J-S10018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALPHONSO WHITEHEAD

Appellant No. 1271 EDA 2014

Appeal from the Judgment of Sentence entered February 23, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0013377-2009

BEFORE: GANTMAN, P.J., STABILE, and PLATT,*JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015

Appellant, Alphonso Whitehead, appeals from the February 23, 2011 

judgment of sentence imposing 24 to 54 months of incarceration followed by 

24 months of probation following Appellant’s violation of probation. We 

affirm. 

In 1989, Appellant was convicted of two counts of involuntary deviate 

sexual intercourse (“IDSI”).1 On June 2, 2010, Appellant pled guilty to 

failing to verify his address with police pursuant to then-effective 18 

Pa.C.S.A. § 4915. On that date, the trial court sentenced Appellant to 11 to 

23 months of incarceration followed by seven years of probation. Appellant 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S.A. § 3123. 
J-S10018-15

- 2 -

was paroled on June 10, 2010. At a June 15, 2010 office meeting with his 

parole officer, Appellant tested positive for cocaine. Appellant missed a 

scheduled visit on August 26, 2010. On September 10, 2010, Appellant 

attended an office visit and once again tested positive for cocaine. Appellant 

missed a scheduled visit on October 14, 2010.2 

On January 5, 2011, the trial court conducted a violation hearing and 

revoked Appellant’s probation based on Appellant’s failure to report to his 

probation officer and two positive drug tests. On February 23, 2011, the 

trial court imposed the sentence on appeal. On March 11, 2011, Appellant 

filed an untimely motion for reconsideration. In its opinion, the trial court 

states it denied this motion. Trial Court Opinion, 6/23/14, at 2. The 

certified record and docket contain no evidence of any trial court action on 

the untimely motion. Appellant did not file a timely appeal. On April 4, 

2014, the PCRA3court issued an order permitting Appellant to file a direct 

appeal nunc pro tunc. Appellant filed this timely nunc pro tunc appeal on 

April 24, 2014. He argues the trial court erred in revoking his probation and 

____________________________________________

2

 Appellant also was arrested once again for failing to register his address to 

police when Appellant’s girlfriend reported to police that he no longer lived at 

the address they had on file for him. The charges were dropped after a 

preliminary hearing, and we do not rely on this additional arrest in our 

analysis. 

3

 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. 
J-S10018-15

- 3 -

that the court abused its discretion in imposing a harsh and excessive 

sentence. Appellant’s Brief at 8. We will address these issues in turn. 

Appellant first argues the Commonwealth produced insufficient 

evidence justify revocation of his probation. We review that argument as 

follows: 

A challenge to the sufficiency of the evidence is a question 

of law subject to plenary review. We must determine whether 

the evidence admitted at trial and all reasonable inferences 

drawn therefrom, when viewed in the light most favorable to the 

Commonwealth as the verdict winner, is sufficient to support all 

elements of the offenses. A reviewing court may not weigh the 

evidence or substitute its judgment for that of the trial court. 

Revocation of a probation sentence is a matter committed 

to the sound discretion of the trial court and that court’s decision 

will not be disturbed on appeal in the absence of an error of law 

or an abuse of discretion. 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. In 

order to uphold a revocation of probation, the Commonwealth 

must show by a preponderance of the evidence that a defendant 

violated his probation. [T]he reason for revocation of 

probation need not necessarily be the commission of or 

conviction for subsequent criminal conduct. Rather, this 

Court has repeatedly acknowledged the very broad standard that 

sentencing courts must use in determining whether probation 

has been violated[.] A probation violation is established 

whenever it is shown that the conduct of the probationer 

indicates the probation has proven to have been an ineffective 

vehicle to accomplish rehabilitation and not sufficient to deter 

against future antisocial conduct. 

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) 

(emphasis added), appeal denied, ___ A.3d ___; 2015 Pa. LEXIS 309 

(February 11, 2015). 
J-S10018-15

- 4 -

Appellant argues the trial court erred in revoking his probation based 

on technical parole violations rather than the commission of a new offense. 

