J-S68004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ANTHONY TORRENCE DORSEY,

                            Appellant                    No. 1019 WDA 2015


              Appeal from the Judgment of Sentence May 27, 2015
                In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0004000-2008, CP-02-CR-0005905-
                                      2006


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED NOVEMBER 23, 2016

        Appellant, Anthony Torrence Dorsey, appeals from the judgments of

sentence entered following revocation of his probation. We affirm.

        On October 16, 2008, Appellant pled guilty to charges included in two

criminal informations. At CC-2006-05905, Appellant pled guilty to one count

of possession with intent to deliver (“PWID”) cocaine and one count of

possession of drug paraphernalia.              At the PWID count, Appellant was

sentenced to two to four years of incarceration, followed by three years of

probation.    Sentencing Order, 10/16/08, CC-2006-05905, at 1-3.         At the



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*
    Retired Senior Judge assigned to the Superior Court.
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possession of drug paraphernalia count, Appellant was sentenced to one

year of probation, concurrent to probation at the first count. Id.

        At CC-2008-04000, Appellant pled guilty to one count of escape and

one count of summary criminal mischief.           On the escape count, Appellant

was     sentenced    to   eleven    and    one-half    to   twenty-three   months   of

incarceration, followed by three years of probation to run concurrently with

the sentence imposed at CC-2006-05905, plus restitution.1                  Sentencing

Order, 10/16/08, CC-2008-04000, at 1-3.

        A detainer was filed against Appellant at both cases due to a

subsequent arrest on February 21, 2013.               The trial court summarized the

facts leading to Appellant’s arrest as follows:

        On February 21, 2013, Officer Simoni began conducting
        surveillance on Room 323 at a Motel 6 on Banksville Road in the
        City of Pittsburgh. He observed [Appellant] leave the room,
        enter a silver Cadillac, reach under the seat, grab something and
        return to the room only after a few minutes. He observed
        [Appellant] leave the hotel and return numerous times over a
        four-hour period. Sometimes, he would enter another room,
        Room 418, in the motel and return back to Room 323. At some
        point, [Appellant] again got into the Cadillac and began driving
        on Banksville Road. Officer Simoni and his partner conducted a
        traffic stop of [Appellant’s] vehicle.      During a search of
        [Appellant’s] person, the officers located two large bundles of
        currency. Small rubber bands were also recovered. Officer
        Simoni indicated that these rubber bands were consistent with
        rubber bands used to package heroin stamp bags.                No
        contraband was recovered and [Appellant] was permitted to
        leave the scene.

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1
    No further penalty was imposed on the criminal mischief count.



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            Detectives returned to the Motel 6 to continue surveillance.
      At approximately 5:45 p.m., [Appellant] returned to the hotel.
      [Appellant] was observed leaving Room 323 for short periods of
      time only to return after a few minutes. At approximately 8:00
      p.m., [Appellant] was observed leaving Room 323 and then
      entering Room 418 of the Motel 6. After a few minutes, another
      person, Jason Porter, was seen entering Room 418. Porter left
      the room after approximately five minutes. After Porter left,
      detectives conducted a traffic stop of the vehicle in which he was
      travelling and they found Porter to be in possession of
      approximately 50 stamp bags of heroin. After becoming aware
      of the heroin found on Porter, Officer Simoni then began to walk
      toward Room 418. As he approached the room, [Appellant] was
      observed exiting Room 418. [Appellant] was detained in the
      hallway and he admitted that he rented Room 323. Another
      detective proceeded to Room 418 and knocked on the door.
      While checking the room the detective observed in plain view
      380 stamp bags, raw heroin, cocaine, scales[,] empty bags and
      packaging materials.     Based on this information, a search
      warrant for Room 323 was sought and obtained. Currency in the
      amount of $3,500, 158 stamp bags of heroin and a digital scale
      were recovered from Room 323.

Trial Court Opinion, 11/5/15, at 2-3.

      This activity constituted the basis for a violation of probation (“VOP”)

hearing.   These circumstances also resulted in subsequent drug charges

being filed against Appellant at        criminal   information   CC-2013-05582

(“subsequent charges”).

      In the subsequent charges proceedings, Appellant filed a motion to

suppress the evidence of drug activity obtained on February 21, 2013. The

trial court concluded that, based on the four corners of the affidavit, there

was not probable cause to issue the warrant for the search of Room 323 at

the Motel 6. Thus, any evidence obtained from Room 323 was suppressed.

