Commonwealth v. Banks

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2018 PA Super 390

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

EMMANUEL THEODORE BANKS :

:

Appellant : No. 1451 MDA 2017

Appeal from the Judgment of Sentence Entered December 15, 2016

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0000621-2014,

CP-67-CR-0001283-2015, CP-67-CR-0001472-2015,

CP-67-CR-0001501-2015, CP-67-CR-0001503-2015,

CP-67-CR-0003290-2015

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

OPINION BY McLAUGHLIN, J.: FILED OCTOBER 29, 2018

Emmanuel Theodore Banks appeals from the judgment of sentence of

18 to 42 months, imposed on December 15, 2016, following revocation of his

intermediate punishment. Banks challenges the authority of a visiting judge

to revoke his original sentence, as well as discretionary aspects of the new

sentence imposed. We affirm.

In June 2015, Banks pleaded guilty before the Honorable Thomas H.

Kelley to certain charges filed against him at each of the above-listed dockets.1

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* Retired Senior Judge assigned to the Superior Court.

1 Banks pleaded guilty to the following:

(1) Dkt. No. 621-2014 - Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a)

(graded as an M2);

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See Notes of Testimony (N.T. Plea), 06/30/2015. The underlying facts

supporting each of those pleas were not addressed by the revocation court,

nor is their substance relevant to the issues currently before this Court.

Therefore, we need not discuss them in detail. See N.T. Plea at 6-9 (outlining

the factual basis for Banks’ crimes).

Following a presentence investigation, this matter proceeded to

sentencing in October 2015. See Notes of Testimony (N.T. Sentencing),

10/01/2015. The court imposed concurrent sentences for all charges,

comprised largely of time-served sentences, probation, costs and fines. Id.

at 5-7. At three dockets, Nos. 1472-2015, 1503-2015, and 3290-2015, the

court imposed county intermediate punishment (IP) of five years, with the

first twelve months to be served in the Day Reporting Center (DRC). Id. at

6. Following imposition of sentence, for reasons that are not clear from the

record, this matter was re-assigned to the Honorable Michael E. Bortner. See,

e.g., Dkt. No. CP-67-CR-0001472-2015, Filings Information, Registry Entry,

10/22/2015.

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(2) Dkt. No. 1283-2015 – Resisting Arrest, 18 Pa.C.S. § 5104; Accidents

Involving Damage, 75 Pa.C.S. § 3743(a); Driving under Suspension,

75 Pa.C.S. § 1543(a).

(3) Dkt. No. 1472-2015 – two counts of Possession with Intent to Deliver

(PWID), 35 P.S. § 780-113(a)(30);

(4) Dkt. No. 1501-2015 – Defiant Trespass, 18 Pa.C.S. § 3503(b)(1)(i);

(5) Dkt. No. 1503-2015 – Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a)

(graded as an M1);

(6) Dkt. No. 3290-2015 – PWID, 35 P.S. § 780-113(a)(30).

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In June 2016, the York County Probation Department filed a petition for

violation at each of Banks’ six dockets. See Pet. for Violation, 06/17/2018.

In support of the petition, the department cited new criminal charges and

numerous technical violations. Id. at 4-5. According to the department, the

charges arose from a domestic dispute involving Banks’ paramour and

included allegations of assault and theft.2 Id. at 5. The technical violations

included numerous allegations of failure to report to the DRC, failure to report

for urine screenings, and/or production of a urine sample that tested positive

for marijuana or alcohol. Id. at 4-5.

A warrant issued, and Banks was detained. In October 2016, he was

released on supervised bail, and a hearing was scheduled for December 2016.

See Revocation Ct. Order, 10/20/2016. The stated purpose of the hearing

was two-fold: (1) a preliminary hearing to address Banks’ new charges,

apparently necessary because the complaining witness was no longer

cooperating with the Commonwealth; and (2) an IP violation hearing. Id.

