J-S43017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MICHAEL FRAZIER

                          Appellant                  No. 2501 EDA 2014


            Appeal from the Judgment of Sentence July 22, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000845-2010
                                       CP-51-CR-0016326-2009
                                       CP-51-CR-0016337-2009
                                       CP-51-CR-0016338-2009
                                       CP-51-CR-0016339-2009


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 28, 2015

      Appellant, Michael Frazier, appeals from the judgment of sentence

entered following the revocation of his probation on July 22, 2014, by the

Honorable Genece E. Brinkley, Court of Common Pleas of Philadelphia

County. We affirm.

      The facts and procedural history of this matter are well known to the

parties, so we rely upon the revocation court’s recitation of facts as set forth

on pages 1-4 of the Pa.R.A.P. 1925(a) opinion filed October 30, 2014.

Briefly, Frazier tested positive for marijuana on sixteen occasions while

serving probation.    Following a violation of probation hearing on July 22,

2014, at which the revocation court reviewed Frazier’s history of failing to
J-S43017-15



comply with the terms and conditions of his probation and positive drug

tests, the court found Frazier in technical violation of his probation.     After

hearing testimony from Frazier and his probation officer, the court revoked

Frazier’s probation and sentenced him to 11½ to 23 months’ county

incarceration, followed by 3 years’ probation.       The court further instructed

Frazier to complete drug treatment, mental health treatment, parenting

classes, anger management treatment and job training while incarcerated.

This timely appeal followed.1         Both the revocation court and Frazier have

complied with Pa.R.A.P. 1925.

       Frazier raises the following issues for our review.

       1. Did not the lower court err in not [sic] enforcing a subpoena
          and causing to appear at the defendant’s parole/probation
          violation hearing a staff person from the recovery house at
          which the defendant resided who could have testified as to
          whether the defendant was being given his prescribed
          psychiatric medications as required by the medically approved
          administration schedule for those medications?

       2. In light of counsel’s assertion that the defendant appeared
          unable to provide reliable information due to his cognitive
          deficiencies and psychiatric disabilities, and was therefore
          unable to effectively assist his attorney in his own
          representation, and in light of the defendant’s demonstrated
          cognitive deficiencies at the parole/probation violation
          hearing, did not the lower court err in failing to order a
          competency exam before conducting a violation hearing and

____________________________________________


1
  Frazier filed motions for reconsideration of sentence on August 1, 2014,
and August 19, 2014, prior to filing his notice of appeal on August 20, 2014.
The revocation court did not dispose of those motions prior to the filing of
the instant appeal.



                                           -2-
J-S43017-15


          before sentencing to assist the court in determining whether
          the defendant was competent?

Appellant’s Brief at 4.

      Whether a subpoena shall be enforced rests in the discretion of the

trial court. See Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super.

2012) (citation omitted).    “We will not disturb a discretionary ruling of a

[revocation] court unless the record demonstrates an abuse of the court's

discretion.” Id. “An abuse of discretion may not be found merely because

an appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly erroneous.” Commonwealth v.

Flowers, 113 A.3d 1246, 1254 (Pa. Super. 2015) (citation omitted). “So

long as there is evidence which supports the [revocation] court’s decision, it

will be affirmed.” Walsh, 36 A.3d at 620 (citation omitted).

      “A defendant is presumed to be competent to stand trial, and the

burden is on the defendant to prove by a preponderance of the evidence

that he is incompetent to do so.” Commonwealth v. Blakeney, 108 A.3d

739, 752 (Pa. 2014) (citation omitted), cert. denied, 135 S.Ct. 2817

(2015).

      Competency to stand trial is measured by the relationship
      between counsel and client: To be deemed competent, the
      defendant needs to have the ability to consult with counsel with
      a reasonable degree of understanding, in order to participate in
      his defense, and he must be able to understand the nature or
      object of the proceedings against him. The focus is properly on
      the defendant’s mental capacity, i.e., whether he has the ability
      to understand the proceedings.


                                      -3-
J-S43017-15



Id.   (internal   citations   omitted).     We      review   a    revocation   court’s

determination as to competency with great deference because he or she had

the   opportunity    to   observe   directly    a   defendant's    behavior.     See

Commonwealth v. Pruitt, 951 A.2d 307, 316 (Pa. 2008).

