J. S83002/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ROMAN BAZHUTIN, : No. 1338 WDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, July 30, 2015,

in the Court of Common Pleas of Allegheny County

Criminal Division at Nos. CP-02-CR-0008005-2014,

CP-02-CR-0011237-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2016

Roman Bazhutin appeals from the July 30, 2015 aggregate judgment 

of sentence of 111⁄2 to 23 months’ imprisonment, followed by 2 years’ 

probation, imposed following a revocation of his probation.1 For the reasons 

that follow, we vacate appellant’s sentence and remand this matter so that 

the trial court can conduct a limited evidentiary hearing to determine 

whether he should receive an additional 33 days’ credit for time-served. In 

all other respects, we affirm appellant’s convictions. 

 

* Retired Senior Judge assigned to the Superior Court.

1 The trial court granted appellant 114 days’ credit for time-served for the 

period he spent in custody from April 8 to July 30, 2015. (See notes of 

testimony, 7/30/15 at 4; trial court order, 7/30/15; No. CP-02-CR-0011237-

2014.)
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A prior panel of this court summarized the relevant facts of this case 

as follows:

On May 18, 2014, Officer James Fleckenstein, 

Jr. of the Castle Shannon Police Department 

responded to a 911 call to [appellant’s] residence for 

a domestic assault. Upon arriving at the home, 

Officer Fleckenstein observed a bleeding laceration 

on the back of [appellant’s girlfriend, Tracey] 

Ondek’s head. Ms. Ondek told the Officer that 

[appellant] pushed her against the wall and her head 

hit a corner, causing the laceration. Although 

Ms. Ondek did appear to be intoxicated, she was 

aware of what she was describing. 

Officer Fleckenstein watched Ms. Ondek write and 

sign a statement and took pictures of her injury.

Thereafter, on July 27, 2014, Officer William 

Kress of the Castle Shannon Police Department 

responded to another 911 call to [appellant’s] 

residence for a domestic assault. Upon arriving at 

the home, Officer Kress observed that Ms. Ondek’s 

cheek and both of her eyes were swollen and she 

was shaking. Ms. Ondek told Officer Kress that 

[appellant] “beat her up.” Again, although 

Officer Kress did smell alcohol on Ms. Ondek’s 

breath, she was aware of and understood his 

questions. Officer Kress then watched Ms. Ondek 

write and sign a statement.

Ms. Ondek testified that on both occasions she 

was intoxicated and remembered neither the events 

nor preparing the written statements for the police.

Commonwealth v. Bazhutin, 144 A.3d 188 (Pa.Super. 2016) (unpublished 

memorandum at 2), citing trial court opinion, 7/21/15 at 3-4.
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Appellant was subsequently charged with two counts of simple assault 

and one count of harassment2in connection with these incidents. Appellant 

waived his right to a jury trial and proceeded to a bench trial on January 28, 

2015. Following a one-day trial, appellant was found guilty of all charges. 

Appellant was sentenced that same day to an aggregate term of 4 years’ 

probation. (Notes of testimony, 1/28/15 at 30; see also trial court orders, 

1/28/15, Nos. CP-02-CR-0008005-2014 and CP-02-CR-0011237-2014.) On 

February 6, 2015, appellant filed a post-sentence motion for a new trial that 

was denied on February 13, 2015. On March 13, 2015, appellant filed a 

timely notice of appeal. A panel of this court affirmed appellant’s judgment 

of sentence on March 3, 2016. Bazhutin, 144 A.3d 188. Appellant did not 

seek allowance of appeal with our supreme court.

On April 23, 2015, the trial court conducted a Gagnon I hearing,3

wherein it was revealed that appellant had been arrested and charged in 

connection with a third assault of Ondek that had occurred on March 24, 

2015. (Notes of testimony, 4/23/15 at 2.) Thereafter, on June 23, 2015, 

the trial court commenced a Gagnon II hearing, which was continued so 

that a presentence investigation report (“PSI”) could be prepared. (Notes of 

 

2 18 Pa.C.S.A. §§ 2701 and 2709, respectively.

3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding that a defendant 

accused of violating probation is entitled to two hearings: 1) a 

pre-revocation hearing to determine probable cause of a violation

(Gagnon I); and 2) a more comprehensive revocation hearing to establish a 

violation and determine whether revocation is warranted (Gagnon II).)
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testimony, 6/23/15 at 3-4.) Following the preparation of a PSI report, the 

trial court conducted a full Gagnon II hearing on July 30, 2015. Thereafter, 

that same day, the trial court revoked appellant’s probation and resentenced 

him to an aggregate term of 111⁄2 to 23 months’ imprisonment, followed by 

2 years’ probation. (Notes of testimony, 7/30/15 at 4.) As noted, the trial 

court also granted appellant 114 days’ credit for time-served. (Id; see also

trial court order, 7/30/15; No. CP-02-CR-0011237-2014.)

