J-S46042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
PETER WILSON,                              :
                                           :
                      Appellant            :     No. 3072 EDA 2015

        Appeal from the Judgment of Sentence September 10, 2015
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0508011-2004

BEFORE:       BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JULY 15, 2016

      Peter Wilson (Appellant) appeals from the judgment of sentence

entered following the revocation of his probation. After review, we vacate

Appellant’s judgment of sentence and remand for proceedings consistent

with this memorandum.

      The probation violation court summarized the background of this case

as follows.

            On April 14, 2005, [Appellant] was found guilty after a jury
      trial … of endangering the welfare of a child [(EWOC)], 18
      Pa.C.S. § 4304, as a felony of the third degree, and indecent
      assault, 18 Pa.C.S. § 3126, as a misdemeanor of the third
      degree.

              The victim was [Appellant’s] nine year-old daughter.

            On July 14, 2005, [Appellant] was sentenced to one to
      seven years [of incarceration] for the EWOC conviction; and five
      years [of] probation for the indecent assault conviction, to run
      consecutively. [Appellant] was found not to be a sexually violent

*Retired Senior Judge assigned to the Superior Court.
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     predator; however, [Appellant] was required to comply with the
     registration requirements under Megan’s Law.

          On July 19, 2005, [Appellant] filed a motion for
     reconsideration of his sentence, which this [c]ourt granted on
     August 16, 2005.

           On October 28, 2005, [Appellant] was re-sentenced to one
     to four years [of incarceration] for the EWOC conviction, plus
     three years [of] probation, and five years [of] probation for the
     indecent assault conviction to run consecutively.

          On April 17, 2008, [Appellant] was released from custody
     and began a five year Philadelphia County Special Probation.

           On April 15, 2009, [Appellant] pled guilty to possession of
     a controlled substance. Probation was continued and [Appellant]
     received no further penalty.

           On September 23, 2010, [Appellant] was found in
     technical violation of his probation. Parole was terminated and
     probation revoked. [Appellant] was sentenced to time served to
     twenty-three months [of incarceration], plus one year [of]
     probation for the EWOC conviction, to run consecutively; and
     five years [of] probation for the indecent assault conviction, to
     run consecutively.

           On September 10, 2015, [Appellant] was found in
     technical violation of his probation and was sentenced to six to
     twenty-three months [of incarceration], plus one year [of]
     probation.

           On September 21, 2015, [Appellant timely] filed a motion
     for reconsideration of sentence, which the [violation court]
     denied the same day.

           On October 9, 2015, [Appellant timely] filed the instant
     appeal. [The violation court did not order Appellant to file a
     concise statement of errors complained of on appeal pursuant to
     Pa.R.A.P. 1925, but did file an opinion.]




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Probation    Violation   Court   Opinion,   1/11/2016,   at   1-2   (unnecessary

capitalization and parenthetical numbers omitted).

        Appellant raises two issues on appeal.

        1.    Was not the evidence introduced at the probation
        revocation hearing insufficient as a matter of law to establish a
        technical violation of probation?

        2.     Did not the [violation] court err and violate the
        requirements of 42 Pa.C.S.A. § 9771(c) by sentencing
        [A]ppellant to total confinement absent him having been
        convicted of a new crime, absent any indication that he was
        likely to commit a new crime, and absent a showing that the
        sentence was “essential to vindicate the authority of the court”?

Appellant’s Brief at 4 (answers of the lower court omitted).

        Our scope of review for an appeal based on the imposition of a

sentence following probation revocation is limited to determining the validity

of the revocation proceedings and the legality of the judgment of sentence.

Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa. Super. 2010).

Revocation of a sentence of probation is a matter committed to the sound

discretion of the trial court and will not be disturbed on appeal in the

absence of an error of law or an abuse of discretion. Commonwealth v.

Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996).

        A review of how probation revocation proceedings are conducted

pursuant to Gagnon v. Scarpelli, 411 U.S. 778 (1973), is pertinent to this

case.

             The process and purpose of probation revocation hearings
        is as follows. When a … probationer is detained pending a



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     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.
     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.

