J-S25005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OSCAR EARL FINK III

Appellant No. 1598 MDA 2013

Appeal from the Judgment of Sentence August 7, 2013

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): CI-12-05815

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 18, 2014

Oscar Earl Fink, III, appeals from the judgment of sentence imposed 

on August 7, 2013, in the Court of Common Pleas of Lancaster County, upon 

the revocation of his probation, and made final by the denial of postsentence motions on August 19, 2013. On October 3, 2012, Fink pled guilty 

to indirect criminal contempt (“ICC”) for violation of a protection from abuse 

(“PFA”) order,1and was sentenced to six months’ probation. On August 7, 

2013, the court revoked his probation and sentenced him to a term of six 

months’ incarceration.

2

 On appeal, Fink challenges the discretionary aspects 

____________________________________________

1

 23 Pa.C.S. § 6114(a).

2

 As will be discussed infra, in a related matter, Fink also pled guilty to 

robbery on October 3, 2013, at Docket No. 4551-2012, and sentenced to a 

(Footnote Continued Next Page)
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of his sentence. After a thorough review of the submissions by the parties, 

the certified record, and relevant law, we affirm.

The facts underlying Fink’s conviction are well known to the parties, 

and aptly summarized in the trial court’s opinion. See Trial Court Opinion, 

10/23/2013, at 1-8. Therefore, we need only summarize the procedural 

history. On June 20, 2012, Fink’s paramour filed a PFA petition against Fink. 

A temporary PFA order was issued that same day. Seven days later, a 

criminal complaint was filed against Fink, charging him with one count of 

ICC, at Reference Number 12-0138, for violating the PFA order by contacting 

the victim. On July 2, 2012, after a hearing, where Fink failed to appear, 

the court found the victim had been abused by Fink pursuant to the 

temporary order, and a final PFA order was entered for a period of three 

years. 

Subsequently, on July 10, 2012, a second criminal complaint was filed 

against Fink, charging him with one count of ICC, at Reference Number 12-

(Footnote Continued) _______________________

term of three to 23 months in county prison, followed by four years’ 

probation. At the August 7, 2013, probation violation hearing, the probation 

related to the robbery conviction was revoked and Fink was sentenced to 

serve the unexpired balance of his minimum sentence for the robbery 

offense.
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0139,3for calling and threatening the victim. Thereafter, on August 24, 

2012, a third criminal complaint was issued against Fink, again charging him 

with one count of ICC, at Reference Number 12-0137, for allegedly 

approaching the victim, taking items from her, and pushing her to the 

ground. That same day, a separate criminal complaint was filed against 

Fink, at Docket Number 4551-2012, charging him with robbery, theft by 

unlawful taking, and simple assault domestic violence, based upon the same 

conduct that resulted in the filing of the ICC at Reference Number 12-0137.

On October 3, 2012, a hearing on two of the ICC charges was held, to 

which Fink did appear.4 After hearing testimony, the court found Fink guilty 

of the two ICC charges at Reference Numbers 12-0138 and 12-0139. The 

court then sentenced Fink to six months of incarceration with regard to the 

ICC conviction at Reference Number 12-0138, and a consecutive term of six 

months’ probation with respect to the ICC conviction at Reference Number 

12-0139.

____________________________________________

3

 ICC Reference Number 12-0139 is at Civil Docket Number CI-12-05815, 

and the case on appeal here.

4

 Prior to the proceeding, the Commonwealth moved to nol pros the ICC 

charge at Reference Number 12-0137, because of the separate criminal 

prosecution, at Docket Number 4551-2012, that was pending based upon 

the same conduct.
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With respect to the criminal prosecution, on March 5, 2013, Fink pled 

guilty to robbery and received a split sentence of three to 23 months in 

county prison, followed by four years’ probation. The sentence at Docket 

Number 4551-2012 was made concurrent to the ICC sentence. On May 12, 

2013, the court signed an order, directing that Fink would be released from 

prison on May 21, 2013, for the robbery conviction. Pursuant to his release, 

Fink acknowledged he was informed that he needed to report to the 

Lancaster County Adult Probation and Parole Services Office on May 31, 

2013, for an appointment. However, on June 21, 2013, Fink’s probation 

officer filed a petition to issue capias and bench warrants against Fink on the 

ICC conviction, at Reference Number 12-0139, and the robbery conviction,5

based upon Fink’s failure to appear for probation appointments on May 31, 

2013, June 11, 2013, and June 20, 2013. The court then issued separate 

orders directing that capias and bench warrants shall be issued against Fink.

