J-S75043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SEAN C. CRAWFORD,

                        Appellant                  No. 1600 EDA 2014


       Appeal from the Judgment of Sentence entered April 30, 2014,
             in the Court of Common Pleas of Chester County,
           Criminal Division, at No(s): CP-15-CR-0003465-2011


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED DECEMBER 08, 2014

      Sean Crawford (“Appellant”) appeals from the judgment of sentence

imposed after he violated the conditions of his parole. Appellant’s appointed

counsel seeks to withdraw, citing Anders v. California, 386 U.S. 738

(1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

We affirm the judgment of sentence and grant counsel’s petition to

withdraw.

      The trial court summarized the pertinent facts and procedural history

as follows:
             On August 29, 2011, [Appellant] was charged for an
      assault on his then girlfriend, Amanda Hayman (“Ms. Hayman”).
      [Appellant] pled guilty to Simple Assault before the Honorable
      Phyllis Streitel and was sentenced on November 1, 2011 to 6 to
      23 months incarceration. [Appellant] filed a Motion for Parole on
      January 9, 2012. [Appellant was released on parole on February
      22, 2012]. If [Appellant] had been in compliance with the
      conditions of his parole, it would have expired on July 22, 2013.
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            On July 21, 2012, Officer David Spigarelli of the West
      Goshen Police Department was dispatched to investigate the
      report of an assault. Upon arriving at the scene, a female
      assault victim, Ms. Hayman, stated to Officer Spigarelli that she
      was punched in the face by her fiancé, [Appellant]. Ms. Hayman
      was diagnosed with a broken nose. [Appellant] was taken into
      custody and charged for a second assault on Ms. Hayman [at
      Docket No. 2624-2013].

             On July 22, 2012, pursuant to an application for a Bench
      Warrant and a Petition for Violation of Probation and Parole, a
      Bench Warrant was issued and a detainer was lodged by Chester
      County Adult Probation and Parole. The Petition alleged that
      [Appellant] had violated his parole by incurring new charges,
      failing to pay $1,384.00 in fines and costs, failing to submit to a
      drug and alcohol evaluation, failing to complete outpatient
      treatment, failing to complete the Domestic Violence Program,
      and having criminal contact with Ms. Hayman.

            A jury trial on the 2013 case [at Docket No. 2624-2013]
      began on January 28, 2014. Ms. Hayman, two independent lay
      witnesses, and a medical expert testified. The jury returned a
      verdict of “Guilty” on the charge of Simple Assault.           ...
      Thereafter, the sentencing proceeding [at Docket No. 2624-
      2013] and a hearing on the parole violation of the 2011 case
      were held [on April 21, 2014 and April 30, 2014]. [O]n April 30,
      2014, [a] Violation of Parole Order was issued finding [Appellant
      in violation of the conditions of his parole] and [Appellant was
      sentenced] to the balance of the maximum term, 16 months and
      18 days. [Appellant] was made eligible for parole after serving
      six months. This sentence was to run consecutive to the one to
      two year state sentence imposed on the 2013 case.

             [Appellant] filed a Motion to Modify Sentence immediately
      after the sentencing proceeding. [Appellant] argued that the
      sentence imposed was excessive and should be reduced. [The
      trial court] denied his motion without a hearing on May 9, 2014.
      On May 29, 2014, [Appellant] filed his appeal to the sentence
      imposed on April 30, 2014 and our denial of his Post-Sentence
      Motion on May 9, 2014. [Both Appellant and the trial court have
      complied with Pa.R.A.P. 1925(b).]

Trial court opinion, 8/7/14, at 1-3 (footnotes omitted).


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     Appellant presents one issue for our review:

     Did the [trial] court err when it considered [Appellant’s]
     conviction in Case No. CP-15-CR-2624-2013 — which is currently
     on Appeal in case No. 1600 EDA 2014 — when deciding to
     revoke his parole and to recommit him for the balance of his
     maximum sentence.

Anders Brief at 4.

     Preliminarily, we note that Appellant’s counsel has filed a brief

pursuant to Anders and its Pennsylvania counterpart, McClendon.          See

Anders, 386 U.S. 738; McClendon, 434 A.2d at 1187.                 Where an

Anders/McClendon brief has been presented, our standard of review

requires counsel seeking permission to withdraw pursuant to Anders to:

(1) petition the court for leave to withdraw stating that after making a

conscientious examination of the record it has been determined that the

appeal would be frivolous; (2) file a brief referring to anything that might

arguably support the appeal, but which does not resemble a “no merit” letter

or amicus curiae brief; and (3) furnish a copy of the brief to the defendant

and advise him of his right to retain new counsel or raise any additional

points that he deems worthy of the court's attention.     Commonwealth v.

McBride, 957 A.2d 752, 756 (Pa. Super. 2008).         Counsel is required to

submit to this Court “a copy of any letter used by counsel to advise the

appellant   of   the   rights   associated   with   the   Anders    process.”

