Com. v. Taylor, A. ( 2019 )


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  • J-S55002-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    ALEXANDER THOMAS TAYLOR                    :
    :
    Appellant               :   No. 663 WDA 2018
    Appeal from the Judgment of Sentence April 4, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0017134-2009
    BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
    MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 14, 2019
    Alexander Thomas Taylor (Appellant) appeals from the judgment of
    sentence imposed after the trial court revoked his probation. Upon review,
    we affirm.
    The trial court recounted the factual and procedural background at
    length:
    At a [s]entencing [h]earing held on August 10, 2010, . . . it
    was stipulated that the Affidavit of Probable Cause and relevant
    police reports and any lab reports in this matter formed a
    sufficient basis for Appellant’s guilty plea [to] causing a minor to
    have indecent contact with him, when the minor was less than 13
    years old and not married (Count II) and corruption of a child
    under the age of 18 by inappropriate sexual contact when
    Appellant was over 18 (Count IV).[1] Counts I, III, and V were
    withdrawn. Details of the serious sexual offenses were not
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1).
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    disclosed in open [c]ourt. At the time of the sentencing, Appellant
    was 20 years old.
    By agreement, Appellant was sentenced to a period of
    incarceration for time served with a period of probation of five
    years to follow. He was required to register under the auspices of
    Megan’s Law for a period of ten years. He was to be paroled within
    48 hours and begin his period of five years probation, effective
    August 10, 2010.
    On December 9, 2015, Appellant attended a Probation
    Violation Hearing before this [c]ourt. A pre-sentence report had
    been provided to the [c]ourt. Appellant had established residency
    in the state of Maryland three years earlier and his probation was
    transferred to the Maryland Department of Public Safety and
    Correctional Services. On June 30, 2014, during a maintenance
    polygraph, Appellant admitted to improper contact with a minor.
    On August 21, 2014, Maryland Officials submitted a Probation
    Violation Report. Appellant was charged, but pled not guilty and
    later adjudicated so. A new Probation Violation warrant was
    issued for Appellant due to his technical violation and he was
    extradited and transferred to the Allegheny County Jail. Probation
    requested that Appellant’s probation be revoked and a new period
    of supervision with electronic monitoring be imposed. During
    open [c]ourt, the only reference to the probation violation was in
    the context that Appellant had been sent back from Maryland.
    Appellant was released from [c]ounty jail on November 21,
    2015, and placed on electronic monitoring. Probation reviewed
    the special conditions with Appellant and on December 1, 2015,
    he reported to the probation office. Again, the specific conditions
    were reviewed, and Appellant was also instructed to call and make
    an appointment with any of the sex offender treatment providers
    on a list given [to] him during this meeting. By December 9,
    2015, Appellant had made no calls to anyone. This [c]ourt warned
    Appellant that his next hearing would be his last, because he
    would be put into state time for any further violation.
    The [c]ourt then declared the Probation Violation Hearing a
    Stage 2 hearing and imposed zero tolerance. Probation was
    instructed that [if] Appellant violated the terms of his probation,
    to notify the [c]ourt and another hearing would be scheduled.
    Appellant’s probation was revoked and he was given another five
    years probation, nine months on electronic monitoring, and
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    specific conditions, which [h]is counsel assured the court she had
    reviewed with Appellant twice.
    Appellant’s final Probation Violation Hearing was held before
    this [c]ourt on April 4, 2018. A pre-sentence report was provided
    to the [c]ourt. Appellant had appeared on January 10, 2018 for a
    Gagnon I violation hearing.[2] He had been cited for violations
    including being unsuccessfully discharged from sex offender
    treatment due to lack of progress and continued denial of the
    offenses and lack of motivation.          Noting that this was not
    Appellant’s first violation, as he was in violation of his supervision
    back in 2015, due to violations including out-of-state for sexual
    offenses on children. He had two years treatment in Allegheny
    County and failed to make necessary adjustments and progress
    needed to comply with the terms of his probation. The [p]robation
    department recommended that Appellant’s probation be revoked
    and that this time he be sentenced to a period of incarceration.