While the trial court granted the motion to suppress evidence seized from

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Appellant’s motel room, the court denied Appellant’s motion to suppress

evidence seized from Appellant’s vehicle.               The Commonwealth filed an

appeal from the trial court’s ruling to this Court, and this Court affirmed the

trial court’s suppression ruling.        Commonwealth v. Dorsey, 1180 WDA

2014, 122 A.3d 453 (Pa. Super. filed May 18, 2015) (unpublished

memorandum).          The Commonwealth subsequently filed a petition for

allowance of appeal from this Court’s affirmance of the suppression court’s

ruling. That petition for allowance of appeal was denied on December 31,

2015.    Commonwealth v. Dorsey, 130 A.3d 1286, 216 WAL 2015 (Pa.

filed December 31, 2015).2

        The VOP hearing was held on May 27, 2015. N.T., 5/27/15, at 1-53.

At the VOP hearing, testimony of Detective Justin Simoni regarding the

events of February 21, 2013, was introduced, including a description of

evidence seized from Room 323 of the Motel 6.                 Id. at 24-27.     Appellant

objected to introduction of this testimony on the basis of the trial court’s

order    granting    his   suppression         motion   in   the   subsequent    charges

proceedings.     Id. at 8-10.      The probation-revocation court ruled that the

testimony, though suppressed in the subsequent charges proceedings, was
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2
   With regard to further proceedings on the subsequent charges, the
Commonwealth’s brief notes that “the public docket for Appellant’s new case
. . . indicates that he has yet to go to trial.” Commonwealth’s Brief at 13,
n.4. The Commonwealth also references the fact that the suppression order
related to evidence seized from Appellant’s motel room and not to evidence
seized from his vehicle. Id.



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admissible at the VOP hearing. Id. Thus, the VOP court permitted Detective

Simoni to testify about the events of February 21, 2013.          Id. at 13-34.

Following the hearing, Appellant’s probation was revoked, and he was

sentenced to three to six years of incarceration at a state correctional

institution at CC-2006-05905. Sentencing Order, 5/27/15, CC-2006-05905,

at 1.    At docket number CC-2008-04000, Appellant was sentenced to five

years of probation, to be served consecutively to confinement imposed at

CC-2006-05905.       Sentencing Order, 5/27/15, CC-2008-04000, at 1.         No

post-sentence motions were filed. Appellant timely appealed. Appellant and

the trial court complied with the requirements of Pa.R.A.P. 1925.

        Appellant presents the following issues for our review:

        I.    Whether the trial court erred in admitting evidence in a
        hearing for violation of probation where that evidence had
        previously been suppressed in the prosecution of [Appellant] for
        another offense?

        II.    Whether the trial court abused its discretion in imposing a
        sentence of total confinement for technical violations of
        probation where [Appellant] had already served a substantial
        period of incarceration and, while incarcerated, he had taken
        steps to change his behavior upon release and developed a plan
        for his continued rehabilitation?

Appellant’s Brief at 6.

        In his first issue, Appellant argues that the trial court erred in

admitting evidence in the VOP hearing, where that evidence had been

suppressed in the prosecution of the subsequent charges. Appellant’s Brief

at 17. Appellant asserts that the Commonwealth delayed the hearing on the


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violation of probation until after the trial on new charges.     Id. at 18.

Appellant maintains that after he was acquitted, the Commonwealth brought

an action to revoke Appellant’s probation on the basis of the same facts. Id.

Appellant contends that this case is analogous to Commonwealth v.

Brown, 469 A.2d 1371 (Pa. 1983). Id. at 18-19. Appellant asserts that his

sentence must be vacated and the case returned for a new probation

violation hearing. Id. at 19.

      “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.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.

2007). The Sentencing Code permits a court to revoke an order of probation

under the following circumstances:

      § 9771. Modification or revocation of order of probation

      (a) General rule.--The court may at any time terminate
      continued supervision or lessen or increase the conditions upon
      which an order of probation has been imposed.

      (b) Revocation.--The court may revoke an order of probation
      upon proof of the violation of specified conditions of the
      probation. Upon revocation the sentencing alternatives available
      to the court shall be the same as were available at the time of
      initial sentencing, due consideration being given to the time
      spent serving the order of probation.

      (c) Limitation on sentence of total confinement.--The court
      shall not impose a sentence of total confinement upon revocation
      unless it finds that:




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            (1) the defendant has been convicted of another
            crime; or

            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

42 Pa.C.S. § 9771(a)-(c).    Whether the probationer, in fact, violated the

conditions of his probation must be demonstrated by evidence of probative

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

The Commonwealth bears a lesser burden of proof at a probation revocation

hearing than it does in a criminal trial. Commonwealth v. Allshouse, 969

A.2d 1236, 1241 (Pa. Super. 2009).        “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.”   Perreault, 930 A.2d at 558.      “[A]n implied condition of any

sentence of probation is that the defendant will not commit a further

offense.” Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005).

