J. S83007/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JORDAN SCOTT ASTROVE,                  :         No. 1981 WDA 2015
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, November 6, 2015,
            in the Court of Common Pleas of Venango County
            Criminal Division at No. CP-61-CR-0000288-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 21, 2016

     Jordan Scott Astrove appeals from the judgment of sentence of

November 6, 2015, following revocation of his probation. We affirm.

     The trial court has summarized the history of this case as follows:

                  [Appellant] was arrested in June 2013
           following    a   child  pornography    investigation.
           Seventeen videos were downloaded by a computer
           later to be determined to belong to [appellant]. The
           download was traced to [the] internet provider of a
           neighbor, though after investigation, it was
           determined they were not in possession of the
           computer used to download the child pornography.
           It was later determined that [appellant], along with
           two others, used the internet connection, and
           [appellant] used that connection to download child
           pornography.

                [Appellant] was arraigned on June 14, 2013.
           [Appellant] accepted a guilty plea on November 14th,

* Retired Senior Judge assigned to the Superior Court.
J. S83007/16


             2013, in which he pled guilty to four counts of
             Sexual Abuse of Children, Dissemination less than
             13 years, five counts of Sexual Abuse of Children,
             Possession of Child Pornography, one count of
             Criminal Use of a Communication Facility, and one
             count of Theft of Services.[1] Per this guilty plea,
             [appellant] was required to undergo a SORNA[2]
             assessment.      [Appellant] was sentenced [on]
             March 25, 2014, to eleven and one half (11½)
             months to twenty four (24) months less one day,
             with a seven (7) year probationary tail.

                    According to the Notice of Charges and Hearing
             filed March 20, 2015, on March 13, 2015, [appellant]
             met as required with probation officers. When asked
             about possession of an internet-capable cell phone,
             [appellant] initially denied owning the item.
             However, [appellant] did admit to ownership of the
             cell phone. The probation officer then proceeded to
             search [appellant]’s vehicle, found the cell phone
             and a tablet, both of which contained images and
             videos of adult and child pornography. Additionally,
             there were stuffed animals and “excessive” amounts
             of chocolate. [Appellant] admitted to the probation
             officer that more pornographic materials were
             present in [appellant]’s residence, which later search
             corroborated.

                   Petition to Revoke Probation/Parole was filed in
             Venango County [on] July 28, 2015. [Appellant]
             waived his right to a Gagnon I hearing and
             proceeded to a Gagnon II hearing, held August 20,
             2015.[3]     Probation was revoked following this
             hearing.     On November 6th, 2015, the court
             resentenced [appellant] to an aggregate of


1
   18 Pa.C.S.A.     §§   6312(c)(1),   6312(d)(1),   7512(a),   &     3926(a)(1),
respectively.
2
 Sexual Offender Registration and Notification Act, codified at 42 Pa.C.S.A.
§§ 9799.10-9799.41.
3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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              seventeen and one half (17½) to thirty five (35)
              years in prison on the revocation.[4]

Trial court opinion, 3/1/16 at 1-2.

                    [Appellant] filed a Motion for Modification of
              Sentence [on] November 16, 2015, which was
              denied by this court [on] November 18. [Appellant]
              took [a] direct appeal to the Superior Court [on]
              December 17, 2015. [Appellant] was directed to file
              [a] Concise Statement of Matters Complained of on
              Appeal[5] within 21 days by Court Order dated
              December 18, and was granted a thirty (30) day
              extension on December 23 due to the status of
              transcripts and Defense Counsel’s January trial.

                   [Appellant] filed the instant Concise Statement
              on February 5, 2016.[6]

Id. at 3.

        Appellant has raised the following issues for this court’s review:

              [1.]   Was the evidence presented at the time of the
                     Gagnon II hearing insufficient to sustain a
                     finding [appellant] violated the conditions of
                     his supervision?


4
  On counts 2 through 10, all third-degree felonies, appellant received
consecutive sentences of 3½ to 7 years’ imprisonment. (Notes of testimony,
11/6/15 at 19-20.)     On count 11, theft of services, a second-degree
misdemeanor, appellant received a consecutive sentence of 1 to 2 years’
imprisonment. (Id. at 20.) However, the sentences at counts 7 through 11
were run concurrently with the sentences at counts 2 through 6 for an
aggregate sentence of 17½ to 35 years’ imprisonment. (Id. at 21.)
5
    Pa.R.A.P. 1925(b).
6
  Appellant received an extension of 30 days from the original deadline to file
his Rule 1925(b) statement.        (Docket #45.)      Therefore, appellant’s
Rule 1925(b) statement was due on or before Monday, February 8, 2016.
1 Pa.C.S.A. § 1908. As such, appellant’s Rule 1925(b) statement, filed on
Friday, February 5, 2016, was timely.


