J-S18028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN SIMMONS,

Appellant No. 1740 EDA 2014

Appeal from the Judgment of Sentence entered May 8, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0008336-2009

BEFORE: BENDER, P.J.E., ALLEN and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED MARCH 23, 2015

Sean Simmons (“Appellant”) appeals from the judgment of sentence 

imposed following the trial court’s revocation of his probation. We affirm. 

The trial court summarized the pertinent factual and procedural history 

as follows:

On September 25, 2009, Appellant was sentenced to 3 

years probation by the Honorable Roger Gordon after 

pleading guilty to criminal trespass (18 Pa.C.S.A. § 

3503(A)(1)(ii)) as a second degree felony. Appellant’s 

probation was to be supervised by the mental health unit 

of the probation department. On October 18, 2010, 

[A]ppellant was arrested and charged with aggravated 

assault (18 Pa.C.S.A. § 2702), as a felony of the first 

degree, [a] potential direct violation of Judge Gordon’s 

probation. A violation hearing was scheduled before Judge 

Gordon but had to be continued several times pending 

resolution of [A]ppellant’s open bills. On December 14, 

2011, Judge Gordon ordered a pre-sentence investigation 

report, in the event it would be needed for sentencing, and 

continued the hearing for a status of [A]ppellant’s mental 

health. Thereafter, Judge Gordon relinquished jurisdiction, 
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the matter was transferred and [A]ppellant was formally 

accepted into Mental Health Court (MHC). Both the 

potential direct violation of Judge Gordon’s probation and 

the new conviction were consolidated before [the 

Honorable Judge Sheila Woods Skipper]. On May 3, 2012, 

[A]ppellant pleaded nolo contendere to the aggravated 

assault and was sentenced to 111⁄2 - 23 months 

confinement followed by 15 years probation (CP-51-CR0015449-2010). He was also sentenced to 111⁄2 - 23 

months confinement followed by 5 years probation, to run 

concurrently, for the direct violation of Judge Gordon’s 

probation (CP-51-CR-0008336-2009). Appellant was to be 

paroled to a treatment facility upon bed availability and 

ordered to comply with treatment and all the conditions of 

his sentence.

As is the procedure in MHC, [A]ppellant was scheduled 

for status of mental health and treatment hearings at 

regular intervals to monitor his compliance and progress. 

At [A]ppellant’s July 19, 2012 status hearing, [A]ppellant’s 

probation officer reported that [A]ppellant was paroled to 

Eagleville Hospital on July 12, 2012, and was in 

compliance with his treatment program. Appellant was 

reported in compliance at the August 9, 2012 hearing. 

However, on August 28, 2012, [A]ppellant’s probation 

officer issued wanted cards after receiving a report that 

[A]ppellant absconded from the treatment program on 

August 20, 2012, and did not contact his probation officer. 

At the September 27, 2012 hearing the bench warrant was 

lifted, and [A]ppellant was scheduled for a FIR evaluation 

the following day, which he did attend. Appellant was 

reported to be in compliance again at the October 18, 

2012 status hearing. But on November 26, 2012, a 

probation violation warrant was again issued after 

[A]ppellant failed to report to probation as scheduled. At 

the December 6, 2012 status hearing, [A]ppellant was 

taken into custody from the courtroom and a violation 

hearing was scheduled. ... [A] violation hearing was 

scheduled for January 24, 2013 [following which,] despite 

[A]ppellant’s technical violations, [A]ppellant's 

probation/parole was continued and he was directed to reenroll in treatment and report to his probation officer as 

scheduled. Appellant was reported to be in compliance 

with the conditions of his probation at the January 31, 
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2013, March 14, 2013, May 16, 2013, June 20, 2013 and 

August 15, 2013 [status conference] listings.

