J-S37026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DACITA SCOTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1022 EDA 2020

Appeal from the Judgment of Sentence Entered March 13, 2020

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0003689-2018

COMMONWEALTH OF PENNSYLVANIA

v.

DACITA SCOTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1023 EDA 2020

Appeal from the Judgment of Sentence Entered March 13, 2020

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0009896-2017

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED JANUARY 18, 2022

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* Former Justice specially assigned to the Superior Court.
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Dacita Scott (Appellant) appeals from the judgment of sentence 

imposed after the trial court revoked her probation at the above docket 

numbers.

1

 After careful consideration, we affirm.

On September 5, 2017, Appellant broke into the home of her “ex,” R.S.,

and took two bags of his clothing and two gallons of water. N.T., 11/14/19, 

at 8, 27. When R.S. told Appellant “to stop,” she “threatened him with a 

knife.” Id. at 27. No one was injured and Appellant “left the house and was 

subsequently arrested.” Id. At docket CP-51-CR-0009896-2017, the 

Commonwealth charged Appellant with theft by unlawful taking (theft), 

possession of an instrument of crime (PIC), and defiant trespass.2

On March 18, 2018, Appellant entered R.S.’s home in violation of a 

protection from abuse (PFA) order. N.T., 11/14/19, at 28. At docket CP-51-

CR-0003689-2018, the Commonwealth charged Appellant with defiant 

trespass and contempt of a PFA order.3

Appellant appeared before the trial court on November 14, 2019, and

entered a global negotiated guilty plea to theft, PIC, contempt of a PFA order, 

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1 On April 10, 2020, Appellant filed a notice of appeal at each docket, in 

compliance with Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). 

On June 18, 2021, this Court consolidated Appellant’s appeals sua sponte.

2 18 Pa.C.S.A. §§ 3921(a), 907(a), and 3503(b).

3 18 Pa.C.S.A. § 3503(b) and 23 Pa.C.S.A. § 6114(a). 
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and two counts of defiant trespass.4 The court sentenced Appellant, 

“consistent with the negotiations,” to 3 years of probation. N.T., 11/14/19, 

at 37-38.

Approximately six weeks later, on December 23, 2019, the 

Commonwealth filed a Gagnon I5 summary alleging that Appellant had 

committed multiple reporting violations, tested positive for PCP, and failed to 

attend her initial mental health evaluation.

6 Gagnon I Summary, 12/23/19, 

at 2. Appellant appeared before the court on January 9, 2020 for a Gagnon 

II hearing. After the hearing, the trial court concluded that Appellant 

“constitutes an immediate present danger,” found her to be in violation of her 

supervision, and revoked her probation. See N.T., 1/9/20, at 6. The court 

deferred sentencing for the preparation of a forensic intensive recovery

evaluation, mental health evaluation, and pre-sentence investigation (PSI) 

report. Id. at 4. The court stated that it wanted “to look at commitment, 

recommendations for treatment, and a full dual diagnosis evaluation.” Id. at 

7.

On March 13, 2020, the court resentenced Appellant to 21⁄2 - 5 years of 

incarceration, followed by 5 years of probation. Defense counsel made an oral 

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4 Appellant also pled guilty to a separate charge of contempt of a PFA order at 

docket number MC-51-CR-0020964-2019. N.T., 11/14/19, at 29.

5 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

6 The Commonwealth stated that Appellant was “being supervised by the 

Domestic Violence Unit for” violating “active PFA order ... 1803V7007.” 

Gagnon I Summary, 12/23/19, at 2.
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motion for the court to reconsider its sentence, which the court denied. See

N.T., 3/13/20, at 24-26. Appellant timely appealed. Both Appellant and the 

trial court have complied with Pa.R.A.P. 1925. 

Appellant presents one issue for review:

Was the VOP court’s imposition of a 2 year and 6 months to 5 year 

sentence of imprisonment, followed by 5 years of probation,

greater than necessary to vindicate the authority of the court, 

where [Appellant] committed the technical violation of absconding 

for 60 days during a drug relapse? 

Appellant’s Brief at 3. 

Appellant challenges the discretionary aspects of sentencing. “The right 

to appellate review of the discretionary aspects of a sentence is not absolute, 

and must be considered a petition for permission to appeal.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). 

