J-S54030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

MICHAEL HIGGINS

                             Appellant                     No. 492 EDA 2015


            Appeal from the Judgment of Sentence January 13, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004538-2014


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED OCTOBER 21, 2015

        Appellant, Michael Higgins, appeals from the judgment of sentence

entered following the revocation of his probation by the Honorable William E.

Ford, Court of Common Pleas of Lehigh County. We affirm.

        On October 7, 2014, Higgins entered a guilty plea to one count of

possession of drug paraphernalia and to one count of harassment, and was

sentenced to nine months of probation on each count.                    Thereafter, a

probation     officer   issued   a   Probation/Parole    Intermediate     Punishment

Violation Warrant alleging that Higgins had violated the conditions of his

parole, including, among other things, Condition 5 – failure to remain drug

free.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S54030-15



        On January 13, 2015, the court conducted a Gagnon II hearing, at

which the Commonwealth established that a urine drug test of Higgins

performed on October 17, 2014, tested positive for phencyclidine (PCP).

The lower court subsequently found Higgins in violation of the conditions of

his   probation    and    re-sentenced         him   to   time-served   to   12   months’

imprisonment, with eligibility for immediate parole upon approval of a parole

plan.    This timely appeal followed, in which appellant argues that “the

evidence presented at the time of the Gagnon II hearing was [in]sufficient to

prove that the Defendant had used illegal drugs while under supervison[.]”

Appellant’s Brief at 7.1

        Our review of a sentence imposed following the revocation of

probation 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.” 42

Pa.C.S.A. § 9771(b).        See also Commonwealth v. Fish, 752 A.2d 921,

923 (Pa. Super. 2000).         “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.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.

2008) (citations omitted).

____________________________________________


1
 Higgins included an additional claim in his Rule 1925(b) statement, which
he abandoned on appeal.



                                           -2-
J-S54030-15



      A court may revoke an order of probation upon proof of the violation of

specified conditions of the probation. See Commonwealth v. Infante, 888

A.2d 783, 791 (Pa. 2005). “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.”       Id., at 791.

Moreover, even technical violations are sufficient to trigger revocation. See

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).

      In this case, the probation officer testified at the revocation hearing

that Higgins’s recently administered urine test was positive for PCP.      See

N.T., Revocation Hearing, 1/13/15, at 17-18.         The probation officer, in

compliance with probation department protocol, sent the urine sample to

another lab for further testing.    A toxicology expert from that lab testified

about the verification process of urine samples that are sent by the

probation department and confirmed that Higgins’s urine sample was

“received intact and there was no leakages and seal was intact.” Id., at 6-7.

The expert further testified that he personally certified Higgins’s positive

drug-test results. See id., at 8.

      As the testimony indicates, Higgins tested positive for illegal use of

PCP while on probation. Higgins’s use of illegal drugs is in direct violation of

the specified conditions of his probation.     See Sierra, 752 A.2d at 912

(technical violations of probation are sufficient to trigger revocation). Based

on the testimony, we find no abuse of discretion in the court’s revocation of

                                      -3-
J-S54030-15



Higgins’s probation.      Higgins’s averment that the Commonwealth failed to

present sufficient evidence to demonstrate his use of illegal drugs and

consequential violation of probation lacks merit.2    His use of illegal drugs

only days after the start of his probationary sentence is clear evidence that

“probation has proven to have been an ineffective vehicle to accomplish

rehabilitation.” Id., at 912.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




____________________________________________


2
  Not surprisingly, Higgins does not advance any evidence or cite to any
legal authority to support his dubious proposition that the positive urine drug
test was insufficient to prove that he actually ingested PCP.



                                           -4-
