Com. v. Weaver, E.

J. A15001/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC WEAVER, : No. 2301 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-0012655-2010

BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 29, 2016

Eric Weaver appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County on June 23, 2015, following

revocation of his probation. We affirm.

The trial court set forth the following:

On August 20, 2010, [appellant] was arrested
and charged with [possession with intent to deliver
(“PWID”)][1] and theft.[2] On April 14, 2011,
[appellant] pled guilty to both charges and was
sentenced by this Court to a negotiated sentence of
11½ to 23 months [of] county incarceration plus
3 years [of] probation on each charge, to run
concurrently with one another with immediate
parole. On August 3, 2011, this Court found
[appellant] to be in technical violation and ordered
that probation and parole be continued. On

1
35 P.S. § 780-113(a)(35).
2
18 Pa.C.S.A. § 3921(a).
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September 13, 2011, this Court ordered that
[appellant] undergo a Forensic Intensive Recovery
(FIR) evaluation for dual diagnosis and treatment.
On March 23, 2012, [appellant] failed to appear in
court for a violation of probation [(“VOP”)] hearing
and this Court issued a bench warrant. On July 18,
2012, this Court found [appellant] to be in technical
violation, terminated his parole, revoked his
probation, and found him guilty of contempt for his
failure to appear. On that same day, this Court
sentenced [appellant] to 11½ to 23 months [of]
county incarceration plus 6 years [of] probation on
the PWID charge, 5 years [of] probation on the theft
charge, and 2 months and 28 days to 5 months and
29 days [of] county incarceration on the contempt[3]
charge. The sentences on all charges were to run
concurrently with one another. [Appellant] was
warned at that time that he would receive a
sentence of state incarceration if he violated his
probation once again. On June 24, 2013, [appellant]
was released on parole. On May 8, 2015, [appellant]
failed to appear in court [for a probation status
hearing] and a bench warrant was issued for his
arrest.

On June 23, 2015, this Court held a [VOP] and
contempt hearing. [Appellant] was represented at
the hearing by Michael DeFino, Esquire, while the
attorney for the Commonwealth was Geoffrey
MacArthur, Esquire. After this Court reviewed
[appellant’s] criminal history, defense counsel stated
that [appellant] had entered an inpatient
detoxification program at Kensington Hospital and
was supposed to go to JFK Dual Diagnostic but his
insurance had failed to cover it. Defense counsel
further stated that, as a result, [appellant] panicked
and was afraid to appear for his scheduled court
date. This Court subsequently found [appellant] in
contempt for his willful failure to appear on May 8,
2015. Prior to sentencing on the contempt charge,
[appellant] apologized to this Court and his family
and stated that he needed help. Defense counsel

3
42 Pa.C.S.A. § 4137(a)(2).

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argued that [appellant] realized that he had
problems, was truthful with his probation officers
about his problems and had affirmatively sought
treatment for them. Defense counsel further argued
that [appellant] had incurred no new arrests and had
been working. Defense counsel stated that
[appellant’s] problems stemmed from the loss of his
infant child and that dual diagnosis treatment would
be appropriate for [appellant]. This Court then
sentenced [appellant] to 2 months and 28 days to
5 months and 29 days [of] county incarceration on
the contempt charge.

After sentencing [appellant] on his contempt
charge, this Court turned to the violation of his
probation. Defense counsel noted that [appellant]
had tested negative in the only drug test that he had
taken since he had left the hospital. Defense counsel
argued that [appellant] had mental health problems
due to the death of his child and that his family
stated that [appellant] had not been the same since.
Defense counsel further argued that [appellant’s]
actions only harmed himself, that he had not done
anything criminal since 2012, and that he had been
working since then to try to support himself.
Defense counsel argued that [appellant] would
benefit from dual diagnosis treatment and that, if he
then failed to get the help that he needed, he should
serve a sentence of state incarceration. Officer
Veronica Robinson, on behalf of the Probation
Department, recommended that probation be
revoked and that [appellant] receive a forthwith FIR
evaluation while in custody.

The Commonwealth attorney noted that
[appellant] had a history of absconding from
probation and not completing drug treatment
programs while under probation with the Honorable
Adam Beloff.[4] The Commonwealth attorney further
noted that Judge Beloff had warned [appellant]
previously that he faced a sentence of state

4
The record reflects that the Honorable Adam Beloff died at some point
during his involvement in appellant’s case.

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incarceration if he continued down the path he was
headed. The Commonwealth attorney argued that
[appellant] needed drug treatment and that, since he
was not getting the treatment he needed on his own,
state prison would be the best place for him to get
that treatment.

