J-S65016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

WILLIAM H. EVANS, JR.

                           Appellant                No. 3235 EDA 2013


          Appeal from the Judgment of Sentence October 22, 2013
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0000125-1987


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 26, 2015

      Appellant, William H. Evans, Jr., appeals from the judgment of

sentence entered on October 22, 2013 in the Criminal Division of the Court

of Common Pleas of Lehigh County, which followed the revocation court’s

determination that Appellant violated the terms of his probation. We affirm.

      The trial court summarized the historical facts and procedural history

in this case as follows:

      On May 11, 1994, [Appellant] entered a plea of nolo contendere
      to three counts of rape by forcible compulsion listed in Counts 1,
      11 and 19 of the criminal information filed in this case. On June
      20, 1994, the [trial court] sentenced [Appellant] on Count 1 to a
      term of confinement of not less than 10 years to not more than
      20 years. On Count 11, the [court] sentenced [Appellant] to 20
      years of probation to run consecutively to the sentence imposed
      on Count 1 and, on Count 19, [the court] sentenced [Appellant]
      to 20 years of probation to run consecutively to the sentence
      imposed on Count 11.



*Retired Senior Judge assigned to the Superior Court.
J-S65016-14


        The charges stemmed from sexual abuse [Appellant] perpetrated
        on his three-year-old daughter, five-year-old son and
        eight-year-old stepdaughter between June of 1982 and August of
        1983. During this period, [Appellant] repeatedly threatened,
        beat and raped the children while they lived at his residence. He
        often tied them to poles and gagged them as he violated them
        orally, anally and genitally. He used a gun and knife to threaten
        them. All three children suffered extreme psychological trauma
        as a result of what [Appellant] did to them.

        [After serving his incarceration sentence on Count 1, Appellant
        was released in March 2013. At this time, Appellant commenced
        serving his probationary sentence for Count 11. On June 27,
        2013, Appellant was taken into custody following a June 21st
        incident that occurred at the all-male boarding house at which
        he was residing.      The June 21st incident began when the
        manager of the boarding house ordered Appellant to vacate the
        premises because he brought a woman into his room.
        Thereafter, Appellant threatened the boarding house manager
        with bodily injury and death. The revocation court convened a
        Gagnon I1 hearing on September 24, 2013. At the conclusion
        of the hearing, the court found probable cause to believe that
        Appellant may have violated his probation by failing to notify his
        probation officer of his new residence after leaving the boarding
        house and by issuing threats to the manager of the boarding
        house.]

        On October 15, 2013, [the revocation court] conducted a
        Gagnon II hearing. [At the close of that hearing, the court]
        found that [Appellant] violated the terms of [his] probation by
        failing to refrain from prohibited overt behavior in that he
        threatened [the boarding house manager.2 Therefore, the court]
        revoked probation on Count 11 and resentenced [Appellant] to a
        state confinement of not less than four months to not more than
        24 months, to be followed by 18 years of probation. [The court]
        also revoked probation on Count 19 and, after taking into
        account [Appellant’s] months of probation already served, [] re-
____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
 The court dismissed the violation in which the Commonwealth alleged that
Appellant failed to report his new residence to his probation officer.



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       sentenced [Appellant] to 18 years of probation to run
       consecutively to the sentence imposed on Count 11.          On
       November 1, 2013, [Appellant] filed a motion to modify his
       sentence which [the court] denied by order filed on November 6,
       2013. [A timely notice of appeal followed on November 14,
       2013.]

Trial Court Opinion, 2/28/14, at 1-2.3

       Appellant’s brief raises the following questions for our review:

          Were [Appellant’s] due process rights compromised by the
          delay from the date of his arrest until the occurrence of
          Gagnon II [h]earing which delay resulted in the
          unavailability of a witness for the defense for the violation
          hearing?

          Was the evidence presented by the Commonwealth
          sufficient to prove by a preponderance of the evidence that
          [Appellant] violated the terms and conditions of his
          probation?

          Did the [revocation] court err by imposing a
          disproportionate sentence based upon the nature of the
          violation and by failing to order a presentence
          investigation report or otherwise engage in a presentence
          inquiry to apprise itself of [Appellant’s] circumstances of
          life and other significant factors relevant to the sentence?

Appellant’s Brief at 9.

