J-A19044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID HARRIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 18 EDA 2021

Appeal from the Judgment of Sentence Entered November 25, 2020

In the Court of Common Pleas of Bucks County Criminal Division at No: 

CP-09-CR-0006430-2015

BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 15, 2021

Appellant, David Harris, appeals from the judgment of sentence of 18 to 

60 months’ incarceration, which was imposed after the trial court found him 

in violation of his probation. We affirm. 

On January 28, 2016, Appellant entered into a guilty plea to Robbery of 

a Motor Vehicle, Receiving Stolen Property, Theft by Unlawful Taking, and 

Robbery by Force.1 On March 30, 2016, the trial court sentenced Appellant to 

24 to 48 months’ incarceration plus 5 years of concurrent probation on the 

Robbery of a Motor Vehicle count. Order, 3/3/16. Appellant received no 

further penalty on the remaining charges. Id. On September 18, 2017, 

Appellant was released on parole upon completion of outpatient treatment. 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3702(a), 3925(a), 3921(a), and 3701(a)(1)(v), respectively. 
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Order, 9/25/17. Appellant’s parole expired on September 4, 2019. Id. 

Appellant continued to serve the remainder of the concurrent 5 years of 

probation, which was set to expire on March 30, 2021. Order, 12/15/16. 

On September 1, 2020, Appellant’s probation officer alerted the trial 

court that Appellant incurred the following technical violations of probation: 

moving without permission, failure to report, failure to comply with drug and 

alcohol treatment, and possession marijuana. Letter, 9/1/20. Appellant’s 

probation officer requested that the trial court issue a bench warrant for 

Appellant’s arrest based on his failure to report. Id. On September 3, 2020, 

the trial court issued a bench warrant for Appellant’s arrest based on 

absconding from his probation. Order, 9/3/20. Appellant was arrested on 

that bench warrant on September 14, 2020. Order, 11/25/20. 

On November 25, 2020, the trial court held a violation of probation 

hearing. Agent Spall, Appellant’s State parole officer, testified at the hearing. 

Agent Spall was temporarily assigned to Appellant’s case in July [2020]. N.T. 

11/24/20, at 3. Agent Spall testified, 

On July 17th [Appellant] did enroll at the detox in Valley Forge 

and was successfully discharged on July 28th. 

On July 29th [Appellant] contacted me to inform me that he had 

been discharged, that he was instructed to enroll in outpatient 

treatment. 

Id. at 4-5. Agent Spall testified that on August 4, 2020, he “attempted to see 

[Appellant] at his home” and “conducted a walk-through of the home to verify 

that [Appellant] was not present at the home.” Id. at 5-6. Agent Spall 
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testified he “then proceeded to Serenity Safe Haven outpatient clinic where 

[Appellant] was to have been enrolled in treatment.” Id. Agent Spall testified, 

[t]hey did report that he had enrolled since his detox. On August 

19th, I did contact Serenity Safe Haven again to follow up on the 

progress of his treatment, and they reported that he missed his 

August 4th appointment, and has not been to the clinic since. 

The clinic standard is twice weekly. 

On August 31st, I spoke with the director of Serenity Safe Haven 

who reported they were in the process of trying to get [Appellant] 

to come into the clinic to the [sic] send him to another inpatient 

treatment facility, that he continues to reside in an unknown 

residence in Kensington, and that they would call me if they had 

any contact with the treatment center. And I did not receive any 

contact from them stating that he had at any subsequent date 

contacted the center. 

As of September 1st, [Appellant] had not contacted me at all in 

August in order to schedule his August appointment. He was 

required to be seen every month. 

He had not complied with treatment recommendation. 

He had not provided me with an address or phone number for 

which he could be contacted at. 

. . . 

And we requested this Court issue a warrant for [Appellant’s] 

arrest, and he was subsequently arrested on September 14th in 

response to that. 

Id. at 10-12. 

Appellant testified that he made a mistake, would participate in 

outpatient treatment, and that he has a problem with drug use. Id. at 28-29. 

The trial court found Appellant in violation of his probation. Order, 11/25/20. 

