-revocation hearing that is the
subject of this appeal was the fourth hearing that appellant had before the
sentencing court.


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            probation. I have been supervising you over two
            years.     Well, it’s been almost three years.      I
            originally sentenced you and allowed you to live in
            Westmoreland County.        As a result, one of the
            sheriffs found you were living in a communal type of
            situation where there were many children around,
            and there were many houses very close, and this
            was in spite of the fact that you knew you weren’t to
            have any contact with minors.

            We had a hearing because you apparently decided
            you were going to go on a camping trip to Dubois,
            and you did this when you weren’t allowed to leave
            the jurisdiction. You failed two polygraphs, and the
            polygraphs indicated you had contact with minors
            against the terms and conditions of your probation,
            and that you had used the internet, and you were
            drinking.     On top of all of that, you weren’t
            participating in therapy.

Id. at 4-5. The conduct of appellant described by the sentencing court in

the above colloquy, however, constituted the reasons why the sentencing

court revoked appellant’s probation and sentenced him to 10 to 20 months’

incarceration in a prior proceeding that took place on July 15, 2013. With

respect to the instant probation revocation and sentencing hearing, the

sentencing court merely stated:

            THE COURT: You were in alternative housing at
            Remnant House, and you got in a fight there, and
            you were thrown out.[4]        You have been
            incarcerated, and you are in total noncompliance
            with your probation. This is my sixth hearing.[5]

4
  Nothing in the record demonstrates that appellant was “thrown out” of
alternative housing.
5
  Again, the record reflects that the probation-revocation hearing that is the
subject of this appeal was the fourth hearing that appellant had before the
sentencing court.


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            You have worn me out.           I can’t supervise you
            [anymore]. Somebody else has to do it. For the
            reasons I have stated at the CC 201111813, I revoke
            your probation and order you to serve five to ten
            years at the State Correctional Institution at Camp
            Hill, with credit for the time you have served on this
            case.

Id. at 6.

      The above colloquy fails to satisfy Pa.R.Crim.P. 702.6         Although a

sentencing court may dispense of a PSI, it must place its reasons for doing


6
            Rule 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;

                        (b)   when the defendant is less
                              than 21 years old at the time
                              of conviction or entry of a plea
                              of guilty; or

                        (c)   when a defendant is a first
                              offender in that he or she has
                              not heretofore been sentenced
                              as an adult.



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so on the record.7     Id.; see also Commonwealth v. Flowers, 950 A.2d

330, 332-333 (Pa.Super. 2008).

        Finally, technical non-compliance with Rule 702(A)(2) might be

rendered harmless when the sentencing court elicits sufficient information

during the colloquy to substitute for a PSI.        Flowers, 950 A.2d at 333

(citation omitted).    A court’s previous contact with an appellant, however,

does not approach the level of thoroughness afforded by a properly-crafted

PSI report.8 Id.




                    (3)   The pre-sentence investigation report
                          shall include information regarding the
                          circumstances of the offense and the
                          character of the defendant sufficient to
                          assist the judge in determining sentence.

                    (4)   The pre-sentence investigation report
                          shall also include a victim impact
                          statement as provided by law.
7
  We note that in its Rule 1925(a) opinion, the sentencing court stated that it
dispensed with the PSI report because appellant waived it. The record,
however, reflects that appellant waived the PSI report in his original
sentencing hearing because of the negotiated plea and the agreement to
probation, as opposed to incarceration. (Notes of testimony, 1/4/12 at 8.)
8
    A properly crafted PSI report must address at least the following factors:

              (A)   a complete description of the offense and the
                    circumstances surrounding it, not limited to
                    aspects developed for the record as part of the
                    determination of guilt;

              (B)   a full description of any prior criminal record of
                    the offender;



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           (C)   a description of the educational background of
                 the offender;

           (D)   a description of the employment background of
                 the offender, including any military record and
                 including his present employment status and
                 capabilities;

           (E)   the social history of the offender, including
                 family relationships, marital status, interests
                 and activities, residence history, and religious
                 affiliations;

           (F)   the offender’s medical history and, if desirable,
                 a psychological or psychiatric report;

           (G)   information about environments to which the
                 offender might return or to which he could be
                 sent should probation be granted;

           (H)   supplementary reports from clinics, institutions
                 and other social agencies with which the
                 offender has been involved;

           (I)   information about special resources which
                 might be available to assist the offender, such
                 as treatment centers, residential facilities,
                 vocational training services, special educational
                 facilities, rehabilitative programs of various
                 institutions to which the offender might be
                 committed, special programs in the probation
                 department, and other similar programs which
                 are particularly relevant to the offender’s
                 situation;

           (J)   a summary of the most significant aspects of
                 the report, including specific recommendations
                 as to the sentence if the sentencing court has
                 so requested.

Flowers, 950 A.2d at 333 n.2 (citations omitted).


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            Indeed, this Court has held expressly that even
            where repeated probation violation hearings have
            rendered the sentencing judge substantially familiar
            with the defendant’s criminal history, a PSI report
            remains necessary.         See Commonwealth v.
            Carter, 336 Pa. Super. 275, 485 A.2d 802, 804 (Pa.
            Super. 1984) (vacating judgment of sentence based
            upon trial judge’s failure to obtain a PSI report
            following second Gagnon[9] revocation hearing).
            This mandate springs from the imperative of
            individualized sentencing; “[e]ach person sentenced
            must receive a sentence fashioned to his or her
            individual needs.” Id. To achieve that objective, the
            trial judge, before imposing sentence, even on a
            probation or parole revocation, must actively explore
            the defendant’s character and his potential response
            to rehabilitation programs. See id. (admonishing
            that the responsibility of a sentencing judge to
            consider the character of the defendant in
            conjunction with the offense “is no less urgent where
            the defendant comes before the court as a probation
            violator”). Indeed, given the defendant’s failure to
            respond to the original sanction of probation, the
            need for scrutiny of his character and underlying
            social influences is arguably enhanced, confirming
            the need of a current PSI report contoured to reflect
            the defendant’s most recent offenses. Such a report
            is invaluable to informed sentencing and cannot be
            duplicated by the trial court’s “unconfirmed assertion
            of familiarity with the [defendant’s] prior record[.]”

Flowers, 950 A.2d at 333-334 (citation omitted).

      Here, although this court has great respect for the experience of the

learned sentencing judge, and although we can understand her frustration

with appellant, we cannot find that the record contains sufficient information



9
   Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process requires
appellant to be given preliminary (Gagnon I) and final (Gagnon II) hearing
prior to revoking probation).


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to have enabled her to fashion a sentence to meet appellant’s individual

needs, to guard against recidivism, to promote rehabilitation, and to balance

the interests of society in preventing future criminal conduct by the

defendant against the possibility of rehabilitating the defendant outside of

prison.    Consequently, we vacate judgment of sentence and remand for

re-sentencing on the basis of a PSI report or, alternatively, a thorough

colloquy that sets forth the information that a PSI report would otherwise

provide.

      Judgment of sentence vacated.         Case remanded with instructions.

Jurisdiction relinquished.



      Mundy, J. joins the Memorandum.

      Jenkins, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2016




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