    Defense counsel argued that Appellant did not violate his
    probation because he was mentally ill, but trying, and he believed
    he was making progress. Probation countered that he had been
    receiving lack of progress reports from Appellant’s therapist since
    June of 2017, and that issue was discussed with Appellant on a
    monthly basis. In November of 2017, Appellant was confronted
    by group members and admitted to having inappropriate thoughts
    and feelings. Appellant was discharged from treatment also
    because he was denying that any sexual advances occurred in the
    underlying Pennsylvania case.
    This [c]ourt quoted from the pre-sentence report the
    following:
    “The goal      of sex offender treatment is to rehabilitate the
    Defendant     and to prevent further victimization. These goals
    cannot be     attained if the Defendant continues to minimize the
    severity of   his offenses and his deviant behavior.”
    Appellant was reminded that he had multiple occasions to
    make a positive adjustment and had not complied with community
    supervision, that the victims in this case were ages five and seven,
    and that in 2017 he had admitted having past victims in this case,
    but still did not make any progress.
    ____________________________________________
    2   Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
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    Accordingly, Appellant’s probation was revoked and he was
    sentenced to 3½ to 7 years incarceration with credit for time
    served.
    Trial Court Opinion, 1/22/19, at 2-5 (citations to notes of testimony omitted).
    On April 16, 2018, Appellant filed a timely post-sentence motion. The
    trial court denied the motion and Appellant filed a timely notice of appeal.
    Both Appellant and the trial court have complied with Pennsylvania Rule of
    Appellate Procedure 1925.
    Appellant presents two issues for review:
    [1.] WHETHER THE TESTIMONY FAILED TO ESTABLISH, BY A
    PREPONDERANCE OF THE EVIDENCE, THAT [APPELLANT]
    COMMITTED A VIOLATION OF HIS PROBATION?
    [2.] IN REVOKING [APPELLANT’S] PROBATION AND RE-
    SENTENCING HIM, IN THE AGGREGATE, TO 2½-6[3] YEARS’ TOTAL
    STATE CONFINEMENT, WHETHER THE TRIAL COURT ABUSED ITS
    DISCRETION BY IGNORING [APPELLANT’S] REHABILITATIVE
    NEEDS AND THE NEEDS OF THE COMMUNITY, AS REQUIRED BY
    42 Pa.C.S.A. § 9721(b)?
    Appellant’s Brief at 6.
    In his first issue, Appellant challenges the sufficiency of the evidence
    produced at his Gagnon II hearing, claiming that the Commonwealth “failed
    to establish, by a preponderance of the evidence, that he committed a
    violation of his probation.” Appellant’s Brief at 19. Appellant does not dispute
    ____________________________________________
    3 Appellant’s April 4, 2018 sentencing order reflects a sentence of 3½ to 7
    years of incarceration. See Trial Court Order of Sentence, 4/4/18, at *1. It
    appears Appellant subtracted the credit for time served in calculating his
    aggregate sentence, which may explain the discrepancy in the length of his
    incarceration in his question presented.
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    that sex offender treatment was a condition of his probation and that he was
    “unsuccessfully discharged from sex offender treatment.” N.T., 4/4/18, at 2.
    Rather, Appellant argues that because he was discharged for progressing “too
    slowly,” the trial court erred in finding him in violation of his probation.
    Appellant’s Brief at 16 (“In other words, [Appellant] was not discharged
    because he failed to attend treatment or failed to participate in the program;
    rather, [Appellant] was discharged because he was progressing too slowly.”).
    He further states:
    In order to sufficiently prove that [Appellant] willfully and
    flagrantly disregarded his duties and obligations of sex offender
    treatment, the Commonwealth needed to present testimony
    explaining how and to what extent [Appellant] performed in
    treatment. The Commonwealth simply did not do that here.
    Instead, the record demonstrates only that, although his progress
    may have been slow in coming, [Appellant] nevertheless was
    making a good-faith effort to participate in, and successfully
    complete, sex offender treatment. Given these circumstances,
    the trial court’s finding of a violation cannot, as a matter of law,
    be sustained, and Appellant’s judgment of sentence must be
    vacated.
