Com. v. Portis, J.

J-S46040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME PORTIS :
:
Appellant : No. 2233 EDA 2018

Appeal from the Judgment of Sentence Entered June 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012464-2014

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 24, 2019

Appellant, Jerome Portis, appeals from the judgment of sentence of

four to eight years of confinement followed by five years of probation which

was imposed after the revocation of his initial sentence of probation for:

manufacture, delivery, or possession with intent to manufacture or to deliver

a controlled substance (“PWID”); conspiracy to commit PWID; and fleeing or

attempting to elude police officer.1 We affirm on the basis of the trial court

opinion.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. See Trial Court Opinion, filed
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, and 75 Pa.C.S. § 3733(a),
respectively.
J-S46040-19

February 13, 2019, at 1-5. Therefore, we have no reason to restate them.

We briefly note that Appellant filed a timely post-sentence motion to

reconsider sentence, which the trial court denied, and a timely notice of

appeal.2

Appellant presents the following issue for our review:

Whether the sentencing court erred as a matter of law and
abused its discretion when, following a revocation of probation
for technical violations, the sentencing court imposed a sentence
of four to eight years’ incarceration followed by five years’
probation where this sentence was manifestly excessive and
unreasonable, based on factors not supported by the evidence,
surpassed what was required to protect the public, and failed to
comply with the requirements of 42 Pa.C.S. § 9771(c).[3]

Appellant’s Brief at vii.

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching
the merits of a discretionary sentencing issue[, 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
____________________________________________

2 Appellant filed his statement of errors complained of on appeal on
October 22, 2018. The trial court entered its opinion on February 13, 2019.
3 Total confinement may be imposed only if:

(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

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

42 Pa.C.S. § 9771(c).

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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).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018).

In the current case, Appellant filed a timely notice of appeal, preserved

his issue in a post-sentence motion, and included a statement in his brief

pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at xiv-xvii.

The final requirement, whether the question raised by Appellant is a

substantial question meriting our discretionary review, “must be evaluated

on a case-by-case basis. 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.” Manivannan, 186 A.3d at 489 (quotation marks and

some citations omitted).

Appellant’s Rule 2119(f) statement alleges that the trial court erred in

its application of a specific provision of the Sentencing Code, 42 Pa.C.S.

§ 9771(c), and that Appellant’s sentence of total confinement followed by

probation is manifestly excessive. Appellant’s Brief at xv-xvi. Both these

issues present substantial questions for our review. See Commonwealth

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v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (appellant “presented a

statement of reasons for allowance of appeal arguing that the court erred in

its application of section 9771 and that his sentence of total confinement and

36 years of probation were manifestly excessive”; this Court “conclude[d]

that both these issues present substantial questions for [its] review”).4

Before we proceed to the merits of Appellant’s claim, we observe that

Appellant’s Rule 2119(f) statement additionally included an allegation that

the trial court “relied on improper factors which were not supported by the

evidence . . . in determining sentence” but does not elaborate in his Rule

2119(f) statement on what those factors were. Appellant’s Brief at xvi.

“[W]e cannot look beyond the statement of questions presented and the

prefatory [Rule] 2119(f) statement to determine whether a substantial

question exists. It is settled that this Court does not accept bald assertions

of sentencing errors.” Commonwealth v. Radecki, 180 A.3d 441, 468

(Pa. Super. 2018) (citation omitted). As we cannot look beyond the Rule

____________________________________________

4 Although we find that Appellant’s Rule 2119(f) statement presents a
substantial question, we note that Appellant’s reliance therein on
Commonwealth v. Wilson, 946 A.2d 767, 771 n.6 (Pa. Super. 2008), is
baffling, as that case involved an appeal by the Commonwealth, pleading
“that the trial court imposed an excessively lenient sentence and did not
justify its sentence with sufficient reasons raises a substantial question in
this case” (emphasis added). This argument appears to be antithetical to
Appellant’s contention in his Rule 2119(f) statement that his sentence was
excessively severe; Appellant also does not suggest that the trial court failed
to justify his sentence with sufficient reasons. See Appellant’s Brief at xiv-
xvii.

