J-S29030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWIGHT RUTLEDGE

Appellant No. 2038 EDA 2016

Appeal from the Judgment of Sentence dated September 18, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013043-2008

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

MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 29, 2017

Appellant Dwight Rutledge appeals from the judgment of sentence 

imposed after the trial court revoked his probation on September 18, 2012. 

We affirm.

We recount the facts and history as set forth in the trial court’s 

opinion:

On June 22, 2008, Appellant and his girlfriend, Lashakeen 

Spears-Garrison (“Spears”) began arguing about paying rent for 

the apartment at which they were co-tenants. Spears called 

911, prompting two Philadelphia Police Department (“PPD”) 

officers to respond to the disturbance. The officers attempted to 

defuse the situation by talking to both Appellant and Spears, 

advised Spears to apply for a protection order if she wanted 

Appellant to be removed from the apartment, and then left. This 

intervention failed to have the intended effect, however, as 

Spears and Appellant continued to quarrel, culminating with 

Appellant menacing Spears with a loaded handgun and 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S29030-17

- 2 -

threatening to kill her. Spears then fled the apartment, found 

the aforementioned officers in the street outside, and told them 

about what had just transpired. The officers reentered the 

apartment and, following direction from Spears, discovered a 

loaded, silver-and-black 9mm semiautomatic handgun in 

Appellant’s dresser, as well as a small amount of marijuana in 

one of Appellant’s shirts inside a closet. Consequently, Appellant 

was arrested.

Appellant was then held in pre-sentence detention and, on 

January 5, 2009, filed a Petition for Release on Nominal Bail, 

which this Court granted on February 3, 2009. Trial was then 

scheduled for May 5, 2009; however, Appellant failed to appear 

on that date, prompting th[e trial c]ourt to issue a bench 

warrant. This warrant was lifted on May 19, 2009, and trial was 

rescheduled for July 13, 2009. The Commonwealth then 

requested a continuance, which this Court granted on July 13, 

2009. Appellant waived his right to a jury trial and, after a 

bench trial on September 14, 2009, th[e trial c]ourt found him 

guilty of Unlawful Possession of a Firearm,1 a second-degree 

felony. Appellant was then released, pending sentencing on 

November 19, 2009, but failed to appear on that date, causing 

th[e trial c]ourt to issue another bench warrant. Appellant was 

subsequently apprehended and, on January 7, 2010, th[e trial 

c]ourt lifted the bench warrant and granted the Commonwealth’s 

Motion to Revoke/Release and Forfeit Bail. On March 16, 2010, 

[the trial c]ourt sentenced Appellant to a term of time served to 

23 months, along with five years of probation, and ordered him 

to be paroled immediately.

1 18 Pa. C.S. § 6105(a)(1).

Appellant quickly chose not to comply with the terms of his 

release, failing drug tests on two occasions, being extremely 

uncooperative, and going to great lengths to circumvent 

mandatory reporting and drug testing. Another bench warrant 

was issued on November 29, 2010, which was replaced by a 

detainer order on December 7, 2010. On December 21, 2010, 

th[e trial c]ourt lifted the detainer order and continued 

Appellant’s parole.

Throughout all of this, Appellant and Spears had apparently 

maintained their romance and continued to live together; 

however, the passage of time had done nothing to diminish the 
J-S29030-17

- 3 -

volatility of their relationship as, on April 27, 2011, Appellant 

was arrested after allegedly stabbing Spears multiple time[s] in 

her thighs and arms with a kitchen knife. A bench warrant was 

issued the following day, due to this technical violation of 

Appellant’s probation, which was replaced by a detainer order on 

May 6, 2011. On May 24, 2011, this Court ordered that 

Appellant’s Violation of Probation (“VOP”) hearing would be 

continued until further notice, so as to allow for disposition of the 

criminal case stemming from the April 27, 2011 incident. 

