J-S68013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK DARRYL MARSHALL,

Appellant No. 200 EDA 2015

Appeal from the Judgment of Sentence Entered December 22, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0007046-2006

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 29, 2015

Appellant, Mark Darryl Marshall, appeals from the judgment of 

sentence of 18 to 48 months’ incarceration, imposed after the court revoked 

his term of probation based on a technical violation. On appeal, Appellant 

claims the evidence was insufficient to support the revocation of his 

probation. He also challenges both the discretionary aspects, and the 

legality, of the new term of incarceration imposed by the court. After careful 

review, we affirm.

The trial court set forth the facts and procedural history of Appellant’s 

case, as follows:

[Appellant] entered a guilty plea to Aggravated Assault on 

June 12, 2008[,] and on the same day this Court sentenced him 

to time served1to 23 months in prison. He also received a fiveyear consecutive probationary period. He violated his probation 

on September 2, 2009, and thereafter on February 23, 2011, 

[he] stipulated to those violations. The Court sentenced him on 
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June 10, 2011 to serve 18 – 48 months[’] incarceration and oneyear [of] consecutive special probation.

1 Commitment to date from August 26, 2005. The charges 

arose from [Appellant’s] assault on a hospital worker on 

August 26, 2005, while he was being institutionalized at 

the Norristown State Hospital under a civil commitment.

On May 23, 2014, following a Gagnon2I Hearing, this 

Court found there was probable cause to believe that [Appellant] 

committed another violation of probation. Thereafter, a 

contested Gagnon II Hearing was held on July 1, 2014, in which 

[Appellant] was indeed found in violation of his probation for not 

taking required medication. After revoking his probation, we 

ordered a Pre-Sentence Investigation Report (PSI) and 

remanded [Appellant] to the Montgomery County Correctional 

Facility (MCCF) pending sentencing. For various reasons, 

sentencing was scheduled and continued on July 31, 2014; 

September 10, 2014; September 18, 2014; and September 20, 

2014. [Appellant] was ultimately sentenced on December 22, 

2014 to serve 18 – 48 months of total confinement at a State 

Correctional Institution. 

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

[Appellant] filed at [sic] timely Post-Sentence Motion on 

December 29, 2014, which was denied on January 5, 2015. A 

counseled Notice of Appeal was filed on January 9, 2015. 

[Appellant] subsequently complied with this Court’s directive 

that he produce and serve a Concise Statement of Matters 

Complained of on Appeal within 21 days ... in accordance with 

Pennsylvania Rule of Appellant Procedure 1925(b).

Trial Court Opinion (TCO), 3/3/15, at 1-2.

Appellant presents three issues for this Court’s review:

1. The evidence was insufficient as a matter of law to find 

[A]ppellant in violation of his probation.

2. Whether the trial court erred in failing to sentence [A]ppellant 

within 90 days of his conviction pursuant to Rule 704 of the 

Rules of Criminal Procedure.

3. Whether the trial court erred in sentencing [A]ppellant to an 

illegal sentence.
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4. Whether the trial court abused its discretion when it found 

Appellant in violation of his probation and further abused its 

discretion when it sentenced Appellant following the revocation 

of his special probation, to a term of one and one half (11⁄2) to 

four (4) years of total confinement in a state correctional 

institution.

Appellant’s Brief at 8. 

Appellant first challenges the sufficiency of the evidence supporting the 

court’s decision to revoke his term of probation. Our review of the record 

reveals that Appellant did not present this claim in his Pa.R.A.P. 1925(b) 

statement, despite the trial court’s explicitly informing him “that any issue 

not properly included in the [s]tatement of [e]rrors timely filed and served 

shall be deemed waived.” Trial Court Order, 1/16/15.1 Consequently, we 

deem Appellant’s first issue waived for our review. See Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.”); 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“From this date 

forward, in order to preserve their claims for appellate review, Appellants 

must comply whenever the trial court orders them to file a Statement of 

Matters Complained of on Appeal pursuant to Rule 1925. Any issues not 

raised in a 1925(b) statement will be deemed waived.”).

