J-S56045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN DOUGLAS,

                            Appellant                 No. 267 MDA 2014


          Appeal from the Judgment of Sentence December 19, 2013
              in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0001362-1997


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:FILED OCTOBER 29, 2014

        Appellant, Brian Douglas, appeals from the judgment of sentence

entered following the revocation of his probation.         On appeal, Appellant

contends that the evidence was insufficient to sustain the revocation of

probation and that his sentence was excessive and unreasonable. We affirm

the judgment of sentence.

        We take the underlying facts and procedural history in this matter

from the trial court’s April 9, 2014 opinion.

              On April 1, 1998, Appellant entered a plea of guilty to
        charges of rape, statutory sexual assault, aggravated indecent
        assault, and corruption of minors. Th[e trial c]ourt sentenced
        Appellant to two and one-half (2 1/2) years to ten (10) years in
        a state correctional institution on Count 1, forcible rape, and to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       five (5) years special probation to be supervised by state parole
       on Counts 2, 3, 4, and 5, to run concurrent with each other but
       consecutive to Count 1. Appellant’s five-year probation became
       effective on January 23, 2009, with a completion date of January
       23, 2014. Appellant was to attend and complete sex offender
       treatment program as a condition of the special probation. On
       November 20, 2013, Appellant was unsuccessfully discharged
       from his sex offender treatment program.            Appellant was
       charged with violating the conditions of his special probation,
       specifically Condition 8, as a result of having been unsuccessfully
       discharged from treatment.

              On December 19, 2013, Appellant appeared before [the
       trial c]ourt for a hearing on his probation violation. Appellant
       was found in violation of his probation and sentenced to
       concurrent terms of two (2) years of special probation on the
       counts of aggravated indecent assault, indecent assault, and
       corruption of minors, with no further sentence on Count 2.
       Appellant filed a timely post-sentence motion, which was
       subsequently denied after consideration by [the trial c]ourt on
       January 10, 2014. On February 7, 2014, Appellant filed the
       instant appeal.[1]

(Trial Court Opinion, 4/09/14, at 1-2).

        On appeal, Appellant raises the following questions for our review:

       I.     Whether the Commonwealth failed to present sufficient
              evidence to revoke Appellant’s probation where it failed to
              prove that Appellant malingered on his polygraph
              examination and where the goal of the polygraph was to
              uncover evidence of new violations?

       II.    Whether the trial court abused its discretion in denying
              Appellant’s [m]otion for [m]odification of [s]entence where
              his sentence of two (2) years’ special probation is
              excessive and unreasonable as Appellant has already
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1
  On February 12, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on March 5, 2014. See id.
On April 9, 2014, the trial court filed an opinion. See Pa.R.A.P. 1925(a).



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               served extended periods of incarceration and probation
               and where probation serves no further[] rehabilitative
               purpose?

(Appellant’s Brief, at 6).

      In his first issue on appeal, Appellant claims that the evidence was

insufficient    to   sustain   the   revocation   of   probation   because   the

Commonwealth did not prove that Appellant malingered on his polygraph

and because the goal of the polygraph was to uncover evidence of new

parole violations. (See id.).

      The procedures for revoking probation and the rights afforded to
      a probationer during revocation proceedings are well settled:

      When a parolee or probationer is detained pending a revocation
      hearing, due process requires a determination at a pre-
      revocation hearing, a Gagnon I hearing, that probable cause
      exists to believe that a violation has been committed. Where a
      finding of probable cause is made, a second, more
      comprehensive hearing, a Gagnon II hearing, is required before
      a final revocation decision can be made.

      The Gagnon II hearing entails two decisions: first, a
      “consideration of whether the facts determined warrant
      revocation.” Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.
      2593, 33 L.Ed.2d 484 (1972). “The first step in a Gagnon II
      revocation decision . . . involves a wholly retrospective factual
      question: whether the parolee [or probationer] has in fact acted
      in violation of one or more conditions of his parole [or
      probation].” Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct.
      1756, 1761, 36 L.Ed.2d 656 (1973) (citing Morrissey, supra,
      408 U.S. at 484, 92 S.Ct. 2593). It is this fact that must be
      demonstrated by evidence containing probative value. “Only if it
      is determined that the parolee [or probationer] did violate the
      conditions does the second question arise: should the parolee
      [or probationer] be recommitted to prison or should other steps
      be taken to protect society and improve chances of
      rehabilitation?” Gagnon v. Scarpelli, supra, 411 U.S. at 784,
      93 S.Ct. 1756, (citing Morrissey v. Brewer, supra, 408 U.S. at

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      484, 92 S.Ct. 2593, 33 L.Ed.2d 484). Thus, the Gagnon II
      hearing is more complete than the Gagnon I hearing in
      affording the probationer additional due process safeguards,
      specifically:    (a) written notice of the claimed violations of
      [probation or] parole; (b) disclosure to the [probationer or]
      parolee of evidence against him; (c) opportunity to be heard in
      person and to present witnesses and documentary evidence; (d)
      the right to confront and cross-examine adverse witnesses
      (unless the hearing officer specifically finds good cause for not
      allowing confrontation); (e) a neutral and detached hearing body
      such as a traditional parole board, members of which need not
      be judicial officers or lawyers; and (f) a written statement by the
      factfinders as to the evidence relied on and reasons for revoking
      [probation or] parole.

