J-S01036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RASHEEN RUSSELL

Appellant No. 2823 EDA 2014

Appeal from the Judgment of Sentence September 8, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004315-2012

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 12, 2016

Appellant, Rasheen Russell, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following 

revocation of his probation. We affirm and grant counsel’s petition to 

withdraw.

The relevant facts and procedural history of this case are as follows. 

On October 23, 2012, the court convicted Appellant of criminal trespass, 

possessing instruments of crime (“PIC”), criminal attempt to commit theft, 

and criminal attempt to commit receiving stolen property.1 The court 

sentenced Appellant on December 5, 2012, to six (6) to twelve (12) months’ 

____________________________________________

1 18 Pa.C.S.A. §§ 3503(a); 907; 901 (§ 3921 related); 901 (§ 3925 related), 

respectively. 
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imprisonment for criminal trespass, plus one year of probation for PIC and 

one year of probation for attempted theft;2the court imposed no further 

penalty for the remaining conviction. On or about April 14, 2013, Appellant 

was paroled. After parole expired and while on probation, Appellant 

committed technical violations. Specifically, Appellant tested positive for 

drugs multiple times, failed to report to his probation officer, did not 

complete a drug program, and failed to make payments toward the costs 

associated with his case. The court held a revocation of probation hearing 

on September 8, 2014. At the conclusion of the hearing, the court revoked 

Appellant’s probation for PIC, and resentenced Appellant to six (6) to twelve 

(12) months’ imprisonment. 

Appellant timely filed a motion for reconsideration on September 15, 

2014. While the motion was still pending, Appellant timely filed a notice of 

appeal on October 7, 2014.3 On October 31, 2014, the court ordered 

Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). 

Counsel subsequently filed a statement of intent to file an Anders4 brief per 

Pa.R.A.P. 1925(c)(4). 

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2 The court imposed the probationary tails consecutively. 

3 See Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after 

revocation shall be filed within 10 days of date of imposition; filing of motion 

to modify sentence will not toll 30-day appeal period). 

4 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

(1967). 
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As a preliminary matter, appellate counsel seeks to withdraw his 

representation pursuant to Anders and Commonwealth v. Santiago, 602 

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) 

petition the Court for leave to withdraw, certifying that after a thorough 

review of the record, counsel has concluded the issues to be raised are 

wholly frivolous; 2) file a brief referring to anything in the record that might 

arguably support the appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se 

brief to raise any additional points the appellant deems worthy of review. 

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance 

with these requirements is sufficient. Commonwealth v. Wrecks, 934 

A.2d 1287, 1290 (Pa.Super. 2007). 

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw 

representation:

Neither Anders nor McClendon[5]requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To 

repeat, what the brief must provide under Anders are

references to anything in the record that might arguably 

support the appeal.

* * *

____________________________________________

5 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that 

arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel must: (1) provide a 

summary of the procedural history and facts, with citations 

to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set 

forth counsel’s conclusion that the appeal is frivolous; and 

(4) state counsel’s reasons for concluding that the appeal 

is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statutes on point that 

have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition to withdraw representation. 

The petition states counsel fully reviewed the record and concluded the 

appeal would be wholly frivolous. Counsel indicates he notified Appellant of 

the withdrawal request. Counsel also supplied Appellant with a copy of the 

brief and a letter explaining Appellant’s right to proceed pro se or with new 

privately retained counsel to raise any points Appellant believes have merit. 

(See Letter to Appellant, dated May 21, 2015, at 1). In his Anders brief, 

counsel provides a summary of the procedural history of the case. Counsel 

refers to evidence in the record that may arguably support the issues raised 

on appeal, and he provides citations to relevant law. The brief also provides 

counsel’s reasons for his conclusion that the appeal is wholly frivolous. 

Therefore, counsel has substantially complied with the requirements of 
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Anders and Santiago. See Wrecks, supra. 

As Appellant has filed neither a pro se brief nor a counseled brief with 

new privately retained counsel, we review this appeal based on the issues 

raised in the Anders brief:

WAS EVIDENCE THAT [APPELLANT] TESTED POSITIVE FOR 

MARIJUANA MULTIPLE TIMES, FAILED TO COMPLETE HIS 

DRUG PROGRAM, AND ABSCONDED FROM SUPERVISION 

SUFFICIENT FOR REVOCATION?

WAS THE PROBATION REVOCATION SENTENCE ILLEGAL 

OR EXCESSIVE?

(Anders Brief at 2). 

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 that, notwithstanding prior decisions which stated our 

scope of review in revocation proceedings is limited to validity of 

proceedings and legality of sentence, this Court’s scope of review on appeal 

from revocation sentencing can also include discretionary sentencing 

challenges). 

In his first issue, Appellant argues the court revoked his probation 

where he tested positive for drugs on multiple occasions, failed to report for 

supervision, and did not remain active in his drug treatment program. 

