Com. v. Brown, M.

Opinion

J-S71037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

MARK BROWN

Appellant No. 2095 EDA 2015

Appeal from the Judgment of Sentence June 7, 2011 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0400851-2002

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 15, 2017

Appellant, Mark Brown, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas,

following revocation of his probation. Appellant challenges the discretionary

aspects and legality of his revocation sentence. We affirm.

We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 3/17/16, at 1-3. Appellant raises the following

issues on appeal:

I. Was the sentence imposed by the trial court, which was 5 to 10 years in state prison followed by 10 years[’] probation, unjust, improper, manifestly unreasonable, and an abuse of discretion because the sentence imposed of total incarceration plus 10 years[’] probation was contrary to the fundamental norms which underlie the sentencing process?

* Former Justice specially assigned to the Superior Court. J-S71037-16

II. Was the sentence imposed by the trial court illegal because including the initial sentence of the court on the robbery offense of 11 ½ to 23 [months’ imprisonment], the entire sentence imposed was longer than the maximum authorized allowable sentence of 20 years?

Appellant’s Brief at 2.

In his first issue, Appellant’s challenges the discretionary aspects of his

revocation sentence.1 Appellant argues his revocation sentence of five to

ten years’ imprisonment, followed by ten years’ probation, is manifestly

excessive. Appellant further alleges the court failed to consider mitigating

factors, including Appellant’s age, rehabilitative needs, family history, that

he was gainfully employed while on probation, and that he remained crime-

free for the majority of his probation. Appellant concludes this Court should

vacate his judgment of sentence. We conclude Appellant is not entitled to

relief.

After careful consideration of Appellant’s brief, the record, and the

decision of the trial court, we affirm Appellant’s discretionary aspects issue

on the basis of the trial court’s opinion. See Trial Ct. Op. at 4-11 (finding:

(1) Appellant demonstrated that he was not amenable to probation when he

committed new offenses; (2) Appellant originally pleaded guilty to first-

degree robbery, first-degree aggravated assault, and criminal conspiracy,

1 Appellant preserved his discretionary aspects of sentencing issue by filing a post-sentence motion and notice of appeal nunc pro tunc, including a Pa.R.A.P. 2119(f) statement in his brief, and alleging that his discretionary aspects claims raised a substantial question. See Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

-2- J-S71037-16

which each carried a maximum sentence of twenty years’ imprisonment; (3)

at the time of his original guilty plea, the plea/sentencing court had the

statutory authority to sentence Appellant to a total of forty years’

imprisonment; (4) the trial court imposed a reasonable sentence of five to

ten years’ imprisonment, followed by ten years’ probation for all offenses;

(5) before imposing Appellant’s revocation sentence, the court considered all

relevant factors, including the number of victims harmed by Appellant’s

criminal conduct, the manner in which he committed the crimes, the

protection of society, Appellant’s mental aptitude, employment history, prior

criminal record, the sentencing guidelines, statutory maximums, and the

factors set forth in 42 Pa.C.S. § 9721(b), such as Appellant’s age,

rehabilitative needs, and family history; (6) the court also balanced the

interests of both society and Appellant in determining that his conduct

indicated that probation was not an effective means by which to accomplish

rehabilitation and deter future criminal conduct; (7) the court was not

required to order a pre-sentence investigative report and a mental health

evaluation; (8) the court had the opportunity to review Appellant’s probation

history, as well as his demeanor during several court proceedings; (9) the

court properly revoked Appellant’s sentence; (10) Appellant’s claim lacks

merit because the court had sufficient information to determine a reasonable

sentence after revoking Appellant’s probation).

-3- J-S71037-16

In his second issue, Appellant argues his revocation sentence for

robbery is illegal because his revocation sentence of five to ten years’

imprisonment followed by ten years’ probation combined with his original

sentence of confinement, eleven-and-one-half to twenty-three months,

exceeds the statutory maximum of twenty years for a first-degree felony.2

Appellant concludes this Court should vacate his judgment of sentence. We

conclude Appellant is not entitled to relief.

“The issue of whether a sentence is illegal is a question of law and our

scope of review is plenary.” Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa. Super. 2010) (citation omitted).

