J

- S07036

- 23

NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MELVIN KING
Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 866 EDA 2020 Appeal from the Judgment of Sentence Entered February 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008683

- 2014

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 26, 2023
Appellant, Melvin King, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following revocation of his
probation. We affirm.
The trial court opinion set forth the relevant facts and procedural history

of thi s case as follows:

In 2015, Appellant was found guilty by the [the trial court] of two violations of the Controlled Substance, Drug, Device, and Cosmetic Act [at No. 8683

- 2014]

. Appellant was sentenced t o twenty

- one to forty

- two months ’ confinement, with three years of probation to follow [, with credit for time served]

. In 2018, [while serving the probationary portion of his sentence,] Appellant was charged [at No. 3697

- 2018] with three vi olations of the Uniform Firearms Act and two vio lations of the Crimes Code in relation to his involvement in a gunfight in Philadelphia. Because [the original jurist] was no longer sitting in the Criminal Section of the Trial Division at that time, Appellant’s matter was assigned to [a
new jurist]

. In 2019, Appellant proceeded to trial and was found guilty by a jury of one violation of the UniformJ

- S07036

- 23

- 2

- Firearms Act

... . After considering Appellant’s presentence [investigation] report [(“PSI”)] , Appellant’s mental health report, submissions by the Commonweal th and Appellant, Appellant’s prior record score, the sentencing guidelines, and the purposes of the sentencing code, [the court] sentenced Appellant to six to twelve years ’ confinement [at No. 3697

- 2018]

. Based on this new conviction, [the c] ourt also f o und Appellant in direct violation of his probation and accordingly revoked Appellant’s probation [at No. 8683

- 2014]

. [The c] ourt then resentenced Appellant to two

- and

a - half to five years ’ confinement, to b e served concurrently with the sentence imposed for Appellant’s new conviction.
(Trial Court Opinion , filed 11/2/21 , at 1

- 2)

. Appellant did not file post

sentence motions at No. 8683

- 2014.
Appellant timely filed a notice of appeal from the revocatio n sentence at

No. 8683

- 2014 on March 6, 2020. On March 10, 2020, t he court ordered

A ppellant to file a Pa.R.A.P. 1925(b) statement of errors complained on of
appeal , and Appellant subsequently complied.
On appeal, Appellant raises the following issue s for our review:

Whether t he sentencing court abused its discretion b y imposing a sentence after a probation violation that was not based upon the gravity of the violation, the extent of A ppellant’s record, his prospect of rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 Pa.C.S. Section 9721 of the Sentencing Code.

Whether t he evidence was insufficient as a matter of law to make a determination that A ppellant was in direct violation of the terms and conditions of his probation when the Commonwealth failed to establish the specific conditions of probation during the revocation hearing and the initial sentencing court did not advise A ppellant of all the
con ditions of his probation at the initial sentencing hearing.J

- S07036

- 23

- 3

-

(Appellant ’s Brief at 7).
In his first issue, Appellant argues the court abused its discretion in
imposing an unreasonable sentence following revocation . Appellant avers the
court ignored mitigating factors from the Sente ncing Code , such as his
personal characteristics , the extent of his prior record, the gravity of the
offense in relation to the community, and Appellant’s rehabilitative needs.
Appellant concludes this Court should vacate the judgment of sentence or
remand for resentencing. As presented, Appellant’s first claim challenge s the
discretionary aspects of sentencing. See Commonwealth v. Lutes , 793

A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspe cts of sentencing ); Commonwealth

v. Cruz
- Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied , 544 Pa.
653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).

“C halleng es to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. ” Commonwealth v. Phillips , 946 A.2d
103, 112 (Pa.Super. 2008) , cert. denied , 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed. 2d 240 (2009)

. Prior to reaching the merits of a discretionary aspect of
sentencing issue:

We conduct a four

- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whetherJ

- S07036

- 23

- 4

- there is a substantial question that the sentence appealed from is not appropriate un der the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied , 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super

. 2006), appeal denied , 589 Pa. 727, 909 A.2d
303 (2006)). Generally, objections to the discretionary aspects of a sentence
are waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2 d 788, 794 (Pa.Super. 2003), appeal denied , 574 Pa. 759, 831 A.2d
599 (2003).
Instantly, Appellant did not challenge the discretionary aspects of his
sentence at the time of sentencing or in a post

- sentence motion. 1 Therefore,
Appellant’s first issue is waived. See id. Moreover, even if Appellant had
preserved a discretionary aspects challenge, it would not merit relief.