Ultimately, Spears failed to appear in court on April 27, 2012, 

prompting the Commonwealth to nolle pros all of the stabbingrelated charges that had been lodged against Appellant. Th[e 

trial c]ourt then revoked Appellant’s probation on May 25, 2012 

and scheduled his VOP hearing for June 1, 2012. On that date, 

th[e trial c]ourt sentenced Appellant to a term of Time Served to 

23 months’ incarceration, plus three years of probation, ordered 

that he be paroled immediately, and explicitly told him that he 

was not allowed to live with Spears anymore.

Unfortunately, this did not dissuade Appellant from continuing to 

violently lash out at Spears. Less than two weeks later, on 

June 12, 2012, Philadelphia Police Officers Brison and DiGenio 

responded to a domestic incident at Spears’ residence. They 

entered Spears’ apartment building and, hearing a woman 

screaming for help, rushed up the building’s stairs to Spears’ 

third-floor apartment. The door was locked, so the officers 

began banging on it and calling for the apartment’s occupants to 

allow them entry. Spears then yelled for help from inside the 

apartment, and made clear that she was being prevented from 

opening the door, whereupon the officers started banging harder 

and told whoever was inside that they were going to kick in the 

door. At that point, they heard a lot of furniture moving and 

Appellant finally opened the door. Officers Brison and DiGenio 

then subdued Appellant, while Spears was [“completely 

hysterical crying,” “disarrayed,” and] screaming that he had put 

a knife to her. Spears’ clothes were a mess and the furniture in 

the apartment was completely destroyed. [N.T., 7/17/12, at 13-

15.] As recounted to the officers by Spears, Appellant had 

forced his way into her apartment and turned violent when she 

asked him to leave, striking her a number of times, attempting 

to stab her, and holding both Spears and one of her 

grandchildren at knifepoint. Consequently, the officers arrested 

Appellant, after which he was charged with Aggravated Assault, 
J-S29030-17

- 4 -

Simple Assault, Reckless Endangerment of Another Person, and 

Endangering the Welfare of a Child.

Appellant was then brought before th[e trial c]ourt on July 17, 

2012 for yet another VOP hearing. After listening to testimony 

from Officer [Mark] DiGenio, [whose testimony that Spears’ 

screams for help and communication to him that Appellant had 

held a knife to her were admitted over Appellant’s objection, 

N.T., 7/17/12, at 12-14, the trial c]ourt terminated Appellant’s 

parole and revoked his probation, expressing disbelief at the 

situation and telling Appellant:

I couldn’t have been more clear that you should contact 

Spears under no circumstances – you’ve been telling me 

that Spears is crazy. And yet you were there at her 

apartment. You have told me repeatedly that you keep 

being put in jail by her lies and manipulations and mental 

health issues, that’s what you’ve been telling me for years 

and I said to you, “Then you stay away from her.”

Th[e trial c]ourt then ordered a pre-sentence investigation, and 

informed the parties that Appellant would be sentenced after a 

hearing on September 18, 2012.

At that hearing, Appellant vigorously declared his innocence, 

telling th[e trial c]ourt that Spears was a mentally ill drug addict 

whom he cared for and considered to be his wife, but who, in 

spite of this bond, had nevertheless fabricated all of her 

allegations over the years about his violent behavior. Coupling 

this claim with ones about his poor health, as well as the harm 

caused by these “false accusations” to his family and his 

livelihood, Appellant asked th[e trial c]ourt not to give him a 

sentence necessitating time in state prison. . . . [The trial c]ourt 

sentenced Appellant to a term of 5-to-10 years’ incarceration 

due to his technical violation of the probation terms for his 

Unlawful Possession of a Firearm conviction, with credit for time 

served, and ordered him to stay away from Spears upon his 

release from prison. [The sentencing hearing transcript contains 

no objection from Appellant challenging the discretionary aspects 

of his sentence. N.T., 9/18/12, at 18-19.]

