J-S79023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
MARCUS HAYES                                   :
                                               :
                       Appellant               :   No. 867 EDA 2016

            Appeal from the Judgment of Sentence February 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005276-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 15, 2018

        Marcus Hayes appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, imposed following the

revocation of his probation. We affirm.

        On June 11, 2013, Hayes entered into a negotiated guilty plea to the

charge of corruption of a minor.1 The same day, the trial court sentenced

Hayes to a term of six to twelve months’ imprisonment, followed by three

years of sex offender probation. Hayes received credit for time served and

the trial court deemed him eligible for a re-entry plan; he was subsequently

released from prison on September 16, 2013. Following his release, the trial




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1   18 Pa.C.S.A. § 6301(a)(1)(i).
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court found Hayes in violation of his probation four times, on October 15,

2013,2 May 12, 2014,3 February 12, 20154 and February 23, 2016.

       Hayes’ February 23, 2016 revocation of probation stemmed from events

following his release from incarceration on January 24, 2016. Hayes received

written instructions to immediately report to the probation office upon release

from prison, but he failed to appear. On January 26, 2016, Probation Officer

Michael Hernandez found Hayes at his residence, which is located only two

blocks from the probation office. Hayes signed written instructions to report

to the probation office the following morning between 8:30 a.m. and 12:00

p.m., however, he again failed to report as instructed. On January 27, 2016,

between 2:00 p.m. and 3:00 p.m., probation officers found Hayes walking at

the corner of 12th and Somerset Streets in Philadelphia. The probation officers

arrested Hayes and transported him to the probation office without incident.

While in custody, Hayes also admitted to smoking marijuana.

       On February 23, 2016, the trial court found Hayes in violation of his

probation, revoked his probation and sentenced him to a term of 10 to 23

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2 The trial court revoked Hayes’ probation after he tested positive for cocaine
and marijuana, and sentenced him to serve the balance of his back time,
followed by three years of sex offender probation.

3  The trial court deferred sentencing to August 1, 2014, after which it
sentenced Hayes to 11½ to 23 months’ imprisonment, with immediate parole,
followed by three years’ sex offender probation.

4 The trial court revoked Hayes’ probation and sentenced him to one to two
years’ imprisonment followed by three years of state-supervised sex offender
probation.

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months’ incarceration. Hayes filed a timely notice of appeal on March 21,

2016. Both Hayes and the trial court have complied with Pa.R.A.P. 1925. On

appeal, Hayes raises the following issue for our review:

      Did not the lower court err in finding [Hayes] in technical violation
      of his probation where the evidence failed to establish by a
      preponderance [of the evidence] that [Hayes] knowingly violated
      a condition of his probation because he was detained within a [72-
      ]hour period of his release two blocks from the probation
      department[] and there was no competent evidence sufficient to
      support the revocation.

Brief of Appellant, at 3.

      Hayes argues that:      (1) the Commonwealth failed to prove Hayes

violated an initial reporting condition; (2) the evidence failed to prove that

Hayes violated an instruction to report by “8 o’clock”; (3) the statement

relating to drug use is too vague to support a violation; and (4) hearsay

evidence alone cannot support a probation revocation. Brief of Appellant, at

11. Hayes’ arguments are unavailing.

      When we consider an appeal from a sentence imposed following
      the revocation of probation, our review is limited to determining
      the validity of the probation revocation proceedings and the
      authority of the sentencing court to consider the same sentencing
      alternative that it had at the time of initial sentencing. 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 abuse of
      discretion.

Commonwealth v. Perreault, 930 A.2d 553, 557-58 (Pa. Super. 2007)

(quotations and citations omitted).

      When assessing whether to revoke probation, the trial court must
      balance the interests of society in preventing future criminal

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      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. Simmons, 56 A.3d 1280, 1284 (Pa. Super. 2012)

(emphasis added).

      Probation is a privilege, not an absolute right.    Commonwealth v.

