J. S69027/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
BRUCE ANDERSON,                         :           No. 3587 EDA 2013
                                        :
                        Appellant       :


        Appeal from the Judgment of Sentence, November 15, 2013,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0003582-2008


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 12, 2014

     Bruce     Anderson    appeals   from   the   judgment   of   sentence   of

November 15, 2013, following revocation of his probation. We affirm.

     On July 24, 2008, appellant pled guilty to one count of false

imprisonment. The charge related to an incident on June 19, 2007, when

appellant grabbed a 10-year-old girl, restrained her, and rubbed her

buttocks before she was able to run away.         Additional charges including

indecent assault were nolle prossed. On October 21, 2008, appellant was

sentenced to 11½ to 23 months’ imprisonment, with immediate parole,

followed by 8 years of supervised probation by the Mental Health Unit. On

April 22, 2009, appellant was found to be in violation of his parole;

appellant’s parole was revoked and he was sentenced to serve out the

balance of his sentence.
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      On August 13, 2012, appellant violated the terms of his probation, and

he was sentenced to 6 to 23 months’ imprisonment, with immediate parole,

followed by 5 years of supervisory probation under the Mental Health Unit.

On November 15, 2013, appellant was again found to be in violation of

probation, for failure to comply with the terms and conditions of the mental

health program.      Appellant was re-sentenced to 2½ years to 5 years’

incarceration followed by 5 years of probation. Appellant’s sentence was to

be served concurrently with the 2½ to 5-year sentence imposed August 22,

2013, by the Honorable Sheila Woods-Skipper in an unrelated violation of

probation (“VOP”) case.1

      Appellant   filed   a   motion   for   reconsideration   of   sentence   on

November 25, 2013.        On Monday, December 16, 2013, appellant filed a

timely notice of appeal.2 Appellant complied with Pa.R.A.P. 1925(b), and the

trial court has filed an opinion.


1
 Appellant filed an appeal in that case at No. 2932 EDA 2013, which is pending
before a different panel of this court.
2
  The filing of a motion to modify sentence does not toll the 30-day appeal
period in revocation cases. Pa.R.Crim.P. 708(E).

            Under this rule, the mere filing of a motion to modify
            sentence does not affect the running of the 30-day
            period for filing a timely notice of appeal. Any appeal
            must be filed within the 30-day appeal period unless
            the sentencing judge within 30 days of the imposition
            of sentence expressly grants reconsideration or vacates
            the sentence.

Id., Comment, citing Commonwealth v. Coleman, 721 A.2d 798, 799 n.2
(Pa.Super. 1998).


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      Appellant has raised the following issue for this court’s review:

              Was not [appellant]’s sentence of 2½ to 5 years[’]
              incarceration for a technical violation of probation
              excessive and unreasonable, where the lower court
              simply adopted the prior sentence of another
              sentencing judge in an unrelated violation matter
              and the lower court’s sentence failed to take any
              individualized account of appellant’[s] rehabilitative
              needs by disregarding his mental health issues and
              his mental health treatment programs’ agreement to
              continue working with him under more stringent
              parameters, and such a sentence was not necessary
              to vindicate the authority of the court?

Appellant’s brief at 4.

      The sentence imposed following the revocation of probation “‘is vested

within the sound discretion of the trial court, which, absent an abuse of that

discretion,   will   not   be   disturbed   on   appeal.’”      Commonwealth      v.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth

v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted).

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)

(en banc) (this court's scope of review in an appeal from a revocation

sentencing     includes    discretionary    sentencing       challenges).   As   the

Coolbaugh court observed:

              We recently summarized our standard of review and
              the law applicable to revocation proceedings as
              follows:

                           Our    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


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                  at the time of the initial sentencing.
                  42 Pa.C.S.A. § 9771(b) . . . . Also, upon
                  sentencing following a revocation of
                  probation, the trial court is limited only
                  by the maximum sentence that it could
                  have imposed originally at the time of
                  the probationary sentence. Finally, 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:

                  (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
                        court.

                  42 Pa.C.S.A. § 9771(c).

Id., quoting Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000)

(other citations omitted).   We also note that the sentencing guidelines do

not apply to sentences imposed as the result of probation revocations. Id.

(citations omitted).

            An appellant wishing to appeal the discretionary
            aspects of a probation-revocation sentence has no
            absolute right to do so but, rather, must petition this
            Court for permission to do so. [Commonwealth v.
            Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
            42 Pa.C.S.A. § 9781(b). Specifically, the appellant
            must present, as part of the appellate brief, a
            concise statement of the reasons relied upon for
            allowance of appeal. Malovich, 903 A.2d at 1250;


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            Pa.R.A.P. 2119(f). In that statement, the appellant
            must persuade us there exists a substantial question
            that the sentence is inappropriate under the
            sentencing code. Malovich, 903 A.2d at 1250;
            Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

            In general, an appellant may demonstrate the
            existence of a substantial question by advancing a
            colorable argument that the sentencing court’s
            actions were inconsistent with a specific provision of
            the sentencing code or violated a fundamental norm
            of the sentencing process. Malovich, 903 A.2d at
            1252. While this general guideline holds true, we
            conduct a case-specific analysis of each appeal to
            decide whether the particular issues presented
            actually form a substantial question. Id. Thus, we
            do not include or exclude any entire class of issues
            as being or not being substantial. Id. Instead, we
            evaluate each claim based on the particulars of its
            own case. Id.

