J-S35002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES FANNINGS

                            Appellant                No. 1064 EDA 2014


             Appeal from the Judgment of Sentence March 7, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0806303-2006


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JULY 17, 2015

        Appellant, James Fannings, appeals from the March 7, 2014 judgment

of sentence of three to six years’ imprisonment, followed by five years’

probation, imposed following the revocation of his probation. After careful

review, we affirm.

        The trial court has summarized the relevant factual history of

Appellant’s underlying conviction as follows.

              On June 5, 2006, shortly before 4:00 PM,
              Complainants, Hugh Ruane and Corey Hand, were
              selling audio equipment at City and Belmont
              Avenues, Philadelphia, PA when they were
              approached by Appellant and two male co-
              conspirators who indicated an interest in making a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            purchase of stereo speakers. One of the males,
            Jules Quick, stated that he did not have enough
            money to complete the purchase and asked
            Complainants to follow the three assailants to the
            3000 block of Oakdale Street, Philadelphia, PA so he
            could get the rest of the money and the
            complainants agreed. Upon arrival Quick went to get
            the money and upon his return[] a few minutes later
            he stated that he had some of the money but that he
            still didn’t have the full amount and that some other
            friends were en route with the balance. Shortly
            thereafter two other males arrived, displayed
            handguns, and announced a robbery. Appellant then
            began to unload Complainants’ vehicle containing the
            merchandise and placed the audio equipment into
            Quick’s vehicle. Quick fled with the merchandise in
            the vehicle and Appellant fled on foot to his
            residence[].      Complainants positively identified
            Appellant as one of the perpetrators of the robbery.

Trial Court Opinion, 10/10/14, at 2-3.

      Further, the subsequent procedural history was accurately summarized

by the trial court as follows.

                  On June 6, 2006[,] Appellant was arrested and
            charged with [r]obbery and [c]riminal [c]onspiracy[,]
            and on October 23, 2007 he pled guilty to those
            offenses. On December 20, 2007[,] Appellant was
            sentenced to concurrent terms of imprisonment of
            not less than eleven and one half (11 1/2) months
            nor more than twenty[-]three (23) months plus eight
            (8) years[’] probation.      On October 1, 2008[,]
            Appellant filed a [m]otion for [p]arole, pro se, and on
            October 22, 2008[,] the [trial c]ourt granted
            Appellant’s [m]otion.

                  On March 27, 2013[,] Appellant was arrested
            for a violation of Section 6105 of the Uniform
            Firearms Act, [p]ossessing [i]nstruments of [c]rime,
            and [s]imple [a]ssault[,] and on September 6,
            2013[,] he pled guilty to those offenses.


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Id. at 1-2 (citations omitted).         At the same hearing, in accordance with

Gagnon v. Scarpelli, 411 U.S. 778, (1973), the trial court revoked

Appellant’s probation after conducting the following colloquy.

              [The trial court]: You understand that by pleading
              guilty to this, this will put you in direct violation of
              your open other sentencing case?

              [Appellant]: Yes, Your Honor.

              [The trial court]: Do you still wish to plead guilty?

              [Appellant]:    Yes, Your Honor.

N.T., 9/6/13, at 8. Thereafter, on March 7, 2014, Appellant was sentenced

to three to six years’ incarceration, plus five years’ probation on the

revocation. That same day, Appellant was sentenced to an aggregate term

of four to 10 years’ imprisonment on the new charges, to run consecutively

to the revocation sentence. On April 7, 2014, Appellant filed a timely notice

of appeal.1

       On appeal, Appellant raises one issue for our review.

              Did the [trial] court err by failing to consider the
              record of the sentencing proceeding prior to revoking
              probation pursuant to 42 Pa.C.S.A. Section 9771(d)?

Appellant’s Brief at 4.
____________________________________________


1
  We note that the 30th day following the trial court’s imposition of sentence
fell on Sunday, April 6, 2014. However, Appellant’s notice of appeal was
timely filed. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a
calculated period of time falls on a Saturday or Sunday, such days shall be
omitted from the computation). Additionally, Appellant and the trial court
have complied with Pennsylvania Rule of Appellate Procedure 1925.



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J-S35002-15


      Appellant argues that the trial court “erred in failing to consider the

record of the sentencing proceeding together with the conduct of [Appellant]

while on probation.” Id. at 9. Appellant asserts the trial court instead only

considered his probation record created by his former probation officer, and

the new crime constituting the probation violation.           Id.   Accordingly,

Appellant avers it was an error to revoke his probation as “there was

absolutely no testimony or reference by the [trial] court as to the record of

the sentencing proceeding prior to the Judge revoking Appellant’s probation

in violation of 42 Pa.C.S.A. Section 9771(d).” Id. at 9-10.

      “The court may revoke an order of probation upon proof of the

violation of specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b).

Revocation of probation is in the sound discretion of the trial court and we

will not disturb it in the absence of an error of law or an abuse of discretion.

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007),

appeal denied, 945 A.2d 169 (Pa. 2008). “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

rehabilitation tool incapable of deterring probationer from future antisocial

conduct.” Id. (citation omitted).

      Instantly, Appellant claims the trial court violated Section 9771(d),

which states as follows.


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            § 9771. Modification or revocation of order of
            probation

            (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(d).

      Specifically, Appellant argues the trial court erred in failing to consider

the record of the sentencing proceeding from 2007. However, a review of

the record indicates Appellant did not preserve this issue by objecting to the

revocation at the time of the hearing, by objecting at his re-sentencing, or

by filing a motion for modification of sentence.     See generally Pa.R.A.P.

302(a); Pa.R.Crim.P. 708(E). Accordingly, said issue is waived.

      Based on the foregoing, we conclude Appellant’s sole claim on appeal

is waived. Therefore, we affirm the trial court’s March 7, 2014 judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015



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