J-S37022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEE TAYLOR,

Appellant No. 1957 EDA 2014

Appeal from the Judgment of Sentence June 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CP-0006459-2009

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 24, 2015

Appellant, Lee Taylor, appeals from the judgment of sentence entered 

following the revocation of his probation. We affirm.

In a prior decision addressing Appellant’s direct appeal, this Court 

summarized the underlying facts of this case as follows:

[Appellant, at the age of forty-three,] lived next door to 

thirteen-year-old [Victim] on the 6100 block of Edmund Street in 

Philadelphia. [Victim’s] mother was friendly with [Appellant], 

and he would occasionally babysit [Victim’s] two younger 

brothers. In June of 2008, [Victim] accidently locked herself out 

of her house and went to [Appellant’s] home to await her 

mother’s return from work. [Victim] testified that while she was 

there, [Appellant] began to play with [Victim’s] hair and 

attempted to kiss her. [Victim] left [Appellant’s] house, but she 

testified that she did not tell her mother about the incident 

because [Victim] was scared.

Later that summer, [Appellant] entered [Victim’s] home 

unannounced. [Victim] testified that, while her mother and 

brothers were out of sight, [Appellant] began to kiss [Victim] on 
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the lips. [Victim] did not tell her mother about this second 

incident.

On the morning of December 24, 2008, while [Victim] was 

sleeping in her bedroom in the basement of her home, 

[Appellant] came downstairs and approached [Victim]. 

According to [Victim’s] testimony, [Appellant] sat on her bed and 

proceeded to kiss [Victim] on her lips and rub her buttocks. 

[Appellant] then fondled [Victim’s] breasts under her shirt and 

attempted to put his tongue in her mouth. During this 

encounter, [Appellant] told [Victim] that he missed her and 

loved her. After telling [Appellant] to leave, [Victim] left and 

walked to her uncle’s home, where she told her uncle’s girlfriend 

about [Appellant’s] actions. [Appellant] was arrested later that 

morning.

Commonwealth v. Taylor, 2322 EDA 2010, 82 A.3d 1057 (Pa. Super. filed 

July 8, 2013) (unpublished memorandum at 1-2) (citations omitted).

On April 12, 2010, at the conclusion of a nonjury trial, Appellant was 

convicted of indecent assault, unlawful contact with a minor, simple assault, 

and corruption of minors. On July 12, 2010, the trial court sentenced 

Appellant to serve a term of incarceration of two and one-half to five years 

for the conviction of unlawful contact with a minor, plus a term of probation 

of five years. For the convictions of indecent assault, simple assault, and 

corruption of minors, the trial court also sentenced Appellant to serve 

concurrent terms of probation of five years, which were to run consecutive 

to the term of incarceration. Appellant then filed a direct appeal, and this 

Court affirmed his judgment of sentence on July 8, 2013. Taylor, 2322 EDA 

2010, 82 A.3d 1057 (unpublished memorandum). The record does not 

reflect that Appellant sought any further appellate review.
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After serving the five-year maximum term of incarceration, Appellant 

began serving the probationary portion of his sentence on January 5, 2014. 

N.T., 6/3/14, at 6. On February 19, 2014, Appellant tested positive for 

cocaine use. Id. at 13. Then, on April 12, 2014, Appellant participated in 

an altercation at the home of Michele Hutchinson. Id. at 6-11.

The trial court summarized the events of April 12, 2014, as follows:

On the evening of April 12, 2014, [Appellant] assaulted 

Hutchinson at her home while she was holding a benefit for her 

father, who had recently passed away. Before [Appellant] 

arrived, two attendees got into an argument. Wayne Simmons 

(“Simmons”) and his girlfriend were arguing because she was 

talking to another man. Simmons pulled out a baseball bat, but 

Hutchinson stopped him and took the bat. Simmons then left. 

Approximately five minutes later, Simmons returned with 

[Appellant] and a third man named Dana Baynes (“Baynes”). 

They were in search of the man who had spoken with Simmons’ 

girlfriend. Hutchinson tried to prevent an altercation and asked 

the men to leave. [Appellant] grabbed Hutchinson’s wrist and 

threw her to the ground.[1] Hutchinson tried to get away but 

[Appellant] tackled her. Others intervened and [Appellant] and 

his associates fled when they heard police sirens.

