J-S84021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KENDALL GARLAND

                            Appellant                 No. 1646 EDA 2014


          Appeal from the Judgment of Sentence Dated May 30, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0804261-2001


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED February 27, 2017

        Appellant Kendall Garland appeals from the judgment of sentence

following the trial court’s determination that he violated his probation. On

appeal, he contends the evidence was insufficient. We affirm.

        In 2002, Appellant pleaded no contest to aggravated indecent assault

and corruption of minors. Commonwealth v. Garland, 3027 EDA 2008 (Pa.

Super., Oct. 30, 2009) (unpublished mem. at 1).1 He was sentenced to two-

and-a-half to six years’ incarceration followed by nine years’ reporting

probation. Id. The sentencing order and commitment form specified that,

among other things, Appellant was to receive drug and alcohol counselling
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3125, 6301.
J-S84021-16


and sexual assault counselling. Order, 8/7/02; Ct. Commitment, 8/7/02.

Appellant did not file a direct appeal from his judgment of sentence.

Garland, 3027 EDA 2008, at *1.

       Appellant filed Post Conviction Relief Act (PCRA) petitions in 2003 and

2006, which were dismissed by the PCRA courts as untimely. This Court

affirmed both dismissals. See Commonwealth v. Garland, 3254 EDA 2004

(Pa. Super., Mar. 7, 2006) (unpublished memorandum), appeal denied,

911 A.2d 933 (Pa. 2006); Garland, 3027 EDA 2008.

       At a hearing on December 21, 2007, regarding Appellant’s second

PCRA petition, the trial court revisited Appellant’s conditions of probation

and parole. N.T., 12/21/07, at 3. Noting that Appellant originally was

ordered at sentencing to obtain sex offenders treatment and evaluation at

the Joseph J. Peters Institute (“JJP”), id. at 10,2 the court ordered Appellant

to “stay away from NUDE [sic] bars, have no association with minors and

complete JJ Peters.” Order, 12/21/07.

       On December 13, 2011, Appellant’s probation was continued after a

violation-of-probation hearing. Order, 12/13/11. The order again specified

that Appellant was to “[c]ontinue treatment at JJ Peters Institute and stay

out of trouble.” Id.
____________________________________________


2
  The record variously refers to the Institute as “JJP,” “JJPI,” “JJ Peters,” and
“JJ Peters Institute.” The Institute is a treatment center for sex offenders in
Philadelphia. See N.T., 5/30/14, at 28.



                                           -2-
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       In July, 2012, Appellant signed a form entitled “Standard Special

Conditions for Sex Offenders.”3 The first condition stated:

       You must obtain a sex offender evaluation from a sex offender
       treatment provider who is approved by probation/parole
       supervision staff. You must comply with and successfully complete
       all treatment recommendations including polygraph examinations,
       resulting from this evaluation. You must pay the cost of the
       evaluation, polygraph(s) and treatment. You must also provide
       written authorization for release of confidential information
       between your sex offender treatment provider and the
       Pennsylvania Board of Probation and Parole.

Conditions, 7/23/12, at ¶ 1.

       On May 6, 2014, Appellant was arrested for violating his probation,

which is the subject of the instant appeal. N.T. 5/30/14, at 22. The

Commonwealth sought to have Appellant incarcerated as a result of the

violation.

       At his violation-of-probation hearing on May 30, 2014, during which

Appellant was represented by counsel, Dage Gardner, an agent for the

Pennsylvania Board of Probation and Parole, testified that Appellant violated

the terms of his probation when he was unsuccessfully discharged from JJP.4

____________________________________________


3
  It is unclear from the certified record what sequence of events led to
Appellant signing the form in 2012.
4
  Officer Gardner testified that Appellant also might have violated his
probation by registering an incorrect e-mail address, but he expressed doubt
about that conclusion and said that errors in Appellant’s e-mail address
could have been due to a clerical error. N.T. 5/30/14, at 4-5. Officer Gardner
stated:

(Footnote Continued Next Page)