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction 

when challenging the discretionary aspects of a sentence.” Id. We conduct 

this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). “A defendant presents a substantial question when [s]he sets forth

a plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 
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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted).

Appellant has complied with the first three prongs of this test by raising 

her issue at sentencing, filing timely notices of appeal, and including in her

brief a Rule 2119(f) concise statement. See Appellant’s Brief at 8-9. 

Therefore, we examine whether Appellant presents a substantial question.

Appellant argues that the trial court improperly “imposed a sentence of 

total confinement for technical violations when the prerequisites in 42 Pa.C.S. 

§ 9771(c) were not met[.]” Appellant’s Brief at 8. Appellant also asserts her

sentence “is disproportionate to the conduct at issue and was not justified by 

sufficient reasons.” Id. Both claims raise a substantial question. See 

Commonwealth v. Lucky, 229 A.3d 657, 664 (Pa. Super. 2020). We thus 

examine the merits of Appellant’s sentencing issue.

Preliminarily, we recognize,

the proper standard of review when considering whether to affirm 

the sentencing court’s determination is an abuse of discretion ... 

[A]n abuse of discretion is more than a mere error of judgment; 

thus, a sentencing court will not have abused its discretion unless 

the record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will. 

In more expansive terms, our Court recently offered: An abuse 

of discretion may not be found merely because an appellate court 

might have reached a different conclusion, but requires a result of 

manifest unreasonableness, or partiality, prejudice, bias, or illwill, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly 

deferential standard of appellate review is that the sentencing 

court is in the best position to determine the proper penalty for a 
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particular offense based upon an evaluation of the individual 

circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010)

(citation omitted).

With respect to her violation, Appellant states:

she failed to report to her probation officer on two occasions, failed 

to complete a court-ordered mental health assessment and failed 

her first and only drug test. The VOP sentence imposed was the 

statutory maximum consisting of 21⁄2 to 5 years’ confinement on 

the most serious charge of Theft, graded as a first-degree 

misdemeanor.

Appellant’s Brief at 6. Appellant argues her sentence is “disproportionate to 

the violation and far in excess of what was necessary to foster Appellant’s 

rehabilitation or protect the public.” Id. at 7. Appellant claims the trial court 

“failed to take into consideration the nature and characteristics of the 

underlying offense,” as well as the provisions of the Sentencing Code. Id.

She also contends the court “relied on its own erroneous belief that Appellant 

had continued to maintain prohibited contact” with R.S. during probation. Id. 

She maintains the court “improperly weighed the sentencing factors it did 

consider – choosing to focus on the inconsistent reporting and failed drug 

screen, fully discounting her employment, her struggles with her mental 

health and physical health as well as the abuse she had endured earlier in 

life.” Id. The Commonwealth agrees with Appellant. See Commonwealth 

Brief at 2 (stating trial court “improperly considered [Appellant’s] preprobationary conduct” and failed to demonstrate that total confinement “was 
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necessary to either prevent [Appellant] from committing future crimes or 

vindicate its authority.”). Upon review, and consistent with Moury, supra, 

we do not find the sentence to be “clearly erroneous.”

We first address Appellant’s contention that the trial court “relied on its 

own erroneous belief that Appellant had continued to maintain prohibited 

contact with [R.S.] during probation.” Appellant’s Brief at 7. This claim is 

belied by the record. 

We have explained: 

A sentence is invalid if the record discloses that the sentencing 

court may have relied in whole or in part upon an impermissible 

consideration. This is so because the court violates the 

defendant’s right to due process if, in deciding upon the sentence, 

it considers unreliable information, or information affecting the 

court’s impartiality, or information that it is otherwise unfair to 

hold against the defendant. 

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

(citations omitted).

Further,

In deciding whether a trial judge considered only permissible 

factors in sentencing a defendant, an appellate court must, of 

necessity, review all of the judge’s comments. Moreover, in 

making this determination it is not necessary that an appellate 

court be convinced that the trial judge in fact relied upon an 

erroneous consideration; it is sufficient to render a sentence 

invalid if it reasonably appears from the record that the trial court 

relied in whole or in part upon such a factor. 

Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (citation 

omitted).
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Instantly, the trial court never referenced Appellant having prohibited

contact with R.S. when it stated the reasons for the sentence. See N.T., 

3/13/20, at 17-21. To the contrary, the court expressly acknowledged

Appellant’s testimony that she had stopped contacting R.S.:

THE COURT: Well, here’s the problem, and I get that it’s a 

complicated one, but even when I handled the violation hearing, 

there were some stated concerns about whatever contact you had 

with [R.S.] at the time that you were prohibited from doing that. 

Your reporting of what you’re doing is conflicting. 

[Appellant]: Excuse me, Your Honor. Can I ask a question? My 

violation with the gentleman that him and I – I text him I loved 

him, that was from a year ago. That has – that wasn’t – that was 

from 2017 –

THE COURT: I understand that. 

[Appellant]: That wasn’t recent. I haven’t been –

THE COURT: Okay. I’m glad you’re not having any contact 

with him now. That’s very healthy. Okay. Duly noted. Thank 

you. 

N.T., 3/13/20, at 16 (emphasis added). 

As indicated above, the trial court understood that Appellant was no 

longer contacting R.S. As to Appellant’s argument that the court disregarded 

the Sentencing Code, we reiterate the court’s “broad discretion” and our 

“concomitantly deferential standard of appellate review” based on the 

sentencing court being “in the best position to determine the particular 

penalty[.]” Moury, supra.

[A] sentencing court may choose from any of the sentencing 

options that existed at the time of the original sentencing, 

including incarceration. 42 Pa.C.S.[A.] § 9771(b). However, the 
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imposition of total confinement upon revocation requires a finding 

that either “(1) the defendant has been convicted of another 

crime; or (2) the conduct of the defendant indicates that it is likely 

that [s]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).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote 

omitted). The court is limited only by the maximum sentence that it could 

have imposed originally at the time of the probationary sentence. 

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

resentence may not exceed the statutory limits of the sentence, including 

allowable deductions for time served. Id. 

Our Supreme Court has stated,

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 PSI during the initial sentencing 

proceedings. See Walls, 592 Pa. at 574 n.7, 926 A.2d at 967 n. 

7 (“Where [PSI] exist[s], we shall continue to 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.”). 

Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 2014).
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Here, the trial court stated it had “reviewed the mental health 

evaluation, as well as the ... full [PSI] report.” N.T., 3/13/20, at 9. The court 

then addressed Appellant at length: 

Okay. All right. [Appellant], the difficulty that has been 

presented is that I and the Commonwealth and your counsel, and 

apparently prior efforts as well, have done everything we can do 

to help you, and the only impediment to that was you. 

And your recording of your history and minimizing your drug 

activity, even as reflected in the presentence investigation, is 

most troublesome. I’m going to go over some salient points that 

are recollected and that I reviewed. 

I think you’re 44 years old now. You reflected that there 

were difficulties in your family growing up. You reflected that once 

your parents separated, your mom was the primary caretaker of 

you. You reflected as a teenager, you viewed your mom as 

overprotective and you were rebellious. And you reflected that 

your father was abusive, physically and verbally. 

You reflected that your dad was an alcoholic and more 

volatile when intoxicated. You reflected that you, yourself, w[ere] 

involved in at least one abusive relationship. You reflected that 

your housing has changed from state to state. 

You did acknowledge that you had made poor decisions 

throughout your life. You reflected that you did receive counseling 

back – when you reported abuse back when you were much 

younger. You stated that you had five children with four different 

men throughout time, that your three older children did, after 

being placed with other folks did do well in life so far, attending 

college. 

Your daughter graduated with a business major, University 

of Pittsburgh. Your second oldest daughter [went] to Harcum. 

Your son’s reportedly attending New England School of Culinary 

Arts. 

You indicated that two of your children had been diagnosed 

with [] mental health difficulties, and I believe DHS is involved 

with the care of your younger children, or child. Not sure which. 
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In terms of your education, you reflected that you attended 

University City High School, withdrew because you became 

pregnant with your first child in 12th grade. You did go on, attend 

vocational training through Delaware County. You obtained a 

certificate as a nursing assistant but no additional training, and it 

looks like the employment that you’ve indicated was basically 

receiving assistance for caring for your mother.

