Commonwealth v. Colon

J-S62010-14

2014 PA Super 242

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS COLON,

Appellant No. 3481 EDA 2012

Appeal from the Judgment of Sentence entered November 16, 2012,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0005223-2010

and CP-51-CR-000973-2011

BEFORE: ALLEN, OLSON, and OTT, JJ.

OPINION BY ALLEN, J.: FILED OCTOBER 24, 2014

Luis Colon (“Appellant”) appeals from the judgment of sentence

imposed after the trial court determined he violated the conditions of his

probation. We affirm.

The trial court summarized the pertinent facts and procedural history

as follows:

On September 9, 2010, [Appellant] was found guilty of

criminal trespass, graded as a felony of the second degree. On

November 10, 2010, the trial court sentenced [Appellant] to nine

to twenty months of incarceration followed by two years of

probation. On August 17, 2011, [Appellant] pleaded guilty to

possession with intent to deliver (“PWID”) and was sentenced to

a negotiated sentence of eleven and a half to twenty-three

months of incarceration followed by two years of probation.

[Appellant’s] plea to the PWID charge placed him in direct

violation of his parole for the criminal trespass conviction. Also,

on August 17, 2011, the trial court revoked [Appellant’s] parole

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on the criminal trespass conviction and sentenced him to the

balance of his back time followed by two years of probation.

On November 19, 2011, the trial court granted

[Appellant’s] early parole petition with the condition that

[Appellant] receive mental health and drug/alcohol treatment at

Eagleville Hospital. On December 12, 2011, [Appellant] was

released from custody and transported to the Eagleville Hospital

for inpatient treatment. On January 17, 2012, [Appellant] was

released from Eagleville because he successfully completed

inpatient treatment at that facility.

On January 18, 2012, just one day after being released

from Eagleville Hospital, Philadelphia police officer Mark Brown

responded to Third and Cambria Streets in Philadelphia where he

observed the complainant, Lynette Santiago, crying, yelling and

screaming. Officer Brown described her as “upset” and “frantic.”

Santiago told Officer Brown that [Appellant] punched her in the

face causing her lip to bleed. Officer Brown observed that

Santiago was bleeding from her lower lip, had scratches on her

face, and that her shirt was torn. On January 27, 2012,

[Appellant] was charged with simple assault for the January 18,

2012 incident.

On September 5, 2012, the Commonwealth filed a Motion

to Proceed with Probation Violation Hearing Pursuant to

Commonwealth v. Daisey Kates, 305 A.2d 701 (Pa. 1973).

On September 19, 2012, the trial court conducted the Daisey

Kates hearing. At the end of the hearing, the trial court found

[Appellant] in violation of both his parole/probation matters,

revoked [Appellant’s] parole and probation on each case, and

determined a new sentence of total confinement was warranted.

On November 16, 2012, the trial court sentenced [Appellant] to

new sentences of one and a half to five years of incarceration on

the criminal trespass conviction and a consecutive two and a half

to seven years of incarceration on the PWID conviction.

Trial Court Supplemental Opinion, 2/11/14, at 1-2 (citations to notes of

testimony omitted).

Appellant filed a petition to vacate and reconsider sentence nunc pro

tunc on November 29, 2012, and on November 30, 2012, the trial court

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entered an order approving the nunc pro tunc filing but denying the petition.

Appellant filed a timely notice of appeal on December 17, 2012, and on

December 20, 2012, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant did not file a timely Pa.R.A.P. 1925(b) statement; nonetheless, the

trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

On July 26, 2013, Appellant filed a motion to vacate the briefing

schedule and remand the certified record to the trial court for completion of

the appellate record. On August 20, 2013, this Court granted Appellant’s

motion and remanded the record. Appellant subsequently filed a statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and on

February 11, 2014, the trial court filed a supplemental Pa.R.A.P. 1925(a)

opinion.

Appellant presents the following issues for our review:

1. Did not the [trial] court err when it admitted hearsay

statements that a non-testifying complainant made

while under the influence of PCP, where such

statements were not “excited utterances” and where

the admission of such statements violated [Appellant’s]

right to confrontation?

2. Was not the evidence introduced at the probation

revocation hearing insufficient as a matter of law to

establish a technical violation of probation?