On August 7, 2013, a hearing was held on Fink’s probation violations. 

Fink and his probation officer both testified. At the conclusion of the 

hearing, the court found Fink was in violation of his probation, which was 

revoked. Prior to imposing a sentence, the trial court considered Fink’s 

extensive criminal history, his prior probation and/or parole violations, 

____________________________________________

5

 Fink had completed his sentence of six months’ incarceration on ICC 

Reference Number 12-0138.
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comments made by Fink during the hearing, testimony provided by the 

probation officer, and other information provided to the court. Based on this 

evidence, the court concluded probation had not been an effective 

rehabilitation tool for Fink, and that incarceration was essential to vindicate 

the authority of the court. The court then sentenced Fink to six months’ 

incarceration on the ICC conviction, at Reference Number 12-0139. The 

court also imposed imprisonment for the unexpired balance of his minimum 

sentence on the robbery conviction, but he was made eligible for parole after 

serving six months in jail. The sentences were made consecutive to one 

another, so Fink’s aggregate sentence was 12 months’ incarceration, 

followed by probation/parole. 

On August 15, 2013, Fink filed a post-sentence motion, arguing that 

the six-month sentence imposed by the court on October 3, 2012 (ICC 

Reference Number 12-0138), for violating the underlying temporary PFA 

order, was illegal based upon this Court’s decision in Ferko-Fox v. Fox, 68 

A.3d 917 (Pa. Super. 2013). Fink asserted that consequently, when 

sentencing him on the probation violation under ICC Reference Number 12-

0139, the Court should have retroactively taken into consideration the illegal 

sentence on ICC Reference Number 12-0138, and imposed probation or a 

jail sentence concurrent to the robbery sentence. Fink also filed a motion to 

modify his sentence, alleging the trial court abused its discretion by failing to 
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adequately consider mitigating circumstances and by imposing consecutive 

sentences. The trial court denied Fink’s post-sentence motions on August 

19, 2013. On September 6, 2013, Fink filed a notice of appeal, seeking to 

appeal only the probation violation sentence under ICC Reference Number 

12-0139.

6, 7

 

On appeal, Fink claims the trial court’s sentence of the unexpired 

balance of the original sentence on Docket Number 4551-2012, which was 

imposed consecutively to the sentence at ICC Reference Number 12-0139, 

was manifestly excessive, an abuse of discretion, and contrary to the 

fundamental norms underlying the sentencing process because the court 

failed to adequately consider the fact that the victim was no longer in fear of 

him, which was evidenced by the fact that she petitioned the court to 

withdraw the PFA order against him, and the probation violation was for 

missed appointments with the probation officer, not for engaging in any new 

criminal activity. Fink’s Brief at 14. Likewise, Fink asserts the court failed to 

consider his “character and rehabilitative needs,” which he states are as 

____________________________________________

6

 Fink did not appeal the revocation sentence imposed with regard to the 

robbery conviction at Docket Number 4551-2012.

7

 On September 6, 2013, the trial court ordered Fink to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Fink filed a concise statement on September 27, 2013. The trial court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) on October 23, 2013.
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follows: (1) he was having issues with his family; (2) his girlfriend’s exhusband was causing issues for him during his probationary period; (3) his 

girlfriend, the victim, was present in the courtroom in support of him during 

the hearing and sentencing; and (3) he was employed by the Manheim Auto 

Auction as a car detailer. Id. at 14-15. Additionally, Fink argues the court 

failed to consider that he had already served an illegal sentence with respect 

to his ICC conviction at Reference Number 12-0138 based on Ferko-Fox

when sentencing him on the probation violations as “this was a relevant 

factor.”8 Id. at 16.

Initially, we note Fink only appealed his probation revocation sentence 

with regard to his ICC conviction at Reference Number 12-0139, and not his 

robbery conviction at Docket Number 4551-2012. See Notice of Appeal, 

9/6/2013.9 Therefore, we will limit our analysis to the extent that Fink

challenges his ICC sentence. See Pa.R.A.P. 902 (manner of taking appeal).