                                           -3-
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Appellant was discharged from the treatment program because he failed a

polygraph examination regarding sexual contact with minors and sexual

contact with prostitutes. See id. at 3-4. Officer Gardner stated that the

polygraph test was given to Appellant because he denied having committed

a sexual offense,5 and because he and Appellant’s therapist believed there

were inconsistencies between statements Appellant made during therapy

and his actions. Id. at 9-12. According to Officer Gardner, Appellant initially

refused to take the polygraph test. Id. at 10. Officer Gardner observed that

Appellant had been in treatment programs for approximately one-and-a-half

years and had made no progress towards rehabilitation in that time. Id. at

6. The trial court pointed out that this was Appellant’s third round of sex

offender treatment, after having previously been in the same program in




                       _______________________
(Footnote Continued)

      [Appellant] failed to register his email as required by Megan’s
      Law. He did register his email address as required, but had
      missing scores or missing letters so his email didn’t match – his
      email address didn’t match the email he was using.
             . . . I kind of looked into it and, you know, whoever put it
      in or registered him could have made a mistake on that. So that
      could be – I can’t really . . . ascertain if he did it on purpose
      and/or if we made a mistake.

Id. at 4-5.
5
 It is unclear from the testimony whether Officer Gardner was asserting that
Appellant denied committing the original offense for which he was
sentenced, or a subsequent offense after his release from incarceration.



                                            -4-
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2007 and 2011 and failing to complete the requirements for successful

discharge either time. N.T., 5/30/14, at 6-7.6

       Appellant testified that he has been fully cooperative with the

treatment program’s requirements since 2007 and has not committed any

new offenses while on probation. N.T., 5/30/14, at 15-17. Appellant stated

that he did not intend to refuse to take the polygraph test, but, because his

probation officer at the time had called him by someone else’s name and

had mentioned an unrelated LinkedIn account, Appellant initially attempted

to clarify the request for the examination. Id. at 16. Appellant claimed that

he was not asked during the polygraph examination about the underlying

offense, which he has never denied, but was asked only about his current

sexual activity. Id. at 16-17.7 Appellant asserted that he answered truthfully

____________________________________________


6
  The trial court reviewed Appellant’s Supervision History from 2011, which,
in discussing Appellant’s unsuccessful discharge from the treatment program
at that time, stated:

       [T]he offender will only discuss one of his . . . sex offenses and
       denies the other. The offender also avoids discussing a third
       arrest that was sexual in nature. Group facilitators indicate that
       the offender needs to maintain stable housing in order to lower
       his risk and have more community stability.

N.T., 5/30/14, at 18-19, 25. Officer Gardner testified that Appellant was
reincarcerated in 2011 for accessing or possessing pornographic materials.
Id. at 25. Appellant, however, stated that he was unsuccessful in completing
the treatment program in 2011 due to a relapse in alcohol abuse. Id. at 19.
7
 “[T]hey asked me about current sexual activity, if I had any girlfriends or
anything like that.” N.T., 5/30/14, at 17.



                                           -5-
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during the test and should not have failed. Id. at 33. Appellant also argued

that he was not discharged from the program; he went to a treatment

meeting on a Monday, scheduled his next meeting for Wednesday, and was

arrested on the Tuesday in between. Id. at 32-33.8 If it had not been for the

arrest, Appellant claims, he would have continued attending the treatment

program.

       The trial court read into the record an excerpt from Appellant’s latest

supervision    history,    which    stated     that   in   2013,   Appellant   obtained

employment building a database for a website that assists children with

school work. N.T., 5/30/14, at 20-21. Appellant explained that he believed

he was permitted to work on this website so long as he disclosed his past

offense to his employer and did not have any contact with children, and he

maintained that he complied with both requirements. Id. at 22-23.9


____________________________________________


8
  It is unclear on what date Appellant took and failed the polygraph exam.
We note that Officer Gardner stated that he was notified of the failure and
discharge on May 5, 2014, which was a Tuesday, although Appellant’s
testimony implies that his failure occurred prior to his scheduling of the
Wednesday meeting. See N.T., 5/30/14, at 4.
9
    Appellant’s probation requirements mandated that he “not obtain
employment . . . that places [him] in a position where [he is] in charge of or
have control, power or authority over vulnerable persons without the prior
written approval of probation/parole supervision staff and if in treatment, in
agreement with [his] treatment provider. Vulnerable persons are defined as
. . . anyone under the age of 18.” Conditions, 7/23/12, at ¶ 13. It is unclear
from the testimony whether the probation officers or the court considered
his employment with the website to amount to a technical violation.