3. Did not the [trial court] abuse its discretion and violate

the Sentencing Code by sentencing [A]ppellant to four

to twelve years state incarceration, a manifestly

excessive violation of probation sentence, for a

technical violation of probation?

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Appellant’s Brief at 4.

In his first issue, Appellant argues that the trial court erred when it

permitted Officer Brown to testify about out-of-court statements made to

him by Ms. Santiago. Specifically, Appellant argues that the trial court erred

in concluding that Ms. Santiago’s statement to Officer Brown that Appellant

had assaulted her fell within the excited utterance exception to the hearsay

rule.

With regard to the excited utterance exception, our Supreme Court

recently explained:

As is well-settled, excited utterances fall under the common

law concept of res gestae. Res gestae statements, such as

excited utterances, present sense impressions, and expressions

of present bodily conditions are normally excepted out of the

hearsay rule, because the reliability of such statements are

established by the statement being made contemporaneous with

a provoking event. While the excited utterance exception has

been codified as part of our rules of evidence since 1998, see

Pa.R.E. 803(2), the common law definition of an excited

utterance remains applicable, and has been often cited by this

Court:

[A] spontaneous declaration by a person whose mind

has been suddenly made subject to an overpowering

emotion caused by some unexpected and shocking

occurrence, which that person has just participated in

or closely witnessed, and made in reference to some

phase of that occurrence which he perceived, and this

declaration must be made so near the occurrence both

in time and place as to exclude the likelihood of its

having emanated in whole or in part from his

reflective faculties.... Thus, it must be shown first,

that [the declarant] had witnessed an event

sufficiently startling and so close in point of time as to

render her reflective thought processes inoperable

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and, second, that her declarations were a spontaneous

reaction to that startling event.

The circumstances surrounding the statements may be sufficient

to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, 83 A.3d 137, 157-158 (Pa. 2013) (citations

omitted).

At the September 19, 2012 revocation hearing, in concluding that Ms.

Santiago’s statement constituted an excited utterance, the trial court relied

on the credible testimony of Officer Brown that on January 18, 2012, when

he initially encountered Ms. Santiago, she was “crying ... doing a lot of

yelling and screaming,” and “seemed very upset.” N.T., 9/19/12, at 7.

Officer Brown further noticed that Ms. Santiago had scratches on her face

and fresh blood on her lip and that her shirt was torn. Id. at 7-8, 11-12.

Officer Brown asked Ms. Santiago what happened, to which she immediately

responded that Appellant had struck her and punched her. Id. at 11. Officer

Brown additionally testified that Ms. Santiago appeared to him to be under

the influence of narcotics based on her having a blank stare and slurred

speech. Id. at 15. Officer Brown also observed that Appellant was lying in

the street nearby with “fresh blood” on him from injuries to his face and

hands. Id. at 16. When Officer Brown attempted to question Appellant,

Appellant became “very irate and stated ... that he did not want to discuss

any matters with the police.” Id. at 12. Thereafter, Ms. Santiago also

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refused to answer any more questions or provide any more information to

police. Id. at 12-13.

Based on Officer Brown’s testimony, the trial court determined that

Ms. Santiago’s statement constituted an excited utterance, concluding that

the statement was in response to a “startling event” and “was made under

the stress [of] the excitement caused by that event.” N.T., 9/19/12, at 24.

Moreover, the trial court reasoned that Appellant’s presence in close

proximity to Ms. Santiago, as well the fact that both of their injuries were

fresh, corroborated Ms. Santiago’s statement. As the trial court explained:

The trial court properly allowed Officer Brown’s testimony

about Santiago’s statements into evidence under the excited

utterance exception to the hearsay rule because: (1) Officer

Brown’s observations indicated that Santiago was under the

stress and trauma of suffering the observed injuries, including

her elevated voice, frantic and upset demeanor, immediate

responses to questions without reflection, torn clothing,

scratches on her face, and fresh blood from her lip, (2) Santiago

spoke with Officer Brown shortly after sustaining her injuries,

while [Appellant] was still laying on the ground and a crowd was

still gathered, and (3) the similar injuries to [Appellant], who

was “lying in the street,” with several injuries to his head and

hands, fresh blood from those injuries, and [Appellant’s] irate

and uncooperative demeanor.

Trial Court Supplemental Opinion, 2/11/14, at 4 (citations omitted).

