J-S50039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYLER ALLAN OBERT                          :
                                               :
                       Appellant               :   No. 457 WDA 2019

         Appeal from the Judgment of Sentence Entered March 5, 2019
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000737-2013


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 19, 2019

        Appellant, Tyler Allan Obert, appeals from the judgment of sentence of

two to five years of confinement which was imposed after the revocation of

his probationary sentence for statutory sexual assault and corruption of

minors.1 We affirm.

        On March 7, 2014, Appellant pleaded guilty to the aforementioned

charges. On April 23, 2014, Appellant was sentenced to time served (272

days) to 23 months and 29 days of confinement with a concurrent four years

of probation.        Appellant was immediately paroled, subject to multiple

conditions, including:         “[Appellant] shall undergo any mental health

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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 3122.1(a)(1) and 6301(a)(1)(i), respectively.
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counseling or therapy that is recommended for him and not discontinue the

same without the prior consent of the Adult Probation/Parole Department and

the counselors involved.” Order, 4/23/2014, at ¶ 4.2

       On May 24, 2017, following a hearing,3 the trial court found Appellant

violated the terms of his probation. Order, 5/24/2017, at 1. Appellant was

re-sentenced to five years of probation, and all prior conditions of his

probation were re-imposed. N.T., 5/24/2017, at 35; Order, 5/24/2017, at 1.

Appellant did not object when the trial court re-imposed the same conditions.

See N.T., 5/24/2017, at 35-36. When Appellant asked if the trial court would

consider an early termination, the trial court stated that it may consider it, if

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2 The notes of testimony from Appellant’s March 2014 guilty plea hearing and
his April 2014 sentencing hearing were not transcribed. Accordingly, we do
not know the underlying facts of this case, and we cannot determine what
Appellant was told by his counsel, the Commonwealth, or the trial court on
the record during his sentencing hearing, whether Appellant acknowledged
that he understood the terms of his probation, or whether he objected to any
of the conditions. Consequently, we must rely entirely upon the written
sentencing order.

This    omission    “encumbered      our    consideration  of   this  appeal.”
Commonwealth v. Medina, 209 A.3d 992, 994 n.3 (Pa. Super. 2019)
(quoting Erie Insurance Exchange v. Moore, 175 A.3d 999, 1005-06 (Pa.
Super. 2017)). “Ultimate responsibility for a complete record rests with the
party raising an issue that requires appellate court access to record
materials[,]” Note to Pa.R.A.P. 1921 – i.e., Appellant had the responsibility to
verify that all materials necessary for appellate review were made part of the
certified record, including the notes of testimony from his 2014 sentencing.
3At that hearing, Appellant’s parole agent testified that, when Appellant began
his parole, he had reviewed the terms of Appellant’s supervision with
Appellant, and Appellant had signed a form stating that he received the list of
conditions.    N.T., 5/24/2017, at 6-7.          The form was admitted as
Commonwealth’s Exhibit 1.

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Appellant “has all the counseling he needs[.]” Id. at 35. Appellant again did

not raise any objections to the mention of him receiving counseling. See id.

at 35-36. Appellant did not file post-sentence motions or a direct appeal.

        On May 11, 2018, Appellant filed his first, pro se PCRA petition. On

November 1, 2018, the PCRA court dismissed Appellant’s petition.             On

November 13, 2018, Appellant filed a timely appeal from the PCRA order.

        On January 9, 2019, during the pendency of that appeal, a notice of

alleged violations of probation (“NOAV”) was filed by the Adult Probation,

Parole, and Intermediate Punishment Department of Crawford County,

claiming that Appellant “had been unsuccessfully discharged from Sex

Offender Treatment at Project Point of Light [(‘PPL’)] back on November 15,

2018.” NOAV, 1/9/2019, at 1. On January 11, 2019, the trial court held a

Gagnon I4 hearing and entered an order that it “find[s] probable cause

[Appellant] violated his Probation.” Gagnon I Hearing Order, 1/11/2019.

