J-S39006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS GEHAN,
Appellant No. 78 EDA 2014
Appeal from the Judgment of Sentence November 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0403911-2005
BEFORE: BOWES, OTT AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 23, 2015
Thomas Gehan appeals from the judgment of sentence of six to twelve
years imprisonment that was imposed after he was found to be in direct
violation of the terms of his probation. We affirm.
On March 4, 2005, Appellant was charged with attempted murder,
aggravated assault, possession of an instrument of crime, terroristic threats,
simple assault, reckless endangerment, and two violations of the Uniform
Firearms Act. On April 27, 2006, he entered an open guilty plea to
aggravated assault, carrying an unlicensed firearm, and possession of an
instrument of crime, and the remaining charges were dismissed.
Since the April 27, 2006 plea proceeding was not transcribed, we have
gleaned the facts of the criminal episode from the criminal complaint, which
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does not name either the victim or any of the witnesses. On March 2, 2005,
Appellant shot the victim in the face with a shotgun while she was in
Appellant’s home at 2527 East Gordon Street, Philadelphia. The victim was
hospitalized in serious condition after the shooting. A witness sleeping in the
next room heard the shot and then saw Appellant in the room with the
victim, who was lying on the ground and bleeding from the face. A neighbor
heard the shot, went outside, and saw Appellant flee the residence and place
a shotgun in a nearby vacant house.
Philadelphia police responded and observed the victim lying on the
floor with a gunshot wound to the left side of her face. They recovered the
shotgun after being shown its location by the neighbor. Appellant was
arrested and advised of his rights. He claimed that he accidently shot the
victim.
After entry of his plea, Appellant was sentenced to five years and three
months to fifteen years and six months incarceration with a concurrent term
of twelve years probation. While released from prison on parole, Appellant
was charged with two offenses. The cases were consolidated and on March
25, 2013, Appellant pled guilty to two counts of terroristic threats and one
count of simple assault. The facts of those crimes were as follows.
Appellant twice called the female victim, his former girlfriend who was then
pregnant. The first time, Appellant “stated he was going to shoot everybody
in the complainant’s house[.]” N.T. VOP, 11/21/13, at 17. He also told the
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victim “he was going to come and kill her any way he could think of with a
knife or a gun, and then he would shoot any witnesses and the witness’s
grandson.” Id. at 17-18.
Based upon these direct violations, Appellant’s probation was revoked
on August 26, 2013. A pre-sentence investigation report was prepared, and
Appellant was sentenced on November 21, 2013. The sentencing court took
into account that Appellant had committed a direct violation and the nature
of Appellant’s threats to the victim in the other matter.
The court also examined the facts of the crime in this case. Appellant
insisted that he accidently shot the victim herein. The court recalled that the
shooting was not accidental. It stated, “I remember exactly. He shot
through a door. He, basically, disfigured his girlfriend. It wasn’t an
accident.” Id. at 10. After Appellant repeated that the shooting was
accidental, the court again rejected that contention. It recalled that the
victim appeared at sentencing and reported that Appellant was “banging on
the door trying to get in” and that Appellant shot “her through the door”
while knowing that she was on the other side. Id. at 10-11.
Appellant, for a third time, represented that the shooting herein was
not intentional. In support of this position, he read a letter from the victim
that he contended supported his characterization of the shooting. That
document was read into the record, and it decidedly did not indicate that the
shooting was an accident. The victim stated in the letter that she was
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unable to recall the incident. She said that she had tried to remember
“something that happened that changed my life. I can just remember
waking upon in the hospital[.]” Id. at 14. She did state that she recalled
the following: “I just remember [Appellant] with the gun in front of me and a
flash of light, then the silence.” Id. at 14. The letter also established that
the shooting had a significant impact on the victim, who was disfigured, had
difficulty remembering events from her past, and experienced pain from her
injuries.
The court uncovered notes from the previous sentencing, and they
were consistent with the complainant’s letter. The court said that it wrote
down, “Complainant can’t recall the shooting. However, this came after a
fight.” Id. at 19. Those notations also established that the victim spent
twenty-three days in the hospital and was permanently disfigured.
As noted, the sentencing court had the benefit of a presentence report.
Appellant had two juvenile arrests, one adjudication of delinquency, and one
commitment based upon charges of theft and conspiracy. As an adult,
Appellant was found guilty of possession an instrument of crime and criminal
mischief.
Appellant was sentenced to six to twelve years incarceration herein.
This sentence was imposed due to the nature of this crime, the facts of the
crimes that constituted the VOP, and Appellant’s decision to reoffend despite
completing rehabilitation programs in prison. The court concluded that this
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term was required because the facts at its disposal established that
Appellant remained a danger to society. Appellant filed a motion for
reconsideration, and this timely appeal. Appellant raises this contention:
Was the lower court's imposition of six to twelve years of
incarceration for a first violation of probation an abuse of
discretion, manifestly excessive, and a violation of the
sentencing code as it far surpassed what is required to protect
the public, was well beyond what is necessary to foster
appellant's rehabilitation, failed to properly consider the
sentencing factors, and failed to place the reasons for such
sentence on the record as required by Pennsylvania Rule of
Criminal Procedure 702?