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007).

Pursuant to Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),

appellant’s counsel must state in the Anders brief the reasons for


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concluding that the appeal is frivolous. If these requirements are met, this

Court may then review the record to determine whether we agree with

counsel’s assessment that the appeal is frivolous.

       In the instant case, by letter dated September 23, 2014, Appellant’s

counsel notified Appellant of his intent to file an Anders brief and petition to

withdraw with this Court, and informed Appellant of his rights to retain new

counsel and raise additional issues. That same day, Appellant’s counsel filed

an appropriate petition seeking leave to withdraw.         Finally, Appellant’s

counsel has submitted an Anders brief to this Court, with a copy provided to

Appellant.   Accordingly, the technical requirements of Anders have been

met.   We will therefore conduct our own independent examination of the

issues set forth in counsel’s brief to determine if they are frivolous and

whether counsel should be permitted to withdraw.

       Appellant asserts that the trial court erred in revoking his probation

and resentencing him to the balance of his maximum sentence.           Anders

Brief at 9-10. Specifically, Appellant argues that the trial court improperly

considered his conviction at Docket No. 2524-2013, which is currently on

appeal, when it revoked his parole and resentenced him to serve the balance

of his maximum term.

       “The primary concern of probation, as well as parole, is the

rehabilitation and restoration of the individual to a useful life.      It is a

suspended sentence of incarceration served upon such lawful terms and

conditions as imposed by the sentencing court.”           Commonwealth v.

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Mullins, 918 A.2d 82, 85 (Pa. 2007). “[T]he purposes of a court's parole-

revocation hearing—the revocation court's tasks—are to determine whether

the parolee violated parole and, if so, whether parole remains a viable

means of rehabilitating the defendant and deterring future antisocial

conduct, or whether revocation, and thus recommitment, are in order. The

Commonwealth must prove the violation by a preponderance of the evidence

and, once it does so, the decision to revoke parole is a matter for the court's

discretion. In the exercise of that discretion, a conviction for a new crime is

a legally sufficient basis to revoke parole.” Commonwealth v. Kalichak,

943 A.2d 285, 290-291 (Pa. Super. 2008) (citations omitted).              “Following

parole revocation and recommitment, the proper issue on appeal is whether

the   revocation   court   erred,   as   a   matter   of   law,   in   confinement.”

Commonwealth v. Snavely, 982 A.2d 1244, 1246 (Pa. Super. 2009)

(citations omitted).

      The trial court provided the following rationale for its revocation of

Appellant’s parole:

      Alarmingly, in this case, [Appellant’s] criminal violation was his
      assault of the same victim he had assaulted in 2011. This time
      he broke her nose. It was also significant to the [trial court] that
      [Appellant] had failed to complete any of the conditions
      originally imposed at the time of the sentencing on the 2011
      case. Any of those violations alone would have constituted the
      basis for finding [Appellant] had violated his parole. [T]he
      totality of the circumstances indicated [Appellant’s] parole had
      not been a successful means of rehabilitation.

Trial Court Opinion, 8/7/14, at 4.



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      Upon independent review of the record, we find no error in the trial

court’s determination that Appellant violated the conditions of his parole.

The November 11, 2011 sentencing order specifies that Appellant is to

attend an anger management and domestic violence program. Trial Court

Order, 11/11/11.    At the   parole revocation hearing, the Commonwealth

presented testimony from Appellant’s probation officer that following

Appellant’s release on parole on February 22, 2012, Appellant failed to

complete drug and alcohol treatment, failed to complete a domestic violence

program, in addition to incurring a new conviction for his second assault of

Ms. Hayman. N.T., 4/21/14, at 5. Appellant was afforded opportunities for

rehabilitation and domestic violence counseling, and his failure to comply

with the trial court’s mandates supports the trial court’s decision to revoke

Appellant’s parole. We conclude that the court had sufficient grounds upon

which to revoke Appellant’s parole and recommit him to serve the remaining

back time on his original simple assault charge.

      We additionally find no merit to Appellant’s assertion that the trial

court could not consider his 2013 conviction in its decision to revoke his

parole because Appellant has appealed that conviction. In Commonwealth

v.   Smith,   534   A.2d   120   (Pa.   Super.   1987),   we   explained   “[the]

Pennsylvania Supreme Court [has] found probation and parole revocation

hearings could be held prior to the trial for the subsequent offense.” Smith,

534 A.2d at 121-122 citing Commonwealth v. Kates, 305 A.2d 701 (Pa.


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1973).   We reasoned that “[since] revocation may occur prior to trial, we

cannot possibly find merit to [an] argument that revocation proceedings

should not occur until the appeal process [for the subsequent offense] is

complete.” Smith, 534 A.2d at 122. Accordingly, Appellant’s claim fails.

      Upon independent review of the record, we agree with counsel that

this appeal is frivolous.   We therefore grant counsel’s petition to withdraw

and affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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