J-S49003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    PATRICK DISTEFANO,

                             Appellant                 No. 581 EDA 2018


          Appeal from the Judgment of Sentence Entered July 25, 2017
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000168-2014


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 03, 2019

        Appellant, Patrick DiStefano, appeals nunc pro tunc from the judgment

of sentence of 6-20 years’ imprisonment, followed by 7 years’ probation,

imposed after the trial court revoked his probation. We affirm.

        The trial court summarized the facts and procedural history of this case

as follows:
        On April 16, 2015, Appellant tendered a negotiated guilty plea to
        reduced charges including two counts of Person [N]ot to Possess
        or Control a Firearm[,] Firearms Not to be Carried Without a
        License[,] and Carrying a Firearm in Public in Philadelphia[,]
        following his apprehension for attempting to illegally transfer two
        … fully-loaded operable semi-automatic firearms, one of which
        had been reported stolen in a residential burglary. Pursuant to
        the terms of a sealed Memorandum of Agreement with the District
        Attorney’s Office[] of Philadelphia, Appellant was sentenced by
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*   Former Justice specially assigned to the Superior Court.
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       this [c]ourt on December 22, 2015[,] to concurrent terms of five
       … years of reporting probation on each of the five weapons
       offenses, to be supervised under the Drug and Alcohol Unit of the
       Adult Probation and Parole Department of Philadelphia.[1] Specific
       rehabilitative conditions were imposed including submission to
       random drug and alcohol screening[s], compliance with
       recommended drug treatment, maintained employment, and
       payment of fines and costs. No appeal was taken.

       [O]n May 25, 2017, Appellant was arrested for physically
       assault[ing] his girlfriend, Michelle Weis[s]. That morning, around
       8:30[ a.m.], police were called to respond to a person screaming
       at [a residence on] Montague Street in the City and County of
       Philadelphia. When uniformed Philadelphia Police Officer Richard
       Greger arrived on location, he observed [Ms.] Weis[s] and her son
       in a highly emotional state, and that the house appeared to be in
       “disarray” and furniture was “thrown about.”

       Upon arrival, Officer Greger immediately interviewed a distraught
       Ms. Weiss with observable scrapes to her elbow, who told him that
       her boyfriend, Appellant…, had been “destroying” her car earlier
       that morning, in search of proof that she had been unfaithful. He
       left her property and came back an hour later, entered Ms.
       Weiss’[s] house, and began throwing furniture and various
       objects. She reported that she had confronted [Appellant] about
       destroying her car and that he became enraged, dragged her
       down the stairs, pushed her onto the entertainment center, threw
       an ashtray at her, and choked her on the couch using both of his
       hands.

       Ms. Weiss’[s] son reportedly intervened by kicking [Appellant] in
       the groin and … [Appellant] fled the location. Ms. Weiss told the
       officer that her arm and back of her head hurt from the incident.
       Following [Appellant’s] arrest, stay away orders had been duly
       entered and apparently ignored because[,] between Appellant’s
       arrest in the instant matter and his violation of probation


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1 We believe this is a misstatement. The trial court’s sentencing order, and
Appellant’s brief, indicate that the trial court sentenced Appellant to an
aggregate sentence of 22 years’ probation for these six offenses. Sentencing
order, 12/22/2015, at 2 (unnumbered); Appellant’s Brief at 3.



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       hearing[,] Ms. Weiss and Appellant made amends and became
       engaged.[2]

       Following [Appellant’s] arrest, a petition was filed on behalf of the
       Commonwealth of Pennsylvania, by and through the District
       Attorney’s Office of Philadelphia, seeking to proceed to a violation
       hearing pursuant to Commonwealth v. Daisy Kates.4 This
       [c]ourt granted the Commonwealth’s request to present live
       testimony concerning the alleged violations. Appellant’s hearing
       was initially scheduled for June 15, 201[7], but Ms. Weiss failed
       to appear on that date. The violation hearing was rescheduled
       and held before this [c]ourt on July 25, 2017.
          4 In Commonwealth v. Kates, … 305 A.2d 701 ([Pa.]
          1973), one of the defendants, Daisy Kates, was tried and
          convicted of aggravated assault and battery and a weapons
          offense. Kates was placed on probation for three years on
          the charge of aggravated assault and battery, and sentence
          was suspended on the weapons offense. Subsequently,
          Kates was arrested, and a probation revocation hearing was
          conducted.     The hearing court concluded that based
          primarily on an incriminating statement attributed to Kates,
          Kates had committed a homicide. As a result, the hearing
          court revoked probation and imposed a term of
          imprisonment.

