J-S42011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KIMOTHY LAMONT SMITH                    :
                                         :
                   Appellant             :   No. 69 MDA 2018

        Appeal from the Judgment of Sentence December 20, 2017
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                     No(s): CP-35-CR-0000391-2012


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                FILED: JANUARY 2, 2019

     Kimothy Lamont Smith appeals from the judgment of sentence of

eighteen to forty-eight months incarceration followed by two years probation,

imposed following violation of probation (“VOP”). We affirm.

     The underlying criminal charges relate to the execution of a search

warrant of Appellant’s residence on December 7, 2011. Authorities recovered,

inter alia, fifty-three bags of heroin and two bulletproof vests.   Appellant

entered a guilty plea to one count of possession with intent to deliver

(“PWID”), and one count of unlawful possession of body armor. On December

10, 2013, the trial court imposed the agreed-upon sentence of three to six

years incarceration, followed by four years probation, at PWID.       At the

remaining count, Appellant received a concurrent sentence of four years

probation. Appellant received time credit from December 8, 2011, to that



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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date. Therefore, Appellant’s sentence effectively commenced on December 8,

2011.

        On August 21, 2017, which was prior to Appellant’s serving the

maximum term of six years incarceration, the trial judge issued a capias

ordering Appellant’s appearance for a probation revocation hearing, which

took place on November 22, 2017.               Appellant’s girlfriend, Holly Waldeck,

testified that on February 17, 2017, Appellant became angry when she did not

have time to make dinner.1 Appellant grabbed the cigarette she was smoking

out of her mouth, and repeatedly struck her face. Appellant then pushed her

to the ground and held the lit cigarette to her shoulder blades.           Appellant

continued to physically abuse her over the next four days.

        On February 22, 2017, Ms. Waldeck visited Appellant’s probation2 officer

to report the abuse. Photographs depicting Ms. Waldeck’s injuries were taken,

which were entered into evidence at the revocation hearing. Appellant was

arrested the next day.3
____________________________________________


1 The two parties apparently lived together, as later testimony established that
the residence where the incidents occurred belonged to Appellant.

2 The record does not indicate when Appellant was paroled, and the testimony
referred to Ms. Waldeck’s contact with Appellant’s parole officer. For the sake
of consistency we elect to refer to him as the probation officer, since the court
herein revoked Appellant’s probation.

3 The record offers no explanation for the five-month delay between Ms.
Waldeck’s report and the commencement of these proceedings on August 21,
2017. As noted in the text infra, the testimony established that Appellant was
reincarcerated sometime between February and August.              Presumably,



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       Ms. Waldeck’s mother, Virginia Stermer, testified that on February 21,

2017, Ms. Waldeck called in the middle of the night and reported Appellant’s

abuse. Ms. Stermer told her to leave the house. Ms. Stermer later met Ms.

Waldeck at the hospital, where she encountered Appellant. He told her that

he “f***ed up” and said “he was going to f*** me up.” N.T., 11/22/17, at

18.

       The Commonwealth also called Jason Westgate, an agent with the

Pennsylvania Board of Probation and Parole. Agent Westgate testified that,

on August 24, 2017, Appellant “was at SCI Waymart on a parole violation and

a detainer was sent up pending his . . . hearing.”     Id. at 22.   However,

Appellant was mistakenly released and was sent to a halfway house. Agent

Westgate picked up Appellant at the halfway house and transported him back

to Lackawanna County for the instant hearing. The agent testified that during

the ride, Appellant “began making . . . threats against myself and my family

and it continued basically for the entire car ride about two hours worth.” Id.

at 23. Appellant stated that “he was going to get me when he got out of jail”

and told Agent Westgate to “put a bullet in [Appellant’s] head because that

would be the only way I would stop him from coming after me.” Id. at 24.




____________________________________________


Appellant was ordered to serve the balance of his original term. See 61
Pa.C.S. § 6138(a)(2) (“If the parolee's recommitment is so ordered, the
parolee shall be reentered to serve the remainder of the term which the
parolee would have been compelled to serve had the parole not been
granted[.]”).

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      Appellant testified and related that on February 21, 2017, he told Ms.

