J-S68006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

SHAWN KNIGHT,

                         Appellant                No. 2229 EDA 2013


       Appeal from the Judgment of Sentence Entered June 27, 2013
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0002728-2010
                         CP-51-CR-0002729-2010


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED DECEMBER 15, 2015

      Appellant, Shawn Knight, appeals from the judgment of sentence of an

aggregate term of 2½ to 5 years’ imprisonment, imposed after the court

revoked his term of probation based on a new conviction in an unrelated

case. Appellant challenges the discretionary aspects of his sentence. After

careful review, we vacate the judgment of sentence and remand the case for

re-sentencing.

      The procedural history of this case was summarized by the trial court

in its Pa.R.A.P. 1925(a) opinion as follows:

            While on the Honorable Shreeves-Johns[’] probation for
      the crimes of theft by deception (M1), theft by unlawful taking
      (M1) and unauthorized use of a motor vehicle (M2), [Appellant],
      along with a co-conspirator, committed a gunpoint robbery of a
      Best Buy retail location and held the manager at gunpoint while
      tying up several employees using plastic zip-ties. On April 11,
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      2012, Judge Trent sentenced [A]ppellant to nine (9) to twenty
      (20) years[’] imprisonment for the armed robbery.

             This court conducted a violation of probation hearing on
      June 27, 2013. The court found [A]ppellant in direct violation of
      Judge Shreeves-Johns[’] probation. In view of the fact that
      [Appellant] was on probation for serious charges when he
      participated in this armed robbery of a Best Buy retail location,
      this [c]ourt sentenced him to two and one-half (2½) to five (5)
      years[’] incarceration consecutive to any other sentences being
      served.

            Appellant filed a timely Motion to Reconsider Sentence
      which was denied. A Notice of Appeal to the Superior Court of
      Pennsylvania was timely filed on July [1]9, 2013. An Order was
      issued pursuant to Pa.R.A.P. 1925(b) and a timely statement
      [of] errors complained [of] on appeal was filed on May 29, 2014.

Trial Court Opinion (TCO), 1/16/15, 1-2.

      On appeal, Appellant raises the following sole issue for our review:

      Did not the lower court violate the tenets of the Sentencing
      Code, which mandate individualized sentencing, where the court
      utterly failed to consider [A]ppellant’s background, character[,]
      or rehabilitative needs and imposed an excessive sentence of
      two and a half to five years of consecutive confinement for two
      misdemeanor theft cases, on a violation of probation?

Appellant’s Brief at 3.

      Initially, we note that Appellant’s allegations relate to the discretionary

aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We 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. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and

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         (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).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 179 (Pa. Super. 2010) (citations

and internal quotations omitted).

      Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and

included a Rule 2119(f) statement in his appellate brief in compliance with

the Pennsylvania Rules of Appellate Procedure.            Thus, we proceed to

determine whether Appellant has raised a substantial question to meet the

fourth requirement of the four-part test outlined above.

      As we explained in Moury:

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists “only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Id. at 170 (citations and internal quotations omitted).

      In his Rule 2119(f) statement, Appellant asserts that the trial court

abused its discretion by failing to consider his rehabilitative needs, order a

pre-sentence report, inquire about his individual circumstances, or state any

reason on the record for the sentence imposed. Appellant’s Brief at 8. We




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look to relevant case law to guide us in determining whether Appellant’s

assertions raise a substantial question.

      In Commonwealth v. Lewis, 595 A.2d 593 (Pa. Super. 1991), rev’d

on other grounds, 636 A.2d 619 (Pa. 1994), the appellant similarly claimed

that the trial court failed to consider his background, character, or prior

record at the time of sentencing, failed to state a reason for the sentence

imposed, and failed to order a pre-sentence report.          In support of our

conclusion that a substantial question existed in Lewis, we explained that:

      42 Pa.C.S. § 9725 mandates that the sentencing court consider
      not only the nature and circumstances of the crime, but also the
      history, character, and condition of the defendant.         Thus,
      appellant’s argument that the court focused solely on the crime
      advances a colorable claim that the sentencing court acted in a
      manner contrary to the Sentencing Code. Therefore, it is clear
      that it raises a substantial question that the sentence imposed is
      inappropriate under the Sentencing Code as [a] whole and
      supports an appeal from the discretionary aspects.

