J-S50039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER ALLAN OBERT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 457 WDA 2019

Appeal from the Judgment of Sentence Entered March 5, 2019

In the Court of Common Pleas of Crawford County Criminal Division at 

No(s): CP-20-CR-0000737-2013

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

MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 19, 2019

Appellant, Tyler Allan Obert, appeals from the judgment of sentence of 

two to five years of confinement which was imposed after the revocation of 

his probationary sentence for statutory sexual assault and corruption of 

minors.1 We affirm.

On March 7, 2014, Appellant pleaded guilty to the aforementioned 

charges. On April 23, 2014, Appellant was sentenced to time served (272 

days) to 23 months and 29 days of confinement with a concurrent four years 

of probation. Appellant was immediately paroled, subject to multiple 

conditions, including: “[Appellant] shall undergo any mental health 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3122.1(a)(1) and 6301(a)(1)(i), respectively.
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counseling or therapy that is recommended for him and not discontinue the 

same without the prior consent of the Adult Probation/Parole Department and 

the counselors involved.” Order, 4/23/2014, at ¶ 4.2

On May 24, 2017, following a hearing,3the trial court found Appellant 

violated the terms of his probation. Order, 5/24/2017, at 1. Appellant was 

re-sentenced to five years of probation, and all prior conditions of his 

probation were re-imposed. N.T., 5/24/2017, at 35; Order, 5/24/2017, at 1. 

Appellant did not object when the trial court re-imposed the same conditions. 

See N.T., 5/24/2017, at 35-36. When Appellant asked if the trial court would 

consider an early termination, the trial court stated that it may consider it, if 

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2 The notes of testimony from Appellant’s March 2014 guilty plea hearing and 

his April 2014 sentencing hearing were not transcribed. Accordingly, we do 

not know the underlying facts of this case, and we cannot determine what 

Appellant was told by his counsel, the Commonwealth, or the trial court on 

the record during his sentencing hearing, whether Appellant acknowledged 

that he understood the terms of his probation, or whether he objected to any 

of the conditions. Consequently, we must rely entirely upon the written 

sentencing order.

This omission “encumbered our consideration of this appeal.” 

Commonwealth v. Medina, 209 A.3d 992, 994 n.3 (Pa. Super. 2019) 

(quoting Erie Insurance Exchange v. Moore, 175 A.3d 999, 1005-06 (Pa. 

Super. 2017)). “Ultimate responsibility for a complete record rests with the 

party raising an issue that requires appellate court access to record 

materials[,]” Note to Pa.R.A.P. 1921 – i.e., Appellant had the responsibility to 

verify that all materials necessary for appellate review were made part of the 

certified record, including the notes of testimony from his 2014 sentencing.

3 At that hearing, Appellant’s parole agent testified that, when Appellant began 

his parole, he had reviewed the terms of Appellant’s supervision with 

Appellant, and Appellant had signed a form stating that he received the list of 

conditions. N.T., 5/24/2017, at 6-7. The form was admitted as 

Commonwealth’s Exhibit 1.
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Appellant “has all the counseling he needs[.]” Id. at 35. Appellant again did 

not raise any objections to the mention of him receiving counseling. See id.

at 35-36. Appellant did not file post-sentence motions or a direct appeal.

On May 11, 2018, Appellant filed his first, pro se PCRA petition. On 

November 1, 2018, the PCRA court dismissed Appellant’s petition. On 

November 13, 2018, Appellant filed a timely appeal from the PCRA order.

On January 9, 2019, during the pendency of that appeal, a notice of 

alleged violations of probation (“NOAV”) was filed by the Adult Probation, 

Parole, and Intermediate Punishment Department of Crawford County, 

claiming that Appellant “had been unsuccessfully discharged from Sex 

Offender Treatment at Project Point of Light [(‘PPL’)] back on November 15, 

2018.” NOAV, 1/9/2019, at 1. On January 11, 2019, the trial court held a 

Gagnon I

4 hearing and entered an order that it “find[s] probable cause 

[Appellant] violated his Probation.” Gagnon I Hearing Order, 1/11/2019.