In addition, Appellant argues the trial court acted prematurely in revoking 

Appellant’s probation before the probation sentence commenced. Finally, 

Appellant argues the trial court offered an insufficient factual basis upon 

which to conclude Appellant was not amenable to rehabilitation. These 

arguments lack any basis in law or fact. 

The bolded portion of the quote from this Court’s opinion in Colon

provides that commission of a new criminal offense is not a prerequisite to 

revocation of probation. Colon, 102 A.3d at 1041. Furthermore, we have 

held: 

If, at any time before the defendant has completed the 

maximum period of probation, or before he has begun 

service of his probation, he should commit offenses of such 

nature as to demonstrate to the court that he is unworthy of 

probation and that the granting of the same would not be in 

subservience to the ends of justice and the best interests of the 

public, or the defendant, the court could revoke or change the 

order of probation. A defendant on probation has no contract 

with the court. He is still a person convicted of crime, and the 

expressed intent of the Court to have him under probation 

beginning at a future time does not “change his position from 

the possession of a privilege to the enjoyment of a right.” 

Commonwealth v. Ware, 737 A.2d 251, 253-254 (Pa. Super. 1999) 

(emphasis in original) (quoting Burns v. United States, 287 U.S. 216, 222 

(1932)), appeal denied, 747 A.2d 900 (Pa. 1999). Thus, the trial court had 

authority to revoke Appellant’s probation sentence prior to its 

commencement. 
J-S10018-15

- 5 -

Turning to the facts, the record confirms Appellant’s continued drug 

abuse and his failure to report to several scheduled visits with his parole 

officer. N.T., 1/5/11, at 5-8. Appellant has received probation sentences on 

several prior offenses and has never successfully completed any of them 

because he repeatedly fails to report to scheduled visits. Id. at 8. For these 

reasons, the trial court acted within its discretion in finding Appellant’s 

conduct indicates probation has been an ineffective vehicle of rehabilitation. 

Colon, 102 A.3d at 1041. 

Next, Appellant argues the trial court abused its sentencing discretion 

by imposing an excessively harsh sentence. To preserve a challenge to the 

trial court’s sentencing discretion, an appellant must file a timely notice of 

appeal, preserve the issue in a timely post-sentence motion, include a 

Pa.R.A.P. 2119(f) statement in the appellate brief, and present a substantial 

question for our review. Colon, 102 A.3d at 1042-43. Instantly, Appellant 

filed a timely nunc pro tunc appeal within thirty days of the PCRA court’s 

order granting that relief. As noted above, the certified record fails to reflect 

any trial court action on the untimely motion for reconsideration of his 

sentence. The Colon Court noted that an untimely motion for modification 

of a sentence will preserve the issue for review where the trial court acts on 

the motion within thirty days. Id. at 1043 n.2. In this case, the record does 

not confirm the trial court’s assertion that it acted on Appellant’s motion, 

and Colon therefore does not apply. 
J-S10018-15

- 6 -

In Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), our 

Supreme Court held that an order permitting a nunc pro tunc direct appeal 

does not automatically permit a nunc pro tunc post-sentence motion. Id. at 

1093-94. The Liston Court disapproved that course of action because it 

could award certain litigants the right to pursue collateral claims on direct 

appeal. Id. Here, Appellant does not assert a collateral attack on his 

judgment of sentence. Nonetheless, the holding in Liston applies with equal 

force. The Liston Court explained that the failure to file a post-sentence 

motion is not among the few circumstances where courts will presume 

prejudice from counsel’s ineffectiveness. Id. at 1092 n.7 (citing 

Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa. 2007)). Appellant 

therefore needed to plead and prove to the PCRA court that counsel was 

ineffective for failing to file a timely post-sentence motion before the PCRA 

court could award him the right to file a nunc pro tunc post-sentence 

motion. Appellant did not do so. Appellant therefore has not properly 

preserved his sentencing argument for review in this nunc pro tunc appeal. 

