J-S68005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM C. LONGO,

Appellant No. 1032 WDA 2015

Appeal from the Judgment of Sentence June 8, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0005635-2009, CP-02-CR-0005696-

2009

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, William C. Longo, appeals from the judgment of sentence 

entered on June 8, 2015, following the revocation of his probation. We 

affirm.

The trial court set forth the relevant facts and procedural background 

of this matter as follows:

[Appellant] was charged at CC 200905635 with Theft by 

Unlawful Taking-Movable Property, Receiving Stolen Property 

and Access Device Fraud[;] and at CC 200905696 with Forgery, 

Access Device Fraud, Receiving Stolen Property and Criminal 

Conspiracy. He appeared before this [c]ourt on October 27, 

2009 and entered a general plea of guilty to all charges. He was 

sentenced to a term of imprisonment of nine (9) to 18 months at 

the Forgery charge and paroled forthwith. He was also 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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sentenced to two (2) consecutive terms of probation of two (2) 

years each. No Post-Sentence Motions were filed and no direct 

appeal was taken.

[Appellant] next appeared before this [c]ourt on August

28, 2012 for a probation violation hearing. Upon finding that 

[Appellant] was a convicted violator, this [c]ourt revoked the 

previous terms of probation and re-imposed an additional two 

(2) year term of probation. Again, no Post-Sentence Motions 

were filed and no direct appeal was taken.

[Appellant] again appeared before this [c]ourt on July 6, 

2015 [sic][1]for a probation violation hearing. Upon finding that 

[Appellant] was a convicted violator and was also in total 

technical noncompliance, this [c]ourt revoked the previous term 

of probation and imposed consecutive terms of imprisonment of 

three and one half (3 1/2) to seven (7) years at CC200905635 

and 33 months to 66 months at CC200905696.

Trial Court Opinion, 1/20/16, at 1–2 (footnotes omitted).2

Appellant filed a notice of appeal on July 2, 2015. The trial court 

initially directed Appellant to comply with Pa.R.A.P. 1925 by August 28, 

2015, but, upon Appellant’s motion, it extended compliance to October 15, 

2015. Both Appellant and the trial court complied with Rule 1925.

Appellant raises the following issues on appeal:

I. Whether the revocation sentences imposed at CC 

200905635 and CC 200905696 were manifestly excessive, 

____________________________________________

1

 The trial court erroneously refers to the date of probation revocation and 

sentencing as July 6, 2015. The correct date was June 8, 2015.

2

 On June 18, 2015, Appellant filed a motion to reconsider sentence, which 

the trial court granted in part on July 6, 2015, correcting the sentence 

imposed at CC200905696 from three and one-half to seven years imposed 

on June 8, 2015, to thirty-three to sixty-six months, retroactive to June 8, 

2015.
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unreasonable, and an abuse of discretion where the trial 

court failed to consider the personal history, character and 

rehabilitative needs of [Appellant] as required by 42 

Pa.C.S.A § 9721(B) and 42 Pa.C.S.A. § 9725?

II. Whether the trial court relied upon misinformation and/or 

incorrect facts in resentencing [Appellant] at CC 

200905635 and CC 200905696?

Appellant’s Brief at 5.

Appellant argues that his sentence was excessive and that the 

sentencing court failed to consider his personal history, character, and 

rehabilitative needs. These issues are challenges to the discretionary 

aspects of Appellant’s sentence. Commonwealth v. Malovich, 903 A.2d 

1247 (Pa. Super. 2006); Commonwealth v. Lutes, 793 A.2d 949 (Pa. 

Super. 2002).

As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa. Super. 2013), our scope of review following the revocation of probation 

is not limited solely 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. 

Rather, it also includes challenges to the discretionary aspects of the 

sentence imposed. Specifically, we unequivocally held that “this Court’s 

scope of review in an appeal from a revocation sentencing includes 

discretionary sentencing challenges.” Id. at 1034. Further, as we have long 

held, the imposition of sentence following the revocation of probation is 

vested within the sound discretion of the trial court, which, absent an abuse 
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of that discretion, will not be disturbed on appeal. Commonwealth v. 

Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

To effectuate this Court’s jurisdiction when challenging the 

discretionary aspects of a sentence, Appellant must satisfy a four-part test 

by (1) preserving the issue in the court below, (2) filing a timely notice of 

appeal, (3) including a Pa.R.A.P. 2119(f) statement in his appellate brief, 

and (4) raising a substantial question for our review. Commonwealth v. 

Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (quoting Commonwealth v. 

Tejada, 107 A.3d 788, 797 (Pa. Super. 2015), appeal denied, 119 A.3d 351 

(Pa. 2015)).

