J-S17042-15 

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*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JOHN M. RODGERS 

 Appellant No. 1786 WDA 2014 

Appeal from the Judgment of Sentence May 31, 2013 

In the Court of Common Pleas of Jefferson County 

Criminal Division at No(s): CP-33-CR-0000500-2008 

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 02, 2015 

 Appellant, John M. Rodgers, appeals nunc pro tunc from the judgment 

of sentence entered in the Jefferson County Court of Common Pleas, 

following revocation of his probation. We affirm. 

 The relevant facts and procedural history of this case are as follows. 

On July 19, 2008, Appellant took three hundred and forty-seven dollars 

($347.00) from a victim. During the course of the theft, Appellant punched 

and kicked the victim in the face, head, and ribs. Appellant entered a 

negotiated guilty plea at docket CP-33-CR-0000500-2008 (“docket 500-

2008”) on October 1, 2008, to theft by unlawful taking or disposition (18 

Pa.C.S.A. § 3921(a)) and simple assault (18 Pa.C.S.A. § 2701(a)). The 

court sentenced Appellant that day to two (2) years’ probation for each 
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conviction, to be served consecutively, for an aggregate sentence of four (4) 

years’ probation at docket 500-2008.1, 2 

 Appellant committed technical violations of his probation by failing to 

report and by changing his residence without permission from his probation 

officer. On December 9, 2009, Appellant admitted to the technical probation 

violations; the court subsequently ordered a pre-sentence investigation 

(“PSI”) report. Prior to holding a revocation (“VOP”) hearing, Appellant 

committed new offenses in Clearfield County.3 On February 14, 2011, the 

court held a VOP hearing for Appellant’s theft and simple assault convictions 

at docket 500-2008. The court took judicial notice of Appellant’s guilty plea 

and sentence in Clearfield County, and revoked Appellant’s probation for 

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1

 Also on October 1, 2008, Appellant entered a guilty plea at docket # CP33-CR-0000499-2008 (“docket 499-2008”) to theft by unlawful taking or 

disposition. The court sentenced Appellant to eleven (11) months to two (2) 

years’ imprisonment (less one day), plus one (1) day of probation, for that 

offense. The court imposed Appellant’s sentences at docket 500-2008 

consecutive to Appellant’s sentence at docket 499-2008. 

2

 On October 20, 2008, the court amended the sentencing order for 

Appellant’s theft conviction at docket 500-2008, to eliminate a 

term/condition of Appellant’s probation, which had required Appellant to pay 

a constable fee. The court did not otherwise alter Appellant’s theft sentence. 

3

 Specifically, Appellant pled guilty to driving under the influence of alcohol 

or a controlled substance, unauthorized use of a motor vehicle, and careless 

driving. On September 28, 2010, the Clearfield County Court of Common 

Pleas sentenced Appellant to thirty (30) days to two (2) years’ imprisonment 

for the DUI conviction; two (2) years’ probation for the unauthorized use 

conviction; and imposed no further penalty for the careless driving 

conviction. 
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theft and simple assault based on Appellant’s new crimes. The court 

resentenced Appellant to eighteen (18) months’ probation for theft 

(consecutive to any other sentence Appellant was serving), and resentenced 

Appellant to six (6) months’ probation for simple assault, consecutive to the 

theft probation sentence. Thus, the court imposed an aggregate sentence of 

twenty-four (24) months’ probation for Appellant’s simple assault and theft 

convictions at docket 500-2008.4 

 Appellant violated his probation again in December 2011 and January 

2012, by committing drug offenses.5 On April 3, 2013, Appellant entered a 

negotiated guilty plea for these crimes at docket # CP-33-CR-0000618-2012 

(“docket 618-2012”) and docket # CP-33-CR-0000621-2012 (“docket 621-

2012”). Specifically, Appellant pled guilty to one count of possession with 

intent to deliver a controlled substance (“PWID”) at each docket. The court 

imposed a term of nine (9) months to five (5) years’ imprisonment for each 

PWID conviction, to be served concurrently. Additionally, regarding 

Appellant’s underlying theft and simple assault convictions at docket 500-

2008, Appellant admitted that his drug offenses constituted violations of his 

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4

 The court also revoked Appellant’s probation at docket 499-2008, and 

resentenced Appellant to eighteen (18) months to five (5) years’ 

imprisonment on that docket, consecutive to the Clearfield County sentence. 