      We have reviewed Frazier’s issues raised on appeal, along with the

briefs of the parties, the certified record, and the applicable law. Having

determined that the Honorable Genece E. Brinkley’s October 30, 2014

opinion ably and comprehensively disposes of Frazier’s issues raised on

appeal, with appropriate reference to the record and without legal error, we

will affirm on the basis of that opinion.           See Revocation Court Opinion,

10/30/14 at 5-9 (finding: 1) whether Frazier was receiving his psychiatric

medication from his recovery house had no bearing on whether Frazier was

in repeated technical violation of his probation such that subpoenaed

witness’s presence was unnecessary and irrelevant to the probation

revocation proceedings; and 2) Frazier was previously found to be

competent but in need of mental health treatment on two prior occasions,

and Frazier’s ability during the proceedings to respond coherently to

questions and offer numerous, coherent explanations and defenses for his

actions indicated his ability to understand the nature of the proceedings and

to assist in his defense).

      Judgment of sentence affirmed.




                                          -4-
J-S43017-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




                          -5-
                                                                              Circulated 08/04/2015 01:54 PM




                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             CRIMINAL TRIAL DIVISION


 COMMONWEALTH                                                       CP-51-CR-0016326-2009
                                                                    CP-51-CR-0016337-2009
                                                                    CP-51-CR-0016338-2009
                                                                    CP-51-CR-0016339-2009
        vs.                                                         cP-51 ~CR-0000845-201o

                                      FILED
                                       OCT .8 0 2014                SUPERIOR COURT
MICHAEL FRAZIER                  .. CriminalAJDPeals Unit           2501 EDA 2014
                               FirstJudtcial Districtof PA

BIU~EY,J.                                                           OCTOBER 29, 2014

                                           OPINION

       Defendant Michael Frazier appeared before this Court for a violation of probation bearing

on July 22, 2014. This Court found him in technical violation of his probation and sentenced him

to 11 Y2 to'23 months county incarceration plus 3 years probation. Defendant appealed this

sentence to the Superior Court and raised the following issues on appeal: (1) whether the VOP

court erred in not requiring a staff member from Defendant's recovery house to testify; and (2)

whether the VOP court erred in failing to order a competency evaluation for Defendant.

                          FACTS AND PROCEDURAL HISTORY

       On January 26, 2009, Defendant was arrested and charged with five counts of burglary

and five counts of criminal conspiracy. On September 23, 2010, Defendant pied guilty to all five

counts of each charge and received a negotiated sentence of 11 ~ to 23 months incarceration plus

5 years reporting probation on each charge, to run concurrently to one another, with immediate

paroleto house arrest. On February 15, 2012, Defendant was arrested and charged with


                                              ·.1.

                                         Exhibit "A"
                                                                                Circulated 08/04/2015 01:54 PM




 burglary, criminal trespassing and theft by unlawful taking of moveable property. On October

 17, 2012, these charges were nolle prossed. On November 7, 2012, this Court held a VOP

 hearing and Defendant wasfound to be in technical violation of his parole. Parole was revoked

 and Defendant was sente.nced to serve the balance of his back time with immediate parole to

Kirkbride dual diagnosis inpatient treatment program. On June 4, 2013, Defendant tested

positive for marijuana. Defendant subsequently tested positive for marijuana on every urinalysis

administered from September 17, 2013 to July 17, 2014, for a total of sixteen positive tests for

marijuana.

       · On July 22, 2014, this Court held a VOP hearing. Defendant was represented at the

hearing by Randi Fensterer, Esquire, while the Commonwealth attorney was Jack O'Neill,

Esquire. After this Court reviewed Defendant's history of failing to comply with the terms 'and

conditions of probation and positive drug tests, this Court found him in technical violation of his

probation. Ms. Fensterer, on Defendant's behalf, requested that this Court consider a sentence

that would not involve incarceration. Ms. Fensterer stated that Defendant had an intellectual
                                .                                                                   .
disability 'and psychiatric problems, and therefore his ability to fully comply with the terms and

conditions of his probation was compromised. Ms. Fensterer further requested that if the Court

was not willing to consider a new period of probation, then Defendant should receive a short

sentence of county incarceration. (N.T. 7/22/2014 p.7~31)

