J-S41020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIFFANY DIANE WEAVER

Appellant No. 1629 MDA 2016

Appeal from the Judgment of Sentence March 22, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003423-2014

CP-22-CR-0004046-2011

CP-22-CR-0004417-2012

CP-22-CR-0004419-2012

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JUNE 16, 2017

Tiffany Diane Weaver appeals from the judgment of sentence, entered 

in the Court of Common Pleas of Dauphin County, after revocation of her 

intermediate punishment (“IP”), probation and parole. Upon careful review, 

we affirm.

Weaver’s relevant criminal history includes guilty pleas entered at four 

separate dockets. First, On August 28, 2012, Weaver pled guilty to five 

counts of forgery and four counts of theft by unlawful taking at docket 

number 4046-CR-2011. She was sentenced to a term of IP. On September 

5, 2013, after a revocation hearing, Weaver was resentenced to serve 24 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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months’ probation. On August 8, 2014, Weaver’s IP was again revoked and 

she was sentenced to 6 to 23 months in county prison, with immediate 

eligibility for work release. 

At docket number 4417-CR-2012, Weaver pled guilty to felony drug 

charges and criminal use of a communication facility on July 29, 2013. She 

was sentenced to probation, which was revoked after a hearing on August 8, 

2014, at which time she was resentenced to probation. 

Also on July 29, 2013, Weaver entered a guilty plea to criminal 

trespass and theft by unlawful taking at docket number 4419-CR-2012 and 

was sentenced to probation. That probation was also revoked at the August 

8, 2014 hearing and she was sentenced to 6 to 23 months in county prison, 

with immediate eligibility for work release.

Finally, on June 6, 2014, Weaver pled guilty to charges of theft by 

unlawful taking and receiving stolen property at docket number 3423-CR2014 and was sentenced to 12 months’ probation.

On March 22, 2016, Weaver was again brought before the court for a 

revocation hearing, at which time the Commonwealth alleged technical 

violations of her IP, probation and parole at the above four docket numbers. 

After finding her to be in violation, the court resentenced Weaver to an 

aggregate of 18 to 36 months’ incarceration and, at docket number 4046-

CR-2011, directed Weaver to serve the unexpired balance of her term, or 13 

months and 14 days.
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On April 13, 2016, Weaver filed a post-sentence motion nunc pro tunc, 

in which she attempted to preserve a challenge to the discretionary aspects 

of her sentence. However, before the court could act on that motion, 

Weaver filed a notice of appeal to this Court on April 19, 2016. On 

September 2, 2016, Weaver filed a praecipe to discontinue that appeal. 

Thereafter, Weaver filed with the trial court a petition under the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, seeking 

reinstatement of her direct appellate rights to enable her to preserve her 

challenge to the discretionary aspects of her sentence. The PCRA court 

granted relief, reinstating her right to file both a post-sentence motion and a 

direct appeal. On September 15, 2016, Weaver filed a motion to modify 

sentence nunc pro tunc, which the court denied on September 19, 2016. 

This timely appeal follows, in which Weaver raises the following issue for our 

review:

Was not the imposition of a probation violation sentence of 1 1⁄2 

to 3 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 [Weaver’s] rehabilitative needs where the 

revocation conduct involved technical violations of 

parole/probation and a new criminal charge contested by 

[Weaver]?

Brief of Appellant, at 5. 

Our standard of review is well-settled. 

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. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 
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Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision. 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).

Weaver challenges the discretionary aspects of her sentence. Such a 

challenge is not appealable as of right. Rather, Appellant must petition for 

allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. 

Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

Before we reach the merits of this issue, we must engage in a 

four part analysis to determine: (1) whether the appeal is 

timely; (2) whether Appellant preserved [her] issue; (3) whether 

Appellant’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 sentencing code. . . . [I]f the appeal 

satisfies each of these four requirements, we will then proceed to 

decide the substantive merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. 

Super. 2013); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 

(Pa. Super. 2008) (“[W]hen a court revokes probation and imposes a new 

sentence, a criminal defendant needs to preserve challenges to the 

discretionary aspects of that new sentence either by objecting during the 

revocation sentencing or by filing a post-sentence motion.”).

Here, Weaver preserved her claim in a motion to modify sentence 

nunc pro tunc and filed a timely notice of appeal. Additionally, her brief 

contains a statement of reasons relied upon for allowance of appeal pursuant 
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to Pa.R.A.P. 2119(f). Accordingly, we must determine whether Weaver 

raises a substantial question for our review. 

In her Rule 2119(f) statement, Weaver asserts that her sentence was 

manifestly excessive and inconsistent with the protection of the public, the 

gravity of the offenses, and her rehabilitative needs. This claim raises a 

substantial question. See Commonwealth v. Derry, 150 A.3d 987, 995 

(Pa. Super. 2016) (in challenging revocation sentence, “[a]ppellant presents 

a substantial question for our review, to the extent that he challenges the 

sentencing court’s failure to consider [s]ection 9721(b) factors”). 

Weaver also asserts that the imposition of a sentence of total 

confinement for mere technical violations of her supervision violates the 

fundamental norms underlying the sentencing process. The imposition of a 

sentence of total confinement after the revocation of probation for a 

technical violation, and not a new criminal offense, implicates the 

“fundamental norms which underlie the sentencing process” and, thus, 

raises a substantial question. Commonwealth v. Crump, 995 A.2d 1280, 

1282 (Pa. Super. 2010). 

When imposing a sentence of total confinement after a probation 

revocation, the sentencing court is to consider the factors set 

forth in 42 Pa.C.S. § 9771. Under 42 Pa.C.S. § 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
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3. such a sentence is essential to vindicate the authority of 

this court.

Id. at 1282–83. 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, citing Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 

2006). 

Here, Weaver appeared before the court for her third violation hearing 

in less than three years. In addition to her technical violations for failure to 

report a change in address and to pay restitution, Weaver was arrested with 

25 bags of heroin, marijuana, and ecstasy in her possession. Weaver argues 

that her new drug arrest has not yet resulted in a conviction. However, the 

sentencing court noted that Weaver “has been given numerous chances and 

yet fails to abide by the law,” Trial Court Opinion, 8/25/16, at 5, which 

demonstrates her likelihood of committing another crime. Weaver cites to 

her medical condition as a mitigating factor weighing in favor of community 

supervision.1 However, the trial court noted that, while it was sympathetic 

to her medical condition, Weaver’s new arrest occurred subsequent to her 

____________________________________________

1 Weaver informed the court that she had been diagnosed with a brain 

tumor. When asked by the court for documentation of her condition, 

Weaver was unable to present any, informing the court that “[m]y 

grandfather has it all down in West Virginia, in my files.” N.T. Resentencing, 

3/22/16, at 5. 
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diagnosis and her condition had not stopped her from committing another 

crime. See id.; N.T. Resentencing, 3/22/16, at 5. 

In sum, the record as a whole supports the court’s conclusion that 

Weaver was likely to reoffend if not incarcerated, and that her repeated 

failure to respond to previous judicial efforts, such as probation and IP, 

demonstrate a need to vindicate the authority of the court by imposing a 

sentence of total confinement. See 42 Pa.C.S. § 9771(c). Accordingly, we 

can discern no abuse of discretion on the part of the court in fashioning 

Weaver’s sentence. Raven, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2017