____________________________________________

1 Because Appellant did not set forth this issue in his concise statement, the 

trial court did not address it in its opinion. Thus, we have no analysis from 

the trial court regarding the evidentiary support for its finding that Appellant 

violated a condition of his probation.
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Likewise, we deem Appellant’s second issue waived for this same 

reason. Appellant did not assert in his Rule 1925(b) statement that the 

court erred by not conducting his sentencing proceeding within 90 days of 

the revocation of his probation, as required by Pa.R.Crim.P. 704(A)(1) 

(“Except as provided by Rule 702(B), sentence in a court case shall 

ordinarily be imposed within 90 days of conviction or the entry of a plea of 

guilty or nolo conendere.”). While Appellant maintains that this claim 

constitutes a non-waivable challenge to the legality of his sentence, he cites 

no authority to support this claim. As this Court has stated, “[a] general 

definition of an illegal sentence is one that exceeds the jurisdiction or power 

of the sentencing court to impose.” Commonwealth v. Tobin, 89 A.3d 

663, 668 (Pa. Super. 2014). “The two most basic and classic examples of 

an illegal sentence are sentences that exceed the statutory maximum and a 

sentence imposed by a court without jurisdiction.” Id. We have found no 

case law indicating that a violation of Rule 704(A)(1) implicates the trial 

court’s jurisdiction to proceed with sentencing, and Appellant’s claim does 

not involve an argument that his sentence exceeded the statutory 

maximum. Moreover, our Supreme Court has indicated that a challenge to 

an untimely sentencing hearing constitutes a due process issue that must be 

preserved. See Commonwealth v. Anders, 725 A.2d 170, 173 (Pa. 

1999). Accordingly, Appellant has not convinced us that his assertion 

implicates the legality of his sentence and, thus, his failure to raise this claim 
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in his Rule 1925(b) statement waives it for our review. See Lord, 719 A.2d 

at 309.2

In Appellant’s third issue, he maintains that the sentence imposed 

upon revocation of his probation is illegal because it results in him serving a 

total term of incarceration that exceeds the statutory maximum of 10 years 

for the offense of aggravated assault. Clearly, this claim implicates the 

legality of his sentence; thus, while Appellant did not raise this assertion in 

his Rule 1925(b) statement, it is not waived for our review. See 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“[A] 

sentence that exceeds the statutory maximum is illegal.”) (citation omitted); 

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) 

(“[C]laims pertaining to the legality of sentence are non-waivable, may be 

leveled for the first time on appeal, and our jurisdiction need not be invoked 

in a Pa.R.A.P. 2119(f) statement.”) (citation omitted).

Before addressing the merits of Appellant’s claim, we note that,

as a general rule, upon revocation, the sentencing alternatives 

available to the court shall be the same as the alternatives 

available at the time of initial sentencing.... Normally, the trial 

____________________________________________

2

In any event, we note that our Supreme Court has held that a defendant is 

only entitled to discharge of the charges against him based on a violation of 

Rule 704(A)(1) where he “can demonstrate that the delay in sentencing 

prejudiced him.” See Anders, 725 A.2d at 173. Appellant offers no 

discussion of how he was prejudiced by the delay in this case. Accordingly, 

even had Appellant not waived this claim, we would conclude it is meritless. 
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court is limited only by the maximum sentence that it could have 

imposed originally at the time of the probationary sentence.

***

Additionally, credit for time served is governed by statute as 

follows:

§ 9760. Credit for time served

After reviewing the information submitted under section 

9737 (relating to report of outstanding charges and 

sentences) the court shall give credit as follows:

(1) Credit against the maximum term and any minimum 

term shall be given to the defendant for all time spent in 

custody as a result of the criminal charge for which a 

prison sentence is imposed or as a result of the conduct on 

which such a charge is based. Credit shall include credit for 

time spent in custody prior to trial, during trial, pending 

sentence, and pending the resolution of an appeal.

(2) Credit against the maximum term and any minimum 

term shall be given to the defendant for all time spent in 

custody under a prior sentence if he is later reprosecuted 

and resentenced for the same offense or for another 

offense based on the same act or acts. This shall include 

credit in accordance with paragraph (1) of this section for 

all time spent in custody as a result of both the original 

charge and any subsequent charge for the same offense or 

for another offense based on the same act or acts.

(3) If the defendant is serving multiple sentences, and if 

one of the sentences is set aside as the result of direct or 

collateral attack, credit against the maximum and any 

minimum term of the remaining sentences shall be given 

for all time served in relation to the sentence set aside 

since the commission of the offenses on which the 

sentences were based.

(4) If the defendant is arrested on one charge and later 

prosecuted on another charge growing out of an act or 

acts that occurred prior to his arrest, credit against the 

maximum term and any minimum term of any sentence 

resulting from such prosecution shall be given for all time 
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spent in custody under the former charge that has not 

been credited against another sentence.