The trial court revoked Appellant's probation and resentenced him to 18 to 60 
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months’ incarceration. Order, 11/25/20. Additionally, the trial court ordered 

that Appellant be supervised by the mental health unit, participate in drug, 

alcohol, and mental health treatment, and receive credit for time served from 

September 14, 2020. Id. 

On December 2, 2020, Appellant filed a timely motion to reconsider his 

sentence. Motion, 12/2/20. Appellant argued that his sentence is unduly 

harsh in view of the nature of the violations, his poor physical health, 

substance abuse disorder and mental health diagnosis. Id. Appellant argued 

that his sentence is manifestly excessive in light of the nature of the 

underlying violations and the lengthy period of supervision imposed. Id. 

Appellant also argued that the trial court failed to consider the factors in 42 

Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9771(c). Id. 

The trial court did not rule on the motion to reconsider before Appellant 

filed a timely notice of appeal.2 On December 23, 2020, Appellant filed 

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2 Appellant’s motion to reconsider did not toll the thirty-day period to file an 

appeal from the sentence imposed following revocation. See Pa.R.Crim.P. 

708(e). The trial court stated in its 1925(a) opinion that Appellant’s postsentence motion will be denied by operation of law on March 25, 2021, 

however, there appears to be no order stating such on the certified docket. 

Trial Court Opinion, at 5. See Pa.R.Crim.P. 720(B)(3)(a) (post-sentence 

motion not decided by trial judge within 120 days is deemed denied by 

operation of law). We request the trial court enter the order denying 

Appellant’s post sentence motion by operation of law on the docket. See 

Pa.R.Crim.P. 720(B)(3)(c) (when a post sentence motion is denied by 

operation of law, the clerk of courts shall forthwith enter an order on behalf 

of the court. . . that the post-sentence motion is deemed denied). This does 

not hinder our consideration of this appeal.

 
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this timely direct appeal.3 Appellant presents the following issues for our 

review:

1. Is the sentence imposed for a technical violation of 

probation unduly harsh and excessive, and greater than that 

necessary to vindicate the Court’s authority under the 

circumstances where: 

• confinement in a state correctional facility for the term 

imposed is not the least restrictive sentence 

necessary to effectuate the aims of Pennsylvania’s 

sentencing laws and is greater than that which would 

be consistent with protection of the public, the gravity 

of defendant’s conduct as it relates to the impact on 

the life of others in the community, and the 

rehabilitative needs of the defendant; 

• and where the lower court did not adequately consider 

defendant’s age, rehabilitative needs, his acceptance 

of responsibility for his crime and violation, his 

progress toward rehabilitation and the supportive 

environment available to defendant? 

2. Are Pa.R.Crim.P. 708 and 42 Pa.C.S. [Section] 5505 

fundamentally unfair, inefficient and in direct conflict with 

Pa.R.Crim.P. 602?

Appellant’s Brief, at 5 (suggested answers omitted). 

We must first address if Appellant preserved the entirety of his first issue 

for appeal under Pa.R.A.P. 1925(b). Appellant filed a Pa.R.A.P. 1925(b) 

statement with the trial court, in relevant part stating, “[t]he trial court abused 

its discretion by imposing an unduly harsh and excessive sentence for a 

technical violation of probation.” Rule 1925(b) statement, at 1 (unpaginated). 

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3 Appellant timely filed his statement of errors complained of on appeal on 

February 3, 2021. The trial court entered its opinion on March 23, 2021.
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The trial court, thereafter, filed its opinion addressing that issue. The 

Commonwealth objected in its brief to Appellant’s inclusion of two additional 

issues in this appeal, that the sentence was inconsistent with the Section

9721(b) factors and not required to vindicate the trial court’s authority. See 

Commonwealth Brief, at 10.

Appellant has only included one section in the argument section of his 

brief with regard to the discretionary aspects of his sentence. See Pa.R.A.P. 