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J-S46040-19

2119(f) statement to other parts of Appellant’s brief in order to determine

what these “improper factors which were not supported by the evidence”

may be, we cannot accept Appellant’s bald assertion and thus cannot find a

substantial question based upon this allegation. Accordingly, we need only

address the merits of Appellant’s challenges to the discretionary aspects of

his sentence pursuant to 42 Pa.C.S. § 9771(c) and his claim of manifest

excessiveness and disproportionality.5

We have frequently noted that we review the imposition of sentence

following the revocation of probation only to determine whether there was

an abuse of discretion:

____________________________________________

5 Assuming we were to address Appellant’s assertion that the trial court
considered factors not in evidence when sentencing him, we would observe
that the trial court explained that it did not consider anything outside the
record, as Appellant had agreed to incorporate into the record of evidence
from his violation hearings and from reports prepared by Appellant’s
assigned probation officer, thereby waiving the need for live testimony at
the sentencing hearing. Trial Court Opinion, filed February 13, 2019, at 3,
10.

To the extent that Appellant is arguing that the trial court “relied on
improper factors which were not supported by the evidence in finding him in
violation[,]” Appellant’s Brief at xvi, Appellant does not include any challenge
to the trial court finding Appellant in violation of his probation in his
statement of the questions involved – only to the sentence imposed
following the revocation of his probation. Appellant’s Brief at vii. “No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a); see also
Radecki, 180 A.3d at 468. Accordingly, we cannot consider the propriety of
the underlying revocation, and we need only address challenges to the
discretionary aspects of Appellant’s sentence.

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J-S46040-19

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
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (quoting

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

also Commonwealth v. Lekka, 2019 PA Super 155, *8 (filed May 10,

2019) (standard of review for any challenge to discretionary aspects of

sentencing, not just pursuant to probation revocation, is also that the

“sentence will not be disturbed on appeal absent a manifest abuse of

discretion”).

Where probation is ineffective as a rehabilitative tool, a more severe

sentence, up to and including total incarceration, is often warranted and

appropriate. See Sierra, 752 A.2d at 913; Commonwealth v. Smith, 669

A.2d 1008, 1011 (Pa. Super. 1996).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable

Anne Marie B. Coyle, we conclude Appellant’s challenges merit no relief. The

trial court opinion comprehensively discusses and properly disposes of those

questions. See Trial Court Opinion, filed February 13, 2019, at 4, 10–15

(finding: the sentence was not manifestly excessive, when the trial court

merely imposed concurrent sentences of confinement followed by a

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probationary supervision period after Appellant repeatedly violated the terms

of his probation and when the court could have imposed a term of total

confinement of up to 47 years, i.e., the maximum sentencing alternative

available to the court at the time of initial sentencing;6 Appellant’s behavior

was an affront to the court’s authority, 42 Pa.C.S. § 9771(c)(2); Appellant is

likely to commit another crime and is at risk for recidivism, with a criminal

history showing he has been committing crimes since he was a juvenile, id.

§ 9771(c)(3); Appellant was involved in the large scale distribution of

heroin; the pre-sentence report reflected that Appellant previously sold

cocaine; Appellant gave a false address to authorities; Appellant’s repeated

drug screens reflected his continuing use of narcotics, and Appellant

misrepresented prescriptions to hide this illegal drug use; “Appellant had

well proven that probation was an ineffective rehabilitative vehicle and

serve[d] as zero deterrence to his anti-social and criminal conduct”;

confinement was the only way to protect the public; and, overall, Appellant

“didn’t do a single thing [he] was told to do despite the fact that [he] was

given an unbelievable gift with [his initial] sentence” (citing N.T., 6/21/2018,

at 20-24)).

____________________________________________

6 When probation is revoked, “the sentencing alternatives available to the
court shall be the same as were available at the time of initial sentencing[.]”
42 Pa.C.S. § 9771(b).

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J-S46040-19

Accordingly, the trial court did not abuse its discretion, and we affirm

on the basis of the trial court’s opinion. The parties are instructed to attach

the opinion of the trial court in any filings referencing this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/19

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 Circulated 08/28/2019 12:37 PM

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0012464- 2014

V,

SUPERIOR COURT
JEROME PORTIS NO. 2233 EDA 2018

FILED
FEB I 3 2019 OPINION

. Appeals/Post Trial
Office of Judicial Records

COYLE, J. FEBRUARY 13, 2019

I. FACTS and PROCEDURAL HISTORY

On October 21, 2015, just before selection of a jury, Appellant, Jerome Portis, voluntarily

and knowingly tendered a negotiated guilty plea to one ungraded felony count of Manufacturing,
0039_Opinion

