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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JOSEPH WILLIAM LORD,                   :         No. 1866 WDA 2016
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, November 8, 2016,
               in the Court of Common Pleas of Erie County
            Criminal Division at No. CP-25-CR-0001726-2016


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 14, 2017

     Joseph William Lord appeals from the judgment of sentence of

November 8, 2016, following revocation of his probation. We affirm.

     The trial court has summarized the history of this case as follows:

                 Appellant was charged with Simple Assault
           (18 Pa.C.S.[A.] § 2701(a)(1), (M2)); Harassment-
           Subjecting     Another    to      Physical    Contact
           (18 Pa.C.S.[A.] § 2709(a)(1), (S)); and Disorderly
           Conduct-Hazardous/Physically Offensive Condition
           (18 Pa.C.S.[A.] § 5503(a)(4), (M3)) for events
           occurring on April 7th, 2016.      At his Preliminary
           Hearing on April 19th, 2016, Appellant, pro se,
           entered a Guilty Plea before Magisterial District
           Judge Susan D. Strohmeyer to Count One:
           Disorderly Conduct-Hazardous/Physically Offensive
           Condition (M3), with all other counts being
           withdrawn by the Commonwealth. MDJ Strohmeyer
           imposed a sentence of nine (9) months of probation
           through the Erie County Office of Adult Probation and
           Parole.
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                  Thereafter, the Erie County Office of Adult
            Probation alleged Appellant violated the terms of his
            probation, and a Probation Revocation hearing was
            scheduled for November 8th, 2016. At said Probation
            Revocation hearing, Assistant District Attorney
            Michael E. Burns appeared on behalf of the
            Commonwealth, and Appellant appeared and was
            represented by his counsel, Laurie A. Mikielski, Esq.
            Also at the Probation Revocation hearing, Appellant
            admitted violating Conditions Seven, Eleven, Twelve
            and a Special Condition of his probation. Following
            Appellant’s admissions, this Trial Court accepted
            Appellant’s admissions and revoked Appellant’s
            probationary sentence at Count One on the instant
            criminal docket.

Trial court opinion, 1/17/17 at 1-2 (citations to the transcript omitted).

      On November 8, 2016, appellant was resentenced to 76 days to 1 year

of incarceration in the Erie County Prison, with credit for time already served

of 76 days.    The sentence was made consecutive to any other sentence

appellant was currently serving. Appellant was to comply with probationary

conditions, including drug, alcohol and mental health evaluations and refrain

from using alcohol. On November 18, 2016, the trial court granted appellant

permission to transfer to the Erie County Community Corrections Center for

purposes of work release. On December 7, 2016, appellant was ordered to

be paroled. Also on December 7, 2016, a timely notice of appeal was filed,

together with a statement of intent to file an Anders brief.1 The trial court

filed a Pa.R.A.P. 1925(a) opinion on January 17, 2017.



1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).


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      In her Anders brief, appointed counsel, Jessica A. Fiscus, Esq.,

reviewed the following issue before concluding that the instant appeal was

wholly frivolous:     “Did the Commonwealth present sufficient evidence to

demonstrate that Appellant committed violations of his probation?” (Anders

brief at 7.)

      Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

               In order for counsel to withdraw from an appeal
               pursuant to Anders, certain requirements must be
               met, and counsel must:

               (1)   provide a summary of the procedural
                     history and facts, with citations to the
                     record;

               (2)   refer to anything in the record that
                     counsel believes arguably supports the
                     appeal;

               (3)   set forth counsel’s conclusion that the
                     appeal is frivolous; and

               (4)   state counsel’s reasons for concluding
                     that the appeal is frivolous.      Counsel
                     should articulate the relevant facts of
                     record, controlling case law, and/or
                     statutes on point that have led to the
                     conclusion that the appeal is frivolous.



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Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Upon review, we find that Attorney Fiscus has complied with all of the

above requirements. In addition, Attorney Fiscus served appellant a copy of

the Anders brief and advised him of his right to proceed pro se or hire a

private attorney to raise any additional points he deemed worthy of this

court’s review. (See application to withdraw as counsel, 3/1/17, Exhibit A.)

Appellant has not responded to counsel’s motion to withdraw.      As we find

the requirements of Anders and Santiago are met, we will proceed to the

issue on appeal.

           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, 248 Pa.Super. 552, 375 A.2d
                   379, 381 (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,    275
                   Pa.Super. 176, 418 A.2d 669, 672
                   (1980).

                   The Gagnon II hearing entails two
                   decisions:  first, a “consideration of
                   whether the facts determined warrant


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                   revocation.” Morrissey v. Brewer, 408
                   U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
                   (1972). “The first step in a Gagnon II
                   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 v. Scarpelli, 411 U.S. 778, 93
                   S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973)
                   (citing Morrissey, supra, 408 U.S. at
                   484, 92 S.Ct. 2593, 33 L.Ed.2d 484). It
                   is this fact that must be demonstrated by
                   evidence containing “probative value.”
                   Commonwealth v. Kates, 452 Pa. 102,
                   305 A.2d 701 (1973).         “Only if it is
                   determined      that   the    parolee   [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 v. Scarpelli, supra, 411 U.S.
                   at 784, 93 S.Ct. 1756, 36 L.Ed.2d 656,
                   (citing Morrissey v. Brewer, supra,
                   408 U.S. at 484, 92 S.Ct. 2593, 33
                   L.Ed.2d 484).

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

quoting Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001)

(brackets in original).

            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.” [Sims, 770 A.2d]
            at 350 (internal citation omitted).       Thus, the
            Commonwealth need only prove a violation of


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            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, 334 Pa.Super. 151, 482 A.2d 1128,
            1130-31 (1984).

Allshouse, 969 A.2d at 1241.

       Instantly, appellant admitted to violating several conditions of his

probation, including smoking marijuana, consuming alcohol, failing to meet

with his probation officer, and failing to follow through with mental health

treatment. (Notes of testimony, 11/8/16 at 9-10.) Appellant failed to report

to probation on May 12, May 20, June 28, and August 29 of 2016. (Id. at

10.)    Appellant also signed a “violation admission statement” dated

October 7, 2016, in which he admitted violating conditions 7, 11, and 12 of

his probation, as well as a special condition (no alcohol use).    (Trial court

opinion, 1/17/17, Exhibit B; docket #12.)

       At the revocation hearing, appellant conceded that, “I guess I

shouldn’t have messed that up.”       (Notes of testimony, 11/8/16 at 14.)

Appellant testified that, “I wish I could take it all back. I was almost off of

probation.” (Id.) Appellant complained that the Stairways program was not

helping him.    (Id.)   However, as the trial court observed, “[T]he Court

ordered you into Stairways.    You don’t get to decide that you don’t like a

program or not. You have to go.” (Id. at 15.) Appellant also claimed that

he missed appointments because he lived outside of town and it was hard to

find a dependable ride. (Id.) However, his probation officer, Angela Brooks,


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testified that appellant lives on a bus line and the probation office provides

bus passes.    (Id. at 17.)   Clearly, the Commonwealth established by a

preponderance of the evidence that appellant was in violation of the terms

and conditions of his probation and that revocation was appropriate.

      For the reasons discussed above, we determine that appellant’s issue

on appeal is wholly frivolous and without merit. Furthermore, after our own

independent review of the record, we are unable to discern any additional

issues of arguable merit. Therefore, we will grant Attorney Fiscus’s petition

to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/14/2017




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