J-S05003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    DOUGLAS V. HINES                            :
                                                :
                      Appellant                 :   No. 18 WDA 2017

           Appeal from the Judgment of Sentence November 29, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002941-2014


BEFORE:      OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                  FILED APRIL 17, 2018

        Appellant, Douglas Hines, appeals from the judgment of sentence

entered on November 29, 2016.                  We vacate and remand for further

proceedings consistent with this memorandum.

        The factual background of this case is as follows.        On October 21,

2013, Appellant was babysitting his paramour’s son, 23-month-old Q.S.

(“Child”).   Appellant shook Child, causing serious brain damage.         Child is

partially paralyzed because of the injuries sustained during this incident.

        The procedural history of this case is as follows.      On July 15, 2015,

Appellant pled guilty to aggravated assault.1          The trial court immediately


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1   18 Pa.C.S.A. § 2702(a)(1).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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sentenced him to ten years’ probation.            Appellant filed a timely post-

sentence motion. The trial court denied the motion and Appellant did not file

a direct appeal.

        Thereafter, Appellant was arrested for violating the terms of his

probation. At the conclusion of a Gagnon I2 hearing on July 19, 2016, the

trial court ordered Appellant detained.          On November 29, 2016, at the

conclusion of a Gagnon II hearing, the trial court found Appellant in

technical violation of his probation terms, revoked his probation, and

resentenced him to five to ten years’ imprisonment.           This timely appeal

followed.3

        Appellant presents two issues for our review:

     1. Whether the evidence was insufficient to prove that [Appellant]
        was in violation of his probation?

     2. Whether [Appellant]’s revocation sentence of [five to ten] years’
        state incarceration is illegal?

Appellant’s Brief at 6.

        In his first issue, Appellant argues that the evidence was insufficient to

revoke his probation. As this Court has explained:

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

3 On January 11, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On February 27, 2017, Appellant filed his concise
statement. On May 31, 2017, the trial court issued its Rule 1925(a) opinion.
Appellant included both of his issues in his concise statement.



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       In order to uphold a revocation of probation, the Commonwealth
       must show by a preponderance of the evidence that a defendant
       violated his probation. The reason for revocation of probation
       need not necessarily be the commission of or conviction for
       subsequent criminal conduct. Rather, this Court has repeatedly
       acknowledged the very broad standard that trial courts must use
       in determining whether probation has been violated. A probation
       violation is established whenever it is shown that the conduct of
       the probationer indicates the probation has proven to have been
       an ineffective vehicle to accomplish rehabilitation and not
       sufficient to deter against future antisocial conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015) (internal citations and quotations omitted).

       The trial court revoked Appellant’s probation for three violations: (1)

his failure to cooperate with his probation officer; (2) his failure to pay court

costs; and (3) his contact with Child’s mother. We focus our attention on

the first ground for revocation,4 in which the trial court found that Appellant

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4 We agree with Appellant that the evidence was insufficient to revoke his
probation for failure to pay court costs. As this Court has previously
explained to the trial judge in this case:

       a term of probation may not be revoked for failure to pay fines
       [or court costs] absent certain considerations by the trial court.
       Prior to revoking probation on the basis of failure to pay fines,
       costs, or restitution, the court must inquire into the reasons for a
       probationer’s failure to pay and make findings pertaining to the
       willfulness of the party’s omission. In other words, a proper
       analysis should include an inquiry into the reasons surrounding
       the probationer’s failure to pay, followed by a determination of
       whether the probationer made a willful choice not to pay. After
       making those determinations, if the court finds the probationer
       could not pay despite sufficient bona fide efforts to acquire
       resources to do so, the court should then consider alternatives to
       incarceration.
(Footnote Continued Next Page)


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failed to report to his probation officer as required and evaded all but one

home visit during his two years on probation. See N.T., 11/29/16, at 8; see

also Trial Court Opinion, 5/31/17, at 4-5.               Appellant argues that the

evidence was insufficient to support the trial court’s finding that he failed to

cooperate with his probation officer. Appellant contends that the evidence

supporting the trial court’s finding “was inadmissible, incompetent, and a

violation   of   [Appellant]’s    federal      and   state   constitutional   rights   of

confrontation and due process.” Appellant’s Brief at 29.

