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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHIREE ALSTON,
Appellant No. 1636 EDA 2017
Appeal from the Judgment of Sentence entered March 23, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0002993-2014.
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.,
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 09, 2018
Shiree Alston files this appeal challenging the discretionary aspects of
his sentence imposed following the revocation of his probation and parole.
Because we determine that Alston did not preserve his sentencing claim in
the trial court, we deny his petition for allowance of appeal, and affirm his
judgment of sentence.
The trial court summarized the pertinent facts, which led to Alston’s
original charges, as follows:
The underlying offenses stem from [Alston’s] arrest on
October 10, 2013 for participating with other individuals in
the repeated sales of illegal narcotics including crack
cocaine, barbiturates in the form of hydrocodone pills,
marijuana and phencyclidine, commonly known as PCP.
These sales were made to undercover police officers and
confidential informants from the adjoining first floor
apartments located on the 1600 block of Foulkrod Street in
Northeast Philadelphia. When police officers served the
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corresponding approved Search and Seizure Warrants,
[Alston] attempted to flee the premises that he had been
living with his girlfriend, who was charged as a co-
conspirator, and their two minor children ages 3 years and
5 months old respectively.
After fleeing, [Alston] was intercepted in flight carrying
a large green diaper bag filled with diapers, large and
varied amounts of illegal narcotics, his identification, a
loaded ready to fire operable firearm and male shirts.
Following entry into the residence and apprehension,
Officers recovered significant amounts of illegal narcotics
including bulk cocaine, crack cocaine, barbiturates in the
form of hydrocodone pills, marijuana and phencyclidine,
commonly known as PCP and drug paraphernalia.
Additional varied forms of narcotics, razors and grinders
were also removed from the same bedroom of the
apartment where the children had been huddled. Those
toxic items had been located out in the open within arm’s
length of the children. Both children were immediately
removed from this dangerous and filthy environment
deemed unfit for habitation.
Trial Court Opinion, 8/1/17, at 1-2.
On September 2, 2015, the trial court accepted Alston’s guilty plea to
possession with intent to deliver, conspiracy, endangering the welfare of
children, and possession of an instrument of crime.1 The trial court
described its original sentencing scheme as follows:
After, [Alston’s] tendered guilty plea was accepted,
[Alston] waived the preparation of any presentence
evaluation. After considering all relevant information
presented, this Court entered an Order of Sentence [sic]
that essentially mercifully granted [Alston] immediate
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1 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 903, 4304, and 907,
respectively.
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parole by applying the time credit for pre-trial custodial
confinement. Influencing mitigating factors were
considered by including [Alston’s] apparent acceptance
into the early release program promoted by the Mayor’s
Office For Reintegration Services, also known as the
“R.I.S.E.” program, that would enable [Alston] to work
while under the court’s supervision. At the time of the
sentence, this Court duly cautioned [Alston], however, that
he would face severe penalties for any noncompliance with
the terms of the Order of Sentence particularly because he
was receiving a reduced sentence with immediate parole.
Trial Court Opinion, 8/1/17, at 3.
The trial court imposed several conditions upon Alston’s release on
parole, including regularly reporting to the county parole and probation
department, submitting to random drug and alcohol screening and random
home and vehicle checks for drugs and weapons. See id. In addition, the
trial court ordered Alston to seek employment, attend educational or
vocational training and complete at least twenty hours of parenting classes.
Id.
The trial court then described Alston’s conduct following his immediate
release on parole as follows:
Then on January 13, 2017, credible testimony was
presented to this Court concerning [Alston’s] repeated
violations of the terms of probation and parole supervision
which began just three months following the entry of the
Order of Sentence. Those violations summarily included
four separate testing with positive results reflecting
[Alston’s] intentional ingestion of illegal narcotic
substances, repeated nonappearances during home visits
by the probation department, failure to complete [the]
recommended drug treatment program, avoidance of
contact with probation officers and non-reporting of
change of residence.
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Id. at 4. After an evidentiary hearing, the trial court revoked Alston’s
probation and parole. On March 23, 2017, the trial court imposed an
aggregate sentence of three to six years of incarceration, to be followed by a
seven-year probationary term. This timely appeal follows the denial of
Alston’s petition for reconsideration of sentence.
