J-S32011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ALBERT P. PUSATERI,

                        Appellant                  No. 1210 WDA 2014


           Appeal from the Judgment of Sentence July 7, 2014
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0001338-2004


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 11, 2015

      Appellant, Albert P. Pusateri, appeals from the judgment of sentence

entered on July 7, 2014, following the revocation of his probation.     We

affirm.

      The record reveals that on June 9, 2004, Appellant approached a

seventeen-year-old female (“the victim”) on a sidewalk near his home in

Butler, Pennsylvania.   Affidavit of Probable Cause, 6/10/04, at 1; N.T.,

Sentencing, 10/18/05, at 4.        Appellant requested a cigarette from the

victim, but she informed him that she did not have any. N.T., Sentencing,

10/18/05, at 4. Appellant then offered the victim money to come inside his

house, but she refused.   Id.   At this point, Appellant grabbed the victim,

dragged her inside his house, barricaded the door so that she could not

escape, removed her clothing, and sexually assaulted her. Id. at 5.
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      Appellant     was    subsequently    arrested     and   charged   with   rape,

kidnapping, unlawful restraint, aggravated indecent assault, and simple

assault.   Complaint, 6/23/04.      On January 27, 2005, Appellant entered a

guilty plea to one count of aggravated indecent assault.            On October 18,

2005, Appellant was determined to be a sexually violent predator (“SVP”),

and the trial court sentenced Appellant to a term of thirty-six to ninety

months of incarceration followed by thirty months of probation.                N.T.,

Sentencing, 10/18/05, at 14.

      Appellant was not paroled, and as his maximum sentence and release

date approached, he was required to provide the Pennsylvania Board of

Probation and Parole (hereinafter “the Board”) an approved home plan

identifying where he would live during his thirty months on state-supervised

special probation.      However, as Appellant is an SVP, the home plans he

suggested were not acceptable to the Board due to those residences being

located    close   to   schools   and   parks   where    children   gather.    N.T.,

Revocation/Sentencing, 7/7/14, at 13.            Because Appellant violated his

probation by failing to provide an approved home plan, which was a

condition of his probation, the trial court revoked Appellant’s probation and

recommitted him to a term of twelve to thirty months of incarceration, with

credit for time already served. Id. at 15. Appellant filed a timely appeal,

and both the trial and Appellant have complied with Pa.R.A.P. 1925.




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      In   this   appeal,   Appellant   raises   one   issue   for   this   Court’s

consideration:

      WHETHER A PROBATION VIOLATION CAN BE VESTED AGAINST
      A DEFENDANT FOLLOWING HIS MAXIMUM EXPIRATION OF AN
      INCARCERATION SENTENCE UPON THE IMMEDIATE FAILURE TO
      SECURE AN APPROVED RESIDENCE SUBJECT TO THE
      DISCRETIONARY APPROVAL PROCESS CONDUCTED BY THE
      PENNSYVANIA BOARD OF PROBATION AND PAROLE UNDER THE
      PENNSYVANIA SEXUAL OFFENDERS REGISTRATION AND
      NOTIFICATION ACT (SORNA) WHEN THE DEFENDNAT IS
      INDIGENT, DISABLED, AND WITHOUT ANY RESOURCES
      PROVIDED BY SORNA TO ASSIST WITH RESIDENCY?

Appellant’s Brief at 6 (verbatim).

      Our standard of review is as follows:

             In general, 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. Sierra, 752 A.2d
      910, 913 (Pa. Super. 2000). Our standard of review is limited to
      determining the validity of the probation revocation proceedings
      and the authority of the sentencing court to consider the same
      sentencing alternatives that it had at the time of the initial
      sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v.
      Gheen, 688 A.2d 1206, 1207–08 ([Pa. Super.] 1997) (the scope
      of review in an appeal following a sentence imposed after
      probation revocation is limited to the validity of the revocation
      proceedings and the legality of the judgment of sentence). 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. 42
      Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d
      788, 792 (Pa. Super. 2001).

Commonwealth v. Hoover, 909 A.2d 321, 322-323 (Pa. Super. 2006).




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     When assessing whether to revoke probation, the trial 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. In order to uphold
     a revocation of probation, the Commonwealth must show by a
     preponderance of the evidence that a defendant violated his
     probation.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super.

2012), affirmed, 91 A.3d 102 (Pa. 2014) (citation omitted). Moreover, an

order of probation can be changed or revoked “if, at any time before the

defendant has completed the maximum period of probation, or before he has

begun service of his probation” the defendant commits offenses or otherwise

demonstrates that he is unworthy of probation. Hoover, 909 A.2d at 323-

324. Finally, the Pennsylvania Code provides as follows:

     [The Board] may, during the probation or parole period, in case
     of violation of the conditions of probation or parole, detain the
     special probationer or parolee in a county prison and make a
     recommendation to the court, which may result in the revocation
     of probation or parole and commitment to a penal or correctional
     institution to serve a sentence in the case of probation or the
     remainder of the sentence in the case of parole.