5

 Appellant also committed a technical violation of probation by possessing 

controlled substances. 
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probation. The court took judicial notice of Appellant’s guilty pleas and 

sentences for PWID, and ordered preparation of a PSI report. 

 On May 31, 2013, the court held a VOP hearing concerning Appellant’s 

theft and simple assault convictions at docket 500-2008 based on 

Appellant’s PWID convictions. The court revoked probation for the theft and 

simple assault offenses and resentenced Appellant to two and one-half (21⁄2) 

to five (5) years’ imprisonment for the theft conviction (with credit for time 

served), concurrent to the PWID sentences; and six (6) months to two (2) 

years’ imprisonment for the simple assault conviction (with credit for time 

served), consecutive to the theft sentence. Thus, the court imposed an 

aggregate revocation sentence of three (3) to seven (7) years’ imprisonment 

at docket 500-2008. Appellant did not file post-sentence motions. 

 On June 28, 2013, Appellant timely filed a notice of appeal. This Court 

affirmed the judgment of sentence on March 5, 2014, waiving Appellant’s 

sole issue challenging the discretionary aspects of his sentence for failure to 

object at sentencing or file post-sentence motions; and for failure to file a 

Pa.R.A.P. 2119(f) statement. See Commonwealth v. Rodgers, 100 A.3d 

296 (Pa.Super. 2014). 

On July 28, 2014, Appellant timely filed a pro se PCRA petition. The 

court appointed counsel on August 15, 2014, who filed an amended PCRA 

petition on September 30, 2014, requesting reinstatement of Appellant’s 

post-sentence and direct appeal rights nunc pro tunc. The court granted 
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relief on October 2, 2014, and reinstated Appellant’s post-sentence and 

direct appeal rights nunc pro tunc. On October 3, 2014, Appellant timely 

filed a post-sentence motion nunc pro tunc, which the court denied that 

day.6 Appellant timely filed a nunc pro tunc notice of appeal on October 20, 

2014. On October 24, 2014, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); 

Appellant timely complied on November 3, 2014. 

 Appellant raises one issue for our review: 

DID THE SENTENCING COURT EXERCISE A MANIFEST 

ABUSE OF DISCRETION AT [APPELLANT’S] GAGNON II[7]

PROBATION REVOCATION SENTENCING WHEN IT 

SENTENCED [APPELLANT] TO A MANIFESTLY EXCESSIVE 

SENTENCE, THE MAXIMUM SENTENCE ALLOWED BY LAW, 

AND IN STATING REASONS FOR THE SENTENCE THAT 

WERE NOT SUPPORTED BY THE RECORD, TO WIT: IN 

BOTH THE GAGNON II REVOCATION SENTENCE 

TRANSCRIPTS, AND IN ITS PA.R.A.P. NO. 1925(A) 

OPINION, THE TRIAL COURT INDICATES THAT IT 

FASHIONED A SENTENCE THAT ONLY EXTENDED 

[APPELLANT’S] MINIMUM SENTENCE BY SIX (6) MONTHS 

WHEN IN REALITY THE TRIAL COURT EXTENDED 

[APPELLANT’S] MINIMUM AGGREGATE SENTENCE BY 

TWENTY-SEVEN (27) MONTHS? 

(Appellant’s Brief at 4). 

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6

 The certified record does not contain a docket entry or court order denying 

Appellant’s post-sentence motion. Nevertheless, Appellant’s brief includes a 

copy of the order denying relief. 

7 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973). 
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When reviewing the outcome of a revocation proceeding, this Court is 

limited to determining the validity of the proceeding, the legality of the 

judgment of sentence imposed, and the discretionary aspects of sentencing. 

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) 

(en banc) (explaining that, notwithstanding prior decisions which stated our 

scope of review in revocation proceedings is limited to validity of 

proceedings and legality of sentence, this Court’s scope of review on appeal 

from revocation sentencing can also include discretionary sentencing 

challenges). 

