J-S60015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN DIAZ,

Appellant No. 3436 EDA 2014

Appeal from the Judgment of Sentence Entered October 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006571-2010

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 05, 2015

Appellant, John Diaz, appeals from the judgment of sentence of an 

aggregate term of 8 to 16 years’ imprisonment, imposed after the court 

revoked his term of probation based on new convictions in an unrelated 

case. Appellant challenges the legality of his post-revocation sentence, 

alleging that the trial court failed to consider time served for the original 

sentence. He also challenges discretionary aspects of his sentence. We 

affirm. 

The procedural history of this case was summarized by the trial court 

in its Pa.R.A.P. 1925(a) opinion as follows:

After a waiver trial before this [c]ourt on October 4, 2010, 

[Appellant] was found guilty of Possession With Intent To Deliver 

Cocaine (PWID), 35 P.S. § 780-113(a)(30); Conspiracy to 

Deliver Cocaine, 18 Pa.C.S. § 903; and Knowingly or 

Intentionally Possessing a Controlled Substance by an 

Unregistered Person, 35 P.S. § 780-113(a)(16). This [c]ourt 
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found [Appellant] not guilty on the charges of: Possession of a 

Firearm by a Prohibited Person, 18 Pa.C.S. § 6105(a)(1); 

Carrying a Firearm Without a License, 18 Pa.C.S. § 6106(a)(1); 

and Possession of an Instrument of Crime, 18 Pa.C.S. § 907(1). 

After finding [Appellant] guilty of the above charges, this [c]ourt 

ordered a Presentence Investigation Report (PSI Report). 

On December 12, 2010, after reviewing the PSI Report, 

this [c]ourt sentenced [Appellant] to 3-6 years[’] confinement 

followed by 3 years of reporting probation for PWID; and 109 

months reporting probation, consecutive to the 3-6 year 

confinement, for Conspiracy to Deliver Cocaine. [Appellant] was 

credited with time served. 

On March 3, 2013, [Appellant] was arrested and later pled 

guilty in the Schuylkill County Court of Common Pleas on April 

23, 2014 to two (2) counts of Aggravated Assault, 18 Pa.C.S. § 

2702(a)(4) and one (1) count of Possession of a Firearm by a 

Prohibited Person[,] 18 Pa.C.S. §6106(a)(1). [Appellant] was 

sentenced by the Honorable John E. Domalakes to a total of 4-8 

years of confinement. These new crimes constituted a direct 

violation of this [c]ourt’s probation. 

On August 12, 2014, following a Violation of Probation 

(VOP) hearing, this [c]ourt revoked [Appellant’s] probation due 

to the direct violation that occurred in Schuylkill County and 

ordered a PSI Report. On October 14, 1014, after reviewing the 

new PSI Report, this court sentenced [Appellant] to 3-6 years[’] 

confinement followed by 3 years of reporting probation on the 

PWID charge, and 5-10 years of confinement for the Conspiracy 

charge. 

A notice of appeal was filed by [Appellant] on November 

12, 2014. On November 21, 2014, this [c]ourt issued an order 

pursuant to Pa.R.A.P. 1925(b), directing [Appellant] to file a 

Statement of Errors Complained of on Appeal (1925(b) 

Statement) by December 12, 2014. On December 18, 2014, 

[Appellant] filed a Motion for Extension of Time. On December 

30, 2014[,] this [c]ourt granted a seventeen day extension, 

allowing [Appellant] until January 16, 2015 to file a 1925(b) 

Statement. On February 20, 2015, [Appellant] filed a 

“Statement of Matters to Be Raised on Appeal.” 

Trial Court Opinion (TCO), 3/11/15, 1-3. 
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Appellant states the following sole issue in his Statement of Questions 

Involved for our review: “Was the sentence imposed on Appellant an illegal 

sentence because [the court] failed to consider the time served for the 

original sentence?” Appellant’s Brief at 7. While his Statement of Questions 

only references the legality of the sentence, Appellant’s arguments also 

pertain to the discretionary aspects of his sentence. 

