Com. v. Bollinger, T. ( 2020 )

J-A04018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYLER BOLLINGER, :
:
Appellant : No. 611 EDA 2018
Appeal from the Judgment of Sentence January 4, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004371-2014
CP-51-CR-0004374-2014
CP-51-CR-0004377-2014
BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 11, 2020
Tyler Bollinger (Appellant) appeals from the judgments of sentence
entered following revocation of his terms of probation.1 We affirm.
The underlying cases stem from an incident where Appellant and four
co-defendants attacked a group of high school students, seriously injuring
three of them. Appellant entered into negotiated guilty pleas on the three
1 We note that Appellant should have filed a separate notice of appeal from
each of the three separate trial court docket numbers. Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that “in future cases
[Pa.R.A.P.] 341(a) will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal”). However, our Supreme Court’s mandate
applies prospectively to appeals filed after the date of the Walker decision,
i.e., June 1, 2018. Because the instant appeal was filed on February 1,
2018, the Walker holding does not apply and we decline to quash the
appeal.
* Retired Senior Judge assigned to the Superior Court.
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dockets, which resulted in his pleading guilty to three counts of aggravated
assault, one count of conspiracy, and one count of possession of an
instrument of crime (PIC).
We glean the following from the recitation of facts to which Appellant
pleaded guilty at his guilty plea hearing. See N.T., 10/10/2017, at 15-17.
On March 21, 2014, at about 10 p.m., Appellant and co-defendants Hellena
Andro, David Cramp, John Farrell, and Ryan Palen encountered a group of
high school students, including Thomas Bayer, Joseph Galasso, and James
Galasso (collectively, the Victims). Appellant and the co-defendants initiated
a physical fight with the Victims by throwing glass beer bottles at them. The
Victims, who were unarmed, responded by engaging in a fistfight, punching
Appellant and co-defendants. In the end, the Victims were stabbed multiple
times and suffered critical injuries that required hospitalization. Bayer
suffered five stab wounds, Joseph suffered three, and James suffered eight.
Appellant and the co-defendants ran from the scene to the residence of
Appellant’s father, where Appellant hid two knives that were used in the
assault. The knives were recovered pursuant to a search warrant executed
the following day. Appellant was not identified by the Commonwealth as one
of the individuals who had stabbed the Victims.
Based on the foregoing, Appellant and the co-defendants were charged
with aggravated assault and related offenses and listed for a consolidated
jury trial. Prior to trial, co-defendants Andro, Cramp, and Palen pleaded
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guilty. Thereafter, the Commonwealth agreed to sever the trials of
Appellant and Farrell. Farrell’s trial, which was held first, resulted in a
mistrial due to a hung jury. The Commonwealth then moved to consolidate
Appellant’s and Farrell’s cases for a jury trial, which the trial court granted
over Appellant’s objection.
After several continuances, the consolidated jury trial was scheduled
for October 10, 2017. Before trial started on that date, Appellant entered
into a negotiated guilty plea to the following: at docket 4371-2014,
aggravated assault (victim Joseph Galasso), conspiracy-aggravated assault,
and PIC; at docket 4374-2014, aggravated assault (victim James Galasso);
and at docket 4377-2014, aggravated assault (victim Bayer).2 After
Appellant’s guilty plea colloquy, the court heard argument from counsel for
the parties, testimony from Appellant’s grandmother confirming Appellant
would live with her if he was sentenced to a term of probation, and
Appellant’s allocution. The court then accepted the parties’ negotiated
agreement and imposed the negotiated aggregate term of 1½ to 3 years of
incarceration followed by 10 years of probation on the three dockets.3
2 The remaining charges were nolle prossed.
3 The court imposed concurrent terms of 1½ to 3 years of incarceration
followed by 10 years of probation for each of the aggravated assault
convictions and the conspiracy conviction, and 1½ to 3 years of incarceration
for the PIC conviction.
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Appellant received credit for time served and was immediately
released on probation with the conditions that he be supervised by the anti-
violence unit; seek and maintain employment; submit to random drug and
alcohol screens and comply with all treatment; submit to random home and
vehicle checks for drugs or weapons; perform 100 hours of community
service; have no direct, indirect, social media, or third-party contact with the
Victims or Commonwealth witnesses;4 and pay restitution.
One week later, on October 17, 2017, Appellant tested positive for
marijuana. In addition, Appellant’s probation officer reported that Appellant
had posted a video on social media (Facebook Live) where he, among other
things, openly engaged in drug and alcohol use with co-defendant Andro,
“rapped,” voicing his frustrations, threatened Roseanna Punzo, the mother of
his young child, and disparaged the judge who sentenced him. Appellant
was arrested and the court issued a detainer on November 3, 2017.
A violation of probation hearing was held on November 6, 2017. At
the hearing, the court viewed the Facebook video and heard testimony from
Punzo; Tabitha Dolbow, the godmother of Appellant and Punzo’s child;
Susan Luckangelo, Appellant’s grandmother; and Appellant. The following
are excerpts from the transcript of statements Appellant made during the
video.
4This included co-defendant Andro because, according to the trial court, she
was listed as a cooperating witness in Farrell’s trial. N.T., 1/17/2018, at 22.
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 “I feel like Poltergeist, looking for a throat to slice, with this
lyrical machete, get ready when I approach the mic potent …
smoke this pipe and if you’re fucking with me better know the
price if you want to gamble with your life then go roll the dice
fuck it homie. Yolo right? Am I gonna make it home at night?
Might not ever see your ass again.. you know I’m right[.]”
 “[I]f I could start picking off targets like the shooting range;
that’s why they call me TILT;[5] …if I could start hitting my mark
I gotta shooters aim[.]”
 “[C]oming through excuse me; you don’t want to move I’m
hittin’ you with a two piece; not a 1 – 2; I’m talking a 22 piece;
22 calibers going inside of you, peace[.]”
 “You only have one life to live; one life to give; to the people
who deserve the most like your wife and kids; so fuck it let the
dutch light and hit cause life is quick; you might not make it
through the night but miss what is right in front of your eyes,
you blind spiteful bitch; I just want to see my daughter I don’t
like this shit; this is something I got … to fight with fists cause I
don’t punch females but this bitch might get kicked[.]”
 “I said fuckin up my liver; … like a flicker; pass it back to my
homie.. bitch hold the liquor cause I’m driving on 95 but I’m
loaded and twisted … not sober for a minute[.]”
 “[C]ock, suicide by police I die when I go free; when you do your
crimes never ride with a co-D[.]”
 “LISTEN – fuck the judge, jury, fuck the DA, tell em to bring
your secretary we can have a three way; homie I got Jack
McMahon,[6] so what can she say; and after this brief stay...
packin up my briefcase and going to an island I got this …
sweepstakes for petesakes I’m sick. I said … Listen listen
listen[.]”