Appellant’s brief at 3.
In an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed. Commonwealth v.
Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). Appellant’s
challenges relate to the discretionary aspects of his sentence, and were
preserved in his motion for reconsideration and Pa.R.A.P. 1925(b)
statement.
A challenge to the discretionary aspects of a sentence must
be considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. The
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determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must show actions
by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014)
(citations omitted).
As required by Pa.R.A.P. 2119(f), Appellant’s brief contains a separate
statement of the reasons relied upon for the appeal. He avers that his
sentence was excessive and the court did not weigh the likelihood of his
reoffending or his rehabilitative needs. “This Court has held that an
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa.Super. 2014)
(citation omitted). Hence, we grant allowance of appeal from the
discretionary aspects of the sentence imposed herein.
We consider this matter in the context of our standard of review:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043, (Pa.Super. 2014)
(citation omitted).
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Appellant complains that the trial court “failed to consider all the
factors under 42 Pa.C.S. § 9721(b).” Appellant’s brief at 18. When the
sentencing court possesses and considers a presentence report, as in the
present case, we are required by our Supreme Court’s decision in
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988), to presume that
the sentencing court “was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” See also Commonwealth v. Griffin, 65 A.3d
932 (Pa.Super. 2013). Additionally, contrary to Appellant’s position, the
court expressly weighed his rehabilitative needs. It noted that Appellant
completed programs in prison but then did not modify his behavior. N.T.
VOP, 11/21/13, at 27. It therefore concluded that Appellant had “very little
chance of being rehabilitated” and was a “danger to society[.]” Id. Thus,
this position merits no relief.
Appellant also suggests a sentence of six to twelve years confinement,
which he must serve after he is finished with his parole violation sentence,
was “disproportionate to the violation.” Appellant’s brief at 18. He notes
that the crimes that he committed that resulted in the revocation of his
probation were misdemeanors and that the court in the other case concluded
that “only a minimal period of incarceration was appropriate[.]” Id. at 17.
Initially, we note that a court is empowered to impose a jail term once
a defendant violates his probation by committing another crime. 42 Pa.C.S.
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§ 9771(c)(1) (total confinement can be imposed after a defendant’s
probation is revoked if . . . the defendant has been convicted of another
crime[.]”). Whether the crime is a felony or “only” a misdemeanor is
immaterial. Moreover, we are unaware of any authority that prohibits the
VOP court from imposing a lengthy sentence due to the term of
imprisonment imposed by the court in the case that constituted the direct
violation.
This sentencing court concluded that a long jail term was warranted
due to the similarities in this case and the one involving terroristic threats.
In the other matter, Appellant threatened to kill his ex-girlfriend, who was
pregnant, by any means possible, including a gun. Appellant also said he
would kill the victim’s relatives and any witnesses to the murder. In this
action, Appellant had an argument with the victim and then shot her. The
court correctly observed that Appellant displayed a pattern of behavior that
supported that he represented a threat to society and needed a lengthy
period of incarceration. Given his behavior in this case, the terroristic
threats that Appellant made in the other criminal action cannot be viewed as
minor transgressions. We perceive of no abuse of discretion in the court’s
decision to sentence Appellant to the maximum permissible VOP sentence.
Appellant also launches an assault on his sentence as excessive and an
abuse of discretion by relying upon a series of cases involving sentences that
were not VOP sentences and instead, were sentences involving an
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application of the sentencing guidelines. It is settled that, “The sentencing
guidelines do not apply to sentences imposed as a result of probation or
parole revocation, accelerated rehabilitative disposition, disposition in lieu of
trial, direct or indirect contempt of court, nor violations of protection from
abuse orders.” 204 Pa.Code § 303.1(b); see also Commonwealth v.
Coolbaugh, 770 A.2d 788 (Pa.Super. 2001); Commonwealth v. Ware,
737 A.2d 251 (Pa.Super. 1999).
Instead, “upon revocation, the sentencing alternatives available to the
court shall be the same as the alternatives available at the time of initial
sentencing. Normally, the trial court is limited only by the maximum
sentence that it could have imposed originally at the time of the
probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365
(Pa.Super. 2013) (citations omitted); accord Commonwealth v. Colon,
102 A.3d 1033 (Pa.Super. 2014). The sentencing court herein did not
exceed, as Appellant acknowledges, the maximum sentence that it could
have imposed at the time of the original sentencing. Hence, we reject the
assertion that the sentence was an abuse of discretion and manifestly
excessive.
Finally, we note that Appellant does not advance, in the body of his
brief, his position that the court did not proffer a statement of the reasons
for the sentence imposed during the sentencing proceeding. Indeed, our
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review confirms that the sentencing court articulated sound reasons for the
sentence in question.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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