J-A24019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEONTA MANNING-RUFFIN

Appellant No. 2835 EDA 2014

Appeal from the Judgment of Sentence of September 4, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0012734-2013

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 02, 2015

On September 4, 2014, the trial court in this case sentenced Deonta 

Manning-Ruffin to one and one-half to three years of total confinement after 

the court determined that he had violated the terms and conditions of his 

house arrest and probation. Manning-Ruffin appeals that judgment of 

sentence. We hold that the trial court considered an impermissible factor in 

imposing Manning-Ruffin’s sentence. We vacate the judgment of sentence, 

and we remand this case for resentencing. 

On March 27, 2014, following a bench trial, Manning-Ruffin was 

convicted of burglary, criminal trespass, and criminal mischief.1 The trial 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3502, 3503, and 3304, respectively. 
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court briefly summarized the facts underlying Manning-Ruffin’s convictions 

as follows:

The evidence adduced at trial proved that [Manning-Ruffin] pried 

open the outer door of a CVS and was in an inner vestibule, 

preparing to break the second barrier to enter the store. The 

outer set of doors had been pried open. He told the first officer 

on the scene that he was breaking into the store to destroy 

things inside because [] he was angry at being “disrespected” 

there earlier.

Trial Court Opinion (“T.C.O.”), 2/4/2015, at 2 (references to notes of 

testimony omitted). 

On May 30, 2014, Manning-Ruffin appeared before the trial court for 

sentencing. During the sentencing hearing, the trial court learned that, 

between the conviction and sentencing, Manning-Ruffin had been convicted 

of an unrelated firearm offense. The trial court noted that “[t]he 

circumstances of the offense were disturbing, involving [Manning-Ruffin] 

brandishing a firearm with an obliterated serial number during a 

confrontation at the home of his brother’s ex-girlfriend.” Id. On the 

burglary conviction, the trial court sentenced Manning-Ruffin to six to 

twenty-three months of house arrest with electronic monitoring. The trial 

court ordered Manning-Ruffin to be released from house arrest and 

transferred to an inpatient treatment facility when a space for him became 

available at a facility. For criminal trespass, the trial court sentenced 

Manning-Ruffin to six to twenty-three months of house arrest, concurrent 
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with the burglary sentence, to be followed by two years of probation. The 

court imposed no further penalty for criminal mischief.

On September 4, 2014, Manning-Ruffin appeared before the trial court 

to face allegations that he had violated the terms of his probation. The trial 

court summarized the evidence presented at the hearing as follows:

Evidence at the violation hearing on September 4, 2014, 

demonstrated that [] Manning-Ruffin violated the conditions of 

his sentence of house arrest by leaving his residence on two 

occasions without authorization. On August 6, 2014, he left his 

residence at 12:08 a.m. and did not return until 12:27 a.m. He 

was given a warning at this time. Later that day he called and 

explained the circumstances to his probation officer, who 

decided to give him another chance, but warned him that 

another house arrest violation would result in his being detained. 

On August 19, 2014, Manning-Ruffin again went out of his 

residence without permission. He left at 11:27 p.m. and did not 

return until ten minutes later at 11:37 p.m. As a result, he was 

detained by the warrant unit and his probation officer lodged a 

detainer against him.

Manning-Ruffin presented testimony from his girlfriend that the 

alarm went off on August 19th without explanation, while 

Manning-Ruffin was in the shower, and when the monitor called, 

[that] is what they were told. Manning-Ruffin also testified that 

he did not leave on August 19th, but was in the shower when the 

alarm went off.

There were no reports of any malfunction with the house arrest 

device. 

T.C.O. at 2-3. 

At the conclusion of the hearing, the trial court determined that 

Manning-Ruffin had violated the conditions of probation, and re-sentenced 

him to one and one-half to three years’ incarceration. The trial court also 
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imposed a consecutive three-year term of probation. The court ordered the 

aggregate sentence to run consecutively to any other sentences that he was 

serving at the time.

On September 12, 2014, Manning-Ruffin filed a motion for 

reconsideration of his sentence. The trial court denied the motion three 

days later. On October 3, 2014, Manning-Ruffin filed a notice of appeal, 

which prompted the trial court to order Manning-Ruffin to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On November 19, 2014, Manning-Ruffin timely complied. Finally, on 

February 4, 2015, the trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a). 

Manning-Ruffin raises the following three issues for our consideration:

1. Did not the trial court violate 42 Pa.C.S. § 9771(d) by 

revoking [Manning-Ruffin’s] probation based on a crime [that 

Manning-Ruffin] was convicted of before he was originally 

sentenced and placed on probation?

2. Did not the trial court violate 42 Pa.C.S. § 9771(c) when it 

imposed a sentence of total confinement for minor technical 

violations of probation?

3. Did not the trial court abuse its discretion and fail to give 

individualized consideration to [Manning-Ruffin] when it 

sentenced him to the manifestly disproportionate and 

excessive term of [one and one-half to three] years of 

incarceration followed by a new period of [three] probation 

years, to be served consecutively to another sentence, for 

minor technical violations?

