J-A10020-15


                             2015 PA Super 106

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

PETER J. SCHULTZ, JR.

                        Appellant                   No. 1541 MDA 2014


        Appeal from the Judgment of Sentence September 4, 2014
            In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0000114-2012
                                       CP-54-CR-0000117-2012
                                       CP-54-CR-0000654-2011
                                       CP-54-CR-0000655-2011


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

OPINION BY MUNDY, J.:                                 FILED MAY 04, 2015

     Appellant, Peter J. Schultz, Jr., appeals from the September 4, 2014

aggregate judgment of sentence of 52 to 104 months’ imprisonment,

imposed following the revocation of his state intermediate punishment (SIP)

sentence. After careful review, we affirm.

     A previous panel of this Court summarized the relevant factual and

procedural background of this case as follows.

                 The Commonwealth charged Appellant with
           multiple counts of possession of a controlled
           substance, possession with intent to deliver, delivery
           of a controlled substance, and possession of drug
           paraphernalia at the above-captioned criminal docket
           numbers. Appellant entered a negotiated guilty plea,
           and on May 17, 2012, the trial court imposed a
           sentence of 24 months of [SIP], with 59 days of
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              credit for time served dating to March 20, 2012. On
              March [7], 2014[1], shortly before the 24-month SIP
              sentence was set to expire, the trial court found
              Appellant in violation of [his SIP] and therefore
              ordered him to serve an additional three months.

Commonwealth v. Schultz, --- A.3d ---, 580 MDA 2014 (Pa. Super. 2015)

(unpublished memorandum at 2) (footnote omitted).                Appellant filed a

timely notice of appeal, which was docketed in this Court at 580 MDA 2014.

On January 27, 2015, this Court vacated the trial court’s order and

remanded for further proceedings.              We held that the trial court lacked

jurisdiction to enter its order, as it was done outside the 30-day period for

modifications under Section 5505 of the Judicial Code. Id. at 4; see also

42 Pa.C.S.A. § 5505 (stating, “a court upon notice to the parties may modify

or rescind any order within 30 days after its entry, notwithstanding the prior

termination of any term of court, if no appeal from such order has been

taken or allowed[]”). Neither party filed a petition for allowance of appeal

with our Supreme Court.

       Notwithstanding the pendency of Appellant’s appeal from its March 7,

2014 order, the trial court conducted another revocation hearing on June 12,

2014. The underlying basis for this hearing was the notification to the trial

court by the Department of Corrections (DOC) that it had expelled Appellant
____________________________________________
1
  This Court explained in our previous memorandum that the trial court’s
order was not entered onto its docket until March 7, 2014. Commonwealth
v. Schultz, --- A.3d ---, 580 MDA 2014 (Pa. Super. 2015) (unpublished
memorandum at 1 n.1).



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from the SIP program.          N.T., 6/12/14, at 8.        At the conclusion of said

hearing, the trial court revoked Appellant’s SIP sentence and scheduled a

resentencing hearing.       Id. at 41.         On September 4, 2014, the trial court

imposed a new aggregate sentence of 52 to 104 months’ imprisonment. On

September 8, 2014, the trial court entered an order granting Appellant

certain credit for time served.        On September 15, 2014, Appellant filed a

timely notice of appeal.2

       On appeal, Appellant raises the following five issues for our review.

              1.     Whether the [trial court] committed an error of
                     law in concluding that a Commonwealth
                     witness was a custodian of records, thus
                     allowing his testimony to be received and
                     considered under      the   business   records
                     exception to the hearsay rule[?]

              2.     Whether the [trial court] committed an error of
                     law and/or an abuse of discretion in finding []
                     Appellant in violation of the requirement of the
                     [SIP] program, and thus before the [trial
                     c]ourt for sentencing, based on hearsay
                     testimony[?]

              3.     Whether the [trial court] committed an abuse
                     of discretion in allowing the Commonwealth to
                     re-open its case and recall a witness and elicit
                     further testimony after the Commonwealth
                     closed its case and [] Appellant’s attorney gave
                     a closing statement[?]

