J-S52034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT HARRIS                              :
                                               :
                       Appellant               :   No. 723 EDA 2018

            Appeal from the Judgment of Sentence December 3, 2012
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010414-2009


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 30, 2019

        Robert Harris appeals from the judgment of sentence entered following

the revocation of his probation. His counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and a petition to withdraw as

counsel. We affirm and grant counsel’s petition to withdraw.

        In May 2011, a jury found Harris not guilty of murder and conspiracy.1

However, it was unable to reach a verdict on firearms not to be carried without

a license, carrying a firearm on public streets in Philadelphia, and possession

of instruments of crime (“PIC”).2 Subsequently, Harris pled guilty in November

2011 to firearms not to be carried without a license and carrying firearms in

public in Philadelphia, and the Commonwealth nolle prossed the PIC charge.

____________________________________________


1   18 Pa.C.S.A. §§ 2502 and 903, respectively.

2   18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 907, respectively.
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The trial court then sentenced Harris to 11½ to 23 months’ incarceration

followed by five years’ probation, with immediate parole.

      At that point, prison authorities were supposed to transport Harris to

New Jersey, as New Jersey had lodged a detainer for murder and related

charges, all arising from a separate incident. However, they instead

erroneously released him from prison, and he absconded. He was not

apprehended until approximately one year later, in November 2012. During

that year, Harris did not report to the Philadelphia Probation Department or

to New Jersey authorities.

      In December 2012, the trial court held a violation of probation (“VOP”)

hearing, and revoked Harris’s probation. The court resentenced him to three

and a half to seven years’ incarceration for firearms not to be carried without

a license, and one to two years’ incarceration for carrying firearms in public in

Philadelphia. The sentences were consecutive. Harris filed a motion to

reconsider sentence, which the trial court denied. Harris did not file an appeal

at that time.

      In May 2013, Harris filed a pro se Post Conviction Relief Act petition,

arguing, in part, that his counsel was ineffective for failing to file a direct

appeal. The petition languished for several years, apparently at least in part

because the trial judge retired. The court eventually re-assigned it to a

different judge who granted it in February 2018, and re-instated Harris’s direct

appeal rights nunc pro tunc. Harris then filed this appeal.




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        Counsel’s Anders Brief identifies three issues, which we set forth

verbatim:

          1. Whether the appellant’s VOP sentence of 4 ½ to 9 years
          SCI was unreasonable, harsh, excessive and unjust for
          technical violations.

          2. Whether VOP counsel was ineffective in his
          representation of the appellant of the VOP Hearing for not
          requesting an appeal?

          3. Whether the appellant was given a Gagnon3 1 and
          Gagnon 2 Hearing.

Anders’ Br. at 4.

        Before we assess the substance of the Anders brief, we must first

determine whether counsel’s request to withdraw meets certain procedural

requirements. See Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). An Anders brief that accompanies a request to

withdraw must:

          (1) provide a summary of the procedural history and facts,
          with citations to the record;

          (2) refer to anything in the record that counsel believes
          arguably supports the appeal;

          (3) set forth counsel’s conclusion that the appeal is
          frivolous; and

          (4) state counsel’s reasons for concluding that the appeal is
          frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.



____________________________________________


3   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel must

also provide a copy of the Anders brief to the client, and a letter that advises

the client of the right to “(1) retain new counsel to pursue the appeal; (2)

proceed pro se on appeal; or (3) raise any points that the appellant deems

worthy of the court’s attention in addition to the points raised by counsel in

the Anders brief.” Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014). If counsel has satisfied these requirements, we then

conduct “a full examination” of the record “to decide whether the case is

wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271

(Pa.Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).

      Here, in the Anders brief, counsel provides a procedural and factual

history of the case, with citations to the record, discusses the issues arguably

supporting the appeal, and explains why counsel concludes those issues are

frivolous. Anders Br. at 5-15. Counsel served a copy of the Anders brief upon

Harris, Anders Br. at Cert. of Service, and his letter to Harris advised him

that he may raise any additional issues before this Court pro se or with private

counsel. Petition to Withdraw as Counsel, filed May 1, 2019. The Anders brief

satisfies the necessary requirements.

      Harris has not filed any response to the Anders brief, either pro se or

through private counsel. We will therefore address the issues counsel has

identified.




