J-A01039-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ATHANASIOS THEODOROPOULOS

Appellant No. 709 EDA 2015

Appeal from the Judgment of Sentence January 6, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002822-2013

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 02, 2016

Athanasios Theodoropoulos appeals from the judgment of sentence 

imposed by the Court of Common Pleas of Monroe County after he pled 

guilty to unlawful contact with a minor.1 After careful review, we affirm.

The underlying facts are as follows. Theodoropoulos, who was 21 

years old, met the 13-year- old victim on Facebook. At his request, she sent 

photographs of her breasts and vagina to Theodoropoulos, and they 

arranged to meet in the early morning hours of June 6, 2013, in a parking 

lot near the victim’s house. Theodoropoulos arrived in a vehicle along with a 

male juvenile. After the juvenile exited the vehicle, Theodoropoulos and the 

victim engaged in intercourse in the back seat. When they finished, the 

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1 18 Pa.C.S. § 6318(a)(1).
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juvenile and the victim also had sexual relations in the vehicle. The victim 

then walked home.

Theodoropoulos and the victim continued to communicate on 

Facebook. On June 20, 2013, Theodoropoulos again contacted the victim to 

see if she was interested in engaging in sex with him and the juvenile. She 

told him that her father caught her coming home after the first encounter. 

Shortly thereafter, Theodoropoulos deleted his Facebook profile.

After the victim told her sister and mother what happened, they 

contacted police, who arrested Theodoropoulos on September 9, 2013.

Theodoropoulos pled guilty to one count of unlawful contact with a 

minor on March 27, 2014. However, at his request, the court entered an 

order on June 16, 2014, withdrawing Theodoropoulos’ guilty plea.

Theodoropoulos again pled guilty on August 27, 2014. The court 

scheduled sentencing for October 23, 2014, and directed the Sexual 

Offenders Assessment Board to conduct an evaluation to determine if 

Theodoropoulos was a sexually violent predator (SVP). 

At the request of the Commonwealth, the court continued sentencing 

to December 15, 2014, because the Board had not completed its report by 

the original sentencing date. On December 9, 2014, counsel for 

Theodoropoulos filed a motion for continuance noting that counsel was 

attached for trial in Wyoming County that day, and that Theodoropoulos’ 

expert witness, Timothy P. Foley, Ph.D., was not available to testify on 

December 15, 2014. The court continued sentencing until January 6, 2015.
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On December 20, 2014, Theodoropoulos’ counsel filed a motion for 

continuance because he was attached for trial in Luzerne County. The trial 

court denied the motion on December 30, 2014. 

At the beginning of the sentencing hearing on January 6, 2015, 

counsel for Theodoropoulos requested a continuance because Dr. Foley was 

unable to be present to testify. The court asked counsel if Dr. Foley was 

going to testify to anything that was not in the report. Counsel replied, 

“[p]robably not.” N.T. Sentencing, 1/6/15, at 4. The Commonwealth 

indicated that it did not object to admission of the report. The court called a 

recess, read the report and denied the motion for continuance.

At the hearing, the Commonwealth argued in favor of the Court 

following the recommendation of the pre-sentence investigation report that 

Theodoropoulos serve a sentence of 22 to 60 months’ incarceration. 

Defense counsel argued that the recommendation was harsh, citing, among 

other factors, that the Board had determined that Theodoropoulos is not a 

sexually violent predator. Nevertheless, at the conclusion of the 

proceedings, the court imposed a 22 to 60 month sentence.

On January 6, 2015, Theodoropoulos signed a Notification of Megan’s 

Law Sex Offender Registration Duties form acknowledging that he has been 

classified as a Tier 2 offender with a 25-year registration period.

Theodoropoulos filed a timely post-sentence motion seeking 

reconsideration of sentence. At the conclusion of oral argument on February 

17, 2015, the court denied the motion.
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Theodoropoulos filed a notice of appeal on March 9, 2015, and on April 

1, 2015, in response to an order from the trial court, he filed a statement of 

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

filed its Rule 1925(a) opinion on June 2, 2015. On appeal to this Court, 

Theodoropoulos raises the following issues for our review:

1. Whether the lower court’s denial of [Theodoropoulos’] 

continuance motion to allow for the in-court testimony of his 

expert witness at his sentencing hearing constituted a 

violation of [Theodoropoulos’] right to counsel under the Fifth, 

Sixth, and Fourteenth Amendments to the United States 

Constitution and Article I, Section 9 of the Pennsylvania 

Constitution.

2. Whether the lower Court abused its discretion in denying 

[Theodoropoulos’] continuance motion to allow for the incourt testimony of his expert witness at his sentencing 

hearing.

3. Whether the lower court erred in failing to consider the many 

factors which are required for the court to weigh before ruling 

on [Theodoropoulos’] motion for a continuance to allow for 

the in-court testimony of his expert witness at his sentencing 

hearing.

4. Did the lower court err in assessing [Theodoropoulos] with a 

prior record score of one (1) as a result of a past, unrelated 

juvenile offense?