              4.     Whether the [trial court] committed an error of
                     law and abuse of discretion by allowing the
____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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                   Commonwealth to recall a witness and elicit
                   further testimony after the Commonwealth
                   closed its case and [] Appellant’s attorney gave
                   a closing statement, the effect of which was to
                   deny [] Appellant his right to counsel by
                   allowing the Commonwealth to fill in the gaps
                   of its case that [] Appellant’s counsel had
                   pointed out in a closing argument, thus
                   converting [] Appellant’s counsel from an
                   advocate for [] Appellant to an adviser to the
                   Commonwealth[?]

            5.     Whether the [trial court] committed an error of
                   law in sentencing Appellant on September 4
                   and 8, 2014 since the evidence demonstrated
                   that [] Appellant had completed the [SIP]
                   program and was properly released[?]

Appellant’s Brief at 4.

      We elect to address Appellant’s first four issues together. In his first

two issues, Appellant avers that the trial court erroneously admitted hearsay

evidence pursuant to the business records exception. Appellant’s Brief at 7-

8. In his third and fourth issues, Appellant avers the trial court erred when

it granted the Commonwealth’s request to reopen the record after Appellant

had given his closing argument to the trial court.         Id. at 8-9.    The

Commonwealth and the trial court argue that none of these issues merit

relief because the evidence proffered was beyond the scope of what the trial

court was statutorily permitted to decide at the revocation hearing.

Commonwealth’s Brief at 8; Trial Court Opinion, 11/6/14, at 6. We begin by

noting our well-settled standard of review regarding these issues.

            The admissibility of evidence is at the discretion of
            the trial court and only a showing of an abuse of that

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              discretion, and resulting prejudice, constitutes
              reversible error. An abuse of discretion is not merely
              an error of judgment, but is rather the overriding or
              misapplication of the law, or the exercise of
              judgment that is manifestly unreasonable, or the
              result of bias, prejudice, ill-will or partiality, as
              shown by the evidence of record. Furthermore, if in
              reaching a conclusion the trial court over-rides or
              misapplies the law, discretion is then abused and it is
              the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013). We likewise review a trial court’s decision to grant a

party’s     request   to   reopen   the   record   for   an   abuse   of   discretion.

Commonwealth v. Safka, 95 A.3d 304, 309 (Pa. Super. 2014), appeal

granted in part, 104 A.3d 525 (Pa. 2014).

      Here, the testimony that Appellant objects to in his first four issues

was from Jerome Koerner, a SIP Coordinator with the DOC.                   On appeal,

Appellant objects to the parts of Koerner’s testimony pertaining to the three

underlying violations that caused Appellant to be expelled from the program.

Appellant’s Brief at 7. Appellant also objects to the trial court allowing the

Commonwealth to reopen the record to introduce evidence of additional

violations of the program that occurred before the trial court’s March 5, 2014

modification order, which was the subject of the appeal at 580 MDA 2014.

Id. at 8.

      This Court has previously explained the purpose of the SIP program in

the following terms.

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                  The legislature enacted SIP in November 2004.
            SIP is a two-year program designed to benefit
            persons with drug and alcohol problems. In order to
            be eligible for the SIP program, a defendant cannot
            have a history of present or past violent behavior
            and the [DOC] must determine that the defendant is
            in need of drug and alcohol treatment.

Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa. Super. 2010)

(internal citation omitted).   The governing statutes state that the DOC is

charged with promulgating regulations regarding the administration of the

SIP program. 61 Pa.C.S.A. § 4106. This includes regulations governing a

participant’s expulsion from the program. Id. Section 4105(f) also pertains

to expulsion from the SIP program, and provides as follows.

            § 4105. Drug offender treatment program

            (a) Establishment.--The department shall establish
            and administer a drug offender treatment program
            as a State intermediate punishment. The program
            shall be designed to address the individually
            assessed drug and alcohol abuse and addiction needs
            of a participant and shall address other issues
            essential to the participant’s successful reintegration
            into the community, including, but not limited to,
            educational and employment issues.

