J-S88008-16

*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

IMANUEL Y. FORBES,

Appellant No. 3024 EDA 2015

Appeal from the Judgment of Sentence of September 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005264-2011

BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 25, 2017

Appellant appeals from the judgment of sentence entered on 

September 4, 2015 in the Court of Common Pleas of Philadelphia County. 

We affirm.

Briefly stated, the relevant factual and procedural history in this case 

is as follows. On July 25, 2011, Appellant entered a negotiated guilty plea to 

possession with intent to deliver (PWID) and driving under the influence 

(DUI).1 Thereafter, the court sentenced Appellant to 111⁄2 to 23 months’ 

incarceration followed by two years’ probation for PWID. Appellant also 

received a concurrent sentence of 72 hours to six months’ incarceration for 

DUI. On April 30, 2014, while still serving his probationary sentence, 

____________________________________________

1 35 P.S. § 780-113(a)(30) and 75 Pa.C.S.A. § 3802(a)(1), respectively.
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Appellant was found guilty in Delaware County of burglary, robbery, and 

conspiracy.2 He received an aggregate sentence of 13 to 26 years’ 

incarceration for those offenses.

In response, the trial court in this case convened a violation of 

probation (VOP) hearing on September 4, 2015. At the conclusion of the 

VOP hearing, the court revoked Appellant’s probation and sentenced him to 

four to eight years’ incarceration to run consecutively to the Delaware 

County sentence. Appellant filed a timely motion to reconsider his sentence, 

but the trial court never ruled on the motion. This timely appeal followed.3

Appellant raises a single question for our review:

Was the sentence imposed by the [trial] court after probation 

was revoked manifestly excessive in light of the fact that the 

sentencing court made literally no effort at all to comply with the 

Sentencing Code?

Appellant’s Brief at 4.

In his brief, Appellant contends that the trial court abused its 

discretion in imposing a manifestly excessive sentence without considering 

the factors identified in 42 Pa.C.S.A. § 9721(b). Appellant also argues that 

the court did not impose an individualized sentence, failed to offer adequate 

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2 There is some indication in the record that Appellant committed PWID in 

Delaware County approximately two months before committing the robbery 

and burglary. See N.T. VOP Hearing, 9/4/15, at 5 (stating that Appellant 

received a two- to four-year sentence for a Delaware County PWID offense).

3 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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reasons for its sentence, and abused its discretion in failing to state why it 

did not order a pre-sentence investigation report pursuant to Pa.R.Crim.P. 

702. These claims do not challenge the revocation of Appellant’s probation 

or the imposition of a sentence of total confinement. Rather, Appellant’s 

claims challenge the discretionary aspects of his sentence. Commonwealth 

v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 25 A.3d 

328 (Pa. 2011).

“Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal absent a 

manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281, 

1287 (Pa. Super. 2013) (citation omitted). Appellant does not have an 

automatic right to appeal the discretionary aspects of his sentence. See 42 

Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for 

permission to appeal the discretionary aspects of his sentence. Id.

As this Court has explained:

To reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; 

(2) whether the issue was properly preserved at sentencing or in 

a motion to reconsider and modify sentence, Pa.R.Crim.P. [708]; 

(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also 

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when
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a court revokes probation and imposes a new sentence, a criminal defendant 

needs to preserve challenges to the discretionary aspects of that sentence 

either by objecting during the revocation sentencing or by filing a 

post-sentence motion”). In this case, Appellant filed a timely notice of 

appeal and properly preserved his claims in a post-sentence motion. 

Appellant’s brief also contains a statement pursuant to Pa.R.A.P. 2119(f). 

Thus, we turn to whether the appeal presents a substantial question.4

As we have explained: 

The determination of whether a particular case raises a 

substantial question is to be evaluated on a case-by-case basis. 

Generally, however, in order to establish that there is a 

substantial question, the appellant must show actions by the 

sentencing court inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing 

process.

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal 

citations omitted).

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4 The Commonwealth argues that Appellant waived his claim that the trial 

court violated 42 Pa.C.S.A. § 9721(b) by not giving adequate consideration 

to whether confinement was “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.” See

Commonwealth Brief at 7, n.3. The Commonwealth maintains that Appellant 

failed to include this claim in a post-sentence motion and in his concise 

statement pursuant to Pa.R.A.P. 1925(b). Technically, the Commonwealth is 

correct in that Appellant’s submissions alleged only a violation of 42 

Pa.C.S.A. § 9771(c). Upon review, we shall treat Appellant’s references to 

42 Pa.C.S.A. § 9771(c), rather than 42 Pa.C.S.A. § 9721(b), as an oversight 

and caution defense counsel to use greater care in future filings. In any 

event, as we shall discuss, the claim is meritless.
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In his Rule 2119(f) statement, Appellant contends that: 1) the trial 

court “failed to consider and weigh all of the relevant factors set forth in 42 

Pa.C.S.A. § 9721(b);” 2) the trial court failed to impose an individualized 

sentence; 3) the trial court failed to place sufficient reasons for its sentence 

on the record; and, 4) the trial court violated Pa.R.Crim.P. 702 by refusing 

to obtain a pre-sentence investigation report without explaining the reasons 

for its refusal on the record. Appellant’s Brief at 7-8. This Court recently 

reaffirmed that a defendant presents a substantial question for review where 

he challenges the revocation court’s failure to consider the factors found in 

§ 9721(b). See Commonwealth v. Derry, 2016 WL 6776292, *6 (Pa. 