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        The 2013 supervision history also stated that Appellant “admitted he

was not attending DNA at Minsec, nor was he attending AA meetings.” N.T.,

5/30/14, at 21.10 Appellant also had a storage unit which contained a

computer,11 and the supervision history said Appellant had lied to his

probation officer about the status of the computer and about when and why

he went to the storage unit. Id.12 Appellant testified that there was a

misunderstanding about his use of the storage unit due to his homeless


____________________________________________


10
   The references apparently were to treatment programs for substance and
alcohol abuse.
11
   One of Appellant’s probation requirements was that he “provide
probation/parole supervision staff unlimited access to any computer or other
multimedia device in [his] possession . . . and allow probation/parole
supervision staff to search all programs and records maintained on any
computer or such other device in [his] possession.” Conditions, 7/23/12, at
¶ 14.
12
     The report read:

        [Appellant was] asked to produce keys to a storage unit. Initially
        denied having his access card and keys, but these items were
        eventually provided. Upon searching the unit we were able to
        find a computer that had a cracked screen, which [Appellant]
        had earlier indicated to [a probation officer] that he could not
        produce because it was broken. However, he tried to explain he
        still uses it despite its being broken.

        [Appellant] also questioned as to the last time he visited his unit.
        He responded he went there in the morning. After speaking with
        U-Haul, it was revealed he scanned in at 3:58 p.m. [Appellant]
        continued to lie about why and when he went to his storage unit.

N.T., 5/30/14, at 21.



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J-S84021-16


status, and that the contents of the computer he kept there were never

searched by probation officers. Id. at 23-24.

       Appellant lives in a homeless shelter, and, according to Officer

Gardner, Appellant claimed to go only to: (1) that shelter where he lived, (2)

another shelter that had computers, so that he could do homework, and (3)

a train station, to use a wireless Internet connection. N.T., 5/30/14, at 25-

26. Officer Gardner expressed the belief that Appellant did not try to get a

job so that he could remain homeless, N.T., 5/30/14, at 26, and he also

expressed concern about Appellant’s travels to the train station because

Appellant “would be at the station house where kids and everybody else

roam and do things.” Id. at 26. Although Appellant testified that that he

obtained a degree as a computer programmer after he was placed on

probation, id. at 22, Officer Gardner stated that he never saw evidence that

Appellant graduated from such a program. Id. at 26. Officer Gardner also

raised questions about financial anomalies regarding Appellant. Id. at 25-

26.13 Officer Gardner stated, “[Appellant] keeps his progression being held

back so he can stay in the transient state so he can do what he wanted to

do.” Id. at 27.

____________________________________________


13
   Officer Gardner said that searches of Appellant’s belongings revealed
ledgers referencing thousands of dollars that Appellant could not adequately
explain, and that Appellant has “a bunch” of credit cards. N.T., 5/30/14, at
26-27. Officer Gardner stated that Appellant told him he “dips and dabs in
trading stocks and things like that.” Id. at 26.



                                           -8-
J-S84021-16


        At the conclusion of the hearing, the court stated

        I don’t think that there is anything else that the Court needs to
        hear on this case. You are asking for leniency. The
        Commonwealth is asking for incarceration because you’ve had
        three attempts now with [JJP]. . . . But you have not been able
        to complete this program despite three attempts and that causes
        concern, in addition to the other concerns that have been
        expressed by [the] officer agent. . . . I do have great concerns
        concerning particularly the nature of the offense and the many
        reasons why . . . [Appellant] has been unable to successfully
        complete treatment.