       In his first claim, Appellant alleges that his due process rights were

violated by an unnecessary delay between the date of his arrest (June 27,

2013) and his Gagnon II hearing (October 15, 2013).           Appellant alleges

“that this delay cost him the benefit of testimony from Nancy Hester[, who

____________________________________________


3
   Both Appellant and the revocation court have complied with the
requirements set forth in Pa.R.A.P. 1925.



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was called away at the end of July on a family matter.]” Appellant’s Brief at

16. Although Appellant concedes that Ms. Hester was not present during his

confrontation with the boarding house manager, Appellant claims that Ms.

Hester had a previous encounter with the manager on June 21st during which

the manager acted aggressively and inappropriately towards her. Appellant

therefore claims that Ms. Hester “could have testified to the attitude shown

by [the boarding house manager] towards her and [Appellant],” which would

have bolstered Appellant’s credibility and substantiated his contention that

he did not violate his lease conditions by having a female present in his

room. Id. This claim merits no relief.

     In relevant part, Rule 708 of the Pennsylvania Rules of Criminal

Procedure provides that a trial court may not revoke a probationary

sentence “unless there has been a hearing held as speedily as possible at

which the defendant is present and represented by counsel.” Pa.R.Crim.P.

708(B)(1). “The requirement of a speedy revocation hearing means that the

courts must act with reasonable promptness once officials are aware of [a

probation] violation.” Commonwealth v. Pelzer, 466 A.2d 159, 161 (Pa.

Super. 1983).   The rule requiring a speedy revocation hearing does not

establish a presumptive period in which the Commonwealth must revoke

probation; instead, the question is whether the delay was reasonable under

the circumstances and whether the defendant was prejudiced by the delay.

Commonwealth v. Christmas, 995 A.2d 1259, 1262-1263 (Pa. Super.


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2010), appeal denied, 53 A.3d 756 (Pa. 2012). To determine whether there

has been reasonable promptness for purposes of Rule 708(B)(1), a court

considers three factors: the length of the delay, the reasons for the delay,

and the prejudice to the defendant as a result of the delay. Christmas, 995

A.2d at 1263.   The primary purpose of a prompt revocation hearing is to

prevent the loss of essential witnesses or documentary evidence, and to

avoid the continuance of unnecessary incarceration or other limitations of

the personal liberty of the accused. Pelzer, 466 A.2d at 161.

     An analysis of the circumstances surrounding this case leads us to

conclude that Appellant received a reasonably prompt revocation hearing

and that he was not prejudiced by any delay in the proceedings. A period of

110 days elapsed between Appellant’s June 27, 2013 arrest and his October

15, 2013 Gagnon II hearing.      As the revocation court noted, Appellant

never explained what steps he took to secure Ms. Hester’s appearance or

what proof he had that she became unavailable at the end of July 2013.

See Trial Court Opinion, 2/28/14, at 4.      Moreover, Appellant made no

showing at the Gagnon II hearing that he requested an expedited

proceeding. Id. Finally, there can be no argument that Appellant’s Gagnon

II hearing took place after his probationary sentence expired.   In view of

these factors, we fail to see how a three and one-half month period

constituted an extraordinary or unreasonable delay.




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      The Commonwealth has offered no explanation for the time that

elapsed between Appellant’s arrest and his Gagnon II hearing. Where the

Commonwealth provides no explanation for the delay, the court should

analyze whether the delay prejudiced the defendant. Christmas, 995 A.2d

at 1263.

      Prejudice in this context has been interpreted as being
      something which would detract from the probative value and
      reliability of the facts considered, vitiating the reliability of the
      outcome itself. One specific purpose of our rule in requiring a
      prompt revocation hearing is to avoid such prejudice by
      preventing the loss of essential witnesses or evidence, the
      absence of which would contribute adversely to the
      determination. Another is to prevent unnecessary restraint of
      personal liberty.

Id.

      Appellant claims that he was prejudiced by the loss of Ms. Hester’s

testimony.    Appellant concedes, however, that while Ms. Hester had an

angry confrontation with the boarding house manager, this encounter

occurred four and one-half hours before Appellant confronted the manager.

