J-S37019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DOMINGO VEGA,

                            Appellant              No. 1255 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-0000215-2012


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 03, 2016

       Appellant, Domingo Vega, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

       We summarize the procedural history of this case as follows.     On

October 3, 2012, the Commonwealth filed a criminal information charging

Appellant, then age sixty-six, with criminal attempt to commit indecent

assault, corruption of a minor, and criminal solicitation stemming from his

conduct with an unrelated female victim, who was then five years old. Also,

on that date, pursuant to a plea agreement, Appellant pled guilty to the

crime of corruption of a minor.1 In addition, on October 3, 2012, the trial

____________________________________________


1
  The crimes of criminal attempt to commit indecent assault and criminal
solicitation were nolle prosequied pursuant to the plea agreement.
J-S37019-16


court sentenced Appellant to a term of incarceration of six months to

twenty-four months, less one day, to be followed by a period of three years

plus one day of probation. Appellant was given credit for time served from

March 24, 2012.      As a special condition, the sentencing court’s order

directed the following:

      b. [That Appellant a]ttend and successfully complete the Project
      Point of Light Program.

      c. [Appellant] shall have NO UNSUPERVISED CONTACT with the
      victim [or] with children under the age of 18.

Sentencing Order, 10/3/12, at 1. On November 1, 2012, the trial court filed

a parole order granting Appellant’s petition for parole effective November 5,

2012. The parole order contained the following special conditions:

      c. . . . [That Appellant c]omplete [Project Point of Light]
      Assessment.

                                  ...

      g. [Appellant] shall have no unsupervised contact with minors.

Parole Order, 11/1/12, at 1. Appellant did not take a direct appeal from his

judgment of sentence.

      Thereafter, on May 18, 2015, Appellant was charged with violating

conditions of his probation/parole. Specifically, it was alleged that Appellant

failed a periodic polygraph examination on May 6, 2015, during which

Appellant admitted to having unsupervised contact with a six-year-old girl.

A Gagnon I hearing was held on May 20, 2015, after which an order was

entered directing that Appellant remain incarcerated until a Gagnon II

                                     -2-
J-S37019-16


hearing was held.       Appellant’s Gagnon II hearing was conducted on June

17, 2015, and the revocation court entered an order finding Appellant in

violation of his probation.2 A presentence report was then completed and,

on July 1, 2015, the revocation court entered an order revoking Appellant’s

probation and sentencing him to serve a term of incarceration of eighteen

months to five years, with credit for time served.         On July 15, 2015,

Appellant filed an untimely motion for reconsideration of sentence nunc pro
____________________________________________


2
  In Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005), we
summarized the probation revocation process as follows:

             In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656,
       93 S. Ct. 1756 (1973), the United States Supreme Court held
       that a defendant accused of violating the terms of his probation
       is entitled to two hearings prior to formal revocation and re-
       sentencing.

              When a parolee or probationer is detained pending a
              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.

       Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
       2001). The Gagnon II hearing requires two inquiries: (1)
       whether the probationer has in fact violated one of the
       conditions of his probation, and, if so, (2) should the probationer
       be recommitted to prison or should other steps be taken to
       protect society and improve chances of rehabilitation.          Id.
       (quoting Gagnon, supra at 784).

Heilman, 876 A.2d at 1026-1027.



                                           -3-
J-S37019-16


tunc. Appellant’s motion was denied the same day. This timely appeal was

filed on July 30, 2015.     Both Appellant and the revocation court have

complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

            Whether the lower court erred when it found that the
      allegations of the probation violation were proven by a
      preponderance of the evidence. (The other issue raised in the
      Motion for Reconsideration of Sentence-whether the sentence
      was an abuse of discretion is conceded as having no merit).

Appellant’s Brief at 4.

      In his sole issue on appeal, Appellant argues that the Commonwealth

failed to prove by a preponderance of the evidence that he violated his

probation.   Appellant’s Brief at 7-8.   Appellant contends that, because the

Commonwealth did not establish the identity of the alleged victim and used

Appellant’s admission during the polygraph as evidence of the violation, the

Commonwealth failed to meet its burden of proof. Appellant alleges that his

admission during the polygraph examination was suspect because he had

difficulty understanding the meaning of the questions that were posed to

him. Id. at 7.