N.T. 5/30/14, at 27-31. The trial court found Appellant in violation of the

terms of his probation, revoked Appellant’s sentence of probation, and

resentenced him to one to two years’ incarceration followed by five years’

reporting probation. Trial Ct. Op, 9/17/15, at 1.

        On June 3, 2014, even though he was still represented by counsel,

Appellant filed a timely pro se notice of appeal. Thereafter, there was an

extremely long delay in transmittal of the certified record to this Court;

much of that delay was caused by confusion in the trial court regarding

Appellant’s counseled status.14 The trial court filed a Rule 1925(a) opinion on

____________________________________________


14
     The trial court explained:

        On June 3, 2014. Defendant filed a pro se Notice of Appeal from
        the May 30, 2014 sentencing order. On August 8. 2014, the
        docket reflected that the Superior Court was in receipt of
        Defendant’s pro se appeal, although Defendant was represented
        by Court appointed counsel, Lawrence J. Bozzelli. Esq. (“Mr.
        Bozzelli”). A copy of the receipt was sent to the Defendant’s
        attorney of record.

(Footnote Continued Next Page)


                                           -9-
J-S84021-16


September 15, 2015, in which it did not address the merits of Appellant’s

issues, but instead stated that the appeal should be dismissed because the

                       _______________________
(Footnote Continued)

            On August 28, 2014, Defendant was scheduled for a
      reconsideration hearing. Defendant’s counsel, Mr. Bozzelli, did
      not appear and Defendant was represented by Robert Muench,
      Esq., for the purposes of this hearing only. The hearing was
      continued until September 26. 2014, and Mr. Bozzelli was again
      appointed to represent Defendant. On September 12, 2014
      Defendant was scheduled for a status hearing; Mr. Bozzelli
      acknowledged     his     representation  of    Defendant.   On
      September 26, 2014, Defendant appeared for a video hearing in
      which he withdrew all pending motions and petitions other than
      the pro se appeal of his May 30, 2014 sentencing order.

             On December 12, 2014. Defendant sent a letter to the
      Superior Court, in which he objected to the delay of his appeal
      and offered to submit his own record. On December 31, 2014
      the Superior Court forwarded Defendant’s December 12, 2014
      letter to counsel.

           On January 20, 2015 Defendant filed a PCRA petition. On
      January 28, 2015, this office forwarded Defendant’s Notice of
      Appeal to Mr. Bozzelli and inquired if he intended to file a Notice
      of Appeal on Defendant’s behalf as counsel of record. Mr.
      Bozzelli did not respond.

             On July 23, 2015, this office asked the Superior Court to
      clarify the status of Defendant’s appeal. The Superior Court
      responded to this office by telephone and informed Chambers
      that Defendant’s appeal was an open matter and that the
      Superior Court was waiting for an opinion pursuant Pa. R.A.P.
      1925(a).

Tr. Ct. Op. at 1-2. As the trial court noted, Appellant filed a new PCRA
petition to challenge his sentence for the parole violation during this long
period of delay. The petition, which as of the date of the transmittal of the
record had not been addressed by the trial court, is premature, as it was
filed before Appellant’s judgment of sentence for his violation of probation
became final. See 42 Pa.C.S. § 9545.



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notice of appeal was impermissibly filed pro se while Appellant was

represented by counsel. See Trial Ct. Op. at 2-3 (citing Commonwealth v.

Jette, 23 A.3d 1032, 1035 (Pa. 2011); Commonwealth v. Ellis, 626 A.2d

1137 (Pa. 1993)). Once the trial court filed its opinion, the record was

transmitted to this Court on September 21, 2015.

       In November 2015, this Court received Appellant’s pro se “Motion for

Change of Counsel,” in which Appellant stated that his appointed counsel

had informed him that he would be taking no further action on the matter.

