J-S36044-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
WILLIAM K. WALTERS,                       :
                                          :
                Appellant                 : No. 242 WDA 2015

     Appeal from the Judgment of Sentence Entered February 2, 2015,
              in the Court of Common Pleas of Butler County,
          Criminal Division, at No(s): CP-10-CR-0002183-2008

BEFORE:     PANELLA, JENKINS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED AUGUST 21, 2015

      William K. Walters (Appellant) appeals from the judgment of sentence

entered February 2, 2015, following the revocation of his probation.      We

affirm.

      Upon review of the certified record, we set forth the relevant facts and

procedural history of this case as follows. On June 28, 2010, Appellant pled

nolo contendere to one count of aggravated indecent assault, 42 Pa.C.S.

§3125(a)(6). Following an assessment and hearing, Appellant was classified

as a sexually violent predator (SVP). Appellant was subsequently sentenced

to 24 to 48 months of imprisonment, with a 72-month period of state

probation following his release from incarceration.

      At the conclusion of his imprisonment, Appellant was released into

probationary supervision on October 9, 2014.          On December 24, 2014,



*Retired Senior Judge assigned to the Superior Court.
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pursuant to a request from the Butler County Adult Probation Office, a capias

was issued alleging that Appellant committed violations of his state

probation plan: possession of pornography, driving without a license, and

failure to attend treatment. Capias and Order, 12/24/2014.

        Thereafter, Appellant appeared in court for a Gagnon I1 hearing on

January 23, 2015. The trial court summarized the proceeding as follows:

        [T]he Commonwealth presented the testimony of [Appellant’s]
        State Probation Officer, Renee Wetzel. On October 8, 2014,
        following release from incarceration, [Appellant] was given
        instruction to within five days contact Project Point of Light in
        order to make arrangements for assessment and counseling.
        While [Appellant] had an assessment on November 18, 2014, he
        did not begin counseling until December 6, 2014. He did report
        to Point of Light on December 2, 2014. According to Probation
        Officer Wetzel, [Appellant] was required to attend counseling
        every Tuesday evening in Shippenville, Pennsylvania. Before
        being detained on December 22, 2014, [Appellant] failed to
        attend counseling on December 9, 2014 and December 16,
        2014.

              [Wetzel] also testified that on October 28, 2014,
        [Appellant] signed a form that set forth the conditions of
        probation for sex offenders. The form included instruction that
        [Appellant] was not [to] be looking at or viewing pornography or
        any sexually explicit materials. On December 22, 2014, [Wetzel]
        received an anonymous tip that there was pornography at
        [Appellant’s] residence, including possible child pornography. As
        a result of the tip, [Wetzel] went to [Appellant’s] residence in
        order to search for pornography. Located on a nightstand inside
        [Appellant’s] bedroom was a tablet.        When the tablet was
        swiped, images of hardcore pornography immediately appeared.
        [Wetzel] also discovered inside the residence two other
        computers. Each contained images of pornography. One of the


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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     computers included images of bestiality and possibly contained
     images of child pornography.

           While acknowledging that [Appellant] lived with his mother
     and his girlfriend, the latter of whom shared [Appellant’s]
     bedroom, [Wetzel] testified that [Appellant] admitted that he
     had access to all three of the electronic devices that contained
     the pornographic images.       [Wetzel] also testified without
     objection that witnesses had informed her that they had
     observed [Appellant] on the computers viewing pornography.

Trial Court Opinion, 2/20/2015, at 1-2 (pages unnumbered).

     Based on the foregoing, the trial court found Appellant to be in

violation of his probation. N.T., 1/23/2015, at 17; Pa.R.Crim.P. 708(B). On

February 2, 2015, following a Gagnon II hearing,2 Appellant’s probation

was revoked, and the trial court sentenced him to 12 to 24 months of

incarceration, followed by a consecutive 48-month period of probation.

     Appellant filed no motions following the revocation hearing but timely

filed a notice of appeal.   Both Appellant and the trial court complied with




2
  As neither party challenges it, we only note the procedural irregularity of
the Gagnon hearings.        Unlike a typical Gagnon II hearing, where a
determination is made as to whether sufficient facts exist to justify
revocation, in the case sub judice, the trial court complied with the
requirements of a Gagnon II hearing on January 23, 2015, the same day it
determined that the Commonwealth presented sufficient evidence to
establish probable cause as required by Gagnon I. See Commonwealth.
v. Sims, 770 A.2d 346, 349 (Pa. 2001) (explaining that 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”).
However, because Appellant was given a full and fair opportunity to cross-
examine the witness presented by the Commonwealth, and was offered the
opportunity to testify on his own behalf, we find no prejudice.


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Pa.R.A.P. 1925. On appeal, Appellant challenges the weight and sufficiency

of the evidence to revoke his probation. See Appellant’s Brief at 6.

      At the outset, we highlight the only cognizable issues for appeal

following the imposition of sentence after probation revocation: the “validity

of the revocation proceedings and the legality of the sentence imposed

following revocation.” Commonwealth v. Ortega, 995 A.2d 879, 884 (Pa.

Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1211 (2011). Moreover,

      [r]evocation 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. 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)

(internal citations omitted).

      Instantly, Appellant’s question challenges the first prong of the

Commonwealth’s burden under Perreault: whether the evidence was

sufficient to establish that his conduct violated the terms and conditions of

his probation. “A challenge to the sufficiency of the evidence is a question of

law subject to plenary review.” Id. Thus,

      [w]e must determine whether the evidence admitted at trial and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as the verdict winner,
      is sufficient to support all elements of the offenses. A reviewing



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        court may not weigh the evidence or substitute its judgment for
        that of the trial court.

