J-S17026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAMONA JENNINGS
Appellant No. 1022 EDA 2016
Appeal from the Judgment Entered March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-1207761-2004; CP-51-CR-0301031-
2005
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 26, 2017
Appellant, Ramona Jennings, appeals from the March 4, 2016
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County (“trial court”), following a probation revocation hearing. Upon review
we affirm.
The trial court summarized the procedural and factual history of the
matter as follows.
On June 30, 2005, [Appellant] pled guilty to two counts of
possession with intent to deliver a controlled substance (PWID)
and one count of conspiracy. On the same day, [the trial court]
sentenced [Appellant] to a negotiated sentence of 11 ½ to 23
months county incarceration plus 1 year probation with
immediate parole to New Directions when a bed was available.
[Appellant] subsequently absconded from New Directions and
failed to report to the Probation Department. On October 14,
2005, wanted cards were issued based on [Appellant’s] failure to
report.
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On July 7, 2007, [Appellant] was arrested under the name
“Ramona Jones” in Montgomery County. On May 20, 2009,
[Appellant] was convicted of simple assault before the Honorable
William T. Nichols and sentenced to 2 years probation. On
November 17, 2009, [Appellant’s] supervision was transferred
from Montgomery County authorities to the Philadelphia
Probation Department. [Appellant] subsequently reported nine
times to the Philadelphia Probation Department from January
2010 through May 2011, when her probation was terminated.
On November 1, 2015, [Appellant] was arrested on her
outstanding warrant from 2005 under the name Ramona
Jennings. On December 15, 2015, [Appellant] appeared before
[the trial court] for a violation of probation hearing. [Appellant]
was represented at the hearing by Alexandra Lipsky, Esquire,
and the attorney for the Commonwealth was Alisa Shiver,
Esquire. Ms. Lipsky conceded at the hearing that [Appellant]
was in technical violation of her probation/parole based on her
absconding and sentenced was deferred to February 12, 2016[,]
so that a Pre-Sentence Investigation Report could be completed.
On February 9, 2016, the Pre-Sentence Investigation Report was
completed and brought to light [Appellant’s] prior arrest and
conviction in Montgomery County for the first time.
[Appellant’s] sentencing hearing was subsequently continued to
allow the assigned Probation Officer to be present.
On March 4, 2016, [the trial court] held a violation of
probation hearing. [Appellant] was represented at the hearing
by Randi Fensterer, Esquire, while the attorney for the
Commonwealth was Whitney Golden, Esquire. After [the trial
court] reviewed [Appellant’s] procedural history, the assigned
Probation Officer, Peter Davis (“Davis”), testified that on
November 17, 2009, the out-of-county division of the Adult
Probation and Parole Department was assigned a case from
Montgomery County under the name of “Ramona Jones” with no
Philadelphia police photo number. Davis further testified that
[Appellant] reported consistently from January 2010 through
May 2011 and was admitted to Southwest New Stop in
December 2010. Davis stated that [Appellant] was drug-tested
once per week and all of her tests came back clean. Davis
further stated that [Appellant] was working at the Radisson in
Valley Forge. Davis testified that when Montgomery County
transferred the case to Philadelphia, they never noted that
[Appellant] had an outstanding warrant from Philadelphia and
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she was supervised under a different name without her assigned
Probation Officer knowing that she had a warrant.
Ms. Fensterer, on behalf of [Appellant], stated that
[Appellant’s] 2007 arrest derived from an incident where
[Appellant] was brought to Lankenau Hospital while she was
having a seizure and struck a hospital employee. Ms. Fensterer
further stated that drug paraphernalia was recovered from
[Appellant’s] person when she was arrested and the hospital
assumed [Appellant’s] seizure was drug-related. Ms. Fensterer
testified that [Appellant] had successfully addressed her drug
problem during her probation, had gone to a drug treatment
program and has submitted negative urinalyses. Ms. Fensterer
further testified that [Appellant] had been working as a
housekeeper since 2007 and sought work for All City
Transportation, a bus company, in 2013. Ms. Fensterer stated
that [Appellant] had to get fingerprinted and submit her
information to the state to get clearance for that job and the
Pennsylvania State Police reports showed her Philadelphia cases
and the case from Montgomery County. Ms. Fensterer further
stated that the cases were listed under the same CID and that
the reports did not indicate that [Appellant] had an outstanding
warrant.
Ms. Fensterer testified that [Appellant] continued to work
for All City Transportation through 2015, until she had a seizure
on her way to work and was subsequently picked up on the
outstanding warrant. Ms. Fensterer further testified that
[Appellant] had been waiting for the bus when she had her
seizure and was transported to the hospital without her purse of
any identification. Ms. Fensterer stated that [Appellant] was
fingerprinted by the hospital and her warrant was discovered at
that time.
