J-S10005-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS VIERECK

Appellant No. 656 EDA 2015

Appeal from the Judgment of Sentence February 5, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004891-2012;

CP-51-CR-0014314-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 08, 2016

Appellant, Thomas Viereck, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following 

revocation of his probation. We affirm. 

The trial court set forth the relevant facts and procedural history of 

this case as follows:

On January 3, 2011, Appellant pled guilty to Aggravated 

Assault and Possession of an Instrument of Crime (PIC) 

before the [c]ourt and was sentenced to four to twentythree months[’] confinement followed by three years of 

probation.[1] On February 16, 2011, a motion for parole 

was filed and on March 14, 2011, the motion was granted. 

Subsequently, Appellant left the jurisdiction and a warrant 

for his arrest was issued. At the July 15, 2011 hearing, 

Appellant’s parole was revoked and he was re-sentenced 

to four to twenty-three months[’] confinement followed by 

three years of probation to run concurrently on both 
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convictions and he was ordered to be supervised under the 

Mental Health Unit. On October 11, 2012, Appellant pled 

guilty to Assault by Prisoner[2] before the [c]ourt and was 

sentenced to eleven and one half to twenty-three 

months[’] incarceration followed by two years of probation. 

At the hearing, Appellant was also found in direct violation 

of probation on his original case and was sentenced to 

eleven and one half to twenty-three months[’] confinement 

followed by two years of probation to run concurrently with 

credit for time served on both convictions and was 

immediately paroled to a treatment facility. He was also 

formally entered into Mental Health Court (MHC). As is the 

procedure in MHC, Appellant was scheduled for status of 

mental health and treatment hearings at regular intervals 

to monitor his compliance and progress. 

1 18 Pa.C.S.[A.] § 2702(a), 18 Pa.C.S.[A.] § 907(a); 

the first conviction was graded as [an] F2 and the 

second as [an] M1.

2 18 Pa.C.S.[A.] § 2703(a); the conviction was 

graded as an F2.

At the June 27, 2013 hearing, it was reported that on May 

25, 2013, Appellant absconded from his treatment 

program at Girard Medical Center and was arrested for 

absconding on June 7, 2013. The [c]ourt ordered the 

detainer to remain and the case was continued. At the 

July 18, 2013 hearing, Appellant’s probation was revoked 

on both cases and he was sentenced to eleven and one 

half to twenty-three months[’] confinement to run 

concurrently with credit for time served followed by three 

years of probation on each conviction. On February 19, 

2014, Appellant was transported to yet another treatment 

facility, Gaudenzia New Beginnings. At the June 10, 2014 

hearing, it was reported that Appellant absconded from his 

treatment program on April 12, 2014, a mental health 

evaluation was ordered and the case was continued 

pending the outcome of the evaluation. At the July 10, 

2014 hearing, Appellant was found to be competent per 

the report, but the hearing was continued to allow time to 

determine if additional placements were available. From 

July 31, 2014 to September 25, 2014, three hearings were 

continued pending the results of [an] FIR evaluation. On 
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October 30, 2014, a violation of probation hearing was 

conducted and Appellant was found to be in technical 

violation for absconding from the program. Appellant’s 

probation was revoked on both cases and he was 

sentenced to eleven and one half to twenty-three 

months[’] confinement with credit for time served followed 

by eight years of probation on the Aggravated Assault and 

Assault by Prisoner convictions[,] and was sentenced to 

five years of probation to run concurrently on the PIC 

conviction. He was immediately paroled to yet another 

treatment facility, Gaudenzia Together House. At the 

December 11, 2014 hearing, Appellant failed to appear and 

it was reported that he once again absconded from his 

program on November 27, 2014. At the December 23, 

2014 hearing, the [c]ourt ordered a forthwith mental 

health evaluation for the purposes of determining a 

diagnosis, a treatment plan and whether Appellant was 

competent. At the January 8, 2015 hearing, it was 

reported that...Appellant was competent, but the case was 

continued. On February 5, 2015, after a violation hearing, 

Appellant’s probation was revoked on both cases and he 

was sentenced to [terms of] four [(4)] to ten [(10)] 

year[s’] confinement on the Aggravated Assault and 

Assault by Prisoner convictions to run concurrently with 

credit for time served.[1] On February 17, 2015, Appellant 

filed a motion to reconsider sentence and it was denied on 

February 20, 2015. 