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

_________________ __________ ______ ____ _______

1 We note Appellant did file a post

- sentence motion on February 18, 2020, wherein he challenged the weight of the evidence supporting his convictions at No. 3697

- 2018 . T he post

- sentence motion did not include any challenge to the new revocation sentence imposed at No. 8683

- 2014, and the court denied the motion on February 25, 2020.J

- S07036

- 23

- 5

-

sentence should not be disturbed where it is evident the court was aware of
the appropri ate sentencing considerations and weighed them in a meaningful

fashion. Commonwealth v. Fish , 752 A.2d 921, 923 (Pa.Super. 2000).
“[U]pon sentencing following a revocation of probation, the trial court is
limited only by the maximum sentence that it co uld have imposed originally
at the time of the probationary sentence.” Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a defendant to
total confinement after revoking probation if the defendant was convicted of

another crime, the defendant’s conduct indicates it is likely that he will commit
another crime if he is not imprisoned, or such a sentence is essential to
vindicate the court’s authority. Commonwealth v. Crump , 995 A.2d 1280
(Pa.Super. 2010), appeal denied , 608 Pa. 661, 13 A.3d 475 (2010). I f the
sentencing court has the benefit of a PSI report, the law presumes the court
was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with any mitigating factors.

Commonwealth v. Tirado , 870 A.2d 362 , 368 (Pa.Super. 2005).

A [PSI] report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that [ sentencing courts] are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the [PSI] report, the sentencing court’s discretion should not be disturbed. This is pa rticularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion.J

- S07036

- 23

- 6

-

Com monwealth v. Devers , 519 Pa. 88, 102, 546 A.2d 12, 18 (1988).
Instantly, Appellant addressed the court at the revocation hearing

. Appellant t ook responsibility for his possessi on of the firearm , and he
explain ed that he “ felt the need for protection in the type of neighborhood

that I live d in

. ” ( See N.T. Revocation Hearing , 2/14/20, at 13). Des pite
Appellant’s statement, th e court revoked probation , impos ed a new sentence , and emphasized :

I have considered the [PSI report] , the mental he alth report, the submissions by the Commonwealth and defense, prior record score report, sentencing guidelines, purposes of the sentencing code

. [Appellant] , there are several issues here. One is that basically you’ve been dealing drugs, it looks like consistently, since 1998 as an adult. Before that, as a juvenile since 1994. It’s been like a business it looks like. In and out of juvenile facilities. As an adult, you hav e 19 arrests, 15 convictions, 20 commitments. In the c ounty prison, state prison, violations, but it’s all for drug dealing

. * * *
I don’t think you ever stopped drug dealing from what I can tell because the most recent arrest for drug dealing was January 20 th of 2018 and that was when [ another jurist ] imposed a sentence of 9 to 23 months of incarceration. This incident th en happened , it looks like, on April 29 th of 2018, which I think was an incident that happened just five months after the January arrest. I don’t know what’s going on, but people tell me drugs is not a violent crime, it’s a nonviolent crime. It’s not. It leads to shootings. I don’t know why people are shooting at you and you were shooting at people, but, considering everything else in this case, I don’t think that the guidelines of 72 to 90 in terms of the

— should be eight or nine years, but there is a major problem. You’ve been dealing drugs most of your life. I don’t know what elseJ

- S07036

- 23

- 7

- to say. A shooting on the street like this, I saw the video, as did the jury many times. I think y ou should get all the necessary medical treatment

. That has nothing to do with where you’re at in terms of

— and I will send an email to the state prison people detailing the medical condition , [ 2 ] the medications you’re taking and other things, and ma [k] e sure that they have that.
( Id. at 1 4

- 1 6 ). The reafter, the court revoked probation and resentenced
Appellant to two and one

- half ( 21⁄2 ) to five ( 5 ) years of imprisonment at No.