Our statutory and case law are clear. Subsequent to revocation of probation, the sentencing court has available to it all the options permissible at the time of initial sentencing, giving due consideration to the time spent serving the order of probation. As long as the new sentence imposed does not exceed the statutory maximum when factoring in the incarcerated time already served, the sentence is not illegal. Additionally, the sentencing court cannot give a new split sentence where the period of incarceration and period of probation exceed the statutory maximum.

Id. at 1285 (citations and quotation marks omitted). Nevertheless, “a

defendant who had previously served time on a split sentence and was

subsequently sentenced to the maximum term after revocation of his

probation was entitled to credit for time served for his original period of

2 See 18 Pa.C.S. § 1103(1).

-4- J-S71037-16

incarceration.” Id. at 1284-85 (citing Commonwealth v. Williams, 662

A.2d 658, 659 (Pa. Super. 1995)).

Here, Appellant was originally sentenced to eleven-and-one-half to

twenty-three months’ imprisonment for robbery. Upon revocation, the court

resentenced Appellant on the robbery offense to five to ten years’

imprisonment, followed by ten years’ probation. Although combining these

sentences would subject Appellant to a sentence beyond the twenty-year

statutory maximum for a first-degree felony, the court granted Appellant

credit for all time served upon imposing his revocation sentence. See N.T.,

6/7/11, at 22. Therefore, Appellant’s revocation sentence for robbery is not

illegal, as it does not exceed the statutory maximum. See Crump, 995

A.2d at 1284-85. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/15/2017

-5- Circulated 02/22/2017 05:17 PM

IN THE COURT OF COMMON PLEAS OF PHILADELPIDA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-5 l-CR-0400851-2002

v. SUPERIOR COURT FILED MAR 17 2016 MARK BROWN 2095 EDA 2015 Criminal Appeals Unit First Judicipl District of PA OPINION

Byrd, J. March 17, 2016

On May 21, 2003, defendant entered into a non-negotiated guilty plea to charges of first-

degree robbery, first-degree aggravated assault, and criminal conspiracy. Defendant's

sentencing hearing was deferred, and both a pre-sentence investigation and mental health

evaluation were ordered. On August 5, 2003, defendant was sentenced to time served (twenty

(20) months) to forty-eight (48) months state incarceration with immediate parole, followed by

six (6) years consecutive probation. However, on August 11, 2003, this court vacated that

sentence and re-sentenced defendant to eleven and one-half (11 Yi) to twenty-three (23) months

incarceration followed by eight (8) years consecutive probation.

On May 21, 2010, defendant pied guilty before the Honorable Anthony Sarcione in the

Montgomery County Court of Common Pleas to the charge of criminal conspiracy to engage in

retail theft - taking merchandise, at CP-15-CR-0002424-2008. He was sentenced to fourteen

(14) days to twenty (23) months incarceration followed by one (1) year probation. On June 15,

2010, defendant pled guilty before the Honorable Steven T. O'Neill in the Montgomery County

Court of Common Pleas to driving under the influence of alcohol or controlled substance:

Commw. v. Mark Brown Page 1 of 11 general impairment (first offense), at CP-46-CR-0005097-2008, and was sentenced to six (6)

months probation. On July 30, 2010, defendant pied guilty before the Honorable Steven T.

O'Neill in the Montgomery County Court of Common Pleas to receiving stolen property, at CP-

46-CR-0002534-2008. He was sentenced to one hundred and eight (108) days to twenty-three

(23) months incarceration to be followed by two (2) years probation. In addition to these

convictions, defendant absconded from the Philadelphia Probation Department on September 8,

2008, and missed a scheduled meeting with his probation officer on May 17, 2011.

In light of the above, a violation of probation hearing was held on June 7, 2011, and

defendant was found to be in technical and direct violation of the probationary terms imposed by

this court, Consequently, this court revoked defendant's probation and re-sentenced him to an

aggregate imprisonment term of five (5) to ten (10) years followed by ten (10) years probation.

Defendant did not file a post-sentence motion or an appeal of his new sentence.

