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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH ALLEN WANAMAKER JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3602 EDA 2018

Appeal from the Judgment of Sentence Entered November 13, 2018

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0002747-2017

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH ALLEN WANAMAKER JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3603 EDA 2018

Appeal from the Judgment of Sentence Entered November 13, 2018

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0003155-2017

BEFORE: OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 12, 2019

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 Retired Senior Judge assigned to the Superior Court.
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In these related cases,1 Kenneth Allen Wanamaker, Jr. appeals from the 

judgment of sentence imposed on November 13, 2018, in the Lehigh County 

Court of Common Pleas, upon the revocation of his probation, and made final 

by the denial of post-sentence motions on November 26, 2018. For the 

reasons discussed below, we affirm.

The facts of Wanamaker’s underlying conviction are not pertinent to our 

disposition of his appeal. We briefly note that, on August 7, 2017, Wanamaker

entered into a negotiated guilty plea in case CP-39-CR-0002747-2017, to one 

count of simple assault as a misdemeanor of the second degree;2in case CP39-CR-0002746-2017, to one count of defiant trespass as a misdemeanor of 

the third degree,3 and case CP-39-CR-0003155-2017, to intimidation of a 

witness as a misdemeanor of the second degree.

4

 The victim in all three 

cases was Wanamaker’s estranged girlfriend. That same day, in accordance 

with the terms of the plea agreement, the court sentenced Wanamaker to an 

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1 The cases are related because they concern the same facts, the same 

appellant, and raise the same issues. We note that the trial court issued a 

single opinion on both cases and the parties filed identical briefs. Therefore, 

we will dispose of these matters in one decision.

2 18 Pa.C.S.A. § 2701(a)(1).

3 18 Pa.C.S.A. § 3503(b)(1).

4 18 Pa.C.S.A. § 4952(a)(2).
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aggregate term of 6 to 12 months’ imprisonment, followed by 4 years’

probation. 

Wanamaker subsequently violated the terms of his probation5 and, 

following a Gagnon II hearing6 on November 13, 2018, at which he admitted 

to the violations, the trial court sentenced him to an aggregate term of 2 to 4 

years’ imprisonment. On November 21, 2018, Wanamaker filed a motion for 

modification of sentence, which the trial court denied on November 26, 2018. 

This timely appeal followed.7

On appeal, Wanamaker raises a single issue challenging the 

discretionary aspects of his sentence. Wanamaker’s Brief, at 8.

This Court has held that: “this Court’s scope of review in an appeal from 

a revocation sentencing includes discretionary sentencing challenges.” 

Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en 

banc). Furthermore,

[t]here is no absolute right to appeal when challenging the 

discretionary aspect of a sentence. Rather, an [a]ppeal is 

permitted only after this Court determines that there is a 

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5 We note that the probation violation only concerned cases CP-39-CR0002747-2017 and CP-39-CR-0003155-2017, because Wanamaker had fully 

served his sentence in case CP-39-CR-0002746-2017. 

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

7 Wanamaker filed a timely concise statement of errors complained of on 

appeal on January 23, 2019. On January 28, 2019, the trial court issued an 

order adopting its statements at the November 13, 2018 hearing as its Rule 

1925(a) opinion.
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substantial question that the sentence was not appropriate under 

the sentencing code. In determining whether a substantial 

question exists, this Court does not examine the merits of the 

sentencing claim. 

In addition, issues challenging the discretionary aspects of a 

sentence must be raised in a post-sentence motion or by 

presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary 

aspect of a sentence is waived. Furthermore, a defendant is 

required to preserve the issue in a court-ordered Pa.R.A.P. 

1925(b) concise statement and a Pa.R.A.P. 2119(f) statement. 

Cartrette, supra at 1042 (citations and quotation marks omitted).

Here, Wanamaker preserved his claim by filing a motion to modify 

sentence, and by raising it in his Rule 1925(b) statement. Moreover, he has 

included in his brief a Pa.R.A.P. 2119(f) statement in which he claims that the 

sentence was disproportionate to the technical violation of probation and was 

manifestly excessive. Wanamaker’s Brief, at 12. 

The following principles guide a court’s review of a VOP sentence:

[A] trial court has broad discretion in sentencing a defendant, and 

concomitantly, the appellate courts utilize a deferential standard 

of appellate review in determining whether the trial court abused 

its discretion in fashioning an appropriate sentence. The reason 

for this broad discretion and deferential standard of appellate 

review is that the sentencing court is in the best position to 

measure various factors and determine the proper penalty for a 

particular offense based upon an evaluation of the individual 

circumstances before it. Simply stated, the sentencing court 

sentences flesh-and-blood defendants and the nuances of 

sentencing decisions are difficult to gauge from the cold transcript 

used upon appellate review. Moreover, the sentencing court 

enjoys an institutional advantage to appellate review, bringing to 

its decisions an expertise, experience, and judgment that should 

not be lightly disturbed.
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* * * *

Upon revoking probation, “the 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.[A.] § 9771(b). Thus, 

upon revoking probation, the trial court is limited only by the 

maximum sentence that it could have imposed originally at the 

time of the probationary sentence, although once probation has 

been revoked, the court shall not impose a sentence of total 

confinement 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.[A.] § 9771(c).

