J-S16038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY MCDOWELL,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1768 EDA 2019

Appeal from the Judgment of Sentence Entered June 7, 2019

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004078-2007

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: April 9, 2020

Gregory McDowell (“McDowell”) appeals from the judgment of sentence 

imposed following the revocation of his probation. We affirm.

On February 19, 2008, McDowell entered a negotiated guilty plea to 

rape by forcible compulsion, unlawful contact with a minor, and corruption of 

minors, arising out of his sexual assault of a minor female.

1

 Following a 

Megan’s Law assessment, the trial court sentenced McDowell, in accordance 

with the plea agreement, to an aggregate term of 4 to 8 years in prison, 

followed by 8 years of probation.

McDowell began supervision in December 2011, when he was released 

from prison. McDowell subsequently committed several technical violations of 

the conditions of his supervision. On July 17, 2015, the trial court continued 

McDowell’s probation, with the addition of new conditions.

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1 See 18 Pa.C.S.A. §§ 3121(a)(1), 6318(a)(1), 6301(a)(1).
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In February 2017, while on probation, McDowell was arrested and 

charged with various offenses arising out of a sexual assault. Following a 

bench trial, McDowell was convicted of rape of a substantially impaired person, 

sexual assault, and indecent assault.2 The trial court sentenced McDowell to 

an aggregate term of 121⁄2 to 25 years in prison.

The trial court conducted a Gagnon II3 hearing on June 4, 2019, during 

which McDowell was found to be in violation of his probation. As a result of 

the new conviction, the trial court revoked McDowell’s probation and 

sentenced him to an aggregate term of 81⁄2 to 17 years in prison. The court 

also ordered the sentences to run consecutive to the sentence imposed for the 

rape case giving rise to the violation.

McDowell filed a timely Motion to Reconsider his revocation sentence.4 

McDowell subsequently filed a timely Notice of Appeal and a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

McDowell now raises the following issues on appeal:

1. Was not the [revocation] court’s imposition of an eight and onehalf (81⁄2) to seventeen (17) year sentence of incarceration,

consecutive to a twelve and one-half (121⁄2) to twenty-five (25) 

year[] sentence on another case, for a violation of probation[,] an 

abuse of discretion where the court violated the requirements of 

42 Pa.C.S.[A.] §[]9721(b) of the Sentencing Code by failing to 

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2 See 18 Pa.C.S.A. §§ 3121(a)(4), 3124.1, 3126(a)(1).

3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4 The revocation court did not act on McDowell’s Motion to Reconsider prior to 

his filing of the Notice of Appeal.
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give individualized consideration to [McDowell’s] personal history, 

rehabilitative needs or background, and without explaining how, 

as a matter of law, this sentence was the least stringent one 

adequate to protect the community and to serve the rehabilitative 

needs of [McDowell]?

2. Did not the [revocation] court err and abuse its discretion by 

sentencing [] McDowell to an excessive period of incarceration?

Brief for Appellant at 4.

We will address McDowell’s claims together, as they are related. First, 

McDowell argues that the revocation court failed to consider the factors 

identified in Section 9721(b) of the Sentencing Code, including the gravity of 

the offense, the need for public protection, and his need for rehabilitation. Id.

at 12. According to McDowell, the revocation court focused exclusively on the 

seriousness of the crimes underlying the revocation of his probation, but failed 

to consider his background. Id. at 14. McDowell also points out that he was 

arrest-free for a period of 11 years, and was largely compliant with state 

parole. Id. at 15. 

In his second claim, McDowell argues that his sentence is excessive, and 

that the revocation court failed to consider his rehabilitative needs or 

mitigating circumstances. Id. at 16-17.

McDowell’s claims challenge the discretionary aspects of his sentence, 

from which there is no absolute right to appeal. See Commonwealth v. 

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). In considering such a 

challenge, 
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[w]e conduct a four-part analysis to determine: (1) whether the 

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 the 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.A. § 9781(b).