Thereafter, Appellant did not appeal this decision; however, he 

did submit a Post-Conviction Relief Act Petition (“PCRA Petition”) 

on April 18, 2013, followed by an Amended PCRA Petition on 
J-S29030-17

- 5 -

February 3, 2015, in which Appellant claimed that his VOP 

hearing counsel had provided ineffective assistance by failing to 

act on Appellant’s timely request that he file such an appeal. 

Accordingly, Appellant requested that he be granted permission 

to both submit post-sentence motions and appeal th[e trial 

c]ourt’s judgment of sentence nunc pro tunc. 

Trial Ct. Op. at 1-5 (internal brackets, citations to the record, ellipses, and 

some quotation marks omitted).

On December 14, 2015, the trial court entered an order scheduling a 

hearing on the PCRA petition for April 25, 2016. On April 25, 2016, the trial 

court granted a motion for continuance and rescheduled the PCRA hearing 

for June 27, 2016. Then --

On June 14, 2016, th[e trial c]ourt granted Appellant’s Amended 

PCRA Petition in part, thereby denying him the chance to file 

untimely post-sentence motions, while reinstating his direct 

appeal rights and giving him 30 days within which to file such an 

appeal.[1] Appellant subsequently filed the instant appeal on 

June 22, 2016[.]

Trial Ct. Op. at 5 (citations to the record omitted). Appellant raises the 

following issues:

[I.] Did the trial court at the VOP hearing err in accepting into 

evidence statements made to a police officer by [A]ppellant’s 

alleged wife/girlfriend because these statements were not 

excited utterances but hearsay?

[II.] Did the trial/PCRA court err in denying [A]ppellant the 

right to file post sentence motions from the VOP/judgment of 

____________________________________________

1 The certified record is therefore unclear as to whether a hearing was ever 

held on the PCRA petition, including on Appellant’s request to reinstate his 

post-sentence rights nunc pro tunc. However, the Commonwealth states in 

its brief to this Court that no evidentiary hearing was held. Commonwealth’s 

Brief at 18.
J-S29030-17

- 6 -

sentence nunc pro tunc because this denied [A]ppellant his right 

to contest the excessiveness of his sentence on appeal?

[III.] Was the sentence imposed by the trial court, which was 5 

to 10 years in state prison, the maximum allowable 

punishment[,] unjust, improper, manifestly unreasonable, and 

an abuse of discretion because the sentence imposed was 

contrary to the fundamental norms which underlie the 

sentencing process?

Appellant’s Brief at 2 (issues reordered).

Admission of Evidence

Appellant contends that “the trial court erred in considering the 

statements made [by Spears] to the police officer.” Appellant’s Brief at 6, 9. 

In particular, Appellant objects to consideration of Spears’ cries for help and 

her assertion that Appellant held a knife to her throat during Appellant’s 

confrontation with her. In Commonwealth v. McFadden, 156 A.3d 299 

(Pa. Super. 2017), we stated:

The admission of evidence is committed to the sound discretion 

of the trial court and an appellate court may reverse only upon a 

showing that the trial court clearly abused its discretion. 

Admissibility depends on relevance and probative value. 

Evidence is relevant if it logically tends to establish a 

material fact in the case, tends to make a fact at issue 

more or less probable, or supports a reasonable inference 

or presumption regarding a material fact. Once evidence 

is found to be relevant, it will be inadmissible only if its 

probative value is substantially outweighed by the danger 

of unfair prejudice or confusion.

“Unfair prejudice” is “a tendency to suggest a decision on an 

improper basis or to divert the jury’s attention away from its 

duty of weighing the evidence impartially.” Pa.R.Evid. 403 cmt. 

. . .
J-S29030-17

- 7 -

A trial court acting as the fact-finder is presumed to know the 

law, ignore prejudicial statements, and disregard inadmissible 

evidence.

156 A.3d at 309 (brackets and most quotation marks and citations omitted).

Preliminarily, we note that the trial court found this issue waived “due 

to insufficient specificity” in a “manifestly deficient Statement of Errors.” 