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2In its opinion, the revocation court stated that Banks was charged thereafter,

by Informations dated September 2, 2016, as follows:

(1) Dkt. No. 5301-2016 – Simple Assault, 18 Pa.C.S. § 2701(a)(1);

(2) Dkt. No. 5303-2016 - Kidnapping, 18 Pa.C.S. § 2901(a)(3); Burglary,

18 Pa.C.S. § 3502(a)(1); Simple Assault, 18 Pa.C.S. § 2701(a)(3);

Terroristic Threats, 18 Pa.C.S. § 2706(a)(1); and Unlawful Restraint,

18 Pa.C.S. § 2902(a)(1).

Revocation Ct. Pa.R.A.P. 1925(a) Op., 02/28/2018, at 2.

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Sometime after this order issued, Judge Bortner left the bench on a medical

convalescence. See Revocation Ct. Pa.R.A.P. 1925(a) Op. at 2.

At this point, the procedural history of this case becomes complicated.

During Judge Bortner’s absence, in December 2016, the scheduled hearing

commenced before the Honorable Linda K. M. Ludgate. Notes of Testimony

(N.T. Revocation), 12/15/2016.3 At the request of the Commonwealth, the

court entered an order to nolle pros the charges related to Banks’ paramour.

Id. at 2. The parties proceeded to address Banks’ alleged IP violations. Id.

At this point, the following exchange occurred:

THE COURT: Okay. Is your client prepared to proceed today[,]

because otherwise why wouldn’t he proceed?

[BANKS’ COUNSEL]: Yeah, we can proceed. That’s fine.

N.T. Revocation at 3.

Counsel conceded technical violations of his IP sentence but voiced

concern that the nolle prossed charges formed the primary basis for the

revocation hearing. Id. Though initially the court indicated that the substance

of the new charges were no longer relevant, upon further consideration, the

court agreed to consider the evidence. Id. at 3-4.

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3 Judge Ludgate served as a visiting, senior judge from Berks County,

Pennsylvania. See N.T. Revocation at 1; Notes of Testimony (N.T. Post

Sentence Hearing), 03/28/2017, at 16; Revocation Ct. Pa.R.A.P. 1925(a) Op.

at 2; PCRA Ct. Order, 06/30/2017, at 2. As will become clear, this hearing

represents Judge Ludgate’s sole involvement with this case.

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The probation officer first detailed the technical violations committed by

Banks.4 Id. at 4-6 (detailing the dates on which Banks failed to report to the

DRC, failed to provide urine samples or provided diluted samples, and

produced samples testing positive for marijuana or alcohol). Thereafter, the

probation officer again referenced Banks’ arrest and provided details of Banks’

alleged behavior:

PROBATION OFFICER: Well, condition 10 [of the terms of Banks’

intermediate punishment], assaultive and threatening behavior.

Again, those are related to those cases. That incident, there was

a police report. Probation was contacted, as you see, Your Honor,

May 28th –

THE COURT: He punched her in the head. Is this a domestic thing?

PROBATION OFFCIER: It appears to be so, Your Honor. It’s his

paramour. She –

THE COURT: It was a second time he’s alleged to have broken into

her house?

PROBATION OFFICER: I believe so, Your Honor, according to this

report, and according to what we have on record from the police

as well.

THE COURT: It looks like, according to this third paragraph under

10, that this was a place that was in her name?

PROBATION OFFICER: It seems so, Your Honor.

THE COURT: And then he got arrested on domestic violence?

PROBATION OFFICER: Yes. He was detained and officers from

York City Police Department did also submit a report as well.

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4The parties seemingly agreed to proceed with an informal hearing. See id.

at 3. Though Banks was sworn in, the probation officer was not. Id. at 3-4.

Banks does not challenge the informal nature of the proceedings.

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We were able to make entry, the probation department, into [the

alleged victim’s] house. In paragraph 2, also, [Banks] took [the

victim] at knife point to Red Lion and returned sometime –

Id. at 6-7. At this point, counsel for Banks objected:

[COUNSEL]: Your Honor, I’m going to formally object to this.

Those charges were nolle prossed. I don’t think it’s proper[ly]

before you.