Lewis, 595 A.2d at 599-600. See also Commonwealth v. Flowers, 950

A.2d 330 (Pa. Super. 2008) (holding that an allegation that the trial court

imposed a sentence without considering the requisite statutory factors or

stating adequate reasons for dispensing with a pre-sentence report raises a

substantial question); Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.

Super. 1997) (finding that whether the trial court abused its discretion by

failing to state of record any reason for the sentence imposed constitutes a

substantial question for purposes of allowance of appeal).




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      Based on our review of relevant case law, we deem Appellant’s issues

as constituting substantial questions regarding the appropriateness of the

sentence imposed. Therefore, we grant Appellant’s petition for allowance of

appeal and address the merits of his claims.

      When we consider an appeal from a sentence imposed following the

revocation of probation, our standard of review is well settled:

      Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion. An abuse of discretion requires the trial court to have
      acted with manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support so as to be clearly
      erroneous. It is also now accepted that in an appeal following
      the revocation of probation, it is within our scope of review to
      consider challenges to both the legality of the final sentence and
      the discretionary aspects of an appellant’s sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010)

(citations omitted).

      Appellant argues that the trial court “failed to engage in any

meaningful individualized sentencing,” as it failed to order a pre-sentence

investigative (PSI) report and did not inquire into his background, character,

or rehabilitative needs prior to imposing his sentence. Appellant’s Brief at

10. After careful review, we are constrained to agree.

      The Pennsylvania Rules of Criminal Procedure vest a sentencing judge

with the discretion to order a PSI report as an aid in imposing an




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individualized sentence.       Commonwealth v. Carrillo-Diaz, 64 A.3d 722,

725 (Pa. Super. 2013). See Pa.R.Crim.P. 702(A)(1), (2)(a).1

        The first responsibility of the sentencing judge is to be sure that
        he has before him sufficient information to enable him to make a
        determination of the circumstances of the offense and the
        character of the defendant. Thus, 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 the offense, not limited to those of
        record, as well as the defendant’s personal history and
        background. … The court must exercise the utmost care in
        sentence determination if the defendant is subject to a term of
        incarceration of one year or more….

        To assure that the trial court imposes sentence in consideration
        of both the particular circumstances of the offense and the
        character of the defendant, our Supreme Court has specified the
        minimum content of a PSI report.




____________________________________________


1
    Rule 702 provides, in relevant part, as follows:

        (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).



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Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000).                           In

sum, the “essential and adequate elements” of a PSI report include the

following:    a complete description of the offense and the circumstances

surrounding it; a full description of any prior criminal record of the offender;

a description of the educational background of the offender; a description of

the   employment       background      of      the   offender,   including   his   present

employment status and capabilities; the social history of the offender; the

offender’s medical history; information about environments to which the

offender might return; supplementary reports from clinics, institutions and

other social agencies with which the offender has been involved; and

information about special resources which might be available to assist the

offender.    Id. at 728, 729.         While case law does not require that the

sentencing court order a PSI report under all circumstances, “the cases do

appear to restrict the court’s discretion to dispense with a PSI report to

circumstances where the necessary information is provided by another

source.” Carillo-Diaz, 64 A.3d at 726.

       In the instant case, no PSI report was ordered, nor is there evidence

that the court utilized another source to provide it with the information

needed in order to properly issue an individualized sentence.2 It is clear that
____________________________________________


2
   In its Rule 1925(a) opinion, the trial court states that “the appellant’s
background and character were set forth in his Gagnon-II Summary
demonstrating a despicable robbery of a Best Buy retail location whereby a
firearm was held to another human being’s head while others were tied up
(Footnote Continued Next Page)


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in the absence of a PSI report, the trial court must conduct a detailed pre-

sentence inquiry which delves into the factors found within a proper PSI

report.   Commonwealth v. Hill, 761 A.2d 1188, 1190, 1992 (Pa. Super.

2000) (citing Goggins, 748 A.2d at 728-730).      However, the record is also

completely lacking of any pre-sentence inquiry by the court.       The hearing

transcript reveals the following, very limited, colloquy prior to the imposition

of sentence:

      THE COURT: All right, Mr. Knight, anything you want to say to
      me today?