On August 6, 2015, appellant filed a post-sentence motion for 

reconsideration of his sentence, which was denied by the trial court on 

August 13, 2015. On August 28, 2015, appellant filed a timely notice of 

appeal. On September 4, 2015, the trial court ordered appellant to file a 

concise statement of errors complained of on appeal in accordance with 

Pa.R.A.P. 1925(b). Following several extensions, appellant filed a timely 

Rule 1925(b) statement on February 5, 2016. Thereafter, on March 7, 2016, 

the trial court filed its Rule 1925(a) opinion.

Appellant raises the following issues for our review:

I. WHETHER THERE WAS INSUFFICIENT 

EVIDENCE PRESENTED ESTABLISHING THAT 

[APPELLANT] WAS IN VIOLATION OF HIS 

PROBATION AT BOTH CC 201408005 AND 

CC 201411237?

II. IS THE REVOCATION SENTENCE IMPOSED AT 

CC 201411237 ILLEGAL IN THAT IT FAILS TO 

GIVE APPROPRIATE TIME CREDIT?

III. IN REVOKING [APPELLANT’S] PROBATIONS 

AND RESENTENCING HIM TO A SENTENCE OF 
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TOTAL CONFINEMENT OF 111⁄2-23 MONTHS[’] 

COUNTY INCARCERATION AT CC 201411237, 

AND TO 2 YEARS PROBATION AT 

CC 201408005, WHETHER THE TRIAL COURT 

ABUSED ITS SENTENCING DISCRETION WHEN 

IT FAILED TO PLACE REASONS ON THE 

RECORD JUSTIFYING ITS SENTENCING 

DECISION, REVOCATION WAS BASED SOLELY 

ON A TECHNICAL VIOLATION OF PROBATION 

AND THE REQUIREMENTS OF 42 PA.C.S.A. 

§ 9721(B) AND 42 PA.C.S.A. § 9725 WERE 

NOT MET?

Appellant’s brief at 12. For the ease of our discussion, we have elected to 

address appellant’s claims in a slightly different order than presented in his 

appellate brief.

Appellant first argues that there was insufficient evidence to establish 

that he violated the terms of his probation. (Appellant’s brief at 21.) In 

support of this contention, appellant maintains that, “at the time of 

revocation, [he] had not yet proceeded to trial on the [March 24, 2015 

simple assault] charge . . . [and] the mere fact of an arrest has no probative 

value and is insufficient to warrant revocation of probation.” (Id.) We 

disagree.

Preliminarily, we note that a revocation of probation is governed by 

42 Pa.C.S.A. § 9771, which provides, in relevant part, as follows:

(b) Revocation.--The court may revoke an order 

of probation upon proof of the violation of 

specified conditions of the probation. Upon 

revocation the sentencing alternatives 

available to the court shall be the same as 

were available at the time of initial sentencing, 
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due consideration being given to the time 

spent serving the order of probation.

(c) Limitation on sentence of total 

confinement.--The court shall not impose a 

sentence of total confinement upon revocation 

unless it finds 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.A. § 9771(b), (c).

This court has long recognized that the Commonwealth bears the 

burden of proving a probation violation by a preponderance of the evidence. 

The Commonwealth establishes a probation violation 

meriting revocation when it shows, by a 

preponderance of the evidence, that the 

probationer’s conduct violated the terms and 

conditions of his probation, and that probation has 

proven an ineffective rehabilitation tool incapable of 

deterring [the] probationer from future antisocial 

conduct. 

Commonwealth v. A.R., 990 A.2d 1, 4 (Pa.Super. 2010), affirmed, 80 

A.3d 1180 (Pa. 2013) (citation and footnote omitted).

“[A] preponderance of the evidence is the lowest burden of proof in 

the administration of justice, and it is defined as the greater weight of the 

evidence, i.e., to tip a scale slightly in one’s favor.” Commonwealth v. 
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Ortega, 995 A.2d 879, 886 n.3 (Pa.Super. 2010), appeal denied, 20 A.3d 

1211 (Pa. 2011) (citation and internal quotation marks omitted). Thus, the 

question we must ask is not whether the evidence, if admitted at trial, would 

have been sufficient to convict the defendant of the offenses that 

engendered the probation revocation proceeding, but rather, whether a 

preponderance of the evidence showed that probation had proven ineffective 

at rehabilitating appellant. See id.