Upon review, we find no error in the trial court’s decision to admit

Officer Brown’s hearsay tesimony under the excited utterance exception.

Although Appellant argues that Ms. Santiago’s excited behavior was the

result of her having ingested PCP, the trial court, within its province as

factfinder, did not find this argument persuasive. N.T., 9/19/12, at 23.

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Instead, the trial court reasoned that although Officer Brown testified that he

believed Ms. Santiago was under the influence of PCP, the officer’s belief

constituted mere supposition and was not supported by any test results or

statements by Ms. Santiago that she was in fact under the influence of a

controlled substance. Id. Rather, the trial court concluded that based on

the surrounding circumstances, Ms. Santiago’s excitement was the product

of her having experienced a startling event. See Murray, 83 A.3d at 157-

158 (“the circumstances surrounding the statements may be sufficient to

establish the existence of a sufficiently startling event”). Our review of the

record supports the trial court’s determination. Additionally, we note that

“[t]he jurisprudence of this Commonwealth makes it clear that a statement,

which otherwise qualifies as an excited utterance, is not precluded from

falling within the excited utterance exception to the hearsay rule when made

in response to questioning.” Commonwealth v. Jones, 912 A.2d 268,

282-283 (Pa. 2006) (citations omitted). Therefore, the fact that Ms.

Santiago identified Appellant as her assailant only after Officer Brown asked

her what happened does not disqualify her statement from the excited

utterance exception to the hearsay rule. Id.

Appellant next argues that the trial court’s admission of Ms. Santiago’s

out-of-court statement violated his right to confrontation under the Sixth

Amendment, and additionally that the Commonwealth failed to demonstrate

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“good cause” for admission of the out-of-court statement. Appellant’s Brief

at 23-26.

With regard to the Sixth Amendment right to confrontation, this Court

has explained “[t]he Confrontation Clause in the Sixth Amendment to the

United States Constitution provides that [i]n all criminal prosecutions, the

accused shall enjoy the right ... to be confronted with the witnesses against

him ...” Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014)

(citations and internal quotations omitted).1 Probation and parole revocation

hearings however, are not equivalent to criminal prosecutions. Rather,

because “[p]robation, like parole, is not part of the criminal prosecution ...

the full panoply of rights due a defendant in a criminal trial does not apply to

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1

“In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004), the United States Supreme Court held that the Confrontation

Clause of the Sixth Amendment prohibits the use of testimonial hearsay

obtained by police officers against a criminal defendant, even if such hearsay

is reliable, unless the defendant has the opportunity to cross-examine the

unavailable declarant.” Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa.

Super. 2013). Here, Appellant argues that Ms. Santiago’s out-of-court

statement was “testimonial” and therefore, pursuant to Crawford, the

Commonwealth could not deny Appellant the right to confront and cross

examine her, and the admission of Ms. Santiago’s out-of-court statement

was therefore constitutionally impermissible. Appellant’s Brief at 24-26.

However, “[s]ince Crawford was decided, the majority of jurisdictions have

held that Crawford concerns only Sixth Amendment confrontation rights in

criminal prosecutions and that because parole or probation revocation

proceedings are not criminal prosecutions, neither Crawford nor the Sixth

Amendment Confrontation Clause applies to parole or probation revocation

proceedings.” State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (Neb.,

2014). Rather, at a probation revocation hearing, hearsay is admissible

upon a finding of “good cause” for not allowing confrontation.

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).

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probation revocation. Probation is a suspended sentence of incarceration

served upon such terms and conditions as imposed by the sentencing court.

Probation revocation requires a truncated hearing by the sentencing court to

determine whether probation remains rehabilitative and continues to deter

future antisocial conduct. Such a hearing takes place without a jury, with a

lower burden of proof, and with fewer due process protections.”

Commonwealth v. Holder, 805 A.2d 499, 503-504 (Pa. 2002). At a

probation or parole revocation hearing, the following procedural safeguards

apply:

(a) written notice of the claimed violations of [probation or]

parole; (b) disclosure to the [probationer or] parolee of evidence

against him; (c) opportunity to be heard in person and to

present witnesses and documentary evidence; (d) the right to

confront and cross-examine adverse witnesses (unless

the hearing officer specifically finds good cause for not

allowing confrontation); (e) a “neutral and detached” hearing

body such as a traditional parole board, members of which need

not be judicial officers or lawyers; and (f) a written statement by

the factfinders as to the evidence relied on and reasons for

revoking [probation or] parole.