Id. at 7. The court did not rule on Banks’ objection but ceased questioning

the probation officer regarding the allegations and sought a recommendation

for sentencing. Id. The probation officer then recommended 21 to 42 months

of incarceration. Id.

In response, Banks attempted to explain why he had passed diluted

and/or positive urine and informed the court that he was employed and took

weekly classes at a church. No further evidence was offered to counter the

statements of the probation officer. Id. at 12.

Thereafter, the court concluded that Banks had violated the terms of his

IP sentence imposed at three dockets, Nos. 1472-2015, 1503-2015, and

3290-2015. The court revoked those IP sentences and imposed an aggregate

sentence of 18 to 42 months of incarceration. Id. at 14.5

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5To be clear, no action was taken at docket Nos. 621-2014, 1501-2015, or

1283-2016.

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Banks timely filed a post-sentence motion.6 Banks’ Post-Sentence

Motion, 12/16/2016. Banks noted that Judge Ludgate was not the original

sentencing judge and asserted that neither he nor his counsel consented to

Judge Ludgate presiding over the violation hearing. Id. at 1-2 (unpaginated).

Further, according to Banks, no extraordinary circumstances justified a

different judge’s supervision of his case. Id. at 2 (unpaginated) (further

averring that Judge Bornter’s absence was temporary and that he was due to

return to the bench in January 2017). Banks also asserted that the sentence

imposed was excessive and noted that the new charges filed against him were

nolle prossed. Id. at 2-3 (unpaginated). Accordingly, Banks requested that

his sentence be vacated and a new violation hearing held before Judge

Bortner. Id.

The court took no action to resolve Banks’ motion until February 2017,

when it issued an order scheduling a hearing. Revocation Ct. Order,

02/14/2017. In March 2017, a hearing was held before Judge Bortner. See

N.T. Post-Sentence Hearing at 1. Following argument, it became clear that

Banks sought resentencing, asserting that Judge Ludgate had impermissibly

focused on the nolle prossed charges. Id. at 3-6. Following further

discussions, Judge Bortner declined to rule on Banks’ motion, concluding that

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6 A motion to modify a sentence imposed after a revocation proceeding does

“not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E). Here, Banks did not

file an appeal from the judgment of sentence within 30 days. However, his

appeal is nonetheless timely because, as discussed below, the court reinstated

Banks’ appellate rights.

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it should be resolved by Judge Ludgate. Id. at 14. In light of the unusual

circumstances, the court permitted Banks to request formally an extension of

time within which to file an amended motion. Id. at 14-16 (suggesting that

Banks alert court administration to the time constraints of Pa.R.Crim.P. 720).

Two weeks later, in April 2017, without express leave to do so, Banks filed an

amended post-sentence motion, which reiterated his assertion that the

sentence imposed was excessive in light of the nolle prossed charges and

noted that the Commonwealth and the court agreed that the sentencing issue

should be heard by Judge Ludgate. Banks’ Amended Post-Sentence Motion,

04/12/2017.

The court took no further action to resolve Banks’ post-sentence motion

or the amended motion. In May 2017, Banks pro se filed a petition for

collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546, asserting inter alia that he was sentenced based upon charges

nolle prossed. Banks’ PCRA Petition, 05/09/2018, at 3.

In response, the court issued an order scheduling a hearing to resolve

the post-sentence motion, the amended motion, as well as the PCRA petition.

In so doing, the court specifically acknowledged that Banks’ initial post-

sentence motion should have been denied as a matter of law but that no notice

of the denial was entered on the docket or forwarded to Banks. See PCRA Ct.

Order, at 1-2 (citing Pa.R.Crim.P. 720(B)(3)). Moreover, the court again

recognized the unusual circumstances of this case, in particular Judge

Ludgate’s temporary stewardship and unavailability. Id. at 2. In order to

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resolve the outstanding issues, Judge Bortner reassumed control of this case.

Id. at 2 (citing in support Commonwealth v. Lambert, 765 A.2d 306

(Pa.Super. 2000) (suggesting that new judge may preside over “post-

conviction” proceedings in “the interests of justice”)).