Trial Ct. Op. at 6. Paragraph 7 of Appellant’s Statements of Errors provided: 

“The trial court erred at the VOP hearing in allowing the hearsay testimony 

of an alleged female know[n] as Karatin Spears (ph) NT 7-17-12 @ 9-17.” 

We disagree with the trial court and find that this challenge sufficiently 

articulates what Appellant alleges to be the trial court’s error, i.e., that the 

testimony that appears at pages 9 to 17 of the notes of testimony for July 

17, 2012, includes alleged hearsay that the trial court erroneously admitted. 

We thus conclude that Appellant has properly preserved this issue for our 

review. See generally Pa.R.A.P. 1925(b)(4).

According to Appellant:

[T]he statement[s] made to the Police Officer were hearsay and 

not excited utterances because the declarant had time to reflect 

when she made these statements and was not under the stress 

of excitement caused by the event. [Appellant is] entitled to a 

new VOP hearing because improper hearsay was admitted at the 

VOP hearing.

Appellant’s Brief at 9. The trial court held that Spears’ statements were 

admissible under an exception to the hearsay rule “which enables a trial 

court to admit ‘excited utterances,’ which are statements relating to a 

startling event or condition, made while the declarant was under the stress 
J-S29030-17

- 8 -

of excitement that it caused.’” Trial Ct. Op. at 7 (citing Pa.R.E. 801(c), 802, 

803(2); Commonwealth v. Stokes, 615 A.2d 704, 712 (Pa. 1992) (quoting 

Commonwealth v. Green, 409 A.2d 371, 373-74 (Pa. 1979))). The trial 

court declared that Ms. Spears’ statements “clearly constituted excited 

utterances, meaning they were admissible and that th[e trial c]ourt properly 

overruled Appellant’s objection.” Id.

Under the Rules of Evidence, “Hearsay is not admissible except as 

provided by these rules, by other rules prescribed by the Pennsylvania 

Supreme Court, or by statute.” Pa.R.E. 802. However, “[c]ommunications 

that are not assertions are not hearsay. These would include questions, 

greetings, expressions of gratitude, exclamations, offers, instructions, 

warnings, etc.” Comment to Pa.R.E. 801 (emphasis added). “The following 

are not excluded by the rule against hearsay, regardless of whether the 

declarant is available as a witness: . . . A statement relating to a startling 

event or condition, made while the declarant was under the stress of 

excitement that it caused.” Pa.R.E. 803(2). “[T]his declaration must be 

made so near the occurrence both in time and place as to exclude the 

likelihood of its having emanated in whole or in part from his reflective 

faculties.” Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013).

Viewed under these standards, this issue merits no relief. The first 

statements in question – Spears’ screams for help – were merely 
J-S29030-17

- 9 -

exclamations and thus are excluded from the definition of hearsay. See

Trial Ct. Op. at 3 (citing N.T., 7/17/12, at 10-11); Pa.R.E. 801 cmt. 

Spears’s second statement – that Appellant had held a knife to her 

throat – was made while police were arresting Appellant. Trial Ct. Op. at 3 

(citing N.T., 7/17/12, at 13). Spears was described as “completely 

hysterical,” “crying, screaming,” and “disarrayed” at the time she made the 

statement. N.T., 7/17/12, at 16. There is no indication in the record that 

Spears’ statement was made in response to a police officer’s question or that 

it “emanated in whole or in part from [her] reflective faculties.” Murray, 83 

A.3d at 157. The trial court was therefore well within its discretion to admit 

Officer DiGenio’s testimony about Spears’ second statement pursuant to the 

excited utterance exception to the hearsay rule. Pa.R.E. 803(2). 

Sentencing

Appellant’s remaining issues relate to his sentencing, and we address 

them together. “A challenge to the discretionary aspects of a sentence is 

not appealable as of right. Therefore, before we may exercise jurisdiction to 

reach the merits of Appellant’s claim, we must verify that Appellant’s appeal 

is properly before this Court[.]” Commonwealth v. Luketic, 162 A.3d 

1149, 1159 (Pa. Super. 2017) (quotation marks, citations, and internal 

brackets omitted).

