J-A26003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    CHARLES JACKSON,

                             Appellant                No. 1351 WDA 2017


       Appeal from the Judgment of Sentence Entered August 24, 2017
               In the Court of Common Pleas of Allegheny County
      Criminal Division at No(s): CP-02-CR-0003257-2015 and CP-02-CR-
                                 0000448-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 20, 2018

        Appellant, Charles Jackson, appeals from the judgment of sentence of

an aggregate term of two years’ probation, imposed after the trial court

revoked his previously-imposed probation for simple assault.       After careful

review, we reverse and remand for reinstatement of the prior sentence.

        On June 24, 2015, Appellant entered a guilty plea to simple assault

(“SA”), 18 Pa.C.S. § 2701, at CP-02-CR-0000448-2015 (“448”), and to SA

and summary harassment, 18 Pa.C.S. § 2709, at CP-02-CR-0003257-2015

(“3257”). On that same date, the trial court sentenced Appellant to two years’

probation for SA at 448, and to a concurrent term of two years’ probation for

SA at 3257.1      Additionally, as a condition of his probation, the trial court

____________________________________________


1   The court imposed no further penalty for the harassment offense.
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ordered Appellant to have no contact with the victim, Stephanie Long, to

complete a domestic violence program, and to undergo a drug and alcohol

abuse evaluation. On December 17, 2015, the trial court revoked Appellant’s

probation and again sentenced Appellant to two years’ probation at 448 and

to a concurrent term of two years’ probation at 3257, with the same conditions

of probation.

        On March 5, 2017, police arrested Appellant, and the Commonwealth

charged him with assaulting Ms. Long. The Commonwealth withdrew those

charges prior to any preliminary hearing. On May 28, 2017, police arrested

Appellant for assaulting Ms. Long yet again. Following the then-established

pattern, the Commonwealth withdrew those charges on June 22, 2017.

Nevertheless, Appellant remained incarcerated on a probation violation

detainer.

        On August 24, 2017, the trial court held a Gagnon II probation violation

hearing.2    The court received brief testimony from Appellant’s probation

officer, but no testimony from any witnesses to the events surrounding

Appellant’s withdrawn charges.           Notwithstanding, the trial court revoked

Appellant’s probation for technical violations, and resentenced him to 11½-23

months’ incarceration at 448 and a consecutive sentence of 2 years’ probation

at 3257. The court also reimposed the same conditions of probation.




____________________________________________


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

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      Appellant filed a timely post-sentence motion on September 1, 2017,

challenging the sufficiency of the evidence supporting the revocation, and the

discretionary aspects of his sentence, which the trial court denied on

September 8, 2017. Appellant filed a timely notice of appeal, and a timely,

court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule

1925(a) opinion on February 2, 2018.

      Appellant now presents the following question for our review:
      Whether the Commonwealth failed to present sufficient evidence
      establishing that [Appellant] violated his probation?

Appellant’s Brief at 5.

      The procedures for revoking probation and the rights afforded to
      a probationer during revocation proceedings are well settled:

         [w]hen 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. Commonwealth v. Ferguson, 761 A.2d 613
         (Pa. Super. 2000) (citing Commonwealth v. Holmes, []
         375 A.2d 379, 381 ([Pa. Super.] 1977)). 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.
         DeLuca, [] 418 A.2d 669, 672 ([Pa. Super.] 1980).

         The Gagnon II hearing entails two decisions: first, a
         “consideration of whether the facts determined warrant
         revocation.” Morrissey v. Brewer, 408 U.S. 471 … (1972).
         “The first step in a […] revocation decision … involves a
         wholly retrospective factual question: whether the parolee
         [or probationer] has in fact acted in violation of one or more
         conditions of his parole [or probation].” Gagnon[], 411
         U.S. 778[] (citing Morrissey[], 408 U.S. at 484[]). It is
         this fact that must be demonstrated by evidence containing
         “probative value.” Commonwealth v. Kates, 305 A.2d
         701 ([Pa.] 1973). “Only if it is determined that the parolee

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        [or probationer] did violate the conditions does the second
        question arise: should the parolee [or probationer] be
        recommitted to prison or should other steps be taken to
        protect society and improve chances of rehabilitation?”
        Gagnon[,] 411 U.S. at 784[] (citing Morrissey[], 408 U.S.
        at 484[]). “Thus, the Gagnon II hearing is more complete
        than the Gagnon I hearing in affording the probationer
        additional due process safeguards, specifically: (a) written
        notice of the claimed violations of [probation or] parole; (b)
        disclosure to the [probationer or] parolee of evidence
        against him; (c) opportunity to be heard in person and to
        present witnesses and documentary evidence; (d) the right
        to confront and cross-examine adverse witnesses (unless
        the hearing officer specifically finds good cause for not
        allowing confrontation); (e) a “neutral and detached”
        hearing body such as a traditional parole board, members
        of which need not be judicial officers or lawyers; and (f) a
        written statement by the factfinders as to the evidence
        relied on and reasons for revoking [probation or] parole.”
        []Ferguson, supra, (citing Gagnon [], supra, 411 U.S. at
        786[]; Morrissey[], 408 U.S. at 489[]; []Kates[], []305
        A.2d [at] 701, n.10).