In August 2017, following a hearing, the court granted Banks’ PCRA

petition and reinstated his appellate rights. PCRA Ct. Order, 08/22/2017. In

addition, the court noted that Banks’ amended post-sentence motion was

denied by operation of law but granted him immediate, supervised bail. Id.

Banks timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement challenging Judge Ludgate’s authority to preside over the violation

hearing and discretionary aspects of the sentence imposed. See Banks’

Pa.R.A.P. 1925(b) Statement. The court filed a responsive opinion.7

Banks raises the following issues on appeal:

[1.] The [revocation] court erred in denying [Banks’] motion to

vacate his sentence and order [a] new sentencing hearing so [he]

could be resentenced before the original sentencing judge.

[2.] The [revocation] court abused its discretion when it imposed

an excessive sentence on [Banks] by considering charges and

their underlying facts[,] which had been nol[le] prossed by the

Commonwealth.

Banks’ Br. at 4.

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7 To be clear, following reinstatement of his appellate rights, Banks appealed

from the judgment of sentence imposed by the revocation court. In response,

Judge Bortner authored an opinion on behalf of the revocation court. See

Revocation Ct. Pa.R.A.P. 1925(a) Op. at 13.

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Banks challenges the revocation of his county IP sentence and the facts

relied upon in fashioning a new sentence.

Our Court has held that the revocation of a county intermediate

punishment sentence is equivalent to the revocation of

probation[.] An intermediate punishment sentence imposed

pursuant to 42 Pa.C.S. § 9763 … may be revoked where the

specific conditions of the sentence have been violated. “Upon

revocation, the sentencing alternatives available to the court shall

be the same as the alternatives available at the time of initial

sentencing.” 42 Pa.C.S. § 9773[.] This rule of resentencing is

analogous to that set forth for resentencing following revocation

of probation. … Moreover, revocation of probation occurs, as does

revocation of an intermediate punishment sentence, where it has

been found the defendant has violated the terms of his sentence.

Commonwealth v. Melius, 100 A.3d 682, 685-86 (Pa.Super. 2014)

(formatting modified; some internal citations removed).

Revocation of a county IP sentence is governed by 42 Pa.C.S. § 9773,

which provides in relevant part:

Revocation. -- The court may revoke a sentence of county

intermediate punishment upon proof of a violation of specific

conditions of the sentence. Upon revocation and subject to

section 9763(d), the sentencing alternatives available to the court

shall be the same as the alternatives available at the time of initial

sentencing.

42 Pa.C.S. § 9773(b). In an appeal, we may review the validity of the

revocation proceedings, as well as the legality and discretionary aspects of

any new sentence imposed. Commonwealth v. Cartrette, 83 A.3d 1030,

1033-34 (Pa.Super. 2013) (en banc).

In his first issue, Banks contends the revocation court erred in denying

his post-sentence motion to vacate his sentence and conduct a new hearing

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before “the original sentencing judge.” Bank’s Br. at 15. Essentially, Banks

challenges the authority of Judge Ludgate, a visiting judge with no prior

involvement in his case, to preside over his violation hearing. See id. at 12.

According to Banks, absent extraordinary circumstances not present here,

Judge Bortner was the appropriate judge to preside. See id. at 15-16 (citing

in support Commonwealth v. McNeal, 120 A.3d 313 (Pa.Super. 2015));

Pa.R.Crim.P. 700). Proceeding from this premise, Banks further argues that

Judge Bortner erred when he invoked the coordinate jurisdiction rule8 and

declined to rule on Banks’ post sentence motion. Id. at 15. According to

Banks, Judge Ludgate’s consideration of allegations underlying the nolle

prossed charges constituted a manifest injustice, i.e., an exception to the

coordinate jurisdiction rule. Id. at 18. Thus, Banks concludes, he is entitled

to a new violation hearing. Id. at 22.

Initially, we observe that Judge Bortner was not, in fact, the original

sentencing judge in this case. The certified record reveals that Judge Kelley

accepted Banks’ guilty plea, reviewed a presentence investigation, and

imposed sentence. See N.T. Plea; N.T. Sentencing. Judge Bortner was

assigned supervision of Banks’ case sometime thereafter. See, e.g., Dkt No.

