J-S55002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEXANDER THOMAS TAYLOR                    :
                                               :
                       Appellant               :   No. 663 WDA 2018

              Appeal from the Judgment of Sentence April 4, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0017134-2009


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 14, 2019

        Alexander Thomas Taylor (Appellant) appeals from the judgment of

sentence imposed after the trial court revoked his probation. Upon review,

we affirm.

        The trial court recounted the factual and procedural background at

length:

               At a [s]entencing [h]earing held on August 10, 2010, . . . it
        was stipulated that the Affidavit of Probable Cause and relevant
        police reports and any lab reports in this matter formed a
        sufficient basis for Appellant’s guilty plea [to] causing a minor to
        have indecent contact with him, when the minor was less than 13
        years old and not married (Count II) and corruption of a child
        under the age of 18 by inappropriate sexual contact when
        Appellant was over 18 (Count IV).[1] Counts I, III, and V were
        withdrawn. Details of the serious sexual offenses were not
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1).
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     disclosed in open [c]ourt. At the time of the sentencing, Appellant
     was 20 years old.

           By agreement, Appellant was sentenced to a period of
     incarceration for time served with a period of probation of five
     years to follow. He was required to register under the auspices of
     Megan’s Law for a period of ten years. He was to be paroled within
     48 hours and begin his period of five years probation, effective
     August 10, 2010.

            On December 9, 2015, Appellant attended a Probation
     Violation Hearing before this [c]ourt. A pre-sentence report had
     been provided to the [c]ourt. Appellant had established residency
     in the state of Maryland three years earlier and his probation was
     transferred to the Maryland Department of Public Safety and
     Correctional Services. On June 30, 2014, during a maintenance
     polygraph, Appellant admitted to improper contact with a minor.
     On August 21, 2014, Maryland Officials submitted a Probation
     Violation Report. Appellant was charged, but pled not guilty and
     later adjudicated so. A new Probation Violation warrant was
     issued for Appellant due to his technical violation and he was
     extradited and transferred to the Allegheny County Jail. Probation
     requested that Appellant’s probation be revoked and a new period
     of supervision with electronic monitoring be imposed. During
     open [c]ourt, the only reference to the probation violation was in
     the context that Appellant had been sent back from Maryland.

           Appellant was released from [c]ounty jail on November 21,
     2015, and placed on electronic monitoring. Probation reviewed
     the special conditions with Appellant and on December 1, 2015,
     he reported to the probation office. Again, the specific conditions
     were reviewed, and Appellant was also instructed to call and make
     an appointment with any of the sex offender treatment providers
     on a list given [to] him during this meeting. By December 9,
     2015, Appellant had made no calls to anyone. This [c]ourt warned
     Appellant that his next hearing would be his last, because he
     would be put into state time for any further violation.

           The [c]ourt then declared the Probation Violation Hearing a
     Stage 2 hearing and imposed zero tolerance. Probation was
     instructed that [if] Appellant violated the terms of his probation,
     to notify the [c]ourt and another hearing would be scheduled.
     Appellant’s probation was revoked and he was given another five
     years probation, nine months on electronic monitoring, and

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        specific conditions, which [h]is counsel assured the court she had
        reviewed with Appellant twice.

               Appellant’s final Probation Violation Hearing was held before
        this [c]ourt on April 4, 2018. A pre-sentence report was provided
        to the [c]ourt. Appellant had appeared on January 10, 2018 for a
        Gagnon I violation hearing.[2] He had been cited for violations
        including being unsuccessfully discharged from sex offender
        treatment due to lack of progress and continued denial of the
        offenses and lack of motivation.          Noting that this was not
        Appellant’s first violation, as he was in violation of his supervision
        back in 2015, due to violations including out-of-state for sexual
        offenses on children. He had two years treatment in Allegheny
        County and failed to make necessary adjustments and progress
        needed to comply with the terms of his probation. The [p]robation
        department recommended that Appellant’s probation be revoked
        and that this time he be sentenced to a period of incarceration.
        Defense counsel argued that Appellant did not violate his
        probation because he was mentally ill, but trying, and he believed
        he was making progress. Probation countered that he had been
        receiving lack of progress reports from Appellant’s therapist since
        June of 2017, and that issue was discussed with Appellant on a
        monthly basis. In November of 2017, Appellant was confronted
        by group members and admitted to having inappropriate thoughts
        and feelings. Appellant was discharged from treatment also
        because he was denying that any sexual advances occurred in the
        underlying Pennsylvania case.