On September 27, 2013, [A]ppellant’s probation officer 

issued a probation warrant after it was determined that 

[A]ppellant was apprehended on September 30, 2013. At 

the October 17, 2013 status hearing, [A]ppellant’s 

probation officer reported that [A]ppellant had tested 

positive for drugs. Appellant remained in custody until the 

November 14, 2013 violation hearing. Following the 

hearing, [A]ppellant was found in violation of his 

probation/parole due to the technical violations and, in lieu 

of a new sentence, the [trial court] considered 

[A]ppellant’s time spent in custody as his sanction. At the 

December 12, 2013 listing, [A]ppellant was once again 

reported to be in compliance with the conditions of his 

treatment, however he failed to appear for the hearing, ... 

and a bench warrant nunc pro tunc was issued. Appellant 

did appear for the February 28, 2014 listing. His probation 

officer reported that he was once again not in compliance 

with his treatment program and a violation hearing was 

scheduled for May 8, 2014. At the hearing, [A]ppellant’s 

probation officer testified that [A]ppellant was not 

reporting as scheduled to the probation department and 

she received information that [A]ppellant had not been to 

his treatment program since March 11, 2014. When she 

spoke with [A]ppellant, he falsely assured her that he was 

back in the program. However, when she contacted 

Wedge Franklin she learned that [A]ppellant was not 

attending and had been discharged from the program on 

April 11, 2014. Appellant also tested positive for 

marijuana. 

Trial Court Opinion, 8/21/14, at 1-4 (footnotes omitted).

At the conclusion of the May 8, 2014 hearing, the trial court found 

Appellant in technical violation of his probation and re-sentenced him to 

three (3) – six (6) years of incarceration. Appellant filed a motion for 

reconsideration on May 16, 2014, which the trial court denied on June 3, 
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2014. This appeal followed. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

Did not the [trial court] abuse its discretion and impose a 

sentence that was manifestly excessive where it failed to order, 

consider, or state its reasons for dispensing with a pre-sentence 

investigation report in violation of the Rules of Criminal 

Procedure, Rule 702(A)(2), and where it sentenced [A]ppellant 

to total confinement absent his having been convicted of a new 

crime, absent any indication that he was likely to commit a new 

crime, and absent a need to vindicate the authority of the court, 

in violation of the requirements of 42 Pa.C.S.A. § 9771(c)?

Appellant’s Brief at 3.

Appellant asserts that at the sentencing hearing, the trial court failed 

to order a pre-sentence investigation report, and failed to provide reasons 

on the record for its decision not to order the report, thereby abusing its 

sentencing discretion. Appellant’s Brief at 11-15. 

Appellant’s challenge to the discretionary aspects of his sentence is not 

appealable as of right. Rather, Appellant must petition for allowance of 

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 

A.2d 1254, 1257 (Pa. Super. 2004).

Before we reach the merits of this [issue], we must engage 

in a four part analysis to determine: (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. The third and fourth of 

these requirements arise because Appellant's attack on his 

sentence is not an appeal as of right. Rather, he must petition 
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this Court, in his concise statement of reasons, to grant 

consideration of his appeal on the grounds that there is a 

substantial question. Finally, if the appeal satisfies each of these 

four requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations 

omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. 

Super. 2008) (“[W]hen a court revokes probation and imposes a new 

sentence, a criminal defendant needs to preserve challenges to the 

discretionary aspects of that new sentence either by objecting during the 

revocation sentencing or by filing a post-sentence motion”).

Here, Appellant preserved his claim in his motion for reconsideration, 

and filed a timely notice of appeal. Appellant has additionally included in his 

brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s 

Brief at 6-8. Moreover, Appellant’s claim that the trial court failed to order a 

pre-sentence investigation report, or provide reasons for its failure to do so, 

raises a substantial question for our review. See Commonwealth v. 

Flowers, 950 A.2d 330, 332 (Pa. Super. 2008).

In Commonwealth v. Pasture --- A.3d ----, 2014 WL 7392242 (Pa. 