Fink’s argument on appeal challenges the discretionary aspects of his 

sentence. See Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 

____________________________________________

8 We will address this contention, separately, at the end of our analysis.

9

 Moreover, a review of Fink’s post-sentence motion reveals that a majority 

of his argument was devoted to challenge the legality of his sentence as to 

his ICC conviction at Reference Number 12-0138 and how it should apply to 

his ICC conviction at Reference Number 12-0139. See Fink’s Post-Sentence 

Motion to Vacate Illegal Sentence, 8/15/2013, at unnumbered 2-4. He also 

raised discretionary aspects of sentencing claims. Id. at unnumbered 4.
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2003) (“a claim that the sentence imposed by the trial court was manifestly 

excessive is a challenge to the discretionary aspects of the sentence.”); 

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (a 

claim that a trial court failed to consider the defendant’s rehabilitative needs 

and the protection of society is a challenge to the discretionary aspects of 

sentencing).

The standard of review for a claim challenging a discretionary aspect 

of sentencing is well-established:

Sentencing is a matter vested in the sound 

discretion of the judge, and will not be disturbed on 

appeal absent a manifest abuse of discretion. An 

abuse of discretion is not shown merely by an error 

in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or 

ill will, or arrived at a manifestly unreasonable 

decision. 

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation 

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). 

“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. 

Super. 2007) (citations and quotation marks omitted). To reach the merits 

of a discretionary issue, this Court must determine: 
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(1) whether appellant has filed a timely notice of appeal; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence; (3) whether 

appellant's brief has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) 

(footnotes omitted). 

Here, Fink did file a timely notice of appeal, preserved the issue in a 

post-sentence motion, and included the requisite statement pursuant to 

Pa.R.A.P. 2119(f) in his appellate brief. Therefore, we may proceed to 

determine whether Fink has presented a substantial question that the 

sentence appealed from is not appropriate under the Sentencing Code. 

Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013).10 

____________________________________________

10

 With respect to whether an issue presents a substantial question, we are 

guided by the following:

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. See 

Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825 

(Pa. Super. 2007). “A substantial question exits 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 (2) contrary to the 

fundamental norms which underlie the sentencing process.” 

Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932, 

2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and 

quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).
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To the extent Fink argues his sentence was manifestly excessive, such 

a claim does raise a substantial question. See Commonwealth v. Kelly, 

33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is manifestly 

excessive such that it constitutes too severe a punishment raises a 

substantial question.”). Moreover, a claim that the trial court failed to 

consider a defendant’s rehabilitative needs and protection of society also 

raises a substantial question. See Downing, 990 A.2d at 793. However, 

generally, “an allegation that the sentencing court ‘failed to consider’ or ‘did 

not adequately consider’ various factors does not raise a substantial question 

that the sentence was inappropriate.” Id., citing Dunphy, 20 A.3d at 1222. 

While Fink does raise an excessiveness argument, a review of his brief does 

not reveal any claims concerning his rehabilitative needs. Furthermore, his 

assertion that the court failed to consider certain mitigating circumstances 

does not present a substantial question. Therefore, our review is restricted 

to Fink’s claim that his sentence was manifestly excessive.

“In general, 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.” 

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006). “[A]

sentence should not be disturbed where it is evident that the sentencing

court was aware of sentencing considerations and weighed the
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considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d

921, 923 (Pa. Super. 2000).

“[I]t is well settled that the sentencing guidelines do not apply to 

sentences imposed as a result of probation or parole revocations.” 

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001) 

(citation and quotation marks omitted). The general standards for 

sentencing are as follows: “the sentence imposed should call for 

confinement that is 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 on the 

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 

9721(b); see also Commonwealth v. Walls, 846 A.2d 152, 157-158 (Pa. 

Super. 2004).11 

____________________________________________

11

 42 Pa.C.S. § 9771, entitled “Modification or revocation of order of 

probation”, provides as follows:

(a) General rule.--The court may at any time terminate 

continued supervision or lessen or increase the conditions upon 

which an order of probation has been imposed.

(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, due consideration being given to the time 

spent serving the order of probation.

(Footnote Continued Next Page)
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“In addition, in all cases where the court resentences an offender 

following revocation of probation ... the court shall make as a part of the

record, and disclose in open court at the time of sentencing, a statement of

the reason or reasons for the sentence imposed [and] [f]ailure to comply

with these provisions shall be grounds for vacating the sentence or

resentence and resentencing the defendant.” Commonwealth v.

Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations

omitted); 42 Pa.C.S. § 9721(b). “A trial court need not undertake a lengthy 

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing

court’s consideration of the facts of the crime and character of the offender.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282-1283 (Pa. Super. 2010).

