Com. v. Cohens, E. ( 2023 )

J-S45015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNEST DEMETRIUS COHENS :
:
Appellant : No. 921 EDA 2022
Appeal from the Judgments of Sentence Entered March 8, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001224-2011,
CP-46-CR-0001907-2011
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 14, 2023
Appellant, Ernest Demetrius Cohens, appeals from the March 8, 2022
judgments of sentence entered in the Court of Common Pleas of Montgomery
County that imposed an aggregate 2½ to 5 years’ sentence of incarceration
following the revocation of his probation and parole for technical violations.1
We affirm.
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1 In his notice of appeal, Appellant listed both trial court docket numbers on a
single notice of appeal. A copy of the notice of appeal was filed at each trial
court docket. Our Supreme Court in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018) held that, “the proper practice under [Pa.R.A.P.] 341(a) is to
file separate appeals from an order that resolves issues arising on more than
one docket.” Walker, 185 A.3d at 977; see also Pa.R.A.P. 341(a) and official
comments. This Court, however, has held that the requirements of Walker
and Rule 341 may be overlooked where there is a breakdown in the judicial
system and a defendant is misinformed or misled regarding his or her
appellate rights. Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super.
2020) (en banc), appeal denied, 251 A.3d 773 (Pa. 2021).
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The trial court summarized the procedural history as follows:
On March 8, 2012, at the age of 43, Appellant entered into a
negotiated guilty plea before the Honorable Richard J. Hodgson
under [trial court] docket number [CP-46-CR-0001224-2011
(“Case 1224-2011”).2] The three [] criminal offenses [filed at
Case 1224-2011] were homicide by vehicle, accidents involving
death or personal injury [while not properly licensed,] and flight
to avoid apprehension[, trial, or punishment,3] all felonies of the
third degree. Judge Hodgson sentenced Appellant to an aggregate
term of [2½ to 5] years' incarceration [followed by 5] years of
probation. Under the section for special condition(s) of
sentences(s), Judge Hodgson checked the box stating[,]
"[Appellant] shall comply with any special conditions of
probation/parole/state intermediate punishment imposed by the
Montgomery County Adult Probation/Parole Dep[artment], or the
[Pennsylvania] Board of Probation and Parole." [Three days prior,
on March 5, 2012,] Appellant [] pled guilty to [display of obscene
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In the case sub judice, the trial court, at the conclusion of Appellant’s
sentencing hearing, stated, “you have the right to file an appeal within 30
days of today’s date, which is the judgment of sentence.” N.T., 3/8/22, at
28 (emphasis added). This comment by the trial court suggested, wrongly,
that Appellant could initiate appeals from his judgments of sentence by filing
a single notice of appeal. This comment also indicated that such appeals
would arise from a single judgment of sentence, when, in fact, separate
judgments of sentence were entered in each trial court docket, as discussed
infra. Under these circumstances, we find the use of singular nouns when
referring to Appellant’s right to file notices of appeal from multiple judgments
of sentence was misleading and constituted a breakdown in court operations.
Therefore, although we do not condone the filing of a single notice of appeal
listing both trial court docket numbers, we decline to quash Appellant’s appeal
on the ground the notices of appeal do not comply with the mandates of
Walker and its progeny, as well as Rule 341.
2 Given the history of Appellant’s cases, which spanned multiple years and
involved multiple trial court judges, we refer to the honorable trial court judges
by name for purpose of clarity.
3 75 Pa.C.S.A. §§ 3732(a) and 3742.1(a), as well as 18 Pa.C.S.A. § 5126(a),
respectively.
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and other sexual materials and performances,4] a misdemeanor
of the first degree, before Judge Hodgson [at trial court] docket
number [CP-46-CR-0001907-2011 (“Case 1907-2011”).] In that
case, Judge Hodgson sentenced Appellant to [5] years[’]
probation.[5]
The Pennsylvania Board of Probation and Parole [(“the
Pennsylvania Board”)] issued an order, signed on June 11, 2013,
directing the release of Appellant on parole on or after August 3,
2013[. Appellant was directed] to report in[-]person to [the]
Connecticut Parole in Bridgeport, Connecticut, and [received] an
approved residence in Bridgeport, Connecticut. Any general and
specific conditions of Appellant's parole were set forth by the
[Pennsylvania] Board or by the state parole agent and not by
Judge Hodgson. Appellant acknowledged receipt of the
Pennsylvania Board of Probation and Parole Acceptance for State
Supervision and the Conditions Governing Special
Probation/Parole [form] on August 9, 2013.
Appellant signed an application for an interstate compact transfer
on August 9, 2013, on which he agreed to comply with the terms
and conditions of his supervision that had been placed on him, or
that could be placed on him, by Pennsylvania (sending state) and
Connecticut (receiving state). The Pennsylvania Board notified
the [trial] court of Appellant's release to Connecticut by letter
dated October 25, 2013.
On March 25, 2016, court administration rotated the disposition
of Appellant's first probation/parole[ ]violation to the Honorable
Todd D. Eisenberg. The bench warrant filed on March 29, 2016[,]
attached a list of the violations Appellant [] allegedly committed.
The notice of charges stated, inter alia, Appellant failed to report
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4 18 Pa.C.S.A. § 5903(a)(1).
5 As of March 8, 2012, Appellant was sentenced to 5 years’ probation in Case
1907-2011 and 2½ to 5 years’ incarceration followed by 5 years’ probation in
Case 1224-2011. Because of the order in which the sentences were imposed,
Case 1907-2011 followed by Case 1224-2011, Appellant was serving his 5
years’ probation (Case 1907-2011) while incarcerated (Case 1224-2011).