Applying the four-part analysis to the instant case, we find that 

Appellant (1) preserved the issue; (2) timely filed his notice of appeal; and 

(3) complied with Pa.R.A.P. 2119(f) by including in his brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of his sentence. Appellant’s Brief at 18–24. 

Acknowledging that “the determination of what constitutes a substantial 
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question must be evaluated on a case-by-case basis,” Commonwealth v. 

Johnson, 125 A.3d 822, 826 (Pa. Super. 2015), we note that this Court has 

held that an excessiveness claim—in conjunction with an assertion that the 

court failed to consider mitigating factors—raises a substantial question. 

See, e.g., Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 

2014) (within excessiveness claim, substantial question is raised when the 

appellant sufficiently articulates the manner in which the sentence violates 

either a specific provision of the Sentencing Code or a particular 

fundamental norm underlying the sentencing process). Therefore, we 

proceed to address the merits of Appellant’s issues.

In his first issue, Appellant asserts that the trial court failed to consider 

any of the assessments and evaluations provided by the State Intermediate 

Punishment Program. Appellant’s Brief at 31. Appellant contends, instead, 

the trial court focused exclusively on the “length and volume” of Appellant’s 

criminal history. Id. Appellant also suggests that he exhibited motivation 

for lifestyle change, had shown himself to be a responsible worker while 

confined in jail, and now had the requisite family support from his girlfriend 

and infant son “to turn his life around.” Id. at 33. Thus, he argues that his 

sentence was excessive.

Prior to imposing sentence upon revocation of probation, the trial court 

stated as follows:

First off, the 16 months that you’ve been drug free, I cannot 

really give you a lot of credit since you’ve been incarcerated 
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during those months, although I do understand it is sometimes 

possible to get drugs while you’re incarcerated.

You’re totally, and have been since 2004, technically noncompliant. You don’t report, you don’t make any efforts to pay 

into the court cases, you don’t give samples of urine.

In 2009 I had you on four cases. I revoked your 

probation, and I gave you a new term of probation, and within 

one month, one month of that, you acquired new charges.

I’ve had you on regular supervision. I’ve given you JRS 

plans to help you with your rehabilitation. I had you on house 

arrest. You are now a convicted violator for three or four cases 

in front of Judge Lazzara.

Judge Cashman has you on 15 violations. Today right now 

you have 26 active probations.

You win. You’ve worn me down. I don’t think anybody’s 

going to help you.

I thought an interesting side note, that you went out, 

spent money on pornography when you were in placement.

* * *

Prior incarceration did no good. I’ve seen no evidence of 

rehabilitation. And if you look over your crimes, there are some 

crimes of greed and not need.

N.T., 6/8/15, at 9–10, 11.

In Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), the 

Pennsylvania Supreme Court reversed our misapplication of sentencing 

provisions when we vacated the common pleas court’s imposition of the 

judgment of sentence following revocation of probation therein. Our High 

Court explained that we had given insufficient deference to the revocation 

court’s imposition of the sentence following the revocation of probation, and 
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it reinstated Mr. Pasture’s judgment of sentence. The Court explained that 

in initial sentencing proceedings, a trial court has broad discretion in 

sentencing a defendant, and concomitantly, “the appellate courts utilize a 

deferential standard of appellate review in determining whether the trial 

court abused its discretion in fashioning an appropriate sentence.” Id. at 

27. In particular, the Supreme Court noted that a sentencing court enjoys 

“an institutional advantage to appellate review, bringing to its decisions an 

expertise, experience, and judgment that should not be lightly disturbed.” 

Id. (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)). 

The Pasture Court expanded on its view of institutional advantage, as 

follows:

The sentencing court’s institutional advantage is, perhaps, more 

pronounced in fashioning a sentence following the revocation of 

probation, which is qualitatively different than an initial 

sentencing proceeding. At initial sentencing, all of the rules and 

procedures designed to inform the court and to cabin its 

discretionary sentencing authority properly are involved and play 

a crucial role. However, it is a different matter when a 

defendant reappears before the court for sentencing proceedings 

following a violation of the mercy bestowed upon him in the form

of a probationary sentence. For example, in such a case, 

contrary to when an initial sentence is imposed, the Sentencing 

Guidelines do not apply, and the revocation court is not cabined 

by Section 9721(b)’s requirement 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. See 

Commonwealth v. Reaves, 592 Pa. 134, 150, 923 A.2d 1119, 

1129 (2007) (citing 204 Pa. Code. § 303.1(b) (Sentencing 

Guidelines do not apply to sentences imposed as result of 

revocation of probation)).
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Upon revoking probation, “the sentencing alternatives 

available to the court shall be the same as were available at the 

time of initial sentencing, due consideration being given to the 

time spent serving the order of probation.” 42 Pa.C.S. § 

9771(b). Thus, upon revoking probation, the trial court is 

limited only by the maximum sentence that it could have 

imposed originally at the time of the probationary sentence, 

although once probation has been revoked, the court shall not 

impose a sentence of total confinement 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. § 9771(c).