2119. We decline to find waiver. We find that Appellant raised the arguments, 

that the sentence was not essential to vindicate the authority of the court and 

that the sentence is not consistent with the Section 9721(b) factors, in support 

of his excessive sentence argument and not distinct from it. Appellant has 

raised only one issue for our review with regard to his judgment of sentence, 

whether the sentence is excessive based on the technical nature of the 

violations. 

Appellant's issue relates to his judgment of sentence and implicates the 

discretionary aspects of his sentence. A defendant does not have an 

automatic right to appeal the discretionary aspects of a sentence and instead 

must petition this Court for allowance of appeal, which “may be granted at the 

discretion of the appellate court where it appears that there is a substantial 

question that the sentence imposed is not appropriate under” the Sentencing 

Code. 42 Pa.C.S. § 9781(b); see also Commonwealth v. Luketic, 162 A.3d 

1149, 1160 (Pa. Super. 2017).
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Prior to reaching the merits of a discretionary sentencing 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 [pursuant to 

Pa.R.A.P. 2119(f), Pa.R.A.P. 2119(f)]; and (4) whether the 

concise statement raises a substantial question that the sentence 

is [not] appropriate under the [S]entencing [C]ode.

Commonwealth v. Lekka, 210 A.3d 343, 349 (Pa. Super. 2019) (citation 

omitted) (brackets in original). 

Appellant satisfied the first three requirements; he filed a timely notice 

of appeal, preserved his issue in a timely post-sentence motion, and included 

a Pa.R.A.P. 2119(f) statement in his brief. Appellant’s Brief, at 11. Next, 

we turn to whether Appellant’s Rule 2119(f) statement raised a substantial 

question. 

Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on 

a case-by-case basis. . . . We have found that a substantial 

question exists “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. Radecki, 180 A.3d 441, 467-68 (Pa. Super. 2018) 

(citations omitted) (brackets in original). 

Appellant asserts in his Pa.R.A.P. 2119(f) statement that his sentence 

of total confinement is unduly harsh, excessive and unreasonable under the 
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circumstances, particularly in light of the technical nature of the violations of 

his probation. Appellant’s Brief, at 22. This raises a substantial question. 

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

(argument that trial court abused its discretion in imposing a sentence of total 

confinement after the revocation of probation for a technical violation raises a 

substantial question); Commonwealth v. Malovich, 903 A.2d 1247, 1253 

(Pa. Super. 2006) (argument that trial court’s sentence was excessive and 

disproportionate to the underlying technical violations presented a substantial 

question).

Accordingly, we address the merits of Appellant’s issue. We are mindful 

of the following standard and scope of review. 

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. 

An abuse of discretion is more than an error in judgment - a 

sentencing court has not abused its discretion unless the record 

discloses that the judgment exercised was manifestly 

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

Commonwealth v. Starr, 234 A.3d 755, 760–61, (Pa. Super. 2020), appeal 

denied, 243 A.3d 724 (Pa. 2020) (citing Commonwealth v. Simmons, 56 

A.3d 1280, 1283-84 (Pa. Super. 2012)). With regard to a judgment of 

sentence upon revocation of probation, we are guided by the following settled 

law. 

Upon revoking probation, a sentencing court may choose from any 

of the sentencing options that existed at the time of the original 

sentencing, including incarceration. “[U]pon revocation [of 

probation] . . . the trial court is limited only by the maximum 
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sentence that it could have imposed originally at the time of the 

probationary sentence.” 

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (internal 

citations omitted and brackets in original). 

However, a VOP sentencing court’s discretion is not unfettered. A VOP 

sentencing court must issue a sentence 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.” (Hereinafter, 9721(b) factors) 42 Pa.C.S. § 9721(b); 

Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016). 

Additionally, the VOP sentencing court is guided by 42 Pa.C.S. § 9771(c), 

which provides that once probation has been revoked, a sentence of total 

confinement may only be imposed if any of the following conditions exist: 

(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. 

(Hereinafter, 9771(c) factors) 42 Pa.C.S. § 9771(c); Derry, 150 A.3d at 994.