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[A] trial court does not necessarily abuse its discretion in imposing 

a seemingly harsher post-revocation sentence where the 

defendant received a lenient sentence and then failed to adhere 

to the conditions imposed on him. In point of fact, where the 

revocation sentence was adequately considered and sufficiently 

explained on the record by the revocation judge, in light of the 

judge’s experience with the defendant and awareness of the 

circumstances of the probation violation, under the appropriate 

deferential standard of review, the sentence, if within the 

statutory bounds, is peculiarly within the judge’s discretion.

Commonwealth v. Pasture, 107 A.3d 21, 27–29 (Pa. 2014) (case citations 

omitted). See also Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. 
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Super. 2016) (holding VOP sentencing court must consider 42 Pa.C.S.A. § 

9721(b) factors, and must consider factors set forth in 42 Pa.C.S.A. § 

9771(c)).

Wanamaker’s claim that the sentence of the statutory maximum was 

disproportionate and manifestly excessive raises a substantial question. 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (holding 

that sentence of total confinement and of statutory maximum following 

probation revocation for technical violations raises substantial question). 

Here, Wanamaker acknowledges that he admitted to the technical 

violations of probation at the revocation hearing. Wanamaker’s Brief, at 18. 

His argument on appeal of this issue consists largely of the same 

“explanations” for his conduct that he raised at the revocation hearing.

8

 

Wanamaker’s Brief, at 18-19; N.T. Revocation Hearing, at 4-6; 18-27. 

Specifically, Wanamaker contends that his positive drug test was only a onetime relapse. He claims that his probation officer in Northampton County 

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8 Wanamaker also contends that the trial court’s sentence arose out of judicial 

animosity. Wanamaker’s Brief, at 19. However, Wanamaker waived any such 

contention because he did not raise it in his motion to modify sentence. See 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal 

denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put 

sufficient reasons to justify sentence on record waived where issue was not 

raised in post-sentence motion); see also Pa.R.A.P. 302(a).
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stated that his failure to participate in batterer’s counseling was not a problem 

because he had ample time left on probation to complete the counseling.

9

Moreover, he states that, subsequent to the violations of the no-contact order, 

the victim changed her mind, and now wished to be in a relationship with 

Wanamaker.10 

Here, the trial court’s sentence of total confinement was proper to 

vindicate the authority of the court. Wanamaker does not dispute that the 

trial court warned him at sentencing that if he contacted the victim in violation 

of a protection from abuse order and the conditions of probation, the court 

would revoke his probation and sentence him to a state sentence. Despite 

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9 Although Wanamaker’s sentence arose out of Lehigh County cases, he 

resides in Northampton County and the Northampton County Probation Office 

supervised him. N.T. Revocation Hearing, 11/13/2018, at 4. The record 

reflects that counsel had expected the probation officer from Northampton 

County to appear at the hearing to confirm this statement but she did not. 

Id.

10 In his brief, Wanamaker claims that the victim appeared at the revocation 

hearing and wanted to testify on his behalf but the trial court refused to allow 

her testimony. Wanamaker’s Brief, at 19. The record reflects that defense 

counsel did not seek to call the victim as a witness. See N.T. Revocation 

Hearing, at 3-30. Moreover, the victim did not ask to speak until after the 

court had imposed sentence. See id. at 30. There is no indication in the 

notes of testimony that her statements would have been favorable to 

Wanamaker. Id. Wanamaker did attach to his motion to modify sentence an 

unsigned e-mail purportedly sent by the victim supporting a reduction in his 

sentence. Motion to Modify and Reduce Sentence, 11/21/2018, at Exhibit A. 

It is not apparent from the record how Wanamaker obtained this statement, 

as it appears the victim e-mailed it to herself. We note that, if Wanamaker 

contacted her and requested that she write it, it would constitute an additional 

violation of probation. 
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this, within weeks of his release from incarceration, Wanamaker began 

contacting the victim; whatever the victim’s current feelings may be, she did 

not want the contact at the time and each incident necessitated the 

involvement of the state police. Moreover, each contact was a violation of 

both the protection from abuse order and the conditions of probation. Further, 

a review of the revocation hearing transcript demonstrates that Wanamaker 

was clearly aware that the court had ordered him not to have any contact with 

the victim and chose to do so despite the court’s order. On this record, we 

discern no abuse of discretion. See Pasture, supra at 29.

Accordingly, having concluded Wanamaker’s discretionary aspects of 

sentencing claim is meritless, we affirm.

Judgment of sentence affirmed

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/19