Waldeck after a fight that their relationship was over and that she needed to

leave. She started screaming and pushed Appellant. Appellant, wanting Ms.

Waldeck removed from the house, called 911. While he was on the phone

with the dispatcher, Ms. Waldeck took her car keys and left.        Appellant

testified:

      . . . And I said that I was tired of her threatening me and I told
      the dispatcher at that time, I said that you don’t have to send a
      squad car no more because she is leaving and she gave my house
      keys, I gave her her car key and she is leaving. They told me it’s
      too late that they are already coming. When I said to the
      dispatcher it’s not necessary. He said, “Well, it’s too late.”

      I said, “Okay.”

      And I hung up the phone. She walks to the hospital, I walk back
      to my house[.]

Id. at 31-32.

      Appellant also stated that he spoke to the police officers on scene, one

of whom advised Appellant to contact his probation officer as a precautionary

measure. Appellant stated that Agent Westgate arrested him before he had

a chance to do so. On cross-examination, Appellant could not explain Ms.

Waldeck’s injuries nor why she went to the hospital.

      The court revoked Appellant’s probation, and on December 20, 2017,

sentenced him to twelve to forty-eight months incarceration, followed by two

years probation at count one. At the remaining charge, the court imposed a

consecutive sentence of six to twenty-four months incarceration. Appellant


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thereafter filed a timely post-sentence motion, and filed a notice of appeal on

January 4, 2018, before the trial court could rule on the motion. The court

issued an order denying the motions on January 5, 2018.4 Appellant presents

the following issues for our review.

       1. Whether the weight and sufficiency of the Commonwealth's
       evidence supported a finding of a technical violation of
       supervision?

       2. Whether the [VOP] court erred in permitting the probation
       officer to testif[y] regarding Appellant's behavior which
       statements were not contained in the written violation petition,
       and of which the Appellant was not provided fair notice, thereby
       violating his right to due process?

       3. Whether the [VOP] court erred when it prohibited Appellant
       from cross-examining the complainant about her criminal
       background?

       4. Whether the [VOP] court erred when it refused to keep the
       record open in order to allow Appellant to offer rebuttal testimony
       and evidence?

       5. Whether the [VOP] sentencing court erred and abused its
       discretion when it imposed harsh, unreasonable and excessive


____________________________________________


4  We treat this appeal from the judgment of sentence as made final by the
denial of post-sentence motions. In Commonwealth v. Borrero, 692 A.2d
158 (Pa.Super. 1997), we quashed an appeal under similar circumstances
where the appeal was from a non-revocation sentence. Therein, the appellant
filed a post-sentence motion, followed by a notice of appeal. We quashed the
appeal as interlocutory, since the court did not rule on the motions. We noted
that the “appeal did not divest the trial court of jurisdiction in this instance,”
since filing a notice of appeal while post-sentence motions are pending is not
permitted. Id. at 161 n.4. Here, the VOP court denied the motions, and we
treat the appeal as from the final judgment of sentence. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”).

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      sentences for     a   technical   violation   of   Appellant's   special
      probation?

      6. Whether the [VOP] sentencing court failed to state on the
      record the reasons for the sentences imposed?

Appellant’s brief at 4 (reordered).

      Appellant’s first issue alleges that the Commonwealth presented

insufficient evidence to sustain a finding of a probation violation. The following

standard of review applies.

      When we consider an appeal from a sentence imposed following
      the revocation of probation, our review is limited to determining
      the validity of the probation revocation proceedings and the
      authority of the sentencing court to consider the same sentencing
      alternatives that it had at the time of the initial sentencing.
      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 an
      abuse of discretion. The Commonwealth establishes a probation
      violation meriting revocation when it shows, by a preponderance
      of the evidence, that the probationer's conduct violated the terms
      and conditions of his probation, and that probation has proven an
      ineffective rehabilitation tool incapable of deterring probationer
      from future antisocial conduct.

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

(quotation marks and citation omitted).