The police instructed Hutchinson to file a private criminal 

complaint. When Hutchinson filed the complaint, she learned 

that [Appellant] was on probation, which prompted her to file a 

second complaint with the probation department.

Trial Court Opinion, 12/18/14, at 3 (citations omitted).

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1

 When Appellant threw Ms. Hutchinson to the ground, she struck her face 

on the street and a tire, causing road burn and abrasions, and 

Ms. Hutchinson will have permanent marks on her face as a result. N.T., 

6/3/14, at 8-9, 11.
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As a result of the incident, the trial court held a Daisey Kates hearing2

on June 3, 2014. At the conclusion of the hearing, the trial court revoked 

Appellant’s probation and imposed a new sentence. Specifically, the trial 

court sentenced Appellant to serve a term of incarceration of one and onehalf to three years for the conviction of indecent assault, and a consecutive 

term of probation of four years for the conviction of corruption of minors. 

The trial court imposed no further penalty on Appellant’s conviction of simple 

assault.

The record further reflects that on June 6, 2014, Appellant filed a postsentence petition to vacate and reconsider sentence, which the trial court 

never acted upon. Appellant filed a timely notice of appeal on July 3, 2014. 

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

Appellant presents the following issues for our review:

1. Did not the lower court err by failing to correct the illegal 

sentence originally imposed on appellant under the charge of 

unlawful contact with a minor?

2. Did not the lower court err by imposing a manifestly excessive 

and grossly disproportionate sentence of 1 1⁄2 to 3 years of 

incarceration plus 4 years of reporting probation where appellant 

had only committed technical violations of his probation and 

where the lower court failed to fashion an individualized 

sentence that accounted for appellant’s rehabilitative needs?

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2

 Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973). In Kates, our 

Supreme Court held that when a probationer has been charged with a new 

offense, his probation may be revoked prior to a trial on the new charge 

provided that the court supervising the probationer holds a hearing on the 

matter. Id. at 708-709.
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Appellant’s Brief at 3.

In his first issue, Appellant argues that the original judgment of 

sentence imposed upon Appellant by the trial court following his conviction 

in 2010 was illegal. Specifically, Appellant states the following:

[T]he original sentence on unlawful contact with a minor as a 

third degree felony was 2 1⁄2 to 5 years of incarceration to be 

followed by 5 years of probation. Thus, the sentence required a 

total of 10 years of supervision. However, the maximum 

sentence for a third degree felony is 7 years. 18 Pa.C.S.A. 

§ 1103(3). Accordingly, the sentence was illegal.

The revocation court failed to correct that sentence. The 

revocation court was originally going to impose its new sentence 

on the unlawful contact with a minor charge (N.T. 6/3/14, 23). 

However, defense counsel pointed out that [Appellant] had 

almost maxed out that charge and the lower court instead 

constructed the sentence with the misdemeanors. The issue of 

the unlawful contact with a minor charge was not readdressed. 

See (N.T. 6/3/14) generally. Accordingly, the illegal portion of 

[Appellant’s] sentence is still in effect and [Appellant’s] sentence 

must be vacated.

Appellant’s Brief at 11-12.

As a prefatory matter, we observe that “[i]ssues relating to the legality 

of a sentence are questions of law[; as a result, o]ur standard of review over 

such questions is de novo, and our scope of review is plenary.” 

Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013) 

(citations omitted). However, Appellant does not allege that the instant 

judgment of sentence is illegal. Rather, he contends that his original 

judgment of sentence, which was revoked following his violation of 

probation, was illegal.
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This Court has concluded that where an appellant receives a new 

sentence upon resentencing and fails to allege that his current sentence is 

illegal, an attack on his original judgment of sentence is rendered moot. 

See Commonwealth v. McGriff, 638 A.2d 1032, 1035 (Pa. Super. 1994) 

(explaining that where the appellant was resentenced due to probation 

violations, and does not challenge the legality of the new sentence, claim 

that original sentence was illegal is moot). Instantly, Appellant does not 

allege that the instant judgment of sentence, which was imposed upon 

revocation of his probation, is illegal. Rather, he attacks the legality of the 

original judgment of sentence. Therefore, any illegality in Appellant’s 2010 

sentence for unlawful contact with a minor was corrected on June 3, 2014, 

when his probation was revoked and he was resentenced. Hence, to the 

extent that Appellant argues that his original sentence was illegal, we will 

not address this claim as it is moot. McGriff.