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      The first issue raised in the Anders brief would challenge the VOP

sentence as excessive. This is a challenge to the discretionary aspects of

sentence.

      There is no absolute right to appellate review of the discretionary

aspects of a sentence. Commonwealth v. Cartrette 83 A.3d 1030, 1042

(Pa.Super. 2013) (en banc). Rather, we engage in a four-part analysis before

addressing such a challenge. We must determine whether: (1) appellant has

filed a timely notice of appeal; (2) properly preserved the issue at sentencing

or in a motion; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement;

and (4) there is a substantial question that the sentence is not appropriate

under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v.

Austin, 66 A.3d 798, 808 (Pa.Super. 2013).

      Here, these requirements are met. However, the issue is nonetheless

frivolous because the court did not find Harris in violation for failure to pay

fines and sentence him on that basis. Rather, it found him in violation for

absconding and imposed sentence based, in part, on its conclusion that he

posed a danger to the public.

      We review a challenge to the discretionary aspects of sentencing for an

abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123

(Pa.Super. 2017). Pursuant to Pennsylvania statute 42 Pa.C.S.A. § 9771(b),

upon revocation of probation “the sentencing alternatives available to the

court shall be the same as were available at the time of initial sentencing.”

Further, a VOP court may impose a sentence of total confinement if it finds

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that “(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.A. § 9771(c). Moreover, “[a] sentencing

court need not undertake a lengthy discourse for its reasons for imposing a

sentence or specifically reference the statute in question, but the record as a

whole must reflect the sentencing court's consideration of the facts of the

crime and character of the offender.” Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa.Super. 2012).

       Contrary to the Anders brief’s statement, the trial court did not find

Harris in violation of probation for failure to pay fines. Rather, the court found

him in violation for absconding and not reporting to either the Philadelphia

probation department or New Jersey authorities for a year. The court said as

much when it imposed the VOP sentence:

          You really didn’t comply at all with what you were supposed
          to do and report even once. Obviously, what was paramount
          in his mind was avoiding the murder prosecution and the
          homicide prosecution in New Jersey. So I don’t think he
          made a mistake. I think he knew exactly what he was doing.

Trial Court Opinion, filed May 1, 2019, at 10 (quoting N.T., 12/3/12, at 4-5).4



____________________________________________


4  Counsel included a copy of the December 3, 2012 transcript in the
reproduced record. However, the certified record does not include the
transcript. In its Pa.R.A.P. 1925(a) opinion, the trial court included quotations
from the transcript. Here, we will rely on the facts from the Rule 1925(a)
opinion, as no one disputes their accuracy.

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      The court further explained that it was sentencing Harris based on its

conclusion that he poses a danger to the public: “You’re a danger in society,

a danger [to] the people of Pennsylvania.” Id. at 9 (quoting N.T., 12/3/12, at

6). This issue is frivolous.

      The next issue identified in the Anders brief states that VOP counsel

was ineffective for failing to appeal. This issue is moot, as Harris obtained an

appeal nunc pro tunc.

      The final issue claims the trial court did not hold Gagnon I and Gagnon

II hearings. It appears that the Anders brief is the first time such a claim is

raised. Therefore, the claim is waived. Pa.R.A.P. 302 (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal”). In

any event, we agree with counsel that, on the merits, this claim is frivolous.

      The procedures for revoking probation are as follows:

         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. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009)

(internal citations omitted). At a Gagnon II hearing, the court must make

two determinations: (1) “Whether the [probationer] has in fact acted in

violation of one or more conditions of his [probation]”; and (2) whether the

probationer should “be recommitted to prison or should other steps be taken

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to protect society and improve chances of rehabilitation.” Id. (quoting

Gagnon, 411 U.S. at 784).

       Further, this Court has found that a probationer must complain of the

lack of a Gagnon I hearing before probation is revoked and, if he has not

done    so,   the    “probationer     will     not   be   heard   to   complain   later.”

Commonwealth v. Perry, 385 A.2d 518, 520 (Pa.Super. 1978) (en banc)

(incarceration following probation revocation stems from a decision by the

revoking court made after an adequate hearing; after revocation of probation,

the denial of appellant’s preliminary hearing right no longer has any relation

to his incarceration).