On February 27, 2019, an addendum to the NOAV was filed, alleging 

that Appellant “was unsuccessfully discharged from the Regional Counseling 

Center, Inc. [(‘RCC’)] on October 26, 2018.” Addendum to the NOAV, 

2/27/2019. Appellant had been attending RCC for mental health treatment. 

N.T., 3/5/2019, at 7, 9.

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4 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation hearings).
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On March 5, 2019, the trial court held a Gagnon II hearing. At the 

hearing, Agent Jeremy Oliver of the Pennsylvania Board of Probation and 

Parole testified that Appellant had been discharged from mental health 

treatment at RCC and from sex offender treatment at PPL. N.T., 3/5/2019, at 

5-9; Trial Court Opinion, filed May 29, 2019, at 3. Agent Oliver added that 

Appellant had been given the opportunity to re-enroll in PPL and written 

instructions on how to do so, but Appellant never pursued the option. N.T., 

3/5/2019, at 15.

During Agent Oliver’s testimony, when the Commonwealth moved for 

admission of Appellant’s RCC discharge transition summary with attendance 

sheet as Commonwealth’s Exhibit 1, id. at 8, the following exchange occurred:

THE COURT: Any objection?

[DEFENSE COUNSEL]: Just one. Has this document been created 

by you?

THE WITNESS: No, sir. It was not.

[DEFENSE COUNSEL]: Authentication, Your Honor? . . .

[THE COURT:] I’ll sustain the objection to the document.

Id. at 9-10.

Christopher Johnston, the program clinician for PPL, confirmed that 

Appellant had been discharged from that program in November 2018 due to 

his lack of attendance at sex offender group therapy. Id. at 16-17, 20; Trial 

Court Opinion, filed May 29, 2019, at 3.

Appellant testified in his own defense that he is a Christian Scientist who 

does not believe in mental health treatment and that he did not live within 
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walking distance of RCC, had no access to public transportation to RCC, and 

had only been able to reach RCC on days that medical transport was available 

to him. N.T., 3/5/2019, at 50, 65-66.

At the conclusion of the Gagnon II hearing, the trial court found 

Appellant had violated the terms of his probation and proceeded immediately 

to sentencing. After hearing argument about sentencing, the trial court 

stated:

These are cases where I expect total compliance. You need to 

figure out a way to make sure that you do comply because the 

idea is before you go back on the street that we try to make sure 

that society is going to be protected from any issues that you have 

and if you get treatment, hopefully you won’t have any[]more sex 

offender issues, you’ll be able to control your mental health issues, 

but we can’t do that if you don’t cooperate and I know your 

position is that you’re cooperating and things just didn’t work out. 

That you couldn’t get there . . . I understand all of that, but you 

look at the whole circumstances and the totality of the 

circumstances, it’s just clear to me that you have not complied as 

you didn’t do back in May of 2017 when we violated you the first 

time.

So looking at all of that I think it’s important that you understand 

and that society understands that you need to be – this needs to 

be taken seriously and the record we have here is that it’s not 

being.

Id. at 82-83. The trial court then re-sentenced Appellant to two to five years 

of probation. Order, 3/5/2019. 

On March 12, 2019, Appellant filed post-sentence motions challenging 

the sufficiency of the evidence and the discretionary aspects of sentencing. 

Post-sentence Motions, 3/12/2019, at ¶¶ 2-3. On March 14, 2019, the trial 
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court denied the post-sentence motions. On March 22, 2019, Appellant filed 

this timely direct appeal.5

On June 4, 2019, this Court affirmed the judgment of sentence from 

Appellant’s earlier probation revocation. On July 5, 2019, Appellant filed a 

petition for allowance of appeal with the Supreme Court of Pennsylvania, 

which remains pending.6

Appellant now presents the following issues for our review:

[I.] Whether it is against the weight of the evidence to find

[Appellant] was unsuccessfully discharged from [PPL] on 

November 15, 2018?

