J-A17008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY ROBINSON,
Appellant No. 529 EDA 2015
Appeal from the Judgment of Sentence January 23, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002155-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 06, 2016
Appellant, Troy Robinson, appeals from the judgment of sentence
imposed following revocation of his probation.1 We affirm.
We take the relevant facts and procedural history of this case from the
trial court’s March 24, 2015 opinion and our independent review of the
certified record. On June 25, 2013, Appellant entered a negotiated guilty
plea to one count each of intimidation of a witness or victim, and contempt
for violation of order or agreement.2 The charges stem from Appellant’s
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*
Retired Senior Judge assigned to the Superior Court.
1
We have amended the caption to reflect that Appellant is appealing from
the trial court’s January 23, 2015 sentence, rather than from the June 2,
2014 sentence, which the court vacated.
2
18 Pa.C.S.A. § 4952(a)(1) and 23 Pa.C.S.A. § 6114(a), respectively.
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intimidation of an over eighty-year-old woman in an underlying rape case
against him.3 As Appellant’s trial date neared in the rape case, the victim
became uncooperative. Recorded prison phone conversations showed that
Appellant had called the victim numerous times, and instructed her to hide
from police and not show up for court. At the guilty plea hearing, the trial
court advised Appellant that the witness/victim intimidation offense was
graded as a second-degree felony, and it sentenced him to a term of five
years’ probation. (See N.T. Guilty Plea, 6/25/13, at 13, 32; Order,
6/25/13). It further ordered Appellant to have no contact with the victim.
(See N.T. Guilty Plea, 6/25/13, at 34-35).
On October 20, 2013, police arrested Appellant at the victim’s home
because he violated the court-imposed stay-away order. (See N.T. Hearing,
12/17/13, at 5, 12, 14-17). On December 17, 2013, the court held a
violation of probation hearing. It ordered that Appellant’s probation was to
continue, with the added requirement that, upon release, he contact his
probation officer and enroll in a treatment program. (See id. at 21-22, 24-
26). It scheduled a status hearing for January 8, 2014. Appellant failed to
appear at the status hearing, and the court issued a bench warrant. (See
Order, 1/08/14).
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3
In the underlying case, Appellant was charged with rape, aggravated
assault, and sexual assault, 18 Pa.C.S.A. §§ 3121, 2702, and 3124.1,
respectively. (See Trial Court Opinion, 3/24/15, at 7; N.T. Guilty Plea,
6/25/13, at 16; Commonwealth’s Brief, at 9).
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On March 17, 2014, the court held a violation of probation hearing.
The probation department had advised the court that Appellant never
contacted the probation office or reported to the treatment facility. (See
N.T. Hearing, 3/17/14, at 3-4; Trial Ct. Op., at 8). The court found
Appellant in violation, revoked his probation, and deferred sentencing for
completion of a mental health evaluation. (See N.T. Hearing, 3/17/14, at
8). On June 2, 2014, the court sentenced Appellant to a term of not less
than two nor more than four years’ incarceration on the witness/victim
intimidation offense, with no further penalty on the remaining count. (See
N.T. Sentencing, 6/02/14, at 24-25).
On June 10, 2014, Appellant filed a timely pro se motion for
reconsideration of sentence, which counsel supplemented on June 26, 2014.
See Pa.R.Crim.P. 708(E). The court vacated the sentence on June 26, 2014,
pending disposition of the motion. On January 23, 2015, following a
hearing, the court denied Appellant’s motion. It re-imposed its sentence of
incarceration of not less than two nor more than four years on the
witness/victim intimidation charge. (See Order, 1/23/15). This timely4
appeal followed.5
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4
“The filing of a motion to modify sentence [after a revocation] will not toll
the 30-day appeal period.” Pa.R.Crim.P. 708(E). “However, the trial court
may extend the appeal period by expressly granting reconsideration or
vacating the sentencing order within the 30-day jurisdictional period.”
Commonwealth v. Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998)
(citation omitted); Pa.R.Crim.P. 708(E), comment. Because Appellant filed
(Footnote Continued Next Page)
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Appellant raises the following issues for our review:
1. Where the [trial] [c]ourt vacated a sentence, after a violation
of probation hearing had been held, and then resentenced
[A]ppellant after more than 210 days had passed, did this
lengthy period of inaction violate the tenets of Pa.R.Cr[im].P.
720, which requires that a [c]ourt rule on a post-sentence
motion within 150 days?