 “Let em all fucking say I’m whack cause I’m white, pass me the
mic and … I’m fast in a fight, got a straight jab.. that would put
any fucking body on their ass for the night; TILTs back home tell
5 This appears to be Appellant’s pseudonym.
6 Jack McMahon, Esquire was Appellant’s counsel.
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everybody you know, a lot of these motherfuckers try to copy
my flow, I gotta be the only rapper not watching the throne,
throw a fucking bomb on that bitch and watch it explode; … a
mess cause I’m gonna fight til the death; my fight’s quicker than
a viper bite striking your neck and I gotta knife in my left that
slice right through your chest right through your … slice right
through your vest; motherfuckers telling me I might be the best,
the only reason I was stopped because … [w]ent down[]made
the most of it[,] waited for an opening so I could take the game
over when I’m home again strapped with a loaded pen blast[,]
then I load again[. C]aught a case[,] now I’m back and I’m
showing them I’m the next to make it[.] Make you wish you
never hated enemy … that’s invading memories … rappers get
eliminated … and incinerated … still I been the greatest.. I SAID
Listen listen listen – I can go forever, I’m so fucking high right
now.
 “… I never stop til I’m dead, get a fuckin glock and take a few
shots to your head, got bars like the meanest cell block in the
fed, got bars like the back of a cop car, got hard dope and more
coke than a rock store[.]”
 “I walk out that jail smelling like a pound of some loud so Fuck
probation couple pounds tucked in basements. Anybody want to
try they luck I’m waiting hoping praying somebody try to test my
patience. Fuck around you’ll be a body with no explanation.”
 “Fuckin Anne Marie Coyle.[7] This bitch is fuckin nuts. You do not
want this judge. Whoever gets this fuckin judge – you better go
on the fuckin run or somethin.”
 Referring to and looking at Andro, Appellant said “you know who
that is? That’s my motherfuckin Co-D!! She goes to court in 3
days for this shit.”
N.T., 11/6/2017, at Court Exh. 1 (video transcript).
To contextualize Appellant’s threats in the Facebook video, Punzo
testified about her past relationship with Appellant.8 She testified that while
7 The Honorable Anne Marie B. Coyle presided over Appellant’s guilty plea
and sentencing hearing.
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they were dating, Appellant was controlling as to what she wore, to whom
she spoke, and where she went. N.T., 11/6/2017, at 14. After she became
pregnant with Appellant’s child, he became physically abusive to her. Id. at
14-17. Punzo described one incident where she asked Appellant to get help
for his drug use, and he refused, pushed her into a wall, and threw a glass
bottle at her, hitting her in the head. Id. at 14-15. She testified that she
did not pursue a a protection from abuse (PFA) against Appellant at that
time due to Appellant’s minor status. Id. at 16. Punzo also talked about
her court-ordered child visitations with Appellant while he was incarcerated.
She described one visit to Appellant in prison where he screamed and yelled
at her, threatened to take their daughter from her “no matter what,” and
balled his hands up as if to punch her. Id. at 19.
Next, Punzo testified about Appellant’s attempts to contact her once he
was released from prison in October 2017. Punzo testified that she had
changed her phone number three times so Appellant could not contact her.
Id. at 20. Despite this, Appellant used Andro’s Facebook account to
message and call Punzo, and Appellant messaged Punzo’s then-boyfriend
and others to ask for her phone number. Id. Within the first two days of
Appellant’s release from prison, Appellant told Punzo that “he would have
somebody else take care of [Punzo] if he couldn’t.” Id. She interpreted this
8 On October 18, 2017, Punzo had filed a petition for temporary protection
from abuse (PFA) against Appellant. The petition was granted, a temporary
PFA order was entered against Appellant, and a hearing was scheduled for
October 25, 2017. N.T., 11/6/2017, at 22-23.
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as a threat, and sought PFA order against Appellant on October 18, 2017.9
Id. at 21-23.
Punzo further testified that Appellant’s Facebook video was forwarded
to her through Facebook Messenger, and she was tagged in it when the
video was posted on Appellant’s Facebook wall. Id. at 25, 32. She
interpreted the video as Appellant threatening her. Id. at 32.
Dolbow’s testimony confirmed Appellant’s controlling behavior toward
Punzo, and Dolbow testified that she had witnessed Appellant abuse Punzo in
the past, including throwing a bottle at her head and pushing her into a wall
while she was pregnant. Id. at 34-36.
Appellant’s grandmother, Luckangelo, testified that Appellant lived
with her upon his release from prison in October 2017. Id. at 39-40.
Luckangelo testified that she had raised Appellant since he was two years
old because his parents were drug addicts and unable to care for him. Id. at
40. She described Appellant’s childhood as relatively stable until his father
re-entered his life around the age of eight and Appellant started living with
him. Id. at 40-41. According to Luckangelo, she has been sober for
decades, and when she took Appellant to her sober meetings when he was
younger, he started to perform the rapper Eminem’s songs. Id. at 42. She
9 On October 18, 2017, Punzo had filed a petition for temporary protection
from abuse (PFA) against Appellant. The petition was granted, a temporary
PFA order was entered against Appellant, and a hearing was scheduled for
October 25, 2017. N.T., 11/6/2017, at 22-23. It appears Punzo sought the
PFA order in response to the Facebook video. See id. at 19-27.
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believed he related to Eminem because Eminem’s mother was also a drug
addict. Id. During this time, Appellant was using drugs and alcohol and
running away from home. Id.
Next was Appellant’s allocution, where he apologized to the court and
said he “wasn’t thinking when [he] released that video.” Id. at 45.
According to Appellant, the video was “just lyricism” but he admitted the
lyrics were inappropriate. Id. Appellant also admitted he was using drugs
and alcohol in the video. Id. at 46. Appellant said he was supposed to start
working at a general contracting company the day he was arrested for
violation of his probation. Id. at 47.
Based on the foregoing, the court stated the following to Appellant.
THE COURT: Okay. Well, I’ve reviewed this video, as painful
a process that is. And what I see in this video, you’re doing
drugs, you’re proud of it. You’re boasting about how you’re doing
whatever you want to do despite what the Court ordered. Your
comments reflect homicidal ideations and indirect terroristic
threats toward the mother of your child….
Id. at 48-49. After reciting excerpts from the video transcript, the court
went on to state that Appellant’s statements in the video “reflect[] someone
who is dangerous. [Appellant] admitted doing drugs, and quite proud of it
as [he’s] going along. Okay. That’s a violation. Threatening people, that’s a
violation.” Id. at 48-49. The court continued reciting excerpts from the
video, and then stated to Appellant the following:
[Y]ou have violated the terms of my probation in multiple
manners. I’m going to explain them for you. You did drugs. I
warned you one hot urine you were supposed to be brought
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before me, just one, and I warned you. I warned you.[10] So you
take your newfound freedom and what do you do with it? You
terrorized and harassed the mother of your child.