On December 8, 2015, this Court remanded this case to the trial court for a

Grazier hearing to determine the status of Appellant’s representation. Mot.,

11/10/15; Order, 12/8/15.15 On February 11, 2016, we received a letter

from the trial court which stated that Appellant “withdrew his [Grazier]

hearing on February 8, 2016,” and informed this Court that Appellant would

be represented by private counsel on appeal. Letter, 2/11/16. Through

counsel, Appellant       filed a timely        Rule   1925(b) statement of errors




____________________________________________


15
   We directed the trial court “to conduct an on-the-record determination as
to whether the Appellant’s waiver of counsel is knowing, intelligent and
voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), and to provide written notice of its determination to the Prothonotary
of this Court within sixty (60) days of the date that this Order is filed.”
Order, 12/8/15.



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complained of on appeal. See Order, 3/9/16; Statement, 3/15/16. The trial

court did not file a responsive Rule 1925(a) opinion.16

       Appellant raises the following issue:

          Did the Court err by finding [Appellant] in violation of his
          probation? There was no witness at the violation of
          probation hearing other than Dage Gardner, State Agent
          for Pennsylvania Board of Probation & Parole. It was not
          claimed that [Appellant] committed any sexual act or new
          allegations of misconduct. [Appellant] was discharged from
          a sex offenders treatment program after he failed a
          polygraph test. [Appellant] should have been allowed to
          enter a treatment program and should not have been
          found in violation of his probation.

Appellant’s Brief at 3.

       Appellant contends that his failure of the polygraph test was not

sufficient evidence to establish that he violated his probation. Appellant’s

Brief at 12-15. He maintains that he adhered to all the conditions of

probation, no allegations of new misconduct were made, and the only

evidence that he failed a polygraph examination or was unsuccessfully

discharged from therapy hinges on the testimony of one probation officer.

Id. Appellant does not challenge the allegation that he failed the polygraph

test or that he has entered the treatment program multiple times and has

yet to successfully complete treatment. Appellant provides no specific
____________________________________________


16
   We would ordinarily remand this case to the trial court to file a Rule
1925(a) opinion that addresses the merits of the appeal. However, due to
the delay of nearly two years that has occurred between Appellant’s notice
of appeal and the date of this decision, we elect to resolve this case based
on the record before us.



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J-S84021-16


response to the other allegations made against him at the hearing regarding,

for example, his failure to attend AA meetings.

       The Commonwealth maintains that the officer’s testimony regarding

the failure of the polygraph comprised sufficient evidence for the court to

revoke Appellant’s probation. See Commonwealth’s Brief at 12. The

Commonwealth bases its argument in part on Appellant’s failure to cite any

law requiring more than the testimony of one probation officer, and in part

on the lower burden of proof needed at a revocation hearing. Id. (citing

Commonwealth v. Holder, 805 A.2d 499, 503-04 (Pa. 2002)). The

Commonwealth also argues that the revocation of parole was justified

because Appellant failed to register his e-mail address, refused to cooperate

with the request for a polygraph test, was not attending meetings, lied about

the use of his storage unit, and did work for a website that “was suspect, to

say the least.” Id. at 8-11.17

       Whether there was sufficient evidence for the trial court to revoke

Appellant’s probation is —

       a question of law subject to plenary review. We must determine
       whether the evidence admitted at [the hearing] 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 [violations]. A reviewing
____________________________________________


17
   The Commonwealth also erroneously contends that Appellant failed to
register his employment for the website. Commonwealth’s Brief at 10-11.
Appellant did register his employment, which led to further inquiry about the
position by his probation officers. See N.T., 5/30/14, at 20.



                                          - 13 -
J-S84021-16


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

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)

(citation omitted), appeal denied, 945 A.2d 169 (Pa. 2008).

      The purpose of a revocation hearing is not to determine whether a

probationer committed a new crime, Commonwealth v. Castro, 856 A.2d

178, 180 (Pa. Super. 2004), but “to establish to the satisfaction of the judge

who granted probation that the individual’s conduct warrants his continuing

as a probationer.” Commonwealth v. Mullins, 918 A.2d 82, 85-86. (Pa.

2007) (citation omitted).

      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. 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 557-58 (citations, brackets, and quotation markets

omitted). Technical violations of probation “can support revocation and a

sentence of incarceration when such violations are flagrant and indicate an

inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.

Super. 2007). Sentencing courts must employ a very broad standard in

determining whether probation has been violated. Commonwealth v.

Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citation omitted), appeal

denied, 109 A.3d 678 (Pa. 2015). A revocation of probation hearing is a

                                    - 14 -
J-S84021-16


truncated proceeding that takes place without a jury, with a lower burden of

proof, and with fewer due process protections. Mullins, 918 A.2d at 85-86

(citations omitted). “Probation is given by grace, not by right.” Id. at 86.

      Applying this standard, we hold Appellant is due no relief. A condition

of Appellant’s probation was that he “[c]ontinue treatment at [JJP].” Order,

12/13/11. Instead, Appellant was discharged from JJP after he failed a

polygraph test that asked about his sexual contact with minors and

prostitutes. We understand that Appellant contends that he answered all

questions on that test truthfully, but the personnel responsible for JJP

concluded otherwise and discharged Appellant, and the trial court treated

that discharge as proper and valid. Because Appellant violated this critical

term of his probation, the trial court acted within its authority in revoking

probation.

      The fact that Appellant’s discharge was based in part on his failure of a

polygraph test does not provide grounds for a different result. We have

previously opined that polygraph examinations are —

      an essential tool for a therapist whose job it is to reveal an
      offender’s deception and encourage him or her to confront his or
      her urges and deviant behavior. The test results further the
      primary goal of counseling as part of a sexual offender’s
      sentence, which is to rehabilitate the offender and prevent
      recidivism, with reasonably small incremental deprivations of the
      offender’s liberty.

Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007).

Therefore, where a probationer fails or lies during a mandated polygraph


                                     - 15 -
J-S84021-16


test or otherwise is shown by the test to have been dishonest with his

therapists, and as a result of the test the probationer has been discharged

from a therapeutic program that is a required condition of his probation,

there is sufficient evidence to revoke his probation.

      For example, in Commonwealth v. A.R., 990 A.2d 1 (Pa. Super.

2010), aff’d, 80 A.3d 1180 (Pa. 2013), a specific condition of probation was

that the probationer would follow all treatment recommendations following

his sex-offender evaluation. Those recommendations included that the

probationer participate in sex offender treatment, which included the use of

therapeutic polygraph examinations. 990 A.2d at 3. The probationer was

questioned before, during, and after a polygraph test regarding the sexual

motives for the underlying offense for which he had pleaded guilty, which he

denied. He failed the test, and was subsequently discharged from the

program for his inability to progress in treatment. Id. at 3-4. On appeal, the

probationer challenged both the admissibility of the polygraph results,

because of their unreliability, and the sufficiency of the evidence justifying

his revocation. We affirmed. Id. at 4-5.

      Regarding sufficiency, we concluded that —

      [The probationer’s] initial probation requirements mandated
      him to obtain a sex offender evaluation and to comply with all
      treatment recommendations flowing from that evaluation,
      which included participation in a program that focused on
      treating [the probationer’s] denial and justification behavior
      and that administered therapeutic polygraph examinations to
      assist in treatment. . . . [The probationer] was discharged from
      the Program due to his failure to progress in treatment, i.e.,

                                     - 16 -
J-S84021-16


     from his inability to admit in treatment the sexual gratification
     motive underlying his convictions. [The probationer] steadfastly
     denied any sexual gratification motive in his acts, despite his
     convictions of the offenses, and he continued to offer varying
     justifications for his acts. This pattern of denial and justification
     caused [the probationer’s discharge] from the Program. Thus, it
     was [the probationer’s] absence from recommended treatment
     that resulted in his violation of the requirements of his sentence
     of probation. Therefore, we are satisfied that the evidence was
     sufficient for the trial court to find that Appellant was in
     violation of his probation, and, as such, Appellant’s issue fails.

Id. at 5 (emphasis omitted).

     Regarding the reliability and admissibility of the polygraph test, we

opined that —

     the results obtained from the administration of a therapeutic
     polygraph examination in a sexual offenders’ treatment
     program are admissible at a probation revocation hearing as
     evidence to support the underlying violation, i.e., a sexual
     offender’s lack of amenability to treatment, so long as the
     results of that examination are not the sole basis for the
     revocation petition . . .