Therefore, each time Appellant was the subject of a violation, as discussed
infra, he violated both his probation (Case 1907-2011) and his parole (Case
1224-2011).
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to Connecticut adult probation staff as instructed; refused to
surrender his bounty hunter badge as instructed[;] and refused
the installation of a [global positioning system (“GPS”)] monitor
on two occasions.
Judge Eisenberg presided over the stipulated Gagnon I and II
hearing[6] and sentenced Appellant on April 8, 2016. [A
Pennsylvania] parole agent informed the [trial] court that the
state of Connecticut closed interest in the case and declined to
supervise Appellant following his violation. Judge Eisenberg
granted Appellant's motion for parole on May 16, 2016.
Less than a year later, Appellant was charged with his second
violation by notice dated March 9, 2017. A Montgomery County
adult probation officer provided [a] notice to Appellant at the
Montgomery County Correctional Facility ("MCCF")[, which set
forth Appellant’s alleged violations, including Appellant’s failure to
obtain or maintain a legal and verifiable residence and operation
of a motor vehicle without a valid driver’s license.]
On May 5, 2017, Appellant appeared before Judge Eisenberg
stipulating to, among other things, the failure to keep a verified
address and driving without a valid driver's license. [Prior to
sentencing, counsel for the Commonwealth] argued [that]
Appellant's criminal history [spanned] across multiple states and
[] that Appellant was on supervision for homicide by vehicle with
a suspended license, yet he continue[d] to drive without a valid
driver's license. Judge Eisenberg warned Appellant not to appear
before him on violations again or Appellant would be serving his
back time in a state correctional facility. [On June 15, 2017,]
Judge Eisenberg paroled Appellant to be supervised by the
Pennsylvania State Parole/Probation Department. Judge
Eisenberg directed that Appellant's application under the
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6 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a parolee
or probationer is detained pending a revocation hearing, due process requires
a determination at the pre-revocation hearing (Gagnon I hearing) of probable
cause to believe a violation was committed, and upon finding of probable
cause, a second, more comprehensive hearing (Gagnon II hearing) follows
before the trial court makes its final revocation decision).
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Interstate [Corrections] Compact Act[7] remain open and, if
approved, Appellant could relocate to New York State. Finally, the
[trial] court directed that Appellant shall abide by all court ordered
conditions of the sentence dated May 5, 2017. [The State of] New
York declined to accept Appellant's application under the
[Interstate Corrections Compact] Act.
Approximately one year later[,] the Montgomery County Adult
Probation and Parole Department charged Appellant with [] the
following [violations]: 1) [failure] to obtain and/or maintain a legal
and verifiable residence as directed; 2) [failure] to obtain approval
and a travel permit prior to departure to travel outside the
adjoining counties, out of state, and/or overnight (e.g.[,] New
York, New Jersey, Connecticut[,] and Massachusetts); 3)
[operation of] a motor vehicle without a valid driver's license, and
4) [failure] to pay fines, costs, and/or restitution.
At the stipulated Gagnon [I and II] hearing before Judge
Eisenberg on Appellant's third violation, the following relevant
exchange[] transpired:
[Trial Court:] But you were aware of the violations.
[Appellant:] Yes, I have my copy with it.
[Trial Court:] Okay. So you received it. And you
admit to those violations; correct?
[. . .]
[Appellant:] Yes.
[N.T., 9/4/18, at 5.]
[Trial Court:] [Appellant], you keep creating
problems for yourself.
[Appellant:] Okay, sir. I understand.
[Trial Court:] All right, [Appellant]. I'm hoping I
don't see you again. I really do.
[Appellant:] You won't.
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7 61 Pa.C.S.A. §§ 7101 – 7103.
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[Id. at 18-19.]
[Trial Court:] You're going to do another two weeks
in jail. After that, you've got to walk
off five years. If you don't walk off five
years and you come back here, you're
going to do a lot more than
two-and-a-half months. Do you
understand?
[Appellant:] Yes, sir.
[Id. at 20.]
Having just been released on parole from the [MCCF] on
September 2, 2018[,8] a probation officer served [] Appellant with
his fourth notice of violation at [the] MCCF on May 7, 2019. The
stipulated violations included new criminal charges in New York
and North Carolina[,] as well as traveling out of state without a
travel permit.
[At a June 6, 2019 Gagnon I and II hearing, Judge Eisenburg[,
at Case 1907-2011,] found Appellant violated his probation and
ordered Appellant to serve 5 years’ probation. At Case
1224-2011, Judge Eisenberg found Appellant violated his parole
and ordered Appellant to serve 15 months’ incarceration as
back-time, with the possibility of parole after 10 months’
incarceration, followed by 3 years’ probation.] Judge Eisenberg
noted under Special Conditions(s) of Sentence(s) on the
disposition sheet [in Case 1224-2011] that “[Appellant] states if
he violates for a 5th time[,] he will serve 8 years [and] 5 months.”
Judge Eisenberg granted Appellant's motion for parole on
December 13, 2019, with a release date of December 28, 2019.
On July 7, 2020, Appellant signed another interstate compact
[transfer] application[, requesting a transfer of supervision from
Pennsylvania (sending state) to California (receiving state).] The
State of California accepted supervision of Appellant through the
Interstate [Corrections] Compact Act. Appellant met with his
parole agent, Steven Davis, [(“Agent Davis”)] on [] August 12,
2020. Agent Davis reviewed Appellant's general conditions and
____________________________________________
8 The order granting Appellant’s release was dated September 5, 2018, but
the release was effective as of September 2, 2018.