             Further, we note that there is a lesser burden of proof in a
      Gagnon II hearing than in a criminal trial because the focus of a
      violation hearing is 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. Thus, the Commonwealth need only
      prove a violation of probation by a preponderance of the
      evidence.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009)

(some citations and quotation marks omitted).         Lastly, a claim that the

evidence was insufficient to sustain revocation is

      a question of law subject to plenary review. We must determine
      whether the evidence admitted at trial and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the Commonwealth as the verdict winner, is
      sufficient to support all elements of the offenses. A reviewing
      court may not weigh the evidence or substitute its judgment for
      that of the trial court.

Commonwealth v. Perrault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal

denied, 945 A.2d 169 (Pa. 2008) (citation omitted).

      Initially, we note that while Appellant claims that the polygraph


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examination was administered for the purpose of uncovering evidence of

new parole violations, (see Appellant’s Brief, at 6), he does not discuss this

claim within his argument. (See id. at 16-21). Therefore, we find the claim

waived. See Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002)

(claims raised in the Statement of Questions Involved but not pursued in the

body of the brief are waived). Also, to the extent that Appellant claims that

his right against self-incrimination was violated by certain questions raised

during therapy, (see Appellant’s Brief, at 19-21), we find the issue waived

because Appellant neither raised it below, (see N.T. Revocation Hearing,

12/19/13, at 10-12), nor in his Rule 1925(b) statement, (see Pa.R.A.P.

1925(b) Statement, 3/05/14, at unnumbered page 2).             See Pa.R.A.P.

302(a); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012)

(en banc), appeal denied, 57 A.3d 70 (Pa. 2012).

      Here, Appellant did not dispute that he was “kicked out” of sex

offender treatment. (N.T. Revocation Hearing, 12/19/13, at 2). Further, the

evidence demonstrated that this was Appellant’s third discharge from the

program.   (See id. at 5).   The evidence also showed that the polygraph

examination in question was a routine exit maintenance polygraph of the

type that Appellant had successfully completed in the past. (See id. at 6,

16). Appellant’s therapist, John Welch, testified that Appellant admitted in

group therapy that he had attempted to manipulate the polygraph and

withhold information. (See id. at 7). Mr. Welch also testified that Appellant


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was being evasive and uncooperative in group therapy. (See id.). Both of

these actions were violations of Appellant’s treatment contract. (See id. at

8).   Further, Mr. Welch testified that Appellant, who had previously been

discharged from the program for using prostitutes, had recently “loan[ed]” a

woman money then later engaged in sexual activity with her, behavior which

concerned the therapist. (Id. at 7-8). While Appellant claimed that he was

unable to complete the polygraph successfully because of his mental health

issue and traumatic brain injury, the trial court did not credit this

explanation because of Appellant’s previous lack of difficulty with polygraph

tests. (See Trial Ct. Op., at 8).

       This evidence, particularly Appellant’s admission to Mr. Welch that he

was trying to manipulate a polygraph test required as a condition of the sex

offender treatment program, was sufficient to sustain a revocation of

probation. See Perreault, supra at 557-58 (evidence sufficient to sustain

revocation of probation where Appellant made out-of-court statement

admitting he violated condition of sex offender treatment program).

Appellant’s first claim lacks merit.

       In his second issue, Appellant challenges the discretionary aspects of

his sentence.2 In a recent decision, Commonwealth v. Cartrette, 83 A.3d

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2
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.



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1030 (Pa. Super. 2013) (en banc), an en banc panel of this Court held that

“this Court’s scope of review in an appeal from a revocation sentencing

includes discretionary sentencing challenges.”   Cartrette, supra at 1034.

Thus, Appellant’s claim is properly before us.

      The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).           When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).   An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the   fundamental    norms    underlying    the   sentencing   scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which




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are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

      Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 13-15). Appellant argues that the sentence was

manifestly excessive and unreasonable because he had already served the

vast majority of his extensive sentence at the time of his discharge from the

sex offender program. (See id. at 14-15). This claim raises a substantial

question. See Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super.

2012), appeal denied, 67 A.3d 796 (Pa. 2013).

            [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. . . . Once probation has been revoked, a sentence of
      total confinement may be imposed if any of the following
      conditions exist: (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 court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

      Here, as discussed by the trial court, Appellant’s sentence was less

than the maximum allowed by law. (See Trial Ct. Op., at 5). Further, the

sentence imposed was less than that recommended by the probation officer,

who requested reincarceration. (See N.T. Revocation Hearing, 12/19/13, at

8). Further, the trial court felt that sentence was




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     warranted as Appellant has repeatedly violated the conditions of
     his probation and is in need of continued therapy, as evidenced
     by his inability to successfully complete the therapy requirement.
     Extending the period of special probation will enable Appellant to
     seek further treatment in order to rehabilitate his sexually
     related behaviors so that he may no longer be a threat to young
     girls and society.

(Trial Ct. Op., at 5-6). Thus, the record amply supports Appellant’s sentence

of two more years of special probation and his claim that the sentence was

excessive and unreasonable is meritless.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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