CP-67-CR-0001472-2015, Filings Information, Registry Entry, 10/22/2015.

We decline to reject Banks’ arguments on this ground, however, as it is clear

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8 “[T]he coordinate jurisdiction rule commands that upon transfer of a matter

between trial judges of coordinate jurisdiction, a transferee trial judge may

not alter resolution of a legal question previously decided by a transferor trial

judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003).

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that Judge Bortner was the regularly assigned judge since October 2015, and

apart from his brief medical absence, has had significant involvement with this

case.

In McNeal, this Court vacated the judgment of sentence imposed where

a judge, assigned to adjudicate new charges incurred by a probationer, also

assumed jurisdiction over the probation matter. McNeal, 120 A.3d at 322-

25. In so doing, we relied upon Pennsylvania Rule of Criminal Procedure 700,

which mandates that “the judge who presided at the trial or who received the

plea of guilty or nolo contendere shall impose sentence unless there are

extraordinary circumstances which preclude the judge’s presence.”

Pa.R.Crim.P. 700; see McNeal, 120 A.3d at 323. Recognizing the “obvious

value” in a sentencing judge’s familiarity with a defendant’s character and the

nature of his crimes, we reasoned as follows:

It is axiomatic that the judge who presides over the trial, or who

accepts a guilty plea based upon a recitation of the facts

underlying the pleaded-to crime, is the judicial officer best

equipped to assess the nature of the defendant and the crime itself

before imposing sentence.

Rule 700 does not state that its terms apply to sentencing

following a probation revocation. However, our General Assembly

has instructed that, upon a probation revocation, “the sentencing

alternatives available to the court shall be the same as were

available at the time of initial sentencing.” 42 Pa.C.S. § 9771(b).

In other words, in practical effect, a judge imposing sentence after

finding that a defendant has violated probation is no different from

a judge imposing sentence in the first instance. For this precise

reason, we discern no principled difference between a judge

imposing an original sentence and one imposing a probation

violation sentence, and certainly no difference meaningful enough

to exempt the latter from the dictates of Rule 700.

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McNeal, 120 A.3d at 323. Thus, we concluded that Rule 700 applies in the

revocation context. Id.

In McNeal, we had no opportunity to examine what may constitute

extraordinary circumstances. Id. (observing no “extraordinary or even

pedestrian” circumstances); but see Commonwealth v. Williams, 375 A.2d

155, 157-58 (Pa.Super. 1977) (recognizing that stroke, “which disabled [the

initial jurist] for some time, and which thereafter precluded his involvement

in the rigorous duties inherent in the criminal court, certainly constituted

‘extraordinary circumstances’ within the meaning of the Rule”). Nevertheless,

we specifically rejected judicial economy as sufficient justification. McNeal,

102 A.3d at 324 (concluding that convenience and efficiency do not equate

with extraordinary circumstances required by rule).

Here, Banks suggests that Judge Bortner’s medical absence fails to

demonstrate extraordinary circumstances. Banks’ Br. at 16. In support of

this suggestion, he notes that Judge Bortner was readily available three

months later, i.e., in March 2017, when he presided over a hearing on Banks’

post-sentence motion. Id.; see also N.T. Post Sentence Hearing at 1.

Moreover, we observe that Judge Bortner signed the order scheduling this

hearing in February 2017, one month earlier. See Revocation Ct. Order,

02/14/2017.

In his opinion filed on behalf of the revocation court, Judge Bortner

contends that it was proper for Judge Ludgate to assume control over Banks’

revocation proceedings, as he was recuperating from surgery. Revocation Ct.

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Pa.R.A.P. 1925(a) Op. at 6 (citing in support McNeal, 120 A.3d at 323). Judge

Bortner provides no further details describing his absence; thus, it is not clear,

for example, whether his absence was planned in advance, whether his

surgery was elective or the result of an emergency, the seriousness of his

illness or injury, or whether his absence was intended to be short- or long-

term. In similarly circumspect language, the Commonwealth merely echoes

the court’s contention, suggesting that “surgery and resulting recuperation”

necessitated Judge Ludgate’s assignment. Commonwealth’s Br. at 11 (citing

in support Williams, supra).