(Trial Court Opinion, filed May 8, 2015, at 1-3). Appellant filed a timely 

notice of appeal on March 6, 2015. On March 26, 2015, the court ordered 

Appellant to file a concise statement of errors complained of on appeal per 

Pa.R.A.P. 1925(b). The court entered a new order on April 20, 2015, 

extending the time for Appellant to file a Rule 1925(b) statement until April 

24, 2015. Appellant timely filed a Rule 1925(b) statement that same day. 

____________________________________________

1 The court imposed no further penalty for Appellant’s PIC conviction. 
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Appellant presents the following issues for our review:

DID THE [TRIAL] COURT VIOLATE THE TENETS OF THE 

SENTENCING CODE, WHICH MANDATE INDIVIDUALIZED 

SENTENCING, AND IMPOSE AN EXCESSIVE SENTENCE OF 

FOUR TO TEN YEARS[’] TOTAL CONFINEMENT FOR A 

TECHNICAL VIOLATION OF PROBATION?

BECAUSE OF PRIOR SENTENCES IMPOSED ON THE SAME 

INFORMATIONS, DID NOT THE [TRIAL] COURT IMPOSE[] A 

MAXIMUM SENTENCE—TEN YEARS—THAT EXCEEDS THE 

STATUTORY MAXIMUM—TEN YEARS?

(Appellant’s Brief at 3). 

In his first issue, Appellant argues the court failed to impose an 

individualized sentence with consideration of all relevant sentencing factors. 

Appellant contends the court failed to order a pre-sentence investigation 

(“PSI”) report and to consider Appellant’s rehabilitative needs in light of his 

history of mental health and substance abuse issues. Appellant asserts the 

court’s sentencing decision was based on nothing more than Appellant’s 

repeated technical violations of parole and probation. Appellant concludes 

his revocation sentence was excessive, and this Court should vacate his 

judgment of sentence and remand for resentencing. Appellant’s challenge is 

to the discretionary aspects of his sentence. See Commonwealth v. 

Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) (stating claim that sentencing 

court erred when it imposed sentence without ordering PSI report challenges 

discretionary aspects of sentence); Commonwealth v. Lutes, 793 A.2d 

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive 

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
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Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 

A.2d 1195 (1996) (stating claim that court did not consider certain 

mitigating factors challenges discretionary aspects of sentencing). 

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. 

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

(en banc) (explaining appellate review of revocation sentence includes 

discretionary sentencing challenges). Challenges to the discretionary 

aspects of sentencing do not entitle an appellant to an appeal as of right. 

Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). 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 a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). 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 913. 

A claim of excessiveness can raise a substantial question as to the 

appropriateness of a sentence under the Sentencing Code, even if the 
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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at 

624. Bald allegations of excessiveness, however, do not raise a substantial 

question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, 

a substantial question exists “only where the appellant’s Rule 2119(f) 

statement sufficiently articulates the manner in which the sentence violates 

either a specific provision of the sentencing scheme set forth in the 

Sentencing Code or a particular fundamental norm underlying the sentencing

process....” Id. See, e.g., Carrillo-Diaz, supra (stating defendant’s 

contention that court failed to order PSI report, or alternatively to give 

reason on record for not ordering report, presented substantial question); 

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

defendant raised substantial question with respect to claim that revocation 

sentence was excessive in light of underlying technical probation violations). 

An allegation that the sentencing court failed to consider a specific mitigating 

factor, however, generally does not raise a substantial question. 

Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding claim 

that sentencing court ignored appellant’s rehabilitative needs failed to raise 

substantial question).

“In general, the imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, which, 

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

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super. 2006). Following the 
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revocation of probation, the court may impose a sentence of total 

confinement if any of the following conditions exist: the defendant has been

convicted of another crime; the conduct of the defendant indicates it is likely 

he will commit another crime if he is not imprisoned; or, such a sentence is 

essential to vindicate the authority of the court. See 42 Pa.C.S.A. § 

9771(c). The Sentencing Guidelines do not apply to sentences imposed 

following a revocation of probation. Commonwealth v. Ferguson, 893 

A.2d 735 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 

(2006). “[U]pon sentencing following a revocation of probation, the trial 

court is limited only by the maximum sentence that it could have imposed 

originally at the time of the probationary sentence.” Commonwealth v. 