     Commonwealth v. Sims, 770 A.2d 346, 349–50 (Pa. Super.
     2001). Further, we note that there is a lesser burden of proof in
     a Gagnon II hearing than in a criminal trial because the focus of
     a violation hearing is “whether the conduct of the probationer
     indicates that the probation has proven to be an effective vehicle
     to accomplish rehabilitation and a sufficient deterrent against
     future antisocial conduct.” Id. at 350 (internal citation omitted).
     Thus, the Commonwealth need only prove a violation of probation
     by a preponderance of the evidence. Id. Lastly, hearsay is not
     admissible at a Gagnon II hearing absent a finding of good cause
     for not allowing confrontation. Commonwealth v. Kavanaugh,
     [] 482 A.2d 1128, 1130–31 ([Pa. Super.] 1984).

Commonwealth v. Allshouse, 969 A.2d 1236, 1240–41 (Pa. Super. 2009).

     Instantly, Appellant contends:
           The Commonwealth failed to present sufficient evidence
     that [Appellant] violated his probation. [His] arrests, without
     more, were insufficient to violate his probation. The law is clear
     that an arrest alone is an insufficient basis to violate probation.
     Here, the mere fact that [Appellant] had been arrested is all the

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      Commonwealth presented at his violation hearing. Indeed, the
      record shows that the Commonwealth made the decision to
      withdraw the charges against [Appellant] before a preliminary
      hearing was held. Simply, the Commonwealth woefully failed to
      establish that [Appellant] violated his probation and his judgment
      of sentence must be vacated and his original judgment of
      sentence must be reinstated.

Appellant’s Brief at 11.

      As this Court stated in Sims, “[w]e know of no law that allows for

probation to be revoked solely on the basis of an arrest and waiver of a

preliminary hearing. On the contrary, we have found that an arrest alone,

without facts to support the arrest, is not sufficient to revoke probation or

parole.” Sims, 770 A.2d at 352.

      The trial court states:

      Here, [Appellant] was charged in two (2) separate incidents with
      additional assaults on the same victim. His attorney’s argument
      that “on the May 28 date he was out and about minding his own
      business when the victim attacked him in public” ([N.T.], 8/24/17,
      [at] 3), does not result in a failure of sufficiency to support the
      violation, inasmuch as it is [Appellant]’s responsibility to leave if
      he encounters the victim in a public place and this does not
      provide an explanation for the March 5, 2017 violation of the no
      contact order. Because this [c]ourt found that [Appellant] was in
      non-compliance with the conditions of his probation, particularly
      in repeatedly assaulting the same victim in repeated violation of
      the no contact order, the imposition of a sentence of imprisonment
      was permissible under the Sentencing Code.

            Given the [Appellant]’s utter lack of compliance as described
      above, the imposition of a term of imprisonment was necessary to
      vindicate this [c]ourt's authority. This [c]ourt was well within its
      discretion in revoking the [Appellant]’s probation and imposing a
      term of imprisonment. This claim must fail.

Trial Court Opinion, 2/2/18, at 3-4 (citation omitted).




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      Nowhere in the trial court’s opinion does it cite to the evidence or

testimony demonstrating the “facts … support[ing] the arrest[.]” Sims, 770

A.2d at 352.    The only testimony received by the court at the revocation

hearing was that of Appellant’s probation officer, Mr. Dalbon. It is obvious

from his testimony that Mr. Dalbon did not personally observe the

circumstances surrounding Appellant’s arrests.       N.T. at 2-3.   Rather, Mr.

Dalbon only testified as to the fact that Appellant had been arrested, and that

the named victim in the withdrawn charges was Ms. Long. Id.

      The Commonwealth concedes that,
      [w]ith all [due] respect to the [t]rial [c]ourt, it is the
      Commonwealth’s burden to prove the violation of probation. A
      prosecuting attorney did not appear at the revocation
      hearing to present any evidence and the probation officer’s
      testimony did not establish that [A]ppellant had an
      opportunity to avoid the encounter with the victim and did
      so anyway nor did it establish that the assaults actually
      occurred. The Commonwealth acknowledges that this Court
      might find the proof of a violation to be insufficient and will defer
      to the decision of this Court.

Commonwealth’s Brief at 8 (emphasis added). The Commonwealth conceded

at oral argument that Appellant is entitled to relief in these circumstances.

      We agree with Appellant and the Commonwealth.             Accordingly, we

reverse Appellant’s judgment of sentence for the violation of his probation

imposed on August 24, 2017, and remand for the trial court to reinstate the

judgment of sentence entered on December 17, 2015.

      Judgment of sentence reversed.          Case remanded.         Jurisdiction

relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2018




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