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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAFIYQ DAVIS, : No. 2129 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 23, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009574-2008
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016
Rafiyq Davis appeals from the judgment of sentence entered by the
Court of Common Pleas of Philadelphia County on June 23, 2015, after the
sentencing court revoked appellant’s probation and sentenced him to 6 to
24 months of incarceration followed by 4 years of probation. We affirm.
The trial court set forth the following:
Appellant was on probation after a guilty
verdict following a bench trial before the Honorable
Ellen Ceisler. Appellant was found guilty of carrying
a firearm on the streets of Philadelphia,[1] carrying a
firearm without a license,[2] and possession of a
firearm by a prohibited person.[3] On March 20,
2009, Judge Ceisler sentenced Appellant to an
1
18 Pa.C.S.A. § 6108.
2
18 Pa.C.S.A. § 6106(a)(1).
3
18 Pa.C.S.A. § 6105(a)(1).
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aggregate three to six years of incarceration,
followed by four years of reporting
probation.[Footnote 1] Subsequently, Appellant’s
supervision was transferred to this court.
[Footnote 1] [Judgment] of sentence was
affirmed at 920 EDA 2009. Allowance of
appeal was denied at 254 EAL 2010.
This instant appeal arises from this court’s
judgment of sentence following a violation hearing
on June 23, 2015. At the violation hearing, the court
was presented with the Gagnon II Summary filed by
Appellant’s probation officer. The court was
informed that Appellant had given positive urinalysis
for marijuana on all four of his tests since his last
violation hearing on April 20, 2015, and that one test
was additionally positive for PCP. Notes of
Testimony, 6/23/2015, p. 7-8. The court was
informed that Appellant had tested positive for
marijuana seven times prior to his previous violation
hearing. Id., at 15-16. The court was informed that
Appellant was neither seeking employment, nor
attempting to complete his court-ordered twenty
hours of community service. Id. The court was
informed that Appellant smirked and laughed at his
probation officer when she confronted him about his
inconsistent attendance at Gaudenzia drug
treatment, telling her that he had better things to
do. Id.
The court revoked probation and sentenced
appellant to a period of six to twenty-four months[’]
incarceration, followed by four years of probation.
This appeal followed.
Sentencing court opinion, 10/6/15 at 1-2.
Appellant raises the following issues for our review:
1. Did not the lower court err and violate the
requirements of 42 Pa.C.S.A. § 9771(c) by
sentencing appellant to total confinement
absent his having been convicted of a new
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crime, absent any indication that he was likely
to commit a new crime, and absent a need to
vindicate the authority of the court?
2. Did not the lower court err and abuse its
discretion when it failed to order a
pre-sentence investigation report, or state its
reasons for dispensing with one on the record,
in violation of the Rules of Criminal Procedure?
Appellant’s brief at 3.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
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(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, the record reflects that appellant filed a timely notice of appeal,
properly preserved his sentencing issues in his post-sentence motion, and
included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we must now
determine whether appellant raises a substantial question.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only
when an 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.” Id. (citation omitted).
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In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted).
Here, appellant first contends that the sentencing court violated
42 Pa.C.S.A. § 9771(c) by imposing a sentence of total confinement
following a technical probation violation absent his having been convicted of
a new crime, absent any indication that he was likely to commit a new
crime, and absent a need to vindicate the authority of the court. The
imposition of a sentence of total confinement following the revocation of
probation for a technical violation, and not a new criminal offense, implicates
the “fundamental norms which underlie the sentencing process.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010)
(citation omitted).
When imposing a sentence of total confinement after
a probation revocation, the sentencing court is to
consider the factors set forth in 42 Pa.C.S.[A.]
§ 9771. Commonwealth v. Ferguson, [893 A.2d
735, 738 (Pa.Super. 2006)]. Under 42 Pa.C.S.[A.]
§ 9771(c), a court may sentence a defendant to total
confinement subsequent to revocation of probation if
any of the following conditions exist:
1. the defendant has been convicted of
another crime; or
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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 this court.
See also Commonwealth v. Coolbaugh, [] 770
A.2d 788 (Pa.Super. 2001).
A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the
record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character
of the offender. Commonwealth v. Malovich, []
903 A.2d 1247 (Pa.Super. 2006).
Crump, 995 A.2d at 1282-1283.