       Jl1r. O'Neill, ori behalf of the Commonwealth, requested that Defendant be given a period

of incarceration. Mr. O'Neill pointed out that Defendant was convicted of multiple counts of

burglary and received a very generous offer from the Commonwealth: Furthermore, Mr. O'Neill

stated that Defendant had shown previously through his behavior that he was capable of

complying With the terms and. conditions of his probation. Mr. O'Neill stated that, despite this,


                                                 2
                                                                                 Circulated 08/04/2015 01:54 PM




 Defendant continued to use marijuana because he simply did not feel like complying with the

 terms and conditions of his probation. Mr. O'Neill stated that Defendant's behavior had shown

 that probation would not work because Defendant did not want it to work. Id. at 31-32.

         Probation Officer Tanyikia Alston spoke next. Ms. Alston stated that she was not

 inclined to say that Defendant needed to go to jail, but his continued marijuana smoking showed

 a lack of respect towards the authority of this Court. Ms. Alston stated that she no longer knew

how to handle Defendant' s drug problem because he continued to smoke marijuana even after

being warned not to by this Court. Id. at 32.

        Defendant then spoke on his own behalf. Defendant stated that he was not refusing to

pay his fines and costs and, although he was falling behind in his payments, his mother would

pay what was due. Defendant stated that he did not want to go to jail and he did not smoke

marijuana out of disrespect to this Court.' Defendant stated that he did not like to smoke

marijuana, but he smoked it because he had a problem controlling his temper. Defendant further

stated that he had never refused to take his medication. He stated that when he would get his

prescription filled, he would take the medication back to his recovery house where it would be

confiscated by the house manager. Defendant stated that, when he did receive his medication, it

took away his urge to smoke marijuana. Defendant further stated that he did not know what

caused him to relapse and begin smoking marijuana again. Defendant then thanked this Court

for the support it had provided him throughout the years. Defendant stated that he did not take

this support for granted. Defendant then stated that he was going to start independent living later

this year and would be working soon. He further stated that he was on pace with his drug and

alcohol treatment pro grams and he was compiling a portfolio of his artwork in order to apply to

the Art Institute of Philadelphia. Id. at 33-36.



                                                   3
                                                                                Circulated 08/04/2015 01:54 PM




        This Court revoked Defendant's probation and sentenced him to 11 V7. to 23 months

county incarceration plus 3 yearsprobation, This Court stipulated that he serve his sentence at

Hoffman Hall and complete drug treatment, mental health treatment, parenting classes, anger

management and job training while incarcerated. This Court emphasized to Defendant that he

would be in jail until he completed all the programs that this Court ordered him to complete

while incarcerated, This Court then reviewed the various programs outside of jail that this Court

previously had ordered for Defendant to aid his rehabilitation. This Court stated that Defendant

had a problem taking responsibility for his own actions and consistently blamed others for his

own failure to comply with the terms and conditions of his probation. This Court stated that it

hoped his new sentence of incarceration would force Defendant to take his drug problems

seriously because he would remain in prison until he completed his rehabilitative programs. This

Court further stated that if Defendant continued to not comply with the terms and conditions of

his probation after this sentence then he would serve the remaining time on his charges in state

incarceration, Id. at 36~40.

        On August   1, 2014, Defendant, through counsel, filed a motion to reconsider sentence.

On August 20, 2014, Defendant appealed his sentence to Superior Court. On September 15,

2014, Defendant was ordered to file a Concise Statement of Errors pursuant to Pa.R.A.P.

1925(b), and defense counsel did so on October 6, 2014.

                                             ISSUES

       I.      WH~THER THE VOP COURT ERRED IN NOT REQUIRING A STAFF
               MEIVIBER FROM DEFENDANT'S RECOVERY HOUSE TO TESTIFY AT
               THE HEARING.

       II.     WHETHER THE VOP COURT ERRED INF AILING TO ORDER A
               COMPETENCY EVALUATION FOR DEFENDANT.




                                                 4
                                                                                   Circulated 08/04/2015 01:54 PM




                                            DISCUSSION

         I.      THE VOP COURT DID NOT ERR IN NOT REQUIRING A STAFF
                 PERSON FROM DEFENDANT'S RECOVERY HOUSE TO TESTIFY.

