J. S25006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MICHAEL RHODY, : No. 419 WDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, February 11, 2015,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0011813-2011

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 12, 2016

Michael Rhody appeals from the judgment of sentence entered by the 

Court of Common Pleas of Allegheny County on February 11, 2015, following 

revocation of his probation. We are constrained to vacate appellant’s 

judgment of sentence and remand for resentencing.

The record reflects that from May 12, 2011 through July 27, 2011, 

appellant, then 49 years old, communicated on the internet and through a 

webcam with an undercover investigator who appellant believed to be a 

14-year-old girl. These communications resulted in appellant being arrested 

and charged with two counts of unlawful contact with minor, one count of 

criminal use of a communication facility, one count of criminal solicitation, 
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and one count of criminal attempt.1 In a negotiated plea, the 

Commonwealth agreed to withdraw the criminal solicitation charge, and 

appellant agreed to plead guilty to the remaining charges. On April 2, 2012, 

the sentencing court sentenced appellant to one year of electronic 

monitoring with a concurrent seven-year term of probation on the unlawful 

contact with minor charge. The sentencing court assessed no further 

penalty with respect to the remaining charges. Following a status 

conference on April 26, 2012, the sentencing court entered an order that 

amended appellant’s sentence and sentenced him to a seven-year term of 

probation.

Following a probation-violation hearing on July 15, 2013, the 

sentencing court revoked appellant’s probation because, among other 

things, appellant had violated the terms of his probation by viewing 

pornography, having contact with minors, failing to participate in therapy, 

and initiating an altercation with his probation officer. The sentencing court 

then sentenced appellant to 10 to 20 months’ incarceration, followed by 

6 months of electronic monitoring and 5 years’ probation.

On February 11, 2015, the sentencing court held another 

probation-violation hearing, during which the court revoked appellant’s 

probation, and sentenced him to 5 to 10 years’ incarceration.

 

1 18 Pa.C.S.A. §§ 6318(a)(1) and (a)(4), 18 Pa.C.S.A. § 7512(a), 

18 Pa.C.S.A. § 902(a), and 18 Pa.C.S.A. § 901(a), respectively.
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On February 24, 2015, appellant filed a motion to reconsider sentence, 

which the sentencing court denied. On March 12, 2015, appellant then filed 

a notice of appeal to this court. The sentencing court ordered appellant to 

file a concise statement of matters complained of on appeal in accordance 

with Pa.R.A.P. 1925(b). Appellant complied, and the sentencing court 

addressed the merits of appellant’s claims in its Pa.R.A.P. 1925(a) opinion.

Appellant raises the following two issues for our review:

I. In revoking [appellant’s] probation and 

sentencing him to a sentence of total 

confinement of 5-10 years[’] state 

incarceration, whether the [sentencing] court 

abused its sentencing discretion when 

[appellant] committed only technical violations 

of probation and the requirements of 

42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. 

§ 9725 were not met?

II. In revoking [appellant’s] probation and 

sentencing him to a state sentence of total 

confinement of 5-10 years[’] incarceration, 

whether the [sentencing] court abused its 

sentencing discretion when it failed to order a 

pre-sentence investigation report or conduct 

an appropriate colloquy at the probationviolation hearing, and it also relied on 

misinformation in imposing sentence?

Appellant’s brief at 5 (footnotes omitted).

Appellant challenges the discretionary aspects of his sentence. 

To reach the merits of a discretionary sentencing 

issue, we conduct a four-part analysis to determine: 

(1) whether Appellant has filed a timely notice of 

appeal; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider 

and modify sentence; (3) whether Appellant’s brief 
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has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the sentencing code.

Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.Super. 2004).

We must first decide whether appellant’s claims are properly before us. 

Where an appellant challenges the discretionary aspects of sentencing, 

appellant must raise the claim in a post-sentence motion or during the 

sentencing proceedings. Commonwealth v. Mann, 820 A.2d 788, 794 

(Pa.Super. 2003).