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). 

Pursuant to Section 9721(b), “the court shall follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he 

court shall make as part of the record, and disclose in open court at the time 

of sentencing, a statement of the reason or reasons for the sentence 

imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence....” 

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal 
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denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, “the record as a whole 

must reflect the sentencing court’s consideration of the facts of the crime 

and character of the offender.” Id. See also Carrillo-Diaz, supra

(explaining where revocation court presided over defendant’s no-contest 

plea hearing and original sentencing, as well as his probation revocation 

hearing and sentencing, court had sufficient information to evaluate 

circumstances of offense and character of defendant when sentencing 

following revocation). 

Instantly, to the extent Appellant complains the court did not 

adequately consider specific mitigating factors, such as Appellant’s mental 

health issues, substance abuse, and rehabilitative needs, this allegation fails 

to raise a substantial question. See Berry, supra. Nevertheless, 

Appellant’s claim that his sentence was excessive in light of his technical 

violations of probation does present a substantial question warranting 

review. See Malovich, supra. To the extent Appellant argues the court 

failed to order a PSI report without explanation, that claim also raises a 

substantial question. See Carrillo-Diaz, supra. 

At sentencing, the court provided the following rationale for the 

revocation sentence imposed:

[J]ust the need to really emphasize the number of 

opportunities that you’ve been given in this program, 

particularly for an individual. You did wait quite a long 

time for a program. And as that individual who waits for a 

long period, that I truly expect will take full advantage of 

the opportunities of the services of their resources. But 
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what I don’t expect is that you will leave and you did that 

time and time again. 

Yeah, there may have been a couple of times when you 

were on target, but generally speaking, four previous 

violations hearings, this is the fifth. I asked for one case. 

Certainly, there are opportunities where I could have sent 

you to the state sooner, yet I continued to give you 

chances to want to work with you. And, again, by your 

actions, you’ve indicated that you don’t want the services. 

And, consequently, I think services will be better provided 

for you in a state facility. 

So in order to vindicate the authority of this [c]ourt, the 

fact that this is the fifth violation on one case and the third 

violation, I think, on the other matter—you have been 

given other sanctions. I think, previously in this program, 

you failed to appear in this [c]ourt, but I will not do a 

separate contempt hearing for that. I will incorporate all 

that into one sentence—so as to each of these cases 

today, where I found you to be in violation, I will sentence 

you to 4 to 10 years of incarceration.

(N.T. Sentencing, 2/5/15, at 15-16). In its Rule 1925(a) opinion, the court 

further stated:

The [c]ourt sentenced Appellant to four to ten years[’] 

incarceration to run concurrently with credit for time 

served, which was far shorter than the possible 25 years[’] 

incarceration to which...Appellant was exposed. 

Furthermore, the evidence at the revocation hearing 

showed that Appellant absconded from the Gaudenzia 

program on November 27, 2014 and...Appellant failed to 

appear at the December 11, 2014 hearing[,] which 

resulted in a bench warrant. Appellant’s probation [o]fficer 

also reported that Appellant had four prior violations of 

probation on his first case and two prior violations on his 

second case. The [c]ourt noted that Appellant was given 

numerous opportunities to avail himself of the services 

provided while under the supervision of Mental Health 

Court, but chose not to participate. In total, Appellant 

absconded from three different treatment facilities while 

under the [c]ourt’s supervision. Therefore, considering 
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that the sentence was far less than the maximum penalty 

available,... Appellant’s history of non-compliance with 

conditions of his supervision and the [c]ourt’s 

consideration of...Appellant’s lack of interest in the services 

provided for his rehabilitative needs, the sentence was not 

unreasonable. 

* * *

Finally, the [c]ourt complied with Pa.R.Crim.P. 702, which 

requires that a court order a PSI or state on the record its 

reasons for not ordering one. ... 

Here, Appellant had been under the [c]ourt’s supervision 

since January 3, 2011 and has been enrolled in MHC since 

October 11, 2012. As part of MHC, Appellant was subject 

to regular status hearings where reports concerning his 

progress in treatment were provided. Furthermore, the 

[c]ourt was in possession of mental health evaluations 

conducted on June 30, 2014 and December 31, 2014 as 

well as 19 reports from Appellant’s probation officer dating 

back to June[] 2011. This information enabled the [c]ourt 

to make a determination of the circumstances of 

Appellant’s offense and character, and give individualized 

consideration to Appellant’s needs at sentencing. 

