Com. v. Small, D. ( 2016 )

J-A11033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEREK SMALL,
Appellant No. 2922 EDA 2014
Appeal from the Judgment of Sentence April 25, 2014
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0003213-2009
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 15, 2016
Appellant, Derek Small, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following the
revocation of his probation. He challenges the discretionary aspect of the
revocation sentence. Appellant argues his sentence of eight and one-half to
nineteen years’ imprisonment is manifestly excessive because he committed
only technical violations. We affirm.
The trial court stated
[t]he facts of the underlying crime, armed robbery,
summarized from the police paperwork . . . :
On February 25, 2009, at 12:30 a.m., at Rising Sun
and Wyoming Avenues in Philadelphia, [Appellant]
and his cohort produced a black firearm, placed it to
the victim’s head and demanded his property.
Codefendant patted down the victim and took his cell
*
Former Justice specially assigned to the Superior Court.
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phone. [Appellant] patted down the victim and took
$50.00 from him. They forced the victim to lie on
the ground while they fled on foot. The victim
identified both [Appellant and codefendant] within
three (3) minutes of the crime.
On April 7, 2010, after an open guilty plea for the
underlying armed robbery, this court imposed a
mitigated/non-mandatory sentence of 42 to 84 months[’]
(3½ to 7 years[’]) incarceration followed by 48 months[’]
reporting probation for 18 Pa.C.S. § 3701, a largely
concurrent probation sentence of 148 months for criminal
conspiracy, 18 Pa.C.S. § 903, and a 60 month probation
sentence for possessing an instrument of crime (P.I.C.)
consecutive to the robbery sentence and [con]current with
the robbery probation, 18 Pa.C.[S.] § 907.
[Appellant] was paroled on September 4, 2012.
Over eight months later, on May 26, 2013, [Appellant]
was arrested and charged with violating the Uniform
Firearms Act (VUFA) under 18 Pa.C.S. § 6105,[1] 6106,[2]
1
Section 6105 provides:
A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall
not possess, use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a). Subsection (c) identifies robbery as an enumerated
offense. See id. § 6105(c).
2
Section 6106 provides, in pertinent part, as follows.
[A]ny person who carries a firearm in any vehicle or any
person who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license under
this chapter commits a felony of the third degree.
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and § 6108.[3] This new crime, in the adjoining police
district, had strikingly similar background facts to his
underling robbery conviction described above. As counsel
noted at the VOP sentencing, “[t]his could have easily
been a prelude to another robbery.”[4] The facts compiled
from the record are:
18 Pa.C.S. § 6106(a)(1).
3
Section 6108 provides:
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in
a city of the first class unless:
(1) such person is licensed to carry a firearm . . . .
18 Pa.C.S. 6108(1).
4
At the VOP sentencing hearing, the Commonwealth stated:
[Appellant is] in violation of your probation and parole
because he had a gun. I’ve read the facts of the robbery
in which he pled guilty to you, and it almost reads as if it’s
a prelude to that crime. It’s him walking down the street
with an individual with a gun. It’s a case that he pled
guilty to for [sic]. They robbed somebody on the street,
and were apprehended immediately after that by two
police officers who recovered the gun.
In this case Officers Ridowski and Cobrowski get a flash,
they see this individual along with someone else. He
placed the gun and tried to hide it because he knows he’s
not supposed to have it. They stop both individuals. The
officers clear it. They realize that he is the one who put
the gun under the wheel-well, and they recovered the gun.
This could have easily been a prelude to another robbery.
N.T. Sentencing Hr’g, 4/25/14, at 7.
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At 200 E. Cambria Street, in Philadelphia, at 3:05
a.m., police received a radio call “person with a
gun.” When police arrived on scene, they observed
two males that fit the flash. Police stopped their
vehicle, got out of the vehicle, one male stopped and
[Appellant] reached down and placed a fully loaded
black Kel-Tec 9MM Luger on the wheel-well of a
green jeep and kept walking.
On January 12, 2015, [Appellant] pleaded nolo
contendere to this crime, VUFA, 18 Pa.C.S. § 6105, . . .
and was sentenced to 3 years[’] probation.
