J. A25043/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

HAKEEM CANADA, :

:

Appellant : No. 2648 EDA 2014

Appeal from the Judgment of Sentence August 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0010300-2007

BEFORE: DONOHUE, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 30, 2015

Appellant, Hakeem Canada, appeals from the judgment of sentence 

entered in the Philadelphia Court of Common Pleas following the second 

revocation of his probation. Appellant argues the trial court failed to 

consider the factors of 42 Pa.C.S. § 9721(b) and imposed an excessive 

sentence. We affirm.

The trial court summarized the procedural history of this matter as 

follows. On May 28, 2008, Appellant pleaded guilty to simple assault and 

terroristic threats1“and was sentenced to a negotiated sentence of two 

years probation on each charge, to run concurrently.” Trial Ct. Op., 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2701(a), 2706(a)(1).
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11/13/14, at 1. The trial court revoked his probation for the first time on 

October 20, 2010, finding him in technical violation for, inter alia, 

absconding from the probation department for seven months, “test[ing] 

positive for marijuana in five consecutive urinalyses,” and failing to attend 

drug treatment, anger management, or vocational training as required. Id.

at 1-2. On the same day, the court imposed a new aggregate sentence of 

111⁄2 to 23 months’ county imprisonment and three years’ probation. 

Appellant “was warned at this hearing that he would receive a sentence of 

state incarceration if he violated his probation again.” Id. at 2.

“On October 27, 2011, [Appellant’s] new period of probation began.” 

Id. The court conducted a status listing on July 20, 2012, but because 

Appellant had not made any payment on his fines and costs, the court 

continued the hearing to August 22nd and ordered him to make a payment. 

At the August 22nd hearing, the court learned Appellant “had made only a 

$10 payment,” continued the matter for an additional two days, and ordered 

him “to make a substantial payment,” as well as produce proof “that he was 

enrolled in school.” Id. Appellant failed to appear at the August 24th 

hearing, the court issued a bench warrant, and he was apprehended on the 

warrant one year and ten months later, on June 30, 2014.2

 

2 At the instant VOP hearing, Appellant’s counsel stated her belief that 

Appellant “was at home and one of his children was trying to unlock his cell 

phone and inadvertently called 911. The police came to the house and 

arrested [Appellant] on the warrant.” N.T. VOP H’rg, 8/15/14, at 11.
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The court held the instant probation revocation hearing on August 15, 

2014. It revoked Appellant’s probation and imposed the underlying 

consecutive sentences of 11⁄2 to 3 years’ imprisonment for terroristic threats 

and 1 to 2 years’ imprisonment for simple assault, to be served in state 

prison. Appellant filed a timely post-sentence motion, but neither the trial 

docket nor certified record indicates the trial court ruled on it. Appellant 

then filed a timely notice of appeal3and complied with the court’s order to 

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

On appeal, Appellant presents two issues, which we address together. 

First, he avers the trial court abused its discretion and imposed a manifestly 

excessive sentence, where he did not commit a new crime and there was no 

need to vindicate the court’s authority. In support, he asserts the following. 

The imprisonment sentence following Appellant’s first revocation of probation 

(“VOP”) “was a wake-up call” and he “completed numerous programs in 

county custody.” Appellant’s Brief at 19. Upon release, “[h]e enrolled in 

and provided probation with a Kaplan student ID” and “[h]is only failure 

appeared to be payments on his costs and fines.” Id. at 19-20. Appellant 

did not appear for the August 24, 2014 VOP hearing because he did not have 

money to pay his fines and costs and was “fearful he would go to jail for 

failing to comply.” Id. He then “had to drop out of Kaplan because of the 

 

3 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will 

not toll the 30-day appeal period.”).
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[trial] court’s bench warrant,” but nevertheless “found regular work for 

almost six months,” before stopping in March of 2014 in order to stay home 

to care for his children while his fiancée worked. Id. Appellant “stopped 

using drugs[,] was not committing crimes . . . and was successfully 

reintegrating himself to society despite having a bench warrant hanging over 

his head.”4 Id. With respect to vindicating its authority, the trial court’s 

opinion “attempts to make much of his non-reporting.” Id. at 23. Appellant 

concludes the sentence of “a half decade of incarceration on a young man 

who was truly getting his life in order, . . . has never been convicted of a 

felony, was not a danger to the community, was proving he was not likely to 

commit another crime, and obviously had a troubled youth,5 places ‘form 

over substance.’” Id. at 24.