              This [c]ourt quoted from the pre-sentence report the
        following:

        “The goal      of sex offender treatment is to rehabilitate the
        Defendant     and to prevent further victimization. These goals
        cannot be     attained if the Defendant continues to minimize the
        severity of   his offenses and his deviant behavior.”

              Appellant was reminded that he had multiple occasions to
        make a positive adjustment and had not complied with community
        supervision, that the victims in this case were ages five and seven,
        and that in 2017 he had admitted having past victims in this case,
        but still did not make any progress.
____________________________________________


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

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            Accordingly, Appellant’s probation was revoked and he was
       sentenced to 3½ to 7 years incarceration with credit for time
       served.

Trial Court Opinion, 1/22/19, at 2-5 (citations to notes of testimony omitted).

       On April 16, 2018, Appellant filed a timely post-sentence motion. The

trial court denied the motion and Appellant filed a timely notice of appeal.

Both Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

       Appellant presents two issues for review:

       [1.] WHETHER THE TESTIMONY FAILED TO ESTABLISH, BY A
       PREPONDERANCE OF THE EVIDENCE, THAT [APPELLANT]
       COMMITTED A VIOLATION OF HIS PROBATION?

       [2.] IN REVOKING [APPELLANT’S] PROBATION AND RE-
       SENTENCING HIM, IN THE AGGREGATE, TO 2½-6[3] YEARS’ TOTAL
       STATE CONFINEMENT, WHETHER THE TRIAL COURT ABUSED ITS
       DISCRETION BY IGNORING [APPELLANT’S] REHABILITATIVE
       NEEDS AND THE NEEDS OF THE COMMUNITY, AS REQUIRED BY
       42 Pa.C.S.A. § 9721(b)?

Appellant’s Brief at 6.

       In his first issue, Appellant challenges the sufficiency of the evidence

produced at his Gagnon II hearing, claiming that the Commonwealth “failed

to establish, by a preponderance of the evidence, that he committed a

violation of his probation.” Appellant’s Brief at 19. Appellant does not dispute


____________________________________________


3 Appellant’s April 4, 2018 sentencing order reflects a sentence of 3½ to 7
years of incarceration. See Trial Court Order of Sentence, 4/4/18, at *1. It
appears Appellant subtracted the credit for time served in calculating his
aggregate sentence, which may explain the discrepancy in the length of his
incarceration in his question presented.

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that sex offender treatment was a condition of his probation and that he was

“unsuccessfully discharged from sex offender treatment.” N.T., 4/4/18, at 2.

Rather, Appellant argues that because he was discharged for progressing “too

slowly,” the trial court erred in finding him in violation of his probation.

Appellant’s Brief at 16 (“In other words, [Appellant] was not discharged

because he failed to attend treatment or failed to participate in the program;

rather, [Appellant] was discharged because he was progressing too slowly.”).

He further states:

             In order to sufficiently prove that [Appellant] willfully and
      flagrantly disregarded his duties and obligations of sex offender
      treatment, the Commonwealth needed to present testimony
      explaining how and to what extent [Appellant] performed in
      treatment. The Commonwealth simply did not do that here.
      Instead, the record demonstrates only that, although his progress
      may have been slow in coming, [Appellant] nevertheless was
      making a good-faith effort to participate in, and successfully
      complete, sex offender treatment. Given these circumstances,
      the trial court’s finding of a violation cannot, as a matter of law,
      be sustained, and Appellant’s judgment of sentence must be
      vacated.

Appellant’s Brief at 28-29. We disagree.

      “Revocation 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.”

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citation

omitted).

      Relevant to the revocation of a probationary sentence, Section 9771 of

the Sentencing Code provides:


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     (a) General rule.--The court may at any time terminate
     continued supervision or lessen or increase the conditions upon
     which an order of probation has been imposed.

     (b) Revocation.--The court may revoke an order of probation
     upon proof of the violation of specified conditions of the 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.

     (c) Limitation on sentence of total confinement.--The court
     shall not impose a sentence of total confinement upon revocation
     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.

     (d) Hearing required.--There shall be no revocation or increase
     of conditions of sentence under this section except after a hearing
     at which the court shall consider the record of the sentencing
     proceeding together with evidence of the conduct of the defendant
     while on probation. Probation may be eliminated or the term
     decreased without a hearing.