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special conditions of parole that were specific to the California
Department of Corrections and Rehabilitation with Appellant, and
Appellant stated that he did not have any questions regarding
what was expected of him.
Appellant subsequently filed a petition for early termination of
parole on September 25, 2020, which the Honorable William R.
Carpenter denied on October 7, 2020.
On January 29, 2021, the Honorable Thomas M. DelRicci issued a
bench warrant for Appellant on another notice of violation. The
bench warrant was eventually lodged in Connecticut where law
enforcement had arrested Appellant on other charges. Appellant
signed the notice of violation on July 26, 2021, at [the] MCCF[,
which set forth seven alleged violations].
The [trial court in the instant matter on appeal] presided over
Appellant's contested Gagnon [I and II] hearing on February 28,
2022. The Commonwealth presented the testimony of Emily
Purington, an assistant supervisor in the Montgomery County
Office of Probation and Parole, as well as [] Agent [] Davis by
remote [access]. Ms. Purington testified regarding the office's
standard business practice for persons sentenced in Montgomery
County and transferred to another county or state through the
Interstate [Corrections] Compact Act federal tracking system.
Agent Davis testified that Appellant was not responsive to
supervision in California. [Agent Davis] explained that Appellant
originally told [Agent Davis] that [he] was a tractor-trailer driver
working four [] weeks at a time and then home for ten [] days.
Agent Davis stated that would have been plenty of time for him to
work with Appellant. However, Appellant was oftentimes gone for
longer than he was allowed on his travel passes. [Agent Davis
testified that w]hen [he] told Appellant[,] "that's not how parole
works, Appellant said that that's not going to work for him. It
seemed to be at his discretion." Agent Davis testified regarding
each of the violations, including Appellant's failure to report on
January 22, 2021, [when Agent Davis visited] Appellant's address
of record only to find Appellant not present and his wife telling
[Agent Davis that Appellant] was not there. At that point,
according to Agent Davis, Appellant [] absconded pursuant to the
Interstate [Corrections] Compact Act.
Earlier, when Agent Davis [] learned that Pennsylvania believed
Appellant's [driver’s] license had been suspended, [Agent Davis]
asked Appellant to produce a valid driver's license[,] and Appellant
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did not produce one. Agent Davis also testified concerning
another breach of a travel permit when Appellant spent four []
days in Pennsylvania without permission. Finally, Agent Davis
explained that he did not issue Appellant a travel permit to
Connecticut, where law enforcement eventually arrested
[Appellant] and then extradited Appellant to Pennsylvania.
The [trial] court denied Appellant's petition to lift [his] detainer
and terminate [his] probation [] on March 2, 2022.
The [trial] court reconvened on March 8, 2022, to allow Appellant
the opportunity to present evidence on his own behalf. Both [the
Commonwealth and counsel for Appellant] rested their cases and
proceeded to argument. Appellant conceded [that] he had spent
extra days outside of California for which he did not have
authorization. [In its argument, the Commonwealth] detailed the
testimony from February 28, 2022, supporting each of the
violations, with the exception of [the violation] conceded by
Appellant, and [an alleged violation for failure to pay fines, costs,
and restitution, which was] withdrawn.
Trial Court Opinion, 8/1/22, at 2-14 (record citations, original footnotes, and
extraneous capitalization omitted).
At the close of the two-day Gagnon I and II hearing, the trial court
found that while Appellant was on interstate compact transfer supervision by
the State of California, Appellant committed six violations of the California
Rules and Conditions governing his supervision. Trial Court Order, 3/8/22.
On March 8, 2022, at Case 1224-2011, the trial court found that Appellant
violated his probation and parole and revoked his probation, sentencing
Appellant to 2½ to 5 years’ incarceration. That same day, at Case 1907-2011,
the trial court found that Appellant violated his probation and revoked the
same, sentencing Appellant to 2½ to 5 years’ incarceration. The sentences
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were set to run concurrently to each other. As such, Appellant’s aggregate
sentence was 2½ to 5 years’ incarceration.
On March 18, 2022, Appellant filed a motion for reconsideration of his
judgments of sentence. On April 6, 2022, Appellant filed a notice of appeal.9
On April 7, 2022, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant filed his Rule 1925(b) statement on April 27,
2022. The trial court filed its Rule 1925(a) opinion on August 1, 2022.
Appellant raises the following issues for our review:
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9 Pennsylvania Rule of Criminal Procedure 708(E) required Appellant to file his
notice of appeal within 30 days of the entry of his judgments of sentence,
despite having filed a motion for reconsideration, because the trial court did
not expressly grant the motion for reconsideration or vacate the sentences
within the 30-day period following the imposition of the March 8, 2022
judgments of sentence. See Pa.R.Crim.P. 708(E) (stating, “A motion to
modify a sentence imposed after a revocation shall be filed within 10 days of
the date of imposition. The filing of a motion to modify sentence will not toll
the 30-day appeal period.”); see also Pa.R.Crim.P. 708(E) Comments
(stating, “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 [court] within 30 days of the imposition of sentence expressly
grants reconsideration or vacates the sentence.”).
On July 13, 2022, the trial court denied Appellant’s motion for reconsideration.
Because the trial court did not expressly grant the motion for reconsideration
or vacate the sentences within the 30-day period following the imposition of
the March 8, 2022 judgments of sentence and Appellant filed a timely notice
of appeal, the trial court was divested of jurisdiction to rule on the motion for
reconsideration. Commonwealth v. Swope, 123 A.3d 333, 337 n.16
(Pa. Super. 2015). Therefore, the July 13, 2022 order, denying Appellant’s
motion for reconsideration, is a legal nullity.
