J-A05043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALEAK J. HAINES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 133 EDA 2023

Appeal from the Judgment of Sentence Entered November 22, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005616-2018

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 25, 2024

Maleak J. Haines (“Haines”) appeals from the judgment of sentence 

imposed following the revocation of his probation. We affirm.

We briefly summarize the relevant factual and procedural history of this 

case as follows. In 2018, the trial court accepted Haines’ negotiated guilty 

plea to aggravated assault and possession of an instrument of crime (“PIC”),

1

for physically assaulting Tyriqua Washington, the mother of his five-year old 

daughter, by stabbing her with a screwdriver and hitting her with a hammer.

See N.T., 11/22/21, at 3-4, 28. Pursuant to the plea agreement, the trial 

court sentenced Haines to nine to twenty-three months of imprisonment 

followed by five years of reporting probation with a domestic violence 

condition for aggravated assault, and imposed a concurrent sentence of nine 

to twenty-three months followed by three years’ probation to be supervised 

____________________________________________

1 See 18 Pa.C.S.A. §§ 2702(a)(4), 907(a).
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by the domestic violence unit of the probation department for PIC.

2 Id. at 3-

4. In October 2019, the trial court granted Haines’ petition for early parole.

While on parole and probation, Haines appeared before the trial court

several times for persistent violations.

3 See id. at 4. After each hearing, the 

trial court permitted Haines’ parole and probation to continue. However, in 

December 2020, based on allegations that Haines was physically abusing his 

wife, Safira Haines (“Mrs. Haines”), the court issued a probation detainer and 

set a violation of probation (“VOP”) hearing for January 25, 2021. At the 

conclusion of the January 25, 2021 VOP hearing, the trial court found Haines 

in technical violation of his probation based on the abuse allegations, 

continued his probation, and ordered him to have no-negative contact with 

Mrs. Haines. Id. at 4-5. Haines did not file a post-sentence motion or appeal 

the January 25, 2021 sentencing order.

In August 2021, the probation department advised the trial court that 

[Haines] was violating the [January 25, 2021] no-negative contact order and 

was abusing [Mrs.] Haines. Id. at 5. The trial court conducted a VOP hearing

on November 22, 2021 at which Mrs. Haines testified via telephone. The trial 

court found Mrs. Haines testimony credible that Haines had physically abused 

____________________________________________

2 The maximum sentence for a conviction graded as a second-degree felony, 

such as the aggravated assault conviction herein, is ten years’ imprisonment. 

See 18 Pa.C.S.A. § 1103(2). The maximum sentence for a conviction graded 

as a misdemeanor of the first degree, such as the PIC conviction herein, is 

five years’ imprisonment. See 18 Pa.C.S.A. § 1104(1).

3 To address Haines’ repeated violations, the trial court ordered him to appear 

for status hearings on December 10, 2019, March 20, 2020, and July 14, 2020.
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her multiple times since January 25, 2021, while she was pregnant. The abuse 

included Haines frequently shooting her with a BB gun, beating her with a 

wooden hanger until it broke, punching her in the face so hard that her nose 

fractured, and intentionally crashing a car while she was a passenger in it. Id. 

at 8-21, 23-24. The trial court also found as credible Mrs. Haines’ testimony 

regarding a particular incident in which Haines shot her big left toe with the 

BB gun in April 2021, requiring a pellet to be removed at a medical center. 

Id. at 11, 13, 19, 21. In addition, the Commonwealth introduced 

photographic evidence of Mrs. Haines’ injuries and her medical records 

documenting the injuries. At the conclusion of the hearing, the trial court 

found Haines in violation of the no-negative contact condition of his probation, 

revoked his probation, and resentenced him to two and one-half to five years’ 

imprisonment for aggravated assault, with no further penalty for PIC. Id. at 

24-25, 27.

Haines timely filed a motion to reconsider his VOP sentence, which was

denied by operation of law. Haines did not initially appeal his VOP sentence. 

However, upon filing a timely petition pursuant to the Post-Conviction Relief 

Act (“PCRA”)

4 Haines’ direct appeal rights were reinstated nunc pro tunc. 

Haines thereafter timely appealed from the VOP judgment of sentence. Both 

Haines and the trial court complied with Pa.R.A.P. 1925.

Haines raises the following issues for our review:

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4 See 42 Pa.C.S.A. §§ 9541-9546.
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1. Whether the evidence was sufficient as a matter of law to make 

a determination that [Haines] was in technical violation of the 

terms and conditions of his probation, since the “no[-]negative 

contact” order added as a term of [Haines] probation at the 

January 25, 2021 revocation hearing was improper and 

unenforceable, as no evidence of any violation was presented 

at that hearing to allow an amendment to the original probation 

conditions, and the Commonwealth failed to establish [Haines]

violated any legitimate conditions of his probation during the 

November 21, 2021 revocation hearing, because the [trial] 

court did not have authority or legal basis to add additional 

conditions at the January 25, 2021 revocation hearing.