       Here, the docket lists two VOP hearings – one taking place on November

30, 2012, and the second on December 3, 2012. The trial court details the

evidence presented at the second hearing, as follows:5

          [After his 2011 sentencing hearing, Harris] was given credit
          for thirty (30) months' time served and was to be
          immediately paroled, with the sheriff to transport to
          Elizabeth, New Jersey (Monmouth County) where [Harris]
          was facing another unrelated murder charge.

          However, the following day, November 8, 2011, [Harris]
          was released from the Curran-Fromhold Correctional Facility
          (CFCF) in Philadelphia, PA, in error. [Harris] absconded and
          was not found until November 11, 2012, when he was
          stopped in Delaware County, PA, following a motor vehicle
          offense. During the intervening time period from November
          8, 2011 to November 11, 2012, [Harris] failed to report to
          the New Jersey authorities for his open murder case and
          failed to report to the Philadelphia Probation Department or
____________________________________________


5As noted above, we will use the trial court’s facts, as no one disputes the
evidence presented at the hearing.

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       communicate with his probation officer. On December 12,
       2012 [Harris] appeared before Judge Wogan at his Violation
       of Probation (VOP) Hearing at which time the court heard
       testimony from both [Harris] and his probation and parole
       officer, Charles Sabo.

       Probation and Parole Officer Charles Sabo testified as
       follows. In addition to confirming the above chronology of
       events, Mr. Sabo testified that [Harris] had an open warrant
       related to a murder charge in New Jersey and the authorities
       there were ready to extradite [Harris] to New Jersey. His
       recommendation to the court was for [Harris’] probation to
       be revoked due to his absconding.3 The Commonwealth
       recommended revocation and resentencing for [Harris’]
       failure to report to probation in Philadelphia with special
       concern given to the fact that [Harris] absconded while he
       had open murder charges pending in New Jersey.
          3 A review of the record does not indicate that a
          Gagnon II was prepared or submitted by the Adult
          Probation and Parole Department to Judge Wogan for
          his review prior to or at the time of the Violation of
          Probation Hearing.

       [Harris] testified and did not dispute the factual chronology
       of events that led to his erroneous release from Curran-
       Fromhold Correctional Facility. More importantly, [Harris]
       acknowledged that during the entire year period that he had
       absconded, he had failed to report to the offices of the
       Philadelphia Probation and Parole Department as was
       required as part of his sentence. [Harris] testified as follows:

          THE COURT: [To the appellant] Is there anything you
          would like to say?

          APPELLANT: All right. Like I never intended to run. I
          was willing to do my probation. It's just that out there,
          I wasn't running from probation, I was trying to get
          myself together to go to Jersey. I never, never, never,
          ever, ever, like, bucked out of probation.

       [N.T., 12/3/12,] pp. 5-6.

       Further, regarding his failure to appear for court with
       respect to his murder charges in New Jersey, [Harris]
       testified as follows:

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             THE COURT: Well, what steps were you taking to go
             over to [New] Jersey?

             APPELLANT: I needed money. I didn't have a lawyer
             and I had been accused. I didn't know what was going
             on over in Jersey.

         Id, p. 6.

         At the conclusion of the Violation of Probation Hearing,
         Judge Wogan found that [Harris] had violated the terms of
         his probation for failing to report, as required, to the
         Philadelphia Probation and Parole Department and further
         finding that [Harris] posed a danger to the people of
         Pennsylvania. Judge Wogan therefore revoked [Harris’]
         probation and resentenced [Harris] to three and one-half
         (3½) to seven (7) years for Firearms Not to be Carried
         Without a License and One (1) to two (2) years for Carrying
         Firearms in Public in Philadelphia, for an aggregate sentence
         of four and one-half (4¼) to nine (9) years' incarceration.

1925(a) Op. at 4-5 (some internal citations omitted).

      This testimony makes it clear that the court in fact held a Gagnon II

hearing at which it found the Commonwealth established a violation of

probation occurred and that incarceration was required. The court heard

testimony from Harris’ probation officer, including testimony that Harris never

reported to probation. The Court also heard from Harris, who attempted to

explain why he did not report. Even if the November 30 hearing was not a

Gagnon I hearing, Harris could get no relief on appeal for a failure to hold a

Gagnon I hearing. See Perry, 385 A.2d at 520. The third issue is also

frivolous.

      Our independent review of the record has not uncovered any non-

frivolous issues for appeal.

      Judgment of sentence affirmed. Petition to withdraw as counsel granted.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/19




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