[II.] Whether the Parole Board’s choice of recommending sex

offender therapy for [Appellant] substantially burdens 

[Appellant]’s religious practice as a Christian Scientist by 

compelling conduct which violates a specific tenet of his faith 

without a compelling state interest that is narrowly tailored?

[III.] Whether there was sufficient evidence to prove [Appellant]

was unsuccessfully discharged from [RCC] on October 26, 2018 

by a preponderance of the evidence?

[IV.] Whether the [trial c]ourt abused its discretion in sentencing

[Appellant] to two to five years of incarceration?

Appellant’s Brief at 6-7 (issues re-ordered to facilitate disposition) (suggested 

answers omitted).

“[I]n reviewing an appeal from a judgment of sentence imposed after 

the revocation of probation, this Court’s scope of review includes the validity 

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5 Appellant filed his statement of errors complained of on appeal on April 22, 

2019. The trial court entered its opinion on May 29, 2019.

6 We find no law – and neither party provides us with any – stating that a trial 

court cannot find a defendant in violation of probation and impose a new 

judgment of sentence during the pendency of an appeal in the same case.
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of the hearing, the legality of the final sentence, and if properly raised, the 

discretionary aspects of the appellant’s sentence.” Commonwealth v. 

Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010). “We review a sentence 

imposed following a revocation of probation for an error of law or an abuse of 

discretion.” Commonwealth v. Flowers, 149 A.3d 867, 873 (Pa. Super. 

2016).

Preliminarily, we note that a challenge to the weight of the evidence is 

not cognizable for an appeal from the revocation of probation. See 

Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa. Super. 1988) 

(stating that there was “no authority for appellant’s assumption that a 

challenge to the evidence may be properly entertained on appeal from parole 

revocation”); Commonwealth v. Levenberg, No. 2680 EDA 2018, 

unpublished memorandum at 9 (Pa. Super. filed July 23, 2019) (“there is no 

authority that indicates that we may entertain on appeal a challenge to the 

weight of the evidence from a probation revocation by the trial court”);7 see 

also Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (explaining the 

procedural distinctions between a trial and a hearing about the revocation or 

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7 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):

(1) As used in this rule, “non-precedential decision” refers to an 

unpublished non-precedential memorandum decision of the 

Superior Court filed after May 1, 2019 or an unreported 

memorandum opinion of the Commonwealth Court filed after 

January 15, 2008.

(2) Non-precedential decisions as defined in (b)(1) may be cited 

for their persuasive value.
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violation of parole or probation); Kuykendall, 2 A.3d at 563 (scope of 

appellate review does not include weight of the evidence claims). Accordingly, 

Appellant’s first issue fails.

Additionally, Appellant has failed to preserve his second issue 

challenging the condition of his probation that he “undergo any mental health 

counseling or therapy that is recommended for him[,]” Order, 4/23/2014, at 

¶ 4, as there is nothing in the record to suggest that Appellant objected to 

this condition of his probation at the time of his original sentencing in 2014 or 

his re-sentencing following his first violation of probation hearing in 2017. 

This issue thus is waived.

Sufficiency of the Evidence

Turning to Appellant’s surviving questions, he contends that the 

“Commonwealth’s evidence is insufficient to prove [he] was unsuccessfully 

discharged from” RCC. Appellant’s Brief at 13. 

Agent Oliver testified that Appellant had been discharged from the 

mental health treatment program at RCC, N.T., 3/5/2019, at 6-8, and no 

evidence was admitted contradicting his testimony. This evidence was 

sufficient to support the trial court’s finding that Appellant had not completed 

this condition of his probation.

To the extent that Appellant is now attempting to argue that all of Agent 

Oliver’s testimony about Appellant’s discharge from RCC “should have been 

excluded pursuant to Appellant’s objection,” Appellant’s Brief at 15, Appellant 

failed to preserve this challenge, because he only objected to the admission 
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of the RCC discharge transition summary as an exhibit and not to all of Agent 

Oliver’s testimony about the RCC discharge. N.T., 3/5/2019, at 9. The trial 

court also explicitly stated that it “sustain[ed] the objection to the document” 

and not the entirety of Agent Oliver’s testimony on this matter. Id. at 10 

(emphasis added). If there had been any ambiguity as to the extent of the 

trial court’s decision, Appellant could have requested a clarification after the 

trial court specifically referred to “the document[,]” but Appellant failed to do 

so. Id.