Super. Nov. 15, 2016); see also Commonwealth v. Cartrette, 83 A.3d 

1030, 1042-1043 (Pa. Super. 2013) (en banc) (in appeal from VOP 

sentence, substantial question presented by claim that sentencing court did 

not consider appropriate sentencing factors found in § 9721(b)). Moreover, 

this Court has held that a substantial question is raised where the trial court 

fails to consider a defendant’s individualized needs. Commonwealth v. 

Serrano, 2015 WL 6776287, *2 (Pa. Super. Nov. 15, 2016). Lastly, we 

have said that a sentencing court’s failure to state adequate reasons for 

dispensing with a pre-sentence report raises a substantial question. See 

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011). 

Accordingly, we now turn to the merits of Appellant's sentencing claims.

In sentencing Appellant, the trial court was required to “consider the 

general principles and standards of the Sentencing Code.” Commonwealth 
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v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983). Section 9721 expresses 

these general principles in the following manner:

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.A. § 9721(b). In addition, 42 Pa.C.S.A. § 9771(c) permits the 

trial court to impose a sentence of total confinement in order to vindicate its 

authority. 42 Pa.C.S.A. § 9771(c).

Here, the trial court offered the following explanation for the sentence 

imposed in this case:

The facts are clear that since his original conviction, [Appellant] 

engaged in further unlawful behavior. In addition to his burglary 

case, Appellant was convicted of PWID in Delaware County. The 

fact that [Appellant] has been wholly unable to behave within 

the confines of the law, and that he committed new, increasingly 

violent offense[s] while on [probation], evidences that he is a 

danger to the community and that a period of confinement is 

necessary both to vindicate the authority of the [trial court] and 

to protect the public.

Trial Court Opinion, 91/26/16, at 3.

Based upon the transcript of the VOP hearing and the foregoing 

reasons for Appellant’s sentence, we discern no abuse of the trial court’s 

discretion. Before imposing a sentence of total confinement, it is evident 

that the trial court carefully considered the need to protect the public, the 

gravity of Appellant’s conduct and its potential impact on the community, 

and Appellant’s rehabilitative needs. Ultimately, the trial court concluded 
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that Appellant’s continued involvement with criminal activity and his 

progression toward more violent offenses showed that a more lenient 

sentence would fail to ensure that Appellant received the rehabilitative 

programming that he needs. The record firmly supports these assessments. 

Accordingly, we see no reason to disturb the sentence imposed in this case.

We are not persuaded by the arguments Appellant offers in support of 

relief. Initially, Appellant contends that the trial court offered no explanation 

for its sentence and ignored the relevant sentencing factors set forth in 42 

Pa.C.S.A. § 9721(b). Citing Commonwealth v. Parlante, 823 A.2d 927 

(Pa. Super. 2003) (four to eight year confinement term manifestly excessive 

where VOP court failed to consider defendant’s age, family history, 

rehabilitative needs, and pre-sentence report), Appellant argues that the 

court’s failure to consider Appellant’s background, mental health status, and 

rehabilitative needs supports reversal of the revocation sentence.

Although Appellant is correct that § 9721(b) directs the trial court to 

consider certain factors and place the reasons for its sentence on the record, 

our Supreme Court recently held that, following revocation, a sentencing 

court need not undertake lengthy discourse regarding its punishment or 

specifically mention the statutes in question. Commonwealth v. Pasture, 

107 A.3d 21, 28 (Pa. 2014). Here, Appellant’s direct violations, as 

established by his new (and increasingly violent) offenses, were clearly the 

basis for the sentence imposed by the trial court. Under these 
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circumstances, we see no reason to withdraw the deference traditionally 

owed to the sentencing court or to vacate Appellant’s revocation sentence.

Parlante does not compel a different result. In that case, we held 

that the trial court abused its discretion in sentencing the defendant to four 

to eight years’ incarceration without considering that her violations were 

mostly technical and that any new crimes were non-violent. Parlante, 823 

A.2d at 931. Here, by contrast, Appellant’s violations included multiple 

convictions involving violent conduct, which the trial court considered in 

fixing its sentence.

Appellant next argues that the trial court failed to impose an 

individualized sentence and violated Pa.R.Crim.P. 702(A)(2)(a) in refusing, 

without explanation, to order a pre-sentence report prior to Appellant’s 

revocation sentencing. See Pa.R.Crim.P. 701 (“The sentencing judge shall 

place on the record the reasons for dispensing with the pre-sentence 

investigation report if the judge fails to order a pre-sentence report” where 

“incarceration for one year or more is a possible disposition under the 

applicable sentencing statutes[.]”). Appellant argues that he is entitled to 

resentencing because of this omission by the court.

Contrary to Appellant’s assertions, this Court has provided “some 

latitude in how th[e requirement in Rule 702] is fulfilled.” Commonwealth 

v. Carrillo–Diaz, 64 A.3d 722, 726 (Pa. Super. 2013). Indeed, our case 

law does not require a pre-sentence report in all instances. 
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Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc). 

Instead, the critical inquiry is whether the sentencing court was “[informed] 

of comprehensive information to make the punishment fit not only the crime 

but also the person who committed it.” Carrillo–Diaz, 64 A.3d at 725 

(quotation omitted). 

We are satisfied that the sentencing court was sufficiently aware of the 

unique facts of the case to render an individually tailored punishment. The 

sentencing court here demonstrated a working knowledge of Appellant's 

character, background, and his response to supervisory programs. In 

addition, the trial court’s familiarity with Appellant's past criminal conduct 

and the progression of his criminal behavior rendered the court sufficiently 

informed such that its sentence reflected the unique nature of Appellant’s 

character and his direct probation violations. Under these circumstances, 

and since Appellant presents no argument or evidence of changed 

circumstances that warranted an updated report, we affirm the sentence 

imposed by the trial court.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2017