N.T., 10/15/13, at 7. Appellant did not witness the interaction between the

manager and Ms. Hester and Ms. Hester was not present for Appellant’s

encounter with the manager.       Id. at 5.   Under these circumstances, we

concur in the revocation court’s conclusion that Ms. Hester’s testimony had

no bearing on whether Appellant threatened the boarding house manager.

See Trial Court Opinion, 2/28/14, at 4. Since Ms. Hester had no relevant

personal knowledge regarding the nature of the interaction between


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Appellant and the boarding house manager, Appellant cannot show that any

delay in his revocation hearing prejudiced his defense.

       Appellant’s second claim asserts that the evidence presented by the

Commonwealth at the Gagnon II hearing was insufficient to support a

finding that Appellant violated a condition of his probation that forbade him

from engaging in overt behavior.               Specifically, Appellant maintains that,

while a heated exchange may have occurred, nothing on his part rose to the

level of overt behavior worthy of a probation violation since nothing was

“meant seriously” and the record is questionable as to whether Appellant’s

actions placed the boarding house manager in fear of harm. See Appellant’s

Brief at 19. This claim fails.

       The following standard governs our review of Appellant’s second claim:

       The Commonwealth establishes a probation violation meriting
       revocation when it shows, by a preponderance of the evidence,4
       that the probationer's conduct violated the terms and conditions
       of his probation, and that probation has proven an ineffective
       rehabilitation tool incapable of deterring [the] probationer from
       future antisocial conduct.

Commonwealth v. A.R., 990 A.2d 1, 4 (Pa. Super. 2010) (footnote in

original; internal citations omitted), aff’d, 80 A.3d 1180 (Pa. 2013).



____________________________________________


4
  The “preponderance of the evidence” is the lowest burden of proof in the
administration of justice, and it is defined as the “greater weight of the
evidence, i.e., to tip a scale slightly [in one's favor].” Raker v. Raker, 847
A.2d 720, 723 (Pa. Super. 2004).



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      The revocation court made the following findings in support of its

conclusion that Appellant’s probation should be revoked based upon his

violation of the terms of his probation.

      [The boarding house manager] testified at the Gagnon II
      hearing. He explained that he evicted [Appellant] from the
      rooming house on June 21, 2013, after he discovered that
      [Appellant] violated rooming house policy by allowing a female
      guest, Nancy Hester, into his room.

      [The boarding house manager] said that [Appellant] was aware
      of the policy prohibiting female guests. Near midnight on June
      21, [Appellant] got angry over the eviction and began screaming
      profanities at [the manager]. [Appellant] then threatened to kill
      [the manager]. He also told [the manager] that his friend Tom
      would “bust him up.” This began in the occupied rooming house
      and continued outside the house.         The commotion caused
      [another individual] to come to the scene of the shouting to see
      what was going on. [The manager] was alarmed by these
      threats. He went into his office, locked the door and called the
      police.

      Based on this evidence, [the revocation court] found that the
      Commonwealth [presented sufficient evidence to demonstrate
      that Appellant violated condition number nine of his probation by
      failing to refrain from overt behavior.] The evidence showed
      that [Appellant] threatened [the manager] with physical
      violence. [Appellant’s] conduct fits the Crimes Code definition of
      terroristic threats in that he “communicate[d] . . . a threat to
      commit [a] crime of violence with intent to terrorize another. . .”
      18 Pa.C.S.A. § 2706(a)(1). There was sufficient evidence to
      show evidence to show that [Appellant] violated this condition of
      probation.

Trial Court Opinion, 2/28/14, at 6-7.

      Our review of the certified record confirms evidentiary support for the

revocation court’s findings.   See N.T., 10/15/13, at 19-35 (testimony of




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boarding house manager at revocation hearing).                Hence, Appellant’s

sufficiency challenge merits no relief.

      Appellant’s third and final claim asserts that the revocation court

abused its discretion by imposing a sentence that was disproportionate to

the nature of Appellant’s violation and unduly excessive.              Such a claim

presents     a   challenge   to   the   discretionary   aspects   of   a   sentence.

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010) (claim

that sentence is excessive is a challenge to the discretionary aspects of a

sentence).

      We note that “sentencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.”    Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.

Super. 2001).      Moreover, pursuant to statute, Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).         Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, Pa.R.Crim.P. [708]; (3) whether appellant’s brief
        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, 42 [Pa.C.S.A.]
        § 9781(b).

