J-S53015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHARIFF L. PERRY,

Appellant No. 1696 EDA 2016

Appeal from the Judgment of Sentence Entered March 17, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007243-2014

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2017

Appellant, Shariff L. Perry, appeals from the judgment of sentence of 

one to four years’ incarceration, imposed after his term of probation was 

revoked. Appellant solely challenges the discretionary aspects of his new 

sentence. After careful review, we are compelled to vacate Appellant’s 

sentence and remand for resentencing.

The facts of Appellant’s case are unnecessary to our disposition of his 

appeal. We need only note that on May 18, 2015, Appellant pled guilty to 

possession with intent to deliver (“PWID”) a controlled substance 

(marijuana), 35 P.S. § 780-113(a)(3). He was sentenced that same day to 

two years’ probation. In February of 2016, while Appellant was serving his 

term of probation, his probation officer, Tracy Allen (“PO Allen”), suspected 

that he had used marijuana. See N.T. Hearing, 3/17/16, at 6. PO Allen 
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asked Appellant to provide a urine sample for drug testing. Id. After she 

sent Appellant to the lab to submit that sample, she was informed by a lab 

technician that Appellant “had attempted to have someone else submit a 

urine sample in place of him, and that he was sent back up to see [her].” 

Id. However, Appellant failed to return to PO Allen’s office as he was 

instructed to do. Id. Accordingly, a warrant was issued for Appellant’s 

arrest. Id. at 7. Appellant appeared at PO Allen’s office on his next report 

date, which was March 11, 2016, and he was detained at that time.

A probation revocation hearing was held on March 17, 2016, at which 

PO Allen testified. At the close of the hearing, the court revoked Appellant’s 

probation and imposed a new sentence of one to four years’ incarceration, 

with boot camp eligibility. Appellant filed a timely post-sentence motion for 

reconsideration of his sentence. However, before the court ruled on that 

motion, Appellant filed a petition under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his direct 

appeal rights. On May 18, 2016, the PCRA court granted that petition, 

permitted trial counsel to withdraw, and appointed new counsel to represent 

Appellant on appeal. Appellant filed a notice of appeal on May 27, 2016, and 

he also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b) 

statement. On November 14, 2016, the trial court issued a Rule 1925(a) 

opinion. 

Herein, Appellant presents one issue for our review:
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[I.] Is the sentence of total confinement imposed in this matter 

for a technical violation of probation (namely, admitted 

marihuana use by [A]ppellant) unduly harsh, excessive and 

unreasonable under the circumstances where:

[a.] [A]ppellant has not been convicted of another crime;

[b.] the conduct of [A]ppellant failed to indicate that it is 

likely that he will commit another crime if he is not 

imprisoned;

[c.] the sentence is not essential to vindicate the authority 

of the court; and, 

[d.] the sentence is not 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 [A]ppellant?

Appellant’s Brief at 4.

Appellant’s issue presents a challenge to the discretionary aspects of 

his sentence and, thus, he “must demonstrate that there is a ‘substantial 

question’ that the sentence is inappropriate.” Commonwealth v. Sierra, 

752 A.2d 910, 912 (citing, inter alia, 42 Pa.C.S. § 9781(b)). 

This determination is made on a case-by-case basis, and this 

Court will grant the appeal 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.

To this end, an appellant must include in his or her brief a 

concise statement of the reasons relied on for allowance of 

appeal. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 

513 Pa. 508, 511-12, 522 A.2d 17, 18-19 (1987). 

Sierra, 752 A.2d at 912-913 (internal quotation marks and one citation 

omitted). 
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Appellant has included a Rule 2119(f) statement in his brief to this 

Court. Therein, he avers that he has presented a substantial question for 

our review because the court imposed “a period of one to four years of total 

confinement for a technical violation of probation....” Appellant’s Brief at 18. 

He also argues that his “conduct did not indicate that it is likely that he will 

commit another crime if he is not imprisoned.” Id. Appellant stresses that 

he “admitted to drug use without being given a drug test[,]” and that he 

“voluntarily met with his probation officer even though the officer told 

[Appellant] he would be taken into custody. Thus, [Appellant] did not flee 

even when faced with the certainty of some amount of time in prison.” Id. 