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            [2.]   Is the sentence imposed upon [appellant] too
                   harsh for the alleged conduct he was found to
                   have been engaged in violation of his
                   conditions    of    supervision,  and    thus
                   unreasonable, manifestly excessive and an
                   abuse of discretion?

Appellant’s brief at 5.7

      Before proceeding to appellant’s issues on appeal, we must address a

jurisdictional question.8   Pennsylvania Rule of Criminal Procedure 708(E),

relating to revocation of probation or parole, provides as follows:

            (E)    Motion to Modify Sentence

                   A motion to modify    a sentence imposed after a
                   revocation shall be   filed within 10 days of the
                   date of imposition.   The filing of a motion to
                   modify sentence       will not toll the 30-day
                   appeal period.

Pa.R.Crim.P. 708(E) (emphasis added).

            Under this rule, the mere filing of a motion to modify
            sentence does not affect the running of the 30-day
            period for filing a timely notice of appeal.      Any
            appeal must be filed within the 30-day appeal period
            unless the sentencing judge within 30 days of the
            imposition     of    sentence      expressly    grants
            reconsideration or vacates the sentence.          See
            Commonwealth v. Coleman, 721 A.2d 798, 799,


7
  A third issue raised in appellant’s Pa.R.A.P. 1925(b) statement, challenging
the constitutionality of the warrantless search, has been abandoned on
appeal.
8
  Although neither the Commonwealth nor the trial court raises the issue of
the timeliness of this appeal, this court may raise questions of appellate
jurisdiction sua sponte. Commonwealth v. Parlante, 823 A.2d 927, 929
n.4 (Pa.Super. 2003), citing Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa.Super. 2001).


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            fn.2 (Pa.Super.     1998).      See   also   Pa.R.A.P.
            1701(b)(3).

Id., Comment. See also Parlante, 823 A.2d at 929 (“An appellant whose

revocation of probation sentence has been imposed after a revocation

proceeding has 30 days to appeal her sentence from the day her sentence is

entered, regardless of whether or not she files a post-sentence motion.

Therefore, if an appellant chooses to file a motion to modify her revocation

sentence, she does not receive an additional 30 days to file an appeal from

the date her motion is denied.” (citations omitted)).

      As recounted above, appellant was sentenced on November 6, 2015.

Therefore, appellant had until Monday, December 7, 2015, to file a timely

notice of appeal.    1 Pa.C.S.A. § 1908.     Appellant’s motion to modify his

revocation sentence, although filed within 10 days, did not toll the 30-day

appeal period.      Pa.R.Crim.P. 708(E).    Accordingly, appellant’s notice of

appeal filed December 17, 2015 was untimely.

      Nevertheless, we will not quash the instant appeal where the record

indicates that appellant was misinformed as to the relevant appeal period.

Prior to sentencing, the trial court played a video explaining the defendants’

post-sentence and appellate rights:

            If your post-sentence motion is denied you have the
            right to appeal the Sentence Order to the
            Pennsylvania Superior Court. Your right to appeal to
            the Pennsylvania Superior Court expires 30 days
            after the date of sentencing or 30 days after the
            Court files an Order resolving your post-sentence



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              motion, if you have filed a post[-]sentence motion
              within 10 days following sentencing.

Notes of testimony, 11/6/15 at 4-5.

              In any event, the appeal to the Pennsylvania
              Superior Court must be filed within 30 days either
              from the date of the sentence or 30 days from the
              date the Court acts finally on your post-sentence
              motion, whichever is later.

Id. at 5-6.

      Obviously, this was a misstatement of the law as it pertained to

appellant, a probation violator.     Nor was the error rectified after appellant

was resentenced. (Id. at 21.) Appellant was never properly advised of the

correct appeal deadline pursuant to Pa.R.Crim.P. 708(D)(3). 9        Therefore,

although appellant’s notice of appeal was untimely, we will consider this a

nunc pro tunc appeal based on a breakdown of the court, and review his

claims on the merits.      See, e.g., Commonwealth v. Flowers,             A.3d

    , 2016 WL 6157509, at *3-4 (Pa.Super. October 24, 2016) (trial court



9
              (D)   Sentencing Procedures

                    (3)   The judge shall advise the defendant on
                          the record:

                          (a)   of the right to file a motion to
                                modify    sentence      and   to
                                appeal, of the time within
                                which the defendant must
                                exercise those rights, and of
                                the right to assistance of
                                counsel in the preparation of
                                the motion and appeal[.]