Here, the record reflects that appellant appeared before the sentencing
court at a probation revocation hearing on April 20, 2015, which was two
months prior to the June 23, 2015 probation revocation hearing that is the
subject of this appeal. (Notes of testimony, 6/23/15 at 4-9.) At the
April 20, 2015 proceeding, the sentencing court found appellant in technical
violation of his probation for, among other things, testing positive for
marijuana on 7 occasions and failing to provide a required urinalysis. (Id. at
6-7.) At that proceeding, the sentencing court gave appellant another
opportunity and continued his probation. (Id. at 7, 16.)
The record further reflects that following the April 20, 2015 revocation
hearing, appellant tested positive 4 out of 4 times for marijuana, and on
1 occasion, he tested positive for phencyclidine, known as PCP. (Id. at 7.)
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Appellant also failed to complete his community service and attend drug
treatment. (Id. at 7-8.) These violations necessitated the June 23, 2015
probation revocation hearing. (Id. at 4-8.)
At the June 23, 2015 probation revocation proceeding, the sentencing
court conducted a colloquy with appellant concerning appellant’s continued
and constant marijuana use and his failure to attend drug treatment. (Id. at
12-33.) The record also reflects that at the time of the hearing, appellant
was unemployed, not seeking employment, and that he had failed to
perform court-ordered community service. (Id. at 24.)
Therefore, the record supports the conclusion that a sentence of total
confinement was necessary to vindicate the court’s authority and because
appellant’s continued and constant drug use and his failure to attend drug
treatment make it likely that he will commit another crime. See
Commonwealth v. Cappellini, 690 A.2d 1220, 1225 (Pa.Super. 1997)
(total confinement following probation revocation appropriate because
appellant’s “continued drug use, combined with his resistance to treatment
and supervision, is enough to make a determination that, unless
incarcerated, appellant would in all likelihood commit another crime”).
Therefore, appellant’s first discretionary sentencing challenge warrants no
relief.
In his second and final challenge, appellant claims that the sentencing
court abused its discretion because it failed to order a pre-sentence
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investigation report (“PSI”) and failed to state its reasons for dispensing with
one on the record. We have held that this claim presents a substantial
question. See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724-725
(Pa.Super. 2013).
Pennsylvania Rule of Criminal Procedure 702 vests a sentencing judge
with the discretion to order a PSI to aid the court in imposing an
individualized sentence. See Pa.R.Crim.P. 702. While case law does not
require that the sentencing court order a PSI under all circumstances, it
does restrict the court’s discretion to dispense with a PSI to circumstances
where the necessary information is provided by another source.
Carrillo-Diaz, 64 A.3d at 726 (citations omitted). Case law further
establishes that the court must be apprised of comprehensive information to
make the punishment fit not only the crime, but also the person who
committed it. Id. (citations omitted). Although Pa.R.Crim.P. 702(A)(2)
requires that the sentencing court document the reasons for not ordering a
PSI, this court has made it clear that sentencing courts have some latitude
in how to fulfill this requirement. Carrillo-Diaz, 64 A.3d at 726 (citations
omitted). Therefore, where the sentencing court elicits sufficient information
during the colloquy to substitute for a PSI, thereby allowing a fully informed
sentencing decision, technical non-compliance with the requirements of
Pa.R.Crim.P. 702(A)(2) is rendered harmless. Carrillo-Diaz, 64 A.3d at 726
(citations omitted).
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Here, in addition to the record facts we set forth when disposing of
appellant’s first challenge, our review of the record also supports the
following as set forth in the sentencing court’s Rule 1925(a) opinion:
During the revocation hearing, the court
inquired as to Appellant’s home life, familial-social
support, and employment situation. [(Notes of
testimony, 6/23/15 at 12-13.)] The court also
inquired as to the nature of Appellant’s drug abuse.
[(Id. at 14-16.)] The court was able to evaluate
Appellant’s candor and contrition, or lack thereof.
[(Id. at 17-19.)] The court evaluated Appellant in
terms of personal responsibility. [(Id. at 29.)]
Based on its inquiries, the court was comfortable
that it had sufficient information to render an
individualized sentence, based on Appellan[t’s]
circumstances.
Sentencing court opinion, 10/6/15 at 8.
Following a careful review of the record before us, we find that the
sentencing court conducted a proper pre-sentence inquiry in the absence of
a PSI that allowed for a fully informed sentencing decision. Consequently,
appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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