Though McNeal contemplated that illness may constitute an

extraordinary circumstance, see McNeal, 120 A.3d at 323, as noted

previously, we did not examine this possibility in any detail. To the contrary,

in McNeal, we characterized the transfer of the case as “mere happenstance”

and “random chance,” the result of a conversation between jurists on a

completely unrelated civil matter. Id. at 324. Moreover, an illness or some

other medical absence could be quite serious, as in Williams, or a rather

mundane affair, certainly not extraordinary. We reiterate that in Williams,

the judge’s absence was caused by “the sudden onset of illness,” which

apparently “thereafter precluded his involvement in the rigorous duties

inherent in the criminal court.” Williams, 375 A.2d at 158. Thus, in our view,

based upon the reasoning in McNeal and Williams, a temporary and planned

medical absence would not likely constitute an extraordinary circumstance

sufficient to meet the requirements of Rule 700.

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Here, the record is not sufficiently clear that we may determine whether

the circumstances of this case more closely align with McNeal or Williams.9

Nevertheless, we need not remand for further development of the record, for

we conclude that Banks is not entitled to a new violation hearing, as he

consented to Judge Ludgate’s authority to preside over this case.

Again, we turn to McNeal for guidance. During pretrial discussions in

that case concerning the grading of a criminal mischief charge, the presiding

judge announced that he was assuming supervision of the defendant’s

probation matter and warned the defendant that if he found him guilty of the

criminal mischief charge, now graded as a summary offense, it would

constitute a violation of the defendant’s probation. McNeal, 120 A.3d at 317.

The defendant voiced concern over the reassignment, which was rejected by

the presiding judge. Id. at 319. The matter proceeded to trial; a jury

acquitted the defendant of all charges before it; but the presiding judge found

him guilty of the outstanding criminal mischief charge. Id. at 319-20. Prior

to sentencing, the defendant filed a motion for extraordinary relief,

challenging the reassignment of his probation matter. Id. Finding no

circumstances, “whether extraordinary or even pedestrian,” that would

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9 In light of the pointed language used by this Court in McNeal, we stress that

we intend no such criticism of Judge Bortner’s role in this matter. We merely

conclude that the record does not disclose sufficient detail of the

circumstances leading to his absence to determine whether they would

constitute extraordinary circumstances. In other words, it is not clear whether

the temporary reassignment of this matter to Judge Ludgate was a matter of

convenience or judicial economy, as in McNeal, or truly extraordinary

circumstances, as in Williams.

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empower one judge “to reach out and take control” over another’s case, we

observed that “[o]nly the consent of both parties would permit such a

maneuver.” McNeal, 120 A.3d at 323.

Here, when questioned whether he was willing to proceed with the

revocation hearing before Judge Ludgate, counsel for Banks offered no

resistance and lodged no objection, responding simply:

[BANKS’ COUNSEL]: Yeah, we can proceed. That’s fine.

N.T. Revocation at 3. Further, unlike the defendant in McNeal, Banks delayed

any challenge to Judge Ludgate’s supervision until after she had imposed

sentence. See Banks’ Post-Sentence Motion. For these reasons, we conclude

that Banks’ reliance upon McNeal is misplaced. Specifically, Banks consented

to Judge Ludgate’s authority to preside over his violation hearing, and we

deem waived any challenge thereto. McNeal, 120 A.3d at 323; see also

Cartrette, 83 A.3d at 1033-34.10

In his second issue, Banks contends that the revocation court imposed

an excessive sentence. Banks’ Br. at 20. According to Banks, the court

improperly considered and was “unusually fixated” on facts alleged in support

of the nolle prossed charges. Id. Suggesting that IP revocation is improper

when it is based solely upon an arrest, Banks notes the longstanding

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10 In light of our conclusions, we need not address the merit of Banks’

argument regarding the coordinate jurisdiction rule.