Secondly, Appellant argues that the trial court abused its discretion in 

imposing the sentence following the revocation of his probation. Appellant’s 

Brief at 12-16. Specifically, Appellant contends that the sentence imposed 

was manifestly excessive and disproportionate in light of the technical 

violations of his probation, and thus the court failed to fashion an 

individualized sentence based upon his rehabilitative needs.

As this Court recently clarified in Commonwealth v. Cartrette, 83 

A.3d 1030 (Pa. Super. 2013) (en banc), our scope of review following the 
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revocation of probation is not limited solely to determining the validity of the 

probation revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the time of the 

initial sentencing. Rather, it also includes challenges to the discretionary 

aspects of the sentence imposed. Specifically, we unequivocally held that 

“this Court’s scope of review in an appeal from a revocation sentencing 

includes discretionary sentencing challenges.” Cartrette, 83 A.3d at 1034. 

Further, as we have long held, 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. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

We are also mindful that “[t]he right to appeal a discretionary aspect 

of sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136, 

1143 (Pa. Super. 1999). Rather, where an appellant challenges the 

discretionary aspects of a sentence, the appeal should be considered a 

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 

155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 
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see 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, see Pa.R.Crim.P. 

[708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). The determination of whether there is a substantial question is 

made on a case-by-case basis, and this Court will grant the appeal 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 912-913.

Herein, the first three requirements of the four-part test are met, 

those being that Appellant brought an appropriate appeal, raised the 

challenge in a post-sentence motion, and included in his appellate brief the 

necessary separate concise statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next 

determine whether Appellant raises a substantial question requiring us to 

review the discretionary aspects of the sentence imposed by the trial court.

Appellant argues in his Pa.R.A.P. 2119(f) statement that the trial court 

abused its discretion by imposing a sentence following the revocation of 

probation that was unduly excessive and failed to consider his rehabilitative 

needs. Appellant’s Brief at 8-9. Essentially, Appellant asserts that the 
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sentencing court failed to properly consider factors set forth under 42 

Pa.C.S. § 9721(b).3 Thus, we conclude that, in this instance, Appellant has 

raised a substantial question. See Commonwealth v. Fullin, 892 A.2d 

843, 847 (Pa. Super. 2006) (concluding that the appellant raised a 

substantial question where it was alleged that the trial court failed to 

consider the factors set forth in 42 Pa.C.S. § 9721(b)). Nevertheless, we 

conclude that Appellant is entitled to no relief on his claim, as the record 

reveals that the court properly considered Appellant’s rehabilitative needs in 

fashioning the sentence.

Again, we are mindful of our standard of review, which is as follows:

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. An abuse of discretion is more than an error in 

judgment - a sentencing court has not abused its discretion 

unless the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.

Sierra, 752 A.2d at 913 (citations and quotation marks omitted).

With regard to our review of a sentence imposed following the 

revocation of probation, we observe that, “[p]ursuant to 42 Pa.C.S. 

§ 9771(b), when a defendant is found in violation of his probation, upon 

revocation the sentencing alternatives available to the court shall be the 

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3

 The factors to be considered under 42 Pa.C.S. § 9721(b) include the 

protection of the public and rehabilitative needs of the defendant. 

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
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same as were available at the time of initial sentencing, due consideration 

being given to the time spent serving the order of probation.” 

Commonwealth v. Crump, 995 A.2d 1280, 1284 (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(c) 

and 42 Pa.C.S. § 9721(b). Commonwealth v. Ferguson, 893 A.2d 735 

(Pa. Super. 2006). Pursuant to Section 9771(c), a court may sentence a 

defendant to total confinement after a revocation of probation if one of the 

following conditions exists:

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.

42 Pa.C.S. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. 

Super. 2001). 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. 

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006). 

See also Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000) 

(reiterating that although a court is required to explain its reasons for 

imposing sentence, it need not specifically cite or include the language of the 
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sentencing code; it must only demonstrate that the court had considered the 

factors specified in the code.).

Appellant argues that the sentence of incarceration and probation he 

was ordered to serve, which was within the statutory maximum, is 

manifestly excessive and unreasonable. In effect, Appellant contends that 

his sentence was disproportionate to the probation violations he committed 

and that the court did not consider his rehabilitative needs.

Our review of the record reflects that, at the time of sentencing, the 

court heard a detailed stipulated account of the altercation in which 

Appellant was involved and also viewed photographs of the victim’s injuries. 