Contrary to appellant’s contention, we find that the evidence was 

sufficient to establish that appellant violated the conditions of his probation 

and that said probation had proven ineffective. At the April 23, 2015 

hearing, Probation Officer Richard Zeleznik testified that he contacted 

appellant prior to the hearing about the fact that he had “done nothing 

towards the condition of his probation[,]” and appellant informed him that 

“he had . . . two years to get this stuff done” and was content to address the 

trial court. (Notes of testimony, 4/23/15 at 2.) Officer Zeleznik further 

testified that on March 25, 2015, he was notified by the Castle Shannon 

Police Department that appellant had been arrested and charged in 

connection with yet another assault of Ondek on March 24, 2015. (Id.) 

During the course of this hearing, the trial court also heard testimony from 

appellant, who failed to accept responsibility for the assault and alleged that 

Ondek’s injuries were the result of her falling “on her face because she was 

so intoxicated.” (Id. at 4-6.)
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Thereafter, on July 30, 2015, the trial court conducted a Gagnon II 

hearing and indicated that it was incorporating Officer Zeleznik’s testimony 

from the April 23, 2015 hearing into the record. (Notes of testimony, 

7/30/15 at 2.) Appellant’s counsel acknowledged at said hearing that 

appellant had a pending criminal case for assaulting Ondek a third time, but 

stated that “[a]ppellant has always maintained his innocence through trial 

and through these violation hearings[.]” (Id. at 2-3.) The record further 

reflects that at no point during the course of these hearings did appellant 

provide any explanation as to why he failed to contact or meet with 

Officer Zeleznik from the date he began serving his probation, January 28, 

2015, until the new charges were filed, on March 24, 2015. 

In finding that appellant failed to comply with the conditions of 

probation, the trial court reasoned as follows:

Okay. Well, you pretty much were in total 

noncompliance, including a new arrest with the same 

victim. I guess you didn’t have quite enough time to 

go to the Batterer’s Intervention program[,] which 

may very well have prevented the third case from 

occurring.

Notes of testimony, 7/30/15 at 4; see also trial court opinion, 3/7/16 at 3.

Based on the foregoing discussion, we find ample support for the trial 

court’s conclusions. Clearly, the record demonstrates, by a preponderance 

of the evidence, that probation has been ineffective in deterring appellant’s 

continuous pattern of domestic abuse against Ondek. Accordingly, 

appellant’s contention that there was insufficient evidence presented at the 
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probation revocation hearings that he had violated the terms of his probation 

is meritless.

We now turn to appellant’s claim that the trial court abused its 

discretion in sentencing him to 111⁄2 to 23 months’ imprisonment, followed 

by 2 years’ probation, after the revocation of his probation because it failed 

to consider the criteria set forth in Section 9721(b), including his “character, 

personal history, and rehabilitative needs.” (Appellant’s brief at 31.)

Our standard of review in assessing whether a trial court has erred in 

fashioning a sentence following the revocation of probation is well settled.

When we consider an appeal from a sentence 

imposed following the revocation of probation, our 

review is limited to determining the validity of the 

probation revocation proceedings and the authority 

of the sentencing court to consider the same 

sentencing alternatives that it had at the time of the 

initial sentencing. 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.

Commonwealth v. McNeal, 120 A.3d 313, 322 (Pa.Super. 2015) (citations 

and internal quotation marks omitted).

“[I]t is within our scope of review to consider challenges to the 

discretionary aspects of an appellant’s sentence in an appeal following a 

revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 

737 (Pa.Super. 2006), appeal denied, 906 A.2d 1196 (Pa. 2006). Where 

an appellant challenges the discretionary aspects of his sentence, the right 
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to appellate review is not absolute. See Commonwealth v. Allen, 24 A.3d 

1058, 1064 (Pa.Super. 2011). Rather, an appellant challenging the 

discretionary aspects of his sentence must invoke this court’s jurisdiction by 

satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether 

Appellant preserved his issue; (3) whether 

Appellant’s brief includes a concise statement of the

reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and 

(4) whether the concise statement raises a 

substantial question that the sentence is appropriate 

under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Instantly, the record reveals that appellant has filed a timely notice of 

appeal and has preserved his sentencing claim, albeit in part, in his 

August 6, 2015 post-sentence motion. Appellant’s brief also includes a 

statement that comports with the requirements of Pa.R.A.P. 2119(f). (See

appellant’s brief at 26-30.) Accordingly, we must determine whether 

appellant has raised a substantial question.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d 

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) 

(citation omitted). “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 
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(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012), 

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted). “At a minimum, 

the Rule 2119(f) statement must articulate what particular provision of the 

code is violated, what fundamental norms the sentence violates, and the 

manner in which it violates that norm.” Commonwealth v. 