            The Gagnon II hearing entails two decisions: first, a
     consideration of whether the facts determined warrant
     revocation. The first step in a Gagnon II revocation decision …
     involves a wholly retrospective factual question: whether the …
     [probationer] has in fact acted in violation of one or more
     conditions of his … [probation]. It is this fact that must be
     demonstrated by evidence containing probative value. Only if it
     is determined that the … [probationer] did violate the conditions
     does the second question arise: should the … [probationer] be
     recommitted to prison or should other steps be taken to protect
     society and improve chances of rehabilitation?           Thus, the
     Gagnon II hearing is more complete than the Gagnon I
     hearing in affording the probationer additional due process
     safeguards, specifically: (a) written notice of the claimed
     violations of [probation] … ; (b) disclosure to the [probationer] …
     of evidence against him; (c) opportunity to be heard in person
     and to present witnesses and documentary evidence; (d) the
     right to confront and cross-examine adverse witnesses (unless
     the hearing officer specifically finds good cause for not allowing
     confrontation); (e) a neutral and detached hearing body…; and
     (f) a written statement by the factfinders as to the evidence
     relied on and reasons for revoking [probation].

            We note that the burden of proof is different in Gagnon II
     hearings and criminal trials…. At trial the issue is whether the
     elements of the offense or offenses charged are present. The
     focus of a probation 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. Unlike a criminal
     trial where the burden is upon the Commonwealth to establish
     all of the requisite elements [of the offense(s) charged] beyond
     a reasonable doubt, at a revocation hearing the Commonwealth
     need only prove a violation of probation by a preponderance of
     the evidence.… A probation violation is established whenever it is
     shown that the conduct of the probationer indicates the



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      probation has proven to have been an ineffective vehicle to
      accomplish rehabilitation and not sufficient to deter against
      future antisocial conduct.

Commonwealth v. Sims, 770 A.2d 346, 349-50 (Pa. Super. 2001)

(citations and quotation marks omitted).

      Here, Appellant claims that the evidence was insufficient to prove a

violation of his probation.      Specifically, Appellant argues that “[t]he

probation officer’s testimony did not establish that [A]ppellant was using

illegal drugs or was away from his shelter for criminal, violative or improper

reasons.” Appellant’s Brief at 15.   Appellant points out that “[h]e was not

required to be at the shelter in the same way that one would be required to

be present and accounted for at a treatment program.” Id.         Additionally,

“[w]hile trying to explain that he would call the shelter if he was going to be

out past his curfew for work, the lower court cut him off.” Id.

      A review of the certified record reveals no documentation outlining

Appellant’s conditions of probation or which conditions he was accused of

violating.   Additionally, our review of the hearing transcript demonstrates

that the hearing Appellant received did not possess the due process

safeguards afforded to a defendant at a Gagnon II hearing.

      The hearing begins with the revocation court stating, “So he’s using

drugs and driving a car around --.” N.T., 9/10/2015, at 3. The revocation

court then asks, “Why are there drugs in his system?” Id. at 4.          Dave

Gardner, Appellant’s probation officer, responded that Appellant “did give us



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prescriptions in the past, not me, per se. He gave them to the other agent

prior to his supervision with me.” Id. However, Gardner stated that those

prescriptions were expired.     The revocation court then asked Appellant

whether he was taking Oxycodone. Appellant responded that he was taking

“painkillers … because I have a spinal injury.” Id. at 5. Appellant pointed

out that Gardner had only been his probation officer for the prior month-

and-a-half, and he had been giving his prescriptions every month to his prior

probation officer.

      Gardner then switched gears and told the trial court that he stopped

Appellant while he was driving a vehicle because the prior probation officer

“couldn’t make contact with [Appellant] in the field and they had to drag him

into the office to get him there because he missed[.]” Id. Gardner testified

that Appellant told Gardner that Appellant “got hurt on the job” and could

not work. Id. Gardner further testified that Appellant was not at the “shelter

where he was supposed to be.” Id.       Gardner then “waited for [Appellant]

one night and [Appellant] then comes driving up in the vehicle that’s

registered to his boss.” Id. at 6. Gardner told Appellant to report the next

day, and Appellant complied.        According to Gardner, Appellant then

“admitted to the hot Percocets.” Id. The Assistant District Attorney (ADA)

then spoke for the first time, and asked, “Is he disabled and not working?

Why is he driving the boss’ car?” Id. at 6-7.




