J-S68010-17

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM TIHIEVE RUSSAW 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 256 MDA 2017

Appeal from the Judgment of Sentence January 17, 2017

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0004591-2016, 

CP-22-CR-0004769-2015, CP-22-CR-0005187-2015

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 18, 2017

William Tihieve Russaw appeals from his judgment of sentence of 11⁄2 to 

4 years’ imprisonment, entered in the Court of Common Pleas of Dauphin 

County, imposed after he violated the terms of his probation and the 

conditions of his intermediate punishment (“IP”). After careful review, we 

affirm.

On September 20, 2016, Russaw pled guilty to stalking,1three counts 

of selling a non-controlled substance as a controlled substance,2two counts 

of possession of drug paraphernalia,3 and tampering with evidence.4 The 

____________________________________________

1 18 Pa.C.S.A. § 2709.1. 

2 35 Pa.C.S.A. § 780-113(a)(35)(ii).

3 35 Pa.C.S.A. § 780-113(a)(32).

4 18 Pa.C.S.A. § 4910(a).
J-S68010-17

- 2 -

same day, the trial court sentenced Russaw to an aggregate term of 60 

months of IP, 12 months’ electronic monitoring, and 12 months’ probation. 

The trial court summarized the procedural and factual history following 

Russaw’s sentencing as follows:

[Russaw] was arrested on November 15, 2016, less than two 

months after his sentenc[ing], for multiple violations of probation 

and the conditions of intermediate punishment. [Russaw] violated 

probation by failing to allow the probation officer access to his 

house, lying to the officer, failing to follow the officer’s 

instructions, failing to pay any of his fines or costs, using drugs, 

having access to drug paraphernalia, and possessing more than 

one cell phone. [Russaw] also violated the electronic monitoring 

requirements by having multiple unapproved outs and allowing 

the device to die. There were a total of 246 violations during the 

two[-]month period that appellant was on probation and 

intermediate punishment. 

[Russaw] asserted that he hesitated to open the door for [his]

probation [officer] because a [woman] was not properly clothed[,]

and he did not follow the officer’s direction because he was unsure 

that it was his probation officer. [Russaw] claimed that he was 

unable to make payments on his fines and costs because he had 

only been out of prison for one month. He then explained that he 

possessed three cellphones because of work and failed to charge 

the electronic monitor because he was working three jobs. 

Further, [Russaw] claims that the drug paraphernalia was only a 

girl’s hair beads. 

Trial Court Opinion, 3/6/17, at 1-3. On January 17, 2017, following a 

revocation and sentencing hearing, the trial court resentenced Russaw to 11⁄2 

to 4 years’ imprisonment for violating technical probation rules 246 times. On 

January 26, 2017, Russaw filed a timely post sentence motion for modification 
J-S68010-17

- 3 -

of sentence, and on February 3, 2017, Russaw filed a timely notice of appeal.5 

Both Russaw and the trial court have complied with Pa.R.A.P. 1925. Russaw 

raises the following issue on appeal:

Was not the imposition of a probation violation sentence of 11⁄2 to 

4 years’ incarceration clearly unreasonable, so manifestly 

excessive as to constitute an abuse of discretion, and inconsistent 

with the protection of the public, the gravity of the offenses, and 

defendant’s rehabilitative needs where the revocation conduct 

involved technical violation of parole/probation? 

Brief of Appellant, at 5.

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. 

____________________________________________

5 Pa.R.C.P. 720(B)(3)(d) provides that “[i]f the [trial court] judge denies [a] 

post-sentence motion, the judge promptly shall issue an order and the order 

shall be filed and served as provided in [Pa.R.C.P. 114].” Additionally, “[i]f 

the judge fails to decide [a post-sentence motion] within 120 days . . . the 

motion shall be deemed denied by operation of law.” Pa.R.C.P. 720(B)(3)(a). 

“When a post-sentence motion is denied by operation of law, the clerk of 

courts shall forthwith enter an order on behalf of the court[.]” Pa.R.C.P. 

720(B)(3)(c). A timely written order, by either the trial court or the clerk of 

courts upon denial of a post-sentence motion by operation of law, is intended 

to protect a defendant’s right to appeal. Commonwealth v. Braykovich, 

664 A.2d 133 (Pa. Super. 1995). 

Absent from the certified record and/or docket is an order by Honorable 

Richard A. Lewis denying Russaw’s post-sentence motion or an order entered 

by the clerk of courts denying his motion by operation of law. However, 

Russaw filed his notice of appeal on February 3, 2017, and thus, even if the 

trial court had denied Russaw’s motion the day he filed it, his appeal would 

have been timely, as only eight days had tolled. See Pa.R.A.P. 903. 