Id. at 7. In A.R., we specified that the polygraph results were not the sole

basis for the revocation petition, but signified the probationer’s overall

resistance to treatment:

     [The probationer’s] probation officer . . . explained that the
     purpose of the therapeutic polygraph examination was to verify
     information provided by a defendant to the Program, and, if the
     defendant cannot or will not admit to the behavior reflected
     factually in their conviction, the therapeutic polygraph
     examination was used as a means to reevaluate the defendant’s
     treatment. . . . [The] Probation department did not file a petition
     for violation of probation solely on the basis of a sexual
     offender’s “failing” of a therapeutic polygraph examination in the
     Program, due to the well-documented unreliability of polygraph
     examinations. . . . [W]e conclude that the administration of the
     therapeutic polygraph examination was a “last ditch” attempt to

                                     - 17 -
J-S84021-16


        keep Appellant in treatment, rather than having been the reason
        for his ultimate discharge.

Id. at 6-7.18 The admissibility issue was appealed to the Supreme Court,

which held that the admission of the exam —

        was not improper because the results were offered not as
        evidence of appellant’s probation violation, but as background
        evidence to explain the actions taken by program staff. . . .
        Accordingly, we affirm the Superior Court’s holding that
        appellant’s therapeutic polygraph examination results were
        admissible at his [violation of probation] hearing for purposes of
        helping explain the program’s actions and the treatment
        procedures.

A.R., 80 A.3d at 1183-84.19


____________________________________________


18
   In A.R., we also instructed that the subject of polygraph questioning must
to be restricted to the underlying offense for which the probationer was
convicted, and not expanded to new, uncharged criminal conduct, in order to
protect the probationer’s Fifth Amendment rights. A.R., 990 A.2d at 7. As
pointed out by the Supreme Court on appeal, that issue was not before us.
A.R., 80 A.3d at 1184 n.6. We note that the Fifth Amendment issue has
since been addressed by the Supreme Court in Commonwealth v. Knoble,
42 A.3d 976 (Pa. 2012), and is not at issue in the instant case.
19
     The Supreme Court clarified in a footnote:

        We do not reach the Superior Court’s conclusion that therapeutic
        polygraph examination results cannot serve as the sole basis for
        probation revocation. The value to be accorded to evidence is a
        matter for the fact-finder with a well-settled appellate standard
        of review. Appellant’s probation violation was supported by
        testimony from several treatment specialists involved in his
        therapy in addition to the results of his therapeutic polygraph,
        and we decline to require specific types of evidence in every
        case.

80 A.3d at 1184 n.6.



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       Similar to the probationer in A.R., Appellant was required to

participate in a specific sex-offender treatment program which required him

to be honest with his therapists and to take polygraph examinations as part

of his treatment. Appellant was discharged from the program without having

successfully completed it, which constituted a technical violation of the terms

of his probation, and Appellant’s probation was ultimately revoked in large

part based on the discharge.20

       Moreover, the discharge marked just one of a series of treatment

failures by Appellant, after two prior unsuccessful rounds of treatment. The

trial court expressed concern regarding these repeated failures. The court’s

reservations about Appellant’s progress while on probation were buttressed

by the other information provided to the court in the probation report — for

example, Appellant’s dishonesty with probation officers surrounding the use

of his storage unit where he kept a computer, and his failure to attend

required meetings.

       Appellant’s multiple discharges from the program, in addition to the

information presented by the probation report, sufficiently support the trial

court’s conclusion that “probation has proven an ineffective rehabilitation

tool incapable of deterring [Appellant from engaging in] antisocial conduct,”

Perreault, 930 A.2d at 558, and that Appellant’s violation indicates an
____________________________________________


20
  Unlike in A.R., the contents of the Appellant’s polygraph test were not
admitted during the probation violation hearing.



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J-S84021-16


“inability to reform,” Carver, 923 A.2d at 498. Accordingly, we discern no

abuse of discretion or error of law by the trial court in revoking Appellant’s

probation.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




                                    - 20 -