42 Pa.C.S.A. § 9771.

     We recognize:

     The first step in a Gagnon II revocation decision involves a wholly
     retrospective factual question: whether the parolee or probationer
     has in fact acted in violation of one or more conditions of his parole
     or probation. It is this fact that must be demonstrated by
     evidence containing probative value. Only if it is determined that
     the parolee or probationer did violate the conditions does the
     second question arise: should the parolee or probationer be

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      recommitted to prison or should other steps be taken to protect
      society and improve changes of rehabilitation?

Commonwealth v. Moriarty, 180 A.3d 1279, 1286 (Pa. Super. 2018)

(citation omitted).       “Unlike a criminal trial where the burden is upon the

Commonwealth to establish all of the requisite elements of the offenses

charged   beyond      a    reasonable   doubt,   at   a   revocation   hearing   the

Commonwealth need only prove a violation of [] probation by a preponderance

of the evidence.” Id. (citation omitted).

      The Pennsylvania Supreme Court’s recent decision in Commonwealth

v. Foster, 214 A.3d 1240 (Pa. 2019), addresses when a defendant may be

found to have violated probation. In Foster, the defendant was on probation

when he was detained by his probation officer for posting photographs to his

social media accounts “depict[ing] guns, drugs, large amounts of money and

his sentencing sheet from his plea agreement[.]” Id. at 1243. At defendant’s

revocation hearing, the Commonwealth argued that posting the photos was a

violation of probation because the photos depicted contraband belonging to

the defendant. The Commonwealth asserted that the defendant “was using

his social media accounts as an ad agency to sell the drugs.” Id. However,

“[o]ther than the photographs in question, the Commonwealth presented no

evidence at either [violation of probation] hearing in support of its

contentions.   At no time did the Commonwealth mention the conditions of

[defendant’s] current probation, or suggest that his conduct violated a specific

condition.” Id. at 1244.



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      At the conclusion of the defendant’s Gagnon II hearing, the trial court

found him in violation of his probation and resentenced him to a period of

incarceration. Foster, 214 A.3d at 1244. The defendant appealed, and this

Court affirmed. Our Supreme Court granted allowance of appeal to address

the following issue:

      Did not the Superior Court err by ignoring the governing statute
      and due process protections that permit revocation only for a
      violation of specified conditions of probation, and by holding that
      [defendant’s] inappropriate offensive social media posting, that
      violated no condition of probation, warranted revocation?

Id. at 1245-46.

      In reversing this Court, the Supreme Court held that a court may find a

defendant in violation of probation only if the defendant has violated one of

the “specific conditions” of probation or committed a new crime. Id. at 1250.

Therefore, in order to revoke probation:

      The [] court must find, based on the preponderance of the
      evidence, that the probationer violated a specific condition of
      probation or committed a new crime to be found in violation.
      Absent such evidence, a violation of probation does not occur
      solely because a judge believes the probationer’s conduct
      indicates that probation has been ineffective to rehabilitate or to
      deter against antisocial conduct.

Id. at 1243.

      Instantly, Appellant’s case is distinguishable from Foster because the

trial court found Appellant to have violated “a specific condition” of his

probation. In its December 9, 2015 sentencing order, the trial court specified:

      Sex Offender Court - Special Conditions: [Appellant] is to comply
      with the Special Conditions of the Sex Offender Court. Other:

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     [Appellant] is placed on ZERO TOLERANCE, per SOC Review
     Hearing on 12/9/15.

Trial Court Order, 12/9/15, at 1. As noted above, Appellant does not argue

that sex offender treatment was not part of the “Special Conditions of Sex

Offender Court.”

     On December 27, 2017, the Commonwealth filed a Gagnon I Probation

Violation Report in which Appellant’s probation officer requested a Gagnon II

hearing. The report states:

     [Appellant’s] Charge Specific Special Conditions include:
     “[Appellant] shall attend and participate in a mental health
     treatment program and/or sex offender treatment
     program as approved and directed by the probation/parole
     officer . . .”

