J-S85008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
ANDRE PACE                                  :
                                            :
                      Appellant             :   No. 393 WDA 2017

          Appeal from the Judgment of Sentence February 6, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0012497-2013,
                         CP-02-CR-0012502-2013


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                 FILED APRIL 18, 2018

     Andre Pace appeals from the February 6, 2017 judgment of sentence

of two consecutive terms of one to two years imprisonment, which was

imposed      after   remand   for   re-sentencing   following   revocation   of   his

probation.      We vacate the judgment of sentence and remand for re-

sentencing.

     On February 5, 2014, Appellant entered a negotiated guilty plea to two

counts of simple assault charged at two criminal informations, and was

sentenced to a two-year term of probation to run concurrently at each

count. In addition, Appellant agreed not to have contact with the victim and

to complete a batterer’s intervention program.           He did not file a post-

sentence motion or direct appeal.
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     On May 14, 2015, Appellant appeared for a probation violation

hearing.     The violation of probation court (“VOP court”) revoked his

probation upon finding that Appellant had been convicted of robbery and a

number of technical violations.   The VOP court subsequently re-sentenced

Appellant to two consecutive terms of imprisonment of one to two years on

each offense, and gave him credit for time served at the first count. After

the court denied Appellant’s motion for reconsideration of sentence, he

appealed to this Court and raised a discretionary sentencing challenge. We

vacated his judgment of sentence and remanded for re-sentencing, finding

that the trial court had failed to demonstrate on the record its consideration

of the § 9721(b) sentencing criteria or that it had reviewed a pre-sentence

investigation report (“PSI”). Commonwealth v. Pace, No. 932 WDA 2015

(Pa.Super. Nov. 10, 2016) (unpublished memorandum).

     The re-sentencing proceeding occurred on February 6, 2017, and the

court imposed the same sentence.      Appellant filed a post-sentence motion

contending    that   the   sentence   imposed   was   manifestly   excessive,

unreasonable, and an abuse of discretion. He also alleged that the PSI was

incomplete, and consequently, the court failed to consider the sentencing

factors set forth in 42 Pa.C.S. § 9721(b), his rehabilitative needs, and

extensive mitigation evidence, or place adequate reasons on the record for

the sentence imposed.        Finally, Appellant maintained that the court

considered an improper factor in sentencing, i.e., an arrest for aggravated

assault that the Commonwealth withdrew at the magisterial court level.

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      Appellant filed a notice of appeal on March 8, 2017, and complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and the trial court issued its opinion.      Appellant

presents one question for our review:

      Did the trial court fail to adequately consider and apply all of the
      relevant sentencing criteria, including [Appellant’s] character and
      rehabilitative needs, the gravity of the offense/violation and the
      protection of the public when it issued an excessive and
      unreasonable sentence in violation of 42 Pa.C.S.A. § 9721(b), 42
      Pa.C.S.A. § 9725 and 42 Pa.C.S.A. § 9771(c)?

Appellant’s brief at 6.

      Appellant’s claim relates to the discretionary aspects of his probation

revocation sentence.      “The right to appellate review of the discretionary

aspects of a sentence is not absolute.”      Commonwealth v. Zirkle, 107

A.3d 127, 132 (Pa.Super. 2014). In order to invoke this Court’s jurisdiction,

we analyze whether Appellant has met four prerequisites: 1) filed a timely

notice of appeal; 2) preserved the issue at sentencing or in a post-sentence

motion; 3) filed a Pa.R.A.P. 2119(f) statement in his appellate brief; and 4)

demonstrated that there is a substantial question that his sentence is

inappropriate under the Sentencing Code. See Commonwealth v. Moury,

992 A.2d 162 (Pa.Super. 2010).

      Herein, Appellant filed a timely appeal, preserved the issue in a timely-

filed post-sentence motion, included a Pa.R.A.P. 2119(f) statement in his

brief, and made plausible arguments that his claims raised three substantial

questions.   Specifically, he alleges that his probation revocation sentence



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was excessive and unreasonable, and did not take into consideration the

protection of the public, the gravity of the offense, and his rehabilitative

needs.     Secondly, he argues that the trial court did not place adequate

reasons on the record for the sentence it imposed. He further asserts that

the PSI was inadequate to apprise the court of Appellant’s circumstances,

and the court failed to consider his character or the § 9721(b) sentencing

factors. Finally, Appellant alleges that the trial court improperly relied upon

a new charge upon which he had not yet been arraigned, and which was

subsequently withdrawn, an improper consideration under Commonwealth

v. Karash, 452 A.2d 528, 529 (Pa.Super. 1982). Appellant’s brief at 14-18.

We find that Appellant has complied with the requirements for merits review

of his discretionary sentencing claim.

      The law is well settled that the imposition of sentence after the

revocation of probation is vested within the trial court’s sound discretion.

Commonwealth v. Booze, 952 A.2d 1263 (Pa.Super. 2008).              Absent an

abuse of that discretion, we will not disturb it on appeal.    The revocation

sentence herein involves total confinement.      In order to impose such a

sentence upon revocation, the court must find any one of the following: that

the defendant has been convicted of another crime; that his conduct

indicates that he is likely to do so if not imprisoned; or, that “such a

sentence is essential to vindicate the authority of the court.” 42 Pa.C.S. §

9771(c).    The court need not refer to the guidelines, but the court must

impose a sentence “that is consistent with the protection of the public, the

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gravity of the offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitation needs of the defendant.”            42

Pa.C.S. § 9721(b). The court must also disclose in open court the reasons

for the sentence.   Commonwealth v. Cartrette, 83 A.3d 1030, 1040-41

(Pa.Super. 2013). The statement need not be lengthy, but it must reflect

the court’s consideration of the crime and character of the offender.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010).