Importantly, “in all cases where the court resentences an offender 

following revocation of probation . . . the court shall make as 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[.]” Colon, 102 A.3d at 1044 

(quotation marks and citations omitted); Pa.C.S. § 9721(b). However, “since 
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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.” Commonwealth v. Presley, 193 A.3d 436, 

446 (Pa. Super. 2018) (citations omitted). “[T]he record as a whole must 

reflect the sentencing court’s consideration of the facts of the crime and 

character of the offender.” Colon, 102 A.3d at 1044 (citation omitted). 

Appellant argues that his sentence of total confinement for technical 

violations of his probation, including one month failure to report and failure to 

follow up with treatment for less than a month, is unduly harsh, excessive, 

and unreasonable. Appellant’s Brief at 33. Appellant argues that he “initiated 

contact with his probation officer after a relatively brief lapse in reporting and 

admitted that he was struggling with drug addiction.” Id. He argues that the 

sentence was not necessary to vindicate the authority of the court nor 

consistent with the Section 9721(b) factors. Id. at 33-34. 

In determining whether a sentence is manifestly excessive, the 

appellate court must give great weight to the sentencing court’s 

discretion, as he or she is in the best position to measure the 

factors such as the nature of the crime, the defendant’s character, 

and the defendant’s display of remorse, defiance, or indifference. 

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).

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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Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014). 

In its 1925(a) opinion, the trial court stated, 

Appellant’s initial sentence was below the mitigated sentence. For 

robbery of a motor vehicle, the crimes for which he was 

sentenced, Appellant’s sentencing guidelines were 36 months in 

the mitigated range, 48 to 60 months in the standard range, and 

72 months in the aggravated range. . . . Appellant was not 

sentenced on every count, nor did his sentence come close to 

exceeding the combined standard range of all his crimes. 

TCO, at 3. 

During Appellant’s violation of probation hearing, the trial court stated: 

[Y]ou were given a state sentence the first time because of, 

in part, the guidelines; in part because of your criminal 

history; and in part because of the facts of the case; in part 

because of the need to protect the community. But the 

sentence was undoubtedly below the mitigated range 

because of your need for rehabilitation. 

. . . 

What troubles me is you got out of jail, and you called your 

probation officer the day you were released or the day after 

you were released from a program, and then you went – to 

put it bluntly – off the grid for a month. You were nowhere 

to be found. He didn’t have any contact with you. You didn’t 

contact him. Whether you moved or you didn’t move, you 

know, which is in some dispute, I think it’s pretty clear you 

weren’t where you were supposed to be or where you told 

him you’d be. And so, I look at the whole case, and what it 

suggests to me is that you’re a person who is still in need of 

treatment, that the treatment that you will require is longterm drug and alcohol and mental health treatment, and 

that you were given the benefit of your condition last time 

you were in court, and you haven’t taken advantage of it. 

And that’s my perception. I know you and Mr. Criste will 

disagree with that. I don’t think I have much of a choice in 

order to vindicate the authority of the Court, I think a 

sentence of total confinement is required for those reasons. 

While they’re technical violations, your conduct is 
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nevertheless serious and quite concerning given the history 

that has been presented to me and that I’m familiar with. 

. . . 

You got two to four last time. The 18 months brings him up 

to the mitigated range under the guidelines as has been 

requested. I don’t think a three-and-a-half or a two-and-ahalf-to-five or a three-and-a-half-to-seven serves any 

purpose other than to punish him. He still needs treatment. 

We all know that those programs take some time. 

N.T., 11/24/20, at 29-32.

Appellant’s argument that the trial court sentenced him to an excessive 

sentence based on technical violations of his probation is without merit. The 

trial court heard and considered testimony from Appellant’s probation officer 

regarding Appellant’s specific violations of his probation, and heard testimony 

from Appellant. See N.T. 11/24/20, generally. The trial court adequately 

explained its reasons for the sentence imposed. N.T. 11/24/20, at 30-31; 

See Pasture, 107 A.3d at 28.

