J. S69027/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

BRUCE ANDERSON, : No. 3587 EDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, November 15, 2013,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0003582-2008

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014

Bruce Anderson appeals from the judgment of sentence of 

November 15, 2013, following revocation of his probation. We affirm.

On July 24, 2008, appellant pled guilty to one count of false 

imprisonment. The charge related to an incident on June 19, 2007, when 

appellant grabbed a 10-year-old girl, restrained her, and rubbed her 

buttocks before she was able to run away. Additional charges including 

indecent assault were nolle prossed. On October 21, 2008, appellant was 

sentenced to 111⁄2 to 23 months’ imprisonment, with immediate parole, 

followed by 8 years of supervised probation by the Mental Health Unit. On 

April 22, 2009, appellant was found to be in violation of his parole; 

appellant’s parole was revoked and he was sentenced to serve out the 

balance of his sentence.
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On August 13, 2012, appellant violated the terms of his probation, and 

he was sentenced to 6 to 23 months’ imprisonment, with immediate parole, 

followed by 5 years of supervisory probation under the Mental Health Unit. 

On November 15, 2013, appellant was again found to be in violation of 

probation, for failure to comply with the terms and conditions of the mental 

health program. Appellant was re-sentenced to 21⁄2 years to 5 years’ 

incarceration followed by 5 years of probation. Appellant’s sentence was to

be served concurrently with the 21⁄2 to 5-year sentence imposed August 22, 

2013, by the Honorable Sheila Woods-Skipper in an unrelated violation of 

probation (“VOP”) case.1

Appellant filed a motion for reconsideration of sentence on 

November 25, 2013. On Monday, December 16, 2013, appellant filed a 

timely notice of appeal.2 Appellant complied with Pa.R.A.P. 1925(b), and the 

trial court has filed an opinion. 

 

1 Appellant filed an appeal in that case at No. 2932 EDA 2013, which is pending 

before a different panel of this court.

2 The filing of a motion to modify sentence does not toll the 30-day appeal 

period in revocation cases. Pa.R.Crim.P. 708(E).

Under this rule, the mere filing of a motion to modify 

sentence does not affect the running of the 30-day 

period for filing a timely notice of appeal. Any appeal 

must be filed within the 30-day appeal period unless 

the sentencing judge within 30 days of the imposition 

of sentence expressly grants reconsideration or vacates 

the sentence.

Id., Comment, citing Commonwealth v. Coleman, 721 A.2d 798, 799 n.2 

(Pa.Super. 1998).
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Appellant has raised the following issue for this court’s review:

Was not [appellant]’s sentence of 21⁄2 to 5 years[’] 

incarceration for a technical violation of probation 

excessive and unreasonable, where the lower court 

simply adopted the prior sentence of another 

sentencing judge in an unrelated violation matter 

and the lower court’s sentence failed to take any 

individualized account of appellant’[s] rehabilitative 

needs by disregarding his mental health issues and 

his mental health treatment programs’ agreement to 

continue working with him under more stringent 

parameters, and such a sentence was not necessary 

to vindicate the authority of the court?

Appellant’s brief at 4.

The sentence imposed 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. 

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001), quoting Commonwealth 

v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (other citations omitted). 

See also Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) 

(en banc) (this court's scope of review in an appeal from a revocation 

sentencing includes discretionary sentencing challenges). As the 

Coolbaugh court observed:

We recently summarized our standard of review and 

the law applicable to revocation proceedings as 

follows:

Our review is limited to 

determining the validity of the probation 

revocation proceedings and the authority 

of the sentencing court to consider the 

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

42 Pa.C.S.A. § 9771(b) . . . . Also, upon 

sentencing following a revocation of 

probation, the trial court is limited only 

by the maximum sentence that it could 

have imposed originally at the time of 

the probationary sentence. Finally, it is 

the law of this Commonwealth that once 

probation has been revoked, a sentence 

of total confinement may 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 

court.

42 Pa.C.S.A. § 9771(c).

Id., quoting Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) 

(other citations omitted). We also note that the sentencing guidelines do 

not apply to sentences imposed as the result of probation revocations. Id.

(citations omitted).

An appellant wishing to appeal the discretionary 

aspects of a probation-revocation sentence has no 

absolute right to do so but, rather, must petition this 

Court for permission to do so. [Commonwealth v. 

Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)]; 

42 Pa.C.S.A. § 9781(b). Specifically, the appellant 

must present, as part of the appellate brief, a 

concise statement of the reasons relied upon for 

allowance of appeal. Malovich, 903 A.2d at 1250; 
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Pa.R.A.P. 2119(f). In that statement, the appellant 

must persuade us there exists a substantial question 

that the sentence is inappropriate under the 

sentencing code. Malovich, 903 A.2d at 1250; 

Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

In general, an appellant may demonstrate the 

existence of a substantial question by advancing a 

colorable argument that the sentencing court’s 

actions were inconsistent with a specific provision of 

the sentencing code or violated a fundamental norm 

of the sentencing process. Malovich, 903 A.2d at 

1252. While this general guideline holds true, we 

conduct a case-specific analysis of each appeal to 

decide whether the particular issues presented 

actually form a substantial question. Id. Thus, we 

do not include or exclude any entire class of issues 

as being or not being substantial. Id. Instead, we 

evaluate each claim based on the particulars of its 

own case. Id.