Therefore, the [c]ourt had sufficient information to 

substitute for the PSI when fashioning an individualized 

sentence for Appellant. 

(Trial Court Opinion at 4-6). We see no reason to disturb the revocation 

court’s sentencing decision on the grounds stated. The court also presided 

over Appellant’s guilty plea hearings, original sentencing, and previous 

resentencing hearings. The court supervised Appellant in MHC and was 

aware of Appellant’s individual needs and circumstances, which obviated the 

need for a PSI report. The court repeatedly gave Appellant opportunities to 

take advantage of rehabilitative services and avoid incarceration. Appellant, 

however, repeatedly rejected those opportunities and failed to comply with 
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the terms of his probation or parole. The record as a whole makes clear the 

court was aware of and considered the relevant sentencing factors, and the 

sentence imposed was not excessive. See Carrillo-Diaz, supra; Crump, 

supra. Therefore, Appellant is not entitled to relief on his discretionary 

aspects of sentencing claim. See Hoover, supra. 

In his second issue, Appellant argues his concurrent sentences for the 

aggravated assault and assault by prisoner convictions exceed the statutory 

maximum of ten years applicable to each of those offenses. Appellant 

contends the ten-year term of incarceration he received for each conviction 

rises above the statutory maximum when combined with the time he spent 

incarcerated for previous parole or probation violations on the same 

offenses. Appellant concludes the court imposed an unlawful sentence. We 

disagree. 

The issue of whether a sentence is illegal is a question of law and our 

scope of review is plenary. Crump, supra. An illegal sentence is subject to 

correction and must be vacated. Commonwealth v. Watson, 945 A.2d 

174, 178-79 (Pa.Super. 2008). Assuming proper jurisdiction, the legality of 

a sentence is a non-waivable claim, and this Court can raise the issue sua 

sponte. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001). 

When determining the lawful maximum allowable on a split 

sentence, the time originally imposed cannot exceed the 

statutory maximum. Thus, where the maximum is ten 

years, a defendant cannot receive a term of incarceration 

of three to six years followed by five years[’] probation. 

However, in a situation where probation is revoked on a 
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split sentence, ...a defendant is not entitled to credit for 

time spent on probation. Nor is a defendant 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 prison in 

excess of the statutory maximum.

Crump, supra at 1283-85 (internal citations omitted). Upon revocation of 

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). “As long as the new sentence imposed does not exceed the 

statutory maximum when factoring in the incarcerated time already served, 

the sentence is not illegal.” Crump, supra at 1285. 

Aggravated assault is a felony of the second degree under subsections 

(a)(3)-(a)(8) of the aggravated assault statute. See 18 Pa.C.S.A. § 2702(b) 

Assault by prisoner is also a second-degree felony. See 18 Pa.C.S.A. § 

2703. The statutory maximum term of imprisonment for a second-degree 

felony is ten years. See 18 Pa.C.S.A. 106(b)(3). 

Instantly, as a preliminary matter, Appellant did not raise his illegal 

sentence issue in his Rule 1925(b) statement. See Commonwealth v. 

Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating any issue not raised in 

Rule 1925(b) statement will be deemed waived for appellate review). 

Nevertheless, Appellant’s illegal sentence claim is nonwaivable. See 

Edrington, supra. Therefore, we will address it on the merits. 

Following Appellant’s most recent probation violation, the court 
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resentenced Appellant to concurrent terms of four (4) to ten (10) years’ 

incarceration for his aggravated assault and assault by prisoner convictions. 

Appellant previously spent time incarcerated for those offenses. The court, 

however, gave Appellant credit for time served while incarcerated. 

Additionally, Appellant was not automatically entitled to credit for the time 

he spent on parole or probation. See Crump, supra. Both aggravated 

assault and assault by prisoner were graded as second-degree felonies. 

Factoring in Appellant’s credit for time served, neither of Appellant’s new 

sentences exceeded the ten-year statutory maximum applicable to each

offense. See 18 Pa.C.S.A. 106(b)(3). Therefore, Appellant’s sentence is 

lawful in its entirety. See Crump, supra. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2016