Com. v. Russell, R.

J-S01036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RASHEEN RUSSELL

Appellant No. 2823 EDA 2014

Appeal from the Judgment of Sentence September 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004315-2012

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 12, 2016

Appellant, Rasheen Russell, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following

revocation of his probation. We affirm and grant counsel’s petition to

withdraw.

The relevant facts and procedural history of this case are as follows.

On October 23, 2012, the court convicted Appellant of criminal trespass,

possessing instruments of crime (“PIC”), criminal attempt to commit theft,

and criminal attempt to commit receiving stolen property.1 The court

sentenced Appellant on December 5, 2012, to six (6) to twelve (12) months’

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1
18 Pa.C.S.A. §§ 3503(a); 907; 901 (§ 3921 related); 901 (§ 3925 related),
respectively.
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imprisonment for criminal trespass, plus one year of probation for PIC and

one year of probation for attempted theft;2 the court imposed no further

penalty for the remaining conviction. On or about April 14, 2013, Appellant

was paroled. After parole expired and while on probation, Appellant

committed technical violations. Specifically, Appellant tested positive for

drugs multiple times, failed to report to his probation officer, did not

complete a drug program, and failed to make payments toward the costs

associated with his case. The court held a revocation of probation hearing

on September 8, 2014. At the conclusion of the hearing, the court revoked

Appellant’s probation for PIC, and resentenced Appellant to six (6) to twelve

(12) months’ imprisonment.

Appellant timely filed a motion for reconsideration on September 15,

2014. While the motion was still pending, Appellant timely filed a notice of

appeal on October 7, 2014.3 On October 31, 2014, the court ordered

Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b).

Counsel subsequently filed a statement of intent to file an Anders4 brief per

Pa.R.A.P. 1925(c)(4).
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2
The court imposed the probationary tails consecutively.
3
See Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after
revocation shall be filed within 10 days of date of imposition; filing of motion
to modify sentence will not toll 30-day appeal period).
4
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).

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As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance

with these requirements is sufficient. Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon[5] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.

* * *

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5
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition to withdraw representation.

The petition states counsel fully reviewed the record and concluded the

appeal would be wholly frivolous. Counsel indicates he notified Appellant of

the withdrawal request. Counsel also supplied Appellant with a copy of the

brief and a letter explaining Appellant’s right to proceed pro se or with new

privately retained counsel to raise any points Appellant believes have merit.

(See Letter to Appellant, dated May 21, 2015, at 1). In his Anders brief,

counsel provides a summary of the procedural history of the case. Counsel

refers to evidence in the record that may arguably support the issues raised

on appeal, and he provides citations to relevant law. The brief also provides

counsel’s reasons for his conclusion that the appeal is wholly frivolous.

Therefore, counsel has substantially complied with the requirements of

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Anders and Santiago. See Wrecks, supra.

As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal based on the issues

raised in the Anders brief:

WAS EVIDENCE THAT [APPELLANT] TESTED POSITIVE FOR
MARIJUANA MULTIPLE TIMES, FAILED TO COMPLETE HIS
DRUG PROGRAM, AND ABSCONDED FROM SUPERVISION
SUFFICIENT FOR REVOCATION?

WAS THE PROBATION REVOCATION SENTENCE ILLEGAL
OR EXCESSIVE?

(Anders Brief at 2).

When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc) (explaining that, notwithstanding prior decisions which stated our

scope of review in revocation proceedings is limited to validity of

proceedings and legality of sentence, this Court’s scope of review on appeal

from revocation sentencing can also include discretionary sentencing

challenges).

In his first issue, Appellant argues the court revoked his probation

where he tested positive for drugs on multiple occasions, failed to report for

supervision, and did not remain active in his drug treatment program.

Appellant asserts he sustained no arrests while on probation. Appellant

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contends he also worked while on probation. Appellant maintains the reason

he failed to report for supervision was due to his employer’s mandatory

ninety-day “probationary period,” during which Appellant could not take days

off from work to see his probation officer. Appellant concludes the court

abused its discretion when it revoked Appellant’s probation based solely on

technical violations, and this Court should reverse. We disagree.

In the context of probation revocation and resentencing, the

Sentencing Code provides, in pertinent part:

§ 9771. Modification or revocation of order of
probation

(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.

(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the 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.

(c) Limitation on sentence of total
confinement.—The court shall not impose a sentence of
total confinement upon revocation 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

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(3) such a sentence is essential to vindicate the
authority of the court.

* * *

42 Pa.C.S.A. § 9771(a)-(c).

“[T]he revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.