Id. at 289-290.

In his Rule 2119(f) statement, appellant contends that the trial court 

merely adopted Judge Woods-Skipper’s findings in an unrelated case and did 

not exercise its own independent judgment. (Appellant’s brief at 8.) 

Appellant also argues that the sentence imposed failed to address his 

rehabilitative needs and disregarded the fact that the mental health program 

in which appellant was enrolled (“JJPI”) had agreed to continue working with 

him under more stringent parameters. (Id.) Appellant states that he has 

long-standing mental health issues and JJPI was willing to provide additional 

services. (Id. at 9.) Appellant alleges that none of the criteria for total 

confinement set forth at 42 Pa.C.S.A. § 9771(c) was satisfied here. (Id.)
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Essentially, appellant is arguing that his technical violations of 

probation by failing to comply with JJPI’s requirements did not support a 

state sentence. “The imposition of a sentence of total confinement after the 

revocation of probation for a technical violation, and not a new criminal 

offense, implicates the ‘fundamental norms which underlie the sentencing 

process.’” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 

2010), appeal denied, 13 A.3d 475 (Pa. 2010), quoting Sierra, 752 A.2d 

at 913. “Additionally, a substantial question that the sentence was not 

appropriate under the Sentencing Code may occur even where a sentence is 

within the statutory limits.” Id., citing Commonwealth v. Titus, 816 A.2d 

251 (Pa.Super. 2003). We determine appellant has raised a substantial 

question regarding the appropriateness of his sentence, and will proceed to 

review the merits of his claim.

First, with regard to appellant’s argument that the trial court simply 

adopted the sentence of Judge Woods-Skipper and did not make its own 

findings, this claim is waived. In his Rule 1925(b) statement, appellant 

argued that his sentence was manifestly excessive and unreasonable where 

his technical violations stemmed from mental health issues and a sentence 

of total confinement was not necessary to vindicate the authority of the 
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court.3 Appellant never alleged that the trial court erred by relying on 

Judge Woods-Skipper’s findings in an unrelated matter. Therefore, this 

particular issue is waived. Pa.R.A.P., Rule 1925(b)(4)(vii), 42 Pa.C.S.A. 

See also Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009), 

appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for 

appellate review, [a]ppellants must comply whenever the trial court orders 

them to file a Statement of Matters Complained of on Appeal pursuant to 

[Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be 

deemed waived.”) (citations omitted).

The trial court states that its sentence was not unreasonable and was 

necessary to vindicate the authority of the court. (Trial court opinion, 

6/13/14 at 3.) The trial court observes that this was appellant’s second 

probation violation (and third violation overall, including his April 2009 

parole revocation). (Id.) In addition, the trial court received information to 

 

3 The issue appellant plans to raise on appeal is: The 

trial court erred as a matter of law, abused its 

discretion and imposed a manifestly excessive and 

unreasonable sentence of 2.5 to five years of 

incarceration plus five years of probation, where 

appellant had only technical violations of his probation, 

where his technical violations stemmed from mental 

health issues, where a sentence of total confinement 

was not necessary to vindicate the authority of the 

court, where the trial court failed to state sufficiently 

adequate reasons for imposing the new sentence, and 

where the trial court failed to properly weigh and 

consider the totality of the mitigating circumstances 

present in this case.

Appellant’s Rule 1925(b) statement, 1/30/14 at 2 ¶6; docket #10.
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the effect that appellant had also violated his probation in an unrelated case 

before Judge Woods-Skipper, and had been re-sentenced to 21⁄2 to 5 years. 

(Id.) It is true that appellant’s violations were technical in nature; however, 

he had clearly demonstrated by his repeated violations of the terms and 

conditions of his probation that he was not amenable to treatment. 

Appellant refused to abide by JJPI’s requirements. At the November 15, 

2013 hearing, the trial court heard from appellant as he exercised his right 

of allocution, and also heard evidence that appellant had been doing well at 

JJPI until the last three months, and that JJPI was willing to continue 

working with appellant, including increasing his treatment from four to five 

days per week and providing additional services. (Notes of testimony, 

11/15/13 at 7-8, 10.) The trial court was also aware of appellant’s problems 

sleeping and that his psychiatrist had recently changed his medications. 

(Id. at 8.) 

Overall, given appellant’s repeated violations, we cannot say the trial 

court abused its discretion in imposing a state sentence. The trial court 

directed that appellant continue to receive mental health treatment while in 

prison. (Id. at 12.) We also note that the trial court made appellant’s 

sentence concurrent, as requested by counsel. (Id. at 6-7, 11.) In fact, 

counsel characterized a concurrent sentence of 21⁄2 to 5 years as “sufficient”: 

“Your Honor, my understanding is that probation does not oppose a 

concurrent sentence and I’m asking for whatever sentence you impose to be 
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concurrent. I think that the two and a half to five is sufficient too.” (Id. at 

11.) There is no merit to appellant’s discretionary sentencing claim. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2014