2. Where the count to which [A]ppellant pled guilty should have
resulted in a maximum sentence of two years, given the facts of
the plea and dearth of aggravating factors in the bill of
information reflected that the grade of the offense rose no higher
than a second degree misdemeanor, was the Court’s sentence of
2-4 years illegal, imposed without proper jurisdiction, and did it
violate the tenets of Apprendi v. New Jersey, 530 U.S. 466
(2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013)?
3. Where no evidence was presented by the Commonwealth or
the [p]robation [d]epartment at the violation of probation
hearing, was the trial [c]ourt permitted to revoke probation
based on this dearth of evidence?
(Appellant’s Brief, at 3).
Our review is guided by the following principles:
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
_______________________
(Footnote Continued)
his notice of appeal on February 11, 2015, within thirty days of the court’s
January 23, 2015 sentencing order, this appeal is timely. See Pa.R.A.P.
903(a).
5
Although not ordered to do so by the trial court, Appellant filed a concise
statement of errors complained of on appeal on March 10, 2015. The court
entered an opinion on March 24, 2015. See Pa.R.A.P. 1925.
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manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
* * *
Our review is limited to determining the validity of the
probation revocation proceedings and the authority of the
sentencing court to consider the same sentencing alternatives
that it had at the time of the initial sentencing. 42 Pa.C.S.A. §
9771(b). Also, upon 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. Simmons, 56 A.3d 1280, 1283-84, 1286–87 (Pa.
Super. 2012), affirmed, 91 A.3d 102 (Pa. 2014), cert. denied, 135 S.Ct. 366
(2014) (case citations omitted).
In his first issue, Appellant argues the trial court lacked jurisdiction to
impose the January 23, 2015 sentence where approximately seven months
had passed since it vacated the original June 2, 2014 sentence. (See
Appellant’s Brief, at 9-12). In support, Appellant relies on Pennsylvania Rule
of Criminal Procedure 720(B)(3)(a), which governs post-sentence motions,
and sets an 120-day time limit for the trial judge to decide the motion.6
(See id. at 10-12). This issue does not merit relief.
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6
The Rule states:
(B) Optional Post-Sentence Motion.
* * *
(3) Time Limits for Decision on Motion. The judge shall not vacate
sentence pending decision on the post-sentence motion, but shall decide the
motion as provided in this paragraph.
(Footnote Continued Next Page)
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Preliminarily, we observe that Rule 720 does not govern motions to
reconsider sentence filed after a court revokes probation. Instead, as
referenced above, Rule 708(E) (addressing “motion[s] to modify a sentence
imposed after a revocation”) expressly governs such motions, and does not
include any time limit for ruling on the motion analogous to Rule 720.
Pa.R.Crim.P. 708(E). Therefore, Appellant’s reliance on Rule 720 is
misplaced.
Furthermore, the trial court addressed the issue of its jurisdiction as
follows:
Pursuant to 42 Pa.C.S.[A.] § 5505, a court upon notice to
the parties may modify or rescind any order within 30 days after
its entry, notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken or allowed.7
This court vacated its June 2, 2014 sentencing order on June 26,
2014 and was well within the applicable 30[-]day window.
[Appellant] had filed a timely post-sentence motion for
_______________________
(Footnote Continued)
(a) Except as provided in paragraph (B)(3)(b) [(permitting a
defendant to request an extension)], the judge shall decide the
post-sentence motion, including any supplemental motion, within
120 days of the filing of the motion. If the judge fails to decide
the motion within 120 days, or to grant an extension as provided
in paragraph (B)(3)(b), the motion shall be deemed denied by
operation of law.
Pa.R.Crim.P. 720(B)(3)(a).
7
[See] 42 Pa.C.S.[A.] § 5505 [(providing “a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”)].
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reconsideration of sentence on June 10, 2014 and this court
permitted newly retained counsel to supplement the motion via a
new motion for reconsideration of sentence on June 26, 2014.
There were several defense requests for continuation of the
motion, resulting in the seven[-]month gap between the June 2,
2014 original sentence and the January 23, 2015 re-imposed
sentence on the charge of [i]ntimidation of [w]itnesses or
[v]ictims (F2). This court retained proper jurisdiction to impose
sentence throughout the proceeding and thus, [Appellant’s]
claim must fail.
(Trial Ct. Op., at 5-6) (emphasis in original).
Upon review, we conclude that the trial court properly disposed of this
issue. See Simmons, supra at 1286–87. Appellant’s first claim does not
merit relief.
