J-S03004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEITH DARNAY MCDANIEL,

                            Appellant                No. 1819 WDA 2015


          Appeal from the Judgment of Sentence of October 21, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000098-2014


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 22, 2017

       Appellant, Keith Darnay McDaniel, appeals from the judgment of

sentence entered on October 21, 2015. We affirm.

       On June 3, 2014, Appellant entered a negotiated guilty plea to

indecent assault, indecent exposure, corruption of minors, and endangering

the welfare of a child.1          During the plea hearing, the Commonwealth

summarized the facts underlying Appellant’s guilty plea:

         Your Honor, had the case proceeded, the Commonwealth
         would have called Detective Joe Simunovic from the City of
         Pittsburgh Police.     He would have testified that on
         November 8th of 2013[,] he did attend a forensic interview
         with the [11-year-old] victim in this case, [T.P.]. During
         the course of that forensic interview, the victim stated that
____________________________________________


1
  18 Pa.C.S.A. §§ 3126(a)(1), 3127(a), 6301(a)(1)(i), and 4304(a)(1),
respectively.



* Retired Senior Judge assigned to the Superior Court.
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        [Appellant, who is] her mother’s ex-boyfriend, [] did on two
        occasions touch [the victim] inappropriately. . . .
        Specifically, there was a time in which he touched her
        breasts.    Furthermore, there was a time in which he
        exposed his penis and rubbed it against her naked buttocks.

N.T. Guilty Plea and Sentencing Hearing, 6/3/14, at 5.

      At the conclusion of the factual recitation, Appellant testified that he

was “pleading guilty [to the charges] because [he is] guilty.” Id. at 6. The

trial court then sentenced Appellant in accordance with the negotiated

terms; specifically, the trial court sentenced Appellant to serve an aggregate

term of 11 ½ to 23 months in jail, serve a concurrent term of five years of

probation, and register with the Pennsylvania State Police, under Megan’s

Law, for 15 years. Id. at 7. Moreover, during the sentencing hearing, the

trial court imposed the following special conditions of probation:

        you must participate in and complete mental-health
        treatment and/or sex offender treatment and comply with
        the terms and conditions of your therapist. You must
        refrain from using alcohol.

        You are to have no contact with any child under the age of
        18 or be within [100] feet of a yard, park, playground or
        other places used by children. You’re to have no contact,
        either directly or indirectly, with the victim or the victim’s
        family.

        You’re to have no sex paraphernalia, and you may not have
        any access to the computer, either through a phone – in
        fact, you’re not even allowed to have a cell phone or a
        computer. You may not live with anybody that has a
        computer.

Id. at 7-8.




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      Further, when the trial court was informed that Appellant and the

victim’s mother had a biological child together, the trial court amended the

relevant probationary condition to read that Appellant “may have visitation

with biological child through family court order.” Sentencing Order, 6/3/14,

at 1-2.

      On February 11, 2015, Appellant appeared before the trial court for a

sex offender court review hearing.    During the review hearing, Appellant’s

probation officer testified that Appellant committed a number of technical

probation violations, including: “having telephone contact with his 16-year-

old son;” “having contact with his infant granddaughter after being released

from the Allegheny County Jail;” smoking marijuana; and, having contact

“with his 12-year-old niece and 10-year-old nephew while visiting his sister.”

N.T. Review Hearing, 2/11/15, at 2. That day, the trial court added “a zero

tolerance stipulation” for future substance abuse infractions and again told

Appellant: “[y]ou are to have no contact with minors[,] and family members

are included in that group. You can have no contact with minors unless you

receive written permission from your probation officer that you can see

them.” Id. at 4 and 5. The trial court scheduled a review hearing for May

13, 2015. Id. at 5.

      Appellant appeared for the May 13, 2015 review hearing and, during

that hearing, Appellant’s probation officer testified that Appellant had

continued to violate the conditions of his probation. As Appellant’s probation

officer testified:

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          On [April 21, 2015, Appellant] was found in possession of a
          Wi-Fi capable cell phone. A check of his cell [revealed] a
          picture of [Appellant] holding a child with the date taken of
          [February 28, 2015].      And another picture of multiple
          children around a birthday cake with the date taken of
          [January 27, 2015].

          [Appellant] did admit to taking the picture where he’s seen
          holding the child, but he denies having contact with any
          children since his initial report to the probation office.

          He further admitted to access to the internet through the
          use of the aforementioned cell phone. The [trial] court was
          notified and a probation violation warrant was issued. A
          further check of that cell phone [revealed] a picture of
          [Appellant] consuming alcohol with the date taken of
          [January 9, 2015]. And multiple emails from daily hookup
          internet websites. He has also failed to make any payments
          towards his financial responsibility [in this] case. A balance
          of $4,954.34 remains owed.