Commonwealth v. Ferguson, 761 A.2d 613, 617-618 (Pa. Super. 2000)

quoting Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36

L.Ed.2d 656 (1973) (emphasis added).

Thus, pursuant to Gagnon, supra, an out-of-court statement of an

adverse witness may be admitted if the trial court finds “good cause” for not

allowing the confrontation. As the Commonwealth Court has observed,

however, “‘[g]ood cause’ in this context (probation and parole revocation

hearings), has not been legislatively defined and the scant case law on the

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subject reflects an individual determination based on the facts of each case.”

Grello v. Com., Pennsylvania Bd. of Probation and Parole, 477 A.2d

45, 46-47 (Pa. Cmwlth. 1984).

At the revocation hearing in this matter, the trial court determined

that a finding of “good cause” was not necessary because the

Commonwealth had demonstrated that Ms. Santiago’s statement fell within

the excited utterance exception. N.T., 9/19/12, at 20. The trial court

concluded that only “if [the out-of-court statement] is determined to be

hearsay and not subject to an exception to the hearsay rule ... would [the

trial court] have to have a finding of good cause shown.” Id. at 20-21.

Concluding that Ms. Santiago’s out-of court statement fell within the excited

utterance exception, the trial court accordingly declined to make a separate

finding of whether “good cause” existed for depriving Appellant of his right

to confront Ms. Santiago.

Appellant argues, however, that the trial court was required to make a

separate, specific finding of “good cause” for depriving him of the right to

confrontation, regardless of whether Ms. Santiago’s statements fell within

the “excited utterance” exception to the hearsay rule.

Given the dearth of case law on this issue, we look for guidance to the

Commonwealth Court, which, addressing the admissibility of hearsay

testimony in parole and probation revocation hearings, has regularly

concluded that “[g]ood cause to admit hearsay when the declarant is

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unavailable may be based upon a finding of some intrinsic indicia of

reliability and corroboration by other evidence of record.” Majors v.

Pennsylvania Bd. of Probation and Parole, 808 A.2d 296, 298 (Pa.

Cmwlth. 2002); see also Rodriguez v. Com., Pennsylvania Bd. of

Probation & Parole, 516 A.2d 116 (Pa. Cmwlth. 1986). Here, at the

revocation hearing, the trial court established that the challenged

statements contained the requisite “indicia of reliability” given the trial

court’s findings that the statements were made while Ms. Santiago was still

under the stress of a startling event, and that her identification of Appellant

as her assailant was corroborated by other evidence of record including the

visibly fresh injuries to her face and the fact that Appellant was in close

proximity to her at the time and displayed injuries of his own. Thus, in

reaching its conclusion that the challenged statements constituted an excited

utterance, the trial court also satisfied the “good cause” requirement by

stating on the record the reasons for its belief that the challenged

statements were reliable.

To the extent that Appellant argues that the Commonwealth was

required to additionally demonstrate “good cause” for Ms. Santiago’s

unavailability at trial, our review of the record reveals that Officer Brown

testified that on the date of the incident, after Ms. Santiago initially stated

that Appellant had assaulted her, Ms. Santiago subsequently refused to

speak any further with the police. Officer Brown testified: “I asked her

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several times if she would continue to elaborate to what happened, and she

refused. I asked her if she would be interviewed by detectives further in

reference to this matter, at which time she also refused.” N.T., 9/19/12, at

12-13. Officer Brown testified that Ms. Santiago then “walked away” and

left the scene. Id. at 17. Under the more relaxed standards applicable to

revocation proceedings, we conclude that given Ms. Santiago’s refusal to

speak with police, the Commonwealth demonstrated the requisite “good

cause” for Ms. Santiago’s unavailability at trial and for admission of her out-

of-court statement.

In his second issue, Appellant argues that the evidence was insufficient

to support the revocation of his probation. Appellant’s Brief at 27-30. “A

challenge to the sufficiency of the evidence is a question of law subject to

plenary review. We must determine whether the evidence admitted at trial

and all reasonable inferences drawn therefrom, when viewed in the light

most favorable to the Commonwealth as the verdict winner, is sufficient to

support all elements of the offenses. A reviewing court may not weigh the

evidence or substitute its judgment for that of the trial court.”

