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[U] Commonwealth v. Cooper

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CARDELL COOPER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered June 15, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001071-2010

BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

BENDER, P.J.E.

Appellant, Cardell Cooper, appeals from the judgment of sentence of two to four years' incarceration, imposed following a violation of probation (VOP) hearing and the revocation of Appellant's probationary sentence. After careful review, we affirm.

The trial court set forth the facts of Appellant's case as follows:

On September 16, 2009, [Appellant] pleaded guilty before the Honorable Daniel J. Anders to possession of a controlled substance with the intent to deliver ("PWID") and the knowing and intentional possession of a controlled substance. On October 3, 2011, the trial court accepted the negotiated guilty plea and sentenced [Appellant] to eleven and [one-]half to twenty-three months of incarceration followed by five years of reporting probation. The trial court granted [Appellant's] request for immediate parole to house arrest.
On January 27, 2012, [Appellant] was arrested and charged with the knowing and intentional possession of a controlled substance. On June 11, 2012, the Honorable James M. DeLeon heard [Appellant's] motion to suppress narcotics recovered from a search of [Appellant's] person by police officers. After hearing testimony from [Philadelphia Police] Officer [Damien] Stevenson, Judge DeLeon granted [Appellant's] motion and suppressed the narcotics based on credibility.[1] The Commonwealth withdrew prosecution of this case based upon the granting of the motion to suppress.
On June 12, 2012, the Commonwealth filed a motion for a [] Kates[2] hearing, which was held on June 15, 2012, before Judge Anders. Officer Stevenson testified at the hearing as follows:
• Officer Stevenson was working on duty as a Philadelphia Police Officer on January 27, 2012, at 2:56 pm.
• He responded to a call for a disturbance and a person with a gun at 228 North 29th Street.
• He received flash information for a black male with a red beard.
• When he responded to 22[8] North 29th Street he saw [Appellant], who fit the flash description, arguing with an unknown female.
• [Appellant] had his hands in his pockets when Officer Stevenson approached, and then removed them.
• [Appellant] was belligerent and ignored a few verbal commands. Officer Stevenson instructed [Appellant] to put his hands on the wall nearby; [Appellant] refused.
• A brief struggle ensued, and Officer Stevenson immediately went over radio to communicate that he was in a fight.
• Backup Officer Boyer came to the scene for assistance. Both officers placed [Appellant] in restraints.
. The Officers stood [Appellant] to his feet and proceeded to pat him down with negative results for a gun.
• Officer Stevenson smelled a strong odor of PCP coming from [Appellant]. He recognized this distinctive smell that he described as "real sour" and "nauseating."
• Through a further pat down, Officer Boyer recovered a glass jar with a black cap and a yellow-brown liquid in it from a leg monitor on [Appellant's] left ankle. The jar was wedged between [Appellant's] ankle and the base of the monitor. The substance tested positive for PCP according to lab reports provided by the Commonwealth.
• Officer Stevenson described his training and experience on the force. At the time of the incident, he had been a Police Officer for four years, with two years of experience in that specific area of the 23rd Police District (later merged with the 22nd District).
• Officer Stevenson has been involved in fifteen drug cases in that particular location during those four years.
• He described his previous experience with PCP through training at the Police Academy, which included training to recognize the smell and distinctive characteristics of PCP.
Judge Anders found that the Commonwealth proved a violation of parole by a preponderance of the evidence as to [Appellant's] possession of PCP. He found Officer Stevenson's testimony credible in light of the officer's training, experience, and demeanor during his testimony. Judge Anders found these circumstances sufficient to revoke [Appellant's] parole, anticipatorily revoke his probation, and issue a new sentence. Judge Anders immediately proceeded to sentencing using a pre-sentence investigation report and a chemical dependency evaluation prepared on September 29, 2011, and issued a new sentence of two to four years of state incarceration.

Trial Court Opinion (TCO), 7/1/13, at 1-3 (citation to the record omitted).

Appellant filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises one issue for our review:

Did not the lower court abuse its discretion in revoking [A]ppellant's probation based on questionable evidence and thereby fail to comply with the requirements of the Sentencing Code, 42 Pa.C.S. § 9771(c)?

Appellant's Brief at 3.[3]

To begin, we note our well-settled standard of review from a judgment of sentence imposed following a revocation of probation:

Our 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. Also, upon 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. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (citations omitted).