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provided the appellant with incorrect information about the appeal deadline,

and his late filing was therefore excused because the misinformation

constituted a breakdown of the judicial process); Parlante, 823 A.2d at 929

(“[W]e decline to quash this appeal because Parlante’s error resulted from

the trial court’s misstatement of the appeal period, which operated as a

‘breakdown in the court’s operation.’”); Coolbaugh, 770 A.2d at 791 (where

the appellant was led to believe that he had 30 days to appeal from the

denial of his reconsideration motion following revocation of his probation,

this court declined to quash the appeal, recognizing that the problem arose

as a result of the trial court’s misstatement of the appeal period, which

operated as a breakdown in the court’s operation); Commonwealth v.

Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (although the appeal was

untimely, where the defendant’s failure to appeal on time appeared to be a

result of a breakdown in the operation of the trial court, which gave

erroneous information as to the appeal period, the appeal would not be

quashed as untimely but would be regarded as though filed nunc pro tunc

and considered on the merits).

         In his first issue on appeal, appellant argues that the Commonwealth

failed    to   prove   that   he    violated   the   conditions   of   his   supervision.

(Appellant’s brief at 12.)         Appellant argues that the sole evidence that he

possessed child pornography was the testimony of James Krauss, his

probation officer, who testified regarding what he saw on appellant’s digital



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devices. (Id.) Appellant complains that no expert testimony was presented

to authenticate the images. (Id.)

           The procedures for revoking probation and the rights
           afforded to a probationer during revocation
           proceedings are well settled:

                 [w]hen a parolee or probationer is
                 detained pending a revocation hearing,
                 due process requires a determination at
                 a pre-revocation hearing, a Gagnon I
                 hearing, that probable cause exists to
                 believe that a violation has been
                 committed.        Commonwealth       v.
                 Ferguson, 761 A.2d 613 (Pa.Super.
                 2000)    (citing  Commonwealth       v.
                 Holmes, 248 Pa.Super. 552, 375 A.2d
                 379, 381 (1977)). Where a finding of
                 probable cause is made, a second, more
                 comprehensive hearing, a Gagnon II
                 hearing, is required before a final
                 revocation decision can be made.
                 Commonwealth       v.   DeLuca,    275
                 Pa.Super. 176, 418 A.2d 669, 672
                 (1980).

                 The Gagnon II hearing entails two
                 decisions:      first, a “consideration of
                 whether the facts determined warrant
                 revocation.” Morrissey v. Brewer, 408
                 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
                 (1972). “The first step in a Gagnon II
                 revocation decision . . . involves a wholly
                 retrospective factual question: whether
                 the parolee [or probationer] has in fact
                 acted in violation of one or more
                 conditions of his parole [or probation].”
                 Gagnon v. Scarpelli, 411 U.S. 778, 93
                 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973)
                 (citing Morrissey, supra, 408 U.S. at
                 484, 92 S.Ct. 2593, 33 L.Ed.2d 484). It
                 is this fact that must be demonstrated by
                 evidence containing “probative value.”


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                   Commonwealth v. Kates, 452 Pa. 102,
                   305 A.2d 701 (1973).        “Only if it is
                   determined     that   the    parolee   [or
                   probationer] did violate the conditions
                   does the second question arise: should
                   the    parolee    [or   probationer]    be
                   recommitted to prison or should other
                   steps be taken to protect society and
                   improve chances of rehabilitation?”
                   Gagnon v. Scarpelli, supra, 411 U.S.
                   at 784, 93 S.Ct. 1756, 36 L.Ed.2d 656,
                   (citing Morrissey v. Brewer, supra,
                   408 U.S. at 484, 92 S.Ct. 2593, 33
                   L.Ed.2d 484).

Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009),

quoting Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001)

(brackets in original).

            Further, we note that there is a lesser burden of
            proof in a Gagnon II hearing than in a criminal trial
            because the focus of a violation hearing 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 antisocial conduct.” [Sims, 770 A.2d]
            at 350 (internal citation omitted).       Thus, the
            Commonwealth need only prove a violation of
            probation by a preponderance of the evidence. Id.
            Lastly, hearsay is not admissible at a Gagnon II
            hearing absent a finding of good cause for not
            allowing   confrontation.      Commonwealth        v.
            Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128,
            1130-31 (1984).

