J.S07036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
TIM ALAN COPENHAVER,                        :
                                            :
                          Appellant         :     No. 706 MDA 2015

              Appeal from the Judgment of Sentence March 23, 2015
       In the Court of Common Pleas of Lycoming County Criminal Division
                        at No(s): CP-41-CR-0001357-2009

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 11, 2016

        Appellant, Tim Allen Copenhaver, appeals from the judgment of

sentence entered in Lycoming County Court of Common Pleas following the

trial court’s revocation of his probation. He challenges the sufficiency of the

evidence supporting the revocation. We affirm.

        We glean the following facts from the trial court’s opinion and the

revocation hearing transcript. On March 24, 2010, Appellant pled guilty to

five counts of sexual abuse of children (possession of child pornography).

The trial court sentenced Appellant, in accordance with a plea agreement, to

a term of two to five years of incarceration followed by ten years of

probation on July 24, 2010.           On December 15, 2014, Appellant was

*
    Former Justice specially assigned to the Superior Court.
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transferred to the Clinton County Correctional Facility (“CCCF”). Thereafter,

on December 30, 2014, the trial court, following an on the record colloquy,

amended the conditions of Appellant’s supervision to include the standard

special conditions, supplemental special conditions, and optional special

conditions for sex offenders issued by the Pennsylvania Board of Probation

and Parole. In accordance with these conditions, Appellant was prohibited

from possessing, viewing, or reading any sexually explicit materials.   Trial

Ct. Op., 9/18/15, at 2. On January 21, Appellant signed a written copy of

these conditions. Id.

     On January 26, 2015, an envelope, addressed to Appellant, was

delivered to CCCF, containing a brochure from “Branlette’s Beauties.” Id. at

3. The brochure contained pictures of women wearing little to no clothing.

Id. On the same day, Appellant also received mail from Freebird Publishers,

which contained solicitations to buy “sexy” pictures of women.           Id.

Subsequently, on March 23, 2015, the trial court held a probation violation

hearing.   At the hearing, three witnesses testified.      The first, Dawn

Zimmerman, a corrections specialist at CCCF, testified that Appellant had

admitted to her that he had sent for the materials but that his charges were

“kiddie porn, not adult porn.” Id.; N.T. Revocation Hr’g, 3/23/15, at 5. Also

testifying at this hearing was Scott Metzger, the assistant chief of the

Lycoming County Adult Probation Office.      He confirmed that Appellant’s




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written conditions had been explained to him on January 21, 2015.            N.T.

Revocation Hr’g, at 10.

      Appellant also testified at his probation revocation hearing.            He

asserted that he thought he was ordering non-nude materials.           Further, he

thought that the materials were only depicting adults. He explained that he

ordered the materials in question sometime in January 2015, but could not

remember exactly when. He admitted that he forgot about any conditions

the court imposed on December 30, 2014.             Trial Ct. Op. at 4; N.T.

Revocation Hr’g, at 21.

      The trial court found only portions of Appellant’s testimony to be

credible. The court determined that Appellant did expect to receive sexually

explicit materials but had forgotten about the conditions imposed on

December 30, 2014.        Accordingly, the trial court found that Appellant

violated the conditions of his probation and imposed an aggregate sentence

of one to eight years of incarceration in a March 23, 2015 order.

      The instant appeal followed.     Appellant filed a timely court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial

court filed a Pa.R.A.P. 1925(a) opinion.      Appellant raises a single issue,

reproduced verbatim, for our review:

            Whether the lower court erred in finding that there
            was sufficient evidence that he violated his
            conditions of supervision, specifically, that he had
            attempted to receive or possess sexually explicit
            materials while incarcerated in violation of his special
            conditions?


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Appellant’s Brief at 4.

        Appellant argues that the evidence was insufficient to support the

revocation of his probation. Specifically, he contends that he was not aware

that the materials he ordered were sexually explicit and that he was also not

aware of the conditions of his probation prior to his procurement of the

materials.

        When considering an appeal from the revocation of probation, we

note:

             [O]ur review is limited to determining the validity of
             the probation revocation proceedings and the
             authority of the sentencing court to consider the
             same sentencing alternatives that it had at the time
             of the initial sentencing. Revocation of a probation
             sentence is a matter committed to the sound
             discretion of the trial court and the court’s decision
             will not be disturbed on appeal in the absence of an
             error of law or an abuse of discretion.           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.


Commonwealth v. Perreault, 930 A.2d 553, 557-58 (Pa. Super. 2007)

(citations and internal quotations omitted).   Further, “[a] challenge to the

sufficiency of the evidence is a question of law subject to plenary review. We

must determine whether the evidence admitted at trial and all reasonable

inferences drawn therefrom, when viewed in the light most favorable to the


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Commonwealth, as the verdict winner, is sufficient to support all elements of

the offenses.” Id. at 558 (citations omitted).

      In this case, two Commonwealth witnesses testified, respectively, that

Appellant admitted ordering the materials in question and that Appellant had

the conditions of his probation explained to him.            Further, Appellant

acknowledged that he was aware of the conditions of his probation set forth

on December 30, 2014, but “forgot” about them prior to ordering the adult

sexual material. The court specifically noted that Appellant’s contention that

he did not know about the sexual nature of the materials was not credible.

When viewed in the light most favorable to the Commonwealth, as the

verdict winner, the foregoing evidence is sufficient to support the trial court’s

determination that Appellant violated the conditions of his probation by

ordering sexually explicit materials.       See Id.    Accordingly, Appellant’s

sufficiency claim must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2016




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