         This Court did not err in not requiring a staff person from Defendant's recovery house to

  testify because it was the responsibility of the defense to present its own witnesses, and the

  defense failed to do so. Furthermore, Defendant was in technical violation of his probation and

 any testimony from a staff person at his recovery house to testify as to whether Defendant was

 receiving his medication would not have had any bearing on whether Defendant was in technical

 violation of his probation. It is well established that probation revocation requires a truncated

· hearing by the sentencing court to determine whether probation remains rehabilitative and

 continues to deter future antisocial conduct. Commonwealth v. Holder, 569 Pa. 474, 805 A.2d

 499, 504 n. 7 (2002) (citing 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure§ 26.6(b)

 at 261 1984)). At a probation revocation hearing, a defendant is entitled to the following: (1)

 written notice of the claimed violations of his probation; (2) disclosure of'the evidence against

 him; (3) an_ opportunity to be heard in person and to present witnesses and documentary

 evidence; (4) ~ neutral hearing body; (5) a written statement by the fact-finder as to the evidence

 relied on and the reasons for revoking probation; and (6) cross-examination of adverse witnesses,

 unless the hearing body specifically finds good cause for not allowing confrontation. Id. (citing

 Black v. Romano, 471 U.S. 606, 611~612, 105 S. Ct. 2254, 2258, 85 L. Ed. 2d 636 (1985)). The

 defendant is not entitled to strict application of the rules of evidence or procedure, including the

 Fourth and Fifth Amendment exclusionary rules. Id. (citing Commonwealth v. Kates, 452 Pa.

 102, 305 A.2d 701, 710 (Pa. 1973)).

        In Pennsylvania, parole and probation are intended to "provide a means to achieve

 rehabilitation without resorting to incarceration." Commonwealth v. Ballard, 2003 PA Super. 2,

                                                  5
                                                                                Circulated 08/04/2015 01:54 PM




 814 A.2d 1242, 1245 (2003) (citing Del Conte, 419 A.2d at 780)). When deciding whether to

revoke parole/probation, the court must balance "the interests of society in preventing future

criminal conduct by the defendant against the possibility of rehabilitating the defendant outside

of prison." Id. Thus, a "violation is established whenever it is shown that the conduct of the

probationer has indicated that probation has proven to be an ineffective vehicle to accomplish

rehabilitation and not sufficient to deter against future antisocial conduct." Commonwealth v.

Infante, 585 Pa. 408, 421, 888 A.2d 783, 791 (2005) (quoting Commonwealth v. Brown, 503 Pa.

~14, 524, 469 A.2d 1371, 1376 (1983)).

        In:the case at bar, the record reflects that Defendant was not denied any rights to which

he was entitled at his hearing. Defendant and counsel knew well in advance from prior status

listings that whether he was taking his medication might be at issue at this hearing. As this Court

noted, Defendant repeatedly had offered a variety of excuses as to why he did not take his

medication, including claiming that his house manager was not giving them to him, since 2012.

(N.T. 7/22/2014 p. 27). Sometimes Defendant would say his house manager was not giving him

his medication. Other times Defendant would say he picked up his own medication from the

pharmacy, Defendant had ample notice that his medication might be-at issue at this VOP hearing.

Thus, if Defendant wanted his house manager to be present at this VOP hearing, he should have

been sent a subpoena. Therefore, Court was under nci obligation to allow Defendant more time to

arrange for this witness to appear.

       Furthermore, as this Court noted, at this point in 2014, whether Defendant was receiving

his medication from his recovery house had no bearing on Defendant being found in technical

violation of his probation. Defendant was found in technical violation as a result of his repeated

marijuana abuse and continued thumbing of his nose at this Court. As this Court stated to



                                                 6
                                                                                Circulated 08/04/2015 01:54 PM




  Defendant, "Why are you still testing positive for marijuana? That has nothing to do with your

 mental health meds. Marijuana is a different drug." Id. at 13. This Court further stated wth regard

 to his medication,

                "That's not the real issue here. The real issue here is he does
                not want to comply ... He didn't comply when he was at his
                grandmom's, He didn't comply when he was other places on
                house arrest. Every time I let him in here and let him out he
                come in here with some kind of excuse about why he didn't
                take his meds. Then he blamed his house manager ... He's
                blamed his mother as the payee for not paying anything on
                fines and costs. He's blaming the people in the house for him
                smoking marijuana. He's blaming the house manager for not
                giving him the meds when he goes to the pharmacy to pick up
                the meds himself ... When he feels like taking his meds he takes
                them. When he feels like using marijuana he does." ·

