J-S44003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT MICHAEL FREKER

Appellant No. 579 WDA 2014

Appeal from the Judgment of Sentence June 3, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004844-2011

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED JULY 28, 2015

Appellant Scott Michael Freker appeals from the judgment of sentence 

entered on June 3, 2013 in the Allegheny County Court of Common Pleas 

following his revocation of probation. We affirm.

On June 1, 2011, Appellant was charged by Information with sixtynine counts of Sexual Abuse of Children – Child Pornography,1

five counts of 

Sexual Abuse of Children – Dissemination of Photographs,2five counts of 

____________________________________________

1 18 Pa. C.S. § 6312(d).

2 18 Pa. C.S. § 6312(c).
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Obscene and Other Sexual Materials,3and one count of Criminal Use of 

Communication Facility.4

On August 4, 2011, Appellant entered a negotiated guilty plea to a 

single count of Sexual Abuse of Children – Child Pornography.5 That same 

day, the trial court sentenced Appellant to seven years’ probation.

Following Appellant’s sentencing, the court conducted numerous 

review hearings. N.T., 6/3/2013, 39-62. On June 3, 2013, the trial court 

revoked Appellant’s probation and sentenced him to 18 to 36 months’ 

incarceration followed by 3 years’ probation. N.T., 6/3/2013, at 77.

The trial court summarized Appellant’s lack of compliance with 

probationary conditions as follows:

This [c]ourt, on August 4, 2011, originally sentenced 

Appellant to a term of seven years[’] probation. Appellant 

consistently failed to comply with his conditions of 

probation. Appellant was noncompliant as of his first 

review on 10-27-11. Appellant had decorative swords in 

his home, a beer keg on the porch, and Mercy Behavioral 

would not accept him into treatment because he was 

denying his offense (despite having pled guilty). 

2

 Mercy Behavioral is a treatment program for sex 

offenders which requires an offender to admit his 

offenses as part of his treatment.

____________________________________________

3 18 Pa. C.S. § 5903(a)(2).

4 18 Pa. C.S. § 7512(a).

5 Due to the nature of Appellant’s offense, he was assigned to the Allegheny 

County Sex Offender Court. Opinion, 3/17/2015, at 2 n.1.
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In order to be given another chance to fulfill his treatment 

condition, Appellant scheduled a polygraph for January 26, 

2012. However, he appeared to take the polygraph with an 

abrasive superglue-like substance on his palms and 

fingers. When observed by the polygrapher, Appellant 

referred to the substance as tanning solution. He was 

instructed to wash off the substance. The polygrapher 

noted that it did not easily rinse away but rather took 

substantial scrubbing to remove. Appellant next attempted 

to affect the outcome of the polygraph by flexing before he 

answered each question. The polygrapher warned him to 

cease. Ultimately he failed the polygraph with a 

probability of deception of over 99 percent. 

On February 2, 2012, he was noncompliant for talking to 

children over the internet. He also admitted to changing 

his name to run a web page for his spa and escort 

businesses so that potential clients would not know he is a 

Megan’s Law registrant, recorded video of a three year old 

despite having been told to have no contact with children, 

and had not made any restitution payments as of his 

February 2, 2012 hearing. Appellant was discharged 

unsuccessfully from treatment at Mercy on February 29, 

2012. Furthermore, he continued to possess devices with 

internet access, despite his special probation conditions 

prohibiting access to the internet. 

After being given another chance to comply with treatment 

at Mercy, on August 27, 2012, Appellant took a 

maintenance polygraph, where he admitted viewing 

movies on a premium cable channel that contained nudity. 

He also admitted using the internet to play online games. 

Further, he admitted to viewing child pornography from 

September to October of 2009, acknowledging that he 

looked at less than 100 images and saved them to his hard 

drive. On September 28, 2012, he was sanctioned at 

Allegheny County Jail for seven days after the probation 

officer discovered he was again playing online games with 

an Xbox and a Wii. Appellant took another maintenance 

polygraph on February 11, 2013, which again contained 

responses indicative of deception and led to his second 

discharge from Mercy Behavioral. 