[Appellant] stated that he was sorry for
violating his probation and that he truly wanted to
address his problems this time. [Appellant] further
stated that he had not received any treatment to
help him cope with the loss of his child and that the
only person he was hurting was himself.

This Court found [appellant] to be in technical
violation of both this Court’s sentence and the
sentence imposed by Judge Beloff[Footnote 1]. This
Court revoked the probation it had imposed and
sentenced [appellant] to 3½-7 years [of] state
incarceration on his underlying PWID charge. This
Court imposed no further penalty on the underlying
theft charge. Furthermore, this Court revoked
[appellant’s] probation on Judge Beloff’s sentence
and sentenced [appellant] to 5 years [of] probation
on his underlying [possessing instrument of crime][5]
and terroristic threats[6] charges. This Court
imposed no further penalty on the underlying theft,
simple assault,[7] and [recklessly endangering
another person][8] charges. The sentences on all
charges were to run concurrently with one another
and with the sentence imposed on the contempt
charge.

[Footnote 1] The probationary sentence
imposed by Judge Beloff was

5
18 Pa.C.S.A. § 907(a).
6
18 Pa.C.S.A. § 2706.
7
18 Pa.C.S.A. § 2701(a).
8
18 Pa.C.S.A. § 2705.

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consolidated with the sentence imposed
by this Court on May 20, 2015.

On July 2, 2015, [appellant], through counsel,
filed a motion for reconsideration. On July 23, 2015,
[appellant] filed a Notice of Appeal with the Superior
Court. On August 13, 2015, after receiving the
Notes of Testimony, this Court ordered [appellant] to
file a Concise Statement of Errors pursuant to
Pa.R.A.P. 1925(b) and [appellant] did so on
September 2, 2015.

Trial court opinion, 9/15/15 at 2-5 (record citations omitted).

Appellant raises the following issues for our review:

I. Did the sentencing court abuse its discretion
by failing to order a presentence investigation
report and by failing to give careful
consideration to all relevant factors in
sentencing [a]ppellant?

II. Did the sentencing court impose an illegal and
unwarranted sentence of total confinement
under the circumstances of the case?

Appellant’s brief at 2.

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,

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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; brackets in original).

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
(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; brackets in original).

Here, the record reflects that appellant filed a timely notice of appeal,

properly preserved his sentencing issues in a timely petition for

reconsideration of his sentence, and included a Pa.R.A.P. 2119(f) statement

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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).

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 trial court abused its discretion

because it failed to order a pre-sentence investigation (“PSI”) report, failed

to put its reasons on the record for not doing so, and failed to carefully

consider all relevant sentencing factors. (Appellant’s brief at 12.) This

challenge presents a substantial question. See Commonwealth v. Kelly,

33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n appellant’s allegation that the

trial court imposed sentence without considering the requisite statutory

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factors or stating adequate reasons for dispensing with a pre-sentence

report [raises] a substantial question.”).

Pennsylvania Rule of Criminal Procedure 702 “vests a sentencing judge

with the discretion to order a pre-sentence investigation as an aid in

imposing an individualized sentence.” Commonwealth v. Carrillo-Diaz,

64 A.3d 722, 725-726 (Pa.Super. 2013). This court has held that

Pa.R.Crim.P. 702 applies to sentences imposed following the revocation of

probation. Id. We have explained:

The first responsibility of the sentencing judge
[is] to be sure that he ha[s] before him sufficient
information to enable him to make a determination
of the circumstances of the offense and the character
of the defendant. Thus, a sentencing judge must
either order a PSI report or conduct sufficient
presentence inquiry such that, at a minimum, the
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.
. . . The court must exercise “the utmost care in
sentence determination” if the defendant is subject
to a term of incarceration of one year or more[.]

To assure that the trial court imposes sentence
in consideration of both “the particular circumstances
of the offense and the character of the defendant,”
our Supreme Court has specified the minimum
content of a PSI report. The “essential and
adequate” elements of a PSI report include all of the
following:

(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;

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(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
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
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;

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(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.

[While case law does not] require that the trial court
order a pre-sentence investigation report under all
circumstances, the cases do appear to restrict the
court’s discretion to dispense with a PSI report to
circumstances where the necessary information is
provided by another source. Our cases establish, as
well, 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.

Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super. 2000)

(en banc) (citations and quotation marks omitted; brackets in original).