        On February 27, 2019, an addendum to the NOAV was filed, alleging

that Appellant “was unsuccessfully discharged from the Regional Counseling

Center, Inc. [(‘RCC’)] on October 26, 2018.”        Addendum to the NOAV,

2/27/2019. Appellant had been attending RCC for mental health treatment.

N.T., 3/5/2019, at 7, 9.




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4   Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation hearings).

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     On March 5, 2019, the trial court held a Gagnon II hearing. At the

hearing, Agent Jeremy Oliver of the Pennsylvania Board of Probation and

Parole testified that Appellant had been discharged from mental health

treatment at RCC and from sex offender treatment at PPL. N.T., 3/5/2019, at

5-9; Trial Court Opinion, filed May 29, 2019, at 3. Agent Oliver added that

Appellant had been given the opportunity to re-enroll in PPL and written

instructions on how to do so, but Appellant never pursued the option. N.T.,

3/5/2019, at 15.

     During Agent Oliver’s testimony, when the Commonwealth moved for

admission of Appellant’s RCC discharge transition summary with attendance

sheet as Commonwealth’s Exhibit 1, id. at 8, the following exchange occurred:

     THE COURT:        Any objection?

     [DEFENSE COUNSEL]: Just one. Has this document been created
     by you?

     THE WITNESS:      No, sir. It was not.

     [DEFENSE COUNSEL]: Authentication, Your Honor? . . .

     [THE COURT:]      I’ll sustain the objection to the document.

Id. at 9-10.

     Christopher Johnston, the program clinician for PPL, confirmed that

Appellant had been discharged from that program in November 2018 due to

his lack of attendance at sex offender group therapy. Id. at 16-17, 20; Trial

Court Opinion, filed May 29, 2019, at 3.

     Appellant testified in his own defense that he is a Christian Scientist who

does not believe in mental health treatment and that he did not live within

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walking distance of RCC, had no access to public transportation to RCC, and

had only been able to reach RCC on days that medical transport was available

to him. N.T., 3/5/2019, at 50, 65-66.

     At the conclusion of the Gagnon II hearing, the trial court found

Appellant had violated the terms of his probation and proceeded immediately

to sentencing.   After hearing argument about sentencing, the trial court

stated:

     These are cases where I expect total compliance. You need to
     figure out a way to make sure that you do comply because the
     idea is before you go back on the street that we try to make sure
     that society is going to be protected from any issues that you have
     and if you get treatment, hopefully you won’t have any[]more sex
     offender issues, you’ll be able to control your mental health issues,
     but we can’t do that if you don’t cooperate and I know your
     position is that you’re cooperating and things just didn’t work out.
     That you couldn’t get there . . . I understand all of that, but you
     look at the whole circumstances and the totality of the
     circumstances, it’s just clear to me that you have not complied as
     you didn’t do back in May of 2017 when we violated you the first
     time.

     So looking at all of that I think it’s important that you understand
     and that society understands that you need to be – this needs to
     be taken seriously and the record we have here is that it’s not
     being.

Id. at 82-83. The trial court then re-sentenced Appellant to two to five years

of probation. Order, 3/5/2019.

     On March 12, 2019, Appellant filed post-sentence motions challenging

the sufficiency of the evidence and the discretionary aspects of sentencing.

Post-sentence Motions, 3/12/2019, at ¶¶ 2-3. On March 14, 2019, the trial




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court denied the post-sentence motions. On March 22, 2019, Appellant filed

this timely direct appeal.5

       On June 4, 2019, this Court affirmed the judgment of sentence from

Appellant’s earlier probation revocation. On July 5, 2019, Appellant filed a

petition for allowance of appeal with the Supreme Court of Pennsylvania,

which remains pending.6

       Appellant now presents the following issues for our review:

       [I.] Whether it is against the weight of the evidence to find
       [Appellant] was unsuccessfully discharged from [PPL] on
       November 15, 2018?

       [II.] Whether the Parole Board’s choice of recommending sex
       offender   therapy    for   [Appellant]    substantially   burdens
       [Appellant]’s religious practice as a Christian Scientist by
       compelling conduct which violates a specific tenet of his faith
       without a compelling state interest that is narrowly tailored?

