J-S78006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RANDY P. HARTZFELD                         :
                                               :
                      Appellant                :   No. 1356 WDA 2015

              Appeal from the Judgment of Sentence July 1, 2015
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000645-2014



BEFORE: BENDER, P.J.E., OTT, and FITZGERALD, JJ.

CONCURRING/DISSENTING MEMORANDUM BY OTT, J.:FILED NOVEMBER 29, 2016

        While I agree with the decision of the Majority to vacate the no-contact

condition imposed on Hartzfeld’s sentence with respect to the victim’s

mother,1 I see no reason to vacate the no-contact provision with respect to

the victim. For that reason, I respectfully concur and dissent.

        As the Majority aptly explains, while “the trial court lacked authority to

set the terms of [Hartzfeld’s] parole,” Section 6134(b) of the Probation and
____________________________________________



    Former Justice specially assigned to the Superior Court.
1
   I note, however, my reason for vacating that portion of Hartzfeld’s
sentence differs from that of the Majority. Here, Bortz was not a victim of
Hartzfeld’s crime, and, in fact, “fully intended to marry [him] even after a
jury of his peers found him guilty of endangering her child’s welfare.” Trial
Court Opinion, 3/14/2016, at 3. Although I understand the court’s concern
that Bortz will be ill-equipped to protect her minor child, the victim herein,
from Hartzfeld if she continues to have a relationship with him, that issue is
one for Children and Youth Services, rather than the court.
J-S78006-16



Parole Act permits a trial court to make a recommendation respecting the

terms of a defendant’s parole which should be considered as “advisory only.”

Majority Memorandum at 5 (citations omitted).     For that reason, I believe

the “condition” imposed by the trial court, which has no real legal effect,

should be considered simply a recommendation by the court upon

Hartzfeld’s release. Although I recognize the panel decision of this Court in

Mears, supra, supports the Majority’s ruling, I emphasize that Mears

involved a condition which subjected the defendant to random searches

upon his parole. It did not, as here, seek to protect the welfare of a minor

child who was physically abused by the defendant.         In my opinion, a

“condition” concerning the protection of a minor should constitute a

legitimate exception to the Mears decision.

     Accordingly, I would not strike from Hartzfeld’s sentencing order, the

no-contact condition with respect to the minor victim.




                                    -2-