37 Pa. Code § 65.3.

     Here, Appellant argues that he:

     is in the situation where he cannot surmount the Board’s
     statutory authority to deny residences and exhausted all of his
     options after submitting seven or eight of them for approval. He
     is indigent and disabled and is now serving a probation violation
     sentence because of his lack of residence. Appellant was never
     released from incarceration following the expiration of his
     maximum jail sentence. Appellant believes such violation and
     subsequent sentence is illegal, and the Board’s actions of
     immediate and continued detention of him are unconstitutional.
     Appellant believes that he can be effectively and strictly

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       monitored within the community by special conditions of
       probation imposed by [the Board]. Appellant believes his
       continued incarceration is illegal.

Appellant’s Brief at 20-21.

       Initially, we point out that Appellant has failed to direct this Court’s

attention to any authority that would permit us to review the discretion of

the Board in approving or disapproving a home plan, nor has our

independent research uncovered any such authority.1                     As such, the

appealable order is the judgment of sentence and its propriety, which we

review under the standard set forth above.             Hoover, 909 A.2d 322-324;

Simmons, 56 A.3d at 1283-1284. To that end, we disagree with Appellant’s

claim of error, and we conclude that the Board had no duty to approve

Appellant’s home plan, did not err in rejecting Appellant’s home plan due to

their locations relative to children, and the trial court did not err revoking

probation and resentencing Appellant.

       The residency restrictions placed on sex offenders were addressed in

an opinion filed in our sister court. In Nieves v. Pennsylvania Board of

Probation      and    Parole,     995    A.2d    412   (Pa.   Cmwlth.    2010),2   the

____________________________________________


1
  We note also that Appellant has failed to comply with the rules of appellate
procedure by failing to include a statement of both the scope of review and
the standard of review in violation of Pa.R.A.P. 2111.
2
 Although our Court is not bound by decisions of the Commonwealth Court,
we may elect to deem the rationale of those decisions as persuasive.
Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa. Super. 2002).



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Commonwealth Court reviewed the Board’s residency restrictions which were

applied pursuant to Megan’s Law, the predecessor to the Sex Offender

Registration and Notification Act (“SORNA”). Neither 42 Pa.C.S. § 9799.10

of SORNA nor 42 Pa.C.S. § 9798 of Megan’s Law contains specific residency

restrictions.   However, the Commonwealth Court stated that “silence, by

itself, is not sufficient to create a mandatory duty in the Board to impose no

residence restrictions on sex offenders or sexually violent predators whose

victims have been minors.” Nieves, 995 A.2d at 418. Rather, as Appellant

concedes, the Board has the authority to approve the home plan as follows:

“[i]f parole is granted, the parolee shall . . . [l]ive at the residence

approved by the Board at release and not change residence without the

written permission of the parole supervision staff.”   Appellant’s Brief at 16

(quoting 37 Pa. Code § 63.4(2)) (emphasis added); see also 37 Pa. Code §

65.4 (concerning probationers).

      As noted above, each residence Appellant submitted was in close

proximity to an area where children gather.     Because Appellant is an SVP

convicted of sexually assaulting a child, it is undisputed that an approved

home plan was a condition of Appellant’s probation.       However, it is also

undisputed that Appellant failed to provide an approved home plan.

Therefore, Appellant was in violation of the terms of his probation. It was

within the Board’s discretion to approve the home plan as the purpose of

SORNA is to protect the citizens of Pennsylvania from sex offenders, 42


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Pa.C.S. §§ 9799.10 – 9799.11, and it is within the discretion of the trial

court to determine if Appellant is worthy of probation. Hoover, 909 A.2d at

323-324.     We discern no abuse of discretion.    Accordingly, we discern no

error in the trial court’s decision to revoke Appellant’s probation and

resentence Appellant due to the aforementioned violation of his probation.

Thus, we affirm Appellant’s judgment of sentence.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




____________________________________________


3
  To the extent that Appellant claims he did not receive the benefit of his
plea agreement, we conclude that this claim is specious. There is nothing in
Appellant’s plea agreement relieving him of his duties to comply with the
terms of release on either probation or parole. Appellant received his
bargained-for sentence, and his written plea agreement reveals that the
duration of probation was left to the discretion of the trial court. Guilty Plea,
1/27/05. During his incarceration, Appellant elected not to participate in
sex-offender therapy, which resulted in the denial of parole, and Appellant
subsequently failed to provide an approved home plan, which, as discussed
above, was a violation of his probation. None of these factors impugns the
integrity of Appellant’s plea agreement as Appellant’s subsequent failures
are distinct from his initial sentencing after the plea.



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