                                      …

            (f) Expulsion from program.--

                  (1) A participant may be expelled from the
                  drug offender treatment program at any time
                  in accordance with guidelines established by
                  the department, including failure to comply
                  with administrative or disciplinary procedures
                  or requirements set forth by the department.




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                  (2) The department shall promptly notify the
                  court, the defendant, the attorney for the
                  Commonwealth and the commission of the
                  expulsion of a participant from the drug
                  offender treatment program and the reason for
                  such expulsion.      The participant shall be
                  housed in a State correctional institution or
                  county jail pending action by the court.

                  (3) The court shall schedule a prompt State
                  intermediate punishment revocation hearing
                  pursuant to 42 Pa.C.S. § 9774 (relating to
                  revocation of State intermediate punishment
                  sentence).

Id. § 4105. Furthermore, Section 9774 of the Sentencing Code, referenced

in Section 4105(f)(3) above, states as follows.

            § 9774. Revocation         of   State   intermediate
            punishment sentence

            (a) General rule.--The court may at any time
            terminate a sentence of State intermediate
            punishment pursuant to 61 Pa.C.S. Ch. 41 (relating
            to State intermediate punishment).

            (b) Revocation.--The court shall revoke a sentence
            of State intermediate punishment if after a hearing it
            determines that the participant was expelled from
            or failed to complete the program.

            (c)     Proceedings       upon      revocation.--Upon
            revocation of a State intermediate punishment
            sentence, the sentencing alternatives available to the
            court shall be the same as the alternatives available
            at the time of initial sentencing. The attorney for the
            Commonwealth must file notice, at any time prior to
            resentencing, of the Commonwealth’s intention to
            proceed under an applicable provision of law
            requiring a mandatory minimum sentence.

42 Pa.C.S.A. § 9774 (emphasis added).


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     In addition, when analyzing statutory text, we note the following.

           “Under the Statutory Construction Act of 1972, … our
           paramount interpretative task is to give effect to the
           intent of our General Assembly in enacting the
           particular       legislation      under         review.”
           Commonwealth v. Spence, 91 A.3d 44, 46 (Pa.
           2014) (citation omitted). “We are mindful that the
           object of all statutory interpretation is to ascertain
           and effectuate the intention of the General Assembly
           … and the best indication of the legislature’s intent is
           the plain language of the statute.” Commonwealth
           v. Walter, 93 A.3d 442, 450 (Pa. 2014) (citation
           omitted). “When the words of a statute are clear
           and unambiguous, we may not go beyond the plain
           meaning of the language of the statute under the
           pretext of pursuing its spirit.” Id., citing 1 Pa.C.S.A.
           § 1921(b). However, only “when the words of the
           statute are ambiguous should a reviewing court seek
           to ascertain the intent of the General Assembly
           through considerations of the various factors found
           in Section 1921(c) of the [Statutory Construction
           Act].” Id. at 450–451, citing 1 Pa.C.S.A. § 1921(c).

In re D.M.W., 102 A.3d 492, 494 (Pa. Super. 2014).

     In considering the statutes listed above, we conclude their text is

unambiguous.     Section 4105(a) requires the DOC to “establish and

administer a drug offender treatment program as a [SIP].” 61 Pa.C.S.A. §

4105(a).   The DOC is also statutorily tasked with “develop[ing] written

guidelines for participant selection criteria and the establishment of drug

offender treatment program selection committees within each diagnostic and

classification center of the department and shall address suspensions and

expulsions from the drug offender treatment program.”             Id. § 4106

(emphasis added). Section 4105(f)(1) vests solely in the DOC the decision


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of “expel[ling a participant] from the drug offender treatment program at

any time in accordance with guidelines established by the department.” Id.

