J-S21014-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

COURTNEY PITTS,

Appellant No. 552 EDA 2014

Appeal from the Judgment of Sentence January 9, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CR-51-CP-0002318-2011, CR-51-CP-0012208-

2008, CR-51-CP-0012256-2008

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Courtney Pitts appeals from the judgment of sentence of two to five 

years incarceration with a three year probationary tail that was imposed 

following the revocation of his probation. We affirm.

The trial court succinctly summarized the relevant facts and procedural 

history.

On November 13, 2008, appellant pleaded guilty to two 

counts of possession with intent to deliver a controlled substance 

(PWID) before the Honorable Joan Brown, in exchange for 

concurrent sentences of 6-23 months incarceration followed by 2 

years probation. On April 8, 2009, a bench warrant was issued 

for appellant for a potential direct violation. . . . Sometime 

thereafter, Judge Brown relinquished jurisdiction, and appellant 

was entered into the Mental Health Court program. The open 

matter and the potential violations were consolidated before this 

Court. On October 13, 2011, appellant pleaded guilty to 

aggravated assault before this Court which represented a direct 

violation of Judge Brown's probation. Probation was revoked and 

appellant was sentenced to an aggregate sentence of 111⁄2 - 23 

months incarceration followed by 7 years probation. As is the 
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protocol in mental health court, regular status hearings were 

scheduled to closely monitor appellant's progress. Initially, 

appellant was in compliance with his program. However, at the 

May 31, 2012, status listing, it was reported that appellant had 

been involved in a physical dispute with his girlfriend and 

admitted having used drugs, which resulted in appellant 

receiving an essay sanction instead of a violation. At the July 

19, 2012 status listing, it was reported that, on July 10, 2012, 

appellant was taken into custody after he tested positive for 

drugs six consecutive times between May 25, 2012 and July 10, 

2012. At the August 9, 2012 listing, in lieu of being violated, 

appellant received a “time in” sanction and was ordered to 

comply with his treatment team. On October 12, 2012, 

appellant was taken into custody pursuant to a bench warrant 

after appellant's sister filed a report with appellant's probation 

officer alleging that appellant had assaulted her. A hearing was 

scheduled to present witnesses to substantiate the allegations. 

On December 13, 2012, appellant's probation officer received a 

report from appellant's girlfriend that appellant had assaulted 

her. In addition, appellant failed to come into the office for his 

scheduled visit and refused to turn himself in upon suggestion of 

the probation officer. On December 31, 2012, the probation 

officer issued an absconder warrant for appellant. Appellant also 

failed to appear at the January 3, 2013 status listing before this 

Court and a bench warrant was issued for appellant's arrest. On 

September 27, 2013, appellant was apprehended and a violation 

hearing was scheduled. At the January 9, 2014 violation 

hearing, appellant's probation summary, which included all of 

the above information, was entered into evidence, however, no 

witnesses were available and the assault allegations could not be 

substantiated.[1] 

Supplemental Opinion, 6/26/14, at 1-3.

____________________________________________

1

To the extent that Appellant asserts that the trial court erred in revoking 

probation due to the unproven assault allegations, that claim is a red 

herring. The certified record confirms that the trial court revoked probation 

due to Appellant’s several technical violations of the conditions of probation, 

including absconding from supervision. See N.T., 1/9/16, at 6. Moreover, 

defense counsel conceded, “[Appellant] had . . . technical violation[s] for 

absconding and for missing office visits.” Id. 
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Following the January 9, 2014 violation of probation (“VOP”) hearing, 

the trial court found Appellant in technical violation of his probation, revoked 

the probationary sentence, and imposed two to five years incarceration 

followed by three years probation.2 The trial court denied Appellant's 

ensuing motion to reconsider the judgment of sentence. On February 10, 

2014, Appellant filed a timely notice of appeal.3

Appellant presents a single question for our review: 

Did not the sentencing court abuse its discretion and impose a 

manifestly excessive sentence when, during a revocation 

hearing, it sentenced Mr. Pitts to two to five years of 

incarceration followed by three years of reporting probation for 

technical violations, where Mr. Pitts had not been convicted of 

any new crimes and had a long history of mental illness and 

substance abuse that required treatment rather than 

punishment?

Appellant’s brief at 3. 