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1. Did not the trial court abuse its discretion when it imposed
a sentence of confinement without ordering a pre-sentence
investigation [(“PSI”)] report [] or otherwise adequately
investigating and considering [Appellant’s] personal
background and rehabilitative needs?
2. Did not the trial court abuse its discretion when it imposed
a manifestly excessive sentence of [2½ to 5] years of
confinement for technical violations of probation?
Appellant’s Brief at 2.
Appellant’s issues challenge the discretionary aspects of his sentences,
arguing that the trial court abused its discretion for failing to order a PSI report
or to consider his background and rehabilitative needs before imposing
sentence and that the sentences imposed were manifestly excessive. Id. at
17-33.
It is well-settled that “the right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying
a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant [] 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, [see] 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).
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[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis
whether a particular issue constitutes a substantial question about
the appropriateness of sentence. Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). If an appellant fails to raise a challenge to the discretionary
aspects of a sentence either by presenting a claim to the trial court at the time
of sentencing or in a post-sentence motion, then the appellant’s challenge is
considered waived. Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281(Pa. 2013). A substantial question exists when the appellant presents a
colorable argument that the sentence imposed is either (1) inconsistent with
a specific provision of the Sentencing Code or (2) is “contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d
825 (Pa. 2011). “While a bald claim of excessiveness does not present a
substantial question for review, a claim that the sentence is manifestly
excessive, inflicting too severe a punishment, does present a substantial
question.” Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016),
citing Commonwealth v. Haynes, 125 A.3d 800, 807-808 (Pa. Super.
2015), appeal denied, 167 A.3d 1287 (Pa. 2017). Similarly, “[a]n appellant's
allegation that the trial court imposed sentence without considering the
requisite statutory factors or stating adequate reasons for dispensing with a
[PSI] report raises a substantial question.” Commonwealth v. Finnecy, 135
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A.3d 1028, 1032 (Pa. Super. 2016) (citation and original brackets omitted),
appeal denied, 159 A.3d 935 (Pa. 2016).
Here, the record reflects that Appellant filed a timely notice of appeal
and properly preserved a challenge to the discretionary aspects of his
sentence in his motion for reconsideration of sentence, albeit the trial court
was divested of the authority to address the motion for reconsideration for the
reasons discussed supra. Appellant also included a Rule 2119(f) statement in
his brief. Appellant’s Brief at 14-17. In his Rule 2119(f) statement, Appellant
argues that “the [trial] court imposed a sentence without either ordering a PSI
[report] or offering a reason on the record for its decision not to order a PSI
[report,] and [] the [trial] court failed to otherwise investigate and consider
[Appellant’s] background and rehabilitative needs.” Id. at 15-16. Appellant
also argues that the trial court imposed “an excessive sentence” that was
“disproportionately severe” as punishment for “purely technical violations”
without considering Appellant’s circumstances and background. Id. at 16-17.
In so arguing, we find that Appellant raises substantial questions regarding
the trial court’s alleged failure to order, and consider, a PSI report, as well as
Appellant’s background and rehabilitative needs, before imposing an excessive
and disproportionate sentence. Hicks, 151 A.3d at 227; see also Finnecy,
135 A.3d at 1032. Therefore, we proceed to consider the merits of Appellant’s
discretionary sentencing claims.
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.
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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. Starr, 234 A.3d 755, 760-761 (Pa. Super. 2020) (citation
omitted), appeal denied, 243 A.3d 724 (Pa. 2020).
Regarding the trial court’s need for a PSI report to aid in fashioning an
individualized sentence, Pennsylvania Rule of Criminal Procedure 702(A)
states, in pertinent part, as follows:
Rule 702. Aids in Imposing Sentence
(A) Pre-sentence Investigation Report
(1) The sentencing judge may, in the judge's discretion, order a
pre-sentence investigation report in any case.
(2) The sentencing judge shall place on the record the reasons for
dispensing with the pre-sentence investigation report if the judge
fails to order a pre-sentence report in any of the following
instances:
(a) when incarceration for one year or more is a possible
disposition under the applicable sentencing statutes;
(b) when the defendant is less than 21 years old at the time
of conviction or entry of a plea of guilty; or
(c) when a defendant is a first offender in that he or she has
not heretofore been sentenced as an adult.
(3) The pre-sentence investigation report shall include information
regarding the circumstances of the offense and the character of
the defendant sufficient to assist the judge in determining
sentence.
Pa.R.Crim.P. 702(A)(1-3). Thus, while a trial court has discretion to forgo
ordering, and reviewing, a PSI report, if the trial court forgoes the same, and,
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inter alia, there is a possibility that the sentence will result in one or more
years of incarceration, the trial court must place on the record the reasons for
dispensing with a PSI report. Id.; see also Commonwealth v. Flowers,
950 A.2d 330, 332-333 (Pa. Super. 2008) (stating that, although Rule 702(A)
“vests discretion in the trial [court] to dispense with a PSI [report], it also
mandates that under certain circumstances the [trial] court must document
its reasons for doing so”).
Although a trial court, which dispensed with ordering and reviewing a
PSI report prior to sentencing, is required to place on the record its reasons
for forgoing use of a PSI report, the trial court is “provided some latitude in
how this requirement is fulfilled.” Finnecy, 135 A.3d at 1032. “The essential
inquiry is [] whether the sentencing court was apprised of comprehensive
information to make the punishment fit not only the crime but also the person
who committed it.” Id. (original quotation marks omitted), citing
Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc);
see also Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 726 (Pa. Super.
