J-S35002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES FANNINGS
Appellant No. 1064 EDA 2014
Appeal from the Judgment of Sentence March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0806303-2006
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 17, 2015
Appellant, James Fannings, appeals from the March 7, 2014 judgment
of sentence of three to six years’ imprisonment, followed by five years’
probation, imposed following the revocation of his probation. After careful
review, we affirm.
The trial court has summarized the relevant factual history of
Appellant’s underlying conviction as follows.
On June 5, 2006, shortly before 4:00 PM,
Complainants, Hugh Ruane and Corey Hand, were
selling audio equipment at City and Belmont
Avenues, Philadelphia, PA when they were
approached by Appellant and two male co-
conspirators who indicated an interest in making a
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*
Retired Senior Judge assigned to the Superior Court.
J-S35002-15
purchase of stereo speakers. One of the males,
Jules Quick, stated that he did not have enough
money to complete the purchase and asked
Complainants to follow the three assailants to the
3000 block of Oakdale Street, Philadelphia, PA so he
could get the rest of the money and the
complainants agreed. Upon arrival Quick went to get
the money and upon his return[] a few minutes later
he stated that he had some of the money but that he
still didn’t have the full amount and that some other
friends were en route with the balance. Shortly
thereafter two other males arrived, displayed
handguns, and announced a robbery. Appellant then
began to unload Complainants’ vehicle containing the
merchandise and placed the audio equipment into
Quick’s vehicle. Quick fled with the merchandise in
the vehicle and Appellant fled on foot to his
residence[]. Complainants positively identified
Appellant as one of the perpetrators of the robbery.
Trial Court Opinion, 10/10/14, at 2-3.
Further, the subsequent procedural history was accurately summarized
by the trial court as follows.
On June 6, 2006[,] Appellant was arrested and
charged with [r]obbery and [c]riminal [c]onspiracy[,]
and on October 23, 2007 he pled guilty to those
offenses. On December 20, 2007[,] Appellant was
sentenced to concurrent terms of imprisonment of
not less than eleven and one half (11 1/2) months
nor more than twenty[-]three (23) months plus eight
(8) years[’] probation. On October 1, 2008[,]
Appellant filed a [m]otion for [p]arole, pro se, and on
October 22, 2008[,] the [trial c]ourt granted
Appellant’s [m]otion.
On March 27, 2013[,] Appellant was arrested
for a violation of Section 6105 of the Uniform
Firearms Act, [p]ossessing [i]nstruments of [c]rime,
and [s]imple [a]ssault[,] and on September 6,
2013[,] he pled guilty to those offenses.
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Id. at 1-2 (citations omitted). At the same hearing, in accordance with
Gagnon v. Scarpelli, 411 U.S. 778, (1973), the trial court revoked
Appellant’s probation after conducting the following colloquy.
[The trial court]: You understand that by pleading
guilty to this, this will put you in direct violation of
your open other sentencing case?
[Appellant]: Yes, Your Honor.
[The trial court]: Do you still wish to plead guilty?
[Appellant]: Yes, Your Honor.
N.T., 9/6/13, at 8. Thereafter, on March 7, 2014, Appellant was sentenced
to three to six years’ incarceration, plus five years’ probation on the
revocation. That same day, Appellant was sentenced to an aggregate term
of four to 10 years’ imprisonment on the new charges, to run consecutively
to the revocation sentence. On April 7, 2014, Appellant filed a timely notice
of appeal.1
On appeal, Appellant raises one issue for our review.
Did the [trial] court err by failing to consider the
record of the sentencing proceeding prior to revoking
probation pursuant to 42 Pa.C.S.A. Section 9771(d)?
Appellant’s Brief at 4.
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1
We note that the 30th day following the trial court’s imposition of sentence
fell on Sunday, April 6, 2014. However, Appellant’s notice of appeal was
timely filed. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a
calculated period of time falls on a Saturday or Sunday, such days shall be
omitted from the computation). Additionally, Appellant and the trial court
have complied with Pennsylvania Rule of Appellate Procedure 1925.
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Appellant argues that the trial court “erred in failing to consider the
record of the sentencing proceeding together with the conduct of [Appellant]
while on probation.” Id. at 9. Appellant asserts the trial court instead only
considered his probation record created by his former probation officer, and
the new crime constituting the probation violation. Id. Accordingly,
Appellant avers it was an error to revoke his probation as “there was
absolutely no testimony or reference by the [trial] court as to the record of
the sentencing proceeding prior to the Judge revoking Appellant’s probation
in violation of 42 Pa.C.S.A. Section 9771(d).” Id. at 9-10.
“The court may revoke an order of probation upon proof of the
violation of specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b).
Revocation of probation is in the sound discretion of the trial court and we
will not disturb it in the absence of an error of law or an abuse of discretion.
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007),
appeal denied, 945 A.2d 169 (Pa. 2008). “The Commonwealth establishes a
probation violation meriting revocation when it shows, by a preponderance
of the evidence, that the probationer’s conduct violated the terms and
conditions of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future antisocial
conduct.” Id. (citation omitted).
Instantly, Appellant claims the trial court violated Section 9771(d),
which states as follows.
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§ 9771. Modification or revocation of order of
probation
(d) Hearing required.--There shall be no
revocation or increase of conditions of sentence
under this section except after a hearing at which
the court shall consider the record of the sentencing
proceeding together with evidence of the conduct of
the defendant while on probation. Probation may be
eliminated or the term decreased without a hearing.
42 Pa.C.S.A. § 9771(d).
Specifically, Appellant argues the trial court erred in failing to consider
the record of the sentencing proceeding from 2007. However, a review of
the record indicates Appellant did not preserve this issue by objecting to the
revocation at the time of the hearing, by objecting at his re-sentencing, or
by filing a motion for modification of sentence. See generally Pa.R.A.P.
302(a); Pa.R.Crim.P. 708(E). Accordingly, said issue is waived.
Based on the foregoing, we conclude Appellant’s sole claim on appeal
is waived. Therefore, we affirm the trial court’s March 7, 2014 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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