      We find that the Commonwealth presented sufficient evidence to sustain

the finding. “A probation violation is established whenever it is shown that

the conduct of the probationer indicates the probation has proven to have

been an ineffective vehicle to accomplish rehabilitation and not sufficient to

deter against future antisocial conduct.” Commonwealth v. Colon, 102 A.3d

1033, 1041 (Pa.Super. 2014) (citations omitted).          The received evidence,


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which involved Ms. Waldeck’s testimony that Appellant subjected her to four

days of terror, plus Appellant’s threats to murder Agent Westgate and his

family, clearly “demonstrate[d] to the court that he is unworthy of

probation[.]”   Commonwealth v. Hoover, 909 A.2d 321, 324 (Pa.Super.

2006) (citation omitted).

      Appellant asserts that the evidence was insufficient because his version

of the events as testified to at the hearing was more credible. “It would not

make sense for [Appellant] to have called the police if her [sic] were the

abuser.     He believes that the [VOP] court erred when it found the

complainant’s testimony as credible to support the violation.” Appellant’s brief

at 17-18.

      Appellant’s argument respecting the credibility of Ms. Waldeck goes to

the weight of the evidence, not its sufficiency. “[Small] claims that since there

are inconsistencies between various witnesses' testimony, this Court should

find the evidence insufficient to convict appellant. . . . [this] challenge goes

to the weight of the evidence.” Commonwealth v. Small, 741 A.2d 666,

672 (Pa. 1999). Thus, this sufficiency claims fails from the outset. Id.

      We nevertheless note that the VOP court was not obligated to accept

Appellant’s version of events, as the judge’s role in a probation revocation

proceeding is like that of a judge in a non-jury trial, and includes credibility

evaluations.    Perreault, supra at 558 (applying the following standard of

review in a VOP proceeding: “We must determine whether the evidence


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admitted at trial and all reasonable inferences drawn therefrom, when viewed

in the light most favorable to the Commonwealth as the verdict winner, is

sufficient to support all elements of the offenses.”) (citation omitted).

Accordingly, the Commonwealth presented sufficient evidence as the VOP

court was free to credit or discredit the competing accounts, and the finding

of a violation is affirmed.

       Appellant’s next issue alleges that the court erred by permitting Agent

Westgate to testify regarding Appellant’s threats. Appellant notes that these

statements were not contained in the formal petition seeking revocation, and,

as a result, Appellant’s right to fair notice as a component of due process was

violated.

       In Morrissey v. Brewer, 408 U.S. 471, 488 (1972), the United States

Supreme Court held that the minimum requirements of due process in this

context include, inter alia, “written notice of the claimed violations[.]” Id. at

489.    There is no doubt that Appellant was entitled to notice that the

Commonwealth sought to introduce the threats against Agent Westgate as

support for a probation violation.     However, Appellant did not object or

otherwise complain about the lack of notice at the revocation proceeding, and

we therefore deem the issue waived. See Commonwealth v. Collins, 424

A.2d 1254 (Pa. 1981) (holding that allegation violator received inadequate

notice was waived; “A review of the record . . . reflects that these objections

were not raised during that proceeding.        The failure to interpose these


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objections at any time in the court below precludes their consideration on

appeal.”); Commonwealth v. King, 430 A.2d 990, 991 (Pa.Super. 1981)

(noting that previous cases have held that this claim is not subject to waiver;

“Recently, however, [Collins] has considered this same issue and, sub

silentio, has overruled these cases by holding that objections not raised during

a counselled revocation proceeding will not be considered on appeal.”).5

       Appellant’s next claim asserts that the trial court impermissibly

prevented him from impeaching Ms. Waldeck with evidence of her prior

convictions for unspecified crimen falsi convictions. See Pa.R.E. 609(a) (“For

the purpose of attacking the credibility of any witness, evidence that the

witness has been convicted of a crime, whether by verdict or by plea of guilty

or nolo contendere, must be admitted if it involved dishonesty or false

statement.”). As noted by the Commonwealth, Appellant did not pursue that

line of inquiry. Instead, Appellant attempted to establish that Ms. Waldeck

was currently being supervised due to an unspecified conviction.           N.T.,

11/22/17, at 12 (“[I]sn’t it also true that you are on supervision?”).      The

Commonwealth objected on relevancy grounds, which the VOP court

sustained. Appellant did not attempt to separately introduce evidence of Ms.

