J-S01007-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee :

 :

v. :

:

STEPHEN SUMMERS, :

 :

Appellant : No. 97 WDA 2014 

Appeal from the Judgment of Sentence entered on October 29, 2013 

in the Court of Common Pleas of McKean County, 

Criminal Division, No. CP-42-CR-0000472-2010 

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 19, 2015 

 Stephen Summers (“Summers”) appeals from the judgment of 

sentence imposed following the revocation of his probation.1 We affirm. 

 In August 2011, Summers entered guilty pleas, in two separate cases, 

in the McKean County Court of Common Pleas. At case number 472 CR 

2010 (hereinafter “No. 472”), Summers pled guilty to possession with intent 

to deliver a controlled substance (“PWID”).2 At case number 473 CR 2010 

(hereinafter “No. 473”), Summers pled guilty to possession of a controlled 

substance and possession of drug paraphernalia.3 On September 22, 2011, 

 

1

 Although Summers purports to appeal from the trial court’s Order revoking 

his probation, the proper subject of this appeal is the judgment of sentence 

imposed following revocation. We have altered the caption accordingly, and 

observe that Summers’s appeal is timely. 

2

 35 P.S. § 780-113(a)(30). 

3

 35 P.S. § 780-113(a)(16), (32).
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the trial court imposed a sentence, at No. 472, of six to twelve months in 

prison, followed by three years of probation. On the same date, at No. 473, 

the trial court imposed an aggregate sentence of seven to twenty-four 

months in prison, and ordered this sentence to run consecutively to the 

sentence at No. 472. Therefore, Summers received an aggregate sentence, 

to be served in a state correctional institution, of thirteen to thirty-six 

months, followed by three years of probation. 

Summers timely filed a Motion to modify sentence concerning both No. 

472 and No. 473. The trial court granted Summers’s Motion, re-sentencing 

him as follows: at No. 472, to three years of probation; and at No. 473, to a 

consecutive aggregate sentence of seven to twenty-four months, to be 

served in the McKean County Jail. The re-sentencing Order further provided 

that Summers’s probation and parole was to be within the province of the 

Pennsylvania Board of Probation and Parole (“the PBPP”). In April 2012, 

Summers was released on parole from his sentence of incarceration at No. 

473, and placed under the supervision of the PBPP. 

In its Pa.R.A.P. 1925(a) Opinion, the probation revocation court set 

forth the relevant history, which transpired thereafter, as follows: 

A probation officer of the PBPP attempted a home visit to 

[Summers’s] residence [in Bradford, Pennsylvania] on December 

12, 2012, and he was unable to locate [Summers] at his 

registered address. 

[The] PBPP issued a warrant for [Summers’s] arrest. 

[Summers] was subsequently arrested[, in New York state,] on 

March 22, 2013, for absconding from supervision at [No.] 473 .... 

[Summers’s] parole was revoked, and he was committed to the 
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McKean County Jail. The Commonwealth filed a [P]etition to 

revoke [Summers’s] probation at [No.] 472 .... The [probation 

revocation c]ourt held a revocation hearing at which [Summers] 

admitted to absconding from supervision .... Upon consideration 

of the Commonwealth’s request to revoke [Summers’s]

probation[,] and [Summers’s] admission to absconding from 

supervision, the [c]ourt revoked the probation [at No. 472] and 

sentenced [Summers, on October 29, 2013,] to [a term of] 

incarceration of 1 to 2 years[,] to be served consecutive to the 

sentence at [No.] 473 ....[4] [Summers] filed a Motion to Modify 

Sentence, which the [probation revocation c]ourt denied by 

Order dated December 20, 2013. 

Probation Revocation Court Opinion, 4/23/14, at 1-2 (footnote added). 

Thereafter, Summers timely filed a Notice of Appeal, and a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. 

On appeal, Summers presents the following issues for our review: 

A. Whether the [probation revocation] court abused its

discretion in imposing a state sentence of total confinement of 

not less than one [] year nor more than two [] years[,] upon 

revocation of [Summers’s] probation for a technical probation 

violation of absconding from supervision, contrary to the 

limitation set forth in 42 Pa.C.S.[A.] § 9771(c) (re: 

 

 

4

 Pursuant to an Order of the PBPP, at No. 473, Summers was recommitted 

to prison to serve the balance of his unexpired term for his technical parole 

violation. 
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 “Limitation on sentence of total confinement”)?[5]

B. Whether the [probation revocation] court abused its

discretion in imposing a state sentence of total confinement 

by considering [Summers’s] pre-probationary criminal history 

in concluding that [Summers] was likely to commit another 

crime, in violation of 42 Pa.C.S.[A.] § 9771(d)[?6] 

Brief for Appellant at 2 (footnotes added, internal citation to record omitted). 

