J-S18008-16

*

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

TRISTAN LAFRANCE MORRISON, 

Appellant No. 1382 MDA 2015

Appeal from the Judgment of Sentence July 8, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s):

CP-36-CR-0002606-2009

CP-36-CR-0002849-2009

CP-36-CR-0003484-2009

CP-36-CR-0004252-2013

CP-36-CR-0004420-2013

CP-36-CR-0004492-2013

CP-36-CR-0005353-2013

BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016

Tristan LaFrance Morrison appeals from the July 8, 2015 judgment of 

sentence imposed after he was found in violation of probation and/or parole 

at seven criminal action numbers. We affirm. 

The present appeal involves seven criminal actions filed in Lancaster 

County. Three criminal cases were initiated against Appellant in 2009. At 

case number 2606 of 2009, Appellant was charged with retail theft graded 

as a first-degree misdemeanor after, on April 18, 2009, he stole an 18-volt 
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DeWalt Combo kit and a gas weed trimmer, which were worth approximately 

$600, from Lowe’s on 25 Rohrerstown Road, East Hempfield Township. The 

offenses charged at criminal action number 2849 of 2009, included making 

unsworn falsifications to authorities, false identification, possession of 

cocaine and possession of drug paraphernalia. On April 22, 2009, Appellant 

was arrested for possession of cocaine, and drug paraphernalia and then 

falsely informed police that he was Thurston Morrison. He then executed a 

prisoner possession sheet with the same name. At case number 3484 of 

2009, Appellant was accused of felony possession of a controlled substance 

(cocaine) with intent to deliver (“PWID”) and conspiracy to commit PWID. 

On April 9, 2009, in concert with Korie Melton and Andrew Cole, Appellant 

delivered crack cocaine for $100 to an undercover police officer on the 900 

block of Buchanan Avenue, Lancaster. 

On August 19, 2010, Appellant tendered a negotiated guilty plea at 

cases numbered 2606, 2849, and 3484 of 2009. Appellant received two 

years probation at the first two action numbers. On the third case, the 

felony PWID, Appellant was given a split sentence of two to four years in 

state prison followed by four years probation. 

There were four cases filed in 2013. At case number 4252 of 2013, 

Appellant was charged with retail theft as a first-degree misdemeanor. On 

August 10, 2013, Appellant left a K-Mart Store located at 1890 Fruitville 

Pike, Manheim Township with a television worth $699.99 and failed to pay 
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for it. At action number 4420 of 2013, Appellant was accused of retail theft, 

conspiracy to commit retail theft, and escape. On August 27, 2013, 

Appellant stole a television worth $398 from the K-Mart on 1127 South 

Reading Road, Ephrata Township, and placed it in a car driven by Justin 

Clawson. The two men were stopped by police, and, after being told that he 

was under arrest, Appellant fled. He was apprehended two blocks later. At 

case number 4492 of 2013, Appellant was charged with retail theft after he 

was captured on tape stealing a television worth $498 on August 15, 2013, 

from a Walmart located on 890 East Main Street, Ephrata Township. At case 

number 5353 of 2013, Appellant was charged with retail theft after he left 

the K-Mart store on 2600 Willow Street Pike, West Lempeter Township, with 

a $179.99 Keurig coffeemaker without paying for it. That offense occurred 

on August 15, 2013. 

On January 9, 2014, Appellant entered a guilty plea at the four 2013 

criminal actions. At sentencing in those matters, Appellant received the 

following terms of incarceration in county jail: 1) six to twelve months for 

the retail theft at number 4252; 2) at number 4420, three to twenty-three 

months for the conspiracy and retail theft counts as well as a term of six to 

twenty three months on the escape charge; 3) for the retail theft at number 

4492, three to twenty three months; and 4) on the final retail theft at case 

number 5353, to six to twenty three months. 
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After Appellant was charged with committing a 2015 retail theft, he 

was charged with violating probation and/or parole in all seven 2009/2013 

cases. On May 5, 2015, Appellant was found in violation of probation and/or 

parole, and sentencing was deferred. On July 8, 2015, Appellant entered a 

negotiated guilty plea to the 2015 theft offense, and proceeded immediately 

to sentencing in the 2009 and 2013 cases. At all the cases, with the 

exception of 3484 of 2009, Appellant was ordered to serve the unexpired 

balance of parole. At 3484 of 2009, appellant received a jail term of two to 

four years. Appellant filed a motion to modify his sentence on July 9, 2015, 

and that motion was denied the same day. In this timely appeal filed on 

August 7, 2015, Appellant maintains: 

 I. Was a sentence of two to four years incarceration for a 

probation and parole violation so manifestly excessive as to 

constitute too severe a punishment and clearly unreasonable 

under the circumstances of this case, as it was not consistent 

with the protection of the public, the gravity of the offenses, and 

the rehabilitative needs of the defendant, and the court did not 

impose an individualized sentence which took into consideration 

Mr. Morrison's circumstances?

Appellant’s brief at 5. 