5. Did the lower court err in increasing [Theodoropoulos’] 

sentence of incarceration by placing him in the aggravated 

range under the sentencing guidelines?

6. Considering the Sentencing Code as a whole, was the lower 

court’s deviation from the sentencing guidelines unreasonable 

and excessive?

Appellant’s Brief, at 4-5.
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Theodoropoulos first argues that the trial court’s denial of his motion 

for a continuance violated his right to counsel under the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution and Article I, 

Section 9 of the Pennsylvania Constitution. “As this is an issue involving a 

constitutional right, it is a question of law; thus our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Baldwin, 58 

A.3d 754, 762 (Pa. 2012).

In his Rule 1925(b) statement of errors complained of on appeal, the 

sole issue regarding expert witness testimony raised by Theodoropoulos is: 

“The court erred in refusing to permit the Defendant’s expert witness, Dr. 

Timothy P. Foley, to testify at the time of sentencing, thereby violating the 

Defendant’s due process rights.” Statement of Errors Complained of on 

Appeal, 4/1/15, at 2. Because Theodoropoulos did not raise a challenge 

implicating the right to counsel in his Rule 1925(b) statement, the issue is 

deemed waived. Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005).

However, because the main case that Theodoropoulos relies upon for 

his right to counsel argument focuses on due process concerns, we will 

consider the continuance issue on that basis, which Theodoropoulos properly 

preserved in his Rule 1925(b) statement. See Ungar v. Sarafite, 376 U.S. 
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575, 589 (1964) (“[]there are no mechanical tests for deciding when a 

denial of a continuance is so arbitrary as to violate due process.”).2

This Court has stated the following with respect to such claims:

The matter of granting or denying a continuance is within the 

discretion of the trial court. See Ungar v. Sarafite, 376 U.S. 

575, 589 (1964). The Court in Morris [v. Slappy, 461 U.S. 1, 

11, (1983)] observed that

[t]rial judges necessarily require a great deal of latitude in 

scheduling trials. Not the least of their problems is that of 

assembling the witnesses, lawyers, and jurors at the same 

place at the same time, and this burden counsels against 

continuances except for compelling reasons.

Id.

Accordingly, a trial court exceeds its constitutional authority only 

when it exercises its discretion to deny a continuance on the 

basis of “an unreasoning and arbitrary insistence upon 

expeditiousness in the face of a justifiable request for delay. . . 

.” Id., at 11–12, (internal citation and quotation marks omitted). 

To determine whether a constitutional violation occurred, we 

must examine the circumstances present in the case, especially 

the reasons presented to the trial court for requesting the 

continuance. See Ungar, 376 U.S. at 589.

Commonwealth v. Sandusky, 77 A.3d 663, 671-72 (Pa. Super. 2013).

“Discretion is abused when the course pursued [by the trial court] 

represents not merely an error of judgment, but where the judgment is 

manifestly unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill will.” 

Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1185 (Pa. 1993). 

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2 Theodoropoulos’ second and third issues are subsumed in this discussion.
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With respect to the basis for a continuance sought in this case, our 

Court has stated:

We will not reverse a lower court’s denial of a continuance to 

procure a witness absent an abuse of discretion. Factors 

underlying the exercise of that discretion include whether the 

witness is necessary or essential to the defense, the facts to 

which the witness could testify, whether the witness can be 

procured, and the accused’s diligence in attempting to secure 

the witness’ presence. When there is no assurance that a 

witness can be procured, or considerable uncertainty concerning 

the content of the witness’ testimony, then denial of a 

continuance is proper. Moreover, if the potential witness’ 

testimony is merely cumulative or available from another source, 

then denial is proper.

Commonwealth v. Plath, 405 A.2d 1273, 1275 (Pa. Super. 1979) 

(citations omitted).

Here, the trial court continued the sentencing hearing twice, once at 

the request of the Commonwealth and once at the request of 

Theodoropoulos. At sentencing, after counsel requested an additional 

continuance to allow Dr. Foley to participate, the court inquired whether the 

witness would “offer anything that’s not in his report,” to which counsel 

replied “probably not.” N.T. Sentencing Hearing, 1/6/15, at 3-4. After the 

Commonwealth indicated that it did not object to counsel presenting the 

report, the court took a recess so that it could review the report.

At the completion of testimony, the trial court imposed sentence, 

specifically noting that it had “read Dr. Foley’s report.” Id. at 18. As 

counsel recognized at the sentencing hearing, Dr. Foley’s testimony would 

have been cumulative of his expert report. Because the court admitted, 
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read and considered the report, Theodoropoulos has not met his burden of 

establishing that the court denied him due process or abused its discretion in 

denying the request for an additional continuance.

Theodoropoulos’ remaining issues involve challenges to the 

discretionary aspect of his sentence, which are not appealable as of right. 

Rather, an appellant challenging the sentencing court’s discretion must 

invoke this Court’s jurisdiction by satisfying a four-part test. 

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

We conduct a four-part analysis to determine: (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).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006). 

Here, Theodoropoulos filed a timely notice of appeal, and has 

preserved his claims by raising them in his post-sentence motion. However, 

he has not included in his brief a concise statement pursuant to Pa.R.A.P. 