In his second issue, Appellant argues that his sentence of not less than
two nor more than four years’ incarceration on the witness/victim
intimidation offense is illegal because it was improperly graded as a second-
degree felony. (See Appellant’s Brief, at 12-24). He acknowledges that he
pleaded guilty to the felony charge, but asserts that the facts demonstrate a
misdemeanor of the second degree, carrying a maximum sentence of two
years’ incarceration. (See id. at 12-13, 23). He maintains the plea colloquy
reflects that he merely told the witness not to appear in court and instructed
her how to do so; he did not employ violence or deception, offer any
pecuniary benefit to the witness, or engage in any other type of conduct
warranting a felony grading. (See id. at 14-16 (citing 18 Pa.C.S.A. §
4952(b)(1)(i)-(v))). We disagree.
At the outset, we note:
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The proper grading of a criminal offense is an issue of statutory
interpretation and implicates the legality of the sentence
imposed. For this reason, it may not be waived. The
interpretation of a statute is a pure question of law, and
therefore our standard of review is de novo and our scope of
review is plenary.
Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013), appeal
denied, 85 A.3d 482 (Pa. 2014) (citations omitted).
Section 4952(b) of the Crimes Code sets forth the framework for
grading the offense of witness/victim intimidation and provides:
(b) Grading.—
(1) The offense is a felony of the degree indicated in
paragraphs (2) through (4) if:
(i) The actor employs force, violence or deception, or
threatens to employ force or violence, upon the
witness or victim or, with the requisite intent or
knowledge upon any other person.
(ii) The actor offers any pecuniary or other benefit to
the witness or victim or, with the requisite intent or
knowledge, to any other person.
(iii) The actor’s conduct is in furtherance of a
conspiracy to intimidate a witness or victim.
(iv) The actor accepts, agrees or solicits another to
accept any pecuniary or other benefit to intimidate a
witness or victim.
(v) The actor has suffered any prior conviction for
any violation of this section or any predecessor law
hereto, or has been convicted, under any Federal
statute or statute of any other state, of an act which
would be a violation of this section if committed in
this State.
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(2) The offense is a felony of the first degree if a felony of
the first degree or murder in the first or second degree
was charged in the case in which the actor sought to
influence or intimidate a witness or victim as specified in
this subsection.
(3) The offense is a felony of the second degree if a felony
of the second degree is the most serious offense charged
in the case in which the actor sought to influence or
intimidate a witness or victim as specified in this
subsection.
(4) The offense is a felony of the third degree in any other case
in which the actor sought to influence or intimidate a witness or
victim as specified in this subsection.
(5) Otherwise the offense is a misdemeanor of the second
degree.
18 Pa.C.S.A. § 4952(b)(1)-(5) (emphases added).
Thus,
. . . Subsection 4952(b) provides a clear roadmap for the
grading of witness/victim intimidation offenses. If a felony of
the first-degree . . . was charged in the case, then the offense of
witness/victim intimidation is graded as a first-degree felony. 18
Pa.C.S.A. § 4952(b)(2). If the most serious offense charged in
the case was a second degree felony, then the witness/victim
intimidation offense is graded as a second-degree felony. 18
Pa.C.S.A. § 4952(b)(3). If no first-degree or second-degree
felony was charged in the case, but the criminal defendant
nevertheless sought to influence or intimidate a witness or victim
in any manner described in subsection 4952(b)(1), then the
witness/victim intimidation offense is graded as a third degree
felony. 18 Pa.C.S.A. § 4952(b)(4). In all other cases, the
offense of witness/victim intimidation is graded as a second-
degree misdemeanor. 18 Pa.C.S.A. § 4952(b)(5).
. . . [T]he statute’s focus on the most serious crime charged
makes eminent sense, since the relevant charge is the most
serious one a criminal defendant attempted to escape by use of
intimidation.
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Felder, supra at 516–17 (quotation marks omitted) (holding “[b]ecause the
Commonwealth charged [appellant] with a first-degree felony (aggravated
assault), the trial court properly graded her conviction for witness/victim
intimidation pursuant to subsection 4952 as a first-degree felony.”).
Here, Appellant contends that, under the plain meaning of section
4952, the grading for his offense fell under (b)(5), a misdemeanor, because
none of the grounds under subsection (b)(1) were met. (See Appellant’s
Brief, at 15). The trial court disagreed, and addressed his claim as follows:
The underlying case giving rise to the instant charge of
intimidation of witnesses or victims contained the charges of
rape (F1), aggravated assault (F1), and sexual assault (F2).
While the Commonwealth could have required the instant case to
go forward charged as a first[-]degree felony, it permitted
[Appellant] to enter into a negotiated guilty plea to the charge
as a second[-]degree felony. The sexual assault (F2) charge of
the underlying case supports the instant conviction as a second[-
]degree felony and this court was well within its discretion to
sentence [Appellant] to [two]-[four] years of incarceration.
