J-S68014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES KEYS,

Appellant No. 1761 WDA 2015

Appeal from the Judgment of Sentence October 7, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008520-2013

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 30, 2016

Appellant James Keys appeals from the judgment of sentence entered 

in the Court of Common Pleas of Allegheny County, following revocation of 

his probation. The judgment of sentence entered on October 7, 2015, was 

rendered final by the denial of Appellant’s post-sentence motion on 

October 20, 2015. We affirm. 

The trial court recounted the relevant history as follows:

In this case, [Appellant] originally pled guilty to one count 

of robbery on December 11, 2013. On March 31, 2014, he was 

sentenced to a term of imprisonment of not less than nine 

months nor more than 18 months followed by three years’ 

probation. On October 7, 2015, [Appellant] appeared before this 

[c]ourt to address allegations that he violated the terms of his 

probation due to a conviction on July 7, 2015 for terroristic 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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threats and criminal mischief. The conviction stemmed from 

[Appellant’s] actions on December 23, 2014 when he threatened 

to kill his ex-paramour and flattened tires of her automobile. 

[Appellant] attempted to physically assault his ex-paramour but 

was stopped from doing so by his 12 year-old son. He was 

sentenced to a term of imprisonment of not less than three 

months nor more than six months. On that date, this [c]ourt 

revoked [Appellant’s] probation and imposed a term of 

incarceration of not less than 18 months nor more than 48 

months followed by three years’ probation. This appeal followed. 

Trial Court Opinion, 1/19/16, at 1–2. 

Appellant raises the following issue on appeal: “Was the sentence of 

eighteen to [forty-eight] months of incarceration, manifestly excessive and 

an abuse of discretion, where the court did not consider the availability of 

community-based resources to address Mr. Keys’ serious rehabilitative 

needs?” Appellant’s Brief at 7 (full capitalization omitted). 

As presented, Appellant challenges the discretionary aspects of his 

sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 

2010) (an appellant’s claim that his sentence is excessive implicates the 

sentence’s discretionary aspects). This Court has held that our scope of 

review in an appeal “from a revocation sentencing includes discretionary 

sentencing challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034 

(Pa. Super. 2013). Nonetheless, Appellant’s challenge to the discretionary 

aspect of his sentence does not entitle him to review as of right. 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation 

omitted). Rather, before this Court can address such a discretionary 

challenge, an appellant must satisfy a four-part test: 
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(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) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

Id.

Appellant herein filed a timely notice of appeal and preserved his issue 

in a post-sentence motion to reconsider his sentence. Additionally, 

Appellant’s brief includes a concise statement of reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of his sentence 

pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 12. Thus, we turn to 

whether Appellant presents a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code. 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 

526, 533 (Pa. Super. 2011). 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 (2) contrary to the fundamental norms which underlie the 

sentencing process. Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. 

Super. 2015) (quoting Prisk, 13 A.3d at 533).

We conclude that Appellant’s assertion that the trial court failed to 

consider his rehabilitative needs resulting in an excessive sentence raises a 

substantial question. See Commonwealth v. Baker, 72 A.3d 652, 662 
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(Pa. Super. 2013) (finding, inter alia, assertion that trial court failed to 

account for an appellant’s rehabilitative needs was substantial question 

suitable for review). Accordingly, we grant Appellant’s petition for allowance 

of appeal and address the merits of his claim.

Appellant’s allegation that the sentencing court did not consider that 

his rehabilitative needs would be best served by community-based resources 

is contradicted by the transcript of the probation revocation proceeding. At 

the hearing, a representative from Allegheny County Adult Probation, Ashley 

Lynn, related that Appellant had been previously paroled to Justice Related 

Services “Pyramid’s 3/4 house.” N.T., 10/7/15, at 17. She recalled that 

when Appellant discovered that his stay at the Pyramid house could extend 

beyond thirty days, “he was very agitated, very disrespectful with staff.” Id. 

Ms. Lynn further informed the court: “There were allegations from the 

program that [Appellant] had been cheating his medications, snorting his 

medications, not following program rules. [Appellant] threatened to leave 

the program. When [Appellant] was confronted about these, he advised that 

Probation would never find him.” Id.

After considering the testimony and entertaining argument of counsel, 

the sentencing court stated: “I did read the presentence report and I did 

read that [Appellant] threatened to leave [the Pryamid 3/4 house]. . . . 

And, indeed, after the [c]ourt addressed him, [Appellant] left and got on the 

phone and said he didn’t care what the [c]ourt said. . . . [Appellant] 
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indicated he won’t follow the rules.” N.T., 10/7/15, at 20. After the court 

announced that it was imposing a term of incarceration, it addressed 

Appellant: “I will not agree with a sentence that allows you to walk out the 

door and you can do whatever you want.” Id. at 23–24. 

The sentencing court further explained its reasons in its opinion filed 

pursuant to Pa.R.A.P. 1925(a) why community-based resources would not 

address Appellant’s rehabilitative needs:

The record in this case supports the sentence imposed by 

this [c]ourt. This [c]ourt considered the presentence report. The 

presentence report and the probation officer at the revocation 

hearing set forth a history of [Appellant’s] non-compliance with 

various jail programs and [Justice Related Services] plans during 

his original incarceration on this case. [Appellant] was recorded 

on a jail telephone boasting that he would not follow this [c]ourt’s 

orders. This [c]ourt is particularly concerned that [Appellant] has 

disregarded this [c]ourt’s admonition that he not have contact 

with his ex-paramour. This [c]ourt had made such a provision a 

condition of the probation imposed in the underlying terroristic 

threats offense that caused his probation to be violated. Nothing 

less than a sentence of total confinement is appropriate in this 

case because [Appellant] is an actual, physical threat to his exparamour. Considering [Appellant’s] brazen willingness to defy 

court orders, this [c]ourt was not willing to risk the safety of 

[Appellant’s] ex-paramour by imposing a non-custodial sentence 

that provided for mental health treatment. This [c]ourt 

recognized that [Appellant] may have mental health issues and 

may [require] treatment but due to his conscious, repeated 

decisions to avoid taking medication, this [c]ourt believed that 

rehabilitation and treatment should occur while [Appellant] was 

incarcerated and under the security of a prison. In sum, this 

[c]ourt imposed the sentence it did because of [Appellant’s] 

refusal to follow court directives and the risk of danger he posed 

to his ex-paramour. 

Trial Court Opinion, 1/19/16, at 4–5. 
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Thus, it is evident that the sentencing court considered Appellant’s 

prior efforts at rehabilitation supervised by community-based resources to 

be unsatisfactory. The court also noted Appellant’s statement that he 

intended to defy the orders of the court. For these reasons, the sentencing 

court determined that Appellant’s rehabilitative needs would be better 

addressed while serving a term of incarceration. We discern no abuse of 

discretion in the sentencing court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2016