2. Whether the sentencing court abused [its] discretion by 

imposing a sentence after a technical probation violation that 

was not based upon the gravity of the violation, the extent of 

[Haines] record, his prospect of rehabilitation, nor an 

assessment of the mitigating and aggravating factors as noted 

in 42 Pa. C.S.[A.] [§[ 9721 of the Sentencing Code.

Haines’ Brief at 7 (issues reordered for ease of disposition).

In his first issue, Haines purports to challenge the sufficiency of the 

evidence supporting the revocation of his probation. However, Haines’ 

sufficiency challenge is premised entirely on his assertion that the trial court 

lacked the statutory authority to impose the no-negative contact condition of 

his probation following the January 25, 2021 VOP hearing.5

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5 The fact that Haines did not file a post-sentence motion from or seek to 

appeal the January 25, 2021 sentencing order does not preclude our review 

of his issue, as a claim challenging the legality of a sentence, cannot be 

waived. See Commonwealth v. Tustin, 888 A.2d 843 (Pa. Super. 2005) 

(holding that failure to file a post-sentence motion does not result in waiver 

of a legality of sentencing claim on appeal); see also Commonwealth v. 

Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (holding that a challenge to the 

legality of sentence is never waived so long as the court has jurisdiction to 

address the claim).
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Importantly, [a]n appeal challenging the statutory authority of the trial 

court to modify the conditions of probation presents a question of law

regarding the legality of the sentence, and thus our standard of review is de 

novo and our scope of review is plenary. See Commonwealth v. Whatley,

221 A.3d 651, 653 (Pa. Super. 2019) (holding that if no statutory 

authorization exists for a particular condition of a probationary sentence, the 

sentence is illegal and subject to correction); cf. Commonwealth v. 

Concordia, 97 A.3d 366, 373 (Pa. Super. 2014) (distinguishing a legality of 

sentence challenge to probation raised in a Post Conviction Relief Act petition 

and holding that such a claim must be raised in the petition). An order placing 

a defendant on probation is not a judgment of sentence as that term is 

construed for the purposes of procedure. See Commonwealth v. Nicely, 

638 A.2d 213, 216-17 (Pa. 1994). Rather, a probation order is conditional by 

its very nature and permits a court to alter its terms at any time. Id. 

Pursuant to 42 Pa.C.S.A. § 9771:

(a) General rule. — The court has inherent power to at any 

time terminate continued supervision, lessen the conditions upon 

which an order of probation has been imposed or increase the 

conditions under which an order of probation has been 

imposed upon a finding that a person presents an 

identifiable threat to public safety.

* * * *

(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 
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probation. Probation may be eliminated or the term decreased 

without a hearing.

42 Pa.C.S.A. § 9771(a), (d). (emphasis added).

Haines argues that the trial court lacked statutory authority to impose 

the no-negative contact condition of his probation at the conclusion of the 

January 25, 2021 hearing. According to Haines, the trial court “had no 

evidence to make a finding that [he] presented an identifiable threat to public 

safety,” because the only evidence presented by the Commonwealth at that 

hearing was “the testimony of Mrs. Haines, and she vehemently denied that 

[Haines] ever physically assaulted or abused her.” Haines’ Brief at 16. Haines 

maintains that, without any evidence to establish that he was an identifiable 

threat to public safety, the trial court had no legal authority to increase or add 

a new condition to his probation pursuant to section 9771(a). On this basis, 

Haines argues that the no-negative contact condition was a “legal nullity.” Id. 

at 17. Applying this reasoning, Haines asserts that he could not have been 

found in violation of an illegal condition of his probation.

Instantly, on January 25, 2021, the trial court held the required hearing 

pursuant to section 9771(d) before it imposed the no-negative contact 

condition to Haines’ probation. However, the transcript of that hearing is not 

included in the certified record. As the appellant in this matter, it was Haines’ 

responsibility to order the transcript for the January 25, 2021 hearing and to 

ensure that the transcript was included in the certified record. See Pa.R.A.P. 

1911(a). We have repeatedly held that our appellate review is limited to those 

facts which are contained in the certified record. See Commonwealth v. 
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O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006). Materials which are not 

contained in the certified record cannot be considered by an appellate court in 

its review of the issues. See Commonwealth v. Lowry, 560 A.2d 781, 785-

86 (Pa. Super. 1989). In this case, because the transcript for the January 25, 

2021 hearing is not contained in the certified record, it does not exist for 

purposes of our review. See O’Black, 897 A.2d at 1240. Thus, we may not 

consider Haines’ unsupported arguments regarding evidence or testimony 

which may have been presented at that hearing. 