Mastromarino, 2 A.3d 581, 585-586 (Pa.Super. 2010), appeal denied, 14 

A.3d 825 (Pa. 2011) (citation omitted).

Herein, the record reflects that appellant failed to raise his claims that 

the trial court failed to consider his character and personal history during the 

July 30, 2015 sentencing hearing or in his August 6, 2015 post-sentence 

motion. Accordingly, these claims are waived. See Commonwealth v. 

Felder, 75 A.3d 513, 515 (Pa.Super. 2013), appeal denied, 85 A.3d 482 

(Pa. 2014) (stating that, “[c]hallenges to the discretionary aspects of a 

sentence must be raised . . . either in a post-sentence motion or by 

presenting them during the sentencing proceedings. The failure to do so 

results in a waiver of all such claims.” (citations omitted)).

However, to the extent appellant argues in his post-sentence motion 

that the trial court “failed to recognize [his] rehabilitative needs[,]” we find 

this claim presents a substantial question for our review. (See Motion to 

Reconsider Sentence, 8/6/15 at ¶ 8.) See Commonwealth v. Baker, 72 

A.3d 652, 662 (Pa.Super. 2013), appeal denied, 86 A.3d 231 (Pa. 2014)
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(recognizing that an assertion that the trial court failed to account for 

appellant’s rehabilitative needs was a substantial question suitable for 

appellate review). Accordingly, we proceed to consider the merits of this 

claim.

As discussed, the trial court found that appellant was “in total 

noncompliance” with the terms of his probation and sentenced him to an 

aggregate term of 111⁄2 to 23 months’ imprisonment, followed by 2 years’ 

probation. (Notes of testimony, 7/30/15 at 4.) Although the guidelines are 

not applicable herein, the record reflects that this sentence was well within 

the sentencing guidelines range available to the court at the time of initial 

sentencing, in accordance with Section 9771(b). Although the trial court did 

not specifically state at the July 30, 2015 sentencing hearing that it 

considered appellant’s rehabilitative needs, the record reflects that the trial 

court was in possession of a PSI report. (Id. at 2.) Where the trial court 

has the benefit of a PSI report, “we shall . . . presume that the sentencing 

judge was aware of relevant information regarding the defendant’s character 

and weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted). Accordingly, we 

find no abuse of the trial court’s discretion, and appellant’s challenge to the 

discretionary aspects of his sentence must fail.
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Lastly, appellant argues that the sentence imposed at docket number 

CP-02-CR-0011237-2014 was illegal because it failed to give him credit for 

the 33 days that he was incarcerated from the date of his arrest (July 27, 

2014) to the date he posted bond (August 29, 2014). (Appellant’s brief at 

23-24.)

A challenge to a trial court’s failure to award credit for time-served in 

custody implicates the legality, not the discretionary, aspects of sentencing

and is, therefore, appealable as of right. Commonwealth v. Clark, 885 

A.2d 1030, 1032 (Pa.Super. 2005). “[T]he determination as to whether the 

trial court imposed an illegal sentence is a question of law; our standard of 

review in cases dealing with questions of law is plenary.” Commonwealth 

v. Williams, 868 A.2d 529, 532 (Pa.Super. 2005), appeal denied, 890 

A.2d 1059 (Pa. 2005) (citations omitted).

Instantly, the Commonwealth concedes that the certified record is 

“deficient” in that it contains no evidence as to whether appellant is entitled 

to an additional 33 days’ credit for time-served. (Commonwealth’s brief at 

16.) The trial court, in turn, acknowledged in its Rule 1925(a) opinion that it 

was “unable to evaluate the merits of [appellant’s] claim for sentencing 

credit at this time.” (Trial court opinion, 3/7/16 at 5.) We are constrained 

to agree. Accordingly, we vacate appellant’s sentence and remand this 

matter so that the trial court can conduct an evidentiary hearing for the 

limited purpose of determining whether appellant should receive an 
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additional 33 days’ credit for time-served. In all other respects, we affirm 

appellant’s convictions. 

Convictions affirmed. Judgment of sentence vacated. Case remanded 

with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2016