42 Pa.C.S.A. § 9760. [A] defendant shall be given credit for any 

days spent in custody prior to the imposition of sentence, but 

only if such commitment is on the offense for which sentence is 

imposed. In the context of sentencing after probation 

revocation, the court must give due consideration to the time the 

defendant has spent serving probation, but the court is not 

required to credit the defendant with any time spent on 

probation. Likewise, the defendant is not automatically granted 

credit for time served while incarcerated on the original sentence 

unless the court imposes a new sentence that would result in the 

defendant serving time in excess of the statutory maximum.

Id. at 365, 366-67 (internal citations and quotation marks omitted).

Here, by Appellant’s calculations, he “served at least six years and ten 

months[’ incarceration] on this file prior to the current sentencing....” 

Appellant’s Brief at 43. Thus, according to Appellant, the court’s present, 

maximum sentence of 48 months’ brings his total term of incarceration for 

the offense of aggravated assault to approximately 10 years and 10 months, 

thereby exceeding the 10-year statutory maximum for that crime. See id.

at 43-44. 

However, the Commonwealth points out that Appellant’s calculations 

improperly include “322 days that he spent in pre-sentencing[,] inpatient 

psychiatric treatment pursuant to his civil commitment.” Commonwealth’s 

Brief at 19. Our review of the record confirms the Commonwealth’s 

assertion. Specifically, Appellant initially pled guilty to aggravated assault 

on June 12, 2008, and was given a sentence of time served to 23 months’ 

incarceration, with a five year consecutive term of probation. The court 

gave Appellant credit for time served beginning on August 26, 2005, the 
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date on which he was institutionalized under a civil commitment. See TCO 

at 1 n.1; N.T. Plea and Sentencing, 6/12/08, at 9. Consequently, Appellant 

received credit for 23 months spent ‘in custody’ at Norristown State Hospital 

from August 26, 2005 until July 26, 2007. For the 322 days between July 

26, 2007 (when Appellant ‘maxed out’ his 23 month sentence of 

incarceration) and the entry of his guilty plea on June 12, 2008, Appellant 

was not serving a sentence of incarceration; instead, he was serving his 

term of probation and was concurrently institutionalized on a civil 

commitment. 

Appellant presents no argument as to why he should receive credit for 

those 322 days when he was not “in custody as a result of the criminal 

charge for which a prison sentence is imposed or as a result of the conduct 

on which such a charge is based.” 42 Pa.C.S. § 9760(1). Because Appellant 

was institutionalized as a result of a civil commitment, and there is no 

indication in the record that his commitment, or any extension thereof, was 

the result of the criminal conduct at issue in this case, Appellant was not 

entitled to credit for the 322 days between July 26, 2007 and June 12, 2008. 

Additionally, while “the sentencing court at the time of re-sentencing must 

give ‘due consideration’ to the time the defendant spent serving probation,” 

the court “need not credit the defendant with any time spent on probation.” 

Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010). 

Therefore, Appellant’s current, maximum sentence does not make his 
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aggregate term of incarceration exceed the statutory maximum for the 

offense of aggravated assault. 

In Appellant’s fourth and final issue, he challenges the discretionary 

aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth v. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court's jurisdiction by satisfying a four-part test:

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

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (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. Evans, 901 A.2d 528, 533 (Pa. 

Super.2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. Commonwealth v. 

Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial 

question exists “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.” Sierra, supra at 912–13.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
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Here, Appellant has included a Rule 2119(f) statement where he raises 

the following two challenges to his sentence. First, he contends that “the 

length of the sentence he received was excessive and did not fit the severity 

of sentence that should have been imposed for the probation violations he 

was accused of having engaged in.” Appellant’s Brief at 48. He then asserts 

“that the trial court did not give due deference to the probation sentencing 

factors enumerated under § 9771(c).” Id. Appellant does not explain what 

factors the sentencing court failed to properly consider, or why the court’s 

sentence was excessive for the probation violation he committed. 

The Commonwealth characterizes Appellant’s claims as essentially 

amounting to an assertion “that the trial court did not weigh the mitigating 

factors to craft a more lenient sentence.” Commonwealth’s Brief at 24. The 

Commonwealth further asserts “that a claim that a court did not weigh the 

factors as an appellant wishes does not raise a substantial question.” Id. 

(citing Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014)); 

see also Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa. Super. 

