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Commonwealth v. Colon

Superior Court of Pennsylvania

October 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LUIS COLON, Appellant

Submitted September 15, 2014

Page 1034

[Copyrighted Material Omitted]

Page 1035

Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0005223-2010, and CP-51-CR-0002973-2011. Before ANDERS, J.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Assist. District Attorney, and Jessica D. Khan, Assist. District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: ALLEN, OLSON, and OTT, JJ.

OPINION

Page 1036

ALLEN, J.

Luis Colon (" Appellant" ) appeals from the judgment of sentence imposed after the trial court determined he violated the conditions of his probation. We affirm.

The trial court summarized the pertinent facts and procedural history as follows:

On September 9, 2010, [Appellant] was found guilty of criminal trespass, graded as a felony of the second degree. On November 10, 2010, the trial court sentenced [Appellant] to nine to twenty months of incarceration followed by two years of probation. On August 17, 2011, [Appellant] pleaded guilty to possession with intent to deliver (" PWID" ) and was sentenced to a negotiated sentence of eleven and a half to twenty-three months of incarceration followed by two years of probation. [Appellant's] plea to the PWID charge placed him in direct violation of his parole for the criminal trespass conviction. Also, on August 17, 2011, the trial court revoked [Appellant's] parole on the criminal trespass conviction and sentenced him to the balance of his back time followed by two years of probation.
On November 19, 2011, the trial court granted [Appellant's] early parole petition with the condition that [Appellant] receive mental health and drug/alcohol treatment at Eagleville Hospital. On December 12, 2011, [Appellant] was released from custody and transported to the Eagleville Hospital for inpatient treatment. On January 17, 2012, [Appellant] was released from Eagleville because he successfully completed inpatient treatment at that facility.
On January 18, 2012, just one day after being released from Eagleville Hospital, Philadelphia police officer Mark Brown responded to Third and Cambria Streets in Philadelphia where he observed the complainant, Lynette Santiago, crying, yelling and screaming. Officer Brown described her as " upset" and " frantic." Santiago told Officer Brown that [Appellant] punched her in the face causing her lip to bleed. Officer Brown observed that Santiago was bleeding from her lower lip, had scratches on her face, and that her shirt was torn. On January 27, 2012, [Appellant] was charged with simple assault for the January 18, 2012 incident.
On September 5, 2012, the Commonwealth filed a Motion to Proceed with Probation Violation Hearing Pursuant to Commonwealth v. Daisey Kates, 452 Pa. 102, 305 A.2d 701 (Pa. 1973). On September 19, 2012, the trial court conducted the Daisey Kates hearing. At the end of the hearing, the trial court found [Appellant] in violation of both his parole/probation matters, revoked [Appellant's] parole and probation on each case, and determined a new sentence of total confinement was warranted. On November 16, 2012, the trial court sentenced [Appellant] to new sentences of one and a half to five years of incarceration on the criminal trespass conviction and a consecutive two and a half to seven years of incarceration on the PWID conviction.

Trial Court Supplemental Opinion, 2/11/14, at 1-2 (citations to notes of testimony omitted).

Page 1037

Appellant filed a petition to vacate and reconsider sentence nunc pro tunc on November 29, 2012, and on November 30, 2012, the trial court entered an order approving the nunc pro tunc filing but denying the petition. Appellant filed a timely notice of appeal on December 17, 2012, and on December 20, 2012, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not file a timely Pa.R.A.P. 1925(b) statement; nonetheless, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

On July 26, 2013, Appellant filed a motion to vacate the briefing schedule and remand the certified record to the trial court for completion of the appellate record. On August 20, 2013, this Court granted Appellant's motion and remanded the record. Appellant subsequently filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and on February 11, 2014, the trial court filed a supplemental Pa.R.A.P. 1925(a) opinion.

Appellant presents the following issues for our review:

1. Did not the [trial] court err when it admitted hearsay statements that a non-testifying complainant made while under the influence of PCP, where such statements were not " excited utterances" and where the admission of such statements violated [Appellant's] right to confrontation?
2. Was not the evidence introduced at the probation revocation hearing insufficient as a matter of law to establish a technical violation of probation?
3. Did not the [trial court] abuse its discretion and violate the Sentencing Code by sentencing [A]ppellant to four to twelve years state incarceration, a manifestly excessive violation of probation sentence, for a technical violation of probation?

Appellant's Brief at 4.

In his first issue, Appellant argues that the trial court erred when it permitted Officer Brown to testify about out-of-court statements made to him by Ms. Santiago. Specifically, Appellant argues that the trial court erred in concluding that Ms. Santiago's statement to Officer Brown that Appellant had ...


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