***
Your behavior at a point in time where you had the
opportunity to fly right, you take that opportunity to show
absolute defiance to everything the Court ordered, defiance to
this Judge. And you took the time and opportunity to terrorize
[Punzo], all because you want what you want as you want it.
Well, guess what? That’s homicidal ideations. You’re a
danger to the public. I’m finding this as fact. Absolute disrespect
and defiance of this Court’s supervision. Even though you spent
three years in county [incarceration], that didn’t impress you.
N.T., 11/6/2017, at 53-55.
At the conclusion of the hearing, the court revoked Appellant’s
probation, and deferred sentencing for the completion of a presentence
investigation (PSI) report, a forensic intensive recovery (FIR) chemical
dependency evaluation, and a mental health evaluation.
A sentencing hearing was held on January 4, 2018.11 The court
confirmed that it had reviewed Appellant’s PSI report, chemical dependency
10 See N.T., 10/10/2017, at 35 (trial court stating to Appellant “[w]hen in
the future you have to make a decision as to do the right thing or do the
wrong thing, you better have my face implanted in your memory, because
trust me when I tell you, it will be. One misstep under my supervision[.] …
I’m cautioning you right now. I’m not happy about these [guilty plea]
negotiations, as you can well tell. And the reason I’m not happy because
these negotiations is because this sentence to me is light. I understanding
[sic] the reasoning that went into it, so I will accept the negotiations, but
with this condition sir: that you better fly right from this point forward
because there will be no further breaks.”).
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and mental health evaluations, and letters from Appellant’s grandmother
and his employer. N.T., 1/4/2018, at 8-9. The court also heard testimony
from Appellant’s mother, argument from defense counsel, and allocution
from Appellant.
Appellant’s counsel conceded Appellant violated his probation with his
drug use and statements made in the Facebook video, but argued
Appellant’s family history of addiction played a role. Id. at 12-13. His
counsel also acknowledged that Appellant’s probation violations happened
almost immediately upon his release from prison, but he highlighted
Appellant’s young age of 21 years, his earning a GED while incarcerated, his
offer of employment, and his desire to see his child. Id. at 13, 18.
Appellant’s counsel argued the Facebook video was an “art form of rap” and
Appellant could benefit from therapy as “a way to work out some of the
things that [Appellant was] trying to express in a rap video in a more
appropriate setting with a nonjudgmental professional.” Id. at 17. Defense
counsel requested Appellant be sentenced to an inpatient drug recovery
facility. Id. at 14.
Appellant’s mother confirmed that during Appellant’s upbringing, “[h]e
did not get his needs met the way that he should have. There’s been
substance abuse issues with me and his father for many years.” Id. at 19-
11 The court held sentencing hearings for Appellant and Farrell at the same
time. Upon Farrell’s second trial, a jury found him guilty of charged offenses
on three dockets. See N.T., 1/4/2018, at 7.
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20. She testified that she was clean, has been sober for several years, and
is in college. Id. at 20. She described how, in the few days between
Appellant’s release from prison and his incarceration for violating probation,
she saw signs of his being more responsible. Specifically, she testified that
she helped Appellant obtain employment from his uncle, get his
identification card from PennDOT, and sign up for a gym membership. Id.
at 20-22. She also testified that she observed Appellant help an elderly
woman in a wheelchair and donate money to a woman begging on the
street. Id.
Next, the court turned its attention to Farrell’s sentencing and heard
argument from Farrell’s counsel. Farrell’s counsel compared Appellant’s
juvenile record to Farrell’s lack thereof, and brought to the court’s attention
Appellant’s convictions for simple assault and PIC in an unrelated case that
occurred while Appellant was awaiting trial in the underlying incident. Id. at
28-30. At this point, Farrell’s counsel moved for the admission of evidence
of these convictions, to which Appellant’s counsel objected and he moved to
sever the sentencing hearings. Id. at 31. The court overruled the
objection, denied the request for severance, and directed Farrell’s counsel to
focus his argument on Farrell, not Appellant. Id. at 32. The hearing
continued with argument from Farrell’s counsel, with Appellant’s counsel
renewing his severance motion, which was denied. The court again directed
Farrell’s counsel to proceed as to his client individually, and then noted the
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distinction between Appellant’s decision to plead guilty and Farrell’s decision
to proceed to trial. Id. at 35-37. When Farrell’s counsel continued again to
compare Appellant and other co-defendants’ sentences to his client’s
situation, the Commonwealth objected. Id. at 38. The court permitted
Farrell’s counsel to place on the record the sentences of all co-defendants.
Id. at 39-40. The court next heard testimony from Farrell’s father and
mother, argument from the Commonwealth relating to Farrell, and
testimony from Bayer about the impact this incident has had on him. The
court also reviewed victim impact letters.12
The Commonwealth then proceeded to argument on Appellant’s
violation of probation sentencing, seeking imposition of state sentences of
incarceration to vindicate the court’s authority. It focused on how Appellant
immediately violated probation upon his release, the high likelihood that
Appellant would reoffend if he were released, “his flagrant disregard for the
authority of the [c]ourt,” and his lack of remorse. Id. at 59-65. The
Commonwealth further referred to portions of the PSI and chemical
dependency and mental health reports to support its recommendation for a
lengthy term of incarceration.
Next, after Farrell’s allocution, the court heard Appellant’s. Appellant
apologized to the court and the Commonwealth for his actions and
12 The court indicated at the hearing that counsel was “permitted to
introduce the victim impact information into [Appellant’s] sentencing as well.
It applies to both [Farrell and Appellant].” N.T., 1/4/2018, at 48.
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statements he made in the Facebook video. Id. at 65. He also apologized to
the Victims and their families. Id. He stated the underlying incident was
the “biggest regret” of his life, and denied stabbing any of the Victims. Id. at
65-66. He briefly referred to his juvenile adjudication for reckless burning,
and highlighted that he had earned his GED while incarcerated and wanted
to go to college and start employment. Id. at 66.
The court proceeded to place reasons on the record for Appellant’s
sentences. The court stated it remembered how Appellant was “smiling and
joking around,” during his revocation of probation hearing while the
Facebook video was played, and noted that Appellant displayed “the same
cavalier attitude” then as he had at his guilty plea hearing. Id. at 56. The
court cited Appellant’s “absolute lack of remorse that was exhibited … up
until today.” Id. at 67. The court continued as follows.
