Com. v. Harris, N.

Superior Court of Pennsylvania

Com. v. Harris, N.

DecidedJanuary 11, 2017

Docket1658 WDA 2015

StatusUnpublished

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Com. v. Harris, N., (Pa. Ct. App. 2017).

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Opinion

J-S92003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NEIL JOSEPH HARRIS,

Appellant No. 1658 WDA 2015

Appeal from the Judgment of Sentence September 22, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010562-2009

BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 11, 2017

Appellant, Neil Joseph Harris, appeals from the judgment of sentence

entered on September 22, 2015, following the revocation of his probation.

We affirm.

The facts of the underlying crimes, as summarized by the

Commonwealth at Appellant’s negotiated guilty plea hearing, are as follows:

As to the case 200909663, had the Commonwealth proceeded to trial on that case, we would have called Officer Francis Capobianco, Officer Decenzo, Officer Fisher, and Officer Schweikarth, all of the East Pittsburgh Police Department or formerly [who] would have testified [that] on or about May 16, 2009, Officer Capobianco observed [Appellant] running and hiding behind buildings.

Officers approached [Appellant] and asked him for his ID, being that he was in a housing area which was a privately owned ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S92003-16

area. [Appellant] at that time provided what proved later to be a false name, DOB, and social security number.

At this time officers attempted to handcuff him for their safety while they determined whether or not ID was valid. While the handcuffs were on, [Appellant] knocked over Officer Capobianco and ran into the woods.

After a search using K9s and other methods, [Appellant] was not located. With that, the Commonwealth would rest as to that case.

As to CC 200910562, had the Commonwealth proceeded to trial on that case, [it] would have called Officers Douglas Butler, Gregory Woodhall, Frank Rosato and Officer Bill Churilla, all of the City of Pittsburgh Police Department, who would testify on or about June 2, 2009, while on patrol, officers observed [Appellant] in what appeared to be a hand to hand transaction for . . . suspected crack cocaine.

Officers approached [Appellant] and attempted to make an arrest at that time. [Appellant] then initiated contact with the officer, pushing Officer Rosato . . . . [A] long chase ensued down the side of an embankment onto the Boulevard of the Allies and then over a 10 or 15-foot wall onto the Parkway East. And then over another wall into a cement factory or corporation or some kind of company, and then proceeded to run into the Monongahela River where he was later recovered by River Rescue.

During the chase, Officer Woodhall was injured, I believe. With that the Commonwealth would have rested as to that case.

N.T., 5/18/11, at 8–10.

The trial court summarized the procedural history as follows:

On May 18, 2011, Appellant, Neil Harris, pled guilty to Escape and Simple Assault. This [c]ourt sentenced him to two years probation on the Escape count and a consecutive period of two years probation on the Simple Assault count, both to be served consecutive to an unrelated sentence at CC200909663, for which Appellant was incarcerated at the time. On June 11, 2013, this [c]ourt found Appellant to have violated probation and

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resentenced him to two years probation on the Escape count and a consecutive period of two years probation on the Simple Assault count . . . . This [c]ourt again found Appellant to have violated probation on September 22, 2015. This time, the [c]ourt revoked probation and resentenced Appellant to one to two years of incarceration at each count run consecutively to each other and to an unrelated sentence at CC 201412162. Appellant’s Post Sentence Motion was denied on October 7, 2015. Appellant filed a Notice of Appeal on October 22, 2015 and a Concise Statement of Errors Complained Of [on Appeal] on January 12, 2016.

Trial Court Opinion, 5/12/16, at 2–3 (footnote omitted).

Appellant raises the following single issue on appeal:

I. Whether the revocation sentences imposed at CC200910562, counts 4 and 5, were manifestly excessive, unreasonable, and an abuse of discretion where the trial court followed a stated predetermine[d] sentence and failed to consider the personal history, character and rehabilitative needs of Mr. Harris as required by 42 Pa.C.S.A § 9721(B) and 42 Pa.C.S.A. § 9725?

Appellant’s Brief at 5.

Appellant argues that his sentence was excessive and that the

sentencing court failed to consider his personal history, character, and

rehabilitative needs. These issues are challenges to the discretionary

aspects of Appellant’s sentence. Commonwealth v. Malovich, 903 A.2d

1247 (Pa. Super. 2006); Commonwealth v. Lutes, 793 A.2d 949 (Pa.

Super. 2002).

As this Court clarified in Commonwealth v. Cartrette, 83 A.3d 1030

(Pa. Super. 2013), our scope of review following the revocation of probation

is not limited solely to determining the validity of the probation revocation

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proceedings and the authority of the sentencing court to consider the same

sentencing alternatives that it had at the time of the initial sentencing.

Rather, it also includes challenges to the discretionary aspects of the

sentence imposed. Specifically, we unequivocally held that “this Court’s

scope of review in an appeal from a revocation sentencing includes

discretionary sentencing challenges.” Id. at 1034. Further, as we have long

held, the 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.

Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).

It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Dawson, 132 A.3d

996, 1005 (Pa. Super. 2015). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. Buterbaugh, 91 A.3d

1247, 1265 (Pa. Super. 2014) (en banc).

To effectuate this Court’s jurisdiction when challenging the

discretionary aspects of a sentence, Appellant must satisfy a four-part test

by (1) preserving the issue in the court below, (2) filing a timely notice of

appeal, (3) including a Pa.R.A.P. 2119(f) statement in his appellate brief,

and (4) raising a substantial question for our review. Commonwealth v.

Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (quoting Commonwealth v.

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Tejada, 107 A.3d 788, 797 (Pa. Super. 2015), appeal denied, 119 A.3d 351

(Pa. 2015)).

Applying the four-part analysis to the instant case, we find that

Appellant (1) preserved the issue; (2) timely filed his notice of appeal; and

(3) complied with Pa.R.A.P. 2119(f) by including in his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of his sentence. Appellant’s Brief at 12–16.

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