J-S34040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CHRISTINE SEARFOSS

                            Appellant              No. 1822 MDA 2014


       Appeal from the Judgment of Sentence entered August 21, 2014
               In the Court of Common Pleas of Luzerne County
          Criminal Division at Nos.: CP-40-CR-0004334-2012 and
                           CP-40-CR-0000955-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 14, 2015

       Appellant Christine Searfoss appeals from the judgment of sentence

entered in the Court of Common Pleas of Luzerne County (“trial court”)

following Appellant’s Gagnon II1 hearing on August 21, 2014.        The trial

court determined Appellant violated the terms of her parole and, as a result,

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1
  Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before a parole or probation
may be revoked:

       [A] parolee [or probationer] is entitled to two hearings, one a
       preliminary hearing [Gagnon I] at the time of his arrest and
       detention to determine whether there is probable cause to
       believe that he has committed a violation of his parole [or
       probation], and the other a somewhat more comprehensive
       hearing [Gagnon II] prior to the making of a final revocation
       decision.

Id. at 781-82.
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ordered her to serve the remainder of her sentence.          Upon review, we

affirm.

        The facts and procedural history underlying this case are undisputed.

On September 13, 2012, Appellant was charged with, inter alia, forgery2 and

access device fraud3 at docket number 4334 of 2012 (“First Case”). While

the First Case was pending, on March 2, 2013, Appellant was charged with

retail theft4 at docket number 955 of 2013 (“Second Case”).           Appellant

ultimately pled guilty to access device fraud in the First Case and retail theft

in the Second Case and was sentenced to two years’ probation for both

cases on October 30, 2013.

        Thereafter, Appellant was accused of violating the terms of her

probation because of her arrest for criminal trespass, disorderly conduct,

and harassment on June 4, 2014. Following a Gagnon II hearing, on July

28, 2014, the trial court revoked Appellant’s probation and sentenced her to

43 days (time served) to 18 months’ imprisonment. Appellant was paroled

the same day.

        Appellant, subsequently, was accused of violating her parole because

of her July 31, 2014 arrest for sale or illegal use of certain solvents.     On

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2
    18 Pa.C.S.A. § 4101(a)(2).
3
    18 Pa.C.S.A. § 4106(a)(1)(ii).
4
    18 Pa.C.S.A. § 3929(a)(1).




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August 21, 2014, the trial court conducted a Gagnon II hearing in

connection with Appellant’s alleged parole violation.        At the hearing,

Appellant, through counsel, admitted to the underlying arrest.        See N.T.

Revocation Hearing, 8/21/14, at 2 (“This, too, will be an admission to the

arrest[.]”). After admitting to the arrest, Appellant spent the majority of the

hearing attempting to convince the trial court to impose upon her a lenient

sentence. Id. at 4-9. In so doing, she admitted to the parole violation to

demonstrate to the court that she accepted responsibility for her actions.

      [Defense counsel:] Your Honor, [Appellant] does understand
      that she’s done wrong. She is being forthcoming with the
      [c]ourt in admitting this violation, and as well as apologetic
      that she has caught these new charges. She understands that
      there are consequences to her actions.

      [Trial court:] I’m not really sure that she understands that.

      [Appellant:] I do.


Id. at 7 (emphasis added). The trial court ultimately directed Appellant to

serve the remainder of her 18-month sentence in prison.

      On August 28, 2014, Appellant moved for reconsideration of sentence,

acknowledging in part that “[o]n August 21, 2014, [she] admitted to a

violation of her parole and was remanded to [Luzerne County Correctional

Facility] by the [trial court] to remain incarcerated until her Max Date of

12/15/2015.”   Motion to Reconsider Sentence, 8/28/14, at ¶ 2 (emphasis

added).   In her reconsideration motion, Appellant challenged only the

discretionary aspects of her sentence, arguing that “the sentence imposed

upon her was unduly harsh.” Id. at ¶ 5. Accordingly, Appellant requested a


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“less severe term of incarceration.” Id. On August 29, 2014, the trial court

denied Appellant’s motion for reconsideration. Appellant timely appealed to

this Court.5

       On appeal, Appellant raises only one assertion of error.           She argues

“the   trial   court   erred    by   revoking    [Appellant’s]   parole   where   the

Commonwealth failed to present evidence sufficient to establish by a

preponderance of the evidence that [Appellant] violated her parole[.]”

Appellant’s Brief at 1.

       The Commonwealth has the burden to prove a parole violation by a

preponderance of the evidence. Commonwealth v. Kalichak, 943 A.2d

285, 291 (Pa. Super. 2008). The decision to revoke parole is subject to the

discretion of the trial court. Id.

       Here, Appellant argues the Commonwealth failed to present any

evidence to sustain the revocation of her parole and the attendant sentence.

Appellant, consequently, argues the trial court abused its discretion in

revoking her parole because the court did so only based on her “admission

to the arrest itself[.]” Appellant’s Brief at 3. In support of her argument,




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5
  Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, arguing for the first time that the trial court erred in revoking her
parole because the Commonwealth failed to establish a parole violation. In
response, the trial court issued a Pa.R.A.P. 1925(a) opinion.




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Appellant relies on this Court’s decision in Commonwealth v. Sims, 770

A.2d 346 (Pa. Super. 2001). We disagree.

      As noted above, the Commonwealth did not need to present evidence

of Appellant’s parole violation when Appellant admitted to the same.

Contrary to Appellant’s contention, she did not simply admit to the arrest

itself at the revocation hearing.   Our review of the transcript, as recited

earlier, indicates that Appellant acknowledged the parole violation and

accepted the consequences of the violation in her attempt to obtain a lenient

sentence.     In fact, following the revocation of her parole, Appellant

confirmed in the reconsideration motion that she had admitted to violating

her parole.   Accordingly, given the admission, we reject as disingenuous

Appellant’s contention that the Commonwealth failed to establish that she

violated her parole.

      Appellant relies on Sims for the proposition that “mere arrest does not

constitute violation of probation.” Id. at 3. We find Appellant’s reliance on

Sims to be misplaced. In Sims, following a Gagnon II hearing, the trial

court revoked the appellant’s probation because the appellant waived his

right to a Gagnon I hearing. See Sims, 770 A.2d at 350. In so doing, the

trial court concluded the appellant’s waiver of the Gagnon I hearing

constituted admission by the appellant that he had violated the terms of his

probation. Id. at 351. This Court disagreed. In reversing the trial court,

we held the court “erred by concluding that the waiver of the Gagnon I

hearing by appellant was sufficient to revoke his probation.” Id. at 353. We

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also found the Commonwealth failed to present any evidence that the

appellant had violated his probation. Id.

       This case is wholly distinguishable from Sims.        Instantly, the trial

court did not revoke Appellant’s parole because of a Gagnon I waiver.

Rather, it revoked Appellant’s parole because Appellant admitted at the

Gagnon II hearing that she violated her parole.           Moreover, given her

admission, the Commonwealth did not need to present further evidence of

parole violation.      Based on the circumstances of this case, specifically

Appellant’s admission to the violation, we discern no basis upon which to

conclude the trial court abused its discretion in revoking Appellant’s parole. 6

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




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6
  The trial court notes Appellant subsequently pled guilty to the charges
giving rise to the parole violation. Trial Court Opinion, 12/5/14, at 5. We,
however, observe the record does not contain any evidence on this issue.



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