Well, as to you, [Appellant], I do find that confinement is
necessary here with respect to you. While these violations may
be deemed technical, they were serious, and quite clearly,
indicate that you intend wholeheartedly to commit crimes in the
future. Most notably, the odds are very high. Your risk is very
high for violent offenses in the future, not just any offenses, but
violence.
So I do believe that also you vividly demonstrated your
complete disrespect of this [c]ourt’s authority, and my sentence
will reflect the necessity to vindicate that authority. With you,
where do I begin? Well, the first thought that I vividly recall is
how you were laughing as that video of your rapping, as you
refer to it, was played. Big joke. Big joke. And how you smirked
and your body language when [] Punzo, the mother of your
child, [] was threatened by you within days of you being
released from custody. Big joke. Big joke.
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I am aware, sir, after evaluating all the documents in
reference to you that your upbringing also had severe difficulties
that were not of your own making. Your parents and your
grandmother were directly involved with that. It was
acknowledged by mom. I’m also aware they will continue to
support you in life to the extent that they can.
***
You sat in custody, sir, for three years. That didn’t impress
you. You think this is a joke? I warned you. I warned you. I do
not, I do not say things for the sake of saying things. Because I
sensed in you the very day that you were given that gift, gift of
the negotiated sentence, I actually was not sure that I was even
going to accept those negotiations. Why, [Appellant]? Because
the person who is seated across from me I could sense the lack
of care about anybody but himself. And I sensed in you, and
actually predicted, although I didn’t think I would be that sure,
that you would be back in front of me, so I took great pains, sir,
to explain to you the conditions of your sentence and to implore
you not to violate it.
Id. at 79-82.
The court incorporated into the record Appellant’s criminal history
docket, and noted the violent nature of the underlying incident and its
disbelief of Appellant’s claim that he had not stabbed any of the Victims.
The court went on to state that,
regardless of that, it is apparent to me, sir, that the extent that
you threatened [] Punzo, the extent that you went to tag her on
that video, the extent that you boasted about what you were
doing and what you intended to do, it’s been referred to as, oh,
that’s just rapping, that’s just, you know, expressing one’s self.
Rapping like every other form of communication communicates
the ideas of the person saying what they’re saying, and what
you said, sir, indicated to this [c]ourt someone of a mindset who
would think nothing and who had plans to kill, harm, knife,
shoot, use drugs, proclaim to be in possession of rocks, which is
a common reference to cocaine, do drugs on the video, post that
out for everyone in the world to see proudly. You were proud of
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what you were doing, and what you were doing was saying fuck
the Judge, fuck the probation officer, fuck everybody.
Your lack of understanding of the damage that you were
doing and the impact of your actions is also reflected in the
chemical dependency evaluation and forensic intensive recovery
documents.
Id. at 83-84. The court went on to note Appellant’s risk factors, as detailed
in his evaluations, which could hinder any treatment process, the treatment
he received as a juvenile, and how numerous attempts to rehabilitate him
had failed. Id. at 84-86. The court next detailed at length and on the
record the specific statements Appellant made during his Facebook video, id.
at 87-95, and found Appellant’s intent “to harm other human beings, quite
clearly, including [Punzo] as well as anybody else that crosses [his] path,
including whatever unfortunate police officer that [he] refer[s] to here.” Id.
at 88.
[] I get that some of this is bravado and you think this is cool
and all of that good stuff and your immaturity is evident, I get
that, but what you evidenced by your own words is that you
have no regard whatsoever about anybody and that you will
exert violence on anybody that crosses your path.
***
I have no doubt in my mind sitting here, sir, that if I were
to let you out any time soon that you will harm another human
being. I’m not going to have that on my watch, not at all. So I
can say quite clearly that a sentence of confinement that I will
be directing that is in excess of the three years that you spent
in, which obviously didn’t impact your thought process at all, will
be imposed for all of those reasons, and I incorporate the
reasons of the Commonwealth as well and into each of your
sentences as stated.
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Id. at 95-97.
The court imposed consecutive terms of 4 to 12 years of incarceration
for each count of aggravated assault, with a concurrent term of 4 to 12
years of incarceration for conspiracy, and no further penalty for the PIC
conviction. The aggregate term imposed on the three dockets was 12 to 36
years of incarceration.13
Appellant timely filed a motion for reconsideration of his sentences and
recusal. A hearing was held on January 17, 2018. The court heard
argument from Appellant’s counsel and Appellant apologized to the court
again. N.T., 1/17/2018, at 6-11. The court granted in part the motion for
reconsideration, changing the term of 4 to 12 years of incarceration for
aggravated assault on docket 4377-2014 to run concurrently with the
remaining sentences. This resulted in a new aggregate term of 8 to 24
years of incarceration on the three dockets. The court denied the motion for
reconsideration in all other respects, and denied the motion for recusal. Id.
at 12, 21-24.
This timely-filed appeal followed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
13 At the hearing, the court initially imposed an aggregate term of 8 to 24
years on the three dockets, but suddenly increased it to 12 to 36 years after
Appellant apparently said “Fuck you” to the court after the sentences were
imposed. N.T., 1/4/2018, at 101-04. Appellant’s counsel objected on the
record. Id. at 104. As discussed infra, after Appellant filed a motion for
reconsideration of his sentences, the court resentenced him to an aggregate
term of 8 to 24 years.
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On appeal, Appellant presents the following five issues for our
consideration.
1. Did the sentencing court err by revoking Appellant’s
probation for using marijuana and not allowing him to
receive drug treatment?
2. Did the sentencing court err by revoking Appellant’s
probation for exercising his constitutional right to free
speech in creating a rap video?
3. Did the sentencing court deprive Appellant of due process
by denying his request for a severance?
4. Did the sentencing court err by considering impermissible
conduct in imposing total confinement?
5. Did the sentencing court err in imposing a manifestly
excessive and unreasonable sentence of total confinement
for technical violations?
See Appellant’s Brief at 5; Appellant’s Supplemental Brief at 5.
In an appeal from a sentence imposed following the revocation of
probation, we review the validity of the revocation proceedings, the legality
of the sentence imposed following revocation, and any challenge to the
discretionary aspects of the sentence imposed. Commonwealth v. Wright,
116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). Additionally:
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. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
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In his first issue, Appellant assails the trial court’s decision to revoke
his probation for his marijuana use but not allow him to receive drug
treatment. Specifically, Appellant avers that his positive drug test was not a
violation because he submitted to all drug tests as ordered and “was never
given the opportunity to abide by the sentencing court’s order and
participate in the drug treatment recommendation.” Appellant’s Brief at 17;
Appellant’s Supplemental Brief at 17. According to Appellant, the trial
court’s decision to incarcerate Appellant in lieu of requiring him to comply
with drug treatment violated public policy. Appellant’s Supplemental Brief at
18.