N.T. Review Hearing, 3/11/15, at 3-4 (some internal capitalization omitted).

      After hearing of these violations, the trial court informed Appellant:

          [Appellant], at count five, I’m going to continue it as a
          stage two hearing.     I’m going to lift your detainer to
          electronic monitoring only. For a period [of] six months.
          You must take a polygraph test within 90 days. And you
          are going to have zero tolerance. That means if you do one
          single thing wrong, you are going back to jail. And then
          you are going to come here for your second hearing and I’m
          going to put you in Camp Hill.

Id. at 4-5.

      On June 5, 2015, the trial court placed Appellant on electronic home

monitoring. See Appellant’s Electronic Monitoring Rules Acceptance, 6/5/15,

at 1-4.




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      On October 21, 2015, Appellant appeared before the trial court for a

probation violation hearing.     During the hearing, Appellant’s attorney

admitted that – on the very same day that Appellant was placed on

electronic home monitoring – Appellant cut off his electronic home

monitoring bracelet, left his house, and was later apprehended, by the

Sheriff’s Office, in an apartment with his two-year old granddaughter. N.T.

Probation Revocation Hearing and Resentencing, 10/21/15, at 2-4. The trial

court then revoked Appellant’s probation and resentenced Appellant to serve

a term of two to five years in prison. The trial court explained:

        Okay. Well, the reason you have so many days [of] credit
        [for time served] is because I kept letting you out of jail and
        then you would violate the terms and conditions of
        probation and I would put you in, I would let you out again.

        Specifically starting with the seriousness of the original
        offense, you assaulted a 13 [sic] year old child. You served
        a period of time. You then got out of jail. As soon as you
        were out of jail you went to smoke marijuana. You have
        contact with a number of minors, although you have denied
        this. You have been positive for drugs. I then had a
        hearing where I imposed a zero tolerance for drugs. You
        were found with a cell phone with a connection to [Wi-Fi].
        This phone, contrary to the specific conditions, contained
        photos of you with [children] and photos of you drinking.
        You were in jail for a while. I lifted the detainer. I put you
        on the bracelet and you left. They found you at your
        girlfriend’s house with her infant son. You were then put on
        the bracelet and the same day you were arrested again in
        the company of I guess who was your daughter and the
        two-year old child. I would point out that [the original]
        offense was an assault of your girlfriend’s child. You have
        been involved with drugs since 2002. You have had four
        PFAs with three different victims. You have ten children,
        none of whom you have seemingly supported. Although
        since you only know the names of nine of them, I will just

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        count nine as the number of children you have. Your
        adjustment to probation has been poor. I see no evidence
        that you wish to rehab yourself. And you are a danger
        because of violence and drugs. You had prior EM, prior
        incarceration.  And county supervision is no longer an
        option.

        At Count [Six,] I am going to revoke your probation and
        order you to serve not less than two years nor more than
        five years with credit. . . .

Id. at 6-7.

      On Monday, November 2, 2015, Appellant filed a timely motion to

modify his sentence.    See Pa.R.Crim.P. 708(E) (“[a] motion to modify a

sentence imposed after a revocation [of probation] shall be filed within 10

days of the date of imposition. The filing of a motion to modify sentence will

not toll the 30-day appeal period”).   Within Appellant’s motion to modify,

Appellant claimed that the trial court imposed a “manifestly excessive,

unreasonable [sentence]” and failed to “consider [his] rehabilitative needs,

nature, characteristics, and personal history” at sentencing.     Specifically,

Appellant claimed that the trial court “failed to consider” certain mitigating

factors, such as:   Appellant has a “mental health and substance abuse

history;” Appellant “took responsibility for his criminal behavior by pleading

guilty;” and, Appellant’s “probation violations were all technical in nature.”

Appellant’s Motion to Modify, 11/2/15, at 5. Appellant also claimed that the

trial court “considered impermissible factors” during sentencing. According

to Appellant, these impermissible factors were: “emphasizing social history

that has no bearing upon criminality such as he had ten children, but the



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pre-sentence investigator claimed that he could only name nine” and

“[r]eciting that he had multiple PFAs and ICC violations filed against him,

even though the pre-sentence investigation noted that most of these actions

had been dismissed or withdrawn.” Id.