2013) (stating that, “technical non[-]compliance with the requirements of
Rule 702(A)(2) [may be found to be] harmless [if] the [trial] court elicited
sufficient information during the colloquy to substitute for a PSI report,
thereby allowing a fully informed sentencing decision”); Flowers, 950 A.2d
at 333 (stating, “[a] sentencing [court] must either order a PSI report or
conduct sufficient pre[-]sentence inquiry such that, at a minimum, the [trial]
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court is apprised of the particular circumstances of the offense, not limited to
those of record, as well as the defendant's personal history and background”).
Here, a review of the record demonstrates that the trial court, upon
finding that Appellant violated the terms of his parole and probation in the two
aforementioned cases, did not order, or review, a PSI report before sentencing
Appellant to an aggregate term of 2½ to 5 years’ incarceration. Prior to
sentencing Appellant, however, the following dialogue occurred:
[Appellant:] I just ask for leniency. That's all, Your Honor.
[Trial Court:] All right. How old are you now? Fifty-Four?
[Appellant:] I'll be 54 next month. And, yes, there is one
last thing I'd like to say.
[Trial Court:] Go right ahead.
[Appellant:] I'm also seven months behind in having my
cardio - my second cardiovascular surgery. I
was supposed to have had it in August. I had
the first one in May.
[Trial Court:] What are you having done, what type of
procedure?
[Appellant:] Well, they have to - as of right now, there's no
telling exactly the percentage rate of my
arteries. The second one, they have to go
in - they have to go in from the groin and come
up to clear out the arteries. And they [have] to
put in a temporary pacemaker.
[Trial Court:] Okay. All right. Thank you. So the [trial] court
finds [Appellant] in violation of his supervision.
He is a 53-year-old male appearing before the
[trial] court for his fourth violation of probation
and parole. He was last before the [trial] court
on June 6, 2019, when he stipulated to being in
violation of his supervision. He is now before
the [trial] court with technical violations of the
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Interstate [Corrections] Compact [Act]. Those
issues were largely addressed at the prior
hearing on February 28, 2022.
After [Appellant] was sentenced [in June 2019],
he was released on - after [Appellant] was
sentenced on the most recent [violation], he
was released on December 28, 2019, and
reported to [the] Montgomery County Adult
Probation and Parole Department stating that
he wished to move to California with his wife.
On July 27, 2020, the State of California
accepted [Appellant’s] case through the
Interstate [Corrections] Compact [Act]
agreement for supervision.
On September 25, 2020, [Appellant] entered a
petition for early termination of parole. On
October 7, 2020, the Honorable William R.
Carpenter denied that request.
On [] January 27, 2021, [a] notice of violation
requiring re-taking was received regarding
[Appellant] from the State of California.
A summary of the supervision history from
California is as follows.
On August 11, 2020, [Appellant] arrived [in]
California from Pennsylvania on an interstate
transfer. [Appellant] informed [Agent Davis]
that he was a truck driver [] but understood that
he needed to be responsible for parole
supervision.
[Appellant] was granted travel passes [to] leave
the State of California. However, [Appellant]
abused the travel passes by not returning to
California when instructed to do so. [Agent
Davis] also became aware that [Appellant] does
not have a valid [driver’s] license. And when
asked to show a valid license, [Appellant]
initially refused to do so. [Appellant] eventually
sent [Agent Davis] a picture of a New York
Class A [driver’s] license. [Agent Davis] ran the
license through Sacramento Police dispatch and
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the New York City Police dispatch, and both
[inquiries showed] that the [driver’s] license
was revoked and/or suspended.
On January 7, 2021, [Appellant] reported to the
parole office as instructed to secure an
electronic in-home detention [(“EID”)] monitor.
[Appellant] tried to explain his need to drive
beyond the 50 miles out of state for his job.
[Agent Davis] explained that he called New York
and [learned] that [Appellant’s] driver's license
is revoked. [Agent Davis] stated to [Appellant
that] he could not drive any vehicle without a
valid license.
After the [EID] monitor [] was attached to
[Appellant’s] ankle, [Appellant] refused to sign
the conditions for wearing the device and
refused to listen to instructions on how the
device works. [Appellant] grabbed [his] bag
and left the office. Several other parole agents
observed [Appellant] get into [the driver’s seat
of] his vehicle[] and drive away.
Approximately, ten minutes later, [Appellant]
returned and asked for a grievance form.
[Appellant] argued [] that there was a glitch in
the system and his [driver’s] license was valid.
[Agent Davis] reminded [Appellant] that he was
just instructed not to drive unless he could
establish that he has a valid [driver’s] license.
[Appellant] left the office again.
Approximately, five to ten minutes later, parole
agents observed [Appellant] driving his
[vehicle] westbound and honking the horn as he
did so.
On January 8, 2021, [Appellant] came to the
parole office to turn in a complaint and to
request a travel permit to New York for doctor
and dental appointments.
[Agent Davis] began to explain the process [for]
requesting two different travel passes.
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[Appellant] began to look faint. Paramedics
were called. [Appellant] had to go to the
emergency room due to [hypertension]. Due to
the medical emergency, the EID [monitor] was
removed. Prior to [Appellant] leaving,
[Appellant] yelled at [Agent Davis,] blaming him
for the medical condition.
On January 20, 2021, [Agent Davis] attempted
a home visit at [Appellant’s] residence of
record. [Appellant’s] wife[] stated that
[Appellant] was not home but was working.
[Agent Davis] texted [Appellant,] instructing
him to report to the parole office on January 22,
2021, to be placed on [EID] monitor[]
supervision.