    Appellant’s Brief at 28-29. We disagree.
    “Revocation of a probation sentence is a matter committed to the sound
    discretion of the trial court and that court’s decision will not be disturbed on
    appeal in the absence of an error of law or an abuse of discretion.”
    Commonwealth v. Ahmad, 
    961 A.2d 884
    , 888 (Pa. Super. 2008) (citation
    omitted).
    Relevant to the revocation of a probationary sentence, Section 9771 of
    the Sentencing Code provides:
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    (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 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.
    (d) Hearing required.--There shall be no revocation or increase
    of conditions of sentence under this section 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. Probation may be eliminated or the term
    decreased without a hearing.
    42 Pa.C.S.A. § 9771.
    We recognize:
    The first step in a Gagnon II revocation decision involves a wholly
    retrospective factual question: whether the parolee or probationer
    has in fact acted in violation of one or more conditions of his parole
    or probation. It is this fact that must be demonstrated by
    evidence containing probative value. Only if it is determined that
    the parolee or probationer did violate the conditions does the
    second question arise: should the parolee or probationer be
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    recommitted to prison or should other steps be taken to protect
    society and improve changes of rehabilitation?
    Commonwealth v. Moriarty, 
    180 A.3d 1279
    , 1286 (Pa. Super. 2018)
    (citation omitted).       “Unlike a criminal trial where the burden is upon the
    Commonwealth to establish all of the requisite elements of the offenses
    charged   beyond      a    reasonable   doubt,   at   a   revocation   hearing   the
    Commonwealth need only prove a violation of [] probation by a preponderance
    of the evidence.” 
    Id.
     (citation omitted).
    The Pennsylvania Supreme Court’s recent decision in Commonwealth
    v. Foster, 
    214 A.3d 1240
     (Pa. 2019), addresses when a defendant may be
    found to have violated probation. In Foster, the defendant was on probation
    when he was detained by his probation officer for posting photographs to his
    social media accounts “depict[ing] guns, drugs, large amounts of money and
    his sentencing sheet from his plea agreement[.]” Id. at 1243. At defendant’s
    revocation hearing, the Commonwealth argued that posting the photos was a
    violation of probation because the photos depicted contraband belonging to
    the defendant. The Commonwealth asserted that the defendant “was using
    his social media accounts as an ad agency to sell the drugs.” Id. However,
    “[o]ther than the photographs in question, the Commonwealth presented no
    evidence at either [violation of probation] hearing in support of its
    contentions.   At no time did the Commonwealth mention the conditions of
    [defendant’s] current probation, or suggest that his conduct violated a specific
    condition.” Id. at 1244.
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    At the conclusion of the defendant’s Gagnon II hearing, the trial court
    found him in violation of his probation and resentenced him to a period of
    incarceration. Foster, 214 A.3d at 1244. The defendant appealed, and this
    Court affirmed. Our Supreme Court granted allowance of appeal to address
    the following issue:
    Did not the Superior Court err by ignoring the governing statute
    and due process protections that permit revocation only for a
    violation of specified conditions of probation, and by holding that
    [defendant’s] inappropriate offensive social media posting, that
    violated no condition of probation, warranted revocation?
    Id. at 1245-46.
    In reversing this Court, the Supreme Court held that a court may find a
    defendant in violation of probation only if the defendant has violated one of
    the “specific conditions” of probation or committed a new crime. Id. at 1250.
    Therefore, in order to revoke probation:
    The [] court must find, based on the preponderance of the
    evidence, that the probationer violated a specific condition of
    probation or committed a new crime to be found in violation.
    Absent such evidence, a violation of probation does not occur
    solely because a judge believes the probationer’s conduct
    indicates that probation has been ineffective to rehabilitate or to
    deter against antisocial conduct.
    Id. at 1243.
    Instantly, Appellant’s case is distinguishable from Foster because the
    trial court found Appellant to have violated “a specific condition” of his
    probation. In its December 9, 2015 sentencing order, the trial court specified:
    Sex Offender Court - Special Conditions: [Appellant] is to comply
    with the Special Conditions of the Sex Offender Court. Other:
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    [Appellant] is placed on ZERO TOLERANCE, per SOC Review
    Hearing on 12/9/15.