We will exercise our discretion to consider such a petition only if (1) 

the appellant has filed a timely notice of appeal; (2) he has preserved the 
J-S29030-17

- 10 -

sentencing issue at the time of sentencing or in a motion to reconsider and 

modify his sentence; (3) he presents the issue in a properly framed 

statement in his brief under Rule 2119(f) of the Rules of Appellate 

Procedure, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987); and (4) in the words of Section 9781(b) of the Sentencing Code, 42 

Pa.C.S. § 9781(b), “it appears that there is a substantial question that the 

sentence imposed is not appropriate under this chapter.” See, e.g., 

Commonwealth v. Flowers, 149 A.3d 867, 870 (Pa. Super. 2016); 

Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015), appeal 

denied, 140 A.3d 12 (Pa. 2016); Commonwealth v. Zelinski, 573 A.2d 

569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419 (Pa. 1990).

Here, Appellant filed a timely appeal and included a Rule 2119(f) 

statement in his brief. Thus, he has clearly satisfied the first and third 

requirements. He also has satisfied the fourth requirement by raising a 

“substantial question” regarding his sentence. We have explained: 

A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the 

sentencing code or is contrary to the fundamental norms of the 

sentencing process. . . . Thus, a sentencing court abuses its 

discretion when it considers the criminal act, but not the criminal 

himself. The Sentencing Code prescribes individualized 

sentencing by requiring the sentencing court to consider the 

protection of the public, the gravity of the offense in relation to 

its impact on the victim and the community, and the 

rehabilitative needs of the defendant, and prohibiting a sentence 

of total confinement without consideration of the nature and 

circumstances of the crime, and the history, character, and 

condition of the defendant.
J-S29030-17

- 11 -

Luketic, 162 A.3d at 1160 (quotation marks, brackets, and citations 

omitted). “[A] substantial question that the sentence was not appropriate 

under the Sentencing Code may occur even where a sentence is within the 

statutory limits.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. 

Super.) (citation omitted), appeal denied, 13 A.3d 475 (Pa. 2010). 

According to Appellant’s Rule 2119(f) statement, “the sentence imposed was 

contrary to the fundamental norms which underlie the sentencing process” 

and was “not appropriate.” Appellant’s Brief at 3. Appellant has thus raised 

a substantial question. See Luketic, 162 A.3d at 1160; Crump, 995 A.2d 

at 1282.

With respect to the second requirement, the sentencing hearing 

transcript contains no objection from Appellant challenging the discretionary 

aspects of his sentence. N.T., 9/18/12, at 18-19. The docket sheet 

accompanying the certified record does not indicate that any post-sentence 

motion was filed. In his amended PCRA petition, Appellant claimed trial 

counsel was ineffective for failing to file this requested post-sentence motion 

and requested reinstatement of his post-sentence rights. Am. PCRA Pet., 

2/3/15, at 2 ¶ 4.a. & ad damnum clause; Mem. in Supp. of Am. PCRA Pet., 

2/3/15, at 1; Trial Ct. Op. at 5; see Commonwealth v. Fransen, 986 A.2d 

154 (Pa. Super. 2009) (PCRA petitioner-appellant must plead in PCRA 

petition that he was deprived of right to file post-sentence motion in order to 

be entitled to relief on that issue). The record clearly reflects that Appellant 
J-S29030-17

- 12 -

was granted permission to file a direct appeal nunc pro tunc and has done so 

in a timely manner, but the PCRA court did not reinstate Appellant’s right to 

file a post-sentence motion nunc pro tunc. Appellant contends that it was 

error for the trial court to not reinstate his right to file a post-sentence 

motion.2

We conclude that we need not reach this reinstatement issue because 

even if Appellant had been permitted to file a post-sentence motion nunc pro 

tunc, he would not be entitled to relief. Cf. Commonwealth v. Griffin, 65 

A.3d 932, 936 (Pa. Super. 2013) (remanding to allow the record to be 

supplemented to include post-sentence motion was unnecessary, because 

appellant’s allegation that his sentence failed to take into account his 

rehabilitative needs under 42 Pa.C.S. § 9721(b) and thus was manifestly 

excessive entitled him to no relief, even if properly preserved via postsentence motion), appeal denied, 76 A.3d 538 (Pa. 2013). We reach that 

conclusion because a trial court has broad discretion when imposing a 

sentence. We find no abuse of that discretion here.