8683

- 2014

.
In i ts Rule 1925(a) opinion, the court elaborated on the reasoning for
Appellant’s new sentence :

[The ] court followed the fundamental norms of the sentencing process and appropriately sentenced Appellant after revoking his probation. Prior to sentencing Appellant on both his firearm conviction a n d violation of probation in this case, [the ] c ourt reviewed Appellant’s [PSI] r eport, his
m ental h ealth e valuation, the Commonwealth’s sentencing memorandum, submissions from Appellant’s family, Appella nt’s prior record score, the s entencing g uidelines f orm required by the Pennsylvania Commission on Sentencing, and finally, the stated pur poses of the Sentencing Code

. The record therefore refle c ts [the ] c ourt’s careful consideration of the facts of Appel lant’s crime and character. [The ] c ourt expressed concerns about Appellant’s extensive prior record, not ing that Appellant had previously been arrested nineteen times, convicted fifteen tim e s, violated probation or parole nineteen times, and committed to prison twenty times, including for violations of probation or parole.

* * *

_________________ __________ ______ ____ _______

2 Earlier in the hearing, Appellant explained that he suffered from “non

ischemic cardiom yopathy,” and he received a pacemaker for this condition. (N.T. Revocation Hearing at 13).J

- S07036

- 23

- 8

- A sentence of total confinement was both appropriate and permissible, as his conviction in this case was punishable by total confinement, and Appellant had been convict ed of another crime. Appellant ’ s new sentence of total confinement was additionally far less than the maximum sentence that could have been imposed at the time of Appellant’s probationary sentence

. Appellant’s [possession with the intent to deliver] conviction alone carried a maximum sentence of twenty years, a fact Appellant acknowledged when he signed the jury waiver colloquy form. Moreover, because the new sentence of total confinement was imposed concurrently, Appellant will be able to c omplete this sentenc e at the same time he serves the sentence ordered in his 2019 firearm conviction.
( Trial Court Opinion at 1 9

- 2 0 ) (some capitalization omitted)

. Here, the record makes clear that the court adequately considered the
general principles of sentencing , as well as the PSI r eport. T he presence of a

PSI report allows us to presume that the court was aware of A ppellant’s
character and mitigating factors, and the court’s discretion while using a PSI
report should not be disturbed. See Devers , supra ; Tirado

, supra

. Under
these circumstances, w e cannot fault the court for determining that
Appellant’s new arrest and conviction while on probation weighed in favor of

the new sentence of incarceration. See Colon , supra

. In his second issue, Appellant asserts that the revocation court did not

he ar evidence on the probation violation and did not allow Appellant to defend
against the violation

. Appellant alleges “ t here is no e vidence on the record to
support and sustain the conviction for the violation and the resulting judgment

of sentence.” (Appellant’s Brief at 15). Appellant concludes that this Court

should vacate his judgment of sentence or remand for resentencing. WeJ

- S07036

- 23

- 9

-

disagree.
The following principles apply to our review of a probation revocation:
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.

Colon , supra at 1 041 ( internal citations and quotation marks omitted)

. “[A]

court may find a defendant in violation of probation only if the defendant has

violated one of the ‘ specific conditions ’ of probation included in the probation

order or has committed a new crime

. ” Commonwealth v. Foster , 654 Pa.
266, 282, 214 A.3d 1240, 1250 (2019) (emphasis added). “ Revocation and
resentencing are warranted if, in the face of a new criminal act or the violation
of a condition of probation, the court finds that probation is no longer
achieving its desired aims of rehabilitation and deter ring criminal activity. ”

Id. at 284, 214 A.3d at 1251.
Instantly, while on probation for the offense at N o. 8683

- 2014 , Appellant committed a new offense

. The Commonwealth charged Appellant

with the new offense at No. 3697

- 2018 , and a jury found him guilty of violating

the Uniform Firearms Act

. This conviction alone warranted the revocation of
Appellant’s probation. See i d. Consequently , the record support s the court ’s

determin ation that Appellant violat ed his probation based on his conviction for

a new crime

. See Colon, supra

.J

- S07036

- 23

- 10

-

To the extent Appellant also claims that he did not have an opportunity

to raise a ny defense, we note that the court conducted revocation proceedings
immediately after imposing the sentence for Appellant’s firearm s conviction at

N o. 3697

- 2018. At that time, defense counsel reminded the court that it still

needed to address the probation violation at N o. 8683

- 2014. ( See N.T.
Revocation Hearing at 17). At that point, Appellant could have attempted to
provide some type of defense, but he did not. Thus , t he court imposed the

new sentence at N o. 8683

- 2014, and Appellant indicated that he understood

the sent ence imposed. ( Id. ) On this record , Appellant is not entitled to relief

on his second claim

. Accordingly, we affirm.
Judg ment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2023