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      Counsel for Appellant responded that Appellant has been “doing sort of

under-the-table work” because he “was injured on the job.” Id. Appellant

“filed a lawsuit to get Workers’ Comp.” Id.      The revocation court asked

Appellant what he was doing on the day he “got picked up.” Id. Appellant

responded that he was “working for a place[] called Mr. Ed’s Hood Cleaning

Service.” Id.   According to Appellant, it was a company that would clean

restaurant hoods “where the exhaust fans would go.” Id. Appellant stated

that when he “was running late to the shelter, [the boss] would let

[Appellant] take his car, because [he] had to be in by 10:00 [p.m.]” Id. The

revocation court then questioned Appellant about why he was gone from the

shelter from 6:00 a.m. until 11:00 p.m. even though Appellant was not

working that whole time.    Appellant responded that he was working and

doing physical therapy.     Counsel for Appellant then clarified that “the

shelter, it’s not like a recovery house, so they allow him out during the day.

Other than meeting with his parole agent, he is allowed to go even, let’s say,

just to w[a]nder around town. It’s not like it’s a program situation where is

supposed to be there attending treatment.” Id. at 10. Gardner then pointed

out that Appellant did have a curfew; however, Appellant responded that he

had permission to stay out past curfew.        At that point, the following

exchange occurred:

           THE COURT: You need to control your behavior. You just
      speak out constantly.




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             [Appellant]: I’m sorry.

            THE COURT: Do you know why? Because you have to
      defend yourself. Do you know why? Because you are using
      drugs and running the street. I mean, that’s what you do.

             [Appellant]: Your Honor, I have thirty-six months clean.

             THE COURT: And you’re a fast talker.

             [Appellant]: Your Honor, I have thirty-six months clean.

            THE COURT: No, you don’t. You are not clean when you
      are taking opioids and Oxycodone. Do you understand those are
      drugs? That’s an addiction just like any other. That’s what you
      are taking. Before it was crack. I mean, at one point you got
      arrested for crack. You’ve been using drugs the whole time
      pretty much. You don’t have a valid prescription. You’re using
      drugs --

             [Appellant]: Your Honor, I do have a valid prescription.

            THE COURT: -- you’re running the streets, you’re driving
      around in cars that you’re not telling them about. I mean, you
      have to follow the rules. That’s the whole point of this. All right.

Id. at 10-11.

      With no further questioning or discussion, the revocation court found

Appellant in technical violation and asked Appellant if there was anything

else he wished to say prior to sentencing. Appellant stated the following:

      Your Honor, I was not using drugs. Your Honor, the only thing I
      was taking was the Percocet. I went back to work. This is the
      first time I’ve missed since 2004, since I first came in front of
      you. I’ve actually tried to change my life, okay? I was not using
      drugs. I was taking prescription Percocet. That’s all I was
      taking. I wasn’t doing anything else. I was running late. That
      was all I was doing.

Id. at 13.



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      The revocation court asked the Commonwealth if there was anything

else. At that point, the ADA spoke for the second and final time during the

whole hearing to say, “Your Honor, I have nothing to add at this point.” Id.

The revocation court then sentenced Appellant to six to 23 months of

incarceration to be followed by one year of probation.

      Based upon this convoluted hearing, Appellant argues that the

“Commonwealth failed to meet its burden in this case.” Appellant’s Brief at

15.   We agree.   We first point out that the record is unclear as to which

conditions of his probation Appellant violated.1 The Commonwealth argues

that “the revocation court heard evidence of [Appellant’s] positive drug

tests, his Megan’s Law reporting violation, and his avoidance of his probation

officer.” Commonwealth’s Brief at 8. Thus, we examine each in light of the

aforementioned hearing.

      With respect to positive drug tests, the Commonwealth presented no

evidence as to when exactly Appellant tested positive for drugs. It is even

unclear whether Appellant tested positive for Oxycodone, Percocet, or

something else altogether.2   Moreover, even if Appellant did test positive,


1
  Because the certified record does not contain a written description of
exactly what conduct of Appellant’s was in violation of the conditions of his
probation, Appellant’s due process rights may have been violated in this
regard. However, in light of our disposition, we need not make such a
determination.
2
  The Commonwealth states that Appellant “tested positive for opioids and
oxycodone.” Commonwealth’s Brief at 10. Appellant admitted to having


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the revocation court never permitted Appellant the opportunity to present

his explanation about his prescription. The record is clear that Appellant did

have valid prescriptions at some point in the recent past.

