J. S15036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
WILLIAM E. TRAVIS,                          :         No. 2101 EDA 2017
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, November 9, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0002337-2009


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 24, 2018

        William E. Travis appeals from the judgment of sentence entered in

the Court of Common Pleas of Philadelphia County on November 9, 2016,

following revocation of his probation. We vacate the judgment of sentence

and remand for re-sentencing consistent with this memorandum.

        The trial court set forth the following:

              On January 28th, 2010, [appellant] pled guilty to
              Forgery[1] before the Honorable Roxanne Covington,
              and was sentenced to five (5) years of probation.
              On November 11th, 2011, following [appellant’s] first
              Violation of Probation (“VOP”), Judge Covington
              revoked [appellant’s] probation and imposed a new
              sentence of five (5) years of probation. Following
              the imposition of this sentence, [appellant’s]
              probation was transferred to this Court.          On
              September 24th, 2014, following a second VOP
              hearing, this Court revoked [appellant’s] probation

1   18 Pa.C.S.A. § 4101(a)(1).
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              and imposed a new sentence of five (5) years of
              probation. After [appellant] violated his probation
              for a third time, this Court sentenced [appellant] on
              November 9th, 2016 to three to six (3-6) years[’]
              confinement following by one (1) year probation.
              [Appellant] filed a motion for reconsideration of the
              VOP sentence on November 21st, 2016, followed by a
              timely [PCRA2] petition on March 27th, 2017. This
              Court granted [appellant’s] PCRA petition and
              reinstated his appellate rights on June 26th, 2017.
              [Appellant], through counsel, filed a Notice of Appeal
              to the Superior Court on June 30th, 2017. This Court
              issued a [Pa.R.A.P.] 1925(b) Order on July 11th,
              2017, and [appellant] filed a [Rule 1925(b)]
              Statement of Errors Complained of on Appeal on
              July 17th, 2017.

Trial court opinion, 7/18/17 at unnumbered pp. 1-2.

        Thereafter, the trial court filed its Rule 1925(a) opinion.

        Appellant raises the following issue for our review:

              Did the trial court abuse its discretion by finding
              [a]ppellant in technical violation when the evidence
              presented at the [VOP] hearing did not establish a
              violation occurred and if such violation occurred the
              trial court did abuse its discretion by sentencing
              [a]ppellant to an excessive and unreasonable three
              to six year sentence when the record is lacking in
              justification for the sentence?

Appellant’s brief at 3.

        In reviewing a revocation of probation, we employ the following

standard of review:

              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

2   Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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            of discretion. When assessing whether to revoke
            probation, the trial court must balance the interests
            of society in preventing future criminal conduct by
            the defendant against the possibility of rehabilitating
            the defendant outside of prison. In order to uphold a
            revocation of probation, the Commonwealth must
            show by a preponderance of the evidence that a
            defendant violated his probation.

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

(quotation marks and citations omitted).

      Here, the record reflects that Theresa Slaughter,3 the mother of two of

appellant’s children (ages six and two), obtained a protection from abuse

(“PFA”) order against appellant on August 15, 2016, in connection with an

incident that occurred on August 10, 2016. (Notes of testimony, 11/9/16 at

5, 9, 15; Gagnon II summary, 8/24/16 at 2.)           The PFA order was the

impetus for the VOP hearing. At the hearing, Ms. Slaughter testified as to

the facts that gave rise to the entry of the PFA order. Ms. Slaughter testified

that appellant had brought his new girlfriend to her home and “[w]e had an

altercation in my home with his -- another girl.”       (Notes of testimony,

11/9/16 at 6.) During Ms. Slaughter’s direct examination, she indicated that

appellant was somehow involved in the altercation, that she did not know

the extent of appellant’s involvement in the altercation, but that she knew




3   The     VOP   hearing    transcript  identifies the complainant as
“Theresa Slaughter.” The August 24, 2016 Gagnon II summary, however,
identifies the complainant as “Dareisha Slaughter.”


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that she and appellant’s new paramour “had a fight.”                  (Id. at 6-7.)

Following testimony, the trial court found appellant in technical violation of

his probation, revoked appellant’s probation, and sentenced appellant to

three to six years of imprisonment, followed by one year of probation. (Id.

at 19.)

      Appellant contends that the trial court found a probation violation

“based on scant information” and that “there is no information indicating

[a]ppellant ever assaulted [Ms. Slaughter] or much less an arrest being

made.”      (Appellant’s brief at 16.)   Appellant further contends that “[i]t is

unclear whether the court found a violation of the PFA [order] or an assault

had occurred.”          (Id.)   In its brief, the Commonwealth “agrees with

[appellant] that the evidence was insufficient to support his revocation of

probation, because it did not establish that he assaulted Ms. Slaughter.”

(Commonwealth’s brief at 5.)

      Our review of the record reveals that the trial court based its

revocation of appellant’s probation on insufficient evidence of a technical

violation    of   his   probation   because    the   evidence    presented   merely

demonstrated that appellant’s new girlfriend and his former paramour

engaged in a physical altercation with each other.              Although the record

reveals that appellant was present during this physical altercation between

the two women, it does not demonstrate that appellant participated or that

he physically assaulted Ms. Slaughter.



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      Therefore,   because   the   Commonwealth     failed   to   show   by   a

preponderance of the evidence that appellant was in technical violation of his

probation, we are constrained to find that the trial court erred in revoking

appellant’s probation.

      Judgment of sentence vacated.       Case remanded for re-sentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/24/18




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