As noted above, Alston challenges the discretionary aspects of his
sentence. “A challenge to the discretionary aspects of sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted). Before we may consider the
merits of the underlying sentencing claims, the petitioner “must invoke this
Court’s jurisdiction by satisfying a four-part test.” Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010). First, the petition for allowance of
appeal must have been filed within thirty days of the judgment of sentence
or denial of reconsideration under Pennsylvania Rules of Appellate Procedure
902 and 903. Second, the petitioner must have properly preserved the
issues for appeal by having raised them at the time of sentencing or in a
Pennsylvania Rule of Criminal Procedure 720 post-sentence motion. Third,
Pennsylvania Rule of Appellate Procedure 2119(f) requires a concise
statement in the petitioner’s brief to justify the allowance of appeal.2 And,
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2 See Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).
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fourth, the Rule 2119(f) statement must present “a substantial question that
the sentence imposed is not appropriate under” the Sentencing Code. Id.
(citation omitted). “Only if the appeal satisfies these requirements may we
proceed to decide the substantive merits of Appellant’s claim.”
Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017).
Alston timely filed his notice of appeal following the trial court’s denial
of his post-sentence motion, and has filed a Rule 2119(f) statement in which
he asserts that his excessiveness claim raises a substantial question. 3 Upon
review, however, we are unable to reach the merits of this appeal, because
Alston did not satisfy the second prong of the procedural test.
Alston framed the issue in his appellate brief as follows:
Was not the sentence of three (3) to six (6) years [of]
incarceration followed by seven (7) years of reporting
probation for technical violations of probation manifestly
excessive, unreasonable, and disproportionate to the
conduct at issue, and not in conformity with the
requirements of the Sentencing Code?
Alston’s Brief at 4.
He raised no such alleged error at his sentencing hearing. As defense
counsel put it at the time, “I understand it’s the Court’s sentence today and
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3 In a six-page brief devoid of case law or statutory citations, the
Commonwealth avers that it is “not opposed” to a remand for resentencing
because, in its opinion, due to “the relatively minor nature of [his] probation
violations, and because [Alston] completed parenting and reintegration
programs, the sentence does appear to be excessive.” Commonwealth’s
Brief at 6.
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I’m not asking the Court for anything different. I will likely file a motion to
reconsider once I’ve had time to digest it.” N.T., 3/23/17, at 22.
And the only issue raised in his motion to reconsider was “[Alston]
requests this Court to reconsider it’s [sic] sentence and to structure it so
that Petitioner is able to enroll in boot camp within the next six months.”
3/28/17 Petition for Reconsideration of Sentence at 2.
Here, by contrast, Alston claims that the trial court imposed a
manifestly excessive, unreasonable, and disproportionate sentence in light of
the underlying probation and parole violations. This claim differs from the
only argument that Alston made in his post-sentence motion to the trial
court. Indeed, the request for access to the boot camp is totally absent
from the issue that Alston would raise before us, were we to grant him an
allowance of appeal. Instead, he seeks our permission to attack the
sentence as a whole relative to his conduct after being released on parole.
Thus, we find that Alston did not afford the trial court an opportunity
to address whether the sentence it imposed was excessive, unreasonable, or
disproportionate, relative to the nature of his probation and parole
violations, in the first instance. He would, therefore, improperly raising that
issue “for the first time on appeal.” Commonwealth v. Foster, 960 A.2d
160, 163 (quoting Pennsylvania Rule of Appellate Procedure 302(a)). This
we cannot allow. Id. We note, however, that if we allowed it, Alston’s
appeal would still fail. A trial judge has great discretion in fashioning a
sentence following a violation of probation, and that court’s decision will not
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be disturbed on appeal in the absence of an error of law or an abuse of
discretion. Commonwealth v. Pasture, 107 A.3d 21 (Pa.2014) 42 Pa.C.S.
§ 9771(b). In a revocation proceeding, the trial court may even impose a
lengthier sentence than the original sentence, so long as it is within the
maximum sentence that the court could have imposed at the original
sentencing hearing. Pasture at 27-29.
In Pasture, the defendant’s original charges of aggravated indecent
assault and corruption of minors were related to his drug use. He began
using drugs again while on probation. The defendant failed to follow the
terms of probation imposed upon him, and at the revocation hearing, the
court imposed a much longer sentence. The same is true of Alston. Alston’s
original charges were drug related. He originally received a lenient sentence
and he was warned that “he would face severe penalties for any
noncompliance” with the terms of his probation. Trial Court Opinion 8/1/17
at 3. Because Alston failed to comply with the terms imposed upon him, at
the revocation of probation hearing, the trial court imposed a lengthier
sentence that was within the statutory bonds of his original charges. That
was a risk Alston took when he chose to violate the terms of his probation.
Thus, were we to allow his appeal, we would find no abuse of discretion or
error of law on the part of the trial judge.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/18
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