§ 4105(f)(1).    The DOC is required to “promptly notify the court, the

defendant, the attorney for the Commonwealth and the [Pennsylvania

Commission on Sentencing] of the expulsion of a participant from the drug

offender treatment program and the reason for such expulsion.”            Id. §

4105(f)(2). The trial court is required to conduct a revocation hearing under

Section 4105(f)(3) and “determine [whether] the participant was expelled

from or failed to complete the program.” 42 Pa.C.S.A. § 9774(b) (emphasis

added).

      The plain text of Section 9774(b), coupled with the General Assembly’s

use of past tense, reveal that when addressing a revocation under Section

9774(b) the trial court is limited to the question of whether the DOC

expelled the defendant from the program, or whether the defendant failed to

complete the same.     Id.   The trial court is not required, or even legally

permitted, to act in an appellate capacity and decide for itself de novo

whether Appellant actually violated the terms of the SIP program. Had the

General Assembly wished for the trial court to conduct such an inquiry, it

would have used different language in the text of Section 9774(b), directing

or authorizing it to do so. Conversely, Section 9774(b) in its present form

only requires the Commonwealth to prove the fact of expulsion or non-

completion. Once the trial court finds this fact, it is required to revoke under


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Section 9774(b).     See id. (stating, “[t]he [trial] court shall revoke a

sentence”); Koken v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006)

(stating, “the term shall is mandatory for purposes of statutory construction

when a statute is unambiguous[]”) (internal quotation marks and citation

omitted). It is legally irrelevant to the issue before the trial court what the

reasons for Appellant’s expulsion were.        Such a determination is the

province of the DOC and was already made internally before the trial court

conducted its revocation hearing.

      Applying this framework to the instant case, we agree with the

Commonwealth that the testimony Appellant objected to was legally

irrelevant to the question of whether Appellant was actually expelled from

the SIP program by the DOC. Here, as noted above, all four of Appellant’s

issues pertain to testimony from Koerner concerning the particular violations

that led to Appellant’s expulsion from the SIP program. Appellant’s Brief at

7-9. However, as we have explained, this was not the question that the trial

court was charged with deciding. In addition, Appellant conceded twice on

the record that the DOC did in fact expel him from the program.

            [Trial Court]:  Well, the Court is going to conduct
            a hearing today and allow the testimony of the
            Commonwealth.    Apparently [the Commonwealth]
            subpoenaed a witness to be here, and the witness is
            present?

            [Commonwealth]:         Yes, Your Honor.

            [Trial Court]:    Who is that?


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J-A10020-15


           [Commonwealth]:        It’s      Jerome    Koerner   from
           [the DOC], Your Honor.

           [Trial Court]:     Do[es      Appellant]     have    any
           objection to that?

           [Defense Counsel]:      I don’t have any objection, I
           suppose, simply because the practical reality here is
           … [t]he [SIP] Program has evidently told him he’s
           not welcome back in it, so he’s sort of in a state of
           limbo right now.       I don’t know what could
           conceivably happen if Your Honor didn’t do
           something here today, because the [SIP] Program
           won’t take him in; so I don’t know where that would
           leave him. He’s got to go somewhere as a result of
           today.

                                        …

           [Defense Counsel]:    … I would like to make a
           closing argument on my client’s behalf.

           [Trial Court]:     Yes, you may. I am going to - -
           after that, I will set up a sentencing date as you
           suggested.

           [Defense Counsel]:       Thank you. Your Honor, I
           understand that practical reality as I said at the
           outset of this hearing is that he cannot get back into
           the SIP program because they have excluded him.
           Even if Your Honor wanted to put him back in, they
           won’t take him. I understand that.

                                        …

N.T., 6/12/14, at 8-9, 29 (emphases added). As the sole fact to be proven

at the Section 9774(b) hearing was conceded by Appellant, we agree with

the Commonwealth and the trial court that any errors in the admission of

Koerner’s testimony concerning the underlying SIP program violations were

harmless, as said testimony was legally irrelevant for the purposes of the

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J-A10020-15


revocation hearing. As a result, Appellant is not entitled to relief on his first

four issues.