     A revocation hearing need not “be conducted with the same procedural

and evidentiary rules as would apply to a trial on the criminal charges

growing out of the same facts.” Commonwealth v. Kates, 305 A.2d 701,

710 (Pa. 1973).   “In this area of rights of probationers and parolees the


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controlling factor is not whether the traditional rules of evidence or

procedure including Fourth and Fifth Amendment exclusionary rules, have

been strictly observed, but rather whether the probative value of the

evidence has been affected.”         Id., see also Commonwealth v. Holder,

805 A.2d 499, 504 n.7 (Pa. 2002) (stating that in revocation hearing,

“probationer … is not entitled to strict application of the rules of evidence or

procedure, including the Fourth and Fifth Amendment exclusionary rules”);

Commonwealth v. Lehman, 851 A.2d 941 (Pa. Super. 2004) (holding that

in context of probation violation hearings and application of exclusionary

rule, Pennsylvania Constitution affords no greater protection than does

federal constitution).

        While Appellant fails to specify in his brief the evidence to which he

objected to having admitted at the VOP hearing, we surmise he is referring

to the testimony of Detective Simoni that outlined the events of February

21, 2013, resulting in Appellant’s subsequent arrest and the subsequent

charges.     As noted, the trial court’s ruling suppressed evidence found in

Room 323 at the motel, but not evidence found in Appellant’s vehicle. This

Court    affirmed   that   decision,    and    our        Supreme   Court   denied    the

Commonwealth’s petition for allowance of appeal on that issue.

        We   further   note   that     contrary      to    Appellant’s   assertion,   the

Commonwealth did not delay Appellant’s VOP hearing until after the trial on

the subsequent charges. There is no evidence of record that Appellant was


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acquitted on the subsequent charges, let alone evidence that the alleged

acquittal occurred before the VOP hearing.3 As a result, Appellant’s reliance

on Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983) is misplaced.4

       Instead, in the matter before us, Appellant’s VOP hearing occurred

before trial on the subsequent charges.          While the trial court granted

Appellant’s suppression motion as to the evidence obtained at the motel in

the subsequent charges proceeding prior to the VOP hearing, there was no

final disposition as to those subsequent charges.     Accordingly, we find the

Supreme Court’s decision in Kates, to be analogous to the case before us

and instructive as to Appellant’s claim.

       In Kates, after the appellant’s conviction for wantonly pointing a

firearm, aggravated assault, and battery, she was placed on probation. Id.

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3
  As noted, in its brief which was filed in this Court on July 21, 2016, the
Commonwealth asserts that Appellant had not been acquitted of the
subsequent offenses and had yet to proceed to trial. Commonwealth’s Brief
at 13, n.4. Moreover, the Commonwealth’s petition for allowance of appeal
on the suppression issue, following our affirmance of the suppression court’s
order, was denied by our Supreme Court on December 31, 2015.
Accordingly, the evidence of record supports the conclusion that Appellant
had not yet proceeded to trial on the subsequent charges at the time the
VOP hearing was held on May 27, 2015.
4
  In Brown, the appellant was arrested and charged with new criminal
offenses while serving probation. Id. 469 A.2d at 1372. The trial on the
new criminal offenses occurred prior to the appellant’s VOP hearing. Id.
The appellant was acquitted of the new criminal charges. Id. As a result,
our Supreme Court concluded that the VOP hearing judge was collaterally
estopped from revoking the appellant’s probation based on charges of which
the appellant had been acquitted. Id. at 1377-1378.



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at 703. While on probation, the appellant was again arrested, this time for

homicide, and a revocation of probation hearing was conducted. Id. At the

revocation hearing, primarily on the basis of an incriminating statement

attributed to the appellant, the hearing judge found that the appellant had

shot and killed Frank Jordan. Id. Her probation was revoked and she was

sentenced to incarceration.         Id.   The appellant filed an appeal from that

judgment of sentence. Id. Subsequent to the revocation of probation, the

court granted a motion to suppress the statement made by the appellant

because it violated the mandates of Miranda v. Arizona, 384 U.S. 436

(1966), on the homicide charge.5 Id.

       On appeal from the probation revocation judgment of sentence, the

appellant first argued that the practice of conducting a probation violation

hearing prior to the trial for the subsequent offense should be disallowed on

constitutional and policy considerations.          Id. at 706.   Our Supreme Court

held that it is permissible to conduct a revocation hearing before trial on the

subsequent offense. Id. at 709.

