J-A24010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHELBY DARLIN CASPER

Appellant No. 1096 WDA 2016

Appeal from the Judgment of Sentence June 28, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006331-2013

 CP-02-CR-0009079-2012

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 9, 2017

Shelby Darlin Casper appeals from the June 28, 2016 judgment of 

sentence entered in the Allegheny County Court of Common Pleas following 

her revocation of probation. We affirm.

The trial court set forth the history of this case as follows:

On December 6, 2012, . . . Casper, pled guilty at CC 

201209079 [(“CC 2012”)] to one count each of Criminal 

Conspiracy (Burglary), Theft by Unlawful Taking and 

Receiving Stolen Property.[1] This Court sentenced her to 

three years probation at the Conspiracy count and no 

further penalty at the remaining counts. On September 

25, 2013, [Casper] pled guilty at CC 201306331 [(“CC 

2013”)] to one count of Possession of Firearm with Altered 

Manufacturer’s Number, one count of Possession of a 

Controlled Substance with Intent to Deliver (PWID), one 

____________________________________________

1 18 Pa.C.S. §§ 903, 3921(a), and 3925(a), respectively.
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count of Possession of a Controlled Substance, two counts 

of Recklessly Endangering Another Person and one count 

of Possession of Drug Paraphernalia.[2] This Court 

sentenced [Casper] on the Possession of Firearm with 

Altered Manufacturer’s Number count to two years of 

Intermediate Punishment with 3 years of concurrent 

probation at the PWID count, and no further penalty at the 

remaining charges.

On February 4, 2014, this Court found [Casper] to have 

violated probation at [CC 2012] by virtue of her new 

conviction at [CC 2013] and resentenced her to a new 

three[-]year term of probation. On June 30, 2015, this 

Court found [Casper] to be a technical violator of her 

probation at both cases. This Court revoked and 

reimposed probation again at [CC 2012], and took no 

action at [CC 2013]. On June 28, 2016, after a third 

violation hearing, this Court found [Casper] to be a 

technical violator of her conditions of probation and 

resentenced her at [CC 2012] to one to two years 

incarceration and [gave her credit for time served]. At [CC

2013], this Court imposed a period of incarceration of 42 

to 100 months with three years consecutive probation. 

Opinion, 3/10/17, at 2 (“1925(a) Op.”).

Casper timely filed her notice of appeal.3 On appeal, she raises the 

following issue: “Did the trial court fail to adequately consider and apply all 

of the relevant sentencing criteria, including the protection of the public, the 

gravity of the offense/violation, and especially Ms. Casper’s character and 

____________________________________________

2 18 Pa.C.S. § 6110.2(a), 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 

18 Pa.C.S. § 2705, and 35 P.S. § 780-113(a)(32), respectively.

3 On July 19, 2016, Casper filed a post-sentence motion nunc pro tunc. 

The trial court granted nunc pro tunc relief but did not rule on the motion. 

Because this is a revocation sentence, the 30-day appeal period is not tolled 

and Casper had to file her notice of appeal within the required 30 days. See

Pa.R.Crim.P. 708(E). Therefore, Casper’s notice of appeal, filed on July 28, 

2016, is timely.
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rehabilitative needs, as required under 42 Pa.C.S.A. § 9721(b) (Sentencing 

generally; general standards)[?]” Casper’s Br. at 6 (full capitalization 

omitted).

Casper is challenging the discretionary aspects of her sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super. 2011). Before we address such a challenge, we first 

determine:

(1) whether the appeal is timely; (2) whether [a]ppellant 

preserved his issue; (3) whether [a]ppellant’s brief 

includes a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary 

aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence 

is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

Casper filed a timely notice of appeal, preserved her claim in a timely 

post-sentence motion, and included in her brief a concise statement of 

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(f). Additionally, Casper’s claim that her sentence 

is excessive in light of the technical violations of her probation raises a 

substantial question. See Malovich, 903 A.2d at 1253 (“[A] claim that a 

particular probation revocation sentence is excessive in light of its underlying 
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technical violations can present a question that we should review.”). 

Accordingly, we will review the merits of her claim.