          After imposition of sentence, a motion to suppress Kates’[s]
          statement was granted and Kates was eventually found not
          guilty of homicide. On appeal from the revocation of
          probation, our Supreme Court affirmed the judgment of
          sentence and held: “There is no statutory restriction in this
          [Commonwealth] that would prevent the court from holding
          a hearing where the alleged violation is the commission of
          an offense during the probationary period prior to the trial
          for the subsequent offense.” Id. … at 706. In its discussion,
          [our] Supreme Court stated the following: “The basic
          objective of probation is to provide a means to achieve
          rehabilitation without resorting to incarceration. When it
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2 The record demonstrates that the Commonwealth ultimately withdrew the
criminal charges against Appellant relating to the May 25, 2017 incident
because Ms. Weiss failed to appear before the court. See N.T. Violation of
Probation, 7/25/2017, at 22-23, 29-32, 44; Commonwealth’s Brief at 3;
Appellant’s Brief at 3.

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          becomes apparent that the probationary order is not serving
          this desired end[,] the court’s discretion to impose a more
          appropriate sanction should not be fettered. Id. … at 708.

       During the violation hearing, [Ms.] Weiss appeared as [a]
       reluctant witness who recanted her report that Appellant had
       harmed her. However, her previous inconsistent statement that
       she had provided to Officer [Greger] [was] introduced wherein Ms.
       Weiss told the officer that Appellant dragged her, pushed her, and
       severely choked her with his hands around her neck. After hearing
       all evidence including Officer[] [Greger’s] credible observations
       and account, this [c]ourt revoked Appellant’s probation.

                                               …

       The resulting aggregate sentence imposed was a minimum period
       … of six … years[’] state incarceration to a maximum period of
       twenty [years], with seven … years of reporting probation to follow
       the period of confinement. Appellant had been ordered to comply
       with rehabilitative parole conditions including random drug and
       alcohol testing, random home visits, [and] required attendance of
       twenty hours of annual anger management classes.

       No [p]ost-[sentence] [m]otions or direct appeal of the [o]rder and
       [j]udgment of [s]entence had been filed. On [November 6, 2017],
       Appellant filed a pro se [m]otion [f]or [p]ost-[c]onviction
       [c]ollateral [r]elief seeking reinstatement of his direct appellate
       rights. This [c]ourt subsequently granted Appellant relief…[,]
       reinstating Appellant’s direct appellate rights. [A] [n]otice of
       [a]ppeal was filed on February 19, 2018…. On July 30, 2018, a
       [Pa.R.A.P.] 1925(b) [s]tatement of [m]atters [c]omplained [of]
       on [a]ppeal was filed, wherein Appellant claimed that the trial
       court erred by finding a violation that was against the weight of
       the evidence and by imposing an excessive sentence.[3]

Trial Court Opinion (TCO), 12/17/2018, at 1-5 (internal citations and some

footnotes omitted).

       Presently, Appellant raises one issue for our review:


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3 Based on our review of the docket, it does not appear that the trial court
ordered Appellant to file a Rule 1925(b) statement.

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      [W]hether the [t]rial [c]ourt’s sentence, imposed after the Daisy
      Kates hearing, was excessive and not consistent with the relevant
      Pennsylvania law.

Appellant’s Brief at 2 (footnote omitted).

      Appellant challenges the discretionary aspects of his sentence.     See

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A

challenge to an alleged excessive sentence is a challenge to the discretionary

aspects of a sentence.”) (citation omitted).    However, before reaching the

merits of this issue, we must determine if Appellant has preserved it for our

review. “Issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings.     Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Id. (citations omitted). Here,

Appellant did not preserve his issue at sentencing or in a timely post-sentence

motion. Accordingly, he has waived this issue.

      Nevertheless, even if not waived, we would determine that the trial court

did not abuse its discretion.

      When reviewing sentencing matters, it is well-settled that:

         [W]e must accord the sentencing court great weight as it is
         in the best position to view the defendant’s character,
         displays of remorse, defiance or indifference, and the overall
         effect and nature of the crime. An appellate court will not
         disturb the lower court[’]s judgment absent a manifest
         abuse of discretion. In order to constitute an abuse of
         discretion, a sentence must either exceed the statutory
         limits or be so manifestly excessive as to constitute an
         abuse of discretion. Further, a sentence should not be
         disturbed where it is evident that the sentencing court was
         aware of sentencing considerations and weighed the
         considerations in a meaningful fashion.

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     Through the Sentencing Code, the General Assembly has enacted
     a process by which defendants are to be sentenced. As a
     threshold matter, a sentencing court may select one or more
     options with regard to determining the appropriate sentence to be
     imposed upon a defendant. These options include probation, guilt
     without further penalty, partial confinement, and total
     confinement. In making this selection, the Sentencing Code offers
     general standards with respect to the imposition of sentence which
     require the sentence to be 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. Thus, sentencing is individualized; yet,
     the statute is clear that the court must also consider the
     sentencing guidelines adopted by the Pennsylvania Commission
     on Sentencing.

     In considering an appeal from a sentence imposed following the
     revocation of probation, [o]ur review is limited to determining the
     validity of the probation revocation proceedings and the authority
     of the sentencing court to consider the same sentencing
     alternatives that it had at the time of the initial sentencing.
     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.

     It is the law of this Commonwealth that once probation has been
     revoked, a sentence of total confinement may be imposed if any
     of the following conditions exist in accordance with Section
     9771(c) of the Sentencing Code:

        (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).