 Appellant argues the court’s on-the-record statements concerning his 

revocation sentences for theft and simple assault are inconsistent with the 

facts of record. Appellant explains the court sentenced him on April 3, 2013 

at dockets 618-2012 and 621-2012 to concurrent terms of nine (9) months 

to five (5) years’ imprisonment for his PWID convictions. Based on these 

drug convictions, the court revoked Appellant’s probation for his underlying 

theft and simple assault convictions at docket 500-2008, and resentenced 

Appellant on May 31, 2013, to two and one-half (21⁄2) to five (5) years’ 

imprisonment for theft, and a consecutive six (6) months to two (2) years’ 

imprisonment for simple assault. Appellant asserts the court stated at the 

May 31, 2013 VOP hearing that the revocation sentences for Appellant’s 

theft and simple assault convictions essentially increased Appellant’s 

minimum sentence by only six (6) months. Appellant contends the court’s 
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statement is inaccurate, because the court actually increased Appellant’s 

minimum sentence by twenty-seven (27) months’ imprisonment. 

Specifically, Appellant maintains that his minimum sentence on the PWID 

convictions was nine (9) months’ imprisonment (because the court ran those 

sentences concurrently). By imposing a two and one-half (21⁄2) year 

minimum revocation sentence for theft (totaling thirty (30) months) 

concurrent to the PWID sentences, the court increased Appellant’s minimum 

sentence by twenty-one (21) months. Appellant insists the court’s 

imposition of a consecutive six (6) month minimum sentence for simple 

assault increased Appellant’s aggregate minimum sentence by twenty-seven 

(27) months. Appellant complains the court’s sentencing rationale was 

mathematically inaccurate. Appellant concludes the revocation sentences 

are erroneous where the court’s sentencing justification is at odds with the 

record; and this Court must remand for resentencing.

8

 As presented, 

Appellant’s issue challenges the discretionary aspects of his sentence. See 

generally Commonwealth v. Kerstetter, 580 A.2d 1134 (Pa.Super. 1990) 

(explaining claim that court relied on inaccurate information at sentencing 

implicates discretionary aspects of sentencing). 

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8

 Appellant mentions that the court’s imposition of the statutory maximum 

sentence for his theft conviction (five years’ imprisonment) was manifestly 

excessive, but he fails to develop this claim. Consequently, it is waived. 

See Commonwealth v. McDermitt, 66 A.3d 810 (Pa.Super. 2013) 

(explaining undeveloped claims are waived and unreviewable on appeal). 
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Objections to the discretionary aspects of a sentence are waived if 

they are not raised at the sentencing hearing or in a timely filed postsentence motion. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). See also

Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after 

revocation shall be filed within 10 days of date of imposition); 

Commonwealth v. Burks, 102 A.3d 497 (Pa.Super. 2014) (explaining Rule 

708 continues to govern appellant’s post-sentence rights following 

reinstatement of post-sentence rights nunc pro tunc). 

 Instantly, the court reinstated Appellant’s post-sentence and direct 

appeal rights nunc pro tunc on October 2, 2014. Appellant timely filed a 

post-sentence motion the following day. Nevertheless, Appellant raised a 

different challenge in his post-sentence motion nunc pro tunc than he 

presents on appeal. Specifically, Appellant phrased his sentencing challenge 

in his post-sentence motion nunc pro tunc, as follows: 

The...revocation sentences are both the maximum 

sentences allowed by statute and, it is herein alleged that, 

they are both manifestly excessive when considering the 

mitigating factors, to wit: [Appellant] was seeking

counseling through violence prevention and drug and

alcohol, he had paid all of his fines and restitution owed 

[to] Jefferson [C]ounty in connection with his prior Theft 

and Simple Assault convictions, he was serving a nine 

month to five year sentence at SCI Pine Grove, he will 

receive from the State Parole Board an additional nine to 

eighteen months for parole violations, and [Appellant’s] 

acknowledgement to the court that he has made mistakes 

in his life; 
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Wherefore, [Appellant] requests the court grant the within 

motion to modify sentence and in so doing re-sentence 

[Appellant] to a more lenient sentence. 

(Appellant’s Post-Sentence Motion Nunc Pro Tunc, filed October 3, 2014, at 

1). Significantly, Appellant’s motion makes no mention of his argument on 

appeal that the court’s statements at sentencing were inconsistent with the 

record. (See id.) Thus, Appellant’s sentencing challenge is waived. See 

Griffin, supra. 