After a “Daisy Kates”[5] hearing on February 24, 2014,
this court found that [Appellant] had violated his
probation. On April 25, 2014, after reviewing the
“Modified Presentence Report” and listening to counsel’s
argument and [Appellant’s] statement during allocation
[sic], this court sentenced [Appellant] to 8½ to 19 years[’]
incarceration for conspiracy to commit robbery, allowed
the robbery sentence stand [sic] (even though the court
could have found [Appellant] in anticipatory violation of
that probation also), and made the PIC sentence a
consecutive period of two years[’] probation to the
conspiracy sentence. [6]
5
We note that
[w]hen the basis for revocation arises from evidence of
intervening criminal conduct, a VOP hearing may be held
prior to any trial arising from such criminal conduct. See
Commonwealth v. Kates, [ ] 305 A.2d 701 ([Pa.] 1973)
(no statutory or constitutional bar to holding VOP hearing
prior to trial for criminal charges based on same activities
which gave rise to alleged probation violation).
Commonwealth v. Ortega, 995 A.2d 879, 882 n.1 (Pa. Super. 2010).
6
We note that in the January 30, 2015 opinion, the court misstated
Appellant’s sentence. See Trial Ct. Op., 1/30/15, at 2. The recitation of the
sentence in the supplemental Rule 1925(a) comports with the sentence
imposed at the sentencing hearing. See N.T. Sentencing Hr’g, 4/25/14, at
13.
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Trial Ct. Op., 8/12/15, at 2-3 (citations omitted).
Appellant filed a motion for reconsideration of sentence. On April 30,
2014, the trial court denied the motion. Appellant filed a Post Conviction
Relief Act7 (“PCRA”) petition seeking allowance of appeal nunc pro tunc.
The court reinstated Appellant’s appeal rights on October 8, 2014. Appellant
filed a notice of appeal on October 10, 2014. The trial court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Appellant was granted an extension of time to file his Rule 1925(b)
statement. He filed the statement on December 5, 2014. The trial court
filed a responsive opinion pursuant to Pa.R.A.P. 1925(a).
On June 8, 2015, this Court issued a per curiam order remanding the
case to the trial court , upon consideration of Appellant’s “Petition to Vacate
Briefing Schedule and Remand Record for Completion, and for the Filing of a
Supplemental Statement of Errors or, in the Alternative, for an Extension of
Time in which to File Appellant’s Brief.” Order, 6/8/15. The trial court was
ordered to supplement the record with the notes of testimony from the VOP
hearing. Appellant was directed to file a supplemental Rule 1925(b)
statement. The trial court was directed to file a supplemental Rule 1925(a)
opinion. Appellant filed a supplemental Rule 1925(b) statement and the trial
court filed a responsive opinion.
7
42 Pa.C.S. §§ 9541-9546.
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Appellant raises the following issue for our review: “Was not the
sentence of eight and one-half to nineteen years[’] incarceration manifestly
excessive and disproportionate for a first-time technical violation of
probation?” Appellant’s Brief at 4. Appellant argues that his illegal
possession of a firearm while on probation was only a technical violation and
thus the sentence was manifestly excessive and disproportionate. Id. at 15.
This Court has stated that
discretionary aspects of [an appellant’s] sentence are not
appealable as of right. Rather, an appellant challenging
the sentencing court’s discretion must invoke this Court’s
jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see 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.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely filed this appeal, preserved the issue of an
excessive sentence in his motion for reconsideration of sentence, and
included a statement in his brief which conforms with Pa.R.A.P. 2119(f). 8
8
This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular
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See Appellant’s Brief at 10. Accordingly, we ascertain whether Appellant
has raised a substantial question. See Leatherby, 116 A.3d at 83.
“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Dodge, 77 A.3d at 1268 (quotation marks and citation omitted).
“An argument that the trial court imposed an excessive sentence to
technical probation violations raises a substantial question.”
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (citation
omitted). “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.” Commonwealth v. Crump, 995 A.2d 1280,
1282 (Pa. Super. 2010) (citation omitted). We therefore find Appellant has
raised a substantial question. Dodge, 77 A.3d at 1272 n.8; Schutzues, 54
A.3d at 98; Crump, 995 A.2d at 1282.
We consider the relevant standard of review:
[A] trial court has broad discretion in sentencing a
defendant, and concomitantly, the appellate courts utilize a
provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement
failed to include a statement of where his sentence fell within the sentencing
guidelines. See Appellant’s Brief at 8-10. However, as the Commonwealth
did not argue this defect in his Rule 2119(f) statement, we decline to find
waiver on these technical grounds. See Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013).
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deferential standard of appellate review in determining
whether the trial court abused its discretion . . . .