     [Appellant] is currently in violation of PROBATION by reason of
     the following:

     Following his previous revocation hearing in December of 2015,
     [Appellant] started attending sex offender treatment with Mercy
     Behavioral Health-The Gatehouse. Unfortunately, despite having
     attended regularly for approximately two years and multiple
     warnings regarding his treatment progress, [Appellant] was
     unsuccessfully discharged from his Court ordered sex
     offender treatment program on 12-6-17, due to “Failure to
     follow through with your recommended treatment plan”
     and “Continued denial of the offense(s) and lack of
     motivation.” . . .

     The goals of sex offender treatment are to rehabilitate [Appellant]
     and prevent further victimization. These goals cannot be attained
     if [Appellant] continues to minimize the severity of his offense and
     deviant behaviors.      [Appellant] has been provided multiple
     opportunities to make positive adjustments and comply with
     community supervision, namely his Court ordered sex offender
     treatment program.




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        It is respectfully recommended a Gagnon II Violation Hearing be
        held; at which time the Probation Department will recommend
        that [Appellant’s] probation be revoked, and a period of
        incarceration be imposed.

Gagnon I Probation Violation Report, 12/27/17, at 2 (headings omitted,

emphasis added).

        The trial court convened a Gagnon II hearing at which Appellant’s

probation officer, Pedro Hersan, testified that Appellant was “unsuccessfully

discharged from sex offender treatment due to lack of progress and continued

denial of the offense and lack of motivation.” N.T., 4/4/18, at 2.      Further

noting that Appellant was two years into treatment and failed “to make the

necessary adjustments and progress needed to comply,” Mr. Hersan

recommended that the trial court revoke Appellant’s probation and resentence

him to a period of incarceration.    Id. at 2-3. On April 4, 2018, the court

revoked Appellant’s probation and resentenced him to incarceration. Id. at

9-10.

        Our review confirms that Appellant’s probation officer filed a probation

violation report because Appellant failed to meet the specific condition

requiring him to attend and participate in sex offender treatment. Appellant

concedes that he was discharged from sex offender treatment. See e.g.,

Appellant’s Brief at 16. Thus, based on a preponderance of the evidence, the

trial court concluded that Appellant violated his probation. Foster, 214 A.3d

at 1243; see also N.T., 4/4/18, at 10. Appellant’s first issue challenging the

sufficiency of the evidence lacks merit.



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      In his second issue, Appellant challenges the discretionary aspects of

his sentence. We recognize:

      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)

(citations omitted).     “Also, 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.”          Id. at

1286-87 (citation omitted).

      Further, “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute, and must be considered a petition for permission

to appeal.”   Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.

Super. 2014). “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a


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plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his sentencing claim in a timely post-sentence motion, filing a timely notice of

appeal, and including in his brief a Rule 2119(f) concise statement.        See

Appellant’s Brief at 30-36. Therefore, we examine whether Appellant presents

a substantial question.

      Appellant’s discretionary claim alleges the trial court, “ignor[ed

Appellant’s] rehabilitative needs and the needs of the community, as required

by 42 Pa.C.S.A. § 9721(b)[.]”     Appellant’s Brief at 6; see 42 Pa.C.S.A. §

9721(b) (sentencing court shall follow general principle that sentence imposed

should call for confinement that is consistent with the protection of the public,

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). This claim

presents a substantial question. See Commonwealth v. Derry, 150 A.3d

987, 994-95 (Pa. Super. 2016) (claim that a VOP sentencing court failed to

consider the factors under 42 Pa.C.S.A. § 9721(b) raises a substantial

question).

      Appellant also claims that the trial court relied upon an impermissible

factor in imposing an excessive sentence.      See Appellant’s Brief at 33-34.


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This claim also raises a substantial question.        See Commonwealth v.

Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (“This Court has held that a

claim that the sentence is excessive because the trial court relied on

impermissible factors raises a substantial question.”) (citation omitted).

      Turning to the merits, we reiterate:

      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. § 9771(b).
      However, the imposition of total confinement upon revocation
      requires a finding that either “(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).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote

omitted). Further:

      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle 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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . 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.

42 Pa.C.S.A. § 9721(b).

      Following revocation, a sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence of total confinement, 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. Crump, 995


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A.2d 1280, 1283 (Pa. Super. 2010). Also, “[w]hen a sentencing court has

reviewed a pre-sentence investigation report, we presume that the court

properly considered and weighed all relevant factors in fashioning the

defendant’s sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v.

Fowler, 893 A.2d 758, 767 (Pa. Super. 2006)).