[Appellant] failed to report to the parole office
on January 22[,] 2011[,] at 12:00 p.m.
[Appellant] texted the following, [“]Are you
putting an ankle monitor on me or detaining
me? Be it that's the case, I can report back to
[Pennsylvania] on my own and report to [a
probation officer,] let [that probation officer]
detain me[,] and go before my judge and take
it from there, be I have enough to show your
mistreatment and abusiveness. You're doing
what Pennsylvania never did[.”]
On January 25, 2021, [Appellant] failed to
report to the parole office as instructed. [Agent
Davis] and additional parole agents attempted
to make contact with [Appellant] at his
residence of record. However, [Appellant] was
not found.
[Agent Davis] reviewed the [California
Department of Corrections and Rehabilitation]
parolee sign-in sheet which showed [Appellant]
failed to report to the parole office on the dates
of January 8, 2021, and January 25, 2021. The
State of California declared [Appellant] an
absconder.
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Being provided with this information, a
Montgomery County Adult Probation and Parole
Department bench warrant was issued on
January 27, 2021.
On [] June 20, 2021, Detective Kelly from the
Berlin Police Department in Connecticut called
the [Montgomery County Adult Probation and
Parole Department] stating he received an
anonymous call that [Appellant] was in
[Connecticut] working in his jurisdiction.
Detective Kelly requested a color image of
[Appellant] to verify his identity.
[O]n June 7, 2021, [Appellant] incurred new
charges in Connecticut. [Appellant] was
charged with forgery and criminal
impersonation. In summary, once approached
by the police officers, [Appellant] failed to
identify himself [by his given name]. He
provided a driver's license of another male[.
Appellant] also possessed a New York Bail
Enforcement Officer Badge Number 1114.
These charges were subsequently nolle prosed.
[]Detective Kelly confirmed the Montgomery
County Adult Probation and Parole Department
bench warrant[, and Appellant] was extradited
to Pennsylvania.
[Appellant] is a 53-year-old male. [O]n June 6,
20[19], he appeared before what I would best
describe, having read the entire record on this
[matter], an exasperated Judge Eisenberg.
Exasperated, frustrated, and annoyed was the
tone because Judge Eisenberg on the record told
[Appellant] that he had given him breaks
several times, and [Appellant] having agreed to
that. And when reading the notes of
testimony - I refer for the record to page 24 of
the notes of testimony of June 6,
2019 – [Appellant] says as follows: “Judge
Eisenberg, like I said, yes, I've been before you
multiple times. This will be the last time.”
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[Judge Eisenberg] responded as follows: “That's
what you told me the last time, [Appellant].”
[Appellant said,] “Yes, this will be the last time.”
[Judge Eisenberg responded,] “And I gave you
a break last time.” [To which, Appellant stated,]
“Yes, you did. And I'm asking for you to give
me one last one, one final one. And with this
being said, if you see me in front of you again,
you can send me up state. I'm saying it now.
If you cut me this one last break to let me
resolve this issue with New York and North
Carolina and put me back under [Montgomery
County adult probation and parole] supervision,
you will never see me again.”
[Appellant] responded on page 28 [of the same
notes of testimony,] “Like I said, Your Honor, if
you ever see me again, you can give me all of
that,” which by that point, it was mentioned, as
the Commonwealth mentioned this morning,
that that would be eight years of back time.
Judge Eisenberg again gave [Appellant] a rather
lenient sentence by his own accounts but did
something that is highly unusual. On the
sentencing sheet on the matter docketed at
[Case 1224-2011], Judge Eisenberg wrote the
following under Special Condition of Sentence:
“[Appellant] states if he violates for a fifth time,
he will serve eight years and five months.”
What that was done for, obviously, is to alert
the [trial c]ourt that if [Appellant] appeared
again for a violation, to alert the [trial c]ourt to
that situation.
[Appellant] continues to show his
non-compliance with the conditions imposed by
the [trial] court as this will be his [fifth] violation
proceeding since being on supervision [starting
in] 2011. The supervision history is with the
Pennsylvania Board of Probation and Parole.
[Appellant] has shown that [Montgomery]
County supervision has not deterred him from
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continuing to engage in antisocial behavior.
That is crucial in my decision in this case.
He has also shown clear non-compliance with
rules imposed by other states who are willing to
supervise [Appellant] wherever he resides. His
previous violation involved another out-of-state
arrest. Now, in two instances, [Appellant]
incurred new arrests in states in which he [] had
no permission to travel to, Connecticut and
[North] Carolina.
And, again, at [Appellant’s] hearing before
Judge Eisenberg on June 6, [2019, Appellant]
stated[,] “If Your Honor ever sees me again for
another violation, [Appellant] would take
whatever - he would be able to take whatever
state sentence that the [trial court] felt
appropriate to impose.”
Despite a stern warning on the record from
Judge Eisenberg and being given the
opportunity, again, [Appellant] returns today
for another violation or proceeding for conduct
which clearly violates the Interstate
[Corrections] Compact [Act].
Due to all these circumstances, the [trial c]ourt
contends that a period of incarceration at a state
correctional institution is both warranted and
necessary to impress upon [Appellant] the
importance of complying with conditions of
supervision and to [ensure] that he will be
supervised by the Pennsylvania Board of
Probation and Parole.
Regrettably, in speaking about rehabilitation, in
reviewing this case in preparation for today, I've
come to the conclusion that [Appellant] has
been [] devious, deceptive, untruthful,
self-entitled, with a complete disregard for
others and[,] in particular[,] authority. With a
sense of arrogance, [Appellant] refuses to obey
and comply with the rules and regulations and
has an inability to accept the most important
part of this, and that is that parole is a privilege
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and not a right. In terms of rehabilitation, until
he understands that [parole is a privilege and
not a right], he will not be successful in any type
of rehabilitation.