On September 27, 2011, defendant filed a petition under the Post Conviction Relief Act

(PCRA). Norman Orville Scott, Esquire, was appointed as counsel, and filed an amended PCRA

petition on July 29, 2014. On April 24, 2015, Mr. Scott was removed and John P. Cotter,

Esquire, was appointed as counsel. On June 19, 2015, counsel filed a second amended PCRA

petition wherein he sought the reinstatement of defendant's right to file a post-sentence motion

and an appeal, nunc pro tune. The Commonwealth did not oppose this petition. On June 26,

2015, this court granted defendant PCRA relief, permitting him to file a post-sentence motion

and an appeal from the judgment of sentence imposed after the revocation of his probation on

June 7, 2011. Defendant filed a motion requesting modification of his sentence on June 29,

2015, and a notice of appeal on July 10, 2015. This court ordered defendant to file a statement of

Commw. v. Mark Brown Page 2 of 11 matters complained of on appeal on July 15, 2015. Defendant filed his statement on July 23,

2015.

STATEMENT OF FACTS

On July 23, 2001, at approximately 8 :00 a.m., co-conspirator Wykiem Nelson entered

Phoung Lam's corner grocery store located at 2838 Wharton Street, looked around the store and

exited without making a purchase.1 A few minutes later he returned to the store and purchased a

pretzel. Wykiem Nelson then returned to the store a third time, with defendant Mark Brown and

co-conspirator Reginald Lynch, and asked for another pretzel. While complainant Phoung Lam

was making the pretzel, defendant and his co-conspirators grabbed Ms. Lam from the back,

causing her to fall. Defendant and his co-conspirators then repeatedly struck her in the head and

body and took $700 and a bag of change from the store before fleeing. Ms. Lam was admitted to

the Hospital of the University of Pennsylvania, where she was treated for head trauma including

a zygomatic fracture and an occipital lobe contusion. Ms. Lam was released from the hospital on

July 25, 2001.2

Defendant and his co-conspirators knew Ms. Lam from the neighborhood. One of Ms.

Lam's daughters has a child by defendant's brother, Joseph Sill. Another of Ms. Lam's

daughters has a child by co-conspirator Reginald Lynch. Defendant was not arrested for this

crime until November 19, 2001, when he was apprehended on a warrant.'

1 Co-defendant Wykiem Nelson was convicted by a jury of first-degree robbery and criminal conspiracy, on May 27, 2003. 2 See Commonwealth v. Wykiem Nelson, N.T. 05/23/03, p. 6. 3 This court relied upon the facts stated in its October 27, 2004 1925(a) opinion in Commonwealth v. Wykiem Nelson, 3753 EDA 2003, and in its July 3, 2003 response to the Superior Court's request for a statement of reasons for revoking and denying bail for co-defendant Wykiem Nelson, at 56 EDM 2003.

Commw. v. Mark Brown Page 3 of 11 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Defendant raised the following issues in his Statement of Matters Complained of on

Appeal, in accordance with Pennsylvania Rule of Appellate Procedure l925(b):4

1. The sentence imposed did not take into consideration the requirements of 42 Pa CSA sec. 9721(b). 2. The sentence imposed did not take into consideration the defendant's age, family history and rehabilitative needs. 3. The sentence imposed of 5 to 10 years in prison was an abuse of discretion and unreasonable because the trial court only considered the defendant's criminal history in imposing punishment. 4. The imposition of a consecutive 10 years of probation to the 5 to 10 year prison sentence was an abuse of discretion and unreasonable. 5. The trial court imposed the sentence without a presentence report or mental health evaluation. 6. The defendant reserves the right to modify, amend, and/or supplement this statement.