We also observe that Appellant does not challenge the sufficiency of the 

evidence to find that he was unsuccessfully discharged from sex offender 

treatment at PPL. See Appellant’s Brief at 13-17. Even assuming that we 

were to accept Appellant’s claim that the evidence was insufficient to support 

the finding that he had been unsuccessfully discharged from RCC for mental 

health treatment, he still failed to complete his sex offender treatment and, 

consequently, violated the condition of his probation that he “undergo any

mental health counseling or therapy that is recommended for him and not 

discontinue the same without the prior consent of the Adult Probation/Parole 

Department and the counselors involved.” Order, 4/23/2014, at ¶ 4 

(emphasis added). Ergo, even without any findings about Appellant’s failure 

to complete his therapy with RCC, the revocation of Appellant’s probation was 

still proper based upon his failure to complete his treatment with PPL alone.
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Sentencing

Next, Appellant challenges the discretionary aspects of his sentence. 

Appellant’s Brief at 25-26.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart 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 

(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).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(quotation marks and some citations omitted), reargument denied (July 7, 

2018). In the current case, Appellant filed a timely notice of appeal, preserved 

his issue in a post-sentence motion, and included a statement in his brief 

pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 10-12. The final 

requirement, whether the question raised by Appellant is a substantial 

question meriting our discretionary review, “must be evaluated on a case-bycase 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.” Manivannan, 186 A.3d at 489 (quotation marks and some citations 

omitted). Appellant maintains:
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Here, the sentence was manifestly excessive in light of the 

conduct at issue, making it contrary to the fundamental norms 

which underlie the sentencing process. The conduct at issue was 

missing a few mental health counseling meetings due to 

transportation issues and being discharged from sex offender 

treatment due to his probation officer telling them to after 

[Appellant] failed to bring in doctor’s excuses.

Appellant’s Brief at 11. This issue presents a substantial question for our 

review. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 

2013) (claim that a sentence is excessive in light of the conduct at issue raises 

a substantial question); Commonwealth v. Ferguson, 893 A.2d 735, 737 

(Pa. Super. 2006) (appellant “presented a statement of reasons for allowance 

of appeal arguing . . . that his sentence of total confinement and 36 years of 

probation were manifestly excessive”; this issue presents a substantial 

question).

Having found that Appellant’s sentencing challenge merits our 

discretionary review, we turn to Appellant’s specific claim that “the mitigating 

circumstances that were brought to light at the hearing show a much less 

severe re-sentence is necessary” and that “[i]t was manifestly excessive 

unreasonable, and contrary to the fundamental norms which underlie the 

sentencing process to sentence [Appellant] to an extended state sentence[.]” 

Appellant’s Brief at 25.

“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.” Commonwealth v. 
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Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (quotation marks and citations 

omitted).

[A]n abuse of discretion is not shown merely by an error in 

judgment. Rather, the appellant must establish, by reference to 

the record, that the sentencing court ignored or misapplied the 

law, exercised its judgment for reasons of partiality, prejudice, 

bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation 

omitted).

Appellant has not made any claims that the trial court has ignored or 

misapplied the law or has shown partiality, prejudice, bias, or ill will. Id. 

Furthermore, the trial court articulated its reasons for giving Appellant his 

current sentence, N.T., 3/5/2019, at 82-83, which were supported by the 

record, including its consideration of Appellant’s “position that [he was] 

cooperating and things just didn’t work out[,]” id. at 83; we thus cannot find 

that the trial court arrived at an unreasonable decision. See Lekka, 210 A.3d 

at 350. Therefore, Appellant has failed to demonstrate a manifest abuse of 

discretion, and we thereby will not disturb Appellant’s sentence on appeal. Id.

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Based on the foregoing, Appellant is not entitled to relief on any of his 

issues. We therefore affirm the judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2019