Appellant’s second argument is that the court abused its discretion by 

failing to consider the factors of 42 Pa.C.S. § 9721(b): his rehabilitative 

needs, the gravity of the offense, and the need for public protection. 

Instead, he alleges, the court’s sentence “is counterproductive [and] 

vindictive.” Id. at 31. Appellant contends that although our Supreme 

 

4 Appellant refers this Court to a book that “discuss[es] in detail the 

extraordinary difficulty of leading a law-abiding life in Philadelphia while 

wanted on a warrant.” Appellant’s Brief at 24 (citing Alice Goffman, ON THE 

RUN (2014)).

5 Elsewhere in his brief, Appellant states he had a “difficult childhood as 

exemplified by the numerous dependency petitions filed on his behalf.” Id.

at 12.
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Court’s 2014 decision in Commonwealth v. Pasture, 107 A.3d 21 (Pa. 

2014), “declared that a [VOP court] is not ‘cabined’ by [42 Pa.C.S. §] 9721, 

it did not say such individualized considerations were irrelevant.” Id. at 26. 

Appellant maintains that in imposing a VOP sentence, a court may not 

“ignore the fundamental constraints of individualized and proportional 

sentencing.” Id. at 26-27. Appellant also cites an annual cost of $40,000 to 

the Commonwealth for his incarceration—an amount “which dwarfs” his fees 

and fines—and claims that any deductions of “a few dollars” to pay his fines 

“from [his prison] account teaches him nothing, and does nothing to 

increase his likelihood of his successful reintegration.” Id. We find no relief 

is due.

Preliminarily, we note Appellant’s claim goes to the discretionary 

aspects of his sentence, and he has preserved this issue for our review. See 

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014) 

(stating that to reach merits of discretionary aspect of sentence issue, we 

must confirm, inter alia, appellant preserved issue, appellate brief includes 

Pa.R.A.P. 2119(f) statement of reasons for allowance of appeal, statement 

raises substantial question that sentence is not appropriate under sentencing 

code, and that claim that probation revocation sentence is excessive in light 

of underlying technical violations can present substantial question), appeal 

denied, 109 A.3d 678 (Pa. 2015).

This Court has stated:
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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.

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 factors such as the nature of the 

crime, the defendant’s character, and the defendant’s 

display of remorse, defiance, or indifference.

Id. at 1041 (citations omitted).

Section 9721(b) of the Sentencing Code, “General standards,” 

provides in pertinent part,

In selecting from the [sentencing] alternatives set forth in 

subsection (a), the court shall follow the general principle 

that the sentence imposed should call for confinement 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. . . . In every case in which the court . . . 

resentences an offender following revocation of probation . 

. . , the court shall make as a 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. . . . Failure to comply shall be grounds for 

vacating the sentence or resentence and resentencing the 

defendant.

42 Pa.C.S. § 9721(b).

Section 303.1(b) of the Pennsylvania Code, however, states in part: 

“The sentencing guidelines do not apply to sentences imposed as a result of 

the following: . . . revocation of probation, intermediate punishment or 
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parole.” 204 Pa. Code § 303.1(b).

In Pasture, the Pennsylvania Supreme Court cited Section 303.1(b) 

and stated:

At initial sentencing, all of the rules and procedures 

designed to inform the court and to cabin its discretionary 

sentencing authority properly are involved and play a 

crucial role. However, it is a different matter when a 

defendant reappears before the court for sentencing 

proceedings following a violation of the mercy bestowed 

upon him in the form of a probationary sentence. For 

example, in such a case, contrary to when an initial 

sentence is imposed, the Sentencing Guidelines do not 

apply, and the revocation court is not cabined by Section 

9721(b)’s requirement that “the sentence imposed should

call for confinement 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.” 42 Pa.C.S. § 

9721. See Commonwealth v. Reaves, . . . 923 A.2d 

1119, 1129 ([Pa.] 2007) (citing 204 Pa.Code. § 303.1(b) 

(Sentencing Guidelines do not apply to sentences imposed 

as result of revocation of probation)).