      The record of the re-sentencing proceeding reveals the following. The

court acknowledged that Appellant was on parole, having completed his

minimum state sentence from its prior revocation sentence.           The court

stated that it had “ordered, read and considered a pre-sentence report,” but

that it was “just a list of his prior offenses.”   N.T., Sentence Revocation

Hearing, 2/6/17, at 2. The court invited defense counsel to make additions

to the record.

      Defense counsel apprised the court that Appellant was paroled after

serving two years at SCI Somerset, and that he had completed the

mandated batterer’s intervention course, and had no misconducts while in

prison. While living in the Transitional Housing Unit, Appellant took classes

“on relationships, staying on track, [and] living under supervision.” Id. at 3.

Counsel noted that Appellant was still under State supervision on two other

matters.

      Defense counsel concurred with the court’s view of the inadequacy of

the PSI, and argued that the report failed to address the § 9721 factors,

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which was the impetus for remand.             The PSI contained no information

regarding Appellant’s education, employment history, his family, or medical

history.    The sentencing court noted that Appellant’s mother had not

responded to a request for information, but it did invite counsel to present

matters of which the court was unaware.

      Counsel apprised the court of the following additional information.

Appellant was raised by a single mother; his father has been incarcerated

throughout his entire life.       He shares a home with his mother and

grandmother. His grandmother was unable to attend the sentencing due to

failing health.   Appellant assists in her care and performs chores in her

home.      Appellant was applying for employment through CareerLinks and

Express, but has been working for almost one year with Pittsburgh Recycling

Company. He is a high school graduate. Appellant was on state supervision

until 2020, which the court interjected was for the robbery he committed

that resulted in the probation revocation.

      The    court   stated   that,   while   it   had   heard   about   Appellant’s

circumstances since his sentencing, it had little information regarding his

employment and background prior to sentencing.             After noting, however,

that Appellant had five adjudications for burglary as a juvenile “along with

the other misdemeanors,” the court stated that it was incorporating the

reasons for its prior sentence and imposing the same sentence.            Id. at 5.

The court added that, “it is alleged that you committed a crime within


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several days or weeks from being released from the State Correctional

Institution.”     Id. at 6.   The court then asked Appellant whether he was

aware that an arrest was pending for aggravated assault. When Appellant

professed to have no knowledge of the charge and asked for details, the

court advised him that, after being apprised of his post-sentence rights, he

would have to accompany her deputy downstairs.

        The Commonwealth concedes, based on the sentencing court and

defense counsel’s assessment of the PSI, that it did not contain the type of

information deemed necessary in Commonwealth v. Flowers, 950 A.2d

330 (Pa.Super. 2008). However, the Commonwealth points out that defense

counsel provided considerable background information, and informed the

court    of     Appellant’s   completion    of   rehabilitation   programs.   The

Commonwealth also suggests that one could infer from the fact that

Appellant was paroled at his minimum that “he had adjusted well.”

Commonwealth’s brief at 17.         While acknowledging that the court did not

make lengthy remarks, the Commonwealth points out that it did address the

facts of the original case, noted that Appellant completed his batterers’

program, and commented that Appellant’s criminal activity continued.

        We conclude that, with the benefit of the information supplied by

defense counsel at the re-sentencing proceeding, the record was sufficient to

compensate for the deficient PSI and to apprise the court of the relevant

information.      The court’s reasons for the sentence imposed, while brief,


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sufficed. However, for the reasons that follow, we find merit in Appellant’s

contention that the court relied upon an improper factor in imposing

sentence, and that re-sentencing is required.

      Immediately   after   imposing    sentence,   the   court   referenced   an

outstanding aggravated assault charge against Appellant. While it is unclear

from the sentencing transcript whether the court merely noted the arrest or

actually considered it in fashioning its sentence, we find evidence of the

latter in the court’s Rule 1925(a) opinion.         Therein, in support of its

statement that it “placed its reasons for imposing sentence on the record,”

the court reproduced the exchange about the aggravated assault charge.

Sentencing Court Opinion, 6/19/17, at 4.        Thus, it is apparent from the

court’s own words that the aggravated assault arrest factored into its

sentencing decision. See Commonwealth v. Rhodes, 990 A.2d 732, 746

(Pa.Super. 2009) (finding “it is not necessary that an appellate court be

convinced that the trial judge court in fact relied upon an erroneous

consideration; it is sufficient to render a sentence invalid if it reasonably

appears from the record that the trial court relied in whole or in part upon

such a factor.”).    The Commonwealth concedes that the charge was

withdrawn at the magisterial level, and we have independently verified that

disposition.

      In Karash, supra, this Court vacated the defendant’s sentence and

remanded for re-sentencing because the sentencing court considered a


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charge for which the defendant had been arrested, but not convicted. We

held, “[a] sentence is invalid if the record discloses that the sentencing court

may have relied in whole or in part upon an impermissible consideration.

This is so because the court violates the defendant’s right to due process if,

in deciding upon the sentence, it considers unreliable information, or

information affecting the court’s impartiality, or information that it is

otherwise unfair to hold against the defendant.” Karash, supra at 528-29;

in accord Rhodes, supra; Commonwealth v. Downing, 990 A.2d 788,

793 (Pa.Super. 2010).

      Hence, since the sentencing court improperly relied upon an arrest on

an aggravated assault charge that was withdrawn in imposing its sentence,

we must vacate Appellant’s probation revocation sentence and remand for

re-sentencing consistent with this memorandum.

      Judgment of sentence vacated. Case remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2018




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