I think it's appropriate that [Appellant] be
evaluated by a psychologist as soon as possible
so that those professionals will be able to
evaluate him and determine what course of
treatment and what course of direction should
be taken in an effort to gain rehabilitation.
Based upon all those facts, the [trial c]ourt will
now render the appropriate sentence.
N.T., 3/8/22, at 15-26 (extraneous capitalization omitted).
In Flowers, supra, the trial court sentenced Flowers to a term of
incarceration after revoking his probation. Flowers, 950 A.2d at 331. Prior
to sentencing Flowers, the trial court “did not order a [PSI report] and offered
no statement on the record to explain its decision not to do so.” Id.“Moreover, the [trial] court did not question Flowers concerning matters that
a PSI report would have documented and made no reference to any
documentation that may have been compiled prior to the original sentencing.”
Id. On review, the Flowers Court stated that “technical noncompliance with
the requirements of Rule 702(A)(2) might be rendered harmless [when] the
[trial] court elicit[s] sufficient information during the colloquy to substitute for
a PSI report, 10 thereby allowing a fully informed sentencing decision.” Id. at
____________________________________________
10 The “essential and adequate elements” of a PSI report include all the
following:
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333. The Flowers Court further stated that “at a minimum, the [trial] court
[must be] apprised of the particular circumstances of the offense, not limited
____________________________________________
(A) a complete description of the offense and the circumstances
surrounding it, not limited to aspects developed for the record as
part of the determination of guilt;
(B) a full description of any prior criminal record of the offender;
(C) a description of the educational background of the offender;
(D) a description of the employment background of the offender,
including any military record and including his[, or her,] present
employment status and capabilities;
(E) the social history of the offender, including family
relationships, marital status, interests and activities, residence
history, and religious affiliations;
(F) the offender's medical history and, if desirable, a psychological
or psychiatric report;
(G) information about environments to which the offender might
return or to which he[, or she,] could be sent should probation be
granted;
(H) supplementary reports from clinics, institutions[,] and other
social agencies with which the offender has been involved;
(I) information about special resources which might be available
to assist the offender, such as treatment centers, residential
facilities, vocational training services, special educational
facilities, rehabilitative programs of various institutions to which
the offender might be committed, special programs in the
probation department, and other similar programs which are
particularly relevant to the offender's situation;
(J) a summary of the most significant aspects of the report,
including specific recommendations as to the sentence if the
sentencing court has so requested.
Goggins, 748 A.2d at 728-729, quoting Commonwealth v. Martin, 351
A.2d 650 (Pa. 1976).
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to those of record, as well as the defendant's personal history and
background” before sentencing an individual without a PSI report. Id.Ultimately, the Flowers Court found that the limited colloquy in that case
“merely restat[ed] the seriousness of the underlying offense and confirm[ed]
Flower’s violation of his probation.” Id. at 334. In vacating Flower’s judgment
of sentence, the Flowers Court held that such a limited record “offers no
effective substitute for a PSI report.” Id.
In the case sub judice, Appellant was sentenced without a PSI report,
and at the time of sentencing, the trial court did not explicitly state any
reasons for dispensing with a PSI report. However, in its Rule 1925(a)
opinion, the trial court explained its reasons for dispensing with the PSI report
as follows:
[The trial] court had the opportunity to review voluminous records
spanning [10] years[,] as well as transcripts regarding Appellant’s
previous violations to which he stipulated to and requested
leniency, repeatedly stating[,] “this is the last time[.” The trial
court also reviewed] the detailed report and recommendation of
the Montgomery County Adult Probation and Parole Department
from July [] 2021, [had] the opportunity to hear and observe
Montgomery County assistant supervisor Emily Purington and
[Agent Davis] in addition to Appellant and, finally, the argument
of counsel.
Before sentencing Appellant, the [trial] court specifically found
him in violation of the conditions of supervision set by the [S]tate
of California, reviewed with [Appellant by Agent Davis,] and
agreed to by Appellant, as well as the Interstate [Corrections]
Compact Act. The [trial] court summarized Appellant's history of
supervision; his outright refusal at times to comply with a majority
of the conditions of his supervision; the number of times he had
been before Judge Eisenberg stipulating to the same violations
and stating that this would be the last time; the charges filed
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against him in other states, states that he had not received a
travel permit to be in at the time; his rehabilitative needs; his
health status; the need for an evaluation by a psychologist as soon
as possible; and the undeniable conclusion that probation and
parole supervision to date had not deterred him from continuing
to engage in antisocial behavior. Despite being given stern
warnings and several opportunities to demonstrate that he could
comply with the conditions of supervision, Appellant [] returned
to the Montgomery County Court [of Common Pleas] on the same
or similar violations for the fifth time.
Having read all of the transcripts and recommendations from the
last [10] years, [the trial] court was acutely aware of Appellant's
educational background, employment background, social history
(including marital history and children), current medical history,
descriptions of the offenses Appellant had either been convicted
of or charged with and Appellant's version of the events
constituting his repeated appearances in court for violations of the
conditions of his supervision. The Commonwealth argued for a
sentence of [3½] to [7] years[’ incarceration] on [Case]
1224-2011 and a concurrent [sentence of 2½] to [5] years[’
incarceration] on [Case] 1907-[20]11 based on Appellant's
assurances to Judge Eisenberg in 2019. [The trial] also took
Appellant's assurances to Judge Eisenberg into account, but
declined to sentence Appellant to the maximum allowable
sentence.