      On November 5, 2015, the trial court denied Appellant’s motion to

modify his sentence and Appellant filed a timely notice of appeal. Appellant

raises three claims on appeal:

        [1.] Whether the revocation sentence imposed by the trial
        court . . . is manifestly excessive, unreasonable, and an
        abuse of discretion where none of the factors of 42
        Pa.C.S.A. § 9771(c) were established?

        [2.] Whether the revocation sentence imposed by the trial
        court . . . is manifestly excessive, unreasonable, and an
        abuse of discretion where the trial court failed to consider
        the personal history, character[,] and rehabilitative needs of
        [Appellant] as required by 42 Pa.C.S.A. § 9721(b)?

        [3.] Whether the trial court considered, focused on and/or
        discussed impermissible factors and/or information not of
        record prior to sentencing [Appellant]?

Appellant’s Brief at 5.

      All of Appellant’s claims challenge the discretionary aspects of his

sentence.    See Commonwealth v. Carver, 923 A.2d 495 (Pa. Super.

2007) (claim that the trial court erred in sentencing appellant to total

confinement is a challenge to the discretionary aspects of sentence);

Commonwealth v. Ferguson, 893 A.2d 735, 736-737 (Pa. Super. 2006)

(same); Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)

(same); Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim


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that the trial court erred in imposing an excessive sentence is a challenge to

the discretionary aspects of a sentence); Commonwealth v. Roden, 730

A.2d 995 (Pa. Super. 1999) (claim that the trial court considered

impermissible factors at sentencing is a challenge to the discretionary

aspects of a sentence).

      We note that, in an appeal following the revocation of probation, our

scope of review includes discretionary aspects of sentencing claims.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc).    With respect to our standard of review, we have held that

“sentencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.         See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

         [t]o reach the merits of a discretionary sentencing issue, we
         conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
         903; (2) whether the issue was properly preserved at
         sentencing or in a motion to reconsider and modify
         sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
         has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
         is a substantial question that the sentence appealed from is
         not appropriate under the Sentencing Code, 42 Pa.C.S.
         § 9781(b).


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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of

a sentence [following the revocation of probation] 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”); Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a

new sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a [motion to modify] sentence”).

      As our Supreme Court has held, the determination of whether a

substantial question exists must be done prior to – and be divorced from –

the determination of the potential merits of an issue. Commonwealth v.

Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger

would “in effect obtain[] an appeal as of right from the discretionary aspects

of a sentence” – a result that would violate statutory law. Id.

      First, Appellant claims that the trial court abused its discretion by

imposing a sentence of total confinement, where: Appellant “was not found

guilty of committing any new crime . . . [, Appellant] was not charged with

any new crimes . . . [, t]here is no evidence to support any bald allegation

that he is likely to commit another crime . . . [, and t]he trial court made no

assertion that its authority needs to be vindicated.” Appellant’s Brief at 19.

Appellant did not raise this claim at sentencing or in his motion to modify

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sentence.      See N.T. Probation Revocation Hearing and Resentencing,

10/21/15, at 2-8; Appellant’s Motion to Modify, 11/2/15, at 1-6. Therefore,

this claim is waived. Cartrette, 83 A.3d at 1042.

      Second, Appellant claims that the trial court “failed to consider the

personal history, character[,] and rehabilitative needs” of Appellant.

      Generally, for an appellant to raise a substantial question that his

sentence is inappropriate under the Sentencing Code, an appellant must

“advance a colorable argument that the trial judge’s actions were:            (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental    norms   which   underlie   the   sentencing   process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000).

      Since Appellant was sentenced following the revocation of probation,

the sentencing guidelines do not apply to Appellant’s sentence. 204 Pa.Code

§ 303.1(b); Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super.

2006). Nevertheless, in sentencing Appellant, the trial court was required to

“consider the general principles and standards of the Sentencing Code.”

Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section

9721 expresses these general principles in the following manner:

           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


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        victim and on the community, and the rehabilitative needs
        of the defendant.

42 Pa.C.S.A. § 9721(b).

      As this Court has held, a claim that the sentencing court “failed to

consider relevant sentencing criteria, including the protection of the public,

the gravity of the underlying offense and the rehabilitative needs” of the

defendant, does raise a substantial question under the Sentencing Code.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2013) (a claim

that the trial court “failed to consider relevant sentencing criteria, including

the protection of the public, the gravity of the underlying offense and the

rehabilitative needs” of the defendant, raised a substantial question);

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (en

banc) (“we find that Appellant’s claim that the sentencing court disregarded

rehabilitation and the nature and circumstances of the offense in handing

down its [consecutive, standard range] sentence presents a substantial

question for our review”). Therefore, we may reach the merits of Appellant’s

claim that, at sentencing, the trial court “failed to consider the personal

history, character[,] and rehabilitative needs” of Appellant.