In finding Appellant violated the terms of his probation, the trial court
pointed to Appellant’s positive drug test performed by his probation officer,
as well as Appellant’s admitted use of drugs and alcohol during the Facebook
video. Rule 1925(a) Opinion, 2/14/2019, at 23 (citing N.T., 11/6/2017, at
46).
Probation may be revoked “upon proof of the violation of specified
conditions of the probation.” 42 Pa.C.S. § 9771(b). As detailed supra, there
is no dispute Appellant failed his drug test while on probation, which was a
specified condition of his probation. That probation condition specified as
follows: “Drug screens: To submit to random drug/alcohol screens [-]
Comply with All Treatment.” Negotiated Guilty Plea Order of Sentence,
10/10/2017, at 1 (unnumbered). Appellant’s argument that his positive drug
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screen complies with the conditions of his probation because he submitted to
the screen is inapposite; the point of the drug screen is to test for the
presence of drugs in order to ensure Appellant is remaining drug-free, not to
subject Appellant to unnecessary and inconsequential screening. Regarding
treatment, the specified condition did not order Appellant to participate in a
drug treatment program, and there is no evidence that any treatment was
ordered at the time Appellant was released on probation. Regardless, the
record does not reveal Appellant took any steps to indicate he was
attempting to receive drug treatment, as he claims in his brief. Instead,
Appellant stated he was about to start a job, and his mother testified about
how she helped him with obtaining employment, his identification card, and
a gym membership. Appellant relies on his chemical dependency evaluation
to support his argument, which recommended Appellant receive intensive
outpatient treatment. Appellant’s Brief at 17-18; Appellant’s Supplemental
Brief at 17-18. However, this evaluation was ordered by the court on
November 6, 2017, at Appellant’s violation of probation hearing and
prepared after he was found to have violated probation. Appellant’s first
issue merits no relief.
We next consider Appellant’s claim that the court erred by revoking his
probation for exercising his constitutional right to free speech. Appellant
argues that the statements he made in his Facebook video were “freestyle
rap” lyrics, a form of artistic expression protected by free speech.
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Appellant’s Brief at 26-27. According to Appellant, they were not intended
to terrorize or intimidate. Id. at 26. First, he points out that he did not
specifically mention Punzo’s name, address, or other identifying
information,14 and second, he argues that even if he were referring to
Punzo, he was “merely venting his frustrations” with “no intent of actually
assaulting her.” Id. at 26-27. He also claims there is no evidence Appellant
tagged or instructed someone to tag Punzo in the video. Id. at 28. Further,
he contends because “rap lyrics commonly contain references to drugs and
violence,” they were “generalized animosity” and did not reflect Appellant’s
intent to inflict harm on a particular person. Id. at 27. Appellant argues
that he did not violate a specified condition of probation because the court
“never ordered that he is not allowed to express himself by rapping.” Id. at
28. Finally, Appellant argues that the court’s ruling violates public policy by
eroding free speech and chills future artistic expression based on a fear that
one’s lyrics may offend someone. Appellant’s Supplemental Brief at 27.
“The First Amendment prohibits Congress from abridging the freedom
of speech. This prohibition applies to the States through the Fourteenth
Amendment.” Commonwealth v. Knox, 190 A.3d 1146, 1153 (Pa. 2018)
(citations omitted). “Nevertheless, expressive rights are not absolute.” Id.14 We note that Appellant conceded he was referring to Punzo in his motion
for reconsideration of his sentences. See Petition for Reconsideration of
Sentence and Request for Recusal, 1/10/2018, at ¶ 10 (“[Punzo was also
referenced negatively in the video for preventing [Appellant] from re-
unifying with his child.”).
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at 1154 (citation and internal quotation marks omitted). “[S]peech which
threatens unlawful violence can subject the speaker to criminal sanction.”
Id. at 1155 (citation omitted). “Threats of violence fall outside the First
Amendment’s protective scope because of the need to protect individuals
from the fear of violence, from the disruption that fear engenders, and from
the possibility that the threatened violence will occur.” Id. (citation and
internal quotation marks omitted). A court first reviews the content of the
speech, and then assesses the speaker’s intent, looking at contextual factors
of “whether the threat was conditional, whether it was communicated
directly to the victim, whether the victim had reason to believe the speaker
had a propensity to engage in violence, and how the listeners reacted to the
speech.” Id. at 1158-59 (citation omitted). “The question of whether a
statement constitutes a true threat is circumstance-dependent, [raising] a
mixed question of fact and law.” Id. at 1152. “Thus, we defer to the trial
court’s fact findings which are supported by competent evidence and resolve
any legal questions, such as the scope of the true-threat doctrine, de novo.”
Id.
Here, the trial court reviewed the Facebook video, determined it
contained threats, and found the evidence showed Appellant’s statements
reflected that he was referring to Punzo in the video, that he threatened to
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harm her, and that he tagged15 and messaged her on Facebook through a
third-party (the videographer), and further, that the statements consisted of
“multiple homicidal ideations” where he “bragged to a beat about how he
enjoyed violently slicing people’s throats using his pseudonym ‘Slice and
Tilt’” and “announced his intention to kill law enforcement personnel.” Rule
1925(a) Opinion, 2/14/2019, at 25.
The record supports the court’s factual findings that Appellant’s
statements in the Facebook video threatened violence, and that the threats
were unconditional and communicated to Punzo via tagging and messaging
on Facebook. Further, Punzo’s history with Appellant, which the court found
credible, gave Punzo reason to believe he had a propensity to engage in
violence, and she immediately sought a PFA order, reflecting her belief that
the threats were real. We conclude these findings established that Appellant
communicated a true threat not protected by the First Amendment.
Appellant’s statements and the circumstances surrounding them, described
in detail above, evidenced that they were threats, that Appellant
communicated them knowing they would engender fear in Punzo, and that
Appellant was not “merely venting” as he claims. Rather, Appellant, who had
a history with Punzo, must have known the effect that his words would have
upon her.
15 Tagging refers to creating a link to the tagged person’s social media
profile, e.g, Facebook profile.
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In Knox, our Supreme Court held Knox could be convicted of
terroristic threats and witness intimidation based upon his rap song, where
his lyrics fell within the true-threat exception to First Amendment protection.
Knox had been criminally charged with these offenses, and the lyrics were
used as evidence in proving Knox’s guilt beyond a reasonable doubt. 190
A.3d at 1161. In contrast here, Appellant was not charged with new criminal
offenses, but rather his Facebook video was used to determine whether he
remained a suitable candidate for probation. As our Supreme Court noted,
if this Court were to rule that [an appellant’s] decision to use a
stage persona and couch his threatening speech as “gangsta
rap” categorically prevented the song from being construed as
an expression of a genuine intent to inflict harm, we would in
effect be interpreting the Constitution to provide blanket
protection for threats, however severe, so long as they are
expressed within that musical style. We are not aware of any
First Amendment doctrine that insulates an entire genre of
communication from a legislative determination that certain
types of harms should be regulated in the interest of public
safety, health, and welfare.