Allshouse, 969 A.2d at 1241.

      Instantly, Agent Krauss testified that he received information from

appellant’s employer that appellant had a cell phone and tablet. (Notes of




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testimony, 8/20/15 at 10.)10 One of the conditions of appellant’s probation

was that he not access the internet for pornographic purposes.           (Id.)

Appellant was also prohibited from possessing any pornographic materials.

(Id.) According to appellant’s employer, “he overheard [appellant] stating

that he had a cell phone that he didn’t want his P.O. to know about and he

stated that he frequently had an iPad of some sort that was always on him

that he always had his eyes on, that was always guarded.” (Id.)

      On March 13, 2015, appellant arrived at the probation office for a

conference. (Id. at 19.) At first, appellant denied owning a cell phone with

internet capabilities, but later admitted that he did own such a device. (Id.)

Probation officers proceeded to search appellant’s vehicle and retrieved a

Samsung Galaxy tablet and an HTE cell phone from a black backpack on the

front seat. (Id.) They also recovered several tubes of KY lubricating jelly

from inside of appellant’s backpack.   (Id. at 27.)    Agent Krauss observed

approximately six stuffed animals and large amounts of chocolate in the rear

of the vehicle. (Id. at 20.)

      The seized items were taken into the probation office.     (Id.)   When

Agent Krauss asked appellant if there were any photographs on his phone,

“he just put his head down.”      (Id.)      Agent Krauss discovered multiple

images of child pornography on appellant’s cell phone, including graphic



10
   Agent Krauss is a state parole agent working out of the Allentown district
office. (Id. at 3.)


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pictures of young children between ages 5 and 10. (Id.) There were also

video files, including one depicting a female child approximately 6-8 years

old inserting an object into her vagina.          (Id.)   In another video, an adult

male masturbated and ejaculated onto the face of a 6-8 year old girl. (Id.

at 21-21.) Agent Krauss found additional pictures and videos on appellant’s

Samsung Galaxy tablet.       (Id. at 21.)     Agent Krauss testified that they all

depicted children between ages 5 and 16. (Id.) At that point, they notified

police and appellant was taken into custody. (Id.)

      When appellant was asked if he had any additional contraband in his

apartment, he refused to answer. (Id.) Upon further questioning, however,

he admitted that there was “stuff” in his room.            (Id.)    Agent Krauss and

another probation officer, together with state police, entered appellant’s

residence and conducted a search. (Id. at 22.) Underneath the bed, they

found a cell phone containing graphic photos of what appeared to be child

pornography. (Id.) At that time, the investigation was turned over to the

state police who obtained a search warrant which was executed on

March 14, 2015. (Id.)

      Clearly, Agent Krauss’s testimony was sufficient to find that appellant

violated   the   terms   and    conditions    of    his   probationary      supervision;

specifically, that he not download or possess pornographic images. In fact,

the   underlying   charges     related   to   possession     of    child   pornography.

Appellant cites no authority for the proposition that the Commonwealth was



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required, at a Gagnon II revocation hearing, to present expert testimony to

authenticate the images.    (Appellant’s brief at 12.)   As stated above, the

Commonwealth need only prove a probation violation by a preponderance of

the evidence. Allshouse, 969 A.2d at 1241. There is no evidence that the

images were digitally altered, as appellant suggests.     (Id.)   Furthermore,

whether or not the photographs depicted “real” children, appellant was

prohibited from possessing pornography of any kind. This claim fails.

      In his second issue on appeal, appellant claims that his sentence of

17½ to 35 years’ incarceration was manifestly excessive and an abuse of

discretion. Appellant argues that all of his sentences should have been run

concurrently and that the trial court failed to adequately consider various

mitigating factors, including his remorse, his voluntary participation in sexual

offender programming, and the fact that he faced additional charges as a

result of the same conduct underlying the petition to revoke probation.