Nevertheless, we do have the benefit of the trial court’s assurance that, 

following the January 25, 2021 hearing, the court specifically determined that 

Haines presented an identifiable threat to public safety. See Trial Court 

Opinion, 2/23/23, at 9 (explaining that, “at [the January 25, 2021] hearing, 

[the court] used all the professional knowledge the judge had acquire[d] in 

nearly three decades on the [b]ench to determine that [Haines] was clearly 

an identifiable threat to public safety, specifically to the safety of Mrs. 

Haines”). Thus, on the record before us, the trial court properly exercised its 

inherent power to increase Haines’ probation conditions pursuant to section 

9771(a) when imposing the no-negative contact condition. Accordingly, given 

our determination that the trial court did not exceed its statutory authority 
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when imposing the no-negative contact condition, Haines’ first issue merits no 

relief.6

In his second issue, Haines challenges the discretionary aspects of his 

sentence. The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for permission to 

appeal. See 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 

his 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).

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6 Mindful that Haines purported to raise a sufficiency challenge, we note that 

he has not developed any argument in his brief that the evidence presented 

at the November 22, 2021 hearing was insufficient to support a finding that 

he violated the no-negative contact condition of his probation. See Pa.R.A.P. 

2119(a) (stating that the parties’ briefs must include a discussion of each 

question raised on appeal along with citation of authorities as are deemed 

pertinent); see also Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. 

Super. 2020) (holding that arguments which fail to adhere to our appellate 

rules may be considered waived, and arguments which are not appropriately 

developed are waived). Moreover, Haines conceded that, had the no-negative 

contact condition been properly imposed, the testimony provided by Mrs. 

Haines at the November 22, 2021 hearing “is arguably enough to find [him]in 

technical violation of his probation.” Haines’ Brief at 16. Thus, any genuine 

sufficiency challenge is waived.
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Here, Haines filed a timely notice of appeal, and he preserved 

discretionary sentencing issue in his post-sentence motion. He has also set 

forth a Rule 2119(f) statement in his appellate brief. Therein, Haines claims 

that, when imposing his revocation sentence, the trial court failed to consider 

the appropriate sentencing factors set forth in 42 Pa.C.S.A. § 9721(b). See

Haines’ Brief at 8. We conclude that Haines has raised a substantial question 

for our review. See Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. 

Super. 2016) (holding that a claim that the VOP court failed to consider the 

section 9721(b) factors presents a substantial question for our review). 

Accordingly, we will address the merits of Haines’ discretionary sentencing 

claim.

Our standard of review of a probation revocation sentence is wellsettled. Because [t]he imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, we will not 

disturb a revocation sentence on appeal unless we determine the trial court 

abused that discretion. See Commonwealth v. Colon, 102 A.3d 1033, 1043 

(Pa. Super. 2014). 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. Id.

When imposing a probation revocation sentence, the trial court must 

follow the general principle that the sentence be “consistent with the 

protection of the public, the gravity of the offense as it relates to the impact 
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on the life of the victim and on the community, and the rehabilitative needs 

of the defendant.” 42 Pa.C.S.A. § 9721(b).

Additionally,

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. [See] 42 Pa.C.S.[A.] § 

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.[A.] § 9771(c).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote 

omitted).

In all cases where the trial court resentences an offender following 

revocation of probation, the trial court must place its reasons for the sentence 

on the record. See 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. 

Cartrette, 83 A.3d 1030, 1040-41 (Pa. Super. 2013). A trial court need not 

undertake a lengthy discourse 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. See Commonwealth v. Crump, 995 A.2d 1280, 

1282-83 (Pa. Super. 2010).

[S]entencing guidelines do not apply to sentences imposed as a result 

of probation or parole revocations. See Commonwealth v. Coolbaugh, 770 

A.2d 788, 792 (Pa. Super. 2001). Instead, a VOP sentencing court is limited 
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only by the maximum sentence that it could have imposed originally at the 

time of the probationary sentence. See Commonwealth v. Pasture, 107 

A.3d 21, 27-28 (Pa. 2014). The rationale for this difference is that a 

“convicted defendant released into the community under such control of the 

sentencing judge, who violates the terms of his release[,] thereby betrays the 

judge’s trust.” Commonwealth v. Reaves, 923 A.2d 1119, 1131 n.12 (Pa. 