(Footnote Continued) _______________________

(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. § 9771(a)-(c) (italics in original; emphasis added).
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Here, while Fink did commit technical violations of his probation, and 

not any new criminal activity, the trial court found total confinement 

following the revocation of Fink’s probation was necessary because probation 

had not been an effective rehabilitation tool for him, and a sentence of 

incarceration was necessary to vindicate the authority of the court. See

N.T., 8/7/2013, at 4, 9. Specifically, the court stated:

You were given significant breaks, as far as I’m concerned, 

because when I found you guilty, I could have given you 12 

months in jail. I only gave you six months. You were given 

another break by the judge who sentenced you on the robbery, 

and made that sentence concurrent to my sentence on the ICC, 

when it could have been consecutive. You won’t get those 

breaks today.

Id. at 9.

In its Rule 1925(a) opinion, the trial court further explained its 

rationale:

Prior to imposing sentence, the Court considered [Fink]’s 

significant criminal record of 13 prior convictions dating back to 

1996, [Fink]’s 10 prior probation/parole violations, comments 

made by [Fink] and his counsel, testimony from the probation 

officer, and all information obtained when [Fink] previously 

appeared before this Court for his ICC charges on October 3, 

2012, when [Fink] was cautioned that if he violated probation he 

faced six additional months in jail. For these reasons, the Court 

determined that probation had not been an effective 

rehabilitation tool and a sentence of total confinement was 

essential to vindicate the authority of the court. See 42 Pa.C.S. 

§§ 9771(c)(3). 

[Fink] suggests an aggregate sentence of 12 months 

incarceration in Lancaster County Prison is unreasonable. By 

doing so, [Fink] ignores the threatening and violent nature of 
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these offenses, his terrible prior record, previous unsuccessful 

periods of supervision, the break [Fink] received when he was 

initially placed on probation for the ICC, and the additional break 

[Fink] received when his sentence on the robbery conviction was 

made concurrent to the ICC sentence. [Leonard v. Smith, 684 

A.2d 622, 627 (Pa. Super. 1996)] (the trial court’s sentence of 

18 months imprisonment for three separate counts of ICC was 

not excessive).

As noted in Crump, supra, sentencing on a probation 

violation is a matter vested within the discretion of the trial 

court, and will not be disturbed absent a manifest abuse of 

discretion. [Crump,] 995 A.2d at 1282. [Fink] has 

demonstrated utter contempt for his probation officer, this 

Court, and the administration of justice. For these reasons, 

there was no abuse of discretion committed by the Court.

Trial Court Opinion, 10/23/2013, at 13-14. In light of the above-mentioned 

considerations, and upon our review of the record, we conclude the trial 

court did not abuse its discretion in imposing Fink’s sentence following its 

revocation of his probation as it was not manifestly excessive. Therefore, 

we will not disturb it herein.

Lastly, as stated above, Fink asserts the court failed to consider that 

he had already served an illegal sentence with respect to his ICC conviction 

at Reference Number 12-0138 when sentencing him on the present 

probation violations. Fink’s Brief at 16. This argument fails for several 

reasons.

First, we are guided by the following principle:

[w]hen, on appeal from a sentence imposed following probation 

revocation, an appellant collaterally attacks the legality of the 

underlying conviction or sentence,
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such an approach is incorrect and inadequate for two 

reasons. First any collateral attack of the underlying 

conviction [or sentence] must be raised in a petition 

pursuant to the Post-Conviction Relief Act. Second, such 

an evaluation ignores the procedural posture of [the] case, 

where the focus is on the probation revocation hearing and 

the sentence imposed consequent to the probation 

revocation, not the underlying conviction and sentence.

Commonwealth v. Beasley, 391 Pa. Super. 287, 570 A.2d 

1336, 1338 (Pa. Super. 1990).

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013). 

Here, Fink is attempting to attack the legality of his sentence with 

respect to his underlying ICC conviction at Reference Number 12-0138 by 

claiming that it was illegal pursuant to Ferko-Fox, supra. He is not 

permitted to do so with respect to the present appeal.12 See Infante. 

Moreover, we emphasize our review of the matter is limited to the probation 

revocation hearing and the present sentence imposed consequent to the 

probation revocation, not a underlying conviction and sentence. See id. 