    Trial Court Order, 12/9/15, at 1. As noted above, Appellant does not argue
    that sex offender treatment was not part of the “Special Conditions of Sex
    Offender Court.”
    On December 27, 2017, the Commonwealth filed a Gagnon I Probation
    Violation Report in which Appellant’s probation officer requested a Gagnon II
    hearing. The report states:
    [Appellant’s] Charge Specific Special Conditions include:
    “[Appellant] shall attend and participate in a mental health
    treatment program and/or sex offender treatment
    program as approved and directed by the probation/parole
    officer . . .”
    [Appellant] is currently in violation of PROBATION by reason of
    the following:
    Following his previous revocation hearing in December of 2015,
    [Appellant] started attending sex offender treatment with Mercy
    Behavioral Health-The Gatehouse. Unfortunately, despite having
    attended regularly for approximately two years and multiple
    warnings regarding his treatment progress, [Appellant] was
    unsuccessfully discharged from his Court ordered sex
    offender treatment program on 12-6-17, due to “Failure to
    follow through with your recommended treatment plan”
    and “Continued denial of the offense(s) and lack of
    motivation.” . . .
    The goals of sex offender treatment are to rehabilitate [Appellant]
    and prevent further victimization. These goals cannot be attained
    if [Appellant] continues to minimize the severity of his offense and
    deviant behaviors.      [Appellant] has been provided multiple
    opportunities to make positive adjustments and comply with
    community supervision, namely his Court ordered sex offender
    treatment program.
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    It is respectfully recommended a Gagnon II Violation Hearing be
    held; at which time the Probation Department will recommend
    that [Appellant’s] probation be revoked, and a period of
    incarceration be imposed.
    Gagnon I Probation Violation Report, 12/27/17, at 2 (headings omitted,
    emphasis added).
    The trial court convened a Gagnon II hearing at which Appellant’s
    probation officer, Pedro Hersan, testified that Appellant was “unsuccessfully
    discharged from sex offender treatment due to lack of progress and continued
    denial of the offense and lack of motivation.” N.T., 4/4/18, at 2.      Further
    noting that Appellant was two years into treatment and failed “to make the
    necessary adjustments and progress needed to comply,” Mr. Hersan
    recommended that the trial court revoke Appellant’s probation and resentence
    him to a period of incarceration.    Id. at 2-3. On April 4, 2018, the court
    revoked Appellant’s probation and resentenced him to incarceration. Id. at
    9-10.
    Our review confirms that Appellant’s probation officer filed a probation
    violation report because Appellant failed to meet the specific condition
    requiring him to attend and participate in sex offender treatment. Appellant
    concedes that he was discharged from sex offender treatment. See e.g.,
    Appellant’s Brief at 16. Thus, based on a preponderance of the evidence, the
    trial court concluded that Appellant violated his probation. Foster, 214 A.3d
    at 1243; see also N.T., 4/4/18, at 10. Appellant’s first issue challenging the
    sufficiency of the evidence lacks merit.
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    In his second issue, Appellant challenges the discretionary aspects of
    his sentence. We recognize:
    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. Simmons, 
    56 A.3d 1280
    , 1283-84 (Pa. Super. 2012)
    (citations omitted).     “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.”          
    Id. at 1286-87
     (citation omitted).
    Further, “[t]he right to appellate review of the discretionary aspects of
    a sentence is not absolute, and must be considered a petition for permission
    to appeal.”   Commonwealth v. Buterbaugh, 
    91 A.3d 1247
    , 1265 (Pa.
    Super. 2014). “An appellant must satisfy a four-part test to invoke this Court’s
    jurisdiction when challenging the discretionary aspects of a sentence.” 
    Id.
    We conduct this four-part test to determine whether:
    (1) the appellant preserved the issue either by raising it at the
    time of sentencing or in a post[-]sentence motion; (2) the
    appellant filed a timely notice of appeal; (3) the appellant set forth
    a concise statement of reasons relied upon for the allowance of
    appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
    a substantial question for our review.