Appellant also avers that “the sentence imposed was not essential to 

vindicate the authority of the court[,]” and that the court failed to “offer any 

explanation at all of why the sentence was necessary in this regard.” Id. 

(emphasis in original). He further maintains that the sentence is not 

consistent with the protection of the public or the gravity of his offense, 

where his use of marijuana “made no appreciable negative impact on the 

community[,]” and Philadelphia has even “taken steps to lessen the criminal 

penalties sought in connection with the personal use of marihuana.” Id. at 

19. Finally, Appellant claims that the sentence is not consistent with his 

rehabilitative needs, and “[u]p to four years of state incarceration is not 

consistent with the cessation of marihuana use.” Id. (footnote omitted).

We conclude that Appellant has presented a substantial question for 

our review. See Sierra, 752 A.2d at 913 (“On appeal from a revocation 
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proceeding, we find a substantial question is presented when a sentence of 

total confinement, in excess of the original sentence, is imposed as a result 

of a technical violation of parole or probation.”); Commonwealth v. Derry, 

150 A.3d 987, 999 (Pa. Super. 2016) (holding “that the failure to consider 

Section 9721(b) factors ... present[s] a substantial question for our review of 

the discretionary aspects of sentences imposed for violations of probation”).

In assessing the merits of Appellant’s arguments, we begin by 

recognizing that:

[T]he proper standard of review when considering whether to 

affirm the sentencing court's determination is an abuse of 

discretion.... [A]n abuse of discretion is more than a mere error 

of judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.... An abuse of discretion may 

not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous.... The 

rationale behind such broad discretion and the concomitantly 

deferential standard of appellate review is that the sentencing

court is in the best position to determine the proper penalty for a 

particular offense based upon an evaluation of the individual 

circumstances before it.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation 

omitted).

We are also mindful of the dictates of 42 Pa.C.S. § 9771, which “places 

limitations on a court's ability to sentence a defendant to total confinement 

upon probation revocation....” Commonwealth v. Carver, 923 A.2d 495, 

497 (Pa. Super. 2007). Specifically, subpart (c) of that section states:
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(c) Limitation on sentence of total confinement. 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. § 9771(c). 

Here, in its Rule 1925(a) opinion, the trial court states that it 

“specifically found that the sentence imposed was [necessary] to protect 

society and to vindicate the court’s authority....” Trial Court Opinion (TCO), 

11/14/16, at 3; see also N.T. Hearing at 21 (the court’s stating it was 

“sentencing [Appellant] to protect society and also to vindicate the [c]ourt’s 

authority”). However, at the revocation/resentencing hearing, the court did 

not offer any discussion of what danger Appellant poses to society. Instead, 

the court made generalized remarks, such as a comment that, “[W]e live 

with young men that may present a danger to people, and that’s not fair to 

us either. People have to put up with people like him, but that’s not right.” 

N.T. Hearing at 20 (emphasis added). The court did not expound on what it 

meant by ‘people like him,’ nor offer any specific reasons why Appellant, in 

particular, presents a danger to society such that incarceration is necessary. 

Additionally, the court did not clarify why it found that Appellant is 

likely to commit another crime if not imprisoned. The only comments by the 

court that could be construed as such a finding are the following:
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[THE COURT]: My inclination was to put him in jail for the PWID, 

because his criminal history is understated by the guidelines. He 

picked up three F-1 aggravated assault arrest[s] that ended up 

nolle prosed [sic]. I know he’s not guilty, but that pattern, 

that pattern shows something that should concern you. 

And it would have justified an incarceration sentence on that 

PWID. So we did this instead and imposed some conditions. 

N.T. Hearing at 14 (emphasis added). 