DISCUSSION

All of the issues raised in defendant's statement relate to the sentence imposed by this

court after revocation of his probation. In an appeal from the revocation of a probation sentence,

our Superior Court reviews "the validity of the revocation proceedings, the legality of the

sentence imposed following revocation, and any challenge to the discretionary aspects of the

sentence imposed." Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015). Indeed,

"[t]he imposition of sentence following the revocation of probation is vested within the sound

discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on

appeal." Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (quoting

Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)). An abuse of

4 The following is a verbatim account of defendant's Statement.

Commw. v. Mark Brown Page 4 of 11 discretion is more than just an error in judgment. It is "synonymous with a failure to exercise a

sound, reasonable, and legal discretion." Commonwealth v. Myers, 554 Pa. 569, 574, 722 A.2d

649, 651 (1998) (quoting Commonwealth v. Powell, 527 Pa. 288, 298, 590 A.2d 1240, 1245 n.8

(1991)). The appellate court will not conclude that the trial court has abused its discretion unless

the record discloses that the trial court's judgment was manifestly unreasonable, or the result of

partiality, bias or ill-will. See McNabb. See also Commonwealth v. Gould, 912 A.2d 869 (Pa.

Super. 2006) (holding that the standard of review is very narrow for a challenge to the

discretionary aspects of a defendant's sentence). A sentence must either exceed the statutory

limit or be manifestly excessive to constitute an abuse of discretion. See Commonwealth v.

White, 491 A.2d 252 (Pa. Super. 1985).

Defendant alleges that his sentence was unreasonable and an abuse of this court's

discretion. In Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015), the court noted

that "[ujpon revoking probation, a sentencing court may choose from any of the sentencing

options that existed at the time of the original sentencing, including incarceration." By

participating in additional criminal activity, defendant demonstrated that he was not amenable to

probation and that he was a menace to society, thereby subjecting himself to the statutory

maximum sentence for his original offense. Accordingly, this court did not abuse its discretion

because defendant's sentence was not excessive and did not exceed the statutory limits for each

offense. See Commonwealth v. Martin, 611 A.2d 731, 737 (Pa. Super. 1992) (holding that "a

claim of excessiveness . . . does not constitute a substantial question when the sentence in

question is within the statutory limits"). Defendant pleaded guilty to first-degree robbery, first-

degree aggravated assault, and criminal conspiracy. A defendant convicted of robbery, where

the victim suffered serious bodily injury, has committed a first-degree felony. See 18 Pa. C.S.

Commw. v. Mark Brown Page 5 of 11 §3701(a)(l)(ii), (b), A first-degree felony carries a maximum term of twenty (20) years

imprisonment. See 18 Pa. C.S. §1103(1). The offense of aggravated assault is a first-degree

felony when defendant has caused serious bodily injury to the victim. See 18 Pa. C.S.

§2702(a)(l), (b). As mentioned above, the court may sentence an individual convicted of a first-

degree felony to a maximum confinement term of twenty (20) years. See 18 Pa. C.S.

§2702(a)(l), (b); 18 Pa. C.S. §1103(1). For his criminal conspiracy conviction, defendant was

subject to the same sentence as the most serious crime for which he was convicted. See 18 Pa.

C.S. §905(a). Accordingly, defendant could have been sentenced to an additional twenty (20)

years in prison for criminal conspiracy. In total, it would have been within this court's statutory

authority to sentence defendant to a maximum period of confinement of forty (40) years on these

two offenses alone. See Coommonwealth v. Booze, 953 A.2d 1263 (Pa. Super. 2008) (noting that

42 Pa. C.S. §9721 gives sentencing court discretion to impose consecutive or concurrent

sentences); Commonwealth v. Yuhasz, 592 Pa. 120, 133, 923 A.2d 1111, 1119 (2007) (holding

that "[tjhe only line that a sentence may not cross is the statutory maximum sentence"), Instead,

defendant was sentenced to an aggregate term of five (5) to ten (10) years in a state correctional

institution followed by ten (10) years probation.

Contrary to defendant's argument, his sentence was reasonable. See Commonwealth v.

Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (noting that "[w]hen reviewing a sentence outside

of the guideline range, the essential question is whether the sentence imposed was reasonable");

Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa. Super. 2011) (recognizing that "the term

'unreasonable' generally means a decision that is either irrational or not guided by sound

judgment"). In determining whether a sentence was reasonable, the appellate court reviews: (1)

the nature and circumstances of the offense and the history and characteristics of the defendant;

Commw. v. Mark Brown Page 6 of 11 (2) the sentencing court's opportunity to observe the defendant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4) the guidelines

promulgated by the commission. Id. (citing 42 Pa. C.S. §9781(d)). The record shows that this

court considered the above-listed factors before imposing a reasonable sentence on defendant.