N.T., 6/3/14, at 6-11. In addition, our review of the record reflects that the 

court accepted testimony from Appellant’s probation officer, as well as a 

recommendation from the probation officer. Id. at 12-15, 21-22. The court 

also heard Appellant’s apology to the victim of the altercation and his 

request for forgiveness. Id. at 15-16. Moreover, Appellant’s counsel 

presented facts surrounding Appellant’s mental health issues and need for 

mental health treatment. Id. at 16-17. The record further reflects that the 

court heard from the Assistant District Attorney regarding the details of 

Appellant’s previous criminal history, the physical altercation that led to 
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probation revocation, Appellant’s mental health concerns, and the need for 

incarceration.4 Id. at 17-21.

In explaining the reasons surrounding the sentence imposed, the trial 

court offered the following:

Here, [Appellant] presents a substantial question on 

appeal when he asserts that the Court imposed an excessive and 

unreasonable sentence; that that the Court failed to adequately 

examine [Appellant’s] background, character and rehabilitative 

needs; and that the Court failed to state adequate reasons on 

the record for imposing [Appellant’s] sentence. See Statement.

The Court considered [Appellant’s] background, character 

and rehabilitative needs, and although [Appellant] states that 

the Court “imposed a sentence that was more than necessary to 

vindicate the authority of the Court” — presumably under 42 

Pa.C.S.A. § 9771(c)(3) — the Court imposed a new sentence, 

under 42 Pa.C.S.A. § 9771(c)(2), after weighing the evidence 

and concluding that [Appellant] will likely commit another crime 

as indicated by his conduct while on probation. See N.T., June 

3, 2014 at 5; also see Statement at ¶¶ 3(b).

On April 12, 2010, [Appellant] was originally sentenced to 

two and one-half to five years [of] incarceration. On April 15, 

2014, after [Appellant’s] Daisey Kates hearing, the Court 

imposed a new legal sentence of one and one-half [to three] 

years of incarceration on the Indecent Assault, and four years 

consecutive reporting probation on the Corruption of Minors in 

compliance with 42 Pa.C.S.A. § 9771.

At the hearing, the Court considered the [Appellant’s] 

record, sentence, and conduct while on probation. See N.T., 

June 3, 2014 at 5, 17-19. The Court knew that [Appellant] was 

convicted of murder in 1983 and served the maximum term of 

twenty years before he was released in 2004. Id. at 17. The 

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4

 Specifically, after arguing that Appellant is “not safe in the community,” 

the Commonwealth requested that the court impose “a sentence of 4-to-8 

years in state custody.” N.T., 6/3/14, at 21.
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Court also considered that [Appellant] was convicted of child 

molestation in 2010, served his full five year sentence and was 

released on January 5, 2014. Id. at 18. The following month, 

on February 19, 2014, he tested positive for cocaine. Id. 

Within four months of release he violated probation again with 

the current offense. Id. at 17-19.

Also considered was [Appellant’s] treatment after he 

tested positive for cocaine. Id. at 13. [Appellant] self-reported 

that he was schizophrenic, and he was diagnosed with cocaine 

abuse and mood disorder. His therapist stated that [Appellant] 

was compliant with the program, had perfect attendance, 

worked well within group sessions, and had excellent 

relationships with peers and staff. Id. at 13.

Additionally, the Court considered [Appellant’s] therapist’s 

statement that [Appellant] needs anger management because 

“he constantly talks about issues ranging from personal rage and 

anger.” Id. The Court considered that [Appellant] had missed 

his appointment with his probation officer scheduled for April 15, 

2014, three days after the incident because he had reported to 

his therapist instead of his probation officer, where he told his 

therapist that an incident had occurred over the weekend and 

that he was suicidal; and that [Appellant] was taken to the 

hospital and then to an inpatient program for a week. Id. at 13-

14. Finally, the Court considered that [Appellant] had been in 

custody for about six weeks. Id. at 17.

Trial Court Opinion, 12/18/14, at 6-7.

Upon review, we discern no abuse of discretion. The court carefully 

considered the appropriate factors, including Appellant’s need for 

rehabilitation, when it imposed the prison sentence and term of probation 

following revocation. Accordingly, Appellant is entitled to no relief.

Judgment of sentence affirmed.

Judge Lazarus joins the Memorandum.

P.J. Gantman Concurs in the Result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015