Appellant asserts he sustained no arrests while on probation. Appellant 
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contends he also worked while on probation. Appellant maintains the reason 

he failed to report for supervision was due to his employer’s mandatory 

ninety-day “probationary period,” during which Appellant could not take days 

off from work to see his probation officer. Appellant concludes the court 

abused its discretion when it revoked Appellant’s probation based solely on 

technical violations, and this Court should reverse. We disagree. 

In the context of probation revocation and resentencing, the 

Sentencing Code provides, in pertinent part: 

§ 9771. Modification or revocation of order of 

probation

(a) General rule.—The court may at any time 

terminate continued supervision or lessen or increase the 

conditions upon which an order of probation has been 

imposed. 

(b) Revocation.—The court may revoke an order of 

probation upon proof of the violation of specified conditions

of the probation. Upon revocation 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.

(c) Limitation on sentence of total 

confinement.—The court shall not impose a sentence of 

total confinement upon revocation 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 
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(3) such a sentence is essential to vindicate the 

authority of the court. 

* * *

42 Pa.C.S.A. § 9771(a)-(c). 

“[T]he revocation of a probation sentence is a matter committed to the 

sound discretion of the trial court and that court’s decision will not be 

disturbed on appeal in the absence of an error of law or an abuse of 

discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super. 

2006). “The reason for revocation of probation need not necessarily be the 

commission of or conviction for subsequent criminal conduct. Rather, this 

Court has repeatedly acknowledged the very broad standard that sentencing 

courts must use in determining whether probation has been violated.” 

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal 

denied, ___ Pa. ___, 109 A.3d 678 (2015). “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 [the] probationer from future 

antisocial conduct.” Commonwealth v. Perreault, 930 A.2d 553, 558 

(Pa.Super. 2007), appeal denied, 596 Pa. 729, 945 A.2d 169 (2008). 

Instantly, the court initially sentenced Appellant on December 5, 2012, 

to an aggregate term of six (6) to twelve (12) months’ imprisonment, plus 

two (2) years’ probation. Appellant was paroled on or about April 14, 2013. 
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The court held a revocation of probation hearing on September 8, 2014, 

based on allegations that Appellant had committed various technical 

violations while on probation. At the September 8, 2014 hearing, Nashia 

Williams, Appellant’s probation officer, stated Appellant had failed to report 

for probation, necessitating the issuance of wanted cards for Appellant. Ms. 

Williams indicated police subsequently arrested Appellant on that detainer. 

Ms. Williams also informed the court Appellant was referred to outpatient 

treatment at Men and Women of Excellence, but Appellant failed to remain 

active in that program. Ms. Williams further confirmed that Appellant tested 

positive for drugs five times while on probation—once for THC (marijuana) 

and opiates; and the other four times for THC. 

Significantly, Appellant did not dispute that he committed these 

technical violations.6 Rather, defense counsel highlighted Appellant’s 

employment while on probation. Defense counsel offered that Appellant 

failed to report for supervision due to his employer’s mandatory ninety-day 

“probationary period,” during which Appellant could not take days off from 

work to see his probation officer. Defense counsel also claimed Appellant 

made payments to the First Judicial District of Philadelphia, but counsel 

insisted those payments had been applied to other cases and not the instant 

____________________________________________

6 Appellant claimed he had a prescription for Percocet (as a result of having 

teeth pulled), to explain his positive drug test for opiates. Ms. Williams 

denied that Appellant supplied a prescription for Percocet. Appellant 

admitted he had no prescription for THC (marijuana). 
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case, by no fault of Appellant. Appellant conceded that he continues to 

smoke marijuana. Appellant also admitted he failed to remain active in his 

treatment program. The Commonwealth acknowledged Appellant’s 

employment while on probation but pointed out that the court had already 

imposed a lenient sentence, given Appellant’s prior record. The 

Commonwealth maintained Appellant’s multiple failed drug tests and his 

failure to remain active in drug treatment demonstrate Appellant is unwilling 

or unable to remedy his substance abuse issues. 

At the conclusion of the hearing, the court revoked Appellant’s 

probation and resentenced him for the PIC conviction to six (6) to twelve 

(12) months’ imprisonment. We see no reason to disrupt the court’s 

decision to revoke probation based on Appellant’s various technical 

violations. See MacGregor, supra. See also Commonwealth v. 

Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (affirming revocation of 

probation where defendant stopped reporting to drug care facility assigned 

for treatment and refused to submit to drug testing, admitted using cocaine, 

and tested positive for cocaine and heroin); Commonwealth v. Newman, 

310 A.2d 380 (Pa.Super. 1973) (affirming revocation of probation based 

solely on appellant’s commission of technical probation violation by failing to 

report to probation office; power to grant privilege of probation to convicted 

defendant carries with it right to revoke privilege if it is abused). Therefore, 

Appellant’s first issue merits no relief.
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In his second issue, Appellant argues the court imposed an excessive 

sentence given that Appellant was working while on probation and incurred 

no arrests. Appellant asserts the court failed to specify one of the statutory 

enumerated reasons under Section 9771(c) for imposing a sentence of total 

confinement, following revocation based on technical violations of probation. 