Id.
Finally, the trial court here considered the Facebook video for reasons
other than Appellant’s threats, i.e., Appellant’s drug use, contact with a
Commonwealth witness, and disparagement of the court. Rule 1925(a)
Opinion, 2/14/2019, at 25. In light of the foregoing, we conclude
Appellant’s video was not entitled to First Amendment protection and his
claim does not merit relief.
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Appellant next contends that the court deprived Appellant of due
process by denying his severance request at his resentencing hearing.
Appellant’s Brief at 29. Severance decisions are generally within the trial
court’s discretion and will not be disturbed on appeal absent a manifest
abuse of that discretion. See Commonwealth v. Hannibal, 156 A.3d 197,
230 (Pa. 2016). “[T]here is no constitutional right to an individual
sentencing hearing, merely an individualized sentence, and where a
defendant does not show he is prejudiced by a joint sentencing hearing we
will not find a due process violation.” Commonwealth v. Simpson, 66 A.3d
253, 275 n.27 (Pa. 2013).
Appellant contends that his January 4, 2018 resentencing hearing “was
not done by a neutral and detached hearing body” because it was conducted
at the same time as Farrell’s sentencing hearing. Appellant’s Brief at 29. He
argues that Farrell’s counsel “repeatedly attacked [Appellant’s] character
and argued aggravating factors in order to receive sentencing parity for
[Farrell].” Id. at 29-30. He points to Farrell’s counsel’s introduction of
evidence of Appellant’s prior convictions while out on bail in the underlying
incident and victim impact statements, testimony of one of the Victims, and
argument that Appellant had lied to police. Id. at 30.
The trial court explained that it held Appellant and Farrell’s hearings on
the same day because the two men were joined by “the underlying set of
circumstances,” which “factually overlapped.” Rule 1925(a) Opinion,
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2/14/2019, at 30. The court expounded that it did not want to hold
separate hearings to avoid duplicative evidence, specifically victim impact
testimony. Id. at 30-31. The trial court also pointed out that Appellant’s
counsel did not object to holding the hearings on the same day until mid-
hearing. Id. at 30. The trial court further stated that Appellant was not
prejudiced because the notes of testimony from the January 4, 2018 hearing
clearly indicated that the court considered, addressed, and stated reasons
for the imposition of sentences for each defendant individually. Id. at 31.
Finally, the court noted that Appellant’s sentences were reconsidered
individually during the January 17, 2018 reconsideration hearing, where it
imposed a lesser sentence. Id.
The record shows that, despite two months’ notice, Appellant did not
raise an objection to the joint hearing at any time before it was held. At the
conclusion of his November 6, 2017 violation of probation hearing, the court
informed Appellant that his resentencing hearing would be held at the same
time as Farrell’s sentencing hearing. N.T., 11/6/2017, at 55 (court stating
“[Y]ou’re going to be back before me for sentencing on January 4th, I think
is the day [] Farrell will be here for his sentencing. We’ll make it the same
day.”). Further, when Appellant’s counsel did object mid-hearing, he
nonetheless agreed that he believed the court could evaluate each defendant
individually. N.T., 1/4/2018, at 31 (Appellant’s counsel stating “I have no
doubt Your Honor can keep these things separate.”). The record shows
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several instances where the trial court limited attempts by Farrell’s counsel
to portray Appellant in a less favorable light than Farrell and made it clear
that it was assessing Farrell and Appellant individually. Id. at 32, 35-37,
39. As detailed supra, the record demonstrates that Appellant and Farrell
each offered individual mitigating factors, and the court stated independent
reasons, separate from any factors raised by Farrell’s counsel, for sentencing
Appellant as it did. Finally, at the hearing on Appellant’s motions for
reconsideration and recusal, the court restated in detail its reasons for
Appellant’s sentences, see N.T., 1/17/2018, at 12-22; explained that in
denying the motion to sever the hearings, the matters noted by Farrell’s
counsel were already in the record; and confirmed that the court “judge[s]
each person [who] comes before [it] separately because they’re different
people.” Id.at 22. Based on the foregoing, Appellant has not shown he was
prejudiced by the joint hearing and thus, we do not find a due process
violation or discern an abuse of discretion in declining to sever the hearings.
We next turn to Appellant’s remaining issues that present challenges
to the discretionary aspects of his sentences, which we consider mindful of
the following.
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.
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***
When imposing [a] sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. In considering these factors, the
court should refer to the defendant’s prior criminal record, age,
personal characteristics and potential for rehabilitation.
Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)
(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.
2014)).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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 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.[] § 9781(b).
DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102
A.3d 1001, 1006-07 (Pa. Super. 2014)).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, preserved his issues in a post-sentence motion, and
included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at
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15-16; Appellant Supplemental Brief at 15-16. Therefore, we now consider
whether Appellant has raised a substantial question for our review.
The determination of what constitutes a substantial
question 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.
DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant contends (1) his
sentences were manifestly excessive and disproportionate to his conduct;
(2) the court “relied on improper factors[,] which were not supported by the
evidence in finding him in violation and in determining the sentence[s];” (3)
the court imposed a sentence of “total confinement following alleged
technical probation violations absent any of the requirements provided by
[subs]ection 9771(c).” Appellant’s Brief at 15-16. In his supplemental brief,
Appellant adds that the court exhibited prejudice, bias, and ill-will in
imposing the sentence. Appellant’s Supplemental Brief at 16.
We conclude Appellant has raised a substantial question with each of
his claims. Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super.
2012) (“An argument that the trial court imposed an excessive sentence to
technical probation violations raises a substantial question.”);
Commonwealth v. Pacheco, 227 A.3d 358, 376 (Pa. Super. 2020) (“[A]n
allegation that the court considered an impermissible sentencing factor
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raises a substantial question.”); Commonwealth v. Sierra, 752 A.2d 910,
913 (Pa. Super. 2000) (“On appeal from a revocation proceeding, … a
substantial question is presented when a sentence of total confinement, in
excess of the original sentence, is imposed as a result of a technical violation
of parole or probation.”); Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.
Super. 2011) (“An allegation of bias in sentencing implicates the
fundamental norms underlying sentencing and ... raises a substantial
question.”). Accordingly, we review the merits of his claims.
Regarding sentences imposed following the revocation of probation, we
observe the following.