     The Commonwealth establishes a probation violation meriting
     revocation when it shows, by a preponderance of the evidence,
     that the probationer’s conduct violated the terms and conditions
     of his probation, and that probation has proven an ineffective

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      rehabilitation tool incapable of deterring probationer from future
      antisocial conduct. [I]t is only when it becomes apparent that the
      probationary order is not serving this desired end [of
      rehabilitation] the court’s discretion to impose a more appropriate
      sanction should not be fettered.

Ahmad, 961 A.2d at 887-89 (most internal citations and quotation marks

omitted; some brackets added).

      Appellant argues that, in imposing his sentence, the trial court

improperly considered his alleged violation of a stay-away order and the effect

it had on Ms. Weiss’s failing to appear for the case relating to the May 25,

2017 incident.    See Appellant’s Brief at 9.     He argues that “[t]he court’s

obvious concern with punishing Appellant for the assault on Ms. Weiss[,] and

with upholding the authority of the court in which he was tried for that

assault[,] is evidence that the judgment exercised by the court was ‘manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.’” Id. at 10-

11 (citation omitted). We disagree.

      At sentencing, the trial court provided the following reasoning for its

sentence:
      In my sentence I consider, number one, the generosity that was
      extended by the [c]ourt based upon the memorandum of
      agreement executed by [Appellant] and the Commonwealth back
      on March [17th,] and then again on April [15th] of 2015[,] and the
      testimony that was placed on the record … on [Appellant’s] behalf.
      I’ve considered the information provided to me through the
      presentence report that was completed just before that
      sentencing hearing as well as the mental health evaluation that
      was completed.

      On that sentence day, I am reminded how folks[,] who I have and
      still have the utmost regard for[,] came into this courtroom and
      pleaded with me on [Appellant’s] behalf,…not the least of which
      were the agents from the Gun Violence Task Force, based upon

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     what transpired with that memorandum of agreement, which I will
     not delineate.

     I consider [Appellant’s] criminal history…. But for that negotiation
     and agreement, [Appellant] would have gone to the state for quite
     a few years for the underlying offense[s] for which this [c]ourt
     heard. Those facts of those underlying offenses I take into
     consideration as well.

     [Appellant] was very much involved in the purchase and/or sale
     and transfer of weapons. One of the two weapons recovered from
     [Appellant’s] bolted safe in his residence was [a] weapon sold to
     him after a residential burglary was committed. Both weapons
     were handguns and the safe was in his bedroom … and recovered
     pursuant to [a] search and seizure warrant. He admitted to his
     activities back in the day and took ownership and responsibility
     for his actions.

     One of the persons that testified on [Appellant’s] behalf was his
     previous employer.      However, [Appellant’s] criminal history
     suggested to the [c]ourt that he was going to re-offend because
     he indicated that he had been abusing narcotics and alcohol from
     a very early age and continuing with various intermittent periods
     of sobriety and relapses, relying heavily upon a drugstore for
     various types of substances. He had been in and out of various
     halfway houses, attended various treatment programs…. And on
     the date that he came in front of me for sentencing, everyone said
     how well and how clean and sober he was doing. His substances
     of abuse of choice were heroin, cocaine, pills, alcohol and
     methamphetamines.

     His prior convictions included a conviction for receiving stolen
     property relative to a vehicle, possession of narcotics, [and]
     robbery. He was under various forms of supervision of the court.
     As an adult[,] he had a history of eleven arrests, six convictions,
     one summary conviction for retail theft, two commitments, two
     violation hearings and one revocation. His arrests stretched
     across different counties within the Commonwealth of
     Pennsylvania.

     I do take into account the guidelines. I take into account
     [Appellant’s] behavior that is the subject matter of the violation.
     His behavior and his past history indicate to this [c]ourt that [he
     is] a danger to the community and that [he] will re-offend if given
     the opportunity, and that type of offense will probably include


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      violence to someone who cares about him such as the
      complainant, who now denies that he hurt her.

      [Appellant] stand[s] before me at least six [feet] tall, weighing
      approximately two hundred pounds, yet [he] went toe to toe with
      a female who is substantially smaller in every way, shape and
      form, all because of jealousy. Thankfully, there was police
      intervention in this matter. Whether it be choking someone or
      dragging them down the steps or punching them, striking them in
      the heat of anger, that presents a danger. That’s a loss of control.

      I take into account that the other part of this violation is that he
      completely ignored what the [c]ourt said, which is to have no
      contact with the victim or the complainant. Rules don’t apply.
      Well, here they do.

N.T. Violation of Probation at 62-66.

      We would discern no abuse of discretion. While the court did mention

the purported stay-away order, it was not the focus of its analysis. Instead,

it emphasized the danger Appellant poses to the community, and the high risk

presented that he will re-offend. In addition, it adequately considered the

other relevant factors it was required to weigh.         See Ahmad, supra.

Accordingly, even if preserved, we would determine that Appellant’s argument

lacks merit. Thus, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19



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