J. S38015/14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
MARQUIS TART,                            :        No. 2510 EDA 2013
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, August 8, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0007038-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JULY 29, 2014

       Appellant, Marquis Tart, appeals from the judgment of sentence

imposed following his violation of parole hearing on August 8, 2013.

Appellant was found to be in technical violation of his parole and was

ordered to serve his back time. We affirm.

       On September 1, 2011, appellant entered a negotiated guilty plea to

two counts of simple assault and one count of carrying a firearm without a



imposed the negotiated sentence, consisting of concurrent terms of

inca

probation for the firearms violation.    Approximately five months later, in

February of 2012, appellant was released on parole.
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      While on parole, appellant tested positive for drugs eight times and

failed to attend a mandatory drug treatment program. As a result, he was

re-arrested and a revocation hearing was held on August 8, 2013 via

two-way video-conferencing. At the conclusion of the hearing, Judge Patrick

found appellant to be in violation of the conditions of his parole and ordered

him to serve the remaining time on his original sentence. Appellant filed a

timely petition to vacate and reconsider sentence in which he asserted the

trial court failed to comply with the sentencing requirements of 42 Pa.C.S.A.

§ 9771(c). The trial court denied the petition on August 16, 2013, and this

appeal followed.    Appellant was ordered to file a statement of errors

complained of on appeal; and following the granting of an extension of time

to do so, appellant complied.         Appellant raises one issue for our

consideration:

            Did not the lower court err and     deny appellant his
            right to be present at his parole   revocation hearing
            in violation of the Due Process     protections of the
            United States and Pennsylvania       Constitutions and
            Rule 708 of the Pennsylvania        Rules of Criminal
            Procedure, where the lower           court conducted

            from the record that appellant could not hear the
            proceedings and as a result could not understand or
            effectively participate in the hearing and the lower
            court made no effort to correct the audio problems
            or postpone the hearing?



      We begin by noting that Pa.R.A.P. 302(a) clearly provides that

                        he lower court are waived and cannot be raised for


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contends that he adequately preserved the issue by mentioning he could not

hear certain questions or statements at the revocation hearing. While the

Commonwealth asserts appellant failed to make a specific objection during

the revocation hearing, the record indicates appellant did state he could not

hear. Thus, we decline to find waiver.

      However, we have reviewed the five-page transcript of the revocation

hearing at which appellant was represented by counsel.       It appears that

whenever appellant indicated he was having difficulty hearing what was

being said, that steps were taken to ensure appellant understood what was

happening. Appellant answered questions posed to him by his counsel and

Judge Patrick. At one point, after several exchanges between the court and



6.) The following then occurred:

            The Court: I said what excuse do you have for
            smoking drugs while you were on supervision?



            The Court: I said what is it that caused you to use
            the drugs while you were on supervision?

            The Defendant:   I had a friend that was -- I lost a
            friend.



Id.   Appellant was then sentenced to back time for being in violation of

parole. (Id. at 8.)


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        Appellant attempts to argue that there was no way for counsel to know

what he could and could not hear during the revocation hearing. Again, the




                      Id. at 7.) Counsel then repeated what she had just told

the court. It is clear appellant understood and then asked a relevant follow-

up question.1


1
    This is the exchange:

              The Court: He was given FIR, [Forensic Intensive
              Recovery] he did not comply with the FIR program at
              all, and he was discharged for non-compliance, so
              even if he had a drug problem he was put in a place
              where he could address it, and with all the positive




              The Defendant: Not really no, not really.


              now?

              The Defendant: Yes.



              graduate and that this is your first time violating.
              The judge has imposed your back time.

              The Defendant: Meaning?

              The Court:
              to him.

Id. at 7.


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     While over the course of five pages there were a few instances where

appellant said he did not hear something, the trial court and counsel saw to

it that whatever appellant missed was repeated until he said he understood.




problems.2

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2014




2
 We note appellant admitted he violated the conditions of his parole when
he stated he knew he was not supposed to be smoking drugs. (Id. at 5-6.)


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