    Commonwealth v. Baker, 
    72 A.3d 652
    , 662 (Pa. Super. 2013) (citation
    omitted). “A defendant presents a substantial question when he sets forth a
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    plausible argument that the sentence violates a provision of the sentencing
    code or is contrary to the fundamental norms of the sentencing process.”
    Commonwealth v. Dodge, 
    77 A.3d 1263
    , 1268 (Pa. Super. 2013) (citations
    omitted).
    Appellant has complied with the first three prongs of this test by raising
    his sentencing claim in a timely post-sentence motion, filing a timely notice of
    appeal, and including in his brief a Rule 2119(f) concise statement.        See
    Appellant’s Brief at 30-36. Therefore, we examine whether Appellant presents
    a substantial question.
    Appellant’s discretionary claim alleges the trial court, “ignor[ed
    Appellant’s] rehabilitative needs and the needs of the community, as required
    by 42 Pa.C.S.A. § 9721(b)[.]”     Appellant’s Brief at 6; see 42 Pa.C.S.A. §
    9721(b) (sentencing court shall follow general principle that sentence imposed
    should call for confinement that is consistent with the protection of the public,
    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). This claim
    presents a substantial question. See Commonwealth v. Derry, 
    150 A.3d 987
    , 994-95 (Pa. Super. 2016) (claim that a VOP sentencing court failed to
    consider the factors under 42 Pa.C.S.A. § 9721(b) raises a substantial
    question).
    Appellant also claims that the trial court relied upon an impermissible
    factor in imposing an excessive sentence.      See Appellant’s Brief at 33-34.
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    This claim also raises a substantial question.        See Commonwealth v.
    Simpson, 
    829 A.2d 334
    , 338 (Pa. Super. 2003) (“This Court has held that a
    claim that the sentence is excessive because the trial court relied on
    impermissible factors raises a substantial question.”) (citation omitted).
    Turning to the merits, we reiterate:
    Upon revoking probation, a sentencing court may choose from any
    of the sentencing options that existed at the time of the original
    sentencing, including incarceration.        42 Pa.C.S. § 9771(b).
    However, the imposition of total confinement upon revocation
    requires a finding that either “(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).
    Commonwealth v. Swope, 
    123 A.3d 333
    , 338 (Pa. Super. 2015) (footnote
    omitted). Further:
    In selecting from the alternatives set forth in subsection (a), the
    court shall follow the general principle 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. . . . In every case in which
    the court imposes a sentence for a felony or misdemeanor . . . the
    court shall make as a part of the record, and disclose in open court
    at the time of sentencing, a statement of the reason or reasons
    for the sentence imposed.
    42 Pa.C.S.A. § 9721(b).
    Following revocation, a sentencing court need not undertake a lengthy
    discourse for its reasons for imposing a sentence of total confinement, 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. Crump, 995
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    19 A.2d 1280
    , 1283 (Pa. Super. 2010). Also, “[w]hen a sentencing court has
    reviewed a pre-sentence investigation report, we presume that the court
    properly considered and weighed all relevant factors in fashioning the
    defendant’s sentence.” Baker, 
    72 A.3d at
    663 (citing Commonwealth v.
    Fowler, 
    893 A.2d 758
    , 767 (Pa. Super. 2006)).
    Here, the trial court stated that it had read and considered Appellant’s
    pre-sentence investigation report. N.T., 4/4/18, at 2. “Our Supreme Court
    has determined that where the trial court is informed by a [pre-sentence
    investigation report], it is presumed that the court is aware of all appropriate
    sentencing factors and considerations, and that where the court has been so
    informed, its discretion should not be disturbed.”        Commonwealth v.
    Edwards, 
    194 A.3d 625
    , 637-38 (Pa. Super. 2018) (citation omitted), appeal
    denied, 
    202 A.3d 41
    . Accordingly, we conclude that the trial court considered
    the required factors and considerations, including those delineated in Section
    9721(b) of the Sentencing Code, in sentencing Appellant.