 Summers first argues that the probation revocation court abused its 

discretion by imposing a sentence of total confinement for his technical 

probation violation, contrary to section 9771(c).7 Id. at 6-7. 

Summers challenges the discretionary aspects of his sentence. See 

Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013) (en 

banc) (stating that challenges under section 9771(c) implicate the 

 

5

 Section 9771(c) provides as follows: 

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.A. § 9771(c). 

6

 Section 9771(d) provides, in relevant part, that “[t]here shall be no 

revocation or increase of conditions of sentence under this section except 

after a hearing at which the court shall consider the record of the sentencing 

proceeding together with evidence of the conduct of the defendant while on 

probation.” 42 Pa.C.S.A. § 9771(d). 

7

 We observe that Summers’s probation revocation sentence at No. 472 was 

within the statutory limits for his underlying conviction of PWID.
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discretionary aspects of sentencing). Challenges to the discretionary aspects 

of sentencing do not entitle an appellant to review as of right. 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to 

reaching the merits of a discretionary sentencing issue, 

[this Court conducts] 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, [see] 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, [see] 42 

Pa.C.S.A. § 9781(b). 

Moury, 992 A.2d at 170 (citation omitted). 

Here, Summers filed a timely Notice of Appeal. He also has included a 

concise statement of the reasons relied upon for allowance of appeal in his 

brief, pursuant to Pa.R.A.P 2119(f). Additionally, Summers preserved his 

challenge concerning section 9771(c) at sentencing. Summers claims that 

he has raised a substantial question that his probation revocation sentence 

of total confinement is not appropriate because (1) it was imposed as a 

result of a mere technical violation of his probation; and (2) there was not 

sufficient evidence to support this sentence under either sub-sections 

9771(c)(2) or (3). See Brief for Appellant at 6-7. Specifically, Summers

argues as follows: 

In this case, there was no evidence of conduct of 

[Summers] that indicated it was likely that he would commit 

another crime if not imprisoned. In its Rule 1925(a) [Opinion], 

the [probation revocation] court found that [Summers] was 

likely to commit another crime because of his “spotty 
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employment, criminal and residential histories....” [Probation 

Revocation Court Opinion, 4/23/14, at] 4. It is suggested that 

these factors are insufficient to demonstrate a likelihood to 

commit another crime. 

Additionally, a sentence of total confinement was not 

essential to vindicate the authority of the [probation revocation] 

court, especially considering that [Summers] was serving a 

sentence of total confinement on his parole violation at No. 

473.... 

Brief for Appellant at 7 (footnotes omitted). 

Summers’s claim presents a substantial question. See

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (stating 

that a substantial question is presented when a probation revocation 

sentence of total confinement, in excess of the original sentence, is imposed 

as a result of a technical violation of parole or probation).8 

 The imposition of sentence following the revocation of probation is 

vested within the sound discretion of the probation revocation court, which, 

absent an abuse of that discretion, will not be disturbed on appeal. Id. On 

review, we determine the validity of the probation revocation proceedings 

 

8 We observe that technical violations, including absconding from 

supervision, are sufficient to trigger the revocation of probation. See 

Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super. 2010); see 

also Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005) (stating 

that “the reason for revocation of probation need not necessarily be the 

commission of or conviction for subsequent criminal conduct. Rather, ... [a] 

probation violation is established whenever it is shown that the conduct of 

the probationer indicates the probation has proven to have been an 

ineffective vehicle to accomplish rehabilitation and not sufficient to deter 

against future antisocial conduct.” (citation omitted)); Commonwealth v. 

Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (acknowledging that technical 

violations, where flagrant and indicative of an inability to reform, can 

support revocation and imprisonment).
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and the authority of the probation revocation court to consider the same 

sentencing alternatives that it had at the time of the initial sentencing. See

42 Pa.C.S.A. § 9771(b); Commonwealth v. Gheen, 688 A.2d 1206, 1207-

08 (Pa. Super. 1997). Following revocation of probation, a probation 

revocation court need not undertake a lengthy discourse for its reasons for 

imposing a sentence of total confinement, but the record as a whole must 

reflect the probation revocation court’s consideration of the facts of the 

crime and character of the offender. Commonwealth v. Crump, 995 A.2d 

1280, 1283 (Pa. Super. 2010). 

Here, the probation revocation court addressed Summers’s sentencing 

challenge concerning section 9771(c) in its Rule 1925(a) Opinion as follows: 

 At the sentencing hearing on the revocation of 

[Summers’s] probation, the [probation revocation c]ourt stated 

the reasons for imposition of a sentence of total confinement. 

[T]he sentence of total confinement was [imposed] pursuant to 

subsections (2) and (3) [of section 9771(c)]. The [c]ourt stated 

as follows [prior to imposing sentence]: 

 [T]he [c]ourt has of course reviewed the record here, 

the Petition to Revoke Probation[,] and it[] [has] also 

looked back to the first sentencing. We have the 

transcript and[,] at th[e] time [of Summers’s first

sentencing,] I noted out of the PSI, [Summers’s] criminal 

history indicates there is a prior criminal record of 

unauthorized use and disorderly conduct both in New

York State and Pennsylvania. 

 The [c]ourt looked at the fact that ... there’s no good 

history of employment. For the past three years, 

[Summers] has just lived at various different addresses 

in Bradford and he doesn’t even have an established life 

for himself at his age. He has children but I don’t think 

he probably is supporting them if he doesn't have a job.... 
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 ... And it was a total state sentence at the time. 

Then [Summers’s counsel] came back and had a Motion

to Reconsider[,] and at that time the [c]ourt considered 

the fact that [Summers] had a child and he must have 

given me the whole story the way he’s giving it to me 

now. And even though I’ve been around long enough 

that I usually don’t buy it; I bought it with you. 

 I relented and changed your sentence. I amended 

the sentence to make it a sentence ... to be served [in the 

county jail]. And what do you do? I find that you r[a]n 

off for four months [and] absconded. You haven’t lived 

up to what I said. You haven’t been working in ... a job 

to try and make money to take care of this family you 

say you’re taking care of. 

 The whole past record that I have is still the same. 

Obviously[,] you were in prison so you couldn’t make 

some changes at the beginning or in jail[. Y]ou luckily 

had convinced me not to send you to [a] state 

[correctional institution]. But [] I see on the drug and 

alcohol report that you’re making gradual change. Well, 

that means that you haven’t gotten to a point yet where 

you should be out on probation because you still need 

treatment. And so with that attitude that you’ve shown, 

disregard for the [c]ourt having given you a break that 

you ... pull the stunt like this, I think that you do need 

incarceration because there is likelihood that with no job 

and with a criminal history ..., [] you’ll commit another 

crime.... 

 ... A[]lso, the sentence is essential to vindicate the 

authority of the [c]ourt that you were able to snow one 

time and you’re not going to snow this [c]ourt again. 

([N.T., 10/29/13, at] Page 9, Line 6 to Page 11, Line 2.) 

 The [probation revocation c]ourt found that [Summers’s] 

conduct indicated that there was the likelihood that he will 

commit another crime if not incarcerated. The [c]ourt also 

explained that the sentence of total incarceration was necessary 

to vindicate the [c]ourt in having previously sentenced 

[Summers], on the underlying charges, to a lenient term upon 

reconsideration from a state sentence because of [Summers’s] 

plea to the [c]ourt to make him available to his family. The 
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[c]ourt then found that his plea was a sham. The [c]ourt’s 

authority in sentencing had been manipulated by deceitful 

representations of [Summers]. The authority of the [c]ourt was 

vindicated by its returning to a state sentence. 

 ... The [c]ourt articulated the reasons in support of a 

sentence of total confinement upon revocation of [Summers’s] 

probation. Moreover, the reasons giving rise to the sentence are 

pursuant to the exceptions that are expressly carved out of the 

general limitation against a sentence of total confinement in 

Section 9771. Because the [c]ourt found that [Summers], with 

spotty employment, criminal, and residential histories, was likely 

to commit another crime if not incarcerated, and because 

[Summers] flaunted the [c]ourt’s discretion in resentencing him 

on the underlying charge, the current re-sentence of total 

confinement was not an abuse of discretion. 

