J-S41041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

QURAN HERRINGTON,

                         Appellant                  No. 2635 EDA 2015


           Appeal from the Judgment of Sentence July 28, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004001-2012

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED MAY 23, 2016

      This is an appeal from the judgment of sentence entered by the Court

of Common Pleas of Philadelphia County after the revocation of Appellant

Quran Herrington’s probation and parole.       Appellant claims there was

insufficient evidence to support the revocation and contends that the lower

court erred in imposing a new sentence of confinement when Appellant had

not been convicted of a new offense. After careful review, we affirm.

      On May 21, 2014, Appellant entered a negotiated guilty plea to

Terroristic Threats, Contempt for Violation of a Protection Order, and Simple

Assault in connection with his arrest for allegations of domestic violence

upon Fatimah Stafford, the mother of one of his children.     The trial court

sentenced Appellant to 11½ months to 23 months imprisonment to be

followed by five years reporting probation.



*Former Justice specially assigned to the Superior Court.
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      The trial court directed Appellant to attend Anger Management classes

during his parole or probationary period and agreed to allow Appellant to

report to his parole/probation officer by telephone so that Appellant could

play professional basketball outside of the United States.    The trial court

emphasized to Appellant that his negotiated accommodation of telephone

reporting was unusual and stressed the potential consequences of violating

the terms of supervision. Appellant received credit for time served and was

granted immediate parole.

      On March 8, 2015, Appellant was arrested for knowing and intentional

possession of a controlled substance when officers confiscated crack cocaine

from his person during a traffic stop.     Appellant’s violation of probation

hearing was bifurcated and held on April 2, 2015 and May 18, 2015.

Philadelphia Police Officer Leonard Lackey testified that he personally seized

crack cocaine from Appellant’s person during the March 8th traffic stop. In

addition, Appellant’s probation officers testified that Appellant did not

properly report by telephone in December 2014 and January 2015.

Although Appellant had been instructed to call the officers at specific times,

Appellant did not do so but called the officers and left voicemails when the

officers could not answer.

      The lower court found Appellant to be in violation of his probation and

deferred sentencing to allow for a mental health evaluation and a

presentence report.    On July 28, 2015, the lower court held Appellant’s

sentencing hearing, observing that while Appellant was incarcerated, he was

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placed in the Disciplinary Segregation Unit for assaulting staff members,

engaging in sexual acts, violating rules, and disturbing other inmates. The

lower court also noted that Appellant told the presentence investigator that

he was impulsive, had trouble controlling his anger, and considered methods

to commit homicide.     Appellant also gave the investigator contradictory

statements about his abuse of controlled substances.

      After reviewing the aforementioned information, the lower court

sentenced Appellant to two to five years incarceration for the Terroristic

Threats conviction and two years probation on the Simple Assault conviction.

Appellant filed this timely appeal and complied with the lower court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

      1. The court erred in finding [Appellant] in violation of his
         supervision for failing to report to his probation officers by
         phone where the evidence was insufficient to find that
         [Appellant] intentionally failed to report by phone.

      2. The court erred by finding [Appellant] guilty of a direct
         violation of his supervision where [Appellant] had not been
         convicted of a new offense.

Rule 1925(b) Statement.

      The scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings,

the legality of the sentence imposed following revocation, and any challenge

to the discretionary aspects of the sentence imposed. Commonwealth v.


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Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). “A court may

revoke an order of probation upon proof of the violation of specified

conditions of the probation.   42 Pa.C.S. § 9771(b).     Our Supreme Court

have repeatedly acknowledged that this is a broad standard as “[a]

probation violation is established whenever it is shown that the conduct of

the probationer indicates [that] the probation has proven to have been an

ineffective vehicle to accomplish rehabilitation and not sufficient to deter

against future antisocial conduct.”   Commonwealth v. Infante, 585 Pa.

408, 420, 888 A.2d 783, 791 (2005).         “[T]he Commonwealth need only

make this showing by a preponderance of the evidence.” Commonwealth

v. Ortega, 995 A.2d 879, 886 (Pa.Super. 2010).

