Com. v. Harris, N.

• Court: Superior Court of Pennsylvania
• Decided: October 17, 2014
• Docket: 274 WDA 2014
• Status: Unpublished

Opinion

J-S53031-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : NEIL RANDELL HARRIS, : : Appellant : No. 274 WDA 2014

Appeal from the Judgment of Sentence March 12, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0016484-2002

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

CONCURRING STATEMENT BY DONOHUE, J.: FILED OCTOBER 17, 2014

I concur in the Majority’s disposition but write separately only to point

out that its statement of our scope of review1 for appeals from judgments of

sentence imposed following the revocation of probation is incorrect.

Relying on the 2012 case of Commonwealth v. Simmons, 56 A.3d

1280 (Pa. Super. 2012), the Majority states that “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 it had at the time of the initial sentencing.” Maj. Mem. at 5

1 The Majority erroneously refers to this as the standard of review. See Holt v. 2011 Legislative Reapportionment Comm'n, 38 A.3d 711, 728 (Pa. 2012) (explaining that the “scope of review refers to the confines within which an appellate court must conduct its examination, i.e., the ‘what’ that the appellate court is permitted to examine, while the ‘[s]tandard of review addresses the manner by which that examination is conducted, the degree of scrutiny to be applied by the appellate court.’”).

*Retired Senior Judge assigned to the Superior Court. J-S53031-14

(quoting Simmons, 56 A.3d at 1286). In 2013, an en banc panel of this

Court “unequivocally h[e]ld that this Court's scope of review in an appeal

from a revocation sentencing includes discretionary sentencing challenges.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en

banc).

Although the scope of review as noted by the Majority does not impact

the outcome of this case, our scope of review is not limited to two discrete

inquiries. It is at best confusing to perpetuate an incorrect statement of the

law by including it in the disposition of this, or any, appeal.

Olson, J. joins this Concurring Statement.

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