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. [U]pon 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. However, 42 Pa.C.S.[ ] § 9771(c)
provides that once probation has been revoked, a sentence of
total confinement may only be imposed if any of the following
conditions exist[s]:
(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.
In addition, in all cases where the court resentences an offender
following revocation of probation … 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
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sentence imposed [and f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. A trial court need not undertake a
lengthy discourse[16] for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Colon, 102 A.3d at 1044 (citations and quotation marks omitted).
Moreover, in addition to these considerations, a trial court must also
consider the factors set forth in subsection 9721(b)17 when imposing a
sentence following the revocation of probation. Commonwealth v. Derry,
150 A.3d 987, 995 (Pa. Super. 2016).
We initially address Appellant’s contention that the trial court erred by
considering impermissible conduct in sentencing Appellant after revocation
16 As our Supreme Court has explained:
Simply put, since the defendant has previously appeared before
the [trial] court, the stated reasons for a revocation sentence
need not be as elaborate as that which is required at initial
sentencing. The rationale for this is obvious. When sentencing is
a consequence of the revocation of probation, the trial judge is
already fully informed as to the facts and circumstances of both
the crime and the nature of the defendant[.]
Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).
17 That subsection provides, in relevant part, that when imposing a judgment
of sentence,
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.
42 Pa.C.S. § 9721(b).
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of his probation. Specifically, Appellant claims on appeal that the court
improperly considered (1) Appellant’s juvenile record, (2) that Appellant
“must have stabbed the [V]ictims because of a cut on his hand” when he
was arrested, (3) his prior conviction in an unrelated incident while on bail
for the underlying offenses, and (4) victim impact evidence. Appellant’s
Brief at 32-33. Appellant relies on Commonwealth v. Carver, 923 A.2d
495 (Pa. Super. 2007).18
In Carver, Carver pleaded guilty to offenses and was sentenced to a
probationary term of 10 years. He was later arrested for violating the terms
of his probation when he failed a drug test. At his revocation hearing, the
court revoked Carver’s probationary term and “in imposing a sentence of
imprisonment, it relied solely upon the fact that [Carver] had committed
another crime the day before [his re-]sentencing.” 923 A.2d at 496(emphasis added). In only relying on conduct indicating Carver was likely to
commit another crime if not imprisoned, the trial court specifically stated
18 In its supplemental brief, the Commonwealth clarifies that it does not
oppose a limited remand, pursuant to Carver, for the court to determine
whether Appellant’s conduct while under the court’s supervision warranted
revocation because at the revocation hearing the court considered certain
conduct that did not violate specific terms of probation or new crimes
committed. Commonwealth’s Supplemental Brief at 19-24. Appellant does
not make this argument in either of his briefs. Rather, as noted hereinabove,
he argues impermissible factors were considered at the sentencing
hearing. Had Appellant raised the Commonwealth’s argument, he may have
had a meritorious argument. However, Appellant does not raise or develop
this claim, and it is well-settled that this Court “will not become the counsel
for an appellant and develop arguments on an appellant’s behalf[.]”
Commonwealth v. Miller, 212 A.3d 1114, 1131 (Pa. Super. 2019)
(citations omitted). Accordingly, we do not address this claim further.
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that it was not considering whether a sentence of total confinement was
necessary to vindicate the authority of the court. Id. at 498. Because the
trial court relied solely on Carver’s pre-sentence conduct, this Court
reversed, explaining that the “trial court ha[d] not considered whether the
failed urine test, in and of itself, warrant[ed] revocation or whether
probation [could] remain an effective means of rehabilitation if other
measures, such as drug rehabilitation efforts, [we]re employed.” Id. The
Court remanded for another revocation hearing to determine whether
Carver’s probationary conduct warranted revocation. Id. at 499.
We begin by pointing out that Appellant failed to raise challenges to
the introduction of his juvenile record and reference to the cut on his hand
at re-sentencing or in a post-sentence motion. Accordingly, they are
waived.19 See DiClaudio, supra.
With respect to Appellant’s prior conviction and victim impact
evidence, the record shows these factors were not raised at Appellant’s
revocation hearing; rather, they were raised by Farrell’s counsel at the joint
re-sentencing hearing and Appellant’s objection to the court’s consideration
19 In his supplemental brief, Appellant argues that these issues implicate the
legality of his sentence and are therefore cannot be waived. Appellant’s
Supplemental Brief at 30 (citing Commonwealth v. Foster, 17 A.3d 332(Pa. 2011), for the proposition that “a plurality of [our] Supreme Court []
held that the defendant did not waive a challenge to his sentence based on
an interpretation of a mandatory minimum statute”). Foster is inapplicable
in Appellant’s case as he is not challenging the interpretation of a mandatory
minimum statute; he is challenging the court’s consideration of allegedly
improper factors – a claim that goes to the discretionary aspects of
sentencing, and thus must be preserved below. See, e.g., Pacheco, supra.
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of these factors was in the context of his motion to sever the proceedings. In
contrast to Carver, Appellant’s prior conviction and victim impact evidence
did not serve as the basis for determining whether probation warranted
revocation. Instead, as detailed above, the court relied upon Appellant’s
failed drug test, the threats and “homicidal ideations” in his Facebook video,
which showed his propensity for violence, his open and admitted drug use
during the video, his failure to take seriously the court’s warning at his guilty
plea and sentencing hearing that “one hot urine” would result in a violation,
and his disrespect and defiance of the court as the bases for finding
Appellant in violation of his probation.
Appellant points to the Carver Court’s statement that 42 Pa.C.S.
§ 9771(d) “clearly restrains the court from considering facts occurring prior
to the imposition of probation….” Appellant’s Brief at 32, quoting Carver,
923 A.2d at 497. However, the entire sentence from which Appellant quotes
is that subsection 9771(d) “clearly restrains the court from considering facts
occurring prior to the imposition of probation when revoking probation.”
Carver, 923 A.2d at 497 (emphasis added). As the trial court did not
consider such facts when it revoked Appellant’s probation, we find his
argument unavailing.
Finally, Appellant argues that his sentences of total confinement
violated 42 Pa.C.S. § 9771(c) because he was not convicted of another
crime, his conduct did not indicate he is likely to commit a crime if he is not
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incarcerated, and total confinement was not necessary to vindicate the
authority of the court. Appellant’s Brief at 35-36. Appellant also claims that
his sentences are unreasonable and “grossly disproportionate” to his
technical violations of probation, and that the trial court exhibited prejudice
in its references to Appellant’s juvenile record and his requesting visitation
while in custody by his toddler child.20 Id. at 38-39;21 Appellant’s
Supplemental Brief at 34-35.