2119(f), setting forth the reasons relied upon for allowance of appeal with 

respect to the discretionary aspect of his sentence. Nevertheless, because 

the Commonwealth has not objected to this violation of the Rules of 

Appellate Procedure, we may review the claims. Commonwealth v. 

Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).
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Judicial review of the discretionary aspects of a sentence is granted 

only upon a showing that there is a substantial question that the sentence 

was inappropriate and contrary to the fundamental norms underlying the 

Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987). 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 in the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en 

banc). 

Theodoropoulos asserts that the trial court erred by assessing a prior 

record score of 1. A contention that a trial court miscalculated a prior record 

score raises a substantial question. Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa. Super. 2003). Accordingly, we will review this issue. 

The PSI indicates that on June 22, 2011, Theodoropoulos admitted to 

indecent assault (M1) based on an incident in 2011 when tried to force 

himself on a twelve-year-old girl. Theodoropoulos was fifteen at the time. 

The Sentencing Guidelines provide that prior juvenile adjudications are 

counted in the prior record score where the offense occurred after the 

offender’s fourteenth birthday and there was an express finding by the 

juvenile court that the adjudication was for a felony or an M1 offense listed 

in section 303.7(a)(4) of the Sentencing Guidelines. See 204 Pa.Code § 

303.6. One of the offenses listed in section 330.7(a)(4) as adding one point 
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to a prior record score is indecent assault (complainant is less than 13 

years). 

In arguing that the court improperly assessed a prior record score of 

1, Theodoropoulos notes that the indecent assault on a twelve-year old girl 

involved “consensual, non-intercourse sex with his then underage girlfriend.” 

Appellant’s Brief, at 18. Even if this is true, it does not undermine the fact 

that Theodoropoulos was adjudicated of committing indecent assault on a 

complainant under thirteen years of age.

Theodoropoulos next argues that at the sentencing hearing, “the trial 

court generally discusses [his] juvenile history but does not cite with any 

specificity that that there had been an express finding by the juvenile court 

that the prior juvenile adjudication against him was for a felony or one of the 

misdemeanor offenses listed in § 303.7(a)(4)”. Appellant’s Brief, at 19.

Based on the PSI, which indicates that on June 5, 2011, 

Theodoropoulos pled guilty to indecent assault (M1), the record sufficiently 

establishes that he committed an offense that supports a prior record score 

of 1. Accordingly, he is not entitled to relief on this claim.

Distilled to its essence, Theodoropoulos’ next issue asserts that the 

trial court erred by sentencing him in the aggravated range without 

consideration of mitigating circumstances. Such a claim raises a substantial 

question. Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 

2003). 

As the trial court notes in its Rule 1925(a) opinion:
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While the Sexual Offenders Assessment Board did not find 

[Theodoropoulos] to be a sexually violent predator, we found his 

actions with respect to the victim of this case involved predatory 

behavior. Specifically, we noted this was not [Theodoropoulos’] 

first incident involving sexual contact with a minor and that 

[Theodoropoulos] admitted he was not concerned with the 

victim’s age. We also noted that [Theodoropoulos] had been 

unsuccessfully discharged from treatment through Forensic 

Counseling Associates because he was unable to take 

responsibility for his actions. Furthermore, we noted that 

[Theodoropoulos] committed the sexual assault within one year 

of being released on an adjudication of sexual assault, which 

occurred when he was a juvenile. We also noted a prior record 

score of one. In total, we imposed the sentence in the 

aggravated range for all of the aforementioned reasons, which 

were detailed on the record at the sentencing hearing before the 

imposition of sentence.

Trial Court Opinion, 6/2/15, at 4-5 (citations omitted).

Theodoropoulos appears to argue that when imposing sentence, the 

trial court should have considered the fact that he was only fifteen years old 

when he engaged in “consensual, non-intercourse sex with his then 

underage girlfriend.” Brief of Appellant, at 20. Although under the 

sentencing guidelines, Theodoropoulos’ prior record score was 1, he asserts 

that “the positive testimony of his expert witness at sentencing, combined 

with the lower court’s proper assessment of [Theodoropoulos’] prior record 

score as zero, would have had an impact on the aggregate sentence 

imposed by the lower court.” Id. at 21. In light of our discussion of the 

prior record score and the court’s decision not to grant a continuance to 

allow the expert witness to testify, Theodoropoulos is not entitled to relief on 

this claim.
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Theodoropoulos’ final claim is that the trial court’s deviation from the 

sentencing guidelines was unreasonable and excessive, and thus contrary to 

the Sentencing Code. This claim is based on a faulty premise because the 

sentence of 22 to 60 months’ incarceration is within the sentencing 

guidelines, although it is within the aggravated range. Furthermore, 

Theodoropoulos does not set forth the specific provision of the Sentencing 

Code or the fundamental norm underlying the sentencing process that the 

trial court violated. Accordingly, Theodoropoulos has not raised a 

substantial question. See Commonwealth v. Trippett, 932 A.2d 188, 202 

(Pa. Super. 2007).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/2016