      [APPELLANT]:      Yes.     You know, I violated and I take full
      responsibility for violating. Right now I’m sentenced to 9 to 20
      years and I’m using this time to get my life together because I
      was young and I made mistakes. And, I have two kids, and I
      just want to do what I need to do to get back out there to my
      kids and my family.         I know what I did and I take full
      responsibility. I was wrong. And, I like said, I apologize to the
      Court, Your Honor.

      [COMMONWEALTH]: If I may, Your Honor? [Appellant] went
      with another male to a Best Buy and held the manager at
      gunpoint and actually tied up several employees using plastic zip
      ties, Your Honor, and demanded money and that someone open
      the safe.
                       _______________________
(Footnote Continued)

and forced to reveal the location of the safe.” TCO at 2. We are unable to
locate the “Gagnon-II Summary” in the record and, therefore, are unable to
identify what information is contained in the summary. Moreover, from the
court’s opinion, it seems that the summary may have only detailed the facts
of Appellant’s new offense; nothing in the court’s opinion indicates what
character or background information about Appellant was provided. In the
event that the trial court may be referring to the transcript from the June
27, 2013 sentencing hearing, we note that the information contained therein
is very limited and is not sufficient to enable the court to issue a proper
individualized sentence.



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       THE COURT: Is there anything you’d like to say?

       [APPELLANT’S COUNSEL]: Your Honor, I don’t disagree with the
       Commonwealth, but Mr. Knight was sentenced to a very serious
       amount of time for it. He’ll be doing the next 9 to 20 years in
       custody allowing for another 7 years, at least, for supervision
       after that. Which will take his supervision into his 50’s. I think
       it’s a very serious sentence.

N.T. Sentencing, 6/27/13, at 3-4.              The court did not ask any additional

questions of Appellant, nor did the court offer any explanation for its

decision not to order a PSI.3

       The foregoing colloquy merely restates the facts of the crime

underlying Appellant’s probation violation and focuses on the seriousness of

that new crime for which Appellant had already been sentenced. It provides

very little information regarding Appellant’s background or character and is

insufficient to take the place of a PSI report. In Flowers, even though the

trial court had previous contact with the appellant at his original sentencing,

we found the court’s consideration on the record of only factors germane to

either his original offense or his current violation of probation insufficient to

replace the thoroughness of a properly crafted PSI report, and we vacated

the judgment of sentence and remanded for re-sentencing. Flowers, 950

A.2d at 334.          Similarly, in Hill, we found the trial court’s colloquy


____________________________________________


3
   We find it worthy to note that the judge presiding over Appellant’s
revocation/resentencing hearing inherited Appellant’s case from the
Honorable Shreeves-Johns, who had presided over the prior proceedings in
this case; thus, we cannot presume that the current judge was familiar with
Appellant’s background and character from prior dealings with him.



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inadequate to replace a PSI report where the court did not examine the

social and family history of the appellant, beyond counsel’s statement that

the appellant had a grandson, and where the court failed to inquire about

the appellant’s employment background, education, mental status, medical

history, residence, participation in social programs, or his interests and

activities. Hill, 761 A.2d at 1192.    We conclude that the trial court’s failure

to order a PSI report or to conduct an appropriate pre-sentence inquiry in

the present case is comparable to Flowers and Hill, and constituted an

abuse of discretion.    See Flowers, 950 A.2d at 334 (finding an abuse of

discretion by the trial court for failure to order a PSI report).

      Appellant further argues that his sentence should be vacated because

the trial court failed to state any reason on the record for the sentence it

imposed. Appellant’s Brief at 8, 10. We have stated, “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 failure to comply with these provisions shall be grounds for vacating the

sentence or resentence and resentencing the defendant.” Commonwealth

v.   Colon,    102     A.3d   1033,    1044    (Pa.   Super.    2014)   (quoting

Commonwealth v. Cartrette, 83 A.3d 1030, 1040-41 (Pa. Super. 2013).

See also Commonwealth v. Aldinger, 436 A.2d 1196 (Pa. Super. 1981)

(stating that a trial court must state its reasons on the record when it

imposes sentence following revocation of probation).