      Here, the trial court stated that it had read and considered Appellant’s

pre-sentence investigation report. N.T., 4/4/18, at 2. “Our Supreme Court

has determined that where the trial court is informed by a [pre-sentence

investigation report], it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”        Commonwealth v.

Edwards, 194 A.3d 625, 637-38 (Pa. Super. 2018) (citation omitted), appeal

denied, 202 A.3d 41. Accordingly, we conclude that the trial court considered

the required factors and considerations, including those delineated in Section

9721(b) of the Sentencing Code, in sentencing Appellant.

      Appellant further claims that the trial court “improperly considered

conduct for which [Appellant] went to trial on in Maryland, and was fully

acquitted by a jury of his peers.” Appellant’s Brief at 45. Appellant contends

it was error for the trial court to make the following statement:

      But [Appellant] did fail the polygraph regarding sexual contact
      with the two-year-old girl in Maryland. In that case he was found
      not guilty, although [Appellant] did admit that the offense had
      occurred.

N.T., 4/4/18, at 7-8.

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      With respect to the consideration of impermissible sentencing factors,

we have explained:

      It is an abuse of discretion, as a denial of due process of law, for
      the sentencing court to consider irrelevant factors during
      sentencing.    Thus, previous sentences have been vacated
      because, in imposing sentence, the sentencing court relied upon,
      e.g.: the defendant’s decision to stand trial rather than plead
      guilty, Commonwealth v. Bethea, [] 379 A.2d 102, 106, 107
      ([Pa.]    1977);    prior   constitutionally   infirm  convictions,
      Commonwealth v. Calvert, [] 344 A.2d 797 ([Pa.] 1975); the
      defendant’s political ideology, Commonwealth v. Berrigan, []
      535 A.2d 91 ([Pa. Super.] 1987) (en banc) . . .; unverified
      hearsay, id.; and the defendant’s status as a naturalized citizen,
      Commonwealth v. Dugan, [] 483 A.2d 965 (Pa. Super. 1984).

Commonwealth v. Smithton, 631 A.2d 1053, 1056-57 (Pa. Super. 1993).

      Likewise, “[i]t is beyond peradventure that when a defendant has been

exonerated in the legal system, either by a jury or on constitutional grounds,

with respect to a criminal act, that act cannot be used to enhance a sentence.”

Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006) (citations

omitted). However, “[i]t is not enough that a trial court simply entertained

impermissible evidence in its deliberations.”   Smithton, 631 A.2d at 1057

(emphasis in original).    “A court is ordinarily presumed to be capable of

identifying and properly disregarding all but the most prejudicial and

inflammatory evidence.” Id. (citation omitted). “Thus, a sentence must be

vacated only where it reasonably appears from the record that the trial court

relied in whole or in part upon such an impermissible factor.” Id. (emphasis

in original, citation omitted).




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      After careful consideration, we conclude the trial court did not rely on

an impermissible factor in imposing Appellant’s sentence. In reviewing the

record, including the notes of testimony from Appellant’s hearing, it is clear

that while the trial court made a passing reference to an impermissible factor,

i.e., Appellant’s case in Maryland, the trial court did not rely on that factor in

sentencing Appellant. The trial court articulated its reasoning as follows:

           Okay. I do find that it’s some mitigation, that you have
      been employed and that there were times when you were in
      compliance. However - - and I’m going to quote from the
      presentence report.

            “The goal of sex offender treatment is to rehabilitate
      [Appellant] and to prevent further victimization. These goals
      cannot be attained if [Appellant] continues to minimize the
      severity of his offenses and his deviant behaviors.”

             You have been provided with multiple occasions to make a
      positive adjustment and have not complied with community
      supervision. I would also add that you -- in 2007 you admitted
      having passed [sic] victims in the case, but still did not make any
      progress. I would also add that the victims in the case which are
      before me were ages five and seven. For these reasons I find
      it is not appropriate for County supervision. And I’m going to at
      Count 2 revoke and order you to serve three and a half to seven
      years with credit for time served. . . .

N.T., 4/4/18, at 9-10 (emphasis added).

      Consistent with the foregoing, we find no merit to Appellant’s claim that

the trial court relied on an impermissible factor in imposing his sentence.

      Judgment of sentence affirmed.

      Judge McLaughlin joins the memorandum.

      Judge Colins files a dissenting memorandum.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2019




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