Here, the sentencing court revoked appellant’s probation and 

sentenced him on February 11, 2015. Trial counsel filed a timely notice of 

appeal, but did not object at sentencing. As for his post-sentencing motion, 

appellant concedes that the certificate of service attached to his motion is 

dated February 18, 2015, but that the document is time stamped as having 

been filed of record on February 24, 2015. (Appellant’s brief at 13 n.5.) 

The sentencing court, however, accepted appellant’s motion for filing and 

then denied it. Appellant then filed a timely notice of appeal to this court 

and raised the discretionary aspects of his sentence in his Rule 1925(b) 

statement. Thereafter, in its Rule 1925(a) opinion, the sentencing court 

acknowledged appellant’s post-sentence motion as timely filed and then it 

addressed the merits of appellant’s issues. (Sentencing court opinion, 

7/21/15 at 2-4.) In its brief, the Commonwealth raised appellant’s 

untimeliness, but then addressed appellant’s claims and suggested that we 
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address them in the interests of judicial economy because if we find waiver, 

appellant will merely raise the claims in a Post Conviction Relief Act2 petition.

Because the sentencing court deemed appellant’s post-sentence 

motion as timely and addressed the merits of appellant’s challenges to the 

discretionary aspects of sentence in its Rule 1925(a) opinion, and because 

the Commonwealth also addressed the merits of appellant’s claims in its 

brief, we find that appellant’s claims are properly before us.

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, whose judgment will not be 

disturbed absent an abuse of discretion. Appellant 

challenges the discretionary aspects of sentencing 

for which there is no automatic right to appeal. This 

appeal is, therefore, more appropriately considered a 

petition for allowance of appeal. Two requirements 

must be met before a challenge to the judgment of 

sentence will be heard on the merits. First, the 

appellant must set forth in his brief a concise 

statement of reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of 

his sentence. Second, he 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.

Bromley, 862 A.2d at 604 (citation omitted).

Appellant has set forth a concise statement of reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of his sentence 

pursuant to Pa.R.A.P. 2119(f). Moreover, it is within the scope of our review 

 

2 42 Pa.C.S.A. §§ 9541-9546.
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to consider challenges to the discretionary aspects of sentence in an appeal 

following a probation revocation. Commonwealth v. Ferguson, 893 A.2d 

735, 737 (Pa.Super. 2006). “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.” Commonwealth v. Simmons, 56 A.3d 1280, 1283 (Pa.Super. 

2012) (citation omitted). “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.” Id. at 1284 (citation omitted).

Here, appellant’s challenge focuses upon the trial court’s failure to 

order a pre-sentencing investigation report (“PSI”) and the trial court’s 

failure to conduct an appropriate colloquy at the sentencing hearing. This 

challenge presents a substantial question. See Commonwealth v. Kelly, 

33 A.3d 638, 640 (Pa.Super. 2011) (“[A]n appellant’s allegation that the 

trial court imposed sentence without considering the requisite statutory 

factors or stating adequate reasons for dispensing with a pre-sentence 

report [raises] a substantial question.”).

At the outset, we note that based upon our review of the record before 

us, we are unable to determine what “technical violations” necessitated 

appellant’s February 11, 2015 probation-violation hearing. Although 

probation officer Heather Bradford testified that “[d]ue to [appellant’s] 
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technical violations, we are recommending that his probation be revoked,” 

she stated that she is not appellant’s probation officer, and that after 

speaking with her supervisor prior to the February 11, 2015 hearing, her 

understanding as to why revocation was recommended was that appellant 

“had a history of passive aggressiveness.” (Notes of testimony, 2/11/15 at 

2-3.) Ms. Bradford then testified to an incident involving another probation 

officer that resulted in appellant’s probation being revoked on July 15, 2013. 

(Id. at 3.) Ms. Bradford never definitively articulated what “technical 

violations” necessitated the subject probation-violation hearing. Although 

she testified that appellant assaulted a resident at a halfway house, she then 

testified that simple assault charges filed against appellant in connection 

with that incident were withdrawn on December 3, 2014. (Id. at 3.) 

Ms. Bradford offered no further testimony concerning that alleged incident. 