Defendant incorrectly asserts that this court did not consider the factors set forth in

Section 9721(b) of the Sentencing Code, 42 Pa. C.S. §9721(b),5 and that there was no

consideration of his age, family history and rehabilitative needs. Moreover, there is no support

for defendant's contention that this court considered only his criminal history when fashioning

the sentence. The record reflects that this court considered all relevant factors, including the

number of victims harmed by defendant's criminal conduct, the manner in which defendant

committed these crimes, the protection of society, the sentencing guidelines, as well as his age,

5 Section 9721 (b) states:

(b) General standards.--ln selecting from the alternatives set forth in subsection (a), 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. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating to publication of guidelines for sentencing, resentencing and parole and recommitment ranges following revocation). i In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, rcsentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the co1111 shall make as a 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. In every case where the court imposes a sentence or resentence outside the guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of guidelines for sentencing), 2154. l (relating to adoption of guidelines for county intermediate punishment), 2154.2 (relating to adoption of guidelines for State intermediate punishment), 2154.3 (relating to adoption of guidelines for fines), 2154.4 (relating to adoption of guidelines for reseuteucing) and 2154.5 (relating to adoption of guidelines for parole) and made effective under section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines to the commission, as established under section 2153(a)(14) (relating to powers and duties). Failure to comply shall be grounds for vacating the sentence or resentence and resentencing the defendant.

Commw. v. Mark Brown Page 7 of 11 mental aptitude, educational attainment, family history, employment history, prior criminal

record, and rehabilitative needs before imposing defendant's sentence. See N.T. 06/07/11, pp. 3-

22. Because this court carefully reviewed the sentencing guidelines, the statutory maximum for

each conviction, the facts of this case, defendant's individual circumstances and background, and

all other legally permissible and pertinent factors, there is no support for defendant's claim that

his sentence was unreasonable. As the court held in Commonwealth v. Eicher, 605 A.2d 337,

354 (Pa. Super. 1992) (quoting Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa. Super.

1990)), the sentencing court must be accorded great weight "as it is in the best position to view

the [individual's] character, displays of remorse, defiance or indifference, and the overall effect

and nature of the crime." Indeed, this court carefully assessed defendant's individual situation

and the circumstances surrounding the various crimes he committed before imposing sentence.6

Furthermore, there were no impermissible factors considered by this court.

6 Before imposing sentence, this court stated the following:

Mr. Brown, you will recall that I initially sentenced you to a period of state incarceration and both the assistant district attorney and the defense attorney sought reconsideration of the sentence because at that time you had no prior conviction as a juvenile or an adult. I relented and sentenced you to a period of county incarceration, time served to 48 months, paroled you immediately. l11at was followed by a period of probation and 1 directed that you be employed, that you enroll in and complete drug therapy, that you pay $700 in restitution and $277.50 in court costs. I also told you the following: Sir, if you have any thoughts of returning to a life of crime, you should appreciate that there are consequences and one of those consequences is that, and this was in reference if you were convicted of a crime of violence, the first conviction having constituted a first strike, you cannot come before that judge as you did before me and plead for leniency. Well, you can do it but the judge could have no authority to do it. Do you understand? You said yes. I would hope that you will continue to be the person that the record suggests you were before you ran into Mr. Nelson, your co-defendant or whomever it was that you allied yourself with when you decided to take from someone who works 12 hours a day, seven days a week. People like that are appreciated in our society. Do you understand? You told me yes. You told me you would not engage in any misconduct.