(Appellant’s brief at 9, 13-14.) Appellant also argues that the items found in

his vehicle were innocent in nature and did not, in and of themselves,

indicate criminal motive. (Id.)11

            An appellant wishing to appeal the discretionary
            aspects of a probation-revocation sentence has no
            absolute right to do so but, rather, must petition this
            Court for permission to do so. [Commonwealth v.
            Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
            42 Pa.C.S.A. § 9781(b). Specifically, the appellant
            must present, as part of the appellate brief, a

11
  We assume that appellant is referring to the KY jelly, stuffed animals, and
chocolates.


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           concise statement of the reasons relied upon for
           allowance of appeal. Malovich, 903 A.2d at 1250;
           Pa.R.A.P. 2119(f). In that statement, the appellant
           must persuade us there exists a substantial question
           that the sentence is inappropriate under the
           sentencing code.    Malovich, 903 A.2d at 1250;
           Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

           In general, an appellant may demonstrate the
           existence of a substantial question by advancing a
           colorable argument that the sentencing court’s
           actions were inconsistent with a specific provision of
           the sentencing code or violated a fundamental norm
           of the sentencing process. Malovich, 903 A.2d at
           1252. While this general guideline holds true, we
           conduct a case-specific analysis of each appeal to
           decide whether the particular issues presented
           actually form a substantial question. Id. Thus, we
           do not include or exclude any entire class of issues
           as being or not being substantial. Id. Instead, we
           evaluate each claim based on the particulars of its
           own case. Id.

Id. at 289-290.

     In his Rule 1925(b) statement, appellant framed his discretionary

aspects of sentencing claim as follows:        “The sentence received by

[appellant] from the lower court was too harsh for the alleged conduct the

Court used to find [appellant] violated the conditions of supervision[.]”

(Rule 1925(b) statement, 2/5/16 at 2, ¶3(b); docket #8.) A bald allegation

that the sentence appellant received was “too harsh” is vague and waives

the issue on appeal. Rule 1925(b) provides: “The Statement shall concisely

identify each ruling or error that the appellant intends to challenge with




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sufficient   detail   to   identify   all   pertinent   issues   for   the   judge.”

Pa.R.A.P. 1925(b)(4)(ii).

             It has been held that when the trial court directs an
             appellant to file a concise statement of matters
             complained of on appeal, any issues that are not
             raised in such a statement will be waived for
             appellate review. Commonwealth v. Dowling, 778
             A.2d      683,   686     (Pa.Super.    2001),    citing
             Commonwealth v. Lord, 553 Pa. 415, 418, 719
             A.2d 306, 308 (1998). Similarly, when issues are
             too vague for the trial court to identify and address,
             that is the functional equivalent of no concise
             statement at all. Id. Rule 1925 is intended to aid
             trial judges in identifying and focusing upon those
             issues which the parties plan to raise on appeal.
             Commonwealth v. Lemon, 804 A.2d 34, 37
             (Pa.Super. 2002).      Thus, Rule 1925 is a crucial
             component of the appellate process. Id. “When the
             trial court has to guess what issues an appellant is
             appealing, that is not enough for meaningful review.”
             Id., citing Dowling, supra.

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc).

Similarly, in his motion to modify sentence, appellant asserted that his

sentence was “too harsh” and excessive.             (Motion to modify sentence,

11/16/15 at 2; docket #11.) The only specific allegation was that the trial

court abused its discretion in imposing consecutive sentences. (Id.) See

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013), appeal

denied, 85 A.3d 482 (Pa. 2014) (“Challenges to the discretionary aspects of

a sentence must be raised first in the trial court, either in a post-sentence

motion or by presenting them during the sentencing proceedings.                 The

failure to do so results in a waiver of all such claims.”) (citations omitted).



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Appellant’s vague and boilerplate sentencing claim is waived for appeal

purposes.12

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2016




12
   At any rate, appellant’s allegations in his Rule 2119(f) statement that his
sentences should have been run concurrently and that the trial court failed
to give adequate weight to certain mitigating factors do not raise a
substantial question for this court’s review.         (Appellant’s brief at 9.)
Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989) (en banc)
(an allegation that the sentencing court did not adequately consider various
factors is, in effect, a request that this court substitute its judgment for that
of the lower court in fashioning a defendant’s sentence); Commonwealth
v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (“[i]n imposing a sentence,
the trial judge may determine whether, given the facts of a particular case, a
sentence should run consecutive to or concurrent with another sentence
being imposed.”) (citations omitted); Commonwealth v. Mastromarino, 2
A.3d 581, 586-587 (Pa.Super. 2010), appeal denied, 14 A.3d 825 (Pa.
2011) (same). We also note that the sentencing guidelines do not apply to
sentences imposed as the result of probation revocations. Commonwealth
v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) (citations omitted).


                                     - 15 -
