J-S35002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES FANNINGS

Appellant No. 1064 EDA 2014

Appeal from the Judgment of Sentence March 7, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0806303-2006

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 17, 2015

Appellant, James Fannings, appeals from the March 7, 2014 judgment 

of sentence of three to six years’ imprisonment, followed by five years’ 

probation, imposed following the revocation of his probation. After careful 

review, we affirm.

The trial court has summarized the relevant factual history of 

Appellant’s underlying conviction as follows.

On June 5, 2006, shortly before 4:00 PM, 

Complainants, Hugh Ruane and Corey Hand, were 

selling audio equipment at City and Belmont 

Avenues, Philadelphia, PA when they were 

approached by Appellant and two male coconspirators who indicated an interest in making a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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purchase of stereo speakers. One of the males, 

Jules Quick, stated that he did not have enough 

money to complete the purchase and asked 

Complainants to follow the three assailants to the 

3000 block of Oakdale Street, Philadelphia, PA so he 

could get the rest of the money and the 

complainants agreed. Upon arrival Quick went to get 

the money and upon his return[] a few minutes later 

he stated that he had some of the money but that he 

still didn’t have the full amount and that some other 

friends were en route with the balance. Shortly 

thereafter two other males arrived, displayed 

handguns, and announced a robbery. Appellant then 

began to unload Complainants’ vehicle containing the 

merchandise and placed the audio equipment into 

Quick’s vehicle. Quick fled with the merchandise in 

the vehicle and Appellant fled on foot to his 

residence[]. Complainants positively identified 

Appellant as one of the perpetrators of the robbery.

Trial Court Opinion, 10/10/14, at 2-3.

Further, the subsequent procedural history was accurately summarized 

by the trial court as follows.

On June 6, 2006[,] Appellant was arrested and 

charged with [r]obbery and [c]riminal [c]onspiracy[,] 

and on October 23, 2007 he pled guilty to those 

offenses. On December 20, 2007[,] Appellant was 

sentenced to concurrent terms of imprisonment of 

not less than eleven and one half (11 1/2) months 

nor more than twenty[-]three (23) months plus eight 

(8) years[’] probation. On October 1, 2008[,] 

Appellant filed a [m]otion for [p]arole, pro se, and on 

October 22, 2008[,] the [trial c]ourt granted 

Appellant’s [m]otion.

On March 27, 2013[,] Appellant was arrested 

for a violation of Section 6105 of the Uniform 

Firearms Act, [p]ossessing [i]nstruments of [c]rime, 

and [s]imple [a]ssault[,] and on September 6, 

2013[,] he pled guilty to those offenses.
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Id. at 1-2 (citations omitted). At the same hearing, in accordance with 

Gagnon v. Scarpelli, 411 U.S. 778, (1973), the trial court revoked 

Appellant’s probation after conducting the following colloquy.

[The trial court]: You understand that by pleading 

guilty to this, this will put you in direct violation of 

your open other sentencing case?

[Appellant]: Yes, Your Honor.

[The trial court]: Do you still wish to plead guilty?

[Appellant]: Yes, Your Honor.

N.T., 9/6/13, at 8. Thereafter, on March 7, 2014, Appellant was sentenced 

to three to six years’ incarceration, plus five years’ probation on the 

revocation. That same day, Appellant was sentenced to an aggregate term 

of four to 10 years’ imprisonment on the new charges, to run consecutively 

to the revocation sentence. On April 7, 2014, Appellant filed a timely notice 

of appeal.1

On appeal, Appellant raises one issue for our review.

Did the [trial] court err by failing to consider the 

record of the sentencing proceeding prior to revoking 

probation pursuant to 42 Pa.C.S.A. Section 9771(d)?

Appellant’s Brief at 4.

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1 We note that the 30th day following the trial court’s imposition of sentence 

fell on Sunday, April 6, 2014. However, Appellant’s notice of appeal was 

timely filed. See 1 Pa.C.S.A. § 1908 (providing that when the last day of a 

calculated period of time falls on a Saturday or Sunday, such days shall be 

omitted from the computation). Additionally, Appellant and the trial court 

have complied with Pennsylvania Rule of Appellate Procedure 1925.
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Appellant argues that the trial court “erred in failing to consider the 

record of the sentencing proceeding together with the conduct of [Appellant] 

while on probation.” Id. at 9. Appellant asserts the trial court instead only 

considered his probation record created by his former probation officer, and 

the new crime constituting the probation violation. Id. Accordingly, 

Appellant avers it was an error to revoke his probation as “there was 

absolutely no testimony or reference by the [trial] court as to the record of 

the sentencing proceeding prior to the Judge revoking Appellant’s probation 

in violation of 42 Pa.C.S.A. Section 9771(d).” Id. at 9-10.

“The court may revoke an order of probation upon proof of the 

violation of specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b). 

Revocation of probation is in the sound discretion of the trial court and we 

will not disturb it in the absence of an error of law or an abuse of discretion. 

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007), 

appeal denied, 945 A.2d 169 (Pa. 2008). “The Commonwealth establishes a 

probation violation meriting revocation when it shows, by a preponderance 

of the evidence, that the probationer’s conduct violated the terms and 

conditions of his probation, and that probation has proven an ineffective 

rehabilitation tool incapable of deterring probationer from future antisocial 

conduct.” Id. (citation omitted).

Instantly, Appellant claims the trial court violated Section 9771(d), 

which states as follows.
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§ 9771. Modification or revocation of order of 

probation

(d) Hearing required.--There shall be no 

revocation or increase of conditions of sentence 

under this section except after a hearing at which 

the court shall consider the record of the sentencing 

proceeding together with evidence of the conduct of 

the defendant while on probation. Probation may be 

eliminated or the term decreased without a hearing.

42 Pa.C.S.A. § 9771(d).

Specifically, Appellant argues the trial court erred in failing to consider 

the record of the sentencing proceeding from 2007. However, a review of 

the record indicates Appellant did not preserve this issue by objecting to the 

revocation at the time of the hearing, by objecting at his re-sentencing, or 

by filing a motion for modification of sentence. See generally Pa.R.A.P. 

302(a); Pa.R.Crim.P. 708(E). Accordingly, said issue is waived. 

Based on the foregoing, we conclude Appellant’s sole claim on appeal 

is waived. Therefore, we affirm the trial court’s March 7, 2014 judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015