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preference in Pennsylvania to defer final revocation proceedings11 until after

new charges are resolved. Id. at 20-21 (citing in support Commonwealth

v. Brown, 469 A.2d 1371 (Pa. 1983)). Thus, Banks concludes, the revocation

court abused its discretion. Id. at 21.

Banks challenges discretionary aspects of his sentence. Such a claim

is not appealable as of right. Commonwealth v. Colon, 102 A.3d 1033,

1042 (Pa.Super. 2014); Cartrette, 83 A.3d at 1042. Rather, an appellant

must petition this Court for allowance of appeal pursuant to 42 Pa.C.S. § 9781.

Colon, 102 A.3d at 1042. Before we exercise jurisdiction to reach the merits

of a claim, we must determine: (1) whether the appeal is timely; (2) whether

the appellant has preserved his issue; (3) whether his brief includes a concise

statement of the reasons relied upon for allowance of an appeal with respect

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

statement raises a substantial question whether the sentence is inappropriate

under the Sentencing Code. Id. at 1042-43; see also Pa.R.A.P. 2119(f)

(mandating that an appellant “set forth in a separate section … the reasons

relied upon for allowance of appeal”). Only if the appeal satisfies each of these

four requirements may we proceed to decide the substantive merits of the

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11 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (outlining a two-step

process to determine (1) whether probable cause exists to believe a violation

has occurred, i.e., a Gagnon I hearing, and (2) whether, in fact, a violation

has occurred, a Gagnon II hearing); see also Commonwealth v. Sims,

770 A.2d 346, 349-50 (Pa.Super. 2001).

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claim. Colon, 102 A.3d at 1043. In so doing, we review the sentence imposed

by the revocation court for an abuse of discretion. Id.

Following reinstatement of his appellate rights, Banks timely filed a

notice of appeal; he properly preserved his issue in a post-sentence motion;

and his brief contains a concise statement of the reasons on which he relies.

Banks’ Br. at 13-14. Thus, we must determine whether Banks has raised a

substantial question.

The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. A substantial question

exists only when the appellant advances a colorable argument

that the sentencing judge's actions were either: (1) inconsistent

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

to the fundamental norms which underlie the sentencing process.

Commonwealth v. Derry, 150 A.3d 987, 991 (Pa.Super. 2016) (formatting

modified; internal citations and quotation marks omitted). We do not accept

bald assertions that a sentence is excessive. Id.

Banks asserts that the revocation court relied upon an impermissible

factor in sentencing him. Banks’ Br. at 13 (citing in support Commonwealth

v. Allen, 24 A.3d 1058 (Pa.Super. 2011)). It is well settled that “a claim that

the sentencing court relied on impermissible factors in sentencing raises a

substantial question.” Commonwealth v. Bromley, 862 A.2d 598, 605

(Pa.Super. 2004) (citing Commonwealth v. Kraft, 737 A.2d 755 (Pa.Super.

1999)).

In support of this assertion, Banks suggests that it was impermissible

for the revocation court to consider his arrest on charges that were nolle

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prossed prior to the revocation hearing. Banks’ Br. at 13 (citing in support

Commonwealth v. Sims, 770 A.2d 346 (Pa.Super. 2001)), 18, 20.

In our view, Sims is inapposite. In that case, a defendant serving a

probationary sentence incurred new charges. Sims, 770 A.2d at 348. The

defendant waived his right to a preliminary revocation hearing. Id.

Thereafter, failing to present substantive evidence in support of the new

charges, the Commonwealth suggested that the defendant’s waiver was

sufficient to establish that a violation had occurred, and the revocation court

agreed. Id. at 349. On appeal, we reversed:

We know of no law that allows for probation to be revoked solely

on the basis of an arrest and waiver of a preliminary hearing. On

the contrary, we have found that an arrest alone, without facts to

support the arrest, is not sufficient to revoke probation or parole.

Id. at 352.