When we consider an appeal from a sentence imposed following the 

revocation of probation, our standard of review is well settled: 

Sentencing is a matter vested within the discretion of the trial 

court and will not be disturbed absent a manifest abuse of 

discretion. An abuse of discretion requires the trial court to have 

acted with manifest unreasonableness, or partiality, prejudice, 

bias, or ill-will, or such lack of support so as to be clearly 

erroneous. It is also now accepted that in an appeal following 

the revocation of probation, it is within our scope of review to 

consider challenges to both the legality of the final sentence and 

the discretionary aspects of an appellant’s sentence. 

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

(citations omitted). 

To the extent that Appellant raises issues regarding the discretionary 

aspects of his sentence, we note the following: 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct 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, Pa.R.A.P. 2119(f); and 
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(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

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

and internal quotations omitted). 

Here, Appellant argues that his sentence is manifestly excessive and 

that the trial court failed to consider certain environmental factors, his 

rehabilitative needs, and the severity of his previous crimes. Appellant’s 

Brief at 12. However, Appellant failed to raise these objections at the 

sentencing hearing, nor did he file a motion to reconsider and modify 

sentence. Therefore, as the Commonwealth suggests, the discretionary 

aspects of sentencing claims are waived. See Commonwealth v. 

Hartman, 908 A.2d 316, 319 (Pa. Super. 2006) (finding the appellant’s 

discretionary aspect of sentencing claim waived where he failed to raise it 

during sentencing proceedings or in timely post-sentence motion). 

The Commonwealth further asserts that this Court cannot consider 

Appellant’s discretionary sentence claims, as he failed to include a separate 

concise statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of his sentence, pursuant to Pa.R.A.P. 

2119(f). We agree with the Commonwealth. As we stated in 

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2013), “if 
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[A]ppellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth 

objects, the issue is waived for purposes of review.” 

Despite this fatal flaw in Appellant’s brief and Appellant’s failure to 

properly preserve these claims before the trial court, we are further 

precluded from reviewing these claims because Appellant failed to raise a 

substantial question to meet the fourth requirement of the four-part test 

outlined above. As we explained in Moury:

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. 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. 

Moury, 992 A.2d at 170 (citations and internal quotations omitted). 

 Appellant contends that his sentence was excessive where “there were 

no violent or potentially violent offenses included in this specific matter.” 

Appellant’s Brief at 11. Appellant also alleges that the trial court failed to 

“consider environmental facts which when discovered could [have] serve[d] 

to assist in the rehabilitation of the offender,” and notes that he was 

exposed to drugs at a young age and had very little education. Id. at 12. 

“[A] bald assertion that Appellant’s sentence was excessive, devoid of 

supporting legal authority...does not present a substantial question,” and 

therefore, is not reviewable by this Court. Commonwealth v. Fisher, 47 

A.3d 155, 159 (Pa. Super. 2012). Moreover, “this Court has held on 

numerous occasions that a claim of inadequate consideration of mitigating 
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factors does not raise a substantial question for our review.” 

Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (internal 

citation omitted). See also Commonwealth v. Griffin, 65 A.3d 932, 936 

(Pa. Super. 2013) (finding that defendant’s claim that his sentence failed to 

take into account his rehabilitative needs did not raise a substantial 

question); Commonwealth v. Cannon, 954 A.2d 1222, 1228-29 (Pa. 

Super. 2008) (concluding that a claim that trial court failed to consider the 

defendant’s rehabilitative needs, age, and educational background did not 

present a substantial question). 

We now address Appellant’s remaining claim that his sentence is illegal 

because the court failed to give credit for time served on the original 

sentence. As this Court has previously stated: “The issue of whether a 

sentence is illegal is a question of law; therefore our task is to determine 

whether the trial court erred as a matter of law and, in doing so, our scope 

of review is plenary.” Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa. 

Super. 2007) (internal citation omitted). 

Specifically, Appellant asserts that he served a total of approximately 

thirty (30) months on his original sentence, and that the trial court never 

gave any consideration to this time served when imposing his sentence after 

the revocation of his probation. Appellant’s Brief at 12. In support of his 

claim, Appellant references Section 9760 of the Sentencing Code, which 

provides, in relevant part, as follows: 
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(1) Credit against the maximum term and any minimum term 

shall be given to the defendant for all time spent in 

custody as a result of the criminal charge for which a 

prison sentence is imposed or as a result of the conduct on 

which such a charge is based. Credit shall include credit 

for time spent in custody prior to trial, during trial, pending 

sentence, and pending the resolution of an appeal. 