      However, Appellant’s claim on appeal immediately fails because the

trial court undoubtedly considered Appellant’s personal history, character,

and rehabilitative needs when it imposed Appellant’s sentence.        Certainly,

when the trial court resentenced Appellant, the trial court had already

presided over Appellant’s guilty plea, original sentencing hearing, and

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multiple probation review hearings. Therefore, at the time of resentencing,

the trial court was deeply familiar with Appellant’s personal history and

character. Further, during Appellant’s resentencing hearing, the trial court

informed Appellant that it had provided him with multiple opportunities to

abide by the terms of his probation – and, yet, Appellant continually violated

the express terms of his probation. See N.T. Probation Revocation Hearing

and Resentencing, 10/21/15, at 2-8. Moreover, Appellant’s actions while on

probation demonstrated an overt contempt for the trial court, a refusal to

rehabilitate himself, and Appellant’s clear danger to the public, given that:

Appellant continuously violated the express terms of his probation; Appellant

cut off his electronic monitoring bracelet and absconded on the same day

that he was placed on electronic monitoring; and, Appellant originally

pleaded guilty to     sexually molesting his then-girlfriend’s 11-year-old

daughter and, yet, Appellant continued to violate the terms of his probation

by closely associating with young children. Simply stated, Appellant’s claim

that the trial court “failed to consider the personal history, character[,] and

rehabilitative needs” of Appellant is meritless.

      Finally, Appellant claims that the trial court abused its discretion when

it considered “impermissible factors” at resentencing.    This Court has held

that an appellant raises a substantial question where he alleges that the trial

court relied upon impermissible factors at sentencing. See Commonwealth




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v. Rhoads, 990 A.2d 732, 745 (Pa. Super. 2009), appeal denied, 14 A.3d

827 (Pa. 2010). Thus, we will address the merits of this claim.

      As we have held:

        In deciding whether a trial judge considered only
        permissible factors in sentencing a defendant, an appellate
        court must, of necessity, review all of the judge's
        comments. Moreover, in making this determination it is not
        necessary that an appellate court be convinced that the trial
        judge 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.

Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (internal

quotations and citations omitted).

      First, Appellant claims that the trial court impermissibly relied upon the

purported fact that Appellant had “four PFAs with three different victims.”

Appellant’s Brief at 25; see also N.T. Probation Revocation Hearing and

Resentencing, 10/21/15, at 7.      According to Appellant, this was improper

because “the pre-sentence investigation noted that almost all of the ex parte

PFA petitions filed against [Appellant] had been dismissed or withdrawn at

their initial stages [that] required judicial review.” Appellant’s Brief at 25.

      Appellant failed to include the pre-sentence report in the certified

record. Therefore, Appellant’s claim on appeal is waived. Commonwealth

v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005) (“this Court may not

consider anything that is not part of the official certified record: [a]ny

document which is not part of the official certified record is considered to be


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non-existent”) (internal quotations and citations omitted); Commonwealth

v. Gonzalez, 608 A.2d 528, 530 n.6 (Pa. Super. 1992) (“[i]t is appellant’s

responsibility   to   provide   the   reviewing   court   with   a   complete   and

comprehensive record for purposes of appeal”); Commonwealth v. Martz,

926 A.2d 514, 525 (Pa. Super. 2007) (“[a] failure by [a]ppellant to [ensure]

that the original record certified for appeal contains sufficient information to

conduct a proper review constitutes waiver of the issue sought to be

examined”) (internal quotations, citations, and corrections omitted).

      Appellant also claims that, during the resentencing hearing, the trial

court impermissibly “emphasized [Appellant’s] social history that has no

bearing upon criminality, such as the fact that [Appellant] has [ten] children,

but the pre-sentence investigator claimed that he could only name nine.”

Appellant’s Brief at 25. Yet, it is clear that the trial court’s passing reference

to the number of children that Appellant fathered and Appellant’s ability to

name his children had no bearing upon Appellant’s sentence.              See N.T.

Probation Revocation Hearing and Resentencing, 10/21/15, at 7-8; Trial

Court Opinion, 5/19/16, at 4-5. Indeed, the record demonstrates that the

trial court placed absolutely no reliance upon the asserted factor. Further,

the record demonstrates that the trial court’s sentence was appropriate and

necessary, given Appellant’s:         manifest and utter contempt for the trial

court; refusal to rehabilitate himself; clear danger to the public; and,




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repeated violations of the conditions of his probation. Appellant’s claim on

appeal fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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