Trial Court 1925(a) Opinion, 3/17/2015, at 5-6.
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On June 12, 2013, Appellant filed a post-sentence motion, which was 

denied by operation of law on October 18, 2013. Appellant did not appeal. 

On March 5, 2014, Appellant filed a petition pursuant to the Post-Conviction 

Relief Act, 42 Pa.C.S. § 9541 et seq., seeking reinstatement of his direct 

appeal rights. On March 14, 2014, the court granted this petition. On April 

11, 2014, Appellant filed a timely notice of appeal. Both Appellant and the 

trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issues on appeal:

Did the trial court abuse its discretion when it sentenced 

Mr. Freker to 18 to 36 months of incarceration, because it 

failed to adequately consider all of the required sentencing 

factors under 42 Pa.C.S.[] § 9721, specifically Mr. Freker’s 

nature and characteristics, and whether a sentence of 

incarceration was consistent with the protection of the 

public?

Appellant’s Brief at 10. Appellant’s issue challenges the discretionary 

aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910, 

912 (Pa.Super.2000)). Before this Court can address a discretionary 

challenge, we must engage in a four-part analysis to determine: 

(1) whether the appeal is timely; (2) whether Appellant 

preserved his 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 
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statement raises a substantial question that the sentence

is appropriate under the sentencing code. 

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see 

also Allen, 24 A.3d at 1064.

Appellant raised the issue in a timely post-sentence motion, filed a 

timely notice of appeal, and included a statement of reasons pursuant to 

Rule 2119(f) in his brief. We must, therefore, determine whether his issue 

presents a substantial question and, if so, review the merits.

“The determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v. 

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists 

where a defendant raises a “plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 

(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72 

(Pa.Super.2012)).

Appellant raises a plausible argument that the trial court failed to 

consider numerous factors, including the protection of the public and 

Appellant’s history and characteristics.6 Appellant’s Brief at 19-20. 

____________________________________________

6 The Commonwealth concedes Appellant raised a substantial question, 

relying on Commonwealth v. Crump, 995 A.2d 1280, 1282 

(Footnote Continued Next Page)
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Accordingly, his challenge raises a substantial question, and we will review 

the merits. See Commonwealth v. Riggs, 63 A.3d 780, 786 

(Pa.Super.2012) (appellant raised substantial question where he argued trial 

court failed to consider relevant sentencing criteria, including protection of 

public, gravity of offense and rehabilitative needs of Appellant). 

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” Crump, 

995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d 1001 

(Pa.Super.2009)). “An abuse of discretion requires the trial court to have 

acted with manifest unreasonableness, or partiality, prejudice, bias, or illwill, or such lack of support so as to be clearly erroneous.” Id. (citing 

Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)). 

Following the revocation of probation, “the sentencing court has all of 

the alternatives available at the time of the initial sentencing.” 

(Footnote Continued) _______________________

(Pa.Super.2010), which found a sentence of total confinement for a technical 

probation violation raised a substantial question. Appellee’s Brief at 10; 

Crump, 995 A.2d at 1282 (appellant raised substantial question when he 

challenged “[t]he imposition of a sentence of total confinement after the 

revocation of probation for a technical violation, and not a new criminal 

offense,” as it “implicate[d] the “fundamental norms which underlie the 

sentencing process” (quoting Commonwealth v. Sierra, 752 A.2d 910, 913 

(Pa.Super.2000))). Appellant, however, does not maintain the court lacked 

the authority to impose a sentence of total confinement. Rather, he 

maintains the court abused its discretion in sentencing Appellant to 18-36 

months’ incarceration. 
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Commonwealth v. Mazzetti, 44 A.3d 58, 61 (Pa.Super.2012).7 When 

imposing a sentence, “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. § 9721(b). “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.” Crump, 995 A.2d at 1283 (citing

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

“where the trial court is informed by a pre-sentence report, it is presumed 

that the court is aware of all appropriate sentencing factors and 

considerations.” Commonwealth v. Ventura, 975 A.2d 1128, 1134 

(Pa.Super.2009) (citing Commonwealth v. Devers, 519 Pa. 88, 101–102, 

546 A.2d 12, 18–19 (1988)).

The trial court reviewed a pre-sentence report and had presided over 

Appellant’s numerous review hearings. N.T., 6/3/2013, at 2, 3-6, 39-62. 

