J-S03041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
                v.                       :
                                         :
                                         :
 ANDREW J. BOROCHANER                    :
                                         :   No. 3671 EDA 2016
                      Appellant

          Appeal from the Judgment of Sentence October 28, 2016
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): CP-09-CR-0003029-2015,
            CP-09-CR-0005280-2014, CP-09-CR-0006441-2014,
                          CP-09-CR-0007781-2014


BEFORE:       BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 09, 2018

      Appellant, Andrew J. Borochaner, appeals from the judgment of

sentence imposed following revocation of his probation. We affirm.

      The lower court sets forth the pertinent factual and procedural history

as follows:

      On October 6, 2016, after an extensive colloquy before [the lower
      court], at which time [it was] determined that Appellant was
      competent to proceed in these matters, Appellant entered into
      negotiated pleas of nolo contendere to [four docketed cases
      stemming from five separate criminal informations.][fn]


      [fn] In exchange for Appellant’s negotiated pleas, the
      Commonwealth nolle prossed all charges contained in a fifth
      information including unlawful restraint, reckless endangerment,
      simple assault and false imprisonment.



____________________________________
* Former Justice specially assigned to the Superior Court.
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     Under [the fourth docketed case], Appellant had been charged
     with use/possession of drug paraphernalia and was sentenced to
     a term of county probation of six (6) months.

     Under [the second docketed case], Appellant had been charged
     with accident involving damage to attended vehicle or property,
     driving the wrong way, driving over the divider, failure to stop and
     render aid, and operating a motor vehicle without required
     financial responsibility. For the charge of accident involving
     damage to attended vehicle or property Appellant was sentenced
     to a term of county probation of one (1) year, concurrent to his
     sentences under [the fourth and third docketed cases], and a
     mandatory minimum fine of $100.00 was imposed for the charge
     of operating a motor vehicle without required financial
     responsibility.

     Under [the third docketed case], Appellant had been charged with
     disregarding traffic lane, operating a motor vehicle without
     required financial responsibility, and driving under the
     influence/general impairment – 1st offense.       Appellant was
     sentenced on the DUI charge to six (6) months of probation,
     concurrent to the sentence under [the fourth docketed case], and
     to pay a mandatory fine of $300.00. No further penalties for the
     remaining charges were imposed.

     Under [the first docketed case], Appellant was charged with
     criminal defiant trespass, criminal trespass – entering a structure,
     and disorderly conduct. Appellant was sentenced to a term of
     county probation of one (1) year on Count 1, defiant trespass, to
     be served concurrently with the sentences under [the other three
     docketed cases], and to a term of probation of one (1) year on
     Count 3, disorderly conduct, consecutive to the sentence issued
     under Count 1.[fn] . . . .


     [fn]As a result of the negotiated plea, the Commonwealth sought
     leave to nolle prosequi Count 2, criminal trespass – entering a
     structure . . . and amend Count 1, from criminal trespass –
     breaking into a structure . . . which was a felony of the second
     degree, to criminal defiant trespass . . . which was a misdemeanor
     of the third degree. [The lower court] also granted that request.



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     [Accordingly, Appellant was placed on a two-year period of
     probation.] Appellant was also ordered to continue with his
     mental health and/or drug and alcohol treatment and pay the
     costs of prosecution. In addition, Appellant was warned that any
     violation of his probation would result in a return for a hearing
     before [the lower court] and a determination for the need for
     resentencing.

     A probation violation hearing was subsequently scheduled and
     held on October 28, 2016. Appellant’s Probation Officer testified
     that after [Appellant’s] sentencing on October 6, 2016, Appellant
     reported to the intake of the Adult Probation and Parole
     Department (“Department”) but did not stay to meet with the
     Probation Officer. The Probation Officer testified that Appellant
     was directed on the following day, Friday, October 7, 2016, to
     report to the Department but called later that day and said he
     could not make it. As a result of an upcoming holiday Appellant
     was told to report on October 11, 2016, but called on that day and
     said he again could not make it, at which point he was advised
     that a bench warrant would be issued for his arrest. On October
     17, 2016, the Department received notice of possible drug activity
     at the address Appellant had provided on his offender information
     sheet. On October 20, 2016, after a search warrant was issued,
     Appellant’s residence was searched and Appellant was taken into
     custody. According to the Probation Officer, a firearm, knives,
     methadone, Suboxone and suspected methamphetamine were
     found in Appellant’s room during the search. (N.T. 10/28.16, pp.
     2-5.)

     As a result, the Department requested that Appellant be found in
     violation of his probation and it be revoked. It was further
     recommended that he be sentenced to six to twelve months’
     incarceration on Count 1 and a consecutive one year term of
     probation on Count 3 under [the first docketed case]; that his
     term of probation of one year under [the second docketed case]
     be reinstated consecutive to Count 1 of [the first docketed case];
     that his term of probation under [the third docketed case] be
     reinstated for six months consecutive to Count 3 of [the second
     docketed case]; and that his probation under [the fourth docketed
     case] be reinstated for six months consecutive to [the third
     docketed case].