As presented, Appellant’s issue challenges the discretionary aspects of his 

sentence.7 See Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super. 

2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010) (explaining claim 

that court erred by imposing sentence of total confinement for technical 

violations of probation presents challenge to court’s sentencing discretion); 

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

claim that court failed to consider factors under Section 9771(c) before 

imposing sentence of total confinement following probation revocation 

implicates discretionary aspects of sentencing); Commonwealth v. Lutes, 

793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is manifestly 

excessive challenges discretionary aspects of sentencing); Commonwealth 

v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 

653, 676 A.2d 1195 (1996) (stating allegation court ignored mitigating 

factors challenges discretionary aspects of sentencing). 

____________________________________________

7 Notwithstanding Appellant’s statement of questions presented, Appellant 

concedes his sentence is legal and complains only of the court’s sentencing 

discretion. Appellant preserved this claim in his motion for reconsideration 

of sentence. 
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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 that there is 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). This Court must evaluate what constitutes a substantial 

question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825 

(Pa.Super. 2007). 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.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). 

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

appropriateness of a sentence under the Sentencing Code, even if the 

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., Cartrette, supra (indicating claim that 
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revocation court ignored appropriate sentencing factors raises substantial 

question); Malovich, supra (holding defendant’s claims that sentencing 

court did not state on record any reasons for sentence, imposed sentence of 

total confinement without discussing necessary factors, and imposed 

sentence excessive and disproportionate to underlying technical probation 

violations raised substantial questions warranting appellate review). An 

allegation that the sentencing court failed to consider a specific mitigating 

factor, however, does not necessarily 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). 

To the extent Appellant complains the sentencing court did not 

adequately consider specific mitigating factors—his employment while on 

probation and the fact that he incurred no new arrests—this allegation does 

not raise a substantial question. See id. Likewise, Appellant’s bald claim of 

excessiveness does not warrant our review. See Mouzon, supra. 

Nevertheless, Appellant’s claim the court failed to articulate or consider the 

factors under Section 9771(c) prior to imposing a sentence of total 

confinement for technical violations of probation, does raise a substantial 

question. See Cartrette, supra; Malovich, supra. 

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

probation is vested within the sound discretion of the trial court, which, 
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absent an abuse of that discretion, will not be disturbed on appeal.” 

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). 

Following the 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, 739 (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 
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lengthy discourse for its reasons for imposing a sentence or specifically 

reference the statute in question....” Crump, supra at 1283. Rather, the 

record as a whole must reflect the sentencing court’s consideration of the 

facts of the case and the defendant’s character. Id. See also 

Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013) 

(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, the court initially imposed a lenient sentence on December 

5, 2012, of only six (6) to twelve (12) months’ imprisonment plus two (2) 

years’ probation, for Appellant’s convictions of criminal trespass, PIC, 

criminal attempt to commit theft, and criminal attempt to commit receiving 

stolen property. While on probation, Appellant committed various technical 

violations by testing positive for drugs on five occasions, failing to remain 

active in drug treatment, failing to report to his probation officer, and failing 

to make payment toward the costs associated with his case. Upon the 

court’s revocation of Appellant’s probation, defense counsel asked the court 

if it would consider sending Appellant to the Forensic Intensive Recovery 

program instead of confinement. The court rejected defense counsel’s offer, 

explaining Appellant was a “veteran criminal” with a record of nine prior 

arrests and convictions. The court indicated it had given Appellant a chance 
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to reform, which Appellant simply did not take. As the judge who presided 

over Appellant’s probation revocation hearing was the same jurist who had 

presided over Appellant’s initial bench trial and sentencing, the court had 

sufficient information to evaluate the circumstances of Appellant’s case as 

well as Appellant’s character. See id. The record confirms the court 

imposed a sentence of total confinement consistent with Section 9771(c). 

See 42 Pa.C.S.A. § 9771(c). See also Malovich, supra (holding record 

evidenced that court imposed sentence of total confinement following 

revocation of appellant’s probation to vindicate court’s authority, where 

appellant had not complied with previous judicial efforts such as drug court, 

had not “been putting anything into” court-imposed rehabilitation efforts, 

and it was important for appellant to appreciate seriousness of his actions; 

court did not quote from Section 9771(c) when imposing sentence or even 

mention statute by citation, but record as whole reflected court’s reasons for 

sentencing, and court’s consideration of circumstances of appellant’s case 

and appellant’s character); Cappellini, supra (holding appellant’s continued 

drug use, combined with his resistance to treatment and supervision, was 

sufficient for court to determine appellant would likely commit another crime 

if not incarcerated); Commonwealth v. Aldinger, 436 A.2d 1196 (1981) 

(explaining sentence of total confinement was proper where trial court 

expressly found and record reflected that appellant violated probation by 

using drugs; record showed court considered circumstances giving rise to 
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revocation proceeding and appellant’s character; even though court did not 

state on record that it made specific finding pursuant to Section 9771(c)(2), 

court is not required to parrot criteria of Sentencing Code). Thus, 

Appellant’s second issue merits no relief. Accordingly, we affirm. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2016