2006). “The 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.”

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal

denied, ___ Pa. ___, 109 A.3d 678 (2015). “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 [the] probationer from future

antisocial conduct.” Commonwealth v. Perreault, 930 A.2d 553, 558

(Pa.Super. 2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008).

Instantly, the court initially sentenced Appellant on December 5, 2012,

to an aggregate term of six (6) to twelve (12) months’ imprisonment, plus

two (2) years’ probation. Appellant was paroled on or about April 14, 2013.

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The court held a revocation of probation hearing on September 8, 2014,

based on allegations that Appellant had committed various technical

violations while on probation. At the September 8, 2014 hearing, Nashia

Williams, Appellant’s probation officer, stated Appellant had failed to report

for probation, necessitating the issuance of wanted cards for Appellant. Ms.

Williams indicated police subsequently arrested Appellant on that detainer.

Ms. Williams also informed the court Appellant was referred to outpatient

treatment at Men and Women of Excellence, but Appellant failed to remain

active in that program. Ms. Williams further confirmed that Appellant tested

positive for drugs five times while on probation—once for THC (marijuana)

and opiates; and the other four times for THC.

Significantly, Appellant did not dispute that he committed these

technical violations.6 Rather, defense counsel highlighted Appellant’s

employment while on probation. Defense counsel offered that Appellant

failed to report for supervision due to his employer’s mandatory ninety-day

“probationary period,” during which Appellant could not take days off from

work to see his probation officer. Defense counsel also claimed Appellant

made payments to the First Judicial District of Philadelphia, but counsel

insisted those payments had been applied to other cases and not the instant
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6
Appellant claimed he had a prescription for Percocet (as a result of having
teeth pulled), to explain his positive drug test for opiates. Ms. Williams
denied that Appellant supplied a prescription for Percocet. Appellant
admitted he had no prescription for THC (marijuana).

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case, by no fault of Appellant. Appellant conceded that he continues to

smoke marijuana. Appellant also admitted he failed to remain active in his

treatment program. The Commonwealth acknowledged Appellant’s

employment while on probation but pointed out that the court had already

imposed a lenient sentence, given Appellant’s prior record. The

Commonwealth maintained Appellant’s multiple failed drug tests and his

failure to remain active in drug treatment demonstrate Appellant is unwilling

or unable to remedy his substance abuse issues.

At the conclusion of the hearing, the court revoked Appellant’s

probation and resentenced him for the PIC conviction to six (6) to twelve

(12) months’ imprisonment. We see no reason to disrupt the court’s

decision to revoke probation based on Appellant’s various technical

violations. See MacGregor, supra. See also Commonwealth v.

Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (affirming revocation of

probation where defendant stopped reporting to drug care facility assigned

for treatment and refused to submit to drug testing, admitted using cocaine,

and tested positive for cocaine and heroin); Commonwealth v. Newman,

310 A.2d 380 (Pa.Super. 1973) (affirming revocation of probation based

solely on appellant’s commission of technical probation violation by failing to

report to probation office; power to grant privilege of probation to convicted

defendant carries with it right to revoke privilege if it is abused). Therefore,

Appellant’s first issue merits no relief.

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In his second issue, Appellant argues the court imposed an excessive

sentence given that Appellant was working while on probation and incurred

no arrests. Appellant asserts the court failed to specify one of the statutory

enumerated reasons under Section 9771(c) for imposing a sentence of total

confinement, following revocation based on technical violations of probation.

As presented, Appellant’s issue challenges the discretionary aspects of his

sentence.7 See Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super.

2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010) (explaining claim

that court erred by imposing sentence of total confinement for technical

violations of probation presents challenge to court’s sentencing discretion);

Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super. 2006) (stating

claim that court failed to consider factors under Section 9771(c) before

imposing sentence of total confinement following probation revocation

implicates discretionary aspects of sentencing); Commonwealth v. Lutes,

793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is manifestly

excessive challenges discretionary aspects of sentencing); Commonwealth

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.

653, 676 A.2d 1195 (1996) (stating allegation court ignored mitigating

factors challenges discretionary aspects of sentencing).
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7
Notwithstanding Appellant’s statement of questions presented, Appellant
concedes his sentence is legal and complains only of the court’s sentencing
discretion. Appellant preserved this claim in his motion for reconsideration
of sentence.

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When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825

(Pa.Super. 2007). A substantial question exists “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).