. . . At initial sentencing, all of the rules and procedures
[for a court’s] discretionary sentencing authority [apply].
However, it is a different matter when a defendant
reappears . . . following a violation . . . of a probationary
sentence. For example, . . . contrary to when an initial
sentence is imposed, the Sentencing Guidelines do not
apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “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 victim and on the community, and
the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721.
. . . [U]pon revoking probation, the trial court is limited
only by the maximum sentence that it could have
imposed originally at the time of the [initial] sentence,[9]
although . . . the court shall not impose a sentence of total
confinement unless it finds that:
(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. § 9771(c).
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014) (some
citations omitted and emphases added). This Court has stated that “[a] trial
9
At the time of the initial sentence, Appellant’s criminal conspiracy charge
was graded as a felony of the first degree which carried a maximum
sentence of twenty years’ imprisonment. See 18 Pa.C.S. § 1103(1).
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court does not necessarily abuse its discretion in imposing a seemingly harsh
post-revocation sentence where the defendant originally received a lenient
sentence and then failed to adhere the conditions imposed on him.”
Schutzues, 54 A.3d at 99.
In Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000), this
Court opined:
Although the offenses that triggered the parole and
probation revocation-Sierra’s failure to keep parole
appointments-were not assaultive or independently
criminal, technical violations are sufficient to trigger the
revocation of probation. See, e.g., Commonwealth v.
Edwards, 450 A.2d 15 (Pa. Super. 1982) (probation
revoked for failure to report to probation officer and attend
community mental health facility for outpatient treatment).
Id. at 912.
In Ortega, this Court opined:
[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:
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.
Commonwealth v. Infante, [ ] 888 A.2d 783, 791 ([Pa.]
2005). Moreover, the Commonwealth need only make this
showing by a preponderance of the evidence.
Ortega, 995 A.2d at 886 (footnote and some citations omitted and
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emphasis added).
In the instant case, the trial court found Appellant in violation of his
probation. At sentencing, the court stated:
. . . You’re not required to say anything, but if there’s
something you want to tell me either about yourself, your
case, your background, anything that would supplement
the modified presentence report, I will certainly be
listening.
* * *
[U]nfortunately, you were on probation for pretty serious
crimes. Robbery, conspiracy to commit robbery and PIC.
And then within 9 months or 8 months and some extra
days, you were arrested for having─I believe it was a Kel-
[T]ec 9MM, which you attempted to hide from the police . .
..
. . . I see you’ve gotten a GED in your previous state
prison sentence. I am disappointed that the state prison
sentence that I imposed originally didn’t work, obviously. .
..
You’ve made at least one gun a part of your life. . . .
So what I have to do is try to balance my duty to help you
get rehabilitated with my equally important duty to protect
the public. . . .
So I’m going to sentence you on the conspiracy to
commit robbery to the minimum sentence─it’s also not my
duty to warehouse you for as long as I can. Again, it’s my
duty to strike that proper balance between trying to
rehabilitate you and protecting the public, and protecting
the public from the illegal possession and use of guns.
N.T. Sentencing Hr’g at 9-12.
The court opined:
Before the VOP sentence, this court was equipped with
and reviewed the Modified Presentence Report (PSI).
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Based on the facts presented at the Daisy Kates hearing,
this court found a violation for new criminal behavior by a
preponderance of the evidence, determined that the
conduct of [Appellant] indicates that it is likely that he
will commit another crime if he is not imprisoned,
and the sentence was essential to vindicate the authority
of the court. This court sentenced [Appellant] for his
violation to 8½ to 19 years, without increasing the robbery
or PIC sentences. This court could have legally sentenced
[Appellant] to up to 20 years[’] imprisonment for a felony
one offense. See 18 Pa.C.S. § 905.
Trial Ct. Op. at 5-6 (footnote omitted and emphasis added).
First, we consider whether the trial court abused its discretion by
imprisoning Appellant following revocation of probation. See Pasture, 107
A.3d at 27-28. We find it did not. The court found that probation did not
satisfy his rehabilitative needs. See Ortega, 995 A.2d at 886. Technical
violations can trigger the revocation of probation. See Sierra, 752 A.2d at
912. The court found that Appellant’s conduct indicated that it was likely he
would commit another crime if not imprisoned. See Pasture, 107 A.3d 21,
27-28. Accordingly, we find that the trial court’s sentence was not
manifestly excessive. We discern no abuse of discretion. See Schutzues,
54 A.3d at 99.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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