We have frequently noted that we review only to determine whether 

there was an abuse of discretion:

____________________________________________

2 The Commonwealth argues Appellant waived the sentencing issue by 

failing to raise it at his VOP sentencing hearing or by not filing a postsentence motion; it does not argue that Appellant waived the issue because 

the PCRA court denied him permission to file a post-sentence motion nunc 

pro tunc. Commonwealth’s Brief at 7.
J-S29030-17

- 13 -

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

marks and citations omitted). When probation is revoked, the Sentencing 

Code states that “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). Total confinement may be imposed only if:

(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).

[A] trial court does not necessarily abuse its discretion in 

imposing a seemingly harsher post-revocation sentence where 

the defendant received a lenient sentence and then failed to 

adhere to the conditions imposed on him. 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.
J-S29030-17

- 14 -

Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014) (citation 

omitted).

Appellant asserts:

The sentence imposed by the trial court, which was 5 to 10 years 

in state prison, the maximum allowable sentence, was unjust, 

improper, manifestly unreasonable, and an abuse of discretion

because the trial court failed to consider [Appellant’s] age, 

rehabilitative needs and family history[.] The trial court in 

imposing sentence considered only [Appellant]’s criminal history 

including, improperly, arrests that did not lead to convictions . . . 

[T]here was no reason stated on the record to impose the 

maximum state sentence especially in light of [Appellant]’s 

medical conditions which include congestive heart failure, 

hypertension, diabetes and anxiety. . . . The [trial] court[] not 

only violated, 42 Pa.[C.S. §] 9771(b)[-](c) in imposing its 

sentence of total confinement, [but it] did not consider any of 

the factors required by 42 Pa.[C.S. §] 9721(b).

Appellant’s Brief at 7-8 (emphasis omitted).

In response to this argument in the trial court, the court stated:

Th[e trial c]ourt found [Appellant’s] excuses and arguments to 

be utterly lacking, responding:

You know, family members will try to stand by and support 

loved ones in relationships that have addictions and mental 

health problems, but that support doesn’t always end up in 

the police arriving at the scene with the victim stabbed and 

barricades and arrests. So, the kind of support that, 

whatever is happening, it always ends up with the police 

there, at least the cases that you and I have had over and 

over again, with Spears being stabbed and guns and 

knives being involved, and her in a state of utter, complete 

panic, and you know, she’s crying and she’s a mess. It’s 

absolutely not normal.

Every time we’ve been together, you’ve told me this same 

story. I’ve known about your medical conditions. I’m 

trying to take your word for it about Spears manipulating 

you. Over and over again, I’ve -- the guidelines way back 
J-S29030-17

- 15 -

when for Unlawful Possession of a Firearm were 48 to 60 

months. You know what I’ve been doing. And at that last 

listing, on June 1, 2012, we had a very, very clear 

discussion that you were not to have any contact with 

Spears, and the police reports indicate that it was a very 

chaotic and violent scene at her house 11 days later. 

Independent witnesses came in about a week and a half 

after it. I am very concerned for the safety of this victim. 

You have a history now of 10 arrests, three convictions, 

four commitments, five violations, three revocations, and 

you were arrested for a major felony, with I guess the 

same victim as before, a week and a half after I sentenced 

you. For all these reasons, I can no longer take any 

chances keeping you in county.