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

(citations and internal quotations omitted).

“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

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discretion.” Id. “When assessing whether to revoke probation, the trial

court must balance the interests of society in preventing future criminal

conduct by the defendant against the possibility of rehabilitating the

defendant outside of prison. In order to uphold a revocation of probation,

the Commonwealth must show by a preponderance of the evidence that a

defendant violated his probation.” Commonwealth v. Allshouse, 33 A.3d

31, 37 (Pa. Super. 2011) (quotation marks and citations omitted). “[T]he

reason for revocation of probation need not necessarily be the commission of

or conviction for subsequent criminal conduct. Rather, this Court has

repeatedly acknowledged the very broad standard that sentencing courts

must use in determining whether probation has been violated[.]”

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations

and internal quotations omitted). “A probation violation is established

whenever it is shown that the conduct of the probationer indicates the

probation has proven to have been an ineffective vehicle to accomplish

rehabilitation and not sufficient to deter against future antisocial conduct.”

Id.

At the September 19, 2012 revocation proceeding, after hearing the

testimony of Officer Brown, the trial court concluded that the Commonwealth

had demonstrated by a preponderance of the evidence that Appellant had

violated his probation. The trial court explained:

[The Commonwealth] demonstrated by a preponderance of the

evidence, that [Appellant] engaged in assaultive conduct, that

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probation was ineffective to rehabilitate [Appellant], and that

[Appellant] would likely commit another crime if he were not

imprisoned. The trial court based its decision upon the evidence

that [Appellant] punched Lynette Santiago in her face causing

her lip to bleed and that Santiago had scratches on her face and

her shirt was torn. Such evidence is more than adequate to

revoke [Appellant’s] probation and issue a new sentence of total

confinement. Such sentence was also essential to vindicate the

authority of the trial court given that [Appellant] failed to comply

with the terms of his supervision only one day after being

released from Eagleville Hospital.

Trial Court Opinion, 7/10/13 at 4 (citations omitted).

We find no abuse of discretion in the trial court’s determination that

the evidence was sufficient to support revocation of Appellant’s probation.

The burden of proof for establishing a violation of probation is a

preponderance of the evidence, lesser than the burden in a

criminal trial of proof beyond a reasonable doubt. But there are

other noteworthy differences between a probation revocation

hearing and a criminal trial, and the manner in which each

proceeding affects the other also is significant:

The focus [of] a probation hearing, even though prompted by a

subsequent arrest, is whether the conduct of the probationer

indicates that the probation has proven to be an effective vehicle

to accomplish rehabilitation and a sufficient deterrent against

future anti-social conduct. It must be emphasized that a

probation revocation hearing is not a trial: The court's purpose

is not to determine whether the probationer committed a crime.

... The degree of proof necessary for probation revocation is less

than that required to sustain a criminal conviction. Probation

may be revoked on the basis of conduct which falls short of

criminal conduct.

Commonwealth v. Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (citations

and internal quotations omitted); see also Ortega, supra (“The question

before us, therefore, is not whether the evidence admitted at the VOP

hearing would, if admitted at trial, suffice to convict [the appellant] beyond a

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reasonable doubt ... but whether it showed by a preponderance of the

evidence that probation had proven ineffective in rehabilitating [the

appellant] and deterring him from antisocial behavior.”). Accordingly, we

find no error in the trial court’s determination that the testimony of record

was sufficient to demonstrate, by a preponderance of the evidence, that

Appellant engaged in assaultive behavior and that Appellant’s probation was

ineffective in accomplishing rehabilitation and had not deterred future

antisocial conduct.

Appellant next argues that the trial court abused its discretion when it

sentenced him to four to twelve years of incarceration. Such a challenge to

the discretionary aspects of a sentence is not appealable as of right. Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

Before we reach the merits of this [issue], we must engage

in a four part analysis to determine: (1) whether the appeal is

timely; (2) whether Appellant preserved his issue; (3) whether

Appellant's brief includes a concise statement of the reasons

relied upon for allowance of appeal with respect to the

discretionary aspects of sentence; and (4) whether the concise

statement raises a substantial question that the sentence is

appropriate under the sentencing code. The third and fourth of

these requirements arise because Appellant's attack on his

sentence is not an appeal as of right. Rather, he must petition

this Court, in his concise statement of reasons, to grant

consideration of his appeal on the grounds that there is a

substantial question. Finally, if the appeal satisfies each of these

four requirements, we will then proceed to decide the

substantive merits of the case.