      Appellant first claims there was insufficient evidence to show he failed

to comply with his reporting requirement as he contends he left voicemails

when a probation officer could not answer. The lower court found credible

the testimony of Appellant’s probation officer, averring Appellant was

instructed to call the office to report at specific times in December 2014 and

January 2015, but Appellant refused to follow these directions.    Moreover,

the lower court emphasized how it had stressed to Appellant in imposing the

probation that it was lenient and unusual for a defendant to be given the

freedom of reporting to probation by phone and had fully informed Appellant

of the consequences of his failure to report. This Court has held that even

technical violations are sufficient to trigger revocation. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa.Super. 2000) (upholding the revocation of

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probation based on the appellant’s failure to properly report for scheduled

appointments with parole officer).       We agree that this evidence was

sufficient for the trial court to conclude that Appellant had violated

conditions of his probation.

      Moreover, as Appellant’s arrest for possession of crack cocaine is

strong indicator that his probationary sentence was not serving the desired

goal of rehabilitation, the lower court was further justified in revoking

Appellant’s probation.   Although Appellant points out that he was never

convicted of knowing and intentional possession of the cocaine, “[i]t is well

settled that a probation violation hearing may be conducted prior to a trial

for the criminal charges based on the same activities.” Commonwealth v.

Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (quoting Commonwealth v.

Brown, 503 Pa. 514, 469 A.2d 1371, 1375 (1983)). As noted above, the

Commonwealth need only prove a violation of probation by a preponderance

of the evidence, not beyond a reasonable doubt.       A violation of probation

hearing also differs from a criminal trial in the following manner:

             The focus [of] a probation hearing, even though prompted
      by a subsequent arrest, 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 anti-social conduct.        It must be
      emphasized that a probation revocation hearing is not a trial:
      “The court's purpose is not to determine whether the probationer
      committed a crime.... It follows that probation revocation
      hearings are flexible, and material not admissible at trial may be
      considered by the court. The degree of proof necessary for
      probation revocation is less than that required to sustain a



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      criminal conviction. Probation may be revoked on the basis of
      conduct which falls short of criminal conduct.

Castro, 856 A.2d 178, 180 (Pa.Super. 2004) (quoting Commonwealth v.

Spinozzi, 345 A.2d 181, 182-83 (Pa.Super. 1975)).

      As Appellant’s possession of crack cocaine showed that probation had

been ineffective at deterring criminal conduct, the lower court had sufficient

grounds for the revocation of Appellant’s probation. See Castro, 856 A.2d

at 181 (finding that Commonwealth’s proffer of eyewitness testimony of the

arresting officer to the appellant’s participation in a drug transaction was

sufficient evidence to show a violation of probation); Commonwealth v.

Donato, 508 A.2d 1256, 1261 (Pa.Super. 1986) (upholding the revocation

of probation where the criminal charges related to the relevant conduct were

dismissed due to the suppression of evidence, which was still admissible at

the revocation hearing).

      To the extent that Appellant may be arguing that the trial court had no

authority to impose a sentence of total confinement when he had not been

convicted of a new offense, we find this claim to be meritless. Section 9771

provides in relevant part:

      (c) Limitation on sentence of total confinement. -- The
      court shall not impose a sentence of total confinement upon
      revocation unless it finds that:
      (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 the
      court.

42 Pa.C.S. § 9771(c) (emphasis added).


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      While Appellant had not been convicted of another crime while on

probation, the lower court suggested that Appellant’s conduct showed that

he would likely commit another offense and that confinement was necessary

to vindicate the court’s authority.     As noted above, the lower court noted

that Appellant disregarded the lenient probation reporting requirement he

was given and failed to properly report to his probation officers.          The lower

court found that Appellant’s arrest for “the possession of mind-altering

narcotics    while   under   the   Court’s   probation   or   parole   is   obviously

counterproductive to the supervisory efforts that had been put in place to

rehabilitate [Appellant] and to deter his commission of future and anti-social

acts.” Trial Court Opinion, 1/14/16, at 10. The lower court also emphasized

that Appellant committed significantly serious disciplinary infractions while

incarcerated pending sentencing which caused him to be placed in the

Disciplinary Segregation Unit and Appellant had expressed anger and

homicidal thoughts to the presentence investigator.

      Although the lower court did not specifically cite to the language in

Section 9771 when setting forth its reasons for revoking Appellant’s

probation, it provided ample reasons to infer that the trial court believed

that incarceration was necessary to avoid a future crime and to vindicate its

authority.     See Commonwealth v. Aldinger, 436 A.3d 1196, 1200

(Pa.Super. 1981) (upholding lower court’s sentence of total confinement

after revocation of probation even though court did not state on the record

its reliance on Section 9771(c) as there was evidence that the appellant had

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violated probation by using drugs).       Accordingly, the lower court was

justified in imposing a sentence of total confinement upon revocation.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2016




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