Id. (citation omitted). The record must establish by a preponderance of the

evidence that the Commonwealth presented evidence sufficient to prove that

the defendant committed each of the violations upon which revocation of his

probation is to be based, as well as his unsuitability to remain on probation.

See id.     The Commonwealth’s burden of proof is diminished from that

required for conviction of the underlying offense; nevertheless, a trial court’s

order    revoking    probation    must      be     based     on   probative     evidence.

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009);

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000).

        We begin our discussion by addressing Appellant’s claim that the

evidence was insufficient to prove, by a preponderance of the evidence, that

Appellant possessed pornography.            Specifically, Appellant argues that the

evidence proffered only established that Appellant had access to the

electronic devices, not that he “viewed, downloaded, or otherwise possessed

any type of pornography.” Appellant’s Brief at 13.

        However,    as   our   Supreme       Court     has    established,    access    to

pornography        may   be    sufficient     to     establish    possession.          See

Commonwealth v. Diodoro, 970 A.2d 1100, 1108 (Pa. 2009) (holding that

“accessing and viewing child pornography over the Internet constitutes




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‘control’ of such pornography under 18 Pa.C.S. § 6312(d)”). This holding is

congruous with the legal theory of constructive possession:

      Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.
      We have defined constructive possession as conscious dominion.
      We subsequently defined conscious dominion as the power to
      control the contraband and the intent to exercise that control.
      To aid application, we have held that constructive possession
      may be established by the totality of the circumstances.

Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)

(quotations and citation omitted).

      At   the   revocation   hearing   Wetzel   testified   that   upon   entering

Appellant’s residence, she discovered three devices containing pornography,

specifically detecting images of bestiality and hardcore pornography. N.T.,

1/23/2015, at 7-8. Wetzel further testified that Appellant admitted to her

that he had access to all three devices; she also gathered witness

statements from individuals attesting that they “observed [Appellant] on

those computers viewing pornography.” Id. at 13. Thus, we agree with the

trial court that the totality of these circumstances—Wetzel’s testimony

coupled with the discovery of multiple devices depicting pornographic

images, including one located next to Appellant’s bed—establish by a

preponderance of the evidence that Appellant did indeed possess, or

constructively possess, pornography in violation of his probation conditions.

In light of this evidence, Appellant’s sufficiency challenge fails.




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      We next turn to Appellant’s assertion that the evidence was insufficient

to prove he violated his probation terms by driving without a license.

Appellant’s Brief at 14.    To the extent Appellant contends that the lack of

evidence for this alleged violation warrants a reversal, we note that the trial

court did not rely on this alleged violation when revoking his probation.3

Moreover, read plainly, the Commonwealth needed only demonstrate that

the probationer violated any of the terms and conditions of his probation.

Perreault, 930 A.2d at 557-58. Accordingly, because the Commonwealth

established a valid violation, and the revocation court did not base the

revocation upon the alleged driving without a license violation, this

argument does not entitle Appellant to relief.

      Lastly, Appellant argues that the evidence was insufficient to support a

finding   that   he   violated   his   probation   by   not   attending   treatment.

Appellant’s Brief at 14-15. To the extent Appellant tenders his indigency as

a justification for this probation violation, we reject this argument;

regardless of his reasoning for not attending treatment sessions, Appellant

still violated a clear condition of his probation.4



3
  Trial Court Opinion, 2/20/2015, at 2 (pages unnumbered) (“[Appellant]
violated the terms of his probation by failing [to] attend counseling as
directed and by viewing pornography.”).
4
   Moreover, the subsection of the Sexual Offender Registration and
Notification Act Appellant relies on provides him no relief, as the burden of
proving indigency does not lie with the Pennsylvania Bureau of Probation and


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      After reviewing the evidence presented in the light most favorable to

the Commonwealth, we are satisfied that the unrebutted testimony of

Wetzel proved by a preponderance of the evidence that Appellant twice

violated a condition of his probation by failing to appear for treatment. N.T.,

1/23/2015, at 5-6.

      We now address Appellant’s argument challenging the weight of the

evidence.      Appellant has effectively abandoned this issue by failing to

develop     any     argument    supported    by   pertinent   authority.    See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (holding issue

waived for failure to develop); Pa.R.A.P. 2119(a). Even had he not waived

this issue, such a challenge is untenable in the context of a probation

revocation.5      The standards for a violation of probation (VOP) hearing are

markedly different from a trial, as a VOP hearing “takes place without a jury,


Parole; nor does indigency operate as an excuse for not attending
treatment.   Specifically, the statute states that if the sexually violent
predator can prove that he or she “cannot afford to pay for the counseling
sessions, the sexually violent predator shall nonetheless attend the
counseling sessions, and the parole office shall pay the requisite fees.” 42
Pa.C.S. § 9799.36(a) (emphasis added).
5
  In the similar context of a violation of parole hearing, this Court, discussing
conflicts in witness testimony, has found “no authority for appellant’s
assumption that a challenge to the weight of the evidence may properly be
entertained on appeal from parole revocation by the trial court.”
Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa. Super. 1988)
(citations omitted). In McDermott, the Court reasoned that the trial court
had not abused its discretion, as the conflicts in question raised issues of
credibility, which were for the finder of fact to resolve. Id. This reasoning is
also appropriate here, in a probation revocation hearing.


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with a lower burden of proof, and with fewer due process protections.”

Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (citation omitted).

Accordingly, had Appellant not waived his weight claim, he would still not be

entitled to relief.

      Our review of the certified record confirms adequate evidentiary

support for the trial court’s findings.   Accordingly, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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