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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.

Super. 2008) (“[W]hen 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 post-sentence motion.").

Here, Appellant preserved his claim in his motion for reconsideration,

and filed a timely notice of appeal.2 Appellant has additionally included in

his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s

Brief at 15-17. Moreover, Appellant’s claim that the trial court sentenced

him to a term of total confinement based solely on a technical violation

raises a substantial question for our review. See Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (“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. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000);

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2

We recognize that Appellant’s nunc pro tunc motion for reconsideration was

untimely. However, on November 30, 2012, the trial court entered an order

approving the nunc pro tunc filing, even though it denied the motion on its

merits, thereby permitting Appellant to preserve his discretionary claim.

See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724, n.1 (Pa. Super.

2013) (“It is well settled that a trial court may exercise its discretion and

permit a post-sentence motion to be filed nunc pro tunc within thirty days

after the imposition of sentence.”).

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Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (“a

claim that a particular probation revocation sentence is excessive in light of

its underlying technical violations can present a question that we should

review”).

Our standard of review is well-settled. We have explained:

The imposition of sentence 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. An abuse of discretion is more than an error in

judgment – a sentencing court has not abused its discretion

unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).

In determining whether a sentence is manifestly excessive, the

appellate court must give great weight to the sentencing court’s

discretion, as he or she is in the best position to measure factors

such as the nature of the crime, the defendant’s character, and

the defendant’s display of remorse, defiance, or indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).

Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration. 42 Pa.C.S.A. § 9771(b). “[U]pon 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.”

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

quotation marks and citations omitted). However, 42 Pa.C.S.A. § 9771(c)

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provides that once probation has been revoked, a sentence of total

confinement may only 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 the

court.

42 Pa.C.S.A. § 9771(c).

“In addition, in all cases where the court resentences an offender

following revocation of probation ... the court shall make as a part of the

record, and disclose in open court at the time of sentencing, a statement of

the reason or reasons for the sentence imposed [and] [f]ailure to comply

with these provisions shall be grounds for vacating the sentence or

resentence and resentencing the defendant.” Commonwealth v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations

omitted); 42 Pa.C.S. § 9721(b). “A trial court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court's consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1282-1283.

At the November 16, 2012 sentencing hearing, the trial court heard

from Appellant’s counsel, who recounted Appellant’s various mental health

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and substance abuse problems, as well as his family circumstances. N.T,

11/16/12, at 5-6. Additionally, the trial court heard from Appellant, who

expressed his remorse for his actions, and outlined his efforts at

rehabilitation and his attempts to secure employment. Id. at 10-12. The

trial court also had the benefit of a pre-sentence investigation report which

included a mental health analysis. The trial court then set forth on the

record the reasons for its sentence as follows:

[T]he Commonwealth is requesting a five-to-ten year

sentence. The defense is asking for a period of time served. ...

Let me highlight the following presentence investigation, which is

that [Appellant] had the benefit of juvenile supervision, which

despite that benefit, was not successful. Given the later

convictions, [Appellant has] had many revocations. Also, several

violent convictions, including robbery, resisting arrest and simple

assault.

[Appellant has] had minimal employment ... although [he]

had some successful treatment, and I do give [him] that.

[Appellant has] had successful treatment with the program in

late December [but] in the main, there’s been a repeated

unsuccessful attempt of treatment.

So in my view, what’s reasonable and appropriate, given

the protection of the public as well as rehabilitative needs,

should be 1½ to five years on the criminal trespass.

Consecutive to that would be 2½ to seven years on the

possession with intent to deliver. Bringing the total sentence to

four to twelve years of state time.

N.T., 11/16/12, at 12-13.

Upon review, we discern no abuse of discretion, Simmons, supra,

where the trial court considered the appropriate factors in concluding that

Appellant’s repeated attempts at rehabilitation had failed. The record

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J-S62010-14

supports the trial court’s determination that revocation and a sentence of

imprisonment for Appellant – who engaged in assaultive conduct one day

after his release from inpatient treatment for mental health and substance

abuse issues – was essential to vindicate the authority of the court.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2014

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