The following principles are pertinent to our review. “Generally, in 

reviewing an appeal from a judgment of sentence imposed after the 

revocation of probation, this Court's scope of review includes the validity of 

the hearing, the legality of the final sentence, and if properly raised, the 

____________________________________________

2 Specifically, the trial court imposed two to five years incarceration for each 

of the two PWID convictions. For the aggravated assault, the court imposed 

two to five years imprisonment followed by three years probation. All three 

sentences were imposed concurrently and with credit for time served.

3

Pursuant to Pa.R.Crim.P. 708, the motion for reconsideration did not toll 

the thirty-day appeal period. However, since the thirtieth day was a 

Saturday, Appellant had until Monday, February 10, 2014, to file a timely 

appeal. 
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discretionary aspects of the appellant's sentence.” Commonwealth v. 

Kuykendall, 2 A.3d 559 (Pa.Super. 2010); Commonwealth v. Cartrette, 

83 A.3d 1030, 1033 n.1 (Pa.Super. 2013) (en banc) (Superior Court’s scope 

of review includes claim challenging discretionary aspects of sentence 

following revocation of probation). However, before we reach the merits of 

a discretionary sentencing issue, we must ascertain whether: 1) a timely 

appeal was filed from the judgment of sentence; 2) the issue was preserved 

during the trial court proceedings; 3) the appellant complied with Pa.R.A.P. 

2119(f); and 4) the Rule 2119(f) statement reveals a substantial question 

that the sentence was not appropriate under the sentencing code. 

Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa.Super. 2008). 

Herein, Appellant filed a timely notice of appeal. Likewise, he raised 

the pertinent complaints below, preserved the issues in his Rule 1925(b) 

statement, and 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. See

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). Accordingly, we 

must determine whether Appellant’s claims raise a substantial question that 

the sentence was not appropriate under the sentencing code. 

The crux of Appellant’s argument is that the trial court violated the 

sentencing code by imposing a sentence of total confinement for violating 

the technical conditions of his probation. This contention raises a substantial 

question. See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 
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2010) (“The imposition of a sentence of total confinement after the 

revocation of probation for a technical violation, and not a new criminal 

offense, implicates the ‘fundamental norms which underlie the sentencing 

process.’”). Accordingly, we address the merits of Appellant’s claim. 

In Crump, we reiterated the following pertinent principles:

When imposing a sentence of total confinement after a 

probation revocation, the sentencing court is to consider the 

factors set forth in 42 Pa.C.S. § 9771. Commonwealth v. 

Ferguson, [893 A.2d 735 (Pa.Super. 2006)]. Under 42 Pa.C.S. 

§ 9771(c), a court may sentence a defendant to total 

confinement subsequent to revocation of probation if any of the 

following conditions exist:

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 this court.

Crump, supra, at 1282-1283. “Sentencing is a matter vested within the 

discretion of the trial court and will not be disturbed absent a manifest abuse 

of discretion.” Id. at 1282. The trial court does not have to engage in a 

lengthy discourse of its reasons for imposing a given sentence or specifically 

identify the statute in question. Id. at 1283. However, “the record as a 

whole must reflect the sentencing court’s consideration of the facts of the 

crime and character of the offender.” Id. 

Instantly, Appellant’s argument has two facets. First, he contends that 

the sentence of imprisonment was not individualized. This contention is 
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based upon the premise that the trial court failed to acknowledge Appellant’s 

mental health issues, substance abuse, and rehabilitative needs. Next, 

Appellant complains that the court was not authorized to impose total 

confinement unless it found one of the enumerated reasons outlined in § 

9721(c). For the reasons discussed below, we conclude that both of 

Appellant’s assertions fail. 

As it relates to Appellant’s argument that the trial court did not engage 

in individualized sentencing, we observe that the trial court was thoroughly 

acquainted with Appellant’s involvement with his mental health concerns, 

substance abuse, and his inappropriate behavior while under the supervision 

of the probation department. The trial court possessed the full probationary 

record, the VOP summary, which the trial court introduced as an exhibit 

during sentencing, and the court’s personal experiences with Appellant over 

the two years that it supervised the probation proceedings. During the 

sentencing, the trial court stressed,

[A]s I am reviewing my file I do see the number of 

opportunities that you have had. I seen [sic] where you were 

going well for a little period of time. And when you had this 

spiral downward. And where I could have sent you back to jail 

on . . . some occasions, I did not. 