      We review this issue mindful of the following:

            Initially, we note that, in an appeal from a sentence
      imposed after the court has revoked probation, we can review
      the validity of the revocation proceedings, the legality of the
      sentence imposed following revocation, and any challenge to the
      discretionary     aspects    of   the    sentence      imposed.
      Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa. Super.
      2013) (en banc). In this case, Appellant’s position pertains to
      the validity of the proceedings. Commonwealth v. Ortega,

                                     -4-
J-S37019-16


     995 A.2d 879 (Pa. Super. 2010). In a revocation hearing the
     Commonwealth has the obligation of establishing its case by a
     preponderance of the evidence. Commonwealth v. Brown,
     503 Pa. 514, 469 A.2d 1371, 1374 n.2 (Pa. 1983).

Commonwealth v. Wright, 116 A.3d 133, 163 (Pa. Super. 2015).

     Instantly, the trial court addressed Appellant’s argument with the

following analysis, which we adopt as our own:

           Among the conditions of his probation, [Appellant], a
     convicted sex offender, was directed not to have any
     unsupervised contact with persons under the age of 18, and the
     Commonwealth proved by a preponderance of the evidence that
     he violated that condition.

           [Appellant] sat for a treatment polygraph on May 6, 2015,
     at which time he admitted to having unsupervised contact with a
     minor. (Hearing Transcript, 06/17/2015, pp. 10-11). Knowing
     that admission was at odds with what [Appellant] had indicated
     during the pre-test interview, the polygrapher, Mark Knezovich
     (Knezovich), pointed out the inconsistency and, after again
     reviewing the questions with [Appellant] and ensuring that
     [Appellant] understood, asked them again.         (Id. at 11).
     [Appellant] answered differently the second time, implicitly
     retracting his admission. (Id.). According to the test, though,
     [Appellant] was then being deceptive. (Id.).

           After answering the questions wrong, [Appellant] claimed
     to have been confused. (Id. at 10). As Knezovich testified,
     however, [Appellant] had no apparent problem understanding
     the process or the polygrapher’s questions during the pre-test
     interview, at which time [Appellant] answered the relevant
     question correctly. (Id. at 9 -10). Nor did it appear from the
     exam video that [Appellant] was having trouble understanding
     the questions. (See id. at 44 (COURT: The reason that I wanted
     to watch the video and watching [Appellant] testify, he certainly
     seems more confused today than he did in the video. Watching
     the video, [Appellant] clearly understood all the questions.
     [Appellant] clearly understood the setup). [Appellant] further
     understood the      apparent implications when Knezovich
     questioned the disparity and thus knew how to correct his
     answers. (Id. at 13, 20-21). [Appellant] knew he needed to

                                   -5-
J-S37019-16


      answer no if he wanted to stay out of trouble, and that is what
      he did.   Reinforcing the Court’s conclusion that [Appellant]
      understood Knezovich’s question and that his confusion was
      merely feigned, moreover, [Appellant] provided an unhesitating
      and accurate definition of supervised contact when he was on
      the witness stand two months later. (Id. at 25). There being no
      testimony to the contrary, the Court can reasonably assume that
      supervised contact was also part of [Appellant’s] internal lexicon
      on May 6, 2015.

            In proffering [Appellant’s] admissions and satisfying the
      Court that [Appellant] understood what he was admitting when
      he acknowledged having had unsupervised contact with a minor,
      therefore, the Commonwealth proved by a preponderance of the
      evidence that [Appellant] violated condition 13 of his probation.1
      That is what the record demonstrates.
            1
               Defense counsel suggested at the hearing that
            [Appellant’s] admission alone was insufficient to
            sustain a finding that he had violated [probation].
            According to Pitch v. PBPP, 514 A.2d 638 (Pa.
            Commw. Ct. 1986), however, the [corpus delicti]
            rule does not apply at revocation proceedings and a
            defendant’s admissions, in and of themselves, are
            enough to satisfy the Commonwealth’s burden. Id.
            at 640-[6]41.

Trial Court Opinion, 12/14/15, at 1-2. On the basis of the analysis stated

above and our review of the certified record, we conclude that Appellant’s

claim lacks merit.

      Judgment of sentence affirmed.




                                    -6-
J-S37019-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016




                          -7-
Circulated 05/24/2016 10:41 AM