     Appellant then testified in his own defense that he never
     absconded because after reporting to the Department intake on

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      October 6, 2016, he felt dizzy and sick and needed to get
      something to eat and therefore left. He said he did not report on
      October 11, 2016, because he had “severe pain in his neck” and
      could not get anyone to drive him. He said he was going to report
      to the Department on October 17, 2016, but was involved in an
      altercation on October 16, 2016, and was taken by ambulance to
      the hospital and received six stitches for a cut over his eye. He
      acknowledged that he should have contacted his Probation Officer
      but stated he was too “embarrassed” because of the cut to contact
      him. He then testified that when he came home on October 20,
      2016, and was taken into custody, he had been “out all night”
      apparently at a casino and at “a girlfriend’s house.”         N.T.
      10/28/16, at 11-18.

      At the conclusion of the hearing, [the lower court] admonished
      Appellant for not complying with the conditions of his probation,
      and in particular for his proximity to drugs and a firearm in his
      residence, and we found him in violation of his probation. He was
      thereafter sentenced [to not less than six nor more than 12
      months’ incarceration under the first docketed case, to be followed
      by an aggregate two years’ probation under the remaining
      docketed cases]. N.T., at 23-27.

Trial Court Opinion, 3/15/17, at 1-4.

      Appellant filed a timely post-sentence motion presenting a number of

issues, including a weight of the evidence challenge against the court’s

determination that he had violated his probation.     The court conducted a

hearing and denied Appellant’s motion. N.T. 11/23/16, at 21-24. Appellant

timely appealed to this Court and filed a court-ordered Pa.R.A.P. 1925(b)

concise statement asserting a single issue: “Whether the finding of a violation

of probation on October 28, 2016, was against the weight of the evidence.”

Pa.R.A.P. 1925(b) statement, 1/31/17.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the



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judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033–34 (Pa.Super. 2013).

Revocation of a probation sentence is a matter committed to the 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 abuse of discretion.

Commonwealth v. Perreault , 930 A.2d 553, 557-58 (Pa.Super. 2007)

(quotations and citations omitted). An abuse of discretion is more than an

error of judgment, such that a sentencing court will not be found to have

abused its discretion unless the record discloses that it ignored or misapplied

the law, or that the judgement exercised was manifestly unreasonable, or the

result of partiality, prejudice, bias or ill will. Commonwealth v. Highland,

875 A.2d 1175, 1184 (Pa.Super. 2005).

      Probation is a privilege, not an absolute right.    Commonwealth v.

McNeil, 665 A.2d 1247, 1252 (Pa. Super. 1995). Further, probation

revocation requires only a truncated hearing by the sentencing court to

determine whether probation remains rehabilitative and continues to deter

future antisocial conduct. Commonwealth v. Mullins, 918 A.2d 82, 86 (Pa.

2007). A violation of probation hearing takes place without a jury, with a

lower burden of proof, and with fewer due process protections. Id. Technical

violations are sufficient to trigger probation revocation. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).

      As a prefatory matter, we observe that Appellant's brief does not include

a recitation of his question presented on appeal in violation of Pa.R.A.P. 2116.

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Generally, we deem waived issues not presented in the statement of questions

involved. Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001)

(citation omitted) (noting “generally, questions not presented in the

‘Statement of Questions Involved’ are deemed waived.”); Commonwealth v.

Bryant, 57 A.3d 191, 196 n.7 (Pa. Super. 2012) (finding weight and

sufficiency challenges waived for failure to include them in statement of

questions presented). Insofar as Appellant has failed to raise his challenge to

the trial court's revocation of probation in a statement of the question

presented, we find the issue waived. Long, supra; Pa.R.A.P. 2116.

      Even if we assumed, arguendo, that Appellant properly raised his

challenge before us, he would not be entitled to relief. Appellant argues that

the verdict was against the weight of the evidence. Specifically, he maintains

that his testimony established he did not abscond or otherwise flout his

reporting obligations when he failed to report to the probation office as

required. Contrary to the position taken by the Commonwealth, Appellant

insists his testimony proved he was simply incapable of reporting despite his

good faith intentions because of either poor health or difficulties in obtaining

transportation. See Brief of Appellant, at 3.

      This Court has previously explained, however, that weight of the

evidence claims involving conflicts in testimony and credibility determinations

are unavailing in an appeal from probation revocation:

      We find no authority for appellant's assumption that a challenge
      to the weight of the evidence may properly be entertained on
      appeal from parole revocation by the trial court. It is clear that

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      such a challenge is not available from parole revocations entered
      by the Pennsylvania Board of Probation and Parole. Moreover,
      regardless of whether such challenges may be raised from
      common pleas court parole revocations, we do not find that the
      alleged conflicts in the juvenile witnesses' testimony render the
      finding of technical parole violations contrary to the weight of the
      evidence. Rather, the conflicts raised issues of credibility which
      were for the finder of fact to resolve. We find no abuse of
      discretion in this respect.

Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa.Super. 1988)

(citations omitted).

      We discern no reason to distinguish this explanation of applicable law

merely because McDermott involved a violation of parole rather than

probation. Accordingly, we apply the reasoning therein to the case sub judice

and find Appellant’s claim unreviewable as presented.

      Moreover, Appellant’s weight claim, even if it were reviewable, would

not merit relief.

      In assessing the trial court's ruling [on a weight of the evidence
      claim], we must “review [ ] the trial court's exercise of discretion,
      not the underlying question of whether the verdict is against the
      weight of the evidence.” Commonwealth v. Smith, 604 Pa. 126,
      985 A.2d 886, 888 (2009). The fact-finder is free to believe all,
      part, or none of the evidence; an appellate court will not make its
      own assessment of the credibility of the evidence.
      Commonwealth v. Ramtahal, 613 Pa. 316, 33 A.3d 602, 609
      (2011). “The trial court will only award a new trial when the jury's
      verdict is so contrary to the evidence as to shock one's sense of
      justice.” Id. In turn, we will reverse a trial court's refusal to
      award a new trial only when we find that the trial court abused its
      discretion in not concluding that the verdict was so contrary to the
      evidence as to shock one's sense of justice. In effect, “the trial
      court's denial of a motion for a new trial based on a weight of the
      evidence claim is the least assailable of its rulings.” Id.




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Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa.Super. 2013).                   The

Commonwealth need only establish a probation violation by a preponderance

of the evidence, which “is the lowest burden of proof in the administration of

justice and . . . is defined as the greater weight of the evidence, i.e., to tip a

scale slightly in one's favor. Commonwealth v. Ortega, 995 A.2d 879, 886

n.3 (Pa.Super. 2010).

      In this case, questions of credibility were for the trial court to decide as

the finder of fact. At the revocation hearing, the court assessed the credibility

of Adult Probation and Parole Officer Luke Walker and found him to be credible.

The court also considered Appellant’s explanations for failing to report to the

Adult Probation Intake Department as ordered and found his testimony to be

incredible. Specifically, the court opined:

      Appellant failed to meet with his Probation Officer immediately
      after his sentencing on October 6, 2016, as he was required to do.
      It was also undisputed that Appellant repeatedly failed to meet
      with the Probation Officer or report to the Adult Probation and
      Parole Department after he was provided with several additional
      opportunities to make up for his initial failure to meet with him.
      Appellant was only taken into custody on October 20, 2016, after
      a bench warrant was issued, and after a search warrant had been
      executed in response to a report received three days earlier that
      illegal activities were allegedly occurring at the recovery house
      where Appellant was residing.

      This court further noted that the explanations that Appellant
      provided for his failures to meet with his Probation Officer did not
      sufficiently justify his conduct. For example, after Appellant was
      provided with an opportunity to report to the Department on
      October 11, 2016, Appellant claimed that he was unable to do so
      because of . . . severe neck pain; yet rather than report to Adult
      Probation, he was able to involve himself in an altercation five
      days later which required hospitalization.            Furthermore,

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      Appellant’s own testimony revealed that once again, rather than
      report to adult Probation as required, he chose instead to
      participate in activities at a casino and stay “out all night” with a
      girlfriend prior to being taken into custody on the following day.
      Finally, the Probation Officer’s unrebutted testimony revealed that
      after a search of Appellant’s residence was executed, a firearm,
      knives and various drugs were found in Appellant’s bedroom,
      clearly indicating that Appellant was in the presence of and close
      proximity to such prohibited items.

      Despite Appellant’s assurances to this court at all of the previous
      hearings that he would abide by the conditions of his probation,
      Appellant’s actions did not reveal an intention to do so. Due to
      the number and nature of the various charges contained in the
      above-captioned four dockets that the Commonwealth chose to
      prosecute, this court concluded that Appellant’s sentences of
      probation alone had not yet had any rehabilitative effect on him,
      nor had it sufficiently deterred Appellant against future antisocial
      conduct. [This court, therefore] sentenced Appellant to the Adult
      Probation and Parole Department’s recommendation of a period of
      incarceration of six to twelve months in the Bucks County
      Correctional Facility, to be followed by three years of probation.

Trial Court Opinion, at 6-7.

      From this record, we identify no basis on which to assail the court’s

exercise of discretion in denying Appellant’s post-sentence weight of the

evidence claim, were we to review the claim on its merits. As such, we reject

Appellant’s challenge to the revocation of his probation.

     Judgment of sentence is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/18

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