Appellant argues the trial court abused its discretion because Appellant
has a drug dependency; he did not threaten anyone, take any steps to carry
20 Appellant also argues in this section of his brief that the court exhibited
“prejudice, bias and ill-will” when it suddenly increased his aggregate
sentence after Appellant expressed his discontent with the court’s imposition
of sentences. Appellant’s Brief at 40. Appellant, citing Commonwealth v.
Lucky, 229 A.3d 657 (Pa. Super. 2020) (remanding because under the
circumstances of the case there was a potential for an appearance of bias by
the sentencing judge), argues that he is entitled to a remand because like
Lucky, the same judge increased his sentence following an expression of
disagreement, “regardless of whether it was reconsidered.” Appellant’s
Supplemental Brief at 36. We disagree. As noted supra, the court later
reconsidered his sentences and re-imposed the original aggregate sentence.
We find this distinction from Lucky significant. Accordingly, this argument
is moot.
21 Additionally, Appellant argues in this section of his brief, but does not
include it in his Rule 2119(f) statement, that the court failed to consider
carefully Appellant’s rehabilitative needs. See Appellant’s Brief at 39. Such a
claim does not raise a substantial question. See, e.g., Commonwealth v.
Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (collecting cases). In any
event, the trial court had the benefit of a PSI report and is thus presumed to
have considered all relevant factors. Commonwealth v. Boyer, 856 A.2d
149, 154 (Pa. Super. 2004) (“[W]here the sentencing judge had the benefit
of a [PSI] report, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”).
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out any threats, possess a weapon, assault anyone, or sell drugs; he
recognized his poor judgment, apologized for his actions, and expressed
remorse; it was his first probation violation; his violations were technical; he
had obtained employment; and he had not incurred a new arrest. Id. at 35-
36, 38-39.
In addressing this claim, the trial court stated that Appellant’s general,
“blanket” claim of excessiveness did not raise a substantial question, but
even if it did, the court explained that it did not abuse its discretion because
it determined Appellant to be “a likely candidate for violent recidivism,”
deemed him “to be a danger to the community,” found his conduct on
probation triggered the need to vindicate the court’s authority, and imposed
reasonable sentences. Rule 1925(a) Opinion, 2/14/2019, at 31-39. The
court noted the maximum period of incarceration for each aggravated
assault conviction is 10 to 20 years, and the maximum aggregate term of
incarceration Appellant could have received is 45 to 85 years. Id. at 33.
The court added that it considered relevant factors, as detailed supra, and
sentenced Appellant within the standard range of the sentencing guidelines.
Id. at 31-39. The court further noted that it decided to impose consecutive
sentences in recognition of the “individualized suffering of three separately
attacked victims.” Id.
Upon review, we discern no abuse of discretion. After entering his
guilty pleas, Appellant initially received mitigated-range sentences and the
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bulk of his sentences were probationary in nature. Nonetheless, Appellant
failed to abide by the conditions imposed on him, and the trial court, upon
revoking his probation, imposed lengthier sentences within statutory
bounds. Our Supreme Court has explained that
a trial court does not necessarily abuse its discretion in imposing
a seemingly harsher post-revocation sentence where the
defendant received a lenient sentence and then failed to adhere
to the conditions imposed on him. In point of fact, where the
revocation sentence was adequately considered and sufficiently
explained on the record by the revocation judge, in light of the
judge’s experience with the defendant and awareness of the
circumstances of the probation violation, under the appropriate
deferential standard of review, the sentence, if within the
statutory bounds, is peculiarly within the judge’s discretion.
Pasture, 107 A.3d at 28-29 (citation omitted).
With respect to Appellant’s claim of bias,
[o]ur Supreme Court has stated that it presumes that judges of
this Commonwealth are “honorable, fair and competent,” and
vests in each jurist the duty to determine, in the first instance,
whether he or she can preside impartially. Commonwealth v.
White, 734 A.2d 374, 384 (Pa. 1999).
***
The sentencing decision is of paramount importance in our
criminal justice system, and must be adjudicated by a fair and
unbiased judge. Commonwealth v. Knighton, 415 A.2d 9 (Pa.
1980). This means[] a jurist who “assesses the case in an
impartial manner, free of personal bias or interest in the
outcome.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 89
(Pa. 1998). Because of the tremendous discretion a judge has
when sentencing, “a defendant is entitled to sentencing by a
judge whose impartiality cannot reasonably be
questioned.” Commonwealth v. Darush, 459 A.2d 727, 732
(Pa. 1983). “A tribunal is either fair or unfair. There is no need to
find actual prejudice, but rather, the appearance of prejudice is
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sufficient to warrant the grant of new proceedings.” In Interest
of McFall, 617 A.2d 707, 714 (Pa. 1992).
Lucky, 229 A.3d at 665 (citations altered; some citations omitted).
As detailed supra, the record here confirms that the trial court, who
had already presided over Appellant’s prior hearings, was cognizant of and
considered a myriad of factors before imposing fully-informed sentences
following the revocation of his probation. The court explained its reasoning
on the record and based its sentences on Appellant’s drug use and
threatening conduct during the Facebook video, which it found indicated a
high risk of committing future violent offenses, “complete disrespect” for the
court’s authority, lack of remorse, lack of understanding of the impact of his
actions, failure to take his sentence seriously, “cavalier attitude,” failure to
heed the court’s warning at his original sentencing to keep himself out of
trouble, failure to rehabilitate himself when given the opportunity, including
his three-year stay in county prison awaiting trial in the underlying cases,
family upbringing, immaturity, criminal history, violent nature of the
underlying offense, PSI report, and mental health and chemical dependency
evaluations. The court made clear that its sentence of total confinement was
based upon a finding that Appellant’s conduct “indicates that it is likely that
he will commit another crime if he is not imprisoned” and was “essential to
vindicate the authority of the court.” 42 Pa.C.S. § 9771(c). We are satisfied
that the court made the requisite finding prescribed under this subsection.
Moreover, the length of incarceration was within the trial court’s discretion
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and statutory limits. Finally, under the circumstances detailed herein we do
not see a potential for an appearance of bias, partiality, prejudice, or ill-will
by the trial court. Accordingly, Appellant’s claims are without merit.
In light of the foregoing, because the trial court’s findings are
supported by the record, free of the appearance of bias, and evidence due
consideration by the trial court about the specific needs of Appellant, we
conclude the trial court did not abuse its discretion in sentencing Appellant.
The court found probation to be ineffective in rehabilitating Appellant, and
prison sentences were necessary to vindicate the authority of the court. See
Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (“Traditionally,
the trial court is afforded broad discretion in sentencing criminal defendants
‘because of the perception that the trial court is in the best position to
determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.’”) (citation omitted).
Because Appellant has failed to demonstrate that he is entitled to relief
on any of his claims, we affirm Appellant’s judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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