The trial court also read all letters submitted on Appellant’s behalf. Id. at 

____________________________________________

7 The sentencing guidelines are inapplicable to sentences imposed following 

revocation of probation. Commonwealth v. Williams, 69 A.3d 735, 741 

(Pa.Super.2013).
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17, 75. At the June 3, 2013 hearing, the Commonwealth presented a 

history of Appellant’s non-compliance with probation conditions, Appellant’s 

mother testified, Appellant’s counsel presented argument on his behalf, and 

Appellant had an opportunity to speak. The trial court then concluded:

It cannot be back and forth. It cannot be one minute 

admitting to viewing child pornography, another minute 

dissembling and blaming it on Ryan.[8] Another time 

saying you only viewed adult pornography and thought 

you only search for adult pornography on LimeWire.

I can’t, after all this time, I cannot continue this. So with 

that I believe the original sentence of seven years[’] 

probation is not effective.

We have tried sanctions as well as other measures to bring 

him into compliance, and today I revoke that seven 

years[’] probation, and I impose a period of incarceration 

of 18-36 months. He does have some credit for the time 

that he has served since March of this year. 

He will receive treatment while he is incarcerated. To the 

extent that he successfully completes his treatment while 

incarcerated, he will be eligible for parole. He is not triple 

RI eligible based on the charges.

Consecutive to his period of incarceration, I impose a 

period of three years of probation. . . . 

N.T., 6/3/2013, at 76-77. 

In its 1925(a) opinion, the trial court reviewed Appellant’s 

noncompliance, as outlined above, and concluded:

____________________________________________

8 Some of the letters submitted on Appellant’s behalf claimed “Ryan” viewed 

the child pornography on Appellant’s computer. Also, Appellant’s mother 

testified that it was “Ryan,” not Appellant, who viewed the child 

pornography. N.T., 6/3/2013, 23-25, 75.
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This [c]ourt gave Appellant many chances to prove his 

willingness and ability to comply with the reasonable 

charge specific special conditions of probation. As 

demonstrated by his poor supervision history, his outright 

lies about his continued contact with children and internet 

use, and his ongoing treatment failure, he is not amenable 

to community supervision and treatment. Nothing in his 

course of conduct indicates an ability or desire to refrain 

from criminal behavior or participate in treatment. As 

Appellant has repeatedly ignored his need for rehabilitation 

and treatment, intentionally disregarded court ordered 

supervision conditions, and his ongoing behavior 

demonstrates the community’s need to be protected from 

him, this [c]ourt did not err in sentencing him to a 

sentence of confinement for a period of 18 to 36 months 

with three years of consecutive probation.

Opinion, 3/17/2015, at 6-7.

The record as a whole demonstrates the trial court considered the 

protection of the public, the gravity of the offense, and the rehabilitative 

needs of the defendant. Moreover, because the trial court reviewed the presentence report, it presumably was aware of all appropriate sentencing 

factors and considerations. The trial court acted within its discretion in 

sentencing Appellant to a sentence of total confinement of 18 to 36 months’ 

incarceration.9

____________________________________________

9 Appellant maintains that the trial court used the fact that he had “never 

harmed another individual” against him. Appellant’s Brief at 27. This is 

incorrect. Appellant argued he had no prior record and the crimes charged 

in the criminal complaint did not allege violence. The trial court correctly 

responded that this argument: 

only diminishes [Appellant’s] understanding of the charge 

against him. . . 

(Footnote Continued Next Page)
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015

(Footnote Continued) _______________________

Sexual abuse of children, possession of child pornography 

is classified as a Megan’s law offense for a very good 

reason. What he has done, by virtue of his being a 

consumer of it, is place children at risk and cause them to 

be sexually assaulted. 

If there were no audience for this material, it would no 

longer be something that we would be concerned about as 

a society.

N.T., 6/3/2013, at 16.