“Although Rule 702(A)(2) provides that the requirement to document the

reasons for not ordering a pre-sentence report is mandatory,” this court has

made clear that “sentencing courts have some latitude in how this

requirement is fulfilled.” Carrillo-Diaz, 64 A.3d 722, 726, quoting

Commonwealth v. Flowers, 950 A.2d 330, 333 (Pa.Super. 2008).

Therefore, technical noncompliance with Rule 702(A)(2) may be rendered

harmless where a court elicits sufficient information during the colloquy to

substitute for a PSI report and allow for a fully informed sentencing decision.

Id.

Here, although the trial court did not order a PSI report, our review of

the record amply supports the conclusion that the trial court elicited, and

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also had, sufficient information during the sentencing hearing that allowed

for a fully informed sentencing decision.

At the June 23, 2015 VOP/sentencing hearing, the trial court set forth

the following:

THE COURT: Mr. Weaver, as you know, you were
originally [sentenced] before this court back on
4/14/2011 at which time you pled guilty to
possession with intent to deliver a controlled
substance and theft, unlawful taking as a
misdemeanor of the first degree.

[APPELLANT]: Yes.

[THE COURT:] You were sentenced that same day to
your negotiated sentence of 11 and a half to
23 months in the county plus three years [of]
probation on each count to run concurrent with one
another with immediate parole. Credit for time
served on 8/19/2010 to present. As conditions of
my sentence, you were ordered to get drug
treatment; undergo random urinalysis; complete job
training; seek and maintain employment; stay out of
trouble with the law; pay the mandatory court costs
and supervision fees. You were also to have [an]
FIR evaluation from the street.

You gave us a status date of 7/14/2011. You
were found in technical violation a few times
between then. And the next time you came back
before the court where I sentenced you was
7/18/2012. At which time you were found to be in
technical violation for absconding treatment, and you
also failed to appear on 3/23/2012. On that day,
you also were found in contempt for failure to appear
on 3/23/12. I terminated your parole and revoked
your probation. I imposed a sentence of 11 and a
half to 23 months in the county plus six years [of]
reporting probation on the PWID and five years [of]
reporting probation on the theft to run concurrent
with the probation on the PWID.

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On the contempt you received a sentence of
two months and 28 days to 5 months and 29 days in
the county jail to run concurrent with the sentence
on the PWID. You were stipulated to Hoffman Hall
where you were ordered to successfully complete
six months of drug treatment; complete anger
management; complete job training. You were to be
made eligible for work release after those things
were done. I told you you would get a state
sentence next time you came back. And fines, costs
and supervision fees were to be paid at $40 per
month.

You were subsequently paroled on June 24th,
2013 and a status listing was scheduled for
11/29/2013. You tested positive for Valium because
you said you took your mom’s Valium. You tested
positive for drugs. You were suppose[d] to be going
to drug treatment. You were suppose[d] to appear
in court on 5/8/2015. At which time you failed to
appear. The court issued a bench warrant and
wanted cards.

Report of the probation department, 6/18/15,
is incorporated into the record by reference. It
indicates you continued to test positive for cocaine.
And on February 27th, 2015, you tested positive for
benzodiazepine and cocaine.

Notes of testimony, 6/23/15 at 2-5.

When the trial court asked appellant why he failed to appear in court

when required on May 18, 2015, appellant responded, through counsel, that

“he panicked and was afraid to come.” (Id. at 6-7.) Counsel then described

appellant’s drug addiction problems, his recovery efforts, his family’s

consultations with a recovery specialist, and his in-patient addiction

treatment. (Id. at 6-9.) With respect to his employment status, the court

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knew appellant was employed in February 2014 and inquired as to

appellant’s current employment status. (Id. at 10.) Appellant stated that

he worked for the teamsters union, but was laid off in 2015 and was not

working. (Id.) The record further indicates that the trial court had

documentation at the VOP/sentencing hearing that demonstrated that

appellant had failed to pay his court-ordered fines, costs, and supervision

fees. (Id. at 11.) When asked about the status of the payments, appellant

claimed to have made some, but could not support his contention with

documentation. (Id. at 10-11.)

The record further reflects that the trial court noted that appellant

failed to report to the probation department as required, failed to make

contact with the probation department, and failed to appear at his previous

VOP hearing. (Id. at 12.) The record also demonstrates that during the

subject VOP/sentencing hearing, the court referred to a report that reflected

that appellant was released from a hospital on April 16, 2015. (Id.) The

report indicated that following discharge, appellant was not home for a

scheduled home visit, and the owner of the home in which he was living

stated that appellant had not been seen since he went to the hospital. (Id.

at 12-13.)