Probation Revocation Court Opinion, 4/23/14, at 2-4. 

For the purpose of the instant appeal, we will focus upon the probation 

revocation court’s finding that there were sufficient grounds under section 

9771(c)(3) to warrant imposing a sentence of total confinement because 

same was essential to vindicate the authority of the court. After review, we 

discern no abuse of discretion in the court’s finding in this regard, 

particularly in light of the facts that Summers (1) absconded from 

supervision and fled to another state for several months; and (2) flaunted 

the sentencing court’s previous leniency in granting Summers’s Motion for 

reconsideration of sentence, and re-sentencing him at No. 472 to merely a 

probationary term. See Ortega, 995 A.2d at 884 (holding that “the 

[probation revocation] court could have reasonably determined that 

revocation and a sentence of imprisonment for a defendant who absconded 

at the very outset of his probationary term and remained delinquent for 
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three years was essential to vindicate the authority of the court.”). 

Moreover, we are unpersuaded by Summers’s claim that the probation 

revocation court abused its discretion by determining that the sentence 

imposed was essential to vindicate the authority of the court, purely 

because, as Summers points out, “[he] was serving a sentence of total 

confinement on his parole violation at No. 473 [].” Brief for Appellant at 7. 

The instant case and No. 473 were separate cases, and the probation 

revocation court had the authority to impose a sentence of incarceration in 

the instant case, in addition to the parole violation recommitment that 

Summers was then serving at No. 473. Accordingly, Summers’s first issue 

does not entitle him to relief.

 Next, Summers contends that the probation revocation court abused 

its discretion, and violated section 9771(d), “in imposing a state sentence of 

total confinement by considering [Summers’s] pre-probationary criminal 

history in concluding that [Summers] was likely to commit another crime,” 

i.e., under section 9771(c)(2). Brief for Appellant at 7 (capitalization 

omitted). 

Summers did not raise this claim in his court-ordered Pa.R.A.P. 

1925(b) Concise Statement. Accordingly, it is waived. See 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that 

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”); 

see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in 

the Statement ... are waived.”). Additionally, Summers waived this claim by 
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failing to preserve it either at sentencing or in his pro se post-sentence 

Motion. See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 

2009) (stating that “[i]ssues challenging the discretionary aspects of a 

sentence must be raised in a post-sentence motion or by presenting the 

claim to the trial court during the sentencing proceedings. Absent such 

efforts, an objection to a discretionary aspect of a sentence is waived.”).9 

In light of the foregoing, and based upon our review of the record, we 

conclude the probation revocation court did not commit an error of law or 

abuse its discretion in imposing Summers’s sentence following the 

revocation of his probation. 

 Judgment of sentence affirmed. 

 

9

 Nevertheless, even if this claim was not waived, we would determine that it 

does not entitle Summers to relief. Summers points out that this Court has 

held that “[section 9771](d) states unequivocally that there can be neither a 

‘revocation’ nor an ‘increase of conditions of sentence’ until a hearing occurs 

wherein the court ‘shall consider the record of the sentencing proceeding 

together with evidence of the conduct of the defendant while on 

probation.’ 42 Pa.C.S.[A.] § 9771(d) (emphasis added). This section 

clearly restrains the court from considering facts occurring prior to the 

imposition of probation when revoking probation.” Carver, 923 A.2d at 

497; see also Brief for Appellant at 8; but see Sierra, 752 A.2d at 913-14 

(where the appellant challenged the probation revocation court’s imposition 

of a sentence of total confinement upon resentencing under section 

9771(c)(2), holding that the probation revocation court properly considered, 

inter alia, the appellant’s “significant criminal record as a juvenile and as an 

adult[.]”). Even assuming, arguendo, that the probation revocation court in 

the instant case erred by considering Summers’s pre-probationary criminal 

conduct in imposing sentence, such error did not result in any prejudice to 

Summers because, as discussed above, the probation revocation court 

articulated sufficient and compelling reasons, besides Summers’s criminal 

history, as to why a sentence of total confinement was necessary under 

section 9711(c)(3) to vindicate the authority of the court. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 2/19/2015