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      In Commonwealth v. Riggins, 377 A.2d 140 (Pa. Super. 1977), we

set forth in depth the reasons for this requirement. We reiterate, in part, as

follows:

      The benefits of requiring the trial court to state its reasons for
      the imposition of its sentence are manifold: First, requiring the
      trial court to articulate its reasons for selecting a sentence will
      promote more thoughtful consideration of relevant facts and will
      help rationalize the sentencing process. It will safeguard against
      arbitrary decisions and prevent consideration of improper and
      irrelevant factors. It will minimize the risk of reliance upon
      inaccurate information contained in the presentence report. …
      Finally, a statement of reasons will be invaluable in aiding
      appellate courts to ascertain whether the sentence imposed was
      based upon accurate, sufficient and proper information.

Id., at 147-148.

      Additionally, we have noted that the reasons stated for a sentence

imposed should reflect the court’s consideration of the criteria of the

Sentencing Code, 42 Pa. C.S. § 9701 et seq., the circumstances of the

offense, and the character of the offender.     Commonwealth v. DeLuca,

418 A.2d 669, 670 (Pa. Super. 1980). Although the sentencing court need

not undertake a lengthy disclosure of its reasons for imposing a sentence, or

specifically reference the statute in question, the record as a whole must

reflect the court’s consideration of the facts of the crime and character of the

offender. Colon, 102 A.3d at 1044.

      In the case at bar, the trial court failed to state any reason whatsoever

on the record for the sentence imposed on Appellant.        After hearing very




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limited statements at the sentencing hearing from Appellant, his probation

officer, and the Commonwealth, the transcript merely reflects the following:

       THE COURT: All right.

       (A discussion is held off the record.)

       THE COURT: The sentence of this [c]ourt is two and a half to
       five years, then, to run consecutive.

       [APPELLANT’S COUNSEL]: Mr. Knight, the [c]ourt did give you
       two and a half to five years on your probation cases, it run[s]
       consecutive[] to the 9 years you’re now serving. If you would
       like the [c]ourt to reconsider, you will have to file it in 30 days
       with the Public Defender’s Office. If you would [ ] like me to file
       the reconsideration or appeal, Mr. Knight –

       [APPELLANT]: Yes, I’d like a reconsideration, because I feel as
       though that the sentence –

       [APPELLANT’S COUNSEL]: Mr. Knight, it’s your right to have me
       file for reconsideration for you.

       THE COURT: Okay. Thank you.

       (Matter concluded.)

N.T. Sentencing at 4-5. We have no way of knowing what was discussed off

the record. Regardless, the trial court is required to state its reason for the

judgment of sentence imposed on the record, which it clearly did not do.4

____________________________________________


4
  We note that the only reason stated by the trial court for the sentence
imposed was given after-the-fact in its Rule 1925(a) opinion:

       Appellant   was    arrested    for  an    egregious  crime   as
       aforementioned, while on probation for various theft charges.
       He pled guilty to Robbery and Conspiracy charges and this court
       used its discretion in deciding that confinement was necessary
       for the protection of the general public. [Appellant’s] conduct
       demonstrated to the [c]ourt that he is a danger to the
(Footnote Continued Next Page)


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      In Commonwealth v. Mathews, 486 A.2d 495 (Pa. Super. 1984),

the reasons given by the trial court for the sentence imposed indicated that

the court sufficiently considered the sentencing criteria. However, because

the reasons for the sentence gave no indication that the court had also

considered the character of the defendant, or the circumstances of the

offense for which he was sentenced, we reversed the trial court’s decision

and remanded for resentencing.            Id. at 498. In the case at bar, the trial

court did not give any reason for its sentence. See Commonwealth v.

Riggins, 377 A.2d 140, 474 Pa. 115 (1977) (vacating the judgment of

sentence and remanding the case for resentencing because no reasons

appeared on the record supporting the imposition of the sentence imposed).

Accordingly, we are constrained to vacate the judgment of sentence.

      Judgment of sentence vacated.                 Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Donohue joins this memorandum.

      Judge Mundy files a dissenting statement.



                       _______________________
(Footnote Continued)

      community and would pose a significant threat to society if not
      incarcerated for a substantial period of time.

TCO at 3. The trial court seems to focus solely on the new crime committed
by Appellant, for which he had already been sentenced 9 to 20 years’
imprisonment, rather than on the seriousness of the original crimes for
which his probation was imposed, or any of the other appropriate sentencing
factors.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015




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