Our analysis in Sims focused on the Commonwealth’s burden of proof

during revocation proceedings, an issue irrelevant here, as Banks does not

challenge the revocation of his IP sentence. See id. at 349-52. Moreover,

we did not hold that it is impermissible for a revocation court to consider a

probationer’s arrest, merely that evidence of an arrest, absent facts to support

it, is insufficient to establish a violation. Id. Finally, there is no discussion –

and certainly no prohibition - of such evidence’s relevance to sentencing

considerations. Id.; see also 42 Pa.C.S. § 9771(c)(2) (mandating that the

court consider conduct by the probationer that indicates likelihood that he will

commit another crime if not imprisoned).

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Little more persuasive is Banks’ reliance upon our Supreme Court’s

decision in Brown. See Banks’ Br. at 20-21. There, a probationer received

new charges. Brown, 469 A.2d at 1372. The Commonwealth deferred

revocation proceedings until after their disposition. Id. The trial resulted in

an acquittal by jury, but the Commonwealth pursued revocation proceedings

nonetheless. Id. The lower court revoked probation and imposed a new

sentence, and this Court affirmed. Id.

The Supreme Court reversed. Id. Recognizing double jeopardy

implications, the Court concluded that the Commonwealth was estopped from

proceeding with revocation proceedings where their sole basis was new

charges for which a probationer had been acquitted. Id. at 1376. The Court

also considered and rejected the Commonwealth’s suggestion that the more

lenient burden of proof in revocation proceedings should afford them a

“second bite of the apple.” Id.

Thus[,] the problem presented in this law suit is merely whether

the Commonwealth, after having elected to defer to the judgment

of the jury, should be given the additional opportunity to relitigate

the same issue applying a preponderance of the evidence test.

We do not believe that there is any justification for such a

disparity.

Id. at 1377-78.

However, we cannot ignore that the precise issue of fact resolved by the

jury in Brown was of particular importance to the Supreme Court:

In this matter at the trial of the criminal charge[,] the appellant

defended on the ground of alibi. The defense at trial produced

evidence to establish that he was elsewhere at the time of the

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alleged robbery. There was no dispute that a robbery of the victim

had occurred. Thus[,] the only rational explanation to be drawn

from the general verdict of acquittal was that the jury concluded

that appellant did not participate in the criminal act of robbing the

victim.

It is equally beyond dispute on this record that the sole basis

offered by the Commonwealth to support its request for the

revocation of the probation was the accusation that appellant did

in fact participate in the robbery for which he had previously been

tried and acquitted. Thus the Commonwealth, by election, chose

to relitigate at the revocation hearing the exact same issue that

had been decided against it in the criminal trial. This, therefore,

is a clear case of an attempt to raise an issue of ultimate fact that

has previously been litigated and ruled adversely to the

Commonwealth.

Id. at 1373.

Here, no similar factual resolution occurred; that is, a fact finder did not

consider and reject Banks’ participation in alleged criminal activity. Nor is the

procedural posture analogous. The charges against Banks were nolle prossed,

and that is quite different from an acquittal.

A nolle prosequi is a voluntary withdrawal by a prosecuting

attorney of proceedings on a particular criminal bill or information,

which at anytime in the future can be lifted upon appropriate

motion in order to permit a revival of the original criminal bill or

information. Since a nolle prosequi acts neither as an acquittal

nor a conviction, double jeopardy does not attach to the original

criminal bill or information.

Commonwealth v. Ahearn, 670 A.2d 133, 135 (Pa. 1996) (citations

omitted) (emphasis added). Thus, the double jeopardy concerns recognized

in Brown are not present here.

The Commonwealth was not estopped from introducing evidence of

Banks’ arrest, the charges filed, or the factual allegations in support thereof.

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The revocation court’s consideration of this evidence was not only permissible,

but also required before it could impose a sentence of total confinement. For

these reasons, we reject Banks’ assertion that the revocation court relied upon

an impermissible factor in sentencing him. See Banks’ Br. at 13-14.

Based upon the revocation court’s permissible consideration of this

evidence, and Banks’ failure to develop any further argument asserting that

his sentence is excessive, we discern no abuse of the court’s discretion in

sentencing Banks. See Colon, 102 A.3d at 1043.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2018

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