Appellant’s challenge on appeal relates solely to action number 3484 

of 2009, where he pled guilty to felony PWID, and for which he originally 

received a split sentence of imprisonment followed by probation. His parole 

and probation in that case were both revoked, and on July 8, 2014, he 

received a new sentence of two to four years in a state correctional 
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institution. His position on appeal relates to the discretionary aspects of his 

sentence. 

A defendant does not enjoy an automatic right to direct review of the 

discretionary aspects of a sentence. Commonweath v. Haynes, 125 A.3d 

800 (Pa.Super. 2015). Instead, our jurisdiction is invoked only when a fourpart test is satisfied: 1) the appeal must be timely; 2) the issue has to have 

been preserved in a motion to reconsider or by objection at sentencing as 

well as in response to an order to file a Pa.R.A.P. 1925(b) statement; 3) the 

appellate brief must contain the statement required by Pa.R.A.P. 2119(f); 

and (4) that statement has to raise the existence of a substantial question 

that the sentence is not appropriate under the Sentencing Code. Id. 

In this case, the appeal was timely, and the contention was preserved 

in a post-sentence motion to modify and in Appellant’s Pa.R.A.P. 1925(b) 

statement. Also, Appellant’s brief contains a Pa.R.A.P. 2119(f) statement of 

reasons for allowance of appeal from the discretionary aspects of his 

sentence. He maintains that the court violated the provisions of the 

Sentencing Code by failing to consider his need for drug and alcohol 

rehabilitation. This position raises the existence of a substantial question. 

42 Pa.C.S. § 9721(b) (when determining whether to impose a sentence of 

imprisonment, the court must follow the precept that the sentence of 

confinement must be “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 
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on the community, and the rehabilitative needs of the defendant.”); 

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (finding 

that defendant’s “claim that the sentencing court disregarded rehabilitation 

and the nature and circumstances of the offense in handing down its 

sentence presents a substantial question for our review); Commonwealth 

v. Riggs, 63 A.3d 780 (Pa.Super. 2012) (averment that trial court failed to 

consider factors outlined in § 9721 raised a substantial question).

We now proceed to review Appellant’s averment on the merits. After a 

trial court revokes 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). The court cannot impose total 

confinement after revoking probation absent a finding 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).

In the present case, Appellant was convicted of another crime, 

justifying a sentence of imprisonment under § 9771(c). Whether we are 

viewing a sentence on direct appeal or in the revocation setting, it is settled 

that “the trial court has broad discretion in sentencing a defendant, and 

concomitantly, the appellate courts utilize a deferential standard of appellate 
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review in determining whether the trial court abused its discretion in 

fashioning an appropriate sentence.” Commonwealth v. Pasture, 107 

A.3d 21, 27 (Pa. 2014). The rationale behind according trial courts this 

broad discretion 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.” 

Id. (citation and quotation marks omitted). First, “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.” Id. Additionally, “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.” Id. 

Herein, the sentencing court had the benefit of a pre-sentence report. 

That report, to which Appellant had no corrections, indicated that Appellant, 

then age forty-two, had a long history of drug addiction and began to use 

drugs as a teenager. In light of the court’s use of a pre-sentence report, we 

must 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.” Id. at 28 (citation 

omitted). Indeed, the sentencing court expressly stated to Appellant, “I’ve 

considered your rehabilitative needs, including the fact there is little to 

indicate that you have made any attempt to change your lifestyle or that you 
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are amenable to rehabilitation.” N.T. Sentencing, 7/8/15, at 20-21. We 

therefore must reject Appellant’s primary position, which is that the court 

failed to consider his history, character and condition. Appellant’s brief at 

11; Id. at 13 (“In imposing sentence, the court failed to consider 

[Appellant’s] strong need for drug and alcohol rehabilitation.”)1 

Likewise, the court, contrary to Appellant’s suggestion, was not 

required to parole him into an inpatient drug treatment facility called the 

Teen Challenge Program. The court relied upon Appellant’s previously failed 

attempt to address his drug addiction problem, his mature age, and that the 

application to enter the program was belatedly made after he was charged 

with violating parole/probation rather than as an attempt to address his drug 

problem before he committed another crime. 

In addition, when imposing sentence, the court weighed the 

seriousness of the charges against Appellant, PWID, as well as his significant 

criminal history before 2009. This prior record began “in 1995, larceny; 

2000, July, theft; September of 2000, harassment; May of 2001, 

unauthorized use of a vehicle; again May of 2001, aggravated assault. . . . 

September of 2005, access device fraud; January of 2006, possession of a 

controlled substance . . . .” N.T. Sentencing, 7/8/15, at 19-20. 

____________________________________________

1 The pre-sentence report actually indicates that Appellant ceased using 

alcohol about eleven years prior to sentencing. His addiction is to drugs.
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We can perceive of no abuse of discretion in the sentence imposed, 

and, given our highly deferential standard of review, have no basis upon 

which to reverse it. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/16/2016