       The appellant also argued that her incriminating statement that had

been suppressed in the homicide proceeding should not have been admitted

at the probation revocation hearing.           Id. at 711.   The Court determined,

however, that the fact that the appellant’s statement was subsequently ruled
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5
  No appeal was taken from that ruling and the appellant was eventually
found not guilty of the slaying of Frank Jordan.



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inadmissible in the homicide proceeding because it violated Miranda did not

preclude it from being presented during her revocation hearing and did not

form the basis of a denial of due process.      Id. at 711.    In making this

determination, the Court provided the following explanation:

     At the subsequent trial the issue is whether the elements of the
     offense or offenses charged are present and the burden is upon
     the Commonwealth to establish all of the requisite elements
     beyond a reasonable doubt. The focus of a probation violation
     hearing, even though prompted by a subsequent arrest, 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.

Kates, 305 A.2d at 708.

     The Court further stated:

     [No case law] that has come to our attention, requires that a
     revocation hearing be conducted with the same procedural and
     evidentiary rules as would apply to a trial on the criminal
     charges growing out of the same facts. In this area of rights of
     probationers and parolees the controlling factor is not whether
     the traditional rules of evidence or procedure including Fourth
     and Fifth Amendment exclusionary rules, have been strictly
     observed, but rather whether the probative value of the evidence
     has been affected. As discussed above, the purpose of the
     revocation hearing is simply to establish to the satisfaction of the
     judge who granted probation that the individual’s conduct
     warrants his continuing as a probationer.

Kates, 305 A.2d at 710.        The appellant’s judgment of sentence was

affirmed. Id. at 711. Thus, the Supreme Court held that the exclusionary

rules do not apply to probation revocation hearings. Id. at 710; see also

Holder, 805 A.2d at 504 n.7 (stating that in a revocation hearing,




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“probationer … is not entitled to strict application of the rules of evidence or

procedure, including the Fourth and Fifth Amendment exclusionary rules.”).

      In the case before us, as determined by our Supreme Court, there was

no prohibition to conducting the VOP hearing prior to trial on Appellant’s

subsequent charges.    Additionally, as result of the different standards and

purposes of the two proceedings, the exclusionary rules did not prohibit

introduction of evidence at the VOP hearing that was suppressed in the new

criminal charges proceeding. Thus, in light of the procedural posture of the

case before us, the VOP hearing court did not err in permitting the testimony

of Detective Simoni. This is true even if Appellant was later acquitted of the

subsequent charges that formed the basis for revocation of his probation.

Kates, 305 A.2d at 703, 711; see also Holder, 805 A.2d at 504 n.8 (“even

if the probationer is later acquitted of the criminal charges, the factual

support for the earlier probation revocation is not necessarily removed, and

the revocation may still stand.”). Appellant’s first claim lacks merit.

      In his second claim, Appellant argues that the trial court abused its

discretion in imposing a sentence of total confinement for technical violations

where Appellant had already served a substantial period of incarceration

and, while incarcerated, had taken steps to change his behavior upon

release, and developed a plan for his continued rehabilitation.      Appellant’s

Brief at 21.   As a result, Appellant contends that his revocation sentences

must be vacated, and he is entitled to a new sentencing hearing. Id. at 22.


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       Appellant’s issue challenges the discretionary aspects of his sentence.6

We note that “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for

allowance of appeal. Commonwealth v. W.H.M. Jr., 932 A.2d 155, 163

(Pa. Super. 2007).

       As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

             An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:

                    [W]e conduct a four-part analysis to
              determine: (1) whether appellant has filed a timely
              notice of appeal, see Pa.R.A.P. 902 and 903; (2)
              whether the issue was properly preserved at
              sentencing or in a motion to reconsider and modify
              sentence, see Pa.R.Crim.P. [708]; (3) whether
              appellant’s brief has a fatal defect, Pa.R.A.P.
              2119(f); and (4) whether there is a substantial
              question that the sentence appealed from is not
              appropriate under the Sentencing Code, 42 Pa.C.S.A.
              § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question
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6
  In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013)
(en banc), this Court held that our “scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges.” Thus,
there is no impediment to our review.



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is made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.    Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

      Herein, Appellant brought a timely appeal. Additionally, Appellant has

included a statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f) in his brief.

      Fatal to his claim, however, is the fact that Appellant failed to raise

this challenge at the time of sentencing on the probation revocation, N.T.,

5/27/15, at 1-53, or in a post-sentence motion. Thus, this claim is waived.

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (“Issues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”).

      Judgments of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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