2014), our Supreme Court recently reiterated the “broad discretion and 

deferential standard of appellate review” we afford to a trial court when 

presented with a challenge to the discretionary aspects of a sentence. The 

High Court in Pasture emphasized that “the sentencing court sentences 

flesh-and-blood defendants and the nuances of sentencing decisions are 
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difficult to gauge from the cold transcript used upon appellate review. 

Moreover, 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.” Pasture at 5 (citations 

omitted). With particular regard to probation revocation proceedings, the 

Supreme Court explained:

The sentencing court's institutional advantage is, perhaps, 

more pronounced in fashioning a sentence following the 

revocation of probation, which is qualitatively different than an 

initial sentencing proceeding. At initial sentencing, all of the 

rules and procedures designed to inform the court and to cabin 

its discretionary sentencing authority properly are involved and 

play a crucial role. However, it is a different matter when a 

defendant reappears before the court for sentencing proceedings 

following a violation of the mercy bestowed upon him in the form 

of a probationary sentence. For example, in such a case, 

contrary to when an initial sentence is imposed, the Sentencing 

Guidelines do not apply, and the revocation court is not cabined 

by Section 9721(b)'s requirement that “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. 

Upon revoking 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). Thus, upon revoking probation, the trial court is 

limited only by the maximum sentence that it could have 

imposed originally at the time of the probationary sentence, 

although once probation has been revoked, the court shall not 

impose a sentence of total confinement unless it finds that:

(1) the defendant has been convicted of another crime; or
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(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).

Moreover, 42 Pa.C.S. § 9721(b) specifies that in every 

case following the 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.” See also Pa.R.Crim.P. 708(C)(2) (indicating 

at the time of sentence following the revocation of probation, 

“[t]he judge shall state on the record the reasons for the 

sentence imposed.”).

However, following revocation, a sentencing court need not 

undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statutes in question. 

Simply put, since the defendant has previously appeared before 

the sentencing court, the stated reasons for a revocation 

sentence need not be as elaborate as that which is required at 

initial sentencing. The rationale for this is obvious. When 

sentencing is a consequence of the revocation of probation, the 

trial judge is already fully informed as to the facts and 

circumstances of both the crime and the nature of the 

defendant, particularly where, as here, the trial judge had the 

benefit of a [pre-sentence investigation report] during the initial 

sentencing proceedings. ... [T]here is no absolute requirement 

that a trial judge, who has already given the defendant one 

sentencing break after having the benefit of a full record, 

including a [pre-sentence investigation report], must order 

another [pre-sentence investigation report] before fashioning the 

appropriate revocation sentence. 

***

In point of fact, where the revocation sentence was adequately 

considered and sufficiently explained on the record by the 

revocation judge, in light of the judge's experience with the 

defendant and awareness of the circumstances of the probation 

violation, under the appropriate deferential standard of review, 

the sentence, if within the statutory bounds, is peculiarly within 

the judge's discretion.
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Pasture at 6 (citations omitted). 

Here, our review of the record confirms that the trial court was very 

familiar with Appellant, having presided over numerous proceedings in this 

matter. The record reflects that on May 3, 2012, the trial court conducted a 

probation revocation hearing, at which Appellant was found in violation of his 

probation and re-sentenced. Thereafter, the trial court repeatedly reviewed 

Appellant’s progress at numerous treatment “status of mental health” 

conferences, at which the trial court reviewed Appellant’s compliance with 

his treatment program. See e.g., Trial Court Orders, 7/19/12; 10/18/12; 

12/06/12; 1/24/13 (finding Appellant competent and ordering him to report 

to probation and re-enroll in treatment); 1/31/13 (finding Appellant in 

compliance with his program); 3/14/13; 5/16/13 (finding Appellant in 

compliance with his program). Thus, the trial court in the years preceding 

the revocation proceeding at issue in this appeal, regularly reviewed 

Appellant’s progress, and was quite familiar with Appellant and the facts and 

circumstances of his case.