* * *

The determination of what constitutes a substantial question must 

be evaluated on a case-by-case basis. 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 of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Here, McDowell filed a timely Notice of Appeal, preserved his claim in 

his Motion for Reconsideration, and included a separate Rule 2119(f) 

Statement in his brief. In his Rule 2119(f) Statement, McDowell asserts that 

his revocation sentence, which was imposed consecutively to the sentence for 

the offense that gave rise to his probation revocation, is manifestly

unreasonable and excessive. See Brief for Appellant at 7-9. Additionally, 

McDowell claims that the revocation court failed to adequately consider 

sentencing criteria set forth in Section 9721(b). McDowell’s argument raises 

a substantial question. See Commonwealth v. Derry, 150 A.3d 987, 994-

95 (Pa. Super. 2016) (concluding that a challenge based on a revocation 

court’s failure to consider Section 9721(b) factors presents a substantial 
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question); Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 

2003) (concluding that claims that revocation court, after revoking probation, 

imposed a sentence that was grossly disproportionate to the crimes

committed, failed to consider appellant’s background and the nature of the 

offenses, and failed to provide adequate reasons for the sentence on the 

record raised a substantial question). Thus, we will consider the merits of 

McDowell’s 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 that 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) (citation 

omitted).

The reason for this broad discretion and deferential standard 

of appellate review is that the sentencing court is in the best 

position to measure various factors and determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it. Simply stated, the sentencing 

court sentences flesh-and-blood defendants and the nuances of 

sentencing decisions are difficult to gauge from the cold transcript 

used upon appellate review. Moreover, the sentencing court 

enjoys an institutional advantage to appellate review, bringing to 

its decisions an expertise, experience, and judgment that should 

not be lightly disturbed.

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
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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 

appears 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.A. § 9721.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations and 

quotation marks omitted).

Upon revocation of probation, a sentencing court may choose from any 

of the sentencing options that existed at the time of the original sentence, 

including incarceration. 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.” Id. § 9771(c).

Moreover, “[i]n every case in which the court ... resentences an offender 

following revocation of probation, ... the court shall make as part of the record, 

and disclose in open court at the time of sentencing, a statement of the reason 

or reasons for the sentence imposed.” Id. § 9721(b); see also Pa.R.Crim.P. 

708(D)(2) (providing that “[t]he judge shall state on the record the reasons 
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for the sentence imposed.”). However, following the revocation of probation, 

a sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statutes in question. See 

Pasture, 107 A.3d at 28 (stating that “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.”). 

Here, the revocation court sentenced McDowell to a term of 6 to 12 

years in prison for his unlawful contact with a minor conviction, and a 

consecutive term of 21⁄2 to 5 years for his corruption of minors conviction. 

McDowell’s post-revocation sentence is within statutory bounds, and is based 

on a new criminal charge. See 42 Pa.C.S.A. § 9771(b), (c).

Further, in its Opinion, the revocation court stated that “[b]y 

participating in additional criminal activity, [McDowell] demonstrated that he 

was not amenable to probation and that he was a menace to society....” Trial 

Court Opinion, 8/13/19, at 4. The revocation court also pointed out that 

McDowell had again been convicted of rape. See id. The revocation court 

rejected McDowell’s assertion that it had failed to consider the sentencing 

factors set forth in Section 9721(b), and explained that it had “reviewed the 

sentencing reports, the statutory maximum for each conviction, the facts of 

the cases, [McDowell’s] individual circumstances and background, and all 

other legally permissible and pertinent factors....” Id. at 6-7; see also id. at 
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6 (citing N.T., 6/6/19, at 17-20, wherein the court explained that it had 

considered the relevant sentencing factors).5

The record confirms that the revocation court was provided with 

sufficient information to make a fully informed sentencing decision following 

the revocation of McDowell’s probation, and that the court adequately 

considered the relevant sentencing factors. Additionally, McDowell’s 

aggregate post-revocation sentence is not manifestly excessive, and “the 

court was free to impose the sentence consecutively to his other sentences 

for the crimes he committed while on probation.” Commonwealth v. 

Swope, 123 A.3d 333, 341 (Pa. Super. 2015). Discerning no abuse of 

discretion by the trial court, we will not disrupt McDowell’s sentence on appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/20

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5 We note that McDowell failed to include the transcripts from his revocation 

sentencing in the certified record. See Commonwealth v. Holston, 211 

A.3d 1264, 1276 (Pa. Super. 2019) (explaining that “the responsibility rests 

upon the appellant to ensure that the record certified on appeal is complete 

in the sense that it contains all of the materials necessary for the reviewing 

court to perform its duty.”).