And, while you may be remorseful as you sit here today, I 

do believe that you have not taken full advantage of the 

opportunities that have been given you, that probation and 

parole has not been a suitable tool to supervise you and I do 

think that a county sentence is no longer appropriate for you[.]
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N.T., 1/9/14, at 19. Additionally, the trial court subsequently explained that 

it recommended Appellant continue to receive “mental health and drug 

treatment as needed” while he is incarcerated in a state facility. Id. at 22-

23. 

The foregoing confirms that the trial court was aware of Appellant’s 

background, history, character, and rehabilitative needs when it fashioned 

the revocation sentence. In reality, the sentence reflected the years of 

experience that the trial court had with Appellant and the court’s recognition 

that Appellant had exhausted the less restrictive sentencing alternatives. 

Accordingly, we reject Appellant’s assertion that the trial court failed to 

impose an individualized sentence. Cf. Commonwealth v. DeLuca, 418 

A.2d 669, 671 (Pa.Super. 1980) (“In light of the fact that [the VOP court] 

was familiar with appellant from the initial sentencing and pre-sentence 

report, this indicates a sufficient consideration of the pertinent sentencing 

factors.”). 

Next, we address Appellant’s claim that the court erred in imposing 

total confinement for a technical violation. Again, no relief is due. As noted 

supra, prior to imposing total confinement, the trial court considered 

Appellant’s criminal history, past probation violations, including the fact that 

he absconded from the probation department and remained a fugitive for 

eight months, and the ineffectiveness of the less-restrictive sanctions the 

court previously imposed in lieu of revocation. In sum, the court concluded 

that total confinement was warranted pursuant to Pa.C.S. § 9771(c) (2) and 
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(3). Specifically, the court determined that, in light of Appellant’s 

comprehensive disregard for the conditions governing his probation,

including his ongoing non-compliance and inability to utilize the rehabilitative 

services that probation provided, confinement was needed to vindicate its 

authority. 

The trial court summarized its rationale as follows:

Appellant's probation was initially revoked and new sentences 

imposed on October 13, 2011, when appellant's cases were 

transferred to the supervision of mental health court. Since that 

time, appellant's compliance was spotty at best. On at least 

three occasions in the six months prior to this revocation, 

instead of violating appellant, the Court imposed an essay 

sanction, a "time in" sanction and a custody sanction in effort to 

encourage appellant to comply with his probation. Thereafter, 

appellant absconded from the probation department and failed to 

appear before the Court until he was apprehended on September 

27, 2013. Based upon appellant's continued non-compliance, the 

Court determined that appellant had failed to take full advantage 

of the opportunities that have been given him, that probation 

and parole had not been a suitable tool to supervise him, and 

that a county sentence was no longer appropriate. (N.T. 

01/09/14 pg. 19) Accordingly, a sentence of total confinement 

was appropriate where appellant's conduct indicated a likelihood 

of future offenses and was necessary to vindicate the court's 

authority. As a consequence, this claim fails. See 

Commonwealth v. Malovich, 2006 PA Super 183, 903 A.2d 

1247, 1254 (Pa. Super. Ct. 2006) (state incarceration was 

necessary to vindicate the court's authority where appellant had 

not complied with previous judicial efforts such as Drug Court, 

probation and prior revocations).

Trial Court Supplemental Opinion, 6/26/14, at 4-5. 

The certified record confirms the trial court’s finding that confinement 

was necessary to vindicate the court’s authority. The trial court recalled 

that, between October 2011 and the date that Appellant became a fugitive 
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for eight months, he had one formal violation of probation and at least two 

alternative sanctions in lieu of formal violations. Likewise, Appellant failed 

six consecutive drug screens and openly admitted to using marijuana. It is 

clear that Appellant’s course of conduct while he was on probation 

demonstrated his disdain for the court’s directions and the need for total 

confinement pursuant to § 9771(b)(3). Thus, his claim that confinement 

was not warranted in this case fails.4

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015

____________________________________________

4 Additionally, while not articulated by the trial court, the certified record 

also supports the court’s conclusion that incarceration was warranted under 

§ 9771(b)(2), particularly in light of the fact that the probation is predicated 

in part upon his pleading guilty to two counts of possession of a controlled 

substance with intent to deliver. As discussed in the body of this 

memorandum, Appellant tested positive for drugs on six consecutive tests 

between May 25, 2012 and July 10, 2012 and proved resistant to 

rehabilitation. Indeed, Appellant admitted during his January 2014 

allocution that he smoked marijuana during the eight months that he had 

absconded from supervision.