      The Commonwealth also argues that Appellant “violated Megan’s Law

by taking unreported jobs and driving his employer’s car.” Commonwealth’s

Brief at 12.3   The Commonwealth points to 42 Pa.C.S. § 9799.16(b)(12),

which states that Appellant must provide “[i]nformation relating to motor

vehicles owned or operated by the individual…. [T]he individual shall provide

a description of each motor vehicle…. The individual shall provide a license

plate number, registration number or other identification number and the

address of the place where a vehicle is stored.” It is unclear whether a car

borrowed on one, or even more than one, occasion requires notification to

the state police. For example, an individual only has to register a residence

when it is a “location where an individual resides or is domiciled or intends

to be domiciled for 30 consecutive days or more during a calendar year.” 42

Pa.C.S. § 9799.12.       Additionally, an individual only has to register



prescriptions for Percocet, which is a combination of oxycodone and
acetaminophen. Both are classified as opioids.
3
  The Commonwealth points out that Appellant “had been informed of the
requirement to report employment to state police” at the time he was
sentenced in 2005. Commonwealth’s Brief at 12 n.4. See also N.T.,
7/14/2005, at 16-17 (“You have to notify the state police within ten days if
you move, after registering, or establishing other residence, change
employer or employment location for a period of time that will exceed 14
days.”).


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employment where it is “for a period of time exceeding four days during a

seven-day period or for an aggregate period of time exceeding 14 days

during any calendar year.” Id. Thus, driving occasionally in a borrowed car

may not even be a violation of Megan’s Law.

      Finally,    the   Commonwealth   suggests    that   Appellant   “further

demonstrated his unwillingness to comply with probation by avoiding his

probation officer and failing to report changes in address to probation.”

Commonwealth’s Brief at 12.      The Commonwealth argues that Appellant

“hid” from his probation officer. Id. at 13.   However, the record does not

support such a conclusion.

      Appellant was a resident of a shelter that permitted him to be away

from the shelter all day. Thus, we cannot agree that Appellant’s failure to be

at the shelter when his probation officer went there was a violation of a

condition of his probation.      Moreover, when Gardner did encounter

Appellant, Gardner acknowledged that he could have detained Appellant at

that moment, but chose not to do so at that point. See N.T., 9/10/2015, at

6. Instead, Gardner told Appellant to come in the next day, and Appellant

complied. Id. While Gardner did refer generally to other times when “they

couldn’t make contact with [Appellant] in the field,” Gardner did not point to

any dates or times when Appellant actually missed scheduled appointments.

Id. at 5.        Thus, we cannot agree that the Commonwealth presented

evidence to show that Appellant was avoiding his probation officer.



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      Based on the foregoing, the Commonwealth did not present sufficient

evidence to establish that Appellant was in technical violation of his

probation.    Moreover, even if the Commonwealth did present sufficient

evidence to establish that Appellant committed one or more of the

aforementioned technical violations, we point out that the “record in the

instant case is devoid of any finding by the court that revocation of

Appellant’s probation was predicated on his willful or flagrant disrespect of

the terms of his probation, that revocation was necessary to vindicate the

authority of the court, or that Appellant’s conduct … evidenced a likelihood

that he would commit another crime if not imprisoned.” Commonwealth v.

Ballard, 814 A.2d 1242, 1246 (Pa. Super. 2003).

      In reaching the conclusion that the Commonwealth did not meet its

burden, we are cognizant that “[t]echnical violations can support revocation

and a sentence of incarceration when such violations are flagrant and

indicate an inability to reform.” Commonwealth v. Carver, 923 A.2d 495,

498 (Pa. Super. 2007). However, even where a violation of probation has

occurred, “revocation is not automatic. Rather, the focus must remain on

whether probation can still be an effective tool for rehabilitation.” Id.

      Because the Commonwealth did not meet its burden in this case, we

vacate Appellant’s judgment of sentence and remand for a new probation

revocation hearing. See Commonwealth v. Mullins, 918 A.2d 82, 86 (Pa.




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2007) (“The Superior Court has consistently remanded for new VOP hearings

when probation revocations are vacated due to insufficient evidence.”).4

     Judgment of sentence vacated.          Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/15/2016




4
  Because Appellant is entitled to a new hearing, we need not consider his
second issue, regarding the discretionary aspects of his sentence, at this
time.


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