Therefore, we are unable to discern what “technical violations” necessitated 

the probation-violation hearing that is the subject of this appeal.

Additionally, at the subject hearing, the record reflects that the 

sentencing court addressed previous hearings that it held in connection with 

appellant and this case, as follows:

THE COURT: Mr. Rhody, this is our sixth hearing,[3] 

and I have done whatever I could within my power 

to get you on the straight and narrow to get you to 

comply with the terms and conditions of your 

 

3 The record reflects that the probation-revocation hearing that is the 

subject of this appeal was the fourth hearing that appellant had before the 

sentencing court.
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probation. I have been supervising you over two 

years. Well, it’s been almost three years. I 

originally sentenced you and allowed you to live in 

Westmoreland County. As a result, one of the 

sheriffs found you were living in a communal type of 

situation where there were many children around, 

and there were many houses very close, and this 

was in spite of the fact that you knew you weren’t to 

have any contact with minors. 

We had a hearing because you apparently decided 

you were going to go on a camping trip to Dubois, 

and you did this when you weren’t allowed to leave 

the jurisdiction. You failed two polygraphs, and the 

polygraphs indicated you had contact with minors 

against the terms and conditions of your probation, 

and that you had used the internet, and you were 

drinking. On top of all of that, you weren’t 

participating in therapy.

Id. at 4-5. The conduct of appellant described by the sentencing court in 

the above colloquy, however, constituted the reasons why the sentencing 

court revoked appellant’s probation and sentenced him to 10 to 20 months’ 

incarceration in a prior proceeding that took place on July 15, 2013. With 

respect to the instant probation revocation and sentencing hearing, the 

sentencing court merely stated:

THE COURT: You were in alternative housing at 

Remnant House, and you got in a fight there, and 

you were thrown out.[4] You have been 

incarcerated, and you are in total noncompliance 

with your probation. This is my sixth hearing.[5] 

 

4 Nothing in the record demonstrates that appellant was “thrown out” of 

alternative housing.

5 Again, the record reflects that the probation-revocation hearing that is the 

subject of this appeal was the fourth hearing that appellant had before the 

sentencing court.
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You have worn me out. I can’t supervise you 

[anymore]. Somebody else has to do it. For the 

reasons I have stated at the CC 201111813, I revoke 

your probation and order you to serve five to ten 

years at the State Correctional Institution at Camp 

Hill, with credit for the time you have served on this 

case.

Id. at 6.

The above colloquy fails to satisfy Pa.R.Crim.P. 702.6 Although a 

sentencing court may dispense of a PSI, it must place its reasons for doing 

 

6 Rule 702. Aids in Imposing Sentence

(A) Pre-sentence Investigation Report

(1) The sentencing judge may, in the judge’s 

discretion, order a pre-sentence 

investigation report in any case.

(2) The sentencing judge shall place on the 

record the reasons for dispensing with 

the pre-sentence investigation report if 

the judge fails to order a pre-sentence 

report in any of the following instances:

(a) when incarceration for one 

year or more is a possible 

disposition under the 

applicable sentencing statutes;

(b) when the defendant is less 

than 21 years old at the time 

of conviction or entry of a plea 

of guilty; or

(c) when a defendant is a first 

offender in that he or she has 

not heretofore been sentenced 

as an adult.
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so on the record.7 Id.; see also Commonwealth v. Flowers, 950 A.2d 

330, 332-333 (Pa.Super. 2008).

Finally, technical non-compliance with Rule 702(A)(2) might be 

rendered harmless when the sentencing court elicits sufficient information 

during the colloquy to substitute for a PSI. Flowers, 950 A.2d at 333 

(citation omitted). A court’s previous contact with an appellant, however, 

does not approach the level of thoroughness afforded by a properly-crafted 

PSI report.8 Id.

 

(3) The pre-sentence investigation report 

shall include information regarding the 

circumstances of the offense and the 

character of the defendant sufficient to 

assist the judge in determining sentence.

(4) The pre-sentence investigation report 

shall also include a victim impact 

statement as provided by law.