Id. at 289-290.

      In his Rule 2119(f) statement, appellant contends that the trial court

merely adopted Judge Woods-Skipper’s findings in an unrelated case and did

not exercise its own independent judgment.           (Appellant’s brief at 8.)

Appellant also argues that the sentence imposed failed to address his

rehabilitative needs and disregarded the fact that the mental health program

in which appellant was enrolled (“JJPI”) had agreed to continue working with

him under more stringent parameters. (Id.) Appellant states that he has

long-standing mental health issues and JJPI was willing to provide additional

services.   (Id. at 9.)   Appellant alleges that none of the criteria for total

confinement set forth at 42 Pa.C.S.A. § 9771(c) was satisfied here. (Id.)


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      Essentially, appellant is arguing that his technical violations of

probation by failing to comply with JJPI’s requirements did not support a

state sentence. “The imposition of a sentence of total confinement after the

revocation of probation for a technical violation, and not a new criminal

offense, implicates the ‘fundamental norms which underlie the sentencing

process.’”    Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.

2010), appeal denied, 13 A.3d 475 (Pa. 2010), quoting Sierra, 752 A.2d

at 913.      “Additionally, a substantial question that the sentence was not

appropriate under the Sentencing Code may occur even where a sentence is

within the statutory limits.” Id., citing Commonwealth v. Titus, 816 A.2d

251 (Pa.Super. 2003).      We determine appellant has raised a substantial

question regarding the appropriateness of his sentence, and will proceed to

review the merits of his claim.

      First, with regard to appellant’s argument that the trial court simply

adopted the sentence of Judge Woods-Skipper and did not make its own

findings, this claim is waived.    In his Rule 1925(b) statement, appellant

argued that his sentence was manifestly excessive and unreasonable where

his technical violations stemmed from mental health issues and a sentence

of total confinement was not necessary to vindicate the authority of the




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court.3   Appellant never alleged that the trial court erred by relying on

Judge Woods-Skipper’s findings in an unrelated matter.           Therefore, this

particular issue is waived.    Pa.R.A.P., Rule 1925(b)(4)(vii), 42 Pa.C.S.A.

See also Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009),

appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for

appellate review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to

[Rule] 1925.   Any issues not raised in a [Rule] 1925(b) statement will be

deemed waived.”) (citations omitted).

      The trial court states that its sentence was not unreasonable and was

necessary to vindicate the authority of the court.         (Trial court opinion,

6/13/14 at 3.)   The trial court observes that this was appellant’s second

probation violation (and third violation overall, including his April 2009

parole revocation). (Id.) In addition, the trial court received information to


3
            The issue appellant plans to raise on appeal is: The
            trial court erred as a matter of law, abused its
            discretion and imposed a manifestly excessive and
            unreasonable sentence of 2.5 to five years of
            incarceration plus five years of probation, where
            appellant had only technical violations of his probation,
            where his technical violations stemmed from mental
            health issues, where a sentence of total confinement
            was not necessary to vindicate the authority of the
            court, where the trial court failed to state sufficiently
            adequate reasons for imposing the new sentence, and
            where the trial court failed to properly weigh and
            consider the totality of the mitigating circumstances
            present in this case.

Appellant’s Rule 1925(b) statement, 1/30/14 at 2 ¶6; docket #10.


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the effect that appellant had also violated his probation in an unrelated case

before Judge Woods-Skipper, and had been re-sentenced to 2½ to 5 years.

(Id.) It is true that appellant’s violations were technical in nature; however,

he had clearly demonstrated by his repeated violations of the terms and

conditions of his probation that he was not amenable to treatment.

Appellant refused to abide by JJPI’s requirements.      At the November 15,

2013 hearing, the trial court heard from appellant as he exercised his right

of allocution, and also heard evidence that appellant had been doing well at

JJPI until the last three months, and that JJPI was willing to continue

working with appellant, including increasing his treatment from four to five

days per week and providing additional services.        (Notes of testimony,

11/15/13 at 7-8, 10.) The trial court was also aware of appellant’s problems

sleeping and that his psychiatrist had recently changed his medications.

(Id. at 8.)

      Overall, given appellant’s repeated violations, we cannot say the trial

court abused its discretion in imposing a state sentence.      The trial court

directed that appellant continue to receive mental health treatment while in

prison.   (Id. at 12.)   We also note that the trial court made appellant’s

sentence concurrent, as requested by counsel.      (Id. at 6-7, 11.)   In fact,

counsel characterized a concurrent sentence of 2½ to 5 years as “sufficient”:

“Your Honor, my understanding is that probation does not oppose a

concurrent sentence and I’m asking for whatever sentence you impose to be



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concurrent. I think that the two and a half to five is sufficient too.” (Id. at

11.) There is no merit to appellant’s discretionary sentencing claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2014




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