       [III.] Whether there was sufficient evidence to prove [Appellant]
       was unsuccessfully discharged from [RCC] on October 26, 2018
       by a preponderance of the evidence?

       [IV.] Whether the [trial c]ourt abused its discretion in sentencing
       [Appellant] to two to five years of incarceration?

Appellant’s Brief at 6-7 (issues re-ordered to facilitate disposition) (suggested

answers omitted).

       “[I]n reviewing an appeal from a judgment of sentence imposed after

the revocation of probation, this Court’s scope of review includes the validity
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5Appellant filed his statement of errors complained of on appeal on April 22,
2019. The trial court entered its opinion on May 29, 2019.
6 We find no law – and neither party provides us with any – stating that a trial
court cannot find a defendant in violation of probation and impose a new
judgment of sentence during the pendency of an appeal in the same case.

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of the hearing, the legality of the final sentence, and if properly raised, the

discretionary aspects of the appellant’s sentence.”               Commonwealth v.

Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010).              “We review a sentence

imposed following a revocation of probation for an error of law or an abuse of

discretion.”    Commonwealth v. Flowers, 149 A.3d 867, 873 (Pa. Super.

2016).

        Preliminarily, we note that a challenge to the weight of the evidence is

not cognizable for an appeal from the revocation of probation.                   See

Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa. Super. 1988)

(stating that there was “no authority for appellant’s assumption that a

challenge to the evidence may be properly entertained on appeal from parole

revocation”);    Commonwealth            v.    Levenberg,   No.    2680   EDA   2018,

unpublished memorandum at 9 (Pa. Super. filed July 23, 2019) (“there is no

authority that indicates that we may entertain on appeal a challenge to the

weight of the evidence from a probation revocation by the trial court”);7 see

also Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (explaining the

procedural distinctions between a trial and a hearing about the revocation or
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7   Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):

        (1) As used in this rule, “non-precedential decision” refers to an
        unpublished non-precedential memorandum decision of the
        Superior Court filed after May 1, 2019 or an unreported
        memorandum opinion of the Commonwealth Court filed after
        January 15, 2008.

        (2) Non-precedential decisions as defined in (b)(1) may be cited
        for their persuasive value.

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violation of parole or probation); Kuykendall, 2 A.3d at 563 (scope of

appellate review does not include weight of the evidence claims). Accordingly,

Appellant’s first issue fails.

      Additionally, Appellant has failed to preserve his second issue

challenging the condition of his probation that he “undergo any mental health

counseling or therapy that is recommended for him[,]” Order, 4/23/2014, at

¶ 4, as there is nothing in the record to suggest that Appellant objected to

this condition of his probation at the time of his original sentencing in 2014 or

his re-sentencing following his first violation of probation hearing in 2017.

This issue thus is waived.

                          Sufficiency of the Evidence

      Turning to Appellant’s surviving questions, he contends that the

“Commonwealth’s evidence is insufficient to prove [he] was unsuccessfully

discharged from” RCC. Appellant’s Brief at 13.

      Agent Oliver testified that Appellant had been discharged from the

mental health treatment program at RCC, N.T., 3/5/2019, at 6-8, and no

evidence was admitted contradicting his testimony.          This evidence was

sufficient to support the trial court’s finding that Appellant had not completed

this condition of his probation.

      To the extent that Appellant is now attempting to argue that all of Agent

Oliver’s testimony about Appellant’s discharge from RCC “should have been

excluded pursuant to Appellant’s objection,” Appellant’s Brief at 15, Appellant

failed to preserve this challenge, because he only objected to the admission

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of the RCC discharge transition summary as an exhibit and not to all of Agent

Oliver’s testimony about the RCC discharge. N.T., 3/5/2019, at 9. The trial

court also explicitly stated that it “sustain[ed] the objection to the document”

and not the entirety of Agent Oliver’s testimony on this matter. Id. at 10

(emphasis added). If there had been any ambiguity as to the extent of the

trial court’s decision, Appellant could have requested a clarification after the

trial court specifically referred to “the document[,]” but Appellant failed to do

so. Id.