Therefore, although we acknowledge the absence of an order denying 

Russaw’s post-sentence motion in the certified docket and record, we do not 

find that Russaw’s appeal right was prejudiced. 
J-S68010-17

- 4 -

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

Here, Russaw claims that the trial court abused its discretion in sentencing 

him to total confinement following the revocation of his probation and 

intermediate punishment. The imposition of a sentence following the 

revocation of probation is “vested within the sound discretion of the trial court, 

which, absent an abuse of discretion, will not be disturbed on appeal.” 

Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996). An 

abuse of discretion is more than an error of judgment, such that a sentencing 

court will not be found to have abused its discretion unless the record discloses 

that it ignored or misapplied the law, or that the judgement exercised was 

manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. 

Commonwealth v. Highland, 875 A.2d 1175, 1184 (Pa. Super. 2005).

However, “[c]hallenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right.” Commonwealth v. Sierra, 752 

A.2d 910, 912 (Pa. Super. 2010). Prior to reaching 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, [s]ee 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, 

[s]ee 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) (internal 

citations omitted).
J-S68010-17

- 5 -

Accordingly, when appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by including in his brief 

a separate concise statement demonstrating that there is a substantial 

question as to the appropriateness of the sentence under the Sentencing 

Code. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002); 

Pa.R.A.P.2119(f). The concise statement must indicate “where the sentence 

falls in relation to the sentencing guidelines and what particular provision of 

the code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. 

Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. 

Super. 2000)). 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, 752 A.2d at 912-13. 

Russaw has complied with the requirements necessary for us to reach 

the merits of his discretionary sentencing issue. Evans, supra. Russaw filed 

a motion for reconsideration of sentence on January 26, 2017, after which he 

filed a timely notice of appeal on February 3, 2017. Russaw has also included 

a Rule 2119(f) statement in his brief. Brief of Appellant, at 10-12. Instantly, 

Russaw argues that his sentence of total confinement following the revocation 

of his probation for a technical violation, rather than a new criminal offense, 

raises a substantial question; we agree. For the purpose of challenging the 

discretionary aspect of a sentence, the imposition of a sentence of total 
J-S68010-17

- 6 -

confinement after the revocation of probation for a technical rule violation, 

and not a new criminal offense, implicates the fundamental norms underlying 

the sentencing process, thus, raising a substantial question. Commonwealth 

v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010); Sierra, supra. 

When imposing a sentence of total confinement after a probation 

revocation, the 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. Crump, 

995 A.2d at 1282-83. Further,

Under [section] 9771(c), a court may sentence a defendant to 

total confinement subsequent to revocation of probation if any of 

the following conditions exist:

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 

this court.

Id.

Russaw concedes that his sentence falls within the sentencing 

guidelines, however, he avers that his “case involves circumstances where the 

application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 

9781(c)(2). His claim is meritless. Here, Russaw violated his probation an 
J-S68010-17

- 7 -

extraordinary 246 times in less than two months.

6

 Russaw’s violations 

included, but were not limited to, the following: (1) not allowing his probation 

officer to access his residence; (2) failing to pay fines and costs; (3) smoking 

marijuana and possessing suspected drug paraphernalia; (4) not reporting his 

new residential address to his probation officer; (5) returning to a prohibited 

residence 16 times; (6) possessing multiple cellphones in violation of signed 

drug rules; (7) numerous unapproved outings while on house arrest; and (8) 

allowing his electronic monitoring device to die 16 times. N.T. Revocation and 

Sentencing, 1/17/17, at 2-4. 

Based on these violations, Russaw’s tendency to abscond from 

supervision, and his continued inability to follow the rules of probation and 

parole, the trial court determined that Russaw was likely to commit another 

crime if he was not imprisoned.7 Crump, supra. After review, we discern no 

____________________________________________

6 Russaw contests several of the violations his probation officer alleged. At 

Russaw’s revocation hearing, Judge Lewis, acting as the factfinder, found 

credible the testimony of Probation Officer Bruce Cutter. See generally N.T. 

Revocation and Sentencing Hearing, 1/17/17; see also Flowers v. 

Pennsylvania Board of Probation and Parole, 987 A.2d 1269, 1271 (Pa. 

Cmwlth. 2010) (Board of Probation and Parole, as ultimate fact-finder in 

parole revocation hearing, evaluates witness credibility, resolves conflicts in 

evidence, and assigns evidentiary weight). 

7 Russaw argues that he poses no threat to the public, as his probation 

violations are not violent in nature, and thus total confinement is unnecessary. 

However, section 9771(c) does not require that a defendant’s conduct indicate 

it is likely he will commit another violent crime. Rather, section 9711(c) 

provides that a court may sentence a defendant to total confinement 

subsequent to revocation of probation where “the conduct of the defendant 

indicates that it is likely that he will commit another crime if he is not 
J-S68010-17

- 8 -

evidence that the trial court was motivated by partiality, prejudice, bias or ill 

will, or that Russaw’s sentence was manifestly unreasonable.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2017

____________________________________________

imprisoned.” 42 Pa.C.S.A. § 9771(c)(2). Therefore, Russaw’s argument is 

unavailing.