Second, Fink is essentially asking for time served because he believes 

the six-month sentence he served for the allegedly illegal sentence at 

Reference Number 12-0138 should be applied to his sentence at Reference 

____________________________________________

12

 The proper time to raise this argument would have been on direct appeal 

from either the issuance of the final PFA order or on direct appeal from the 

original judgment of sentence imposed on October 3, 2012.
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Number 12-0139. See Fink’s Brief at 15-16; see also Fink’s Post-Sentence 

Motion to Vacate Illegal Sentence, 8/15/2013, at unnumbered 4.

Credit for time served is governed by statute, in pertinent part, as 

follows:

§ 9760. Credit for time served

After reviewing the information submitted under section 9737 

(relating to report of outstanding charges and sentences) the 

court shall give credit as follows:

...

(3) If the defendant is serving multiple sentences, and if one of 

the sentences is set aside as the result of direct or collateral 

attack, credit against the maximum and any minimum term of 

the remaining sentences shall be given for all time served in 

relation to the sentence set aside since the commission of the 

offenses on which the sentences were based.

42 Pa.C.S. § 9730(3). Here, Fink’s sentence at Reference Number 12-0138 

was never set aside because he failed to directly or collaterally attack its 

legality. He cannot now ask for credit for time served as to a sentence that 

was not found to be improper.

Third, we find Ferko-Fox, upon which Fink relies, is not dispositive in 

the present matter. In Ferko-Fox, the plaintiff-wife filed a PFA petition 

against defendant-husband and was granted a temporary PFA order. On 

appeal, Husband challenged the propriety of the temporary PFA order that 

the trial court entered. He contended that 23 Pa.C.S. § 6107 “mandates 

that a trial court conduct an ex parte hearing before issuing a temporary PFA 
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and that ‘a simple review of a verified petition’ is inappropriate.” FerkoFox, 68 A.3d at 920. The local practice for issuing PFA orders was as 

follows: 

Lancaster County established an informal practice before the trial 

courts in PFA matters, as follows. The court initially reviews a 

PFA petition in camera to determine if the allegations raised in 

the petition establish an immediate and present danger of abuse. 

If the trial court determines that the four corners of the PFA 

petition are sufficient to support the required finding of an 

immediate and present danger, then it will issue a temporary 

PFA and schedule a hearing for a final PFA within ten days.

Id. at 923-924. On appeal, a panel of this Court determined: 

[T]he stated practice does not comply with § 6107(b) because it 

reduces the procedural safeguards established within the section 

and increases the risk of an erroneous deprivation of the 

respondent's liberty. 

...

Indeed, an appreciable difference exists, in terms of ensuring the 

truthful allegations of abuse, between a review of the verified 

allegations listed in a PFA petition and the conduct of an ex parte

hearing. A person may blithely execute a petition inflating 

claims of abuse. On the other hand, the process of appearing in 

court before a judge and swearing to testify truthfully would 

necessarily give one pause about leveling exaggerated or 

specious allegations against another person. Further, in-person 

examination of the petitioner during a hearing permits the trial 

court to inquire of facts and circumstances beyond the 

allegations that the victim delineated in the petition. It is, in 

practice, impossible for a trial court to discern from its review of 

pre-printed PFA form whether a petitioner has an improper 

motive, such as retaliation or to gain an advantage in another 

proceeding.
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Id. at 924. Therefore, the panel held that “absent an exigent circumstance 

that prevents a petitioner’s appearance, due process mandates that a trial 

court convene an ex parte hearing prior to entering a temporary PFA order 

pursuant to § 6107(b).” Id. at 925. Nevertheless, the panel indicated that 

“since a final PFA order was entered herein following a full adversarial 

proceeding, the lack of an ex parte hearing in the present matter is not 

grounds for reversal of the final PFA order.” Id. 

Here, we apply Ferko-Fox for the limited conclusion that because a 

final PFA order was entered following a full adversarial proceeding on July 2, 

2012, where Fink failed to appear, the lack of an ex parte hearing prior to 

the issuance of the temporary PFA order would not have been grounds for 

reversal of the underlying final PFA order.13 Accordingly, we find Fink’s 

argument unavailing, and we affirm the judgment of sentence.

____________________________________________

13

 We note that the trial court addressed the issue of retroactivity with 

respect to Ferko-Fox. Trial Court Opinion, 10/23/2013, at 14-18. 

However, we need not address that issue based on our disposition. We 

“may affirm the lower court on any basis, even one not considered or 

presented in the court below.” Commonwealth v. Burns, 988 A.2d 684, 

690 n. 6 (Pa. Super. 2009).
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2014