____________________________________________


5 Notably, the at-issue comments were made after the capias was filed. This
timeline demonstrates the necessity of issue preservation: The
Commonwealth may well have informally told counsel of its intent to present
additional evidence following the initiation of formal revocation proceedings.




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Waldeck’s alleged crimen falsi convictions.6       Therefore, the issue was not

before the VOP court and there is no ruling to review.

       Appellant’s final non-sentencing issue faults the VOP court for refusing

to keep the record open in order to permit the development of rebuttal

evidence. We find no error. In the related context of challenges to a trial

court’s decision to deny a request for postponement of trial, we have

observed:

       [A] trial court's decision to deny a request for a continuance

              will be reversed only upon a showing of an abuse of
              discretion. Commonwealth v. Ross, 465 Pa. 421,
              422 n. 2, 350 A.2d 836, 837 n.2 (1976). As we have
              consistently stated, an abuse of discretion is not
              merely an error [in] judgment. Mielcuszny v. Rosol,
              317 Pa. 91, 93–94, 176 A. 236, 237 (1934). Rather,
              discretion is abused when “the law is overridden or
              misapplied, or the judgment exercised is manifestly
              unreasonable, or the result of partiality, prejudice,
              bias, or ill-will, as shown by the evidence or the
              record....” Commonwealth v. Chambers, 546 Pa.
              370, 387, 685 A.2d 96, 104 (1996) (quoting
              Mielcuszny, 317 Pa. at 93–94, 176 A. at 236).

       Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277,
       1281 (2005) (quoting Commonwealth v. McAleer, 561 Pa. 129,
       748 A.2d 670, 673 (2000)).

              ....

       In examining whether a trial court abused its discretion in refusing
       to grant a continuance for a defendant to retain new counsel,
       Pennsylvania courts have historically looked at several factors.
____________________________________________


6The record does not establish whether Ms. Waldeck has been convicted of
any offenses that qualify as crimen falsi. Appellant merely asserts their
existence.

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      We have generally found that a trial court did not abuse its
      discretion in denying a request for a continuance to retain new
      counsel where the trial court conducted an “extensive inquiry” into
      the underlying causes of defendant's dissatisfaction with current
      counsel and based upon that inquiry determined that the
      differences did not constitute “irreconcilable differences.”
      Commonwealth v. Floyd, 937 A.2d 494, 496–500 (Pa.Super.
      2007) (collecting cases).

      We have also looked to the number of prior continuances in the
      matter, the timing of the motion, whether private counsel had
      actually been retained, and the readiness of private counsel to
      proceed in a reasonable amount of time.

Commonwealth v. Prysock, 972 A.2d 539, 542–43 (Pa.Super. 2009).

      As noted in the foregoing quotation, the timing of the motion is a

relevant consideration and the pertinent Rule of Criminal Procedure states:

      Rule 106. Continuances in Summary and Court Cases

            ....

      (D) A motion for continuance on behalf of the defendant shall be
      made not later than 48 hours before the time set for the
      proceeding. A later motion shall be entertained only when the
      opportunity therefor did not previously exist, or the defendant was
      not aware of the grounds for the motion, or the interests of justice
      require it.

Pa.R.Crim.P. 106.

      Recognizing that Rule 106 requires advance notice, Appellant argues the

Rule does not apply since he did not seek to continue the proceeding:

“Appellant did not request a continuance of the proceeding, but rather he

requested that the record be left open in order to present rebuttal evidence.”

Appellant’s brief at 21 (emphasis in original). That is a distinction without a

difference. Whether the case is postponed for purposes of delaying the start

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of proceedings, or the record kept open for purposes of presenting further

evidence, the end result is the same: the case is continued. We therefore look

to the nonexclusive list of factors discussed supra to determine if the court

abused its discretion in refusing his request.