Instantly, Appellant's single issue encompasses two claims. First, he challenges Judge Anders' decision to revoke his probation, arguing:

Judge Anders abused [his] discretion by revoking [Appellant's] probation and imposing a state sentence with a minimum of two years and a maximum of four years confinement when another court, just four days earlier, specifically found on the record that the officer's testimony was incredible, and where the only evidence presented at the violation hearing was the testimony of the same police officer.

Appellant's Brief at 11.

In regard to this claim, Appellant offers no citation to any case law, or meaningful analysis, to support his position that Judge Anders abused his discretion in revoking Appellant's probation based on the testimony of Officer Stevenson that was formerly found incredible by Judge DeLeon. Consequently, he has waived this argument for lack of development. See Pa.R.A.P. 2119(b); Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012) (citation omitted).[4]

Second, Appellant challenges the sentence of incarceration imposed by Judge Anders. Before addressing his argument, we note that,

[s]entencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. 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 ill-will, or such lack of support so as to be clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). It is also now accepted that in an appeal following the revocation of probation, it is within our scope of review to consider challenges to both the legality of the final sentence and the discretionary aspects of an appellant's sentence. Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

Appellant contends that Judge Anders abused his discretion by imposing a term of incarceration because none of the three criteria justifying such a sentence, set forth in 42 Pa.C.S. § 9771(c), were present in this case. Section 9771(c) states:

(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
(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S. § 9771(c).

Appellant's assertion that total confinement was not warranted under section 9771(c) constitutes a challenge to the discretionary aspects of his sentence. See Crump, 995 A.2d at 1282.

[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). Appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code. Id. at 886. A substantial question is raised when the appellant sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process. Id.
When a challenge to the discretionary aspect of a sentence is raised, an appellant must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in which it violates the norm. Pa.R.A.P. 2119(f).

Id.

Here, Appellant has included a Rule 2119(f) statement in his brief asserting that Judge Anders' sentence of incarceration violated section 9771(c). We conclude that this claim presents a substantial question for our review; thus, we will address its merits. See id.

Appellant asserts that a term of imprisonment was not warranted because he was not convicted of possessing PCP, and Officer Stevenson's testimony, which was discredited by Judge DeLeon, could not form the basis for Judge Anders' conclusion that Appellant was likely to commit another crime, or that the court's authority needed to be vindicated. Again, Appellant cites no legal authority to support his argument that Judge Anders could not consider Officer Stevenson's testimony for purposes of assessing the section 9771(c) factors. Accordingly, we see no error in Judge Anders' evaluating this evidence to decide if a term of incarceration was warranted.

Nor do we see any abuse of discretion in Judge Anders' decision to impose such a sentence. Judge Anders set forth the following reasons for sentencing Appellant to a term of incarceration:

• Based on Officer[] Stevenson's testimony, the jar recovered, the seizure analysis, and the corroborating paperwork, [Appellant] was in possession of PCP while under supervision. Although this was not a conviction sufficient to qualify under 42 Pa.C.S. § 9771(c), [Appellant's] actions certainly indicate that it is likely he would commit another crime if he [were] not imprisoned;
• Despite the court['s] reminding [Appellant] of the importance of complying with the terms of probation on several occasions, [Appellant] failed to comply with the explicit terms of his parole. Based on Officer Stevenson's testimony and the other evidence provided, [Appellant's] conduct clearly challenged the court's authority;
• [Appellant] violated the terms of house arrest by being out on the street [and] by leaving without permission[.]
These violations were sufficient for the [VOP] court to determine that [Appellant's] conduct indicated that it was likely that he would commit another crime if he were not imprisoned and that the sentence was essential to vindicate the authority of the … court. [Appellant] refused to comply with the terms of his house arrest and continued to possess drugs while under the court's supervision. These facts were sufficient to revoke [Appellant's] parole, anticipatorily revoke his probation, and issue a new sentence of total incarceration.

TCO at 8-9 (citations omitted).

We ascertain no abuse of discretion in Judge Anders' reasoning. Appellant has not convinced us that it was impermissible for Judge Anders to consider Officer Stevenson's testimony, and that evidence supported the judge's conclusion that a term of incarceration was warranted under section 9771(c)(2) and (3).

Judgment of sentence affirmed.

Judgment Entered.


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