Ms. Fensterer argued that there was a timeliness issue
which needed to be addressed. Ms. Fensterer noted that there
was a 6½ year delay from the date of [Appellant’s] Montgomery
County conviction to the instant hearing and argued that
[Appellant] faced a loss of liberty as well as the loss of her job if
she was incarcerated. Ms. Fensterer argued that [Appellant] had
expected to be arrested on her warrant when she first reported
to the Philadelphia Probation Department and, when they did not
arrest her, she assumed that the warrant had expired. Ms.
Fensterer argued that [Appellant] was not the same person as
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she was in 2005 or 2007 and her successful completion of
probation showed that she was amenable to probation. Ms.
Fensterer recommended that [Appellant] receive a time-served
sentence. Ms. Fensterer stated that [Appellant] had already
served 4 months since being picked up on her warrant and
would show that she would not be a further burden to [the trial
court].
Ms. Golden, on behalf of the Commonwealth, deferred to
[the trial court’s] discretion. [Appellant] next spoke on her own
behalf. [Appellant] apologized for absconding and stated that
she had made a lot of bad decisions but was doing better.
[Appellant] further stated that she had five children and five
grandchildren in her life and that she wanted another chance to
prove to [the trial court] that she was not going to be a problem
again.
[The trial court] found [Appellant] to be in technical
violation of her probation/parole, terminated parole and revoked
probation. [The trial court] then sentenced [Appellant] to 11½
to 23 months county incarceration plus 5 years probation. In
imposing this sentence, [the trial court] stated that the sentence
was absolutely necessary to vindicate the authority of [the trial
court] based on [Appellant’s] 10-year period of absconding.
[The trial court] further stated that [Appellant] knew that her
case was still open and had numerous opportunities to turn
herself in but failed to do so. [The trial court] noted that, during
[Appellant’s] period of absconding, the safe surrender program
was in effect twice and [Appellant] could have surrendered
herself then but chose not to.
On March [1]4, 2016,[1] [Appellant] filed a motion for
reconsideration. On April 4, 2016, [Appellant], through counsel,
filed a Notice of Appeal to the Superior Court. On May 20, 2016,
after receiving the complete notes of testimony, [the trial court]
ordered [Appellant] to file a Concise Statement of Errors
pursuant to Pa.R.A.P. 1925(b) and [Appellant] did so on June 8,
2016.
____________________________________________
1
The trial court’s opinion incorrectly lists the date Appellant filed her post-
sentence motion. Appellant’s motion was timely filed on March 14, 2016.
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Trial Court Opinion, 6/17/16, at 1-5 (citations omitted). The trial court
issued an opinion on June 17, 2016.
Appellant raises two issues on appeal, which we quote verbatim.
I. Was not [A]ppellant denied her right to a speedy
revocation hearing in violation of Pa.R.Crim.P. 708, when
her hearing was delayed 6½ years after her conviction in
the criminal case constituting a direct violation of her
probation, and [A]ppellant was prejudiced by the delay?
II. Did not the lower court err and abuse its discretion in
imposing a manifestly unreasonable sentence where
[A]ppellant had not incurred a new arrest or conviction
since successfully completing probation on another matter
in 2007 and [A]ppellant completed drug treatment and
maintained gainful employment since 2009, and these
facts did not establish sufficient conditions for imposing
total confinement nor was the sentence essential to
vindicate the authority of the [trial] court?
Appellant’s Brief at 4.
Appellant’s first challenge is whether she was denied her right to a
speedy revocation hearing in violation of Pa.R.Crim.P. 708. Rule 708
provides in part that a probation revocation hearing must be “held as
speedily as possible at which the defendant is present and represented by
counsel.” Pa.R.Crim.P. 708(B)(1). “In evaluating the reasonableness of a
delay, the court examines three factors: the length of the delay; the
reasons for the delay; and the prejudice resulting to the defendant from the
delay.” Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa. Super.
2004). “When examining the reasons for the delay, the court looks at
circumstances surrounding the delay to determine whether the
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Commonwealth acted with due diligence in scheduling the revocation
hearing.” Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super.
2010) (citing Clark, 847 A.2d at 124). Moreover, “a court should not
attribute to the Commonwealth delays caused by the defendant.” Id. (citing
Commonwealth v. Gaus, 446 A.2d 661, 663-64 (Pa. Super. 1982) (holding
only two months of four year and eight month delay attributable to the
Commonwealth where defendant fled and concealed his whereabouts for
four years and six months)).
In the matter sub judice, there was a six plus year delay between the
direct violation of probation and Appellant’s probation revocation hearing.