    Appellant further claims that the trial court “improperly considered
    conduct for which [Appellant] went to trial on in Maryland, and was fully
    acquitted by a jury of his peers.” Appellant’s Brief at 45. Appellant contends
    it was error for the trial court to make the following statement:
    But [Appellant] did fail the polygraph regarding sexual contact
    with the two-year-old girl in Maryland. In that case he was found
    not guilty, although [Appellant] did admit that the offense had
    occurred.
    N.T., 4/4/18, at 7-8.
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    With respect to the consideration of impermissible sentencing factors,
    we have explained:
    It is an abuse of discretion, as a denial of due process of law, for
    the sentencing court to consider irrelevant factors during
    sentencing.    Thus, previous sentences have been vacated
    because, in imposing sentence, the sentencing court relied upon,
    e.g.: the defendant’s decision to stand trial rather than plead
    guilty, Commonwealth v. Bethea, [] 
    379 A.2d 102
    , 106, 107
    ([Pa.]    1977);    prior   constitutionally   infirm  convictions,
    Commonwealth v. Calvert, [] 
    344 A.2d 797
     ([Pa.] 1975); the
    defendant’s political ideology, Commonwealth v. Berrigan, []
    
    535 A.2d 91
     ([Pa. Super.] 1987) (en banc) . . .; unverified
    hearsay, id.; and the defendant’s status as a naturalized citizen,
    Commonwealth v. Dugan, [] 
    483 A.2d 965
     (Pa. Super. 1984).
    Commonwealth v. Smithton, 
    631 A.2d 1053
    , 1056-57 (Pa. Super. 1993).
    Likewise, “[i]t is beyond peradventure that when a defendant has been
    exonerated in the legal system, either by a jury or on constitutional grounds,
    with respect to a criminal act, that act cannot be used to enhance a sentence.”
    Commonwealth v. P.L.S., 
    894 A.2d 120
    , 130 (Pa. Super. 2006) (citations
    omitted). However, “[i]t is not enough that a trial court simply entertained
    impermissible evidence in its deliberations.”   Smithton, 
    631 A.2d at 1057
    (emphasis in original).    “A court is ordinarily presumed to be capable of
    identifying and properly disregarding all but the most prejudicial and
    inflammatory evidence.” 
    Id.
     (citation omitted). “Thus, a sentence must be
    vacated only where it reasonably appears from the record that the trial court
    relied in whole or in part upon such an impermissible factor.” 
    Id.
     (emphasis
    in original, citation omitted).
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    After careful consideration, we conclude the trial court did not rely on
    an impermissible factor in imposing Appellant’s sentence. In reviewing the
    record, including the notes of testimony from Appellant’s hearing, it is clear
    that while the trial court made a passing reference to an impermissible factor,
    i.e., Appellant’s case in Maryland, the trial court did not rely on that factor in
    sentencing Appellant. The trial court articulated its reasoning as follows:
    Okay. I do find that it’s some mitigation, that you have
    been employed and that there were times when you were in
    compliance. However - - and I’m going to quote from the
    presentence report.
    “The goal of sex offender treatment is to rehabilitate
    [Appellant] and to prevent further victimization. These goals
    cannot be attained if [Appellant] continues to minimize the
    severity of his offenses and his deviant behaviors.”
    You have been provided with multiple occasions to make a
    positive adjustment and have not complied with community
    supervision. I would also add that you -- in 2007 you admitted
    having passed [sic] victims in the case, but still did not make any
    progress. I would also add that the victims in the case which are
    before me were ages five and seven. For these reasons I find
    it is not appropriate for County supervision. And I’m going to at
    Count 2 revoke and order you to serve three and a half to seven
    years with credit for time served. . . .
    N.T., 4/4/18, at 9-10 (emphasis added).
    Consistent with the foregoing, we find no merit to Appellant’s claim that
    the trial court relied on an impermissible factor in imposing his sentence.
    Judgment of sentence affirmed.
    Judge McLaughlin joins the memorandum.
    Judge Colins files a dissenting memorandum.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/14/2019
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