J-S62007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DARIEN GRADY,

                        Appellant                   No. 1736 EDA 2013


      Appeal from the Judgment of Sentence entered May 16, 2013,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0011068-2009


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                      FILED SEPTEMBER 26, 2014



imposed after the trial court determined he violated the conditions of his

probation. We affirm.

     The trial court summarized the pertinent procedural history as follows:

           On May 6, 2010, [the trial court] sentenced [Appellant] to
     14-30 months of confinement followed by six (6) years of
     reporting probation on the charge of Possession with Intent to
     Deliver. That probation was concurrent to six years of reporting
     probation for a Conspiracy to Possess with Intent to Deliver
     conviction. On July 24, 2012 [Appellant] was arrested and
     charged with Possession with Intent to Deliver, a violation of
     [his] probation.     The underlying July 24, 2012 case was
     dismissed for lack of evidence, at that time. [The trial court]
     held a hearing on January 11, 2013 based upon a Daisey Kates
     motion     for   the   violation   of   probation     pursuant   to
     Commonwealth v. Daisey Kates, 305 A.2d 701 (Pa. 1973).
     [The trial court] found Appellant in violation of his probation and
     sentenced him on May 16, 2013 based upon the violation to 7½-
     15 years in prison for the Possession with Intent to Distribute
     and five (5) years of probation to be consecutive to the
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       incarceration on the Conspiracy to Possess with Intent to
       Deliver.

Trial Court Opinion, 2/7/14, at 1-2.

       Appellant filed a pro se motion to modify his sentence on May 20,

2013, on which the trial court did not rule, ostensibly because Appellant was

represented by counsel.         On May

untimely motion for reconsideration, which the trial court denied by order

dated May 30, 2013.1 Appellant filed a notice of appeal on June 11, 2013.2

On July 11, 2013, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant did not file a timely Pa.R.A.P. 1925(b) statement, and on October

21, 2013, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it

                                s issues were waived because Appellant failed to

comply with Pa.R.A.P. 1925(b).

       On January 15, 2014, this Court entered an order remanding the

certified record to the trial court to permit Appellant to file a concise

statement of errors complained of on appeal nunc pro tunc. Following the



second Pa.R.A.P. 1925(a) opinion on February 7, 2014.
____________________________________________


1
  The trial court order denying the motion for reconsideration does not
specify whether the motion was denied because it was untimely.
2

judgment of sentence.



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     Appellant presents one issue for our review:

            Where a previous court found after a full hearing that
     insufficient evidence existed to hold [A]ppellant for trial on a
     charge of possession with intent to deliver, was not the violation

     the same exact evidence?




     Appellant argues that the evidence was insufficient to support the



a question of law subject to plenary review.    We must determine whether

the evidence admitted at trial and all reasonable inferences drawn

therefrom, when viewed in the light most favorable to the Commonwealth as

the verdict winner, is sufficient to support all elements of the offenses. A

reviewing court may not weigh the evidence or substitute its judgment for

                         Commonwealth v. Perreault, 930 A.2d 553, 558

(Pa. Super. 2007) (citations and internal quotations omitted).



sound discretion of the trial court and that court's decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

              Id

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

                                    Commonwealth v. Allshouse, 33 A.3d


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reason for revocation of probation need not necessarily be the commission of

or conviction for subsequent criminal conduct.      Rather, this Court has

repeatedly acknowledged the very broad standard that sentencing courts



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

                                                                           d

whenever it is shown that the conduct of the probationer indicates the

probation has proven to have been an ineffective vehicle to accomplish



Id.
      Here, at the January 11, 2013 probation revocation hearing, the trial

court heard testimony from Officer Duane Watson of the Philadelphia Police

Department Narcotics Strike Force. Officer Watson testified that on July 24,

2012, he was conducting narcotics surveillance in the area of 3300 North 5th

Street in Philadelphia, when he saw an individual named Mr. Santiago

approach Appellant and hand him United States currency in exchange for

small items that Appellant retrieved from his pocket. N.T., 1/11/13, at 8-10.

Thereafter, the police stopped Mr. Santiago, and recovered one packet of

crack cocaine. Id. Appellant was also stopped and police officers retrieved

from him $28 in U.S. currency. Id. Although Appellant testified that he only

sold a cigarette and not crack cocaine to Mr. Santiago, the trial court



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concluded that Appellant violated his probation. Id. at 37-38.

     We find no a



     The burden of proof for establishing a violation of probation is a
     preponderance of the evidence, lesser than the burden in a
     criminal trial of proof beyond a reasonable doubt. But there are
     other noteworthy differences between a probation revocation
     hearing and a criminal trial, and the manner in which each
     proceeding affects the other also is significant:

     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.
     ... The degree of proof necessary for probation revocation is less
     than that required to sustain a criminal conviction. Probation
     may be revoked on the basis of conduct which falls short of
     criminal conduct.

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

(ciatations and internal quotations omitted). See also Ortega, supra

question before us, therefore, is not whether the evidence admitted at the

VOP hearing would, if admitted at trial, suffice to convict [the appellant]

beyond a reasonable doubt ... but whether it showed by a preponderance of

the evidence that probation had proven ineffective in rehabilitating [the




testimony of record was sufficient to demonstrate, by a preponderance of

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the evidence, that Appel



argues that the trial court was precluded under the doctrine of collateral

                                                       rief at 10-14. Appellant

maintains that because the July 24, 2012 drug charges were dismissed at a

preliminary hearing where the trial court determined that there was

insufficient evidence to present a prima facie case against Appellant, the trial

court i

on that same evidence. Id. We disagree.

      In Commonwealth v. Greco, 513 A.2d 493 (Pa. Cmwlth. 1986), the

Commonwealth      Court   addressed    a    similar   claim.    We    find   the

                            lysis instructive. In Greco, the Probation Board

conducted a probation revocation hearing after charges against the appellant

had been dismissed at a preliminary hearing.          The appellant argued in

Greco that the Probation Board was barred, under the doctrine of collateral

estoppel, from revoking his probation based on the dismissal of the criminal




simply that when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated between the

                                      Greco, 513 A.2d at 495, quoting Ashe




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v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194 25 L.Ed.2d 469

(1970).


     of the criminal charges subsequent to a preliminary hearing, not
     an acquittal after a trial. Therefore, there had been no final
     determination of fact by a cour
     revocation hearing, as such, the doctrine of collateral estoppel
     does not apply. Collateral estoppel is properly applicable only
     when the earlier judgment is the result of a hearing in which the
     guilt or innocence of the accused has been fully litigated and
     finally determined.    The primary purpose for a preliminary
     hearing is not to determine the guilt or innocence of an accused
     but to protect an individual from unlawful arrest, detention or
     imprisonment for a crime which was never committed, or for a
     crime of which there is no evidence of the individual's
     connection. ... A finding by a committing magistrate [or Judge]
     that the Commonwealth has failed to establish a prima facie case
     is not a final determination, such as an acquittal, and only
     entitles the accused to his liberty for the present...

Greco, 513 A.2d at 495.     Accordingly, the Court concluded in Greco that

the Probation Board was not collaterally estopped from revoking the



     Similarly, in

followed a dismissal of the criminal charges after a preliminary hearing, not

an acquittal after trial. Therefore, there was no final determination of fact

                                              ion hearing, and as such, the

doctrine of collateral estoppel does not apply. See also Ortega, 995 A.2d

at 887 (holding that the doctrine of collateral estoppel did not apply where

the underlying charges against the appellant were dismissed preliminarily




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before a jury was empaneled or a trial court sitting as fact finder began to

hear the evidence).

     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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