Commw. v. Mark Brown Page 8 of 11 Before revoking defendant's probation and re-sentencing him to the above-stated term of

incarceration, this court carefully considered "whether the conduct of the probationer indicates

that the probation has proven to be an effective vehicle to accomplish rehabilitation and a

sufficient deterrent against future antisocial conduct." Commonwealth v. Kates, 452 Pa. 102,

114-115, 305 A.2d 701, 708 (1973). See also Commonwealth v. Mullins, 591 Pa. 341, 349, 918

A.2d 82, 86 (2007) (ruling that "[e]ven where the VOP hearing record is insufficient to sustain

revocation of probation, this purpose should not be frustrated"). In making such a determination,

"the court balances the interests of society in preventing future criminal conduct by the defendant

against the possibility of rehabilitating the defendant outside of prison." Commonwealth v. Del

Conte, 419 A.2d 780, 783 (Pa. Super. 1980). In Commonwealth v. Carver, 923 A.2d 495, 499

(Pa. Super. 2007), the court explained that "it is only when 'it becomes apparent that the

Now, I can appreciate that you've had only eight years to pay off the $700. But it seems to me you could have exhausted that sum by paying about $100 a year. How much has he paid? [Probation Officer}: Fifty-five dollars, Your Honor. THE COURT: I think you just thumb your nose at me and at this system and I think that you've engaged in criminal misconduct and you've gotten away with it. I do not intend to permit you to continue to violate others. When you were here the last time, you had a prior record score of zero. The offense gravity score was 12. The guidelines were 48 to 66, plus or minus 12, and you got a county sentence.

I have determined that you are not amenable to probation and that a period of state incarceration is required to protect other members of our society from you. Mr. Marcus, Mr. Powers, neither of you was involved in this case but the defendant and his co-defendant took it upon themselves to rob a merchant, one of the local restaurants. They went into the store and beat this woman about her face, fractured her orbital bone and they stole $700 from her. The defendant set this up because his brother had fathered a child by the shopkeeper's daughter. I thought it was a fairly heinous crime at the time but the parties thought that because of his outstanding record, he should be given a break. I vacated the stated sentence and gave him a county sentence. This is what I have to - this is what the defendant has done in response to that. N.T. 06/07/11, pp. 18-21.

Commw. v. Mark Brown Page 9 of 11 probationary order is not serving this desired end (of rehabilitation) the court's discretion to

impose a more appropriate sanction should not be fettered." Id. at 499 (quoting Kates, 452 Pa. at

115, 305 A.2d at 708). In balancing the interests of society and those of defendant, this court did

not err in determining that probation was an ineffective vehicle in accomplishing defendant's

rehabilitation and deterring future criminal conduct. Thus, defendant's probation was properly

revoked, and his new sentence was not illegal nor was it an abuse of this court's discretion.

Thus, there is no merit to defendant's claim that this court imposed an unreasonable sentence.

Defendant further claims that his new sentence was imposed without a pre-sentence

investigation or mental health evaluation. Certainly, it is within the sentencing court's discretion

to order a pre-sentence investigation and a mental health evaluation, but such was not required in

this case. See Pa. R. Crim. P. 702(A)(l ), (B); Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa.

Super. 1980) (stating that "[b]road discretion is reposed in the judge to receive relevant

information to make the determination of sentence"). As the court stated in Commonwealth v.

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

The first responsibility of the sentencing judge [is] to be sure that he ha] s] before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant. Thus, a sentencing judge must either order a PSI report or conduct sufficient presentence inquiry such that, at a minimum, the court is apprised of the particular circumstances of the offense, not limited to those of record, as well as the defendant's personal history and background.... The court must exercise 'the utmost care in sentence determination' if the defendant is subject to a term of incarceration of one year or more[.]

Id. at 725 (Pa. Super. 2013) (quoting Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super.

2000)). It is important to note that this was not the first time defendant had been before this

court for sentencing purposes. Prior to imposing defendant's original sentence in August 2003,

Commw. v. Mark Brown Page 10 of 11 this court had the benefit of both a pre-sentence investigation and a mental health evaluation. In

addition, a Gagnon II hearing summary was submitted which apprised this court with the

particular circumstances surrounding defendant's probation violations. It is further important to

note that this court had the opportunity to observe defendant's demeanor during several court

proceedings. Indeed, the record shows that more than sufficient information was available to

enable this comt to formulate a careful and reasonable sentence after defendant's probation was

revoked.

Accordingly, in light of the foregoing, the judgment of sentence should be AFFIRMED.

i THECOUR,

( ~··

! San

Commw. v. Mark Brown Page 11 of 11