(2) Credit against the maximum term and any minimum term 

shall be given to the defendant for all time spent in 

custody under a prior sentence if he is later reprosecuted 

and resentenced for the same offense or for another 

offense based on the same act or acts. This shall include 

credit in accordance with paragraph (1) of this section for 

all time spent in custody as a result of both the original 

charge and any subsequent charge for the same offense or 

for another offense based on the same act or acts. 

42 Pa.C.S. § 9760(1), (2). 

As we explained in Crump, “while the language of Section 9760 does 

not discuss an illegal sentence or the situation where a person receives a 

new sentence as a result of a probation violation, our case law analyzing the 

statute has outlined the necessary considerations we must make in 

determining whether a sentence is illegal.” Crump, 995 A.2d at 1284. 

Our statutory and case law are clear. Subsequent to revocation 

of probation, the sentencing court has available to it all the 

options permissible at the time of initial sentencing, giving due 

consideration “to the time spent serving the order of probation.” 

42 Pa.C.S. § 9771(b). As long as the new sentence imposed 

does not exceed the statutory maximum when factoring in the 

incarcerated time already served, the sentence is not illegal. 

Additionally, the sentencing court cannot give a new split 

sentence where the period of incarceration and period of 

probation exceed the statutory maximum. 

Id. at 1285 (internal citations omitted). Moreover, we have held that “a 

defendant is not entitled to credit for time served following revocation of 
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probation if the new sentence of incarceration does not reach the statutory 

maximum.” Id. (emphasis added).

In the case at bar, the trial court provided the following detailed 

explanation of the sentence it imposed on Appellant:

In this case, [Appellant] was found guilty of PWID and 

Conspiracy. The maximum period of incarceration for PWID, 

involving 6.3 grams of cocaine, is 5-10 years. 35 P.S. § 780-

113(f)(1.1). However, because this was [Appellant’s] second 

PWID conviction[,] the maximum penalty is doubled. 35 P.S. § 

780-115(a). Therefore, at the time of sentencing[,] this [c]ourt 

could have sentenced [Appellant] to 10-20 years[’] incarceration 

for PWID. 

The maximum period of incarceration for Conspiracy to 

Deliver Cocaine is 5-10 years. After [Appellant’s] waiver trial 

before this [c]ourt, [Appellant] was sentenced to 109 months of 

reporting probation and no incarceration for Conspiracy. 

Therefore, this [c]ourt’s sentence of 5-10 years[’] for Conspiracy 

after revoking [Appellant’s] probation is a legal sentence that 

does not exceed the statutory maximum since [Appellant] 

served no time in prison for his original Conspiracy sentence. 

On the PWID charge, [Appellant] was originally sentenced 

to 3-6 years of confinement[,] followed by 3 years of reporting 

probation. [Appellant ] was sentenced on December 10, 2010 

and was released on March 12, 2012, meaning [Appellant] 

served one year, three months and two days on the original 

sentence. After revoking [Appellant’s] probation, this [C]ourt 

had the ability to choose from any sentencing option existing at 

the time of the original sentencing. This [c]ourt’s sentence was 

limited only by the statutory maximum for a second PWID 

offense involving 6.3 grams of cocaine, which is 10-20 years. 

This court imposed a VOP sentence of 3-6 years of 

confinement followed by 3 years of reporting probation. That 

maximum prison sentence of 6 years, in addition to the amount 

of time served by [Appellant] on the original sentence—1 year, 3 

months[,] and 2 days—does not exceed, or even approach, the 

statutory maximum of 10-20 years of incarceration. Because 

the combination of the VOP sentence and time served on the 
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original sentence does not exceed the statutory maximum, credit 

for time served was not required. Therefore, the sentence 

imposed by this court upon revocation of [Appellant’s] probation 

is a legal sentence. 

TCO at 4-5. 

Based on our review of the record, Appellant’s sentence does not come 

close to reaching the statutory maximum and, therefore, Appellant was not 

entitled to credit for time served. Appellant’s claim regarding the legality of 

his sentence is without merit. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/5/2015