      We also observe that Appellant does not challenge the sufficiency of the

evidence to find that he was unsuccessfully discharged from sex offender

treatment at PPL. See Appellant’s Brief at 13-17.       Even assuming that we

were to accept Appellant’s claim that the evidence was insufficient to support

the finding that he had been unsuccessfully discharged from RCC for mental

health treatment, he still failed to complete his sex offender treatment and,

consequently, violated the condition of his probation that he “undergo any

mental health counseling or therapy that is recommended for him and not

discontinue the same without the prior consent of the Adult Probation/Parole

Department and the counselors involved.”           Order, 4/23/2014, at ¶ 4

(emphasis added). Ergo, even without any findings about Appellant’s failure

to complete his therapy with RCC, the revocation of Appellant’s probation was

still proper based upon his failure to complete his treatment with PPL alone.




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                                 Sentencing

      Next, Appellant challenges the discretionary aspects of his sentence.

Appellant’s Brief at 25-26.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (1) whether appellant has filed a
      timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
      the issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
      whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
      (4) whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). In the current case, Appellant filed a timely notice of appeal, preserved

his issue in a post-sentence motion, and included a statement in his brief

pursuant to Pa.R.A.P. 2119(f).       Appellant’s Brief at 10-12.      The final

requirement, whether the question raised by Appellant is a substantial

question meriting our discretionary review, “must be evaluated on a case-by-

case basis. A substantial question exists only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Manivannan, 186 A.3d at 489 (quotation marks and some citations

omitted). Appellant maintains:


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      Here, the sentence was manifestly excessive in light of the
      conduct at issue, making it contrary to the fundamental norms
      which underlie the sentencing process. The conduct at issue was
      missing a few mental health counseling meetings due to
      transportation issues and being discharged from sex offender
      treatment due to his probation officer telling them to after
      [Appellant] failed to bring in doctor’s excuses.

Appellant’s Brief at 11.   This issue presents a substantial question for our

review. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.

2013) (claim that a sentence is excessive in light of the conduct at issue raises

a substantial question); Commonwealth v. Ferguson, 893 A.2d 735, 737

(Pa. Super. 2006) (appellant “presented a statement of reasons for allowance

of appeal arguing . . . that his sentence of total confinement and 36 years of

probation were manifestly excessive”; this issue presents a substantial

question).

      Having   found   that   Appellant’s   sentencing   challenge   merits   our

discretionary review, we turn to Appellant’s specific claim that “the mitigating

circumstances that were brought to light at the hearing show a much less

severe re-sentence is necessary” and that “[i]t was manifestly excessive

unreasonable, and contrary to the fundamental norms which underlie the

sentencing process to sentence [Appellant] to an extended state sentence[.]”

Appellant’s Brief at 25.

      “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.




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Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (quotation marks and citations

omitted).

      [A]n abuse of discretion is not shown merely by an error in
      judgment. Rather, the appellant must establish, by reference to
      the record, that the sentencing court ignored or misapplied the
      law, exercised its judgment for reasons of partiality, prejudice,
      bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation

omitted).

      Appellant has not made any claims that the trial court has ignored or

misapplied the law or has shown partiality, prejudice, bias, or ill will.   Id.

Furthermore, the trial court articulated its reasons for giving Appellant his

current sentence, N.T., 3/5/2019, at 82-83, which were supported by the

record, including its consideration of Appellant’s “position that [he was]

cooperating and things just didn’t work out[,]” id. at 83; we thus cannot find

that the trial court arrived at an unreasonable decision. See Lekka, 210 A.3d

at 350. Therefore, Appellant has failed to demonstrate a manifest abuse of

discretion, and we thereby will not disturb Appellant’s sentence on appeal. Id.

                                 *     *      *

      Based on the foregoing, Appellant is not entitled to relief on any of his

issues. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2019




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