(Trial Ct. Op., at 7-8) (some capitalization omitted); see also 18 Pa.C.S.A. §
106(b)(3) (setting maximum term of incarceration of ten years for second-
degree felony convictions).
After review of the record, we agree with the trial court’s analysis.
Because the Commonwealth charged Appellant with first and second-degree
felonies in the underlying case, the court properly graded the witness/victim
intimidation offense pursuant to section 4952 as a second-degree felony.
See 18 Pa.C.S.A. § 4952(b)(2),(3); Felder, supra at 516–17. Given the
serious felony offenses with which Appellant was charged in the underlying
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matter, the factors enumerated in section 4952(b)(1)(i)-(v) are irrelevant,
and grading the offense as a misdemeanor would have been inappropriate.
See Felder, supra at 516–17. Accordingly, Appellant’s second claim does
not merit relief.8
In his third issue, Appellant argues the evidence was insufficient to
support revocation of his probation. (See Appellant’s Brief, at 24-28). He
asserts that at the revocation proceeding, the Commonwealth did not
present evidence of his violations, and the court merely referenced its notes
indicating that he did not report to the probation office or attend the
treatment program. (See id. at 24, 27). This issue lacks merit.
“[A] 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).
“There shall be no revocation . . . 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.” Id. at (d).
Revocation of a probation sentence is a matter committed to
the sound discretion of the trial court and that court’s decision
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8
We note for the sake of completeness that Appellant’s reliance on Alleyne,
supra and Apprendi, supra, is misplaced. (See Appellant’s Brief, at 13).
“Alleyne and Apprendi dealt with [sentencing] factors that either increased
the mandatory minimum sentence or increased the prescribed sentencing
range beyond the statutory maximum, respectively.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc), appeal
denied, 104 A.3d 1 (Pa. 2014). Because the instant case does not involve
either situation, Alleyne and Apprendi are not implicated. See id.
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will not be disturbed on appeal in the absence of an error of law
or an abuse of discretion. When assessing whether to revoke
probation, the trial court must balance the interests of society in
preventing future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison. In
order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant
violated his probation. [T]he 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[.]
A probation violation is established whenever it is shown that the
conduct of the probationer indicates the probation has proven to
have been an ineffective vehicle to accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.
* * *
. . . It must be emphasized that a probation revocation
hearing is not a trial: The court’s purpose is not to determine
whether the probationer committed a crime. . . . The degree of
proof necessary for probation revocation is less than that
required to sustain a criminal conviction. Probation may be
revoked on the basis of conduct which falls short of criminal
conduct.
Commonwealth v. Colon, 102 A.3d 1033, 1041-42 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015) (citations and quotation marks
omitted).
Here, the trial court explained its rationale for revoking Appellant’s
probation as follows:
On December 17, 2013, this court conducted a violation
hearing and although [Appellant] had violated the stay away
order that was a condition of his probation, this court took the
unique circumstances of the case into consideration and ordered
that [Appellant’s] probation was to continue with the added
requirement that, upon release, he must contact his probation
officer and enroll for treatment at Men and Women in Progress,
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located at 1809 East Tioga Street in the City of Philadelphia.
(See N.T. Hearing, 12/17/13, at 9-10, 22, 24-26). This court
then listed the case for status of treatment on January 8, 2014.
(See id. at 25). On January 8, 2014, [Appellant] failed to
appear and a bench warrant was issued. (See Order, 1/08/14).
On March 17, 2014, this court conducted a violation hearing,
wherein the Probation Department notified the court that
[Appellant] never contacted the probation office and never
reported to Men and Women in Progress, the specified treatment
facility. (See N.T. Hearing, 3/17/14, at 3-4). Accordingly, this
court found [Appellant] in violation and deferred sentencing for
completion of a mental health evaluation. [Appellant’s] failure to
report to both the Probation Department and the treatment
facility were violations of the court’s December 17, 2013 order
and his failure to appear at the January 8, 2014 status listing
was further indicative of his non-compliance. As such, the
court’s revocation was proper[.]
(Trial Ct. Op., at 8-9) (record citations added; footnotes omitted).
Upon review, we discern no error of law or abuse of discretion in the
trial court’s decision to revoke Appellant’s probation. See Colon, supra at
1041-42. The evidence of record reflects, by a preponderance of the
evidence, that Appellant violated the conditions of his probation, and that
probation was ineffective in accomplishing rehabilitation and had not
deterred future antisocial conduct. See id.; see also 42 Pa.C.S.A. §
9771(b). Therefore, Appellant’s final issue does not merit relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2016
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