You did report a last employment, I think, with Grass Roots 

for $100 worth in 2019. That was verified, but it would appear 

that your earlier employment was earlier in time. 

Looking at this – and then I will get to the diagnosis and the 

hospitalizations – that you appeared to have gone off the rails, as 

they say, and you’ve struggled through time. I recognize that. 

You’ve reported that you’ve been diagnosed with bipolar disorder, 

depression, anxiety, schizophrenia, post-traumatic stress 

disorder, and attention deficit hyperactive disorder, and that you 

have had treatment on and off since the age of ten. 

The therapeutic care that you’ve indicated you received was 

during childhood through Community Council. You reported that 

in your 30s, you were involved or committed and received two 

hospitalizations. It was reported for the last three years, you have 

been receiving mental health-related medication through Penn 

Presbyterian Medical Center. I’m assuming that that’s where you 

were obtaining your Suboxone. 

However, all of those efforts have been repeatedly 

defeated because of your abuse of alcohol and various 

types of narcotic substances. You cannot expect to progress 

with mental health difficulties if you invade your body with 

narcotics. Particularly, you reported that you’re drinking alcohol, 

used marijuana, powder cocaine, and progressed to Percocet, 

heroin, and you claimed that you had not been using any of the 

same, and that you claim that you unknowingly [] ingested PCP. 

I find that incredulous at best. 

Your avoidance of being drug tested as pursuant to the order 

of the [c]ourt reflected that indeed you were back using narcotics. 

And PCP, as you well know, is a very serious, significant 

hallucinogenic, and that combined with your proper treatment for 

your other mental health problems, is a recipe for disaster. 
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And I can well infer from all these collective facts, ma’am, 

that the difficulties that were presented in your respective 

relationships, including the one with [R.S.] and the other person 

with the other PFA, may have stemmed and been associated with 

that because if you are high on PCP while you are supposed 

to be taking your medicines, you’re not in your right mind, 

and that’s when very violent things can happen. 

And indeed, you’re very fortunate that it has not been 

worse, and you are very fortunate that we are once again 

presented with an opportunity to do what you say you wish to do. 

But part and parcel of doing that, [Appellant], is taking firm 

responsibility for your actions. 

It’s not just a desire to change; you have to do it. The keys 

were always in your hands, [Appellant]. 

And I knew the day you were before me on that negotiated 

guilty plea because of how you presented yourself that it would 

not be long before you would come back. 

My sentence is going to reflect that I firmly believe 

that you present a danger to yourself and to others and are 

at high risk for recidivism, and I don’t want to see anything 

bad happen to anybody, particularly you. 

N.T., 3/13/20, at 17-21 (emphasis added).

The above commentary reveals the trial court’s determination that 

“probation had been ineffective[.]” Trial Court Opinion, 12/15/20, at 8. In 

addition to indicating that incarceration is necessary to vindicate the court’s 

authority, the court found Appellant will likely commit another crime if she is 

not incarcerated, see N.T., 3/13/21, at 21 (advising Appellant, “you present 

a danger . . . and are at high risk for recidivism”). Swope, supra. In alluding 

to Appellant “initially receiv[ing the benefit of] a lenient sentence,” Pasture, 

107 A.3d at 28, the court stated it “had at length evaluated [Appellant’s] 
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situation, and I feel that this is best.” N.T., 3/13/20, at 24. The court 

reviewed Appellant’s PSI as well as other reports, and considered her personal 

history which included mitigating factors and myriad struggles. We disagree 

with Appellant’s claim that the court disregarded the Sentencing Code and 

“improperly weighed” the factors it considered. Appellant’s Brief at 7.

In sum, “the record as a whole” reflects the sentencing court’s 

consideration of the facts and [Appellant’s] character,” Crump, 995 A.2d at 

1283, and we discern no abuse of discretion. Moury, 992 A.2d at 170 (“An 

abuse of discretion may not be found merely because an appellate court might 

have reached a different conclusion.”) (citation omitted); see also id. (“the 

sentencing court is in the best position to determine the proper penalty for a 

particular offense based upon an evaluation of the individual circumstances 

before it.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/2022