 Moreover, the court addressed Appellant’s appellate issue as follows:9

[Appellant] claims that the [c]ourt’s reasons for the overall 

sentence were not supported by the record because “on 

the record and in its Rule 1925(a) opinion [preceding 

Appellant’s initial direct appeal], the trial court indicates 

that it fashioned a sentence that only extended 

[Appellant’s] minimum sentence by six (6) months when in 

effect the trial court extended [Appellant’s] minimum 

aggregate sentence by twenty-seven (27) months.” This 

claim, though, appears to stem from [Appellant’s] 

misapprehension of the [c]ourt’s express objective.

On April 3, 2013, [Appellant] pled guilty to two counts of 

[PWID], one at [docket] 618-2012 and the other at 

[docket] 621-2012, and pursuant to his plea agreement, 

the [c]ourt sentenced him to concurrent terms of 9 months 

[to] 5 years’ incarceration. Those sentences would not 

commence, however, until [Appellant] had fulfilled the 

sentences he was then serving on account of his parole 

violations. 

Approximately 7 weeks later, [Appellant] was again before 

the [c]ourt to be sentenced for violating his probation. At 

that time the [c]ourt revoked his probation and, noting 

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9

 Appellant raised his claim on appeal for the first time in his Rule 1925(b) 

statement. 
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that its aggregate sentence would increase his minimum 

by only 6 months, resentenced him to 21⁄2 [to] 5 years [for 

theft] at [docket] 500-2008, concurrent with [dockets] 618 

and 621-2012, and a consecutive 6 months [to 2] year[s 

for simple assault at docket 500-2008]. 

Now, more than 17 months later, [Appellant] seems to 

believe that the [c]ourt intended to add 6 months to his 9-

month minimum—an interpretation that, if correct, would 

[validate] his claim. As the sentencing transcript reflects, 

however, it was his overall minimum to which the [c]ourt 

deliberately added 6 months. 

After discussing the result of his 2011 Clearfield County 

sentence and his liability for the parole violations he was 

facing, [Appellant] confirmed that the earliest he could 

begin serving his April 3, 2013 sentence was 21 months 

later. It would thus be at least 30 months before he was 

eligible to be released from prison [based on the ninemonth minimum sentences for PWID]. When the [c]ourt 

imposed a 21⁄2 year minimum at [docket] 500-2008, 

therefore, it did not alter his overall minimum sentence. 

The only increase was the additional 6 months he would 

have to serve [for simple assault at 500-2008], which is 

precisely what the [c]ourt stated on the record. 

Because the [c]ourt did not abuse its discretion or impose 

a sentence other than that which it expressly intended and 

for which it gave its reasons, therefore, it respectfully 

suggests that the judgment of sentence imposed against 

[Appellant] on May [31], 2013 should be affirmed. 

(Trial Court Opinion, filed November 4, 2014, at 1-2) (internal citations 

omitted). Our review of the May 31, 2013 VOP transcript confirms the 

court’s statements. Appellant agreed at the VOP hearing that he could not 

begin serving his concurrent PWID sentences at dockets 618-2012 and 621-

2012 until twenty-one (21) months later. The court’s imposition of a 

minimum two and one-half (21⁄2) year (or thirty (30) month) revocation 
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sentence for Appellant’s theft conviction, concurrent to Appellant’s nine (9) 

month minimum PWID sentences, did not alter Appellant’s earliest possible 

release date at dockets 618-2012 and 621-2012. Thus, the court’s 

imposition of a consecutive six (6) month minimum revocation sentence for 

Appellant’s simple assault conviction extended Appellant’s earliest possible 

release date at dockets 500-2008, 618-2012, and 621-2012, by only six (6) 

months. Therefore, even if Appellant had preserved his sentencing 

challenge in his post-sentence motion nunc pro tunc, it would nevertheless 

merit no relief because the record belies his claim.

10 Accordingly, we affirm. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/2/2015 

____________________________________________ 

10 We note the court also had the benefit of a PSI report at the VOP hearing 

on May 31, 2013. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 

12 (1988) (explaining that when sentencing court has benefit of PSI report, 

this Court can assume court was aware of relevant information regarding 

defendant’s character and weighed those considerations along with 

mitigating factors).