2007). Further, “since the defendant has previously appeared before the 

sentencing court, the stated reasons for a revocation sentence need not be as 

elaborate as that which is required at initial sentencing.” Pasture, 107 A.3d 

at 28; see also Commonwealth v. Presley, 193 A.3d 436, 446-47 (Pa. 

Super. 2018).

Haines contends that the VOP court abused its discretion by imposing

an excessive sentence without considering the factors set forth in section

9721(b). Haines’ Brief at 14-15. Specifically, Haines asserts that the trial 

court failed to consider the gravity of the violation as it relates to the 

community and his rehabilitative needs. Haines claims that the trial court only 

considered the testimony of Mrs. Haines regarding the incidents and the 

nature of the violation. Haines argues that the trial court did not state any 

findings upon which the imposition of sentence was based. Haines points out 

that he had no new arrests or convictions, was reporting as directed, provided 

documentation of employment, completed all required programs while 

incarcerated, and had negative drug screens. According to Haines, when 

imposing his revocation sentence, the trial court ignored Haines’ compliance 
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with the terms and conditions of his probation and disregarded his redeeming 

characteristics.

7

Based on our review, we discern no abuse of discretion by the trial court

when resentencing Haines to a period of total confinement for two and onehalf to five years imprisonment upon revocation of his probation. The trial 

court heard ample testimony and evidence that Haines repeatedly violated the 

no-negative condition of his probation by physically abusing his pregnant wife,

frequently shooting her with a BB gun causing a pellet to lodge in her toe, 

beating her with a wooden hanger until it broke, punching her in the face so 

hard that her nose fractured, and intentionally crashing a car while she was a 

passenger in it. See N.T., 11/22/21, at 8-21; see also Trial Court Opinion,

2/23/23, at unnumbered 3-6.

Further, the trial court provided its reasons for imposing the revocation 

sentence on the record at the VOP hearing:

[Haines’] probation is revoked. [Haines’] new sentence on the 

aggravated assault is two and a half to five years in state prison. 

No further penalty on the [PIC] with credit for time served . . .. 

The maximum possible sentence is ten years. This sentence of 

two and a half to five in state prison takes into consideration other 

time in custody before today’s date.

* * * *

____________________________________________

7 Haines additionally argues that all but one of the alleged incidents occurred 

prior to the imposition of the no-negative contact order in January 2021. 

However, the record reflects that Mrs. Haines testified that each of the alleged 

incidents occurred after the no-negative contact provision had been imposed. 

See N.T., 11/22/21, at 9-11, 13-15, 20-21 (wherein Mrs. Haines testified that 

the alleged incidents occurred in April 2021, June 2021, and August 2021).
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For the record, this sentence is absolutely necessary because 

[Haines] is a repeated batterer. He is a person who has total 

disrespect for the women who’ve been around him and he has 

total disrespect for this [trial] court. He has not successfully 

completed any of the anger management sessions that would 

assist him in treating the women around him with respect and 

courtesy. [Haines] came before me originally for having beat on 

the mother of his five-year-old daughter. When [Haines] came 

back with M[rs.] Haines and indicated he was a changed man, . . 

. I told [Haines] to keep his hands off his new wife. . . . [Mrs. 

Haines’] testimony has the ring of truth about what was really 

happening in their relationship and that’s who [Haines] is. . . . 

[H]opefully this trip to state prison will assist [Haines] in 

understanding that he has a problem with anger management and 

his treatment of women.

N.T., 11/22/21, at 27-29.

Based on our review, we conclude that the record as a whole reflects 

that the trial court carefully considered the section 9721(b) factors when 

imposing its revocation sentence, including 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 Haines’ rehabilitative needs. The trial court was 

familiar with Haines, as he had appeared before the court on multiple 

occasions and the court knew of his criminal history. The court specifically 

noted on the record that Haines is a serial batterer because he was previously 

convicted of beating the mother of his minor daughter and, while on probation 

for that offense, repeatedly physically abused and assaulted Mrs. Haines. 

While Mrs. Haines did not press charges and no conviction resulted from 

Haines’ most recent abuses, the record is clear that a sentence of total 

confinement was justified since Haines’ conduct indicated that he was likely 

to commit another crime if he was not imprisoned. See 42 Pa.C.S.A. § 
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9771(c). At a minimum, the record reflects that a sentence of total 

confinement for Haines was necessary to vindicate the trial court’s authority. 

Id.

Thus, as we discern no abuse of discretion by the trial court in 

sentencing Haines to two and one-half to five years’ imprisonment for

aggravated assault based on violations of the no-negative contact condition 

of his probation, he is not entitled to relief on his second issue. Accordingly,

we affirm the judgment of sentence.

Judgment of sentence affirmed.

Date: 4/25/2024