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Commonwealth       v.   Cook,   941    A.2d   7,   11   (Pa.   Super.   2007);

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008) (“when

a court revokes probation and imposes a new sentence, a criminal defendant

needs to preserve challenges to the discretionary aspects of that sentence

either by objecting during the revocation sentencing or by filing a post-

sentence motion”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (“issues challenging the discretionary aspects of a

sentence [following the revocation of probation] must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived”).

     In this case, Appellant filed a timely notice of appeal and preserved his

discretionary sentencing challenge by filing a motion to reconsider his

sentence. Within Appellant’s Rule 2119(f) statement, Appellant claims that

the revocation court “violated fundamental norms underlying the sentencing

process when it imposed a sentence of total confinement for technical

violations of probation and did so without ordering a presentence report or

undertaking a meaningful presentence inquiry.” See Appellant’s Brief at 13.

Appellant, however, has only preserved the claims that the court imposed a

sentence disproportionate to the alleged violation and did so without a

meaningful presentence inquiry, as these were the only claims that were

contained in Appellant’s motion to reconsider and Rule 1925(b) statement.


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Appellant has waived his claim predicated on the court’s failure to order a

presentence report. Kalichak, 943 A.2d at 289.

      We must now determine whether Appellant’s claims present a

“substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.” Cook, 941 A.2d at 11. Generally, to raise a

substantial question, an appellant must “advance a colorable argument that

the trial judge’s actions were: (1) inconsistent with a specific provision of

the Sentencing Code; or (2) contrary to the fundamental norms which

underlie the sentencing process.”    Commonwealth v. McKiel, 629 A.2d

1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748 A.2d 721,

726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa. 2000).

      As this Court has held, a claim that the sentencing court failed to

consider the rehabilitative needs of a defendant does raise a substantial

question under the Sentencing Code. Dodge IV, 77 A.3d at 1273 (“we find

that Appellant’s claim that the sentencing court disregarded rehabilitation

and the nature and circumstances of the offense in handing down its

[consecutive, standard range] sentence presents a substantial question for

our review”); see also Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.

Super. 2013) (a claim that the trial court “failed to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense and the rehabilitative needs” of the defendant, raised a




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substantial question).   Therefore, we may reach the merits of Appellant’s

preserved claims.

      We cannot agree with Appellant’s contention that the court abused its

discretion by imposing a disproportionate sentence without a meaningful

presentence inquiry. The thrust of Appellant’s claim is that the revocation

court focused exclusively upon the nature of Appellant’s underlying

convictions to the exclusion of any other relevant sentencing criteria. The

court’s rationale and the certified record belie this assertion. After reflecting

upon the nature of Appellant’s prior offenses, the court stated:

        Repeated threats, some with a gun and knife, were intrinsic
        to [Appellant’s] rapes. It was proven at the Gagnon II
        hearing that [Appellant] has once again threatened to kill,
        this time while in an obscenity-laced rage. The commotion
        that he caused was considerable. This recent behavior
        demonstrates that [Appellant] remains likely to
        resort to threats and violence as he seeks what he
        wants.      Because there was a likelihood that
        [Appellant] would engage in future criminal activity,
        it was appropriate to revoke probation and impose
        confinement on Count 11. Furthermore, it was proper to
        impose a term of confinement of not more than four months
        to not more than 24 months.          This enables the state
        authorities to use their discretion and gauge when
        [Appellant] is appropriate for parole after a relatively short
        minimum sentence.

Trial Court Opinion, 2/28/14, at 8-9 (emphasis added).              Contrary to

Appellant’s contentions, the court did not look solely to past convictions. It

is evident that the court considered Appellant’s prior offenses within the

context of the present violation in order to gauge Appellant’s amenability to,

and progress toward, rehabilitation.     We agree with the revocation court

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that, based upon Appellant’s present conduct, his progress is lacking. See

id. at 9 (“[Appellant] has demonstrated that he remains a danger and that

he has not been totally rehabilitated”).        Given the risk posed to the

community stemming from Appellant’s likelihood to re-offend, we concur in

the court’s decision to recommit Appellant to a sentence of incarceration

followed by a lengthy probationary sentence.         For these reasons, we

conclude that Appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2015




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