2000) (providing that “an allegation that a sentencing court failed to 

consider or did not adequately consider certain factors does not raise a 

substantial question that the sentence was inappropriate”). Given 

Appellant’s bald assertions and lack of explanation, the Commonwealth’s 

interpretation of his claims is fair, and we agree that he has not raised a 

substantial question for our review.
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Nevertheless, we note that we would ascertain no error or abuse of 

discretion in the court’s sentence. Initially, a large majority of Appellant’s 

argument is simply a summary of the procedural history of his case, followed 

by a word-for-word reiteration of his argument that there was insufficient 

evidence that he violated a condition of his probation so as to warrant the 

revocation of his probation. See Appellant’s Brief at 50-65. Again, 

Appellant failed to raise in his Rule 1925(b) statement a challenge to the 

sufficiency of the evidence to prove that he violated a condition of his 

probation. Therefore, we will not address this waived argument. See 

Pa.R.A.P. 1925(b)(4)(vii). 

Appellant does also briefly contend, however, that the court erred by 

imposing a sentence of incarceration where no subpart of 42 Pa.C.S. § 

9771(c) was satisfied. See Appellant’s Brief at 65, 67-68. That statute 

states, in pertinent part:

(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).
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In explaining how the record supports the sentence it imposed, the 

trial court stated:

In fashioning our sentence, we considered the PSI, 

[Appellant’s] testimony, and the arguments of both counsel. 

(N.T. 12/22/14, p. 16). We found [Appellant] to be a lowfunctioning and high-risk inmate due to our history with him. He 

first came into contact with this Court in 2006 when he was 

charged with Aggravated Assault on a hospital worker at the 

Norristown State Hospital. Id. At that time, he possessed a 

lengthy record in terms of incarceration, and failed to cooperate 

in any significant degree with mental health treatment. Id. By 

the time he was sentenced in 2008 to time served to 23 months, 

he had already been [‘in custody’ at Norristown State Hospital] 

for almost two years. Id. at p. 17. He then began to serve his 

five-year probation period, however, he had a difficult time 

complying with mental health treatment and ultimately violated 

his probation. Id. As a result, his probation was revoked and 

he was re-sentenced to serve time at SCI Coal Township. While 

there, he quickly accumulated numerous violations of prison 

rules and failed to comply with any institutional requirements. 

Id. at pp. 17-18.

Once he maxed out his state sentence at Coal Township, 

he was supervised by the state board of probation and parole. 

Id. Since they felt he was a risk to the community, he was 

directly supervised at the Friends Hospital, an inpatient unit. 

After his arrival there, he immediately refused to cooperate with 

any directives and did not take his required medications. Id. He 

began acting out and engaging in behavioral issues that 

presented a high risk of danger within the mental health facility. 

Id. at p. 19. The staff reported they did not feel safe with 

[Appellant] on the unit. Id. at p. 20. Thus, although 

[Appellant’s] instant violation of not taking his medication is 

technical in nature, this Court believes it to constitute a major 

violation. Id. Due to these reports, we believe [Appellant] 

cannot simply be released back into the community with mere 

hopes that he will not act out in an aggressive manor and 

assault another individual. Id. at 21.

The fact that [Appellant] cannot control certain behaviors 

in a high-structured, inpatient facility, gives little hope to his 

ability to control such behaviors if he were to be released into 
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our community. Id. His extensive criminal record established 

that he presents a very high-risk both within the institutional 

community and within the community at large to commit 

another crime. Id. at p. 23. Moreover, his inability to cooperate 

and take his medication presents society with a legitimate fear 

that if released into the community, he will engage in the 

aggressive behavior that led to his incarceration in the first 

place. Thus, we found it necessary to commit him to 

confinement within an institutional environment due to his high 

prognostic risks, low-functioning abilities, and his history of 

incarceration and institutionalization on this case, which began 

because he assaulted a state mental health hospital worker. Id. 

at p. 29. 

TCO at 4-6 (footnote omitted).

Our review of the record supports the court’s determination “that total 

confinement is necessary under the circumstances because the conduct of 

[Appellant] indicates that it is likely that he will commit another crime if he 

is not totally confined.” Id. at 6 (citing 42 Pa.C.S. § 9771(c)(2)). We also 

note our disagreement with Appellant’s cursory assertion that his sentence is 

excessive, where the record demonstrates that the court considered all 

required factors in fashioning his term of incarceration. Thus, even had 

Appellant presented a substantial question warranting our review, we would 

conclude that the court did not abuse its discretion in imposing his sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2015