Opinion
J-S02011-21 No. 1121 EDA 2020
04-16-2021
COMMONWEALTH OF PENNSYLVANIA v. HASSAN WILCOX Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002206-2016 BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Hassan Wilcox, appeals from the judgment of sentence of an aggregate term of 2-4 years' incarceration, followed by one year of probation, imposed after the trial court revoked his probation. We affirm.
We note that Appellant also goes by the name Andre Montgomery.
We need not set forth the relevant facts and procedural history of this case here, as the trial court provided an adequate summary of both in its November 16, 2020 opinion pursuant to Pa.R.A.P. 1925(a). See Trial Court Opinion (TCO), 11/16/20, at 1-5. Presently, Appellant raises two issues for our review:
1. Whether the evidence introduced at the probation revocation hearing was insufficient to establish a technical violation by a preponderance of the evidence.
2. Whether the lower court abused its discretion by imposing a concurrent sentence of two to four years['] state
incarceration[,] plus one year [of] probation[,] on the counts of insurance fraud and conspiracy, a manifestly excessive violation[-]of[-]probation sentence for a technical violation of probation.Appellant's Brief at 5 (unnecessary capitalization and emphasis omitted).
In Appellant's first issue, he argues that "[t]he evidence introduced at the probation revocation hearing was insufficient to establish a technical violation by a preponderance of the evidence." Id. at 11 (unnecessary capitalization and emphasis omitted). He says that his "actions have not shown that probation has been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct[.]" Id. at 12. He asks us to reverse the revocation, contending that the evidence, specifically relating to the incident where he took personal items from a woman he had been driving in a hack/taxi, "is so tenuous as to connect [him] with criminal activity." Id. at 13; see also id. at 12 ("Where a probation revocation is based on evidence that 'so tenuously' connects an appellant to criminal activity, a probation revocation is 'not predicated upon evidence of sufficient probative value' and must be vacated.") (quoting Commonwealth v. Griggs , 461 A.2d 221, 224 (Pa. Super. 1983)).
No relief is due on this basis. We have reviewed the thorough and well-reasoned opinion issued by the Honorable Anne Marie B. Coyle of the Court of Common Pleas of Philadelphia County. We conclude that Judge Coyle's opinion accurately and thoroughly disposes of the sufficiency claim raised by Appellant. TCO at 5-14. Accordingly, we adopt her opinion as our own with respect to this issue.
In Appellant's second issue, he asserts that the trial court "abused its discretion by imposing an excessive sentence on a technical violation of probation that did not take into sufficient consideration [his] rehabilitative needs." Appellant's Brief at 15 (emphasis omitted). He says that "[d]rug and [a]lcohol treatment, anger management classes, job training[,] and house arrest would have served the rehabilitative needs of Appellant and protected the community." Id. at 17. He also avers that the sentence imposed constituted "too severe a punishment. ... There was no consideration of [A]ppellant['s] having potential employment at the airport. There was no consideration of [Appellant's] being referred to the rehabilitative services of the probation department ... for drug treatment, employment[,] and anger management." Id. at 14-15.
Appellant's claim implicates the discretionary aspects of his sentence. See Commonwealth v. Ahmad , 961 A.2d 884, 886 (Pa. Super. 2008) ("A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of a sentence.") (citation omitted). However, before reaching the merits of this issue, we must determine if Appellant has preserved it for our review. "Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Id. (citations omitted). Here, Appellant only stated in his post-sentence motion that "[t]he sentence was excessive[,]" and provided no further elaboration. See Post-Sentence Motion, 3/13/20, at ¶ 11. He also does not contend that he presented this specific claim at sentencing. As the Commonwealth aptly discerns,
[Appellant's] sentencing claim is waived[] because it was never presented to the [trial] court. There, he argued in his motion to reconsider only that the sentence was somehow "excessive," without further explanation. His argument now — that supposedly "[t]here was no consideration of [Appellant's] having potential employment at the airport. There was no consideration of [Appellant's] being referred to the rehabilitative services of the probation department[,] such as referrals for drug treatment, employment[,] and anger management" — is raised for the first time on appeal. It is therefore waived.Commonwealth's Brief at 8 (internal citations omitted). We agree.
We also note that Appellant similarly made the bald allegation that his "sentence was excessive" in his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. See Rule 1925(b) Statement, 4/12/20, at ¶ 2. --------
Nevertheless, even if not waived, we would ascertain no abuse of discretion by the trial court in sentencing Appellant.
When reviewing sentencing matters, it is well-settled that:
[W]e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. An appellate court will not disturb the lower court[']s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.
Through the Sentencing Code, the General Assembly has enacted a process by which defendants are to be sentenced. As a threshold matter, a sentencing court may select one or more options with regard to determining the appropriate sentence to be
imposed upon a defendant. These options include probation, guilt without further penalty, partial confinement, and total confinement. In making this selection, the Sentencing Code offers general standards with respect to the imposition of sentence which require the sentence to be 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. Thus, sentencing is individualized; yet, the statute is clear that the court must also consider the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing.
In considering an appeal from a sentence imposed following the revocation of probation, [o]ur review is limited 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. 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.
It is the law of this Commonwealth that once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist in accordance with Section 9771(c) of the Sentencing Code:
(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 the court.
42 Pa.[C.S.] § 9771(C).
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. [I]t is only when it becomes apparent that the probationary order is not serving this desired end [of
rehabilitation] the court's discretion to impose a more appropriate sanction should not be fettered.Ahmad , 961 A.2d at 887-89 (most internal citations and quotation marks omitted; some brackets added).
Judge Coyle cogently stated the rationale for the sentence she imposed. It is apparent that she was mindful of the above-stated sentencing considerations and weighed them carefully in sentencing Appellant. See TCO at 14-18. She determined that "Appellant had amply established that probation had been a futile rehabilitative vehicle. Zero deterrence of his anti-social and criminal conduct had resulted." Id. at 16. She also stated that she "had thoroughly considered Appellant's family and community ties, as well as his rehabilitative needs when determining an appropriate sentence." Id. Accordingly, even if Appellant's sentencing argument was properly preserved, we would have no reason to disturb Judge Coyle's sentence. Consequently, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Judge Kunselman joins this memorandum.
Judge Nichols concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/16/21
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