Moreover, at the revocation hearing on May 8, 2014, the trial court 

heard a detailed account of Appellant’s progress from Appellant’s probation 

officer, Keisha Adams. N.T., 5/8/14, at 3. Ms. Adams recounted Appellant’s 

irregular reporting history, his family circumstances, his lack of compliance 

with his treatment program, his submission of false urine samples, Ms. 

Adams’ efforts to communicate with Appellant about his lack of compliance, 
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and Appellant’s failure to respond to Ms. Adams’ requests. Id. at 3-5. The 

trial court additionally heard from Appellant, who stated that he was “back in 

treatment.” Id. at 6. 

As the trial court explained:

Appellant’s sentence of 3-6 years is well below the maximum. ... 

[A]ppellant’s behavior demonstrated to the Court that he had 

not benefitted from probation and the services provided during 

his probation, and was likely to re-offend. After numerous 

technical violations and failures to comply with the conditions of 

his sentence and MHC, it was obvious that [A]ppellant had no 

intention of conforming his behavior. Moreover, [A]ppellant’s 

sentence was necessary to vindicate the authority of the Court 

since [A]ppellant failed to comply with the conditions of his 

sentence despite the Court giving him several informal sanctions 

before violating him a second time.

* * *

The record demonstrates that, having supervised [A]ppellant 

since May 2012, as a participant in Mental Health Court, the 

[trial court] was in possession of several reports and evaluations 

from psychiatrists, [A]ppellant’s social workers and case 

managers, treatment facility staff, and probation officers, and 

possessed more than sufficient information to enable it to make 

a determination of the circumstances of [A]ppellant’s offense 

and [A]ppellant’s character, and give individualized consideration 

to [A]ppellant’s needs at sentencing. Prior to sentencing 

[A]ppellant, the [trial court] noted that while [A]ppellant did 

have some periods of compliance, there were also several 

instances where he had failed to report to his probation officer, 

had been sanctioned for non-compliance and had submitted 

positive drug screens. In addition, the [trial court] noted that 

this was [A]ppellant’s second violation hearing before the [trial 

court]. Therefore, the [trial court] had sufficient information to 

substitute for the [pre-sentence investigation report] when 

fashioning an individualized sentence for [A]ppellant and this 

claim fails.

Trial Court Opinion, 8/21/14 at 6-8 (citation to notes of testimony omitted).
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We agree with the trial court that in the absence of a pre-sentence 

investigation report, the trial court was sufficiently informed of the relevant 

facts and circumstances to enable it to “fashion the appropriate revocation 

sentence.” Pasture, supra. Appellant’s claim to the contrary lacks merit.

To the extent Appellant argues that the trial court sentenced him to 

total confinement based on his technical violations, and without considering 

the applicable statutory factors set forth in 42 Pa.C.S.A. § 9771(c), this 

claim also lacks merit.1 “Technical violations can support revocation and a 

sentence of incarceration when such violations are flagrant and indicate an 

inability to reform.” Carver, 923 A.2d at 498. As the trial court correctly 

concluded, numerous attempts to rehabilitate Appellant had not only failed, 

but led to a continuation of noncompliant behavior, with Appellant incurring 

“escalating ... infractions”, indicating that he “had not taken his supervision 

seriously, and that [A]ppellant had the ability to make good decisions but 

chose to do otherwise[.]” Trial Court Opinion, 8/21/14, at 9. Appellant 

failed to comply with his court-ordered mental health treatment, provided 

false urine samples to his probation officer, tested positive for marijuana, 

repeatedly failed to meet with his probation officer, and provided her with 

false information about his participation in the treatment program. Upon 

____________________________________________

1

“[A] claim that a particular probation revocation sentence is excessive in 

light of its underlying technical violations can present a question that we 

should review.” Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 

2007).
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review, we find no abuse of discretion in the trial court’s determination that 

Appellant’s sentence of incarceration was appropriate to vindicate the 

authority of the court. See Trial Court Opinion, 8/21/14, at 6. Therefore, 

we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2015