       In his fifth issue, Appellant argues that the trial court erred in

imposing a new judgment of sentence on September 4, 2014, when he had

already completed the SIP program. Appellant’s Brief at 4. Before we may

address the merits of this claim, we must first determine whether it is

previously litigated as law of the case.3 This Court has previously explained

the law of the case doctrine in the following terms.

                             The law of the case doctrine refers to a
                     family of rules which embody the concept that
                     a court involved in the later phases of a
                     litigated matter should not reopen questions
                     decided by another judge of that same court or
                     by a higher court in the earlier phases of the
                     matter…. The various rules which make up the
                     law of the case doctrine serve not only to
                     promote the goal of judicial economy … but
                     also operate (1) to protect the settled
                     expectations of the parties; (2) to insure
                     uniformity of decisions; (3) to maintain
                     consistency during the course of a single case;
                     (4) to effectuate the proper and streamlined
                     administration of justice; and (5) to bring
                     litigation to an end.
____________________________________________
3
  We note that we could deem Appellant’s issue waived for lack of a
developed argument in his brief. See Pa.R.A.P. 2119(a) (stating, “[t]he
argument shall be divided into as many parts as there are questions to be
argued … followed by such discussion and citation of authorities as are
deemed pertinent[]”). However, as we discuss infra, we deem this issue
previously litigated under the law of the case doctrine. Therefore, we
decline to find waiver in this instance. See id. at 2101 (stating, “if the
defects … in the brief … of the appellant … are substantial, the appeal …
may be … dismissed[]”) (emphasis added).



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            Commonwealth v. McCandless, 880 A.2d 1262,
            1267 (Pa. Super. 2005), appeal dismissed as
            improvidently granted, 933 A.2d 650 ([Pa.] 2007)
            (quoting Commonwealth v. Starr, 664 A.2d 1326,
            1331 ([Pa.] 1995)). Thus, under the doctrine of the
            law of the case,

                   when an appellate court has considered and
                   decided a question submitted to it upon
                   appeal, it will not, upon a subsequent appeal
                   on another phase of the case, reverse its
                   previous ruling even though convinced it was
                   erroneous. This rule has been adopted and
                   frequently applied in our own State. It is not,
                   however, inflexible.    It does not have the
                   finality of the doctrine of res judicata. “The
                   prior ruling may have been followed as the law
                   of the case but there is a difference between
                   such adherence and res judicata; one directs
                   discretion, and the other supercedes [sic] it
                   and compels judgment. In other words, in one
                   it is a question of power, in the other of
                   submission.” The rule of the “law of the case”
                   is one largely of convenience and public policy,
                   both of which are served by stability in judicial
                   decisions, and it must be accommodated to the
                   needs of justice by the discriminating exercise
                   of judicial power.

            [Id.] at 1268 … (quoting Benson v. Benson, 624
            A.2d 644, 647 ([Pa. Super.] 1993)).

Commonwealth v. Gacobano, 65 A.3d 416, 419-420 (Pa. Super. 2013)

(parallel citations omitted).

      In our January 27, 2015 memorandum, this Court “address[ed]

Appellant’s argument that [this Court] should [have] order[ed] him

discharged, inasmuch as the term of sentence [had then] expired.”

Schultz, supra at 6. Appellant argued the issue in his brief to this Court.

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See generally Appellant’s Brief, 580 MDA 2014, at 7.              Addressing his

argument, we concluded that “Appellant failed to complete his SIP sentence

successfully by the end of the 24-month term of the sentence.” Id. at 7. As

noted above, Appellant did not seek further review from our Supreme Court.

Therefore, the holding by this Court’s prior panel constitutes the law of the

case as it pertains to Appellant’s re-articulation of the issue in the instant

appeal. See Gacobano, supra. Further, Appellant advances no basis for

concluding that our adherence to the prior ruling should be “accommodated

to the needs of justice” in this case and we perceive none. Id. For these

reasons, Appellant is not entitled to relief on his last issue.

      Based on the foregoing, we conclude all of Appellant’s issues are

devoid of merit. Accordingly, the trial court’s September 4, 2014 judgment

of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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