However, the reasons for the delay are attributable to Appellant. It is
undisputed that Appellant absconded from the trial court’s supervision in
Philadelphia in 2005. See Appellant’s Brief at 11. A warrant was issued for
Appellant’s arrest on October 14, 2005. Moreover, it is undisputed that
Appellant violated her probation in 2009 when she was convicted of simple
assault in Montgomery County under her married name. Thus, Appellant
concealed her whereabouts from the requisite authorities. See generally
Gaus, 446 A.2d at 663-64. While Appellant’s probation was transferred
from Montgomery County to Philadelphia County, that alone does not
attribute the delay onto the Commonwealth. The reason for the delay
originated from Appellant’s absconding from her original sentence in October
2005. Therefore, the delay between October 2005 and November 2015, is
attributable to Appellant. See Christmas, 995 A.2d at 1263. The time
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between her November 2015 arrest and the December 15, 2015 hearing is
attributable to the Commonwealth; however, this minimal delay does not
violate Appellant’s speedy trial rights. See Pa.R.Crim.P. 708. Appellant’s
claim fails.
Even if this Court were to find the delay unreasonable, Appellant’s
argument fails because she fails to establish prejudice. “To demonstrate a
violation of his right to a speedy probation revocation hearing, a defendant
must allege and prove the delay in holding the revocation hearing prejudiced
him.” Christmas, 995 A.2d at 1263 (citations omitted).
Prejudice in this context has been interpreted as being
something which would detract from the probative value and
reliability of the facts considered, vitiating the reliability of the
outcome itself. One specific purpose of our rule in requiring a
prompt revocation hearing is to avoid such prejudice by
preventing the loss of essential witnesses or evidence, the
absence of which would contribute adversely to the
determination. Another is to prevent unnecessary restraint of
personal liberty.
Id. (quoting Commonwealth v. Marchesano, 544 A.2d 1333, 1336 (Pa.
1988)). Appellant claims she was prejudiced by the loss of her employment;
however, Appellant fails to cite to any authority for the proposition that this
would constitute prejudice under Pa.R.Crim.P. 708. Thus, Appellant’s claim
fails.
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Next, Appellant challenges the discretionary aspects of sentencing of
her probation violation.2 To challenge the discretionary aspects of
sentencing, an appellant must raise “a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code.”
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015).
Furthermore, such determination is made on a case-by-case basis. Id.
(citing Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011)). “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.” Id.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias,
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016)
(quoting Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014)
____________________________________________
2
In order to challenge the discretionary aspects of sentencing, an appellant
must raise the issue in a post-sentence motion, file a timely appeal, include
a Pa.R.A.P. 2119(f) statement in appellant’s brief, and present a substantial
question for review. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013) (citing
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).
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(additional citations omitted)). Moreover, “following revocation, a
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statutes in question.”
Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014). Furthermore,
contrary to when an initial sentence is imposed, the Sentencing
Guidelines do not apply, and the revocation court is not cabined
by [42 Pa.C.S.A. §] 9721(b)’s requirement that “the sentence
imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.”
Id. at 27 (citations omitted). Thus, Appellant has failed to raise a
substantial question. Even if Appellant raised a substantial question, her
claim is meritless.
At sentencing the trial court stated
[t]his sentence is absolutely necessary [to] vindicate the
authority of this Court. [Appellant] unfortunately thinks it is
okay to be on the run for ten years and know that this case is
open. There were numerous opportunities to turn herself into
the court. The whole court system had a safe surrender
program in operation. I think it went into effect twice and she
should have surrendered herself and gotten this case behind her
but she chose not to.
This is 11 and a half to 23 sentence is essentially what she
originally received but she got parole and house arrest. And
there is no way to know what kind of conditions [Appellant] has
because she is on the run so she will be tested. Her urine hasn’t
been tested in years. Although she claims she has been clean
for three or four years, we have no way of knowing that because
she has been on the run and hasn’t been tested.
So as I said, this sentence is absolutely necessary to
vindicate the authority of [the trial court]. And if [Appellant]
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apparently thinks that she should be awarded for staying on the
run for ten years, and I’m not going to do that.
N.T. VOP Hearing, 3/4/16, at 15-16. Thus, the trial court adequately
addressed the reasons for sentencing on the record.
Furthermore, Appellant’s argument is centered on the trial court’s
purported failure to consider the sentencing factors pursuant to 42 Pa.C.S.A.
§ 9721(b). This argument is flawed as such factors do not apply in the
context of a probation revocation. See Pasture, 107 A.3d at 27. The
applicable statute is 42 Pa.C.S.A. § 9771, which provides that
(b) Revocation.--The court may revoke an order of probation
upon proof of the violation of specific conditions of the probation.
Upon revocation the 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 the order of probation.
(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 if he is not imprisoned;
or
(3) such a sentence is essential to vindicate the authority
of the court.
42 Pa.C.S.A. § 9771. Appellant’s probation violation was a result of her
conviction of another offense; thus it was within the trial court’s authority to
fashion a sentence of total confinement pursuant to § 9771(c)(1).
Additionally, the trial court had the benefit of a presentence investigation
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report, thus we “presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, the trial court’s revocation
sentence was for an identical period to the originally imposed sentence.
Thus, the trial court did not abuse its discretion when it imposed a sentence
of 11 ½ to 23 months incarceration after revoking Appellant’s parole.
Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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Com. v. Jennings, R.
Combined Opinion