Upon revoking probation, “the sentencing alternatives 

available to the court shall be the same as were available 

at the time of initial sentencing, due consideration being 

given to the time spent serving the order of probation.” 

42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the 

trial court is limited only by the maximum sentence that it 

could have imposed originally at the time of the 

probationary sentence, although once probation has been 

revoked, the court shall not impose a sentence of total 

confinement 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
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(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c).

Pasture, 107 A.3d at 27.

At the instant VOP hearing, the trial court stated:

[Appellant’s] entire history with this court has been 

absconding. He never turned himself in at any point. 

Obviously, if he was trying to get himself on the right track 

the first thing he would have done is turn himself in. He 

doesn’t get additional credit for the mistake that was made 

with the family member, which resulted in the police 

coming to [his house].

N.T. at 15-16. In its opinion, the court again emphasized Appellant’s 

absconding and failure to comply with the terms of his probation:

[A] sentence of total confinement was necessary to 

vindicate the authority of the Court. As this Court noted, 

[Appellant] had been in absconding status for almost his 

entire period of probation. During [Appellant’s] first period 

of probation, he reported for only 51⁄2 months before 

absconding for 7 months. Even after [Appellant] turned 

himself in to the probation department, he reported only 

sporadically[,] did not comply with the terms and 

conditions of his probation[,] tested positive for marijuana 

on multiple occasions and threatened his probation officer 

with violence. . . .

In his second period of probation, [Appellant] reported 

for probation for only 10 months[, during which he did not 

comply with the terms and conditions of his probation. 

Appellant then] failed to appear in court and absconded for 

23 months[. He never turned himself in or reported to 

probation but instead was arrested on his outstanding 

bench warrant.] During his entire period of probation, he 

made only a $10 payment towards his fines and costs 

despite being ordered by this Court to pay $40 a month. 

Furthermore, while [Appellant] claimed he was attending 

school, he never brought any documentation showing that 
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he was enrolled in school or employed. . . . As this Court 

noted, [Appellant] had thumbed his nose at this Court 

whenever he was on probation and therefore a sentence of 

total confinement was essential to vindicate the authority 

of this Court.

Trial Ct. Op. at 6-7 (paragraph break added).

Appellant argues, “That Section 9721 does not apply to a violation of 

probation hearing is wrong.” Appellant’s Brief at 15. Our Supreme Court 

stated in Pasture that a “revocation court is not cabined by Section 

9721(b)’s requirement” to consider “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.” Pasture, 83 

A.3d at 1040-41. This panel cannot overrule that statement or grant relief 

inconsistent with it.6 See Prout, 814 A.2d at 695 n.2.

We likewise find no relief due on Appellant’s remaining arguments. 

 

6

In December of 2013, a unanimous en banc panel of this Court in 

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc), 

cited Section 303.1(b) and stated “parts of [42 Pa.C.S.] § 9721(b) do not 

govern revocation proceedings.” Id. at 1040. However, it stated a VOP 

court must still “follow the general principle [under Section 9721(b)] that the 

sentence imposed should call for confinement 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.” Id. at 1040-41.

Our Supreme Court decided Pasture one year later, in December of 

2014. “Although we generally are bound by prior panel decisions of this 

Court, where, as here, intervening Supreme Court authority calls into 

question that authority, we are constitutionally bound to follow decisions of 

the Pennsylvania Supreme Court.” Commonwealth v. Prout, 814 A.2d 

693, 695 n.2 (Pa. Super. 2002) (citation omitted).
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The claim that he attempted to live a law-abiding life “despite having a 

bench warrant hanging over his head” denigrates the seriousness of his 

absconding from the court’s authority and ignores the court’s extensive 

discussion of this conduct. See N.T. at 7; Trial Ct. Op. at 6-7; Appellant’s 

Brief at 23-24. Appellant’s policy argument, comparing the Commonwealth’s 

annual cost of imprisoning him and the amount of fines and costs he owes, 

is a point well taken and should be considered by a trial court. 

Nevertheless, this Court “give[s] great weight to the sentencing court’s 

discretion,” and we hold Appellant has not met the high standard of 

establishing the court exercised manifestly unreasonable judgment, 

partiality, prejudice, bias or ill-will. See Colon, 102 A.3d at 1041; see also

42 Pa.C.S. § 9771(b).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2015