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “A

sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statute in question, but the 

record as a whole must reflect the sentencing court’s consideration of the 

facts of the crime and character of the offender.” Id. at 1283. 

Upon revocation of probation, a trial court may impose a sentence of 

total confinement if any of the following requirements are met: “(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). “[T]he 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). 

Casper claims that the trial court abused its discretion in imposing an 

aggregate term of 54 to 124 months’ incarceration plus 3 years of probation. 

Casper contends that the sentence was manifestly unreasonable because 

revocation was based solely on technical violations; the trial court failed to 
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consider the protection of the public, the gravity of the offense, and Casper’s 

rehabilitative needs; and the trial court ignored key mitigating evidence. 

Here, the trial court found:

This Court considered numerous factors in sentencing 

[Casper], including two Pre-Sentence reports. The 

Pennsylvania Supreme Court has held:

Where pre-sentence reports exist, we shall 

continue to presume that the sentencing judge 

was aware of relevant information regarding 

the defendant’s character and weighed those 

considerations along with mitigating statutory 

factors . . . [.] Having been informed by the 

pre-sentence report, the sentencing court’s 

discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

The hearing on June 28, 2016 was [Casper]’s third 

violation of probation hearing. She refused to participate 

in a Justice Related Services (“JRS”) program and has 

been unable or unwilling to maintain mental health 

treatment compliance. She twice removed her ankle 

bracelet. She displayed a defiant attitude toward 

probation supervision and this Court. She was placed in 

alternative housing for a therapeutic intervention three 

times and was sent back to jail each time for program 

violations. She used marijuana daily, with her last date of 

usage being the date of her arrest. Yet, she denied having 

drug problems. She has repeatedly demonstrated through 

her words and her conduct that she is either unwilling or 

unable to be supervised in the community or to follow the 

reasonable rules of society.

The sentence imposed was designed to afford [Casper] 

the opportunity to receive necessary and appropriate 

mental health and drug and alcohol treatment which she 

repeatedly failed to avail herself of while under community 

supervision or in alternative housing. Further, the 

sentence affords her the opportunity to either earn parole 

at her minimum or remain detained until she demonstrates 

stability, maturity and the ability to follow rules. Thus, this 
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Court did not err in sentencing her to time served on the 

2012 case and a standard range period of incarceration of 

42 to 100 months with three years consecutive probation 

on the 2013 gun and drug case.

1925(a) Op. at 6-7 (some internal citations omitted). We find no abuse of 

discretion.

Further, the trial court thoroughly stated on the record its reasons for 

imposing its sentence:

THE COURT: . . . This is her third violation of probation 

hearing. She has never had JRS but she doesn’t want it. 

She says she can do this on her own. I can’t order her to 

be medication compliant. Without JRS, I don’t feel that I 

can continue to have probation supervise her in the 

community. I don’t know what else to say but on a third 

violation on a Felony 2 burglary of a gun[ shop], second 

violation on a Felony 2. She twice removed her ankle

bracelet. She has displayed a terrible defiant attitude and 

carries an Axis II diagnosis. If you’re asking me to give her 

another chance at probation, I don’t think I’m going to be 

willing to do that without some support.

. . .

THE COURT: Ms. Casper, don’t waste my time. Do you 

want to cooperate with the JRS plan if they accept the 

referral or not?

THE DEFENDANT: Would that mean I would go to another 

program? 

THE COURT: I don’t know what JRS would recommend 

until they accept you and meet with you and come up with 

a plan.

THE DEFENDANT: I don’t want to go to another program. 

So no.

. . .

THE COURT: All right. I’m not going to refer her to JRS. 

She’s not going to cooperate with it. Her attitude 
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continues to be terrible. She believes she should be able 

to dictate to me what she needs and what she’ll do or not 

do and I won't accept that.

. . .

THE COURT: Please assume that I’ve read both 

presentence reports and the Behavior Clinic evaluation 

because I have. I’m aware that she has mental health 

needs. I cannot force her to receive treatment for them.

. . .