A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at

624. Bald allegations of excessiveness, however, do not raise a substantial

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,

a substantial question exists “only where the appellant’s Rule 2119(f)

statement sufficiently articulates the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process….” Id. See, e.g., Cartrette, supra (indicating claim that

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revocation court ignored appropriate sentencing factors raises substantial

question); Malovich, supra (holding defendant’s claims that sentencing

court did not state on record any reasons for sentence, imposed sentence of

total confinement without discussing necessary factors, and imposed

sentence excessive and disproportionate to underlying technical probation

violations raised substantial questions warranting appellate review). An

allegation that the sentencing court failed to consider a specific mitigating

factor, however, does not necessarily raise a substantial question.

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim

that sentencing court ignored appellant’s rehabilitative needs failed to raise

substantial question).

To the extent Appellant complains the sentencing court did not

adequately consider specific mitigating factors—his employment while on

probation and the fact that he incurred no new arrests—this allegation does

not raise a substantial question. See id. Likewise, Appellant’s bald claim of

excessiveness does not warrant our review. See Mouzon, supra.

Nevertheless, Appellant’s claim the court failed to articulate or consider the

factors under Section 9771(c) prior to imposing a sentence of total

confinement for technical violations of probation, does raise a substantial

question. See Cartrette, supra; Malovich, supra.

“In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

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absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).

Following the revocation of probation, the court may impose a sentence of

total confinement if any of the following conditions exist: the defendant has

been convicted of another crime; the conduct of the defendant indicates it is

likely he will commit another crime if he is not imprisoned; or, such a

sentence is essential to vindicate the authority of the court. See 42

Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply to sentences

imposed following a revocation of probation. Commonwealth v.

Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa.

788, 906 A.2d 1196 (2006). “[U]pon sentencing following a revocation of

probation, 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. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001).

Pursuant to Section 9721(b), “the court shall follow the general

principle 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.A. § 9721(b). “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a

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lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Crump, supra at 1283. Rather, the

record as a whole must reflect the sentencing court’s consideration of the

facts of the case and the defendant’s character. Id. See also

Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)

(explaining where revocation court presided over defendant’s no contest plea

hearing and original sentencing, as well as his probation revocation hearing

and sentencing, court had sufficient information to evaluate circumstances of

offense and character of defendant when sentencing following revocation).

Instantly, the court initially imposed a lenient sentence on December

5, 2012, of only six (6) to twelve (12) months’ imprisonment plus two (2)

years’ probation, for Appellant’s convictions of criminal trespass, PIC,

criminal attempt to commit theft, and criminal attempt to commit receiving

stolen property. While on probation, Appellant committed various technical

violations by testing positive for drugs on five occasions, failing to remain

active in drug treatment, failing to report to his probation officer, and failing

to make payment toward the costs associated with his case. Upon the

court’s revocation of Appellant’s probation, defense counsel asked the court

if it would consider sending Appellant to the Forensic Intensive Recovery

program instead of confinement. The court rejected defense counsel’s offer,

explaining Appellant was a “veteran criminal” with a record of nine prior

arrests and convictions. The court indicated it had given Appellant a chance

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to reform, which Appellant simply did not take. As the judge who presided

over Appellant’s probation revocation hearing was the same jurist who had

presided over Appellant’s initial bench trial and sentencing, the court had

sufficient information to evaluate the circumstances of Appellant’s case as

well as Appellant’s character. See id. The record confirms the court

imposed a sentence of total confinement consistent with Section 9771(c).

See 42 Pa.C.S.A. § 9771(c). See also Malovich, supra (holding record

evidenced that court imposed sentence of total confinement following

revocation of appellant’s probation to vindicate court’s authority, where

appellant had not complied with previous judicial efforts such as drug court,

had not “been putting anything into” court-imposed rehabilitation efforts,

and it was important for appellant to appreciate seriousness of his actions;

court did not quote from Section 9771(c) when imposing sentence or even

mention statute by citation, but record as whole reflected court’s reasons for

sentencing, and court’s consideration of circumstances of appellant’s case

and appellant’s character); Cappellini, supra (holding appellant’s continued

drug use, combined with his resistance to treatment and supervision, was

sufficient for court to determine appellant would likely commit another crime

if not incarcerated); Commonwealth v. Aldinger, 436 A.2d 1196 (1981)

(explaining sentence of total confinement was proper where trial court

expressly found and record reflected that appellant violated probation by

using drugs; record showed court considered circumstances giving rise to

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revocation proceeding and appellant’s character; even though court did not

state on record that it made specific finding pursuant to Section 9771(c)(2),

court is not required to parrot criteria of Sentencing Code). Thus,

Appellant’s second issue merits no relief. Accordingly, we affirm.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2016

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