Importantly, the trial court is the same court that originally sentenced 

Appellant. See Pasture, 107 A.3d at 28; Presley, 193 A.3d at 446–47. The 

trial court explained that it originally sentenced Appellant to a sentence that 

was below the mitigated sentencing guidelines “because of [Appellant’s] need 

for rehabilitation.” N.T. 11/24/20, at 29. Despite this, Appellant failed to 

adhere to the conditions imposed upon him. The trial court emphasized, “you 

were given the benefit of your condition last time you were in court, and you 

haven’t taken advantage of it.” N.T. 11/24/20, at 31.
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The trial court adequately considered the Section 9721(b) factors, 

stating that Appellant’s conduct is “serious and quite concerning.” N.T., 

11/24/20, at 31. The trial court was familiar with Appellant’s history, as it 

was the same court that originally sentence Appellant, and whose probation 

Appellant violated. N.T., 11/24/20, at 31. The trial court also complied with 

9771(c), in finding the sentence was necessary to vindicate the authority of 

the court. N.T., 11/24/20, at 31; See Malovich, 903 A.2d at 1254. 

Lastly, the trial court sentenced Appellant well within the statutory 

maximum for Robbery of a Motor Vehicle, a felony of the first degree, which 

is 20 years' incarceration. Appellant initially received a sentence of 2 to 4 

years’ incarceration and was resentenced to 1.5 to 5 years’ incarceration; 

together, it is well under the statutory maximum. See Mouzon, 828 A.2d at 

1128. For all the above reasons, we find the trial court did not abuse its 

discretion in fashioning Appellant’s sentence. Where “the record as a whole 

reflects that the trial court considered the facts of the crime and character of 

Appellant in making its determination, we cannot re-weigh the sentencing 

factors to achieve a different result.” See Crump, 995 A.2d 1280. 

In Appellant’s second issue on appeal, he argues Pa.R.Crim.P. 708 and 

42 Pa.C.S. § 5505 are fundamentally unfair, inefficient and in direct conflict 

with Pa.R.Crim.P. 602. Appellant’s Brief (Statement of Questions Presented), 

at 5. Rule of Criminal Procedure 708(e) states that a motion to modify a VOP 

sentence will not toll the 30-day notice of appeal requirement. Pa.R.Crim.P. 

708(e). 42 Pa.C.S. § 5505 states, 
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[e]xcept as otherwise provided or prescribed by law, a court upon 

notice to the parties may modify or rescind any order within 30 

days after its entry, notwithstanding the prior termination of any 

term of court, if no appeal from such order has been taken or 

allowed

42 Pa.C.S. § 5505. Pa.R.Crim.P. 602 states, “The defendant shall be present 

at every stage of the trial including the impaneling of the jury and the return 

of the verdict, and at the imposition of sentence, except as otherwise provided 

by this rule.” Pa.R.Crim.P. 602.

First, we agree with the Commonwealth that this issue is waived for 

failure to present the issue to the trial court. See Pa.R.A.P. 302 (“issues not 

raised in the trial court are waived and cannot be raised for the first time on 

appeal.”). Appellant did not raise this issue with the trial court, therefore, the 

issue is waived. Even if not waived, this issue is without merit. 

Appellant argues that the trial court scheduled a hearing for his motion 

to reconsider the sentence for December 23, 2020, but that hearing was 

cancelled because Appellant was moved to a different prison. Appellant's 

Brief, at 37. Appellant argues he was forced to file a notice of appeal, based 

on Rule 708, on December 23, 2020 and the trial court was divested of 

jurisdiction to hear argument on his post-sentence motion. Id. at 38. 

Appellant argues that Rule 708 forced Appellant to “choose between giving up 

his statutory right to appeal or giv[e] up his statutory right to be present at 

sentencing.” Id. At 39.

Appellant conflates a sentencing hearing with a hearing the trial court 

scheduled regarding a motion for reconsideration of his sentence. A hearing 
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scheduled regarding argument on Appellant’s motion to reconsider his 

sentence is not a sentencing hearing. Appellant’s argument that his 

constitutional right to be present was violated is without merit. Appellant was 

present at the November 24, 2020 hearing when the trial court sentenced 

him. See N.T., 11/24/20, generally. Appellant’s second issue is without 

merit. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2021