THE COURT: She only wants [treatment] on her terms and 

I can’t promise her that. I won’t waste resources sending 

her to JRS with the anticipation they are going to

recommend a dual diagnosis treatment program which she 

told me she doesn’t think will do any good and hasn’t done

any good in the past and she won’t do. Is that right?

THE DEFENDANT: Yes.

N.T., 6/28/16, at 3-5, 13, 16.

Casper further argues that the trial court failed to consider key 

mitigating evidence, such as her mental health treatment and medication, 

employment history, and family support. The record, however, belies her 

claims. At the revocation hearing, trial court stated, “I'm aware that she has 

mental health needs. I cannot force her to receive treatment for them.” Id.

at 16. The trial court gave Casper every opportunity to accept treatment, 

which she repeatedly declined. Further, the following exchange occurred:

THE COURT: We’re not talking about alternative housing. 

What we’re talking about is a program through JRS. 

THE DEFENDANT: I don’t understand what that means. 

What’s the difference? 
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THE COURT: There are a number of programs such as 

Pyramid, private programs that JRS may recommend for 

you. 

THE DEFENDANT: They are all rehab and I don’t have a 

drug problem.

THE COURT: Let’s just go forward. She doesn’t have a 

drug problem in her estimation. She’s declining services. 

What am I going to do?

. . .

THE COURT: Let me read from the Behavior Clinic 

evaluation which is based on her report. [Casper]

reported that she started using marijuana at age 13, 

alcohol at age 14, opiates at age 15. She used marijuana

daily, and alcohol and opiates occasionally. The last use of 

marijuana and opiates was on the date of the arrest and 

the use of alcohol probably a few days before that. This is 

a person who by all data reported would be considered 

high risk for drug dependence. And the Behavior Clinic, in 

fact, indicates []cannabis use disorder in remission, 

secondary to controlled environment. Opioid use disorder 

in remission, secondary to controlled environment.

. . .

THE COURT: . . . So I’m not going to play any games here, 

Ms. Casper. You seem to want to speak for yourself. Tell 

me what you want me to do.

THE DEFENDANT: I don’t know. 

THE COURT: You’ve heard your options. Consider a JRS 

plan that will likely include an inpatient treatment

somewhere or I have a presentence report and I’m 

prepared to resentence you here on both cases. It’s up to 

you.

THE DEFENDANT: I guess I’ll do the JRS.

THE COURT: What I’m telling you is assume the worst. 

It’s likely to be an inpatient treatment program. A dual

diagnosis inpatient treatment program. If you’re unwilling 

to do that and seriously do that, then tell me that now

because there is no point in wasting our judicial resources. 
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I’m encouraging you to do it. I’ve already done everything

I can do short of that for you.

THE DEFENDANT: I guess I don’t have a choice. 

THE COURT: You have a choice. 

THE DEFENDANT: I mean, I would rather do that than do 

10 years. So I guess I’m going to have to do that even

though it’s obviously not beneficial to me whatsoever.

Id. at 7-9, 12-13. Additionally, the record reflects that the trial court was 

aware of and considered Casper’s family support, see id. at 10-11, and had 

the benefit of two pre-sentence reports, see Devers, 546 A.2d at 18.

Finally, we disagree with Casper’s contention that the trial court did 

not consider the protection of the public, the gravity of the offense, and her 

rehabilitative needs. The trial court stated that Casper continuously violated 

her probation, refused every opportunity given to receive treatment, and 

that “[w]ithout JRS, I don’t feel that I can continue to have probation 

supervise her in the community.” N.T., 6/28/16, at 3. Further, as discussed 

above, the trial court thoroughly considered her rehabilitative needs. 

A trial court is “in the best position to evaluate [an a]ppellant’s

character and . . . defiance or indifference.” Malovich, 903 A.2d at 1254. 

Given the trial court findings regarding Casper’s defiant attitude, her 

repeated violations of probation, and her unwillingness to participate in 

rehabilitation treatment, we cannot conclude that her sentence was 

manifestly unreasonable. See id.
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Because the record shows that the sentence imposed was essential to 

vindicate the authority of the court under 42 Pa.C.S. § 9771(c)(3), and the 

trial court fully stated its reasons on the record, we conclude it did not abuse 

its discretion in imposing its sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2017