During the hearing, appellant apologized for his conduct and stated

that he hurts no one but himself, needs help, and will “make sure [to] make

it work.” (Id. at 8.) Defense counsel also informed the trial court of

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appellant’s mental health problems, as well as the death of appellant’s infant

child, which, counsel said, has been traumatic for appellant. (Id. at 14.) At

that point, the trial court stated:

THE COURT: That’s what he said in 2012. I’ll read
to you what he told me in 2012.[9]

....

THE COURT: The [appellant] said, I take full
responsibility. The same thing he said today. I
make no excuses. Same thing he said today. He
said he refused to go to the drug program. He
stopped going to the drug program. He was living at
a recovery house, Heart to Heart. He said he didn’t
want to stay at the program where he was because
drugs were being brought into the program. Then he
said, I lost a good friend. He overdosed and killed
himself.

[He] didn’t come to court. He had missed that
court date, too, on 3/23/12. He said, I missed the
court date because I was scared. . . .

....

So, he’s basically repeating. . . .

....

[] See, the problem is I know that. I know he has a
problem. I know he’s had a problem since he pled
guilty at the very beginning, which is why I sent him
to drug treatment already. He’s been to drug
treatment twice. He was to get [an] FIR evaluation
from the street when I first sentenced him in 2011.
And then when I sentenced him in 2012, I sent him

9
During the hearing, the trial court stated that it takes “copious notes”
during proceedings that it presides over, including appellant’s prior
proceedings. (Id. at 16.) The record further indicates that the trial court
referred to those notes at the VOP/sentencing hearing.

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to Hoffman Hall. And I don’t know if you are familiar
with Hoffman Hall, but Hoffman Hall has a very good
drug treatment program inside this minimum
security private jail. I’ve been there several times.
It’s a nice jail. I’ve sent him to one of the nicest jails
in town that I know has a good program and he still
didn’t --

Id. at 15-17.

The trial court then asked appellant’s probation officer for his

recommendation, and he recommended revocation. (Id. at 20.)

Additionally, the Commonwealth informed the trial court of appellant’s

history of absconding from probation and not completing drug treatment.

(Id.) The Commonwealth recognized that appellant “obviously needs drug

treatment,” and stated that because appellant has been unsuccessful on his

own, the next logical step is state prison. (Id. at 20-21.)

The record demonstrates that the trial court conducted a sufficient

pre-sentence inquiry and possessed sufficient information to substitute for a

PSI report, thereby allowing a fully informed and individualized sentencing

decision. In making its sentencing determination, the trial court considered

appropriate sentencing factors, including the nature of the offense, a

description of appellant’s criminal history, appellant’s employment history

and current employment status, appellant’s familial relationships,10

appellant’s drug problem, appellant’s involvement in drug treatment and

10
The record reflects that appellant’s parents attended the June 23, 2015
VOP/sentencing hearing. The record further reflects that appellant’s parents
have attempted to aid in his recovery.

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efforts at rehabilitation, appellant’s expressions of remorse, appellant’s

failure to pay court-ordered fines, appellant’s history of absconding from

judicial proceedings and failing to report to the probation department, and

appellant’s lack of success under probation. Therefore, on the basis of the

record before us, we find no abuse of discretion.

Appellant next complains 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 appellant 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 over the course of several years, the trial

court has given appellant more than one opportunity to reform, and

appellant opted against taking any of those opportunities. As stated by the

trial court:

[THE COURT:] This sentence is absolutely necessary
to vindicate the authority of the court. This
defendant has basically thumbed his nose at both
Judge Beloff and myself and done things the way he
wanted to do even though all the while still getting
into trouble. We both apparently have been giving
him opportunities to address his drug problem in the
county. And I’ve given him an opportunity to
address his drug problem in the county at least
twice. And he has basically not done what he was
suppose[d] to do either time.

Id. at 26.

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Therefore, the record reflects that the trial court imposed a sentence

of total confinement consistent with section 9771(c). See 42 Pa.C.S.A.

§ 9771(c); see also Commonwealth v. Malovich, 903 A.2d 1247

(Pa.Super. 2006) (holding that where the record demonstrated that

appellant failed to comply with previous judicial efforts, such as drug court;

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

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

actions, imposition of sentence of total confinement following revocation of

probation is appropriate to vindicate court’s authority). Therefore, after a

careful review of the record, this claim lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016

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