Delivering, or Possessing with Intent to Deliver a Controlled Substance1, one ungraded felony count

of Conspiracy- Manufacturing, Delivering, or Possessing with Intent to Deliver a Controlled

Substance; 2 and one third degree felony count of Fleeing or Attempting to Elude Officer.' On that

1 35Pa. C.S.A. § 780-113 §§ (a)(30)

2
18 Pa. C.S.A. § 903 §§ C

1
same date pursuant to the negotiations and following submission of a thorough written and oral

colloquy and waiver of presentence investigations reports, the Honorable Anne Marie B. Coyle,

Judge of the Court of Common Pleas for the First Judicial District of Pennsylvania Criminal

Division, hereinafter referred to as "this Court," imposed an aggregate sentence that included county

confinement of eleven and one half (11 Y2) months to twenty-three (23) months and a consecutive

term of six (6) years of county supervised probation. Also pursuant to negotiations no parole was to

be considered until completion of twenty-three (23) months of county custodial time. Credit for

calculated custodial time was granted. Supervision was placed under the then strictly supervised

Drug and Alcohol Unit of the County of Philadelphia Adult Parole and Probation Department.

To promote rehabilitation and prevent recidivism, Appellant was required to submit to drug

and alcohol screening and home and vehicle checks for drugs and weapons, seek and maintain f
legitimate employment and pay fines and costs. At the very least, he was required to report and
I
fl
follow the rules and normal regulations set by the probation department that included accurate

reporting of changes of residence. The underlying and accepted facts and circumstances that I
supported the plea stemmed from arrest following two year period investigation by multi-faceted

forms of law enforcement of Appellant and others for participating in the wholesale distribution of
II
�
large amounts of heroin across state lines and resulting Appellant's flight in a vehicle on the

I''
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Interstate 95 highway with at least 140 grams of heroin valued in excess of$60,000.00 on or about

September 16, 2014. The resulting negotiations were for sentences that were significantly below the �

recommended mitigated guidelines. Appellant was paroled due to custodial credit from time of

arrest and began probation supervision on August 19, 2016.

3
75Pa. C.S.A. § 3733 §§ A
2
 As the submitted and reviewed and incorporated GAGNON Summaries prepared by the

assigned Probation Officer Joseph Adade reflected, Appellant had initially reported to the
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Philadelphia County Probation Department on August 22, 2016. Appellant reported that he had been
I
living at a specific address in the state of Delaware with his mother. As a result, probation

supervision was transferred to the Delaware State Adult Probation to accommodate him. As such he
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!
j

was required to comply with the rules set forth by the supervising probation of prescribed by the l
State of Delaware. Subsequently, however it became apparent that Appellant had not been living at
I
1

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the location he had claimed for an extensive period. He failed to report as directed to the probation

I
office and tested positive for ingestion oflegal substances including THC, as a Marijuana derivative,

Valium and Percocet pills on rnultiple occasions. Appellant remained unemployed throughout the I

entire period of supervision.

Appellant produced suspect prescription scripts to his assigned probation officer to attempt to

excuse his ongoing drug abuse. Those scripts submitted on February 8, 2018 had not covered any

period during which he had tested positive for ingestion of percocets. After being referred by his

probation officer to inpatient treatment, multiple home visits were unsuccessfully attempted.

Appellant's actual whereabouts were unknown. An Absconder Warrant was finally prepared on April

4, 2018. Appellant was arrested pursuant to the outstanding warrant on April 13, 2018 and extradited

to Philadelphia. Revocation was recommended.

After full and fair violation hearing, during which the largely uncontested data supplied

within the GAGNON summaries was introduced into the record following Appellant's waiver of

reading, this Court was satisfied that the probation officer's recommendation of revocation was

3
appropriate given the reported violations of the terms and conditions of the Order of Sentence which

included: non-reporting; testing positive for illegal substances; misrepresenting legal residence,

misrepresenting of prescriptions to hide illegal use of narcotics; non-compliance with refusal to

obtain inpatient drug treatment; and failure to seek any form of legitimate employment. The

violations were admitted but attempted to be excused as minimal type of infractions due to his

longstanding drug abuse and addictions.