 Id. at 26-30. The record reflects that Defendant continued to smoke marijuana and failed to

 comply with the terms and conditions of his probation regardless of whether he received his

 medication or not. Furthermore, Defendant's claim that the medication took away his urge to

 smoke marijuana was without merit. During the time period in which Defendant was in control

 of his medication he nonetheless tested positive for marijuana on every single urinalysis

. administered during that time. The record, therefore, was sufficient to prove that probation was

 not serving to rehabilitate Defendant and deter against future antisocial conduct, independent of

 any testimony that could have been provided by a staff member of his recovery house.

        II.     THE·VOP COURT DID NOT ERR IN NOT ORDERING A
                COMPETENCY
                    .      I
                             EVALUATION FOR DEFENDANT.

        This Court did not err in not ordering a competency evaluation prior to terminating

Defendant's probation and sentencing him to 11 Yz to 23 months county incarceration. A

defendant is presumed to be competent to stand trial. Thus, the burden is on the defendant to

prove, by a preponderance of the evidence, that he was incompetent to stand trial.



                                                 7
                                                                                  Circulated 08/04/2015 01:54 PM




 Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 694 (2004). A defendant is legally

incompetent ifhe is substantially unable to understand the nature or object of the proceedings

against him or to participate and assist in his defense. Commonwealth v. Bomar, 573 Pa. 426,

 ~26 A.2d 831, 860 (2003) (citing Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 277

(2002)). A determination of a defendant's competency rests in the sound discretion of the trial

court and can be disturbed on appeal only on a showing of an abuse of that discretion. Id. (citing

Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891, 899 (1997)). An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the law Js over ridden or misapplied, .

or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or

ill-will, as shown by the evidence or the record, discretion is abused. Commonwealth v. Walker,

92 A.3d 766, 772 .. 73 (Pa. 2014). Furthermore, a trial judge's competency determination should

be afforded great deference because the judge had the opportunity to personally observe the

defendant's behavior. Bomar, 826 A.2d at 860.

       In the case at bar, this Court determined through its observation of Defendant's behavior

a~ the hearing that Defendant was able to understand the nature of the proceedings and assist in

his defense. As this Court noted in evaluating Defendant's competency,

               "He understands everything that he said today. He understands
               exactly what's going on. He's conversed with [defense counsel]
               in a coherent way. He's conversed with the [probation officer]
               in a coherent way. He stated on the record what he wants to
               happen to him. He's always very articulate when he talks about
               what he's done and what he wants to happen ... There's no issue
               about him not understanding what this proceeding is and he does
               understand it."

(N.T. 7/22/2014 p. 40AI). Throughout the hearing, Defendant was able to respond coherently

and on point to the questions of this Court, defense counsel and the probation officer.

Furthermore, Defendant was able to offer numerous, coherent explanations and defenses for the

                                                 8
                                                                                Circulated 08/04/2015 01:54 PM




actions he took, and was able to understand why he was not allowed to smoke marijuana and the

consequences for doing so. As this Court further noted, Defendant previously had received a

mental health evaluation on October 11, 2011 and a Forensic Intensive Recovery Program

evaluation on April 10, 2012. At both of these evaluations, Defendant was found to be

competent but in need of mental health treatment, In addition, Defendant complied with the

terms and conditions of his sentence in the past and had consistently done just enough to warrant

a continuation of his probation. Defendant's behavior, therefore, indicated that he was able to

understand the nature of the proceedings and to assist in his defense. Therefore, this Court did

not abuse its discretion in finding that Defendant understood everything which occurred during

the VOP hearing and ably assisted his attorney with his defense on the record. Thus, no

competency evaluation was necessary and the Court did not err in not ordering one for

Defendant.




                                                9
                                                                                Circulated 08/04/2015 01:54 PM




                                         CONCLUSION

       After a review of the applicable statutes> case law and testimony, this Court committed no

error. This Court did not err in not requiring a staff member from Defendant's recovery home to

be present to testify. Furthermore, this Court did not err in not ordering a competency evaluation

for Defendant. Accordingly, this Court's judgment of sentence should be affirmed.