McNeil, 665 A.2d 1247, 1252 (Pa. Super. 1995).             Further, probation

revocation requires only a truncated hearing by the sentencing court to

determine whether probation remains rehabilitative and continues to deter

future antisocial conduct. Commonwealth v. Mullins, 918 A.2d 82, 86 (Pa.

2007). A violation of probation hearing takes place without a jury, with a

lower burden of proof, and with fewer due process protections. Id. Technical

violations are sufficient to trigger probation revocation. Commonwealth v.

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

      Here, Hayes claims the evidence was insufficient to prove a violation of

his probation. A challenge to the sufficiency of the evidence is

      a question of law subject to plenary review. We must determine
      whether the evidence admitted at [a revocation 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 offenses. A reviewing
      court may not weigh the evidence or substitute its judgment for
      that of the trial court.

Perreault, 930 A.2d at 558, quoting Commonwealth v. Snyder, 870 A.2d

336, 346-47 (Pa. Super. 2005).




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       At Hayes’ revocation hearing, the Commonwealth sought to establish

that Hayes used marijuana and committed two technical violations of the

terms of his probation.         Specifically, Hayes twice failed to report to the

probation office, which was located only two blocks from his residence. He

first failed to appear on January 24, 2016, and again on January 27, 2016.

Hayes concedes that Probation Officer Hernandez informed him that he

needed “to report between “8:30 [a.m.] and 12:00 [p.m.]” on January 27,

2016. However, Probation Officer Hernandez did not locate Hayes until “[two]

or [three] o’clock in the afternoon . . . around 12th and Somerset [Street].”

N.T. Revocation Hearing, 2/23/16, at 5, 9. The revocation court also found

credible Probation Officer Hernandez’s testimony that Hayes admitted to

smoking marijuana.        Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

Super. 2007) (it is for fact-finder to make credibility determinations, and

finder of fact may believe all, part, or none of witness’ testimony). Hayes’

failure to report and his admitted use of marijuana were technical violations

of probation that supported revocation. Commonwealth v. Cappellini, 690

A.2d 1220, 1225 (Pa. Super. 1996) (continuing to use drugs is probation

violation); Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super.

1993) (technical violations, including failure to report to parole officer,

justified parole revocation).5

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5 The Commonwealth failed to admit into evidence Hayes’ violation report
summary or the written instructions provided by Probation Officer Hernandez



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       Hayes contends that the trial court premised his probation revocation

solely on hearsay evidence, but concedes that he did not object to the

admission of evidence he characterizes as hearsay at his revocation hearing.

Therefore, we need not consider this argument as it is waived on appeal. See

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.”); Commonwealth v. Powell, 956

A.2d 406, 423 (Pa. 2008) (“The absence of contemporaneous objection below

constitutes a waiver” of claim on appeal.).6

       In light of the foregoing, we do not find that the revocation court abused

its discretion or made an error of law in imposing Hayes’ sentence in this

matter. Perreault, supra. Accordingly, we are compelled to affirm Hayes’

judgment of sentence.

       Judgment of sentence affirmed.




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or other probation officers regarding when he was to report to the probation
office. However, Hayes did not refute Probation Officer Hernandez’s recitation
of the facts at the revocation hearing, and the revocation court found
Probation Officer Hernandez’s testimony credible. Gibbs, supra.

6   Hayes’ characterization of Probation Officer Hernandez’s testimony as
hearsay is incorrect. Hernandez “found [Hayes] inside of [his] residence” and
provided written instructions to report. N.T. Revocation Hearing, 2/23/16, at
5. Hayes also conceded that another probation officer, whom he called Mr.
Gardner, served him with a paper requiring him to report on January 27, 2016
by 12:00 p.m. See id. at 9. By his own admission, Hayes knew that he had
to report. Thus, even without evidence of Hayes’ admitted marijuana use,
there is sufficient non-hearsay evidence to establish a probation violation.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/18




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