Instead, the [trial] court concluded that a period of incarceration
at a state correctional facility was both warranted and necessary
to impress upon Appellant the importance of complying with
conditions of supervision and to make sure that Appellant will be
supervised by the Pennsylvania Board of Probation and Parole.
After finding Appellant in violation, the [trial] court determined
that probation was not achieving its desired purpose of
rehabilitation and deterring criminal activity. Moreover, the
imposition of lesser sentences had clearly not achieved the desired
effect, and a longer sentence of incarceration was essential to
vindicate the authority of the [trial] court.
Trial Court Opinion, 8/1/22, at 34-36.
We conclude that, in reviewing the extensive record spanning more than
a decade, the trial court was apprised of sufficient information to substitute
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for a PSI report. The affidavit of probable cause attached to the criminal
complaint filed against Appellant on February 10, 2011, detailed the facts
giving rise to Appellant’s criminal convictions. Moreover, the trial court was
well-apprised of Appellant’s history of violating the conditions of his probation
and parole, which is supported by the record, and noted Appellant’s prior
promises to never commit future violations. N.T., 3/8/22, at 17-25. Appellant
informed the trial court prior to sentencing in the case sub judice that he was
53 years old, was employed as a truck driver in California, was married and
was supporting his three minor children, who resided in California, and had
cardiovascular-related health issues for which he was currently being treated.
Id. at 13-17. Moreover, the trial court, based upon a review of the record,
was aware that Appellant graduated high school, completed some college
classes (18 credits), had no history of mental health treatment, and, in 2019,
had open cases involving assault charges filed by his son in New York and by
his daughter in North Carolina. N.T., 6/6/19, at 4, 6-7; see also 3/8/12, at
4-5. The trial court was also aware that Appellant had recent criminal charges
involving forgery and criminal impersonation filed against him in Connecticut
and that Appellant was not in possession of a valid driver’s license, yet
continued to drive a tractor-trailer as part of his employment. N.T., 3/8/22,
at 18, 21. Consequently, we find the trial court, in the case sub judice, was
“apprised of comprehensive information to make [Appellant’s] punishment fit
not only the crime but also the person who committed it.” Finnecy, 135 A.3d
at 1032. As such, while we do not condone the trial court’s failure to explicitly
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note on the record its reasons for not ordering and reviewing a PSI report
prior to sentencing, we find the information gleaned from a review of the
extensive record was sufficient to substitute for a PSI report. Moreover, in
imposing Appellant’s sentence, the trial court adequately considered
Appellant’s behavior and rehabilitative needs. Specifically, the trial court
concluded that Appellant was “devious, deceptive, untruthful, [and]
self-entitled with a complete disregard for others and[,] in particular[,]
authority.” N.T., 3/8/22, at 25. The trial court further considered that
Appellant’s behavior of repeatedly violating his probation and parole
demonstrated “a sense of arrogance” and a refusal “to obey and comply with
the rules and regulations” governing his probation and parole. In considering
Appellant’s rehabilitative needs, the trial court intended that incarceration in
a state correctional institution would “impress upon [Appellant] the
importance of complying with conditions of supervision[.]” Id. As part of
Appellant’s sentence, the trial court further ordered that Appellant undergo a
psychological evaluation to determine the best course of treatment in an effort
for Appellant “to gain rehabilitation.” Id. Therefore, we further find that the
trial court, in fashioning Appellant’s individualized sentence, adequately
considered Appellant’s behavior and rehabilitative needs. As such, Appellant’s
first issue with without merit.
Appellant’s second issue challenges his aggregate sentence on the
ground that the trial court imposed a manifestly excessive sentence as
punishment for technical violations of his parole and probation.
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Section 9771(b) of the Sentencing Code states that, “[u]pon revocation
the sentencing alternatives available to the [trial] court shall be the same as
were available at the time of initial sentencing, due consideration being given
to the time spent serving the order of probation.” 42 Pa.C.S.A. § 9771(b). A
trial court is permitted to impose a sentence of total confinement upon
revocation when the trial court 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 [trial] court.” 42
Pa.C.S.A. § 9771(c); see also Commonwealth v. Pasture, 107 A.3d 21,
27-28 (Pa. 2014).
Here, the trial court explained, “the imposition of lesser sentences had
clearly not achieved the desired effect, and a longer sentence of incarceration
[upon revocation sub judice] was essential to vindicate the authority of the
[trial] court.” Trial Court Opinion, 8/1/22, at 36. Moreover, a review of the
revocation hearing transcript demonstrates that the trial court believed state
incarceration was necessary to vindicate the trial court’s authority. See
generally N.T., 3/8/22. As the trial court found, and Appellant’s behavior of
repeatedly violating his probation and parole demonstrates, Appellant has a
“sense of arrogance” and an inability to accept that he must follow the rules
and regulations of his parole and probation, as parole and probation are
privileges and not rights. By way of example, Appellant abused travel passes,
which were issued by Agent Davis and permitted Appellant to leave the State
- 28 -
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of California as part of his employment, when Appellant failed to return, as
required, to the state and repeatedly drove vehicles without a valid driver’s
license, having received additional criminal charges stemming from his use of
a fraudulent driver’s license. Prior to the instant revocation hearing, as noted
by the trial court, Appellant’s probation and parole had been revoked four
times in the past, with Appellant promising each time that this series of
violations were the last. As such, we do not find the trial court abused its
discretion in fashioning a sentence of total confinement. Therefore,
Appellant’s second issue is without merit.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2023
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