       The belated request weighs heavily in favor of finding no abuse of

discretion. The order scheduling the November 22, 2017 hearing was issued

on October 24, 2017. Therefore, Appellant had approximately one month to

prepare for the hearing. Moreover, the capias issued on August 21, 2017 set

forth the allegations of Ms. Waldeck. If further time was needed to obtain

rebuttal evidence regarding those allegations Appellant could have sought a

postponement well in advance.7            Additionally, Appellant did not establish

specific reasons justifying the delay. Appellant blames the VOP court for that

omission:

       The [VOP] court refused to entertain Appellant's request to offer
       rebuttal evidence. It did not even inquire into the nature of the
       rebuttal evidence. Without knowing what evidence he intended to
       present, Appellant submits that the [VOP] court committed an
       abuse of discretion.    He asserts that if the evidence were
       cumulative or did not pertain to the substance of the
____________________________________________


7 We acknowledge that Appellant may or may not have known of Agent
Westgate’s testimony. Assuming arguendo that Agent Westgate’s testimony
was a complete surprise—thereby supplying a justification for the timing of
the request—we discern little reason to keep the record open. Agent Westgate
testified that he and Agent Rikli drove Appellant. Therefore, the only evidence
of what occurred in the vehicle would come from those three men, all of whom
were present. N.T., 11/22/17, at 27 (“I just want to point out for the Court
that Agent Rikli is in Court today . . . I believe he would echo the same
testimony as Agent Westgate.”).


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      Commonwealth's witnesses' testimony, there may have been a
      valid basis for the [VOP] court to deny his request.

Appellant’s brief at 21-22.

      The VOP court doubtlessly could have asked what evidence Appellant

would seek to present if given the benefit of time. But there is no reason to

hold that the trial court is required to prod Appellant for more information.

The VOP court’s decisions must be made on the basis of the information

supplied by the adversaries. The late request, coupled with the non-specific

proffer, justified the judge’s ruling, and we find no abuse of discretion.

      Appellant’s final two issues concern his sentence, and we address them

together. He first alleges that the VOP court failed to place adequate reasons

on the record for the imposed sentence. Next, he claims that the sentence

was unduly harsh. Both claims pertain to the discretionary aspects of the

sentence, which is not appealable as of right. In order to invoke this Court's

jurisdiction, we analyze whether Appellant has: 1) filed a timely notice of

appeal; 2) preserved the issue at sentencing or in a post-sentence motion; 3)

filed a Pa.R.A.P. 2119(f) statement in his appellate brief; and 4) demonstrated

that there is a substantial question that his sentence is inappropriate under

the Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 169

(Pa.Super. 2010) (citation omitted).

      Appellant has failed to invoke our jurisdiction because he did not

challenge any aspect of his sentence in the post-sentence motion.            See

Commonwealth v. Jones, 191 A.3d 830, 835 (Pa.Super. 2018) (“If an

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appellant never gives the trial court the opportunity to provide relief, then

there is no discretionary act that this Court can review.”); Commonwealth

v. Cartrette, 83 A.3d 1030, 1042–43 (Pa.Super. 2013) (“Although we find

that this argument raises a substantial question, his issue is waived for not

being preserved in his post-sentence motion or at sentencing.”) (citations

omitted). We do not have jurisdiction to reach the merits of his sentencing

claims as a result of that failure.

       Moreover, Appellant did not even present his issue in his Pa.R.A.P.

1925(b) statement. While that would not prevent waiver, it is notable that

Appellant alleged only that the sentence was “harsh, unreasonable, and

excessive . . . for a technical violation[.]” Concise Statement, 1/25/18, at 1.8

Appellant did not object to the lack of an explanation until the briefing stage,

which comes far too late as it does not give the VOP court an opportunity to

rectify the purported error.




____________________________________________


8 We encourage the VOP court to re-examine the language contained within
the document captioned “Gagnon II Post Sentence Rights,” which appears to
be a stock form. That document informs defendants that “a motion to modify
a sentence imposed after a revocation shall be filed within ten (10) days . . .
[t]he Judge must decide that post sentence motion within 120 days, and if the
Judge fails to do so, the motion is deemed to be denied by operation of law.”
This language suggests that the filing of such motion tolls the applicable
appeal period. See Pa.R.Crim.P. 708(E) (“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.”) (emphasis added).


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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/02/19




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