      We agree with Appellant that the evidence was inadmissible;5

however, Appellant’s arguments related to the admissibility of this evidence

are waived. “A party may claim error in a ruling to admit [] evidence only [if

it], on the record[,] makes a timely objection, motion to strike, or motion in
(Footnote Continued) _______________________


Commonwealth v. Allshouse, 969 A.2d 1236, 1242 (Pa. Super. 2009)
(cleaned up).

As in Allshouse, the trial court failed to conduct the necessary inquiry to
revoke Appellant’s probation for failure to pay court costs.

The evidence was also insufficient to revoke Appellant’s probation for
contacting Child’s mother. The trial court found Child’s aunt, the only
witness that testified regarding Appellant’s contact with Child’s mother, not
credible.    N.T., 7/19/16, at 15.      Without this testimony, there was
insufficient evidence that Appellant contacted Child’s mother.

5  See Allshouse, 969 A.2d at 1241-1242 (explaining that the trial court
must find good cause before admitting hearsay evidence at a Gagnon II
hearing). In this case, the trial court failed to make the requisite finding of
good cause. There was no admissible evidence supporting the trial court’s
finding that Appellant failed to cooperate with his probation officer.



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limine[ and] states the specific ground, unless it was apparent from the

context.” Pa.R.Evid. 103(a); see also Pa.R.A.P. 302(a) (“Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”).   In this case, Probation Officer Amy Protulipac testified at the

Gagnon I hearing. She testified that Appellant was noncompliant with his

probation terms as he refused to cooperate with a different probation officer

and avoided home visits.     See N.T., 7/19/16, at 2-3.      Appellant did not

object to this testimony on the grounds that Probation Officer Protulipac was

incompetent to testify, that her testimony constituted hearsay, or that her

testimony violated his Confrontation Clause rights.     See generally N.T.,

7/19/16; N.T., 11/29/16.      Thus, Appellant waived any argument that

Probation Officer Protulipac’s testimony was inadmissible.

      Probation Officer Protulipac’s testimony was sufficient to revoke

Appellant’s probation. The first general probation condition imposed by the

trial court was that Appellant “must report to [his] assigned probation officer

as required and/or allow [his] probation officer to visit [his] home.” Rules of

Probation, 8/21/15, at 1. Probation Officer Protulipac’s testimony proved, by

a preponderance of the evidence, that Appellant failed to report to his




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probation officer and avoided home visits.           Hence, there was sufficient

evidence that Appellant was in technical violation of his probationary terms. 6

       In his second issue, Appellant argues that his sentence is illegal.

“Issues relating to the legality of a sentence are questions of law.         Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super.

2017) (internal citation and quotations omitted).

       First, Appellant contends that the trial court’s consideration of the

underlying criminal offense violated the Double Jeopardy Clause of the

United States and Pennsylvania constitutions.          This argument is without

merit. Considering the underlying offense when resentencing an individual

after revoking probation does not violate the Double Jeopardy Clause of

either the state or federal constitution.        See Commonwealth v. Hunter,

468 A.2d 505, 507 (Pa. Super. 1983) (citation omitted).           Thus, the trial

court did not violate Appellant’s double jeopardy rights by considering the

gravity of the underlying offense when resentencing Appellant to five to ten

years’ imprisonment.



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6 Appellant may seek collateral relief because of his counsel’s failure to
object to the inadmissible evidence which led us to find his arguments
waived. We cannot, however, address this ineffectiveness claim on direct
appeal. See Commonwealth v. Cox, 146 A.3d 221, 225 n.6 (Pa. 2016)
(citation omitted).



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      Appellant next contends that the trial court erred in not awarding 15

days’ credit for time served in 2014. The Commonwealth concedes that a

hearing on whether Appellant is entitled to credit for 15 days of time served

in 2014 is warranted.     Accordingly, we vacate Appellant’s judgment of

sentence and remand for the sole purpose of imposing the same term of

imprisonment and determining if Appellant is entitled to 15 days’ credit for

time served in 2014.

      Judgment of sentence vacated.         Case remanded.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2018




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