* * *

[F]ollowing revocation, a sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or 

specifically reference the statutes in question. Simply put, 

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. 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, particularly where, 

as here, the trial judge had the benefit of a PSI during the 

initial sentencing proceedings. See Walls, 592 Pa. at 574 n. 

7, 926 A.2d at 967 n. 7 (“Where PSI exists, we shall continue to 

presume that the sentencing judge was aware of the relevant 

information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.”).

* * *
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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 27–29 (footnotes omitted) (emphasis added).

Herein, the trial court apparently was aware of more information than 

defense counsel, as it possessed the most recent PSI, which was dated 

August 15, 2014. N.T., 6/8/15, at 2. The court advised defense counsel 

that it had reviewed the report; counsel admitted that she was not aware of 

any PSI reports. Id. at 3. The trial court then offered to give defense 

counsel a copy of the report. Id. Thus, we can presume that the trial court 

was “aware of the relevant information regarding [Appellant’s] character and 

weighed those considerations along with mitigating statutory factors.” 

Pasture, 107 A.3d at 28.

Furthermore, Appellant’s parole officer, Kenneth Walls, testified that 

Appellant was “non-compliant with just about everything in terms of the 

conditions of community supervision.” N.T., 6/8/15, at 2. In his two cases, 

Appellant owed over $3,700 in restitution; Appellant last made a payment in 

the amount of $10.00 on April 12, 2012, in one case, and $50.00 on August 

23, 2010, in the other. Id.

Defense counsel explained to the court that Appellant had been 

evaluated for the Pennsylvania Intermediate Punishment Program (“IP”) on 
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January 5, 2015, and was found “to be appropriate.” N.T., 6/8/15, at 5, 6. 

Counsel apprised the court that Appellant had been a long-time drug user 

but presently was clean and sober. Id. at 6. Counsel described all of the 

tests and scales utilized in assessing Appellant for the IP program. The 

court also listened to Appellant’s own proffer regarding his past and present 

rehabilitative needs.

The record reveals that the trial court possessed a multitude of 

information relevant to Appellant. Considering the record as a whole, we 

conclude that the court rendered a meaningful consideration of all of the 

factors bearing upon Appellant’s sentencing, and we reject Appellant’s claim. 

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003) 

(record as a whole must reflect court’s meaningful consideration of 

sentencing factors).

Appellant’s second issue asserts that the trial court relied upon 

misinformation and/or incorrect facts in resentencing him. This claim is 

based on the court’s comment, “And in my heart I know you have 

committed other offenses for which you were not arrested, which people did 

not report you with.” N.T., 6/8/15, at 10–11. In support of this claim, 

Appellant cites multiple cases, all of which are distinguishable. For example, 

in Commonwealth v. Sypin, 491 A.2d 1371 (Pa. Super. 1985), the 

sentencing court suggested men like the appellant were responsible for 

children’s disappearances and deaths, but he was not charged in connection 
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with the disappearance or death of any child. Id. at 1372. The Sypin

Court, however, noted the fact that the sentencing judge therein failed to 

consider the appellant’s history of mental illness. Id. at 1375. Most 

importantly, Sypin, and the other cases cited by Appellant, involved matters 

regarding the application of Sentencing Guidelines, a consideration not 

present herein.

That is not to say that a sentencing court may rely upon an 

impermissible factor in sentencing. It has long been clear that a sentence is 

invalid if it appears from the record that the sentencing court relied on an 

impermissible consideration. See e.g., Commonwealth v. Bethea, 379 

A.2d 102 (Pa. 1977) (sentence invalid if it appears from the record that 

the trial court relied in whole or in part upon impermissible factor). That 

concern is not present in the instant case. The instant trial court’s comment 

was made merely in passing, in response to Appellant’s denial regarding his 

purchase of pornography while he was in placement. N.T., 6/8/15, at 10.

A review of the record indicates the court did not rely on an 

impermissible factor in sentencing Appellant. The court correctly considered 

the record as a whole, including Appellant’s history while on probation, 

Appellant’s character, and the circumstances surrounding Appellant’s most 

recent probation violation. The court concluded that incarceration for the 

specified time was appropriate because Appellant’s conduct indicated he was 

likely to continue in the path he had chosen over a period of years, despite 
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the court’s past grants of leniency. The record adequately supports the 

court’s decision. Accordingly, there is no reason to disturb the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016