Appellant’s allegation that th[e trial c]ourt committed an abuse 

of discretion regarding his revocation sentence simply has no 

basis in reality, given Appellant’s disturbingly consistent 

brutality, volatile relationship with Spears, and utter disregard 

for the probationary requirements that had been imposed upon 

him by th[e trial c]ourt. . . . [The trial court] gave Appellant 

multiple chances to avoid significant terms of incarceration, 

sentencing him to time served on two separate occasions and 

instructing him to stay away from the victim Ms. Spears. It was 

th[e trial c]ourt’s hope that Appellant would heed the call of 

reason after being shown such leniency, especially given its 

coupling with the threat of serious consequences for 

noncompliance. Instead, Appellant’s actions proved to th[e trial 

c]ourt that he posed a serious, clear-and-present danger to 

Spears and her family members. Consequently, in order to both 

punish Appellant for his violent intransigence and to protect 

Spears, as well as the public at-large, th[e trial c]ourt 

appropriately exercised its discretionary authority by sentencing 

Appellant to the statutory maximum for a second-degree felony.

Trial Ct. Op. at 4, 9-10 (footnote omitted; some formatting added) (quoting 

N.T., 9/18/12, at 10-11, 17-18).

There was no abuse of discretion. Appellant’s argument that “[t]he

trial court in imposing sentence considered only [Appellant]’s criminal 

history,” Appellant’s Brief at 7, is belied by the record, which demonstrates 
J-S29030-17

- 16 -

that the trial court considered a myriad of factors in imposing sentence. For 

example, contrary to Appellant’s claim, the court did consider Appellant’s 

medical conditions. Compare Trial Ct. Op. at 4 (quoting N.T., 9/18/12, at 

17), with Appellant’s Brief at 7. Appellant does not explain his contention 

that his age should have been a factor in imposing sentence, and we can 

discern no reason why Appellant’s age should have required imposition of a 

different sentence here. Likewise, Appellant provides no explanation why his 

“family history” should be considered a mitigating factor. The trial court 

based its sentence on Appellant’s lack of success on probation and failure to 

rehabilitate when given the opportunity, see Trial Ct. Op. at 4, thereby 

refuting Appellant’s argument that the trial court did not consider his 

rehabilitative needs, Appellant’s Brief at 7.

As for Appellant’s claim that the trial court “improperly [considered] 

arrests that did not lead to convictions,” Appellant’s Brief at 7, “[a] judge 

may consider unadjudicated arrests in sentencing a defendant, so long as 

the arrests are not regarded as establishing criminal conduct, and even 

arrests that result in acquittals, if the judge is aware of the acquittal.” 

Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa. Super. 2011), appeal 

denied, 51 A.3d 837 (Pa. 2012).3 Here, the trial court recognized that 

____________________________________________

3 See also, e.g., Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa. Super. 

2006); Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa. Super. 1980)) 

(“It was not improper for the sentencing judge to consider the defendant’s 

alleged involvement in other unlawful activity for which he was not charged, 

(Footnote Continued Next Page)
J-S29030-17

- 17 -

Appellant had not been convicted of some of the charges. See N.T., 

9/18/12, at 17; Trial Ct. Op. at 4.

Finally, in conflict with Appellant’s assertion that the trial court “did not 

consider any of the factors required by” 42 Pa.C.S. § 9721(b), Appellant’s 

Brief at 8, is the fact that the trial court explicitly stated that Appellant’s 

sentence was based on the court’s concern over the safety of the victim, her 

family, and the independent witnesses at the “very chaotic and violent 

scene” at Spears’ home; the trial court thus considered “the protection of 

the public” and “impact on the life of the victim and the community.” Trial 

Ct. Op. at 4 (quoting N.T., 9/18/12, at 17), 9; 42 Pa.C.S. § 9721(b). Thus, 

based upon our review of the record, we hold that the trial court did not 

abuse its discretion in sentencing Appellant and that Appellant’s sentencing 

issues are without merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2017

(Footnote Continued) _______________________

tried, or convicted” (internal brackets and quotation marks omitted)), 

appeal denied, 906 A.2d 542 (Pa. 2006).