Assuming arguendo Appellant’s sentencing challenge is reviewable in 

this appeal, and that the trial court’s order addressing Appellant’s postsentence motion was inadvertently omitted from the record, we would find 

Appellant’s argument lacking in merit. In his Pa.R.A.P. 2119(f) statement, 

Appellant asserts the trial court abused its discretion in imposing a 

manifestly excessive sentence that fails to account for the protection of the 
J-S10018-15

- 7 -

public, the gravity of the offense, and Appellant’s rehabilitative needs, in 

accord with 42 Pa.C.S.A. § 9721(b). Specifically, Appellant argues the 

sentence is excessive in light of Appellant’s technical probation violations. 

Appellant’s assertions raise a substantial question appropriate for appellate 

review. Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 

2006) (finding a substantial question where the appellant argued the trial 

court imposed an excessive sentence for technical probation violations). 

The following standard governs our review of the merits. 

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. In determining whether a sentence is manifestly 

excessive, the appellate court must give great weight to the 

sentencing court’s discretion, as he or she is in the best position 

to measure factors such as the nature of the crime, the 

defendant’s character, and the defendant’s display of remorse, 

defiance, or indifference. 

Upon revoking probation, a sentencing court may choose 

from any of the sentencing options that existed at the time of 

the original sentencing, including incarceration. [U]pon 

revocation [of probation] ... the trial court is limited only by the 

maximum sentence that it could have imposed originally at the 

time of the probationary sentence. 

Colon, 102 A.3d at 1043-44. 

Section 9771(c) of the Sentencing Code permits a sentence of total 

confinement after revocation of probation where the defendant has been 

convicted of a new crime; where his conduct indicates likelihood that he will 
J-S10018-15

- 8 -

commit another crime; or to vindicate the authority of the court. Appellant 

mentions § 9771(c) in passing but does not develop any argument 

concerning its application. Appellant’s Brief at 19. In any event, Appellant’s 

multiple criminal history and repeated violations of probation evince a 

likelihood of future offense and a need to vindicate the authority of the trial 

court. 

Appellant argues his occasional homelessness combined with his drug 

addiction pose substantial obstacles to his compliance with probation. Thus, 

he believes the trial court failed to account for his rehabilitative needs under 

§ 9771(c). He also argues the trial court failed to offer an on the record 

explanation of its sentence. 

At sentencing, the trial court noted its familiarity with what it deemed 

an “exhaustive” pre-sentence investigation report. N.T., 2/23/11, at 9. The 

trial court also noted Appellant’s criminal history, including forgery and theft 

of a motor vehicle in addition to the IDSI convictions. Id. at 13. The trial 

court also noted Appellant’s refusal to accept that he is required, as a sexual 

offender, to register his address with police. Id. at 9-10, 13. The trial court 

recommended Appellant for treatment for his cocaine abuse. Id. at 15. The 

trial court encouraged Appellant to take advantage of the vocational training 

offered in prison. Id. at 15. The court summarized its thought process as 

follows: 

[W]hat I’m doing is balancing the need to protect society 

from people who have convictions like [IDSI] against 
J-S10018-15

- 9 -

[Appellant’s] rehabilitative needs and I think I framed the 

appropriate sentence. It’s not a maximum sentence, but I think 

it’s a sentence that will strike the right balance between 

[Appellant] being put on the right path and society being 

protected in the meantime.

Id. at 17. 

In summary, the sentencing transcript plainly reflects the trial court’s 

efforts to apply § 9721(b), with particular attention to Appellant’s 

rehabilitative needs. The Court reasoned Appellant will have opportunities 

for rehabilitation while incarcerated without posing a risk to society in the 

meantime. Given Appellant’s history of repeatedly failing to comply with the 

conditions of his probation, we believe the trial court acted well within its 

discretion in imposing sentence. 

Since neither of Appellant’s assertions of error warrants relief, we 

affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015