7 We note that in its Rule 1925(a) opinion, the sentencing court stated that it 

dispensed with the PSI report because appellant waived it. The record, 

however, reflects that appellant waived the PSI report in his original 

sentencing hearing because of the negotiated plea and the agreement to 

probation, as opposed to incarceration. (Notes of testimony, 1/4/12 at 8.)

8 A properly crafted PSI report must address at least the following factors:

(A) a complete description of the offense and the 

circumstances surrounding it, not limited to 

aspects developed for the record as part of the 

determination of guilt; 

(B) a full description of any prior criminal record of 

the offender; 
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(C) a description of the educational background of 

the offender; 

(D) a description of the employment background of 

the offender, including any military record and 

including his present employment status and 

capabilities; 

(E) the social history of the offender, including 

family relationships, marital status, interests 

and activities, residence history, and religious 

affiliations; 

(F) the offender’s medical history and, if desirable, 

a psychological or psychiatric report; 

(G) information about environments to which the 

offender might return or to which he could be 

sent should probation be granted;

(H) supplementary reports from clinics, institutions 

and other social agencies with which the 

offender has been involved;

(I) information about special resources which 

might be available to assist the offender, such 

as treatment centers, residential facilities, 

vocational training services, special educational 

facilities, rehabilitative programs of various 

institutions to which the offender might be 

committed, special programs in the probation 

department, and other similar programs which 

are particularly relevant to the offender’s 

situation;

(J) a summary of the most significant aspects of 

the report, including specific recommendations 

as to the sentence if the sentencing court has 

so requested.

Flowers, 950 A.2d at 333 n.2 (citations omitted).
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Indeed, this Court has held expressly that even 

where repeated probation violation hearings have 

rendered the sentencing judge substantially familiar 

with the defendant’s criminal history, a PSI report 

remains necessary. See Commonwealth v. 

Carter, 336 Pa. Super. 275, 485 A.2d 802, 804 (Pa. 

Super. 1984) (vacating judgment of sentence based 

upon trial judge’s failure to obtain a PSI report 

following second Gagnon[

9

] revocation hearing). 

This mandate springs from the imperative of 

individualized sentencing; “[e]ach person sentenced 

must receive a sentence fashioned to his or her 

individual needs.” Id. To achieve that objective, the 

trial judge, before imposing sentence, even on a

probation or parole revocation, must actively explore 

the defendant’s character and his potential response 

to rehabilitation programs. See id. (admonishing 

that the responsibility of a sentencing judge to 

consider the character of the defendant in 

conjunction with the offense “is no less urgent where 

the defendant comes before the court as a probation 

violator”). Indeed, given the defendant’s failure to 

respond to the original sanction of probation, the 

need for scrutiny of his character and underlying 

social influences is arguably enhanced, confirming 

the need of a current PSI report contoured to reflect 

the defendant’s most recent offenses. Such a report 

is invaluable to informed sentencing and cannot be 

duplicated by the trial court’s “unconfirmed assertion 

of familiarity with the [defendant’s] prior record[.]”

Flowers, 950 A.2d at 333-334 (citation omitted).

Here, although this court has great respect for the experience of the 

learned sentencing judge, and although we can understand her frustration 

with appellant, we cannot find that the record contains sufficient information 

 

9 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process requires 

appellant to be given preliminary (Gagnon I) and final (Gagnon II) hearing 

prior to revoking probation).
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to have enabled her to fashion a sentence to meet appellant’s individual 

needs, to guard against recidivism, to promote rehabilitation, and to balance 

the interests of society in preventing future criminal conduct by the 

defendant against the possibility of rehabilitating the defendant outside of 

prison. Consequently, we vacate judgment of sentence and remand for 

re-sentencing on the basis of a PSI report or, alternatively, a thorough 

colloquy that sets forth the information that a PSI report would otherwise 

provide.

Judgment of sentence vacated. Case remanded with instructions. 

Jurisdiction relinquished.

Mundy, J. joins the Memorandum.

Jenkins, J. files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2016