Following revocation of probation, this Court directed and subsequently reviewed the

preparation of presentence investigative reports before the sentencing hearing. Mental health

assessment was waived. Following a full and fair evidentiary hearing, this Court concluded that a

term of state supervised confinement was necessary to vindicate the authority of the Court and deter

. future criminal conduct consistent with factors set forth in 42 Pa.C.S. § 9771.4 On June 21, 2018, as

to Count I-Manufacturing, Delivering, or Possessing with Intent to Deliver a Controlled Substance,

4
§ 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 file 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 tile order of
probation. [emphasis added.]
( 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 ifhe is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.

* * * *
1974, Dec. 30, P.L. 1052, No. 345, § l, effective in 90 days. Renumbered from 18 Pa.C.S.A. §1371 by 1980, Oct.
5, P.L. 693, No. 142, § 40 l(a), effective in 60 days. 42 Pa.C.S.A. § 9771. See also Pa.R.Crim.P. 1409.

4
Appellant was sentenced to a minimum term of four (4) years to eight (8) years of state supervised

confinement followed by five (5) years of reporting probation, with credit accorded for custodial

time served and rehabilitative conditions imposed. The same sentence was imposed upon Count-2-

Conspiracy- Manufacturing, Delivering, or Possessing with Intent to Deliver a Controlled Substance

to run concurrently with Count 1. A five year concurrently running period of probation was imposed

upon Count 3- Fleeing or Attempting to Elude Officer.

Post-Sentence Motions were filed on June 29, 2018 solely seeking a reduction of sentence

and citing the single claim of excessive sentence for admitted technical violations. A Motion For

Bail Pending Appeal was filed on October 2, 2018. The Post-Sentence Motions were denied without

hearing on October 3, 2018. A timely Notice of Appeal was filed on July 12, 2018. A Statement of

Errors Complained of on Appeal pursuant to Pa. R.A.P. Rule 1925 (b) was ordered. On October 22,

2018, a Statement of Errors Complained of on Appeal was filed.

II. ISSUES ON APPEAL

Appellant raised the following issues verbatim on appeal:

1. The trial court erred in finding Jerome Portis in violation of his
probation because there was no testimony or evidence presented at the Gagon II
hearing/revocation hearing which established that Mr. Portis violated his probation.
2. To the extent that the Court considered any evidence of a violation of
probation, the Court erred in presented the evidence to itself as there was no
competent testimony or evidence presented because the Court did not hear from any
live witnesses or receive probation reports into evidence.
3. The Court abused its discretion in sentencing Mr. Portis to 4-8 years
in state prison for minor technical violations, and the sentence imposed by the Court
was clearly unreasonable, manifestly excessive, unnecessary to vindicate the
authority of the Court and unconscionable.

5
III. DISCUSSION

The scope of review in an appeal following a sentence imposed after probation revocation is

limited to the validity of the revocation proceedings and the legality of the sentence imposed
!
following revocation. Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (2005). In I
I
this Commonwealth, the trial court's authority to impose a term of probation has been set forth in the
J
following manner: Whenever any person shall be found guilty of any criminal offense by verdict of a

jury, plea, or otherwise, except murder in the first degree, in any court of this Commonwealth, the

court shall have the power, in its discretion, if it believes the character of the person and the

circumstances of the case to be such that he is not likely again to engage in a course of criminal
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'';
i
conduct and that the public good does not demand or require the imposition of a sentence of i
imprisonment, instead of imposing such sentence, to place the person on probation for such definite I
f
period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law
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Iii
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for the offense for which such sentence might be imposed. 61 P.S. § 331.25.
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Pennsylvania Rule of Criminal Procedure Rule 1409 provides: Whenever a defendant has I
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been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by !
law unless there has been a hearing held as speedily as possible at which Appellant is present and I
represented by counsel and there has been a finding of record that the defendant violated a condition

of probation or parole .... See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656

(1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Commonwealth

ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973); Commonwealth v. Davis, 234 Pa.

Super. 31, 336 A.2d 616 (1975).

6
 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. § 9771.5 Commonwealth v. Ferguson, 2006

PA Super 18, 893 A.2d 735, 737 (Pa. Super. 2006). Under 42 Pa.C.S. § 9771(c), a court may

sentence a defendant to total confinement subsequent to revocation of probation if any of the

following conditions exist: (I) 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 (3) such a sentence is essential to vindicate the authority of the court. See also

Commonwealth v. Coolbaugh, 2001 PA Super 77, 770 A.2d 788 (Pa. Super. 2001).

The appellate courts have 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

5
§ 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. Upo11 revocation tile sentencing
alternatives available to the court shall he the s11111e