The court’s remarks suggest that it improperly found that Appellant 

poses a current risk of re-offending based only on several charges for which 

he was not convicted, and which occurred before he was sentenced to a 

probationary term. See Carver, 923 A.2d at 497 (“It ... is inappropriate to 

consider the defendant’s conduct prior to imposition of the probationary 

term because the efficacy of probation has not yet been tested when that 

behavior occurred.”). The court pointed to nothing in Appellant’s conduct 

while serving his term of probation that would indicate he is likely to 

commit a new offense if not incarcerated. 

Additionally, we agree with Appellant that the court failed to “offer any 

explanation at all of why the sentence was necessary” to vindicate the 

authority of the court. Appellant’s Brief at 24 (emphasis in original). We 

recognize that the trial court stressed the “defiant nature of [Appellant’s] 

technical violation,” N.T. Hearing at 21, as well as his “poor attitude[,]” TCO 

at 4. However, these two factors, alone, simply cannot justify a term of 

incarceration of one to four years where Appellant committed one technical 
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violation of having marijuana in his system.1 Notably, PO Allen 

recommended that the court not impose a term of incarceration “given the 

circumstances” of Appellant’s case, N.T. Hearing at 21, and the 

Commonwealth asked for a sentence of 111⁄2 to 23 months’ incarceration, id. 

at 16. Nevertheless, the trial court imposed a term of incarceration, with a 

maximum term that was double the sentence recommended by the 

Commonwealth.

Finally, we agree with Appellant’s argument that “the lengthy sentence 

of total confinement imposed is not consistent with the rehabilitative needs 

of [Appellant].” Appellant’s Brief at 19. As Appellant points out, we must 

consider whether his maximum sentence of four years’ incarceration is 

appropriate, and whether it comports with sentencing norms. In this regard, 

the record makes clear that the trial court imposed a lengthier maximum 

term in order to ensure that, “[u]pon release,” - presumably meaning 

release from parole - “[Appellant] is ... supervised intensely.” N.T. Hearing 

at 21. The court also imposed conditions upon Appellant’s release, including 

____________________________________________

1 While we acknowledge that sentencing court must impose individualized 

sentences, we agree with Appellant that the de-criminalization of marijuana 

in cities across the United States, and in Philadelphia in particular, may 

properly be considered in weighing the severity of his technical violation. As 

Appellant points out, recent changes in the Philadelphia City Code now make 

possession of a small amount (30 grams or less) of marijuana a civil 

violation that is punishable by a fine of $25. See Appellant’s Brief at 24-25. 

This fact provides worthwhile perspective on the technical, marijuana-related 

violation that was committed by Appellant, and on the severity of the 

sentence imposed by the court for that violation.
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that he “be actively employed or be seeking employment[,]” or “be receiving 

vocational training and job training.” Id. at 23. The court further directed 

that Appellant be “subject to random urinalysis.” Id. at 22. In the trial 

court’s opinion, it again emphasizes that it designed its sentence to include 

“state parole supervision.” TCO at 4. 

In Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011), 

this Court stated that “[i]ssuance of parole may not be assumed and may 

not be treated as a tool of rehabilitation....” Id. at 148. This is so because, 

“presumably, a defendant’s rehabilitation has already been achieved if parole 

is granted. Consequently, parole, imposed as a byproduct of an outsize 

maximum sentence, is not a legitimate means of implementing the statutory 

goals of criminal sentencing.” Id. Instead, “the term of imprisonment must 

be individualized in its entirety as a sentence of confinement and not treated 

as a means to indefinite parole, or worse, as a means of private retribution 

or judicial policy-making.” Id. (emphasis in original).

In this case, the record demonstrates that the trial court fashioned a 

lengthy maximum term of incarceration under the assumption that Appellant 

will be paroled, and to utilize the ‘intense supervision’ that parole imposes as 

a rehabilitative tool for Appellant. This was inappropriate under the rationale 

of Coulverson. 

For all of the above-stated reasons, we are compelled to conclude that 

the trial court abused its discretion in sentencing Appellant following the 
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revocation of his probation. Accordingly, we vacate Appellant’s sentence 

and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

President Judge Ford Elliott joins this memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2017