J-S15007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

LEVI MARCUS MATHIS

                        Appellant                    No. 1420 MDA 2014


          Appeal from the Judgment of Sentence August 5, 2014
              In the Court of Common Pleas of Union County
           Criminal Division at No(s): CP-60-CR-0000317-2008


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 13, 2015

     Levi Marcus Mathis appeals from the judgment of sentence, imposed

by the Court of Common Pleas of Union County, following the revocation of

his probation. Upon review, we affirm.

     The trial court set forth the history of this matter as follows:

     On August 5, 2009, after [Mathis] entered a guilty plea to the
     crime of criminal conspiracy to commit robbery, a felony of the
     first degree, [Mathis] was sentenced to a period of twelve (12)
     months’ incarceration to a maximum of sixty (60) months. That
     sentence was followed by a period of thirty-six (36) months’
     probation.

     On April 15, 2014, the Commonwealth filed a [m]otion to revoke
     the probationary aspect of [Mathis’] sentence and a hearing was
     scheduled for May 7, 2014.

     At the hearing the Commonwealth called Jason Lemay, [Mathis’]
     Parole Agent with the Pennsylvania Board of Probation and
     Parole.   Mr. Lemay testified that [Mathis] was part of his
     caseload and he was supervising him as part of his duties as a
     State Probation Officer. Mr. Lemay testified that he is required
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      to see [Mathis] at least a minimum of once a month. On March
      19, 2014, he and another agent went to [Mathis’] house and
      talked to him.    Based on his home inspection he detained
      [Mathis], and requested the Commonwealth file this [m]otion.

      At the revocation hearing held on May 7, 2014, Mr. Lemay
      testified that on March 19, 2014, when he did he his home visit,
      [Mathis] was uncooperative and refused to permit the agents
      entry into his home and also refused to provide a urine sample.

      The Court would take judicial [notice] from the record that the
      conditions governing [Mathis’] conditions of supervision require
      him to submit a urinalysis and he had expressly consented to
      this search of his residence.

      After Mr. Lemay testified the defense made a motion to dismiss
      the Commonwealth’s [m]otion due to the fact that the State
      Probation Officer failed to identify [Mathis] in court. The defense
      did not contest the conduct at issue but limited his argument to
      the lack of in court identification. With the court’s permission,
      Probation Officer Lemay was recalled and identified [Mathis].

Trial Court Opinion, 10/6/14, at 1-2.

      On appeal, Mathis raises two issues. First, “did the trial court commit

error in ruling against [Mathis] when the Commonwealth closed its case

without identifying [him]?”   Second, “did the trial court commit error in

permitting the record to be reopened for identification of [Mathis]?”

Appellant’s Brief, at 4.

      Our review is guided by the following principles:

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on
      appeal.     An abuse of discretion is more than an error in
      judgment – a sentencing court has not abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.



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       When assessing whether to revoke probation, the trial court
       must balance the interests of society in preventing future
       criminal conduct by the defendant against the possibility of
       rehabilitating the defendant outside of prison. In order to uphold
       a revocation of probation, the Commonwealth must show by a
       preponderance of the evidence that a defendant violated his
       probation.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citations,

quotations, and footnote omitted).

       Mathis’ first issue on appeal implicates the sufficiency of the evidence

to support the revocation of his probation. Our standard of review regarding

challenges to the sufficiency of the evidence is well-settled. In reviewing the

sufficiency of the evidence, the appellate court must determine whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as the verdict

winner, is sufficient to prove every element of the offense beyond a

reasonable doubt. Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super.

2008).

       Instantly, Mathis argues that the Commonwealth failed to identify him

during its case-in-chief, which, he contends, was a prerequisite to finding he

violated his probation.1       Mathis, however, conflates the revocation of his

probation with a criminal conviction.
____________________________________________


1
  Mathis cites to only one case, Commonwealth v. Montgomery, 861 A.2d
304 (Pa. Super. 2004), for the proposition that the Commonwealth was
required to identify him in court.        However, Mathis’ reliance on
Montgomery is misplaced. There, this Court did not hold that a witness’
identification of the defendant is necessary. Rather, we suggested that
(Footnote Continued Next Page)


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      Our Supreme Court has expressly held that, “a [violation of probation

(“VOP”) hearing] differs from a trial, as probation and parole are not part of

the criminal prosecution; the full panoply of rights due to a defendant in a

criminal trial does not apply at a VOP hearing.”                Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007). The Court went on to explain that “[a

VOP hearing] requires only a truncated hearing by the sentencing court to

determine whether probation remains rehabilitative and continues to deter

future antisocial conduct. Such a hearing takes place without a jury, with a

lower burden of proof, and with fewer due process restrictions.” Id. quoting

Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).

      Even assuming, arguendo, that there was, as Mathis suggests, a due

process requirement that he be identified in court, we find that because of

the lesser procedural protections afforded at a VOP hearing, such a

requirement is not implicated here.                 In fact, at a VOP hearing, the

Commonwealth need only establish by a preponderance of the evidence that

a defendant violated his probation.              See Commonwealth v. Ortega, 995

A.2d 879, 886 (Pa. Super. 2010).

      Here, the Commonwealth presented ample evidence to satisfy this

burden, including the testimony of Officer Lemay, Mathis’ probation officer.

Officer Lemay testified that he was required to see Mathis at least once a

                       _______________________
(Footnote Continued)

where there is ample other evidence of the defendant’s criminal actions,
identification becomes even less dispositive. Id. at 307-08.



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month.     He further testified that on March 19, 2014, Mathis refused to

provide a urine sample and allow the agents to enter his home, both

conditions of his probation.   The VOP court found this testimony credible,

and there is nothing in the record to disturb this credibility determination,

nor did Mathis contest these facts.       The Commonwealth also proffered

testimony that showed Mathis’ identity had been previously established

when he was criminally convicted and on several other occasions when he

appeared in court following his conviction. Furthermore, Judge Sholley had

presided over Mathis’ guilty plea and sentencing, and thus, was familiar with

Mathis at the time of his VOP hearing.

      Considering the diminished burden of proof, in conjunction with the

lower court’s pre-existing familiarity with Mathis, we conclude that in-court

identification was not critical to determining whether Mathis violated his

probation.   Mullins, supra.     As such, we find that there was sufficient

evidence to support the revocation sentence imposed by the court.

      In his second issue, Mathis argues the trial court erred in reopening

the record to permit his identification. It is well settled in Pennsylvania that

a trial court has the discretion to reopen a case for either side, before the

entry of a final judgment, in order to prevent a failure or miscarriage of

justice.   Commonwealth v. Baldwin, 58 A.3d 754 (Pa. 2012), citing

Commonwealth v. Tharp, 575 A.2d 557, 558-59 (Pa. 1990).                  Mathis

contends that this long-standing principle does not apply to the instant

matter because “[t]he case was not midstream, this was not a motion for

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judgment of acquittal after the prosecution rested. Here, the parties were in

closing argument.     The case was, for all intents and purposes, over.”

Appellant’s Brief, at 9. We are not persuaded by this argument.

      In Tharp, the trial court reopened the case, after the Commonwealth

closed its case, to permit the admission of immediately available evidence

directly related to the issue raised.     Here, the fact that the parties had

moved to closing arguments does not, as Mathis contends, suggest that the

court lacked discretion to reopen the case.      Our precedent is clear, a trial

court may, at any time prior to the entry of final judgment, reopen the case.

Baldwin, supra (emphasis added).            Accordingly, this issue is moot,

especially in light of our preceding analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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