Brief for Manning-Ruffin at 4. 
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In his first issue, Manning-Ruffin maintains that the trial court 

erroneously revoked his probation by relying primarily upon his prior firearm 

conviction, of which the court was aware at the time of Manning-Ruffin’s 

original sentencing, and not upon his two minor technical violations. 

Manning-Ruffin contends that reliance upon the prior conviction constituted 

an invalid reason for probation revocation, because the prior conviction 

occurred before he was sentenced and placed on probation in the case sub 

judice. 

In an appeal from a sentence imposed following the revocation of 

probation, our standard of review is well settled:

Our review is limited to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the 

time of the initial sentencing. 42 Pa.C.S. § 9771(b); see also 

Commonwealth v. Gheen, 688 A.2d 1206, 1207 (Pa. Super. 

1997) (the scope of review in an appeal following a sentence 

imposed after probation revocation is limited to the validity of 

the revocation proceedings and the legality of the judgment of 

sentence). 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. 1207-1208; accord 

Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. Super. 

1999).

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citations 

modified). 

“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 
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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 

2007). “When assessing whether to revoke probation, the trial court must 

balance the interests of society in preventing future criminal conduct by the 

defendant against the possibility of rehabilitating the defendant outside of 

prison. In order to uphold a revocation of probation, the Commonwealth 

must show by a preponderance of the evidence that a defendant violated his 

probation.” Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 

2011) (quotations and citations omitted). “[T]he reason for revocation of 

probation need not necessarily be the commission or conviction for 

subsequent criminal conduct. Rather, this Court has repeatedly 

acknowledged the very broad standard that sentencing courts must use in 

determining whether probation has been violated[.]” Commonwealth v. 

Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations and internal 

quotations omitted). “A probation violation is established whenever it is 

shown that the conduct of the probationer indicates the probation has 

proven to have been an ineffective vehicle to accomplish rehabilitation and 

not sufficient to deter against future antisocial conduct.” Id.

As indicated above, Manning-Ruffin maintains that his behavior “before

he was placed on probation was not just a factor in the trial court’s decision 

to revoke probation, it was the primary factor in the trial court’s decision to 

revoke.” Brief for Manning-Ruffin at 13 (emphasis in original). Pursuant to 

42 Pa.C.S. § 9771(d), which states that “the court shall consider the record 

of the sentencing proceeding together with evidence of the conduct of the 
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defendant while on probation,” a trial court is restrained from considering 

facts that occurred before the original imposition of probation when 

determining whether to revoke a person’s probation. Commonwealth v. 

Carver, 923 A.2d 495, 497 (Pa. Super. 2007). Thus, if Manning-Ruffin is 

correct that the trial court relied upon his firearm conviction, which 

undoubtedly occurred before he was placed on probation, he would be 

entitled to relief. However, despite Manning-Ruffin’s insistence to the 

contrary, the record does not support his argument. It is true that, at the 

violation hearing, the trial court stated the following:

You know what I was concerned about when I imposed 

sentence? That you would be a danger to the community. And 

at that point, you had an open gun case, right?

Before sentencing—shortly before sentencing, you got convicted 

of that case, and your lawyer at that time, not this lady, stood 

here and told me, I don’t know why, but he told me all about 

how you got that conviction, all about it. And it was very, very, 

disturbing. All right. But, I wasn’t going to try and go back in 

time and [undo] that. But here you are doing it to yourself. All 

right. 

Notes of Testimony, 9/4/2014, at 13. Nevertheless, this was the only 

reference that the trial court made regarding the prior firearm conviction, 

and the statement occurred immediately before imposition of sentence. The 

court’s statement was not made in contemplation of whether Manning-Ruffin 

actually had violated his probation. 

The trial court confirmed that it considered the prior conviction only as 

a factor in determining a suitable sentence for Manning-Ruffin in its Rule 
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1925(a) opinion. The court, relying upon 42 Pa.C.S. § 9771(d), explained 

the basis for its sentence as follows:

Here, the gun conviction and the circumstances of that crime, 

which were discussed at sentencing, along with the 

circumstances for the instant conviction, the absconding 

incidents, and [Manning-Ruffin’s] denial of the second violation 

of his in-home detention, were all factors considered in 

determining an appropriate sentence.

T.C.O. at 4.2 

Even if the court considered the prior conviction for purposes of 

determining whether Manning-Ruffin had violated his probation, the record is 

clear that the court did not utilize the conviction as the “primary” factor, as 

Manning-Ruffin insists. Manning-Ruffin twice left his residence when he was 

not permitted to do so. Manning-Ruffin’s probation officer elected to warn 

him after the first violation. Manning-Ruffin did not heed the warning, and 

left the residence a second time. The trial court relied upon these two 

violations as the bases for finding Manning-Ruffin in violation of his 

probation, as is evidenced by the court’s remarks that “you are doing it to 

yourself.” Id. 

____________________________________________

2 We address the trial court’s consideration of the conviction for 

sentencing purposes in our discussion of Manning-Ruffin’s second issue. We 

cite this portion of the trial court’s opinion here only to demonstrate that the 

court considered the prior conviction as part of the sentencing decision, and 

not as a factor in determining whether Manning-Ruffin had violated his 

probation. 
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In its Rule 1925(a) opinion, the trial court explained that it concluded 

that the Commonwealth had proven a probation violation because “the 

evidence clearly demonstrated that [Manning-Ruffin] had not once, but 

twice, violated the terms of his home detention by leaving the premises.” 

T.C.O. at 3. The court continued, “[i]ndeed, despite a warning and a 

decision by his probation officer not to proceed on a violation at the time of 

the first absconding incident, less than two weeks later, [Manning-Ruffin] 

again absconded from his in-home detention.” Id. at 3-4. Thus, the trial 

court concluded that Manning-Ruffin’s inability to comply with the terms of 

his house arrest rendered probation to be “an ineffective vehicle to 

accomplish rehabilitation and not sufficient to deter against future antisocial 

conduct.” Ortega, supra. The record simply does not support ManningRuffin’s claim that the decision was based upon his prior conviction. 

In his second issue, Manning-Ruffin contends that the trial court erred 

by imposing a sentence of total confinement based only upon ManningRuffin’s technical violations. Despite the manner in which Manning-Ruffin 

frames his issue, the crux of his argument that the trial court based the 

sentence of total confinement upon Manning-Ruffin’s firearm conviction, 

which occurred prior to Manning-Ruffin being placed on probation. We agree 

with Manning-Ruffin. 

Initially, we note that Manning-Ruffin’s claim is a challenge to the 

discretionary aspects of his sentence. See Commonwealth v. McAfee, 

849 A.2d 270, 274 (Pa. Super. 2004) (stating that a claim that the trial 
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court erred in imposing a sentence of total confinement upon revocation of 

probation is a challenge to the discretionary aspects of one’s sentence). 

Two requirements must be met before we will review this 

challenge on its merits. First, an appellant must set forth in his 

brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a 

sentence [pursuant to Pa.R.A.P. 2119(f)]. Second, the appellant 

must show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code. The 

determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis. In order to 

establish a substantial question, the appellant must show actions 

by the trial court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing 

process.

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) 

(citations omitted).3 In his brief, Manning-Ruffin has presented a Rule 

2119(f) statement of reasons for allowance of appeal in which he argues 

that the court erred in its application of section 9771 in that his sentence of 

total confinement was manifestly excessive and based upon an 

impermissible factor. Brief for Manning-Ruffin at 9. Manning-Ruffin has 

raised a substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 

1273 (Pa. Super. 2013) (recognizing that a sentencing court’s reliance upon 

an impermissible factor raises a substantial question). 

____________________________________________

3 Manning-Ruffin has preserved this issue by filing timely post-sentence 

motions and a notice of appeal. 
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Having determined that Manning-Ruffin has raised a substantial 

question, we proceed to the merits of his claim. Our standard of review is 

well-settled:

The imposition of sentence following the revocation of probation 

is vested within the sound discretion of the trial court, which, 

absent an abuse of 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) 

(quoting Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 

2012)). 

Pursuant to section 9711, a sentencing court “shall not impose a 

sentence of total confinement upon revocation [of probation] unless it finds 

that:”

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he 

will commit another crime if he is not imprisoned; or

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

court.

42 Pa.C.S. § 9711(c). However, before any sentence of probation may be 

revoked or increased, subsection 9771(d) mandates that “the court shall 

consider the record of the sentencing proceeding together with evidence of 

the conduct of the defendant while on probation.” 42 Pa.C.S. § 9771(d). As 

noted above, in Carver, we explicitly held that subsection 9771(d) “clearly 
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restrains the court from considering facts occurring prior to the imposition of 

probation when revoking probation.” 932 A.2d at 497. By the terms of the 

subsection, the same must hold true when the court increases a violator’s 

sentence. 

In this case, the trial court admitted that it had considered the prior 

firearm conviction when imposing the post-revocation sentence. See T.C.O. 

at 4. This conduct occurred before Manning-Ruffin was placed on probation, 

and, pursuant to Carver, constituted an impermissible factor for 

consideration. We noted the following in Carver:

It is important to remember that probation is designed to 

rehabilitate a defendant so that he can become a productive 

member of society; thus, probation promotes the interests of the 

public as well as the defendant. See Commonwealth v. Del 

Conte, 419 A.2d 780 (Pa. Super. 1980). It therefore is 

inappropriate to consider the defendant’s conduct prior to 

imposition of the probationary term because the efficacy of 

probation has not yet been tested when that behavior occurred.

Carver, 923 A.2d at 497. The trial court’s decision to consider an 

impermissible factor in sentencing Manning-Ruffin violated the plain terms of 

subsection 9771(d), and was manifestly unreasonable. The court abused its 

discretion by sentencing Manning-Ruffin to total confinement based at least 

in significant part on behavior that occurred prior to his being placed on 

probation. For this reason, we vacate the judgment of sentence, and we 

remand for a new sentencing proceeding. In light of our disposition, we 

need not consider Manning-Ruffin’s final issue.
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Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judge Panella joins the memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2015