J-S16035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TURON MCGEE,                               :
                                               :
                       Appellant               :      No. 1788 EDA 2019

         Appeal from the Judgment of Sentence Entered May 22, 2019
                in the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0007483-2008

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 29, 2020

        Turon McGee (“McGee”) appeals from the judgment of sentence entered

following his violation of the conditions of his probation (“VOP”). We affirm.

        The trial court summarized the history underlying the instant case as

follows:

              On July 18, 2008, while local police investigated a possible
        wanted person, they encountered [McGee,] who fit the
        description[,] and were given a false name and date of birth.
        Further investigation revealed [McGee’s] true identity[,] resulting
        in a charge of [f]alse [i]dentification to [l]aw [e]nforcement.[1]

              On January 7, 2009, [McGee] pled guilty to [f]alse
        [i]dentification to [l]aw [e]nforcement on docket CP-09-CR-
        0007483-2008 [(“Number 7483”)]. [McGee] was sentenced to
        twelve (12) months’ probation to run consecutive to another
        matter[,] where he [had] entered into a guilty plea with a
        negotiated sentence of five (5) to ten (10) years[,] on docket
        number CP-XX-XXXXXXX-2008 [(“Number 8134”),] for [charges
        related to his sexual assaults against a minor]. As a result of his
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1   See 18 Pa.C.S.A. § 4914.
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     plea for [the sexual assault-related charges], [McGee] was
     informed that he was subject to the Megan’s [L]aw requirements
     and lifetime reporting.

            While on parole in 2015, [McGee] was incarcerated after
     violating the terms of the sex offender treatment [by] residing in
     the home of his girlfriend[,] who had minor children[,] without
     notifying his parole officer.

            On September 17, 2018, during a hearing to address the
     Commonwealth’s [M]otion to add a condition to [McGee’s]
     probation [at Number 7483], [McGee’s] counsel acknowledged
     [the trial court’s] authority to amend the conditions of [McGee’s]
     probation. [The trial court] stated that it was its intention during
     the original sentencing to have [McGee] subject to the sex
     offender supervision during his probation [on the charges at
     Number 7483]. Additionally, a representative of the Pennsylvania
     Board of Probation and Parole testified that it is standard practice
     to have all subsequent convictions supervised by a sex offender
     agent if there is a history of a sex offense crime. It was also
     considered that [McGee’s] parole violations could have resulted in
     a [VOP as to the Number 8134]. For these reasons, the [trial
     court] granted the Commonwealth’s [M]otion to add the
     conditions to [McGee’s] pending probation sentence [at Number
     7483]. Later, [the trial court] denied [McGee’s] [M]otion for
     reconsideration[,] after [McGee] failed to appear for the hearing
     on November 1, 2018. [McGee filed no appeal of the trial court’s
     Order granting the Commonwealth’s Motion, and modifying the
     terms of his probation at Number 7483.] On May 1, 2019,
     [McGee] violated the terms of his probation [at Number 7483] by
     failing to report to his probation officer, failing to keep his
     curfew[,] not residing at his listed address[,] failing to attend the
     sex offender treatment program[,] visiting a prohibited address
     with minors present[,] and testing positive for cocaine. [McGee]
     admitted to all of the violations and, [following the revocation of
     his probation,] was sentenced to six (6) to twelve (12) months
     [of] incarceration. [McGee] filed a [M]otion for [R]econsideration.
     The [trial court] granted [McGee’s] [M]otion and re-sentenced him
     to three (3) to twelve (12) months [of] incarceration[,] with credit
     for time served from March 6, 2019[,] and parole at the minimum
     [term]. [McGee] appealed.




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Trial Court Opinion, 8/28/19, at 1-2 (citations and footnote omitted).

Thereafter, McGee timely filed a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      McGee presents the following claims for our review:

      A. Whether the sentencing court improperly added a condition of
         sentence, specifically[,] sex offender treatment and
         supervision[,] prior to a finding on the record that a probation
         violation occurred[?]

      B. Whether the sentencing court improperly added a condition of
         sentence when the Commonwealth’s request to amend the
         sentence was untimely by more than nine years, and the trial
         court lacked jurisdiction to impose this condition of
         supervision[?]

      C. Whether the trial court’s amended sentence on [No. 7483]
         violated the Equal Protection Clause of the Fourteenth
         Amendment of the United States Constitution, because it
         unfairly discriminated against [McGee] by extending the reach
         of his supervision on [Number 8134] beyond the expiration of
         his maximum sentence[?] A similarly situated person who
         maxed out a prior sentence would not be subject to additional
         sex offender conditions.

      D. Whether the sentencing court improperly imposed sex offender
         supervision in a manner that was contrary to the fundamental
         norms which underlie the sentencing process when the court
         declined to first establish the need for additional rehabilitation
         and the protection of the public, and the facts supporting the
         underlying charge were wholly unrelated to the conditions
         imposed[?]

Brief for Appellant at 5.

      When considering an appeal from 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 alternatives that
      it had at the time of the initial sentencing. Revocation of a

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     probation sentence is a matter committed to the sound discretion
     of the trial court and the court’s decision will not be disturbed on
     appeal in the absence of an error of law or an abuse of discretion.
     The Commonwealth establishes a probation violation meriting
     revocation when it shows, by a preponderance of the evidence,
     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 probationer from future
     antisocial conduct.

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

2007) (citations and internal quotations omitted).

     Here, McGee does not challenge the validity of the probation revocation

proceedings.   Rather, McGee challenges the conditions placed on his

probation, which were first imposed by the trial court’s September 17, 2018,

Order.   However, before addressing these claims, we first must ascertain

whether they were preserved for appellate review.

     Our review of the record discloses that on September 17, 2018, the trial

court conducted a hearing on the Commonwealth’s Motion to impose

additional conditions on McGee’s sentence of probation.      At that hearing,

McGee, through counsel, recognized the trial court’s authority to amend the

conditions of his probation at any time. N.T., 9/17/18, at 25. McGee raised

no constitutional or legal challenge to the additional conditions.       Rather,

McGee presented only an “equity” argument against the additional conditions.

Id. McGee argued that additional conditions should not be imposed, as he

had not been convicted of any additional sexual offenses against a child. Id.

at 26. The trial court granted the Commonwealth’s Motion, after which McGee


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filed a Post-Sentence Motion. See Post-Sentence Motion, 9/26/18. In his

Post-Sentence Motion, McGee’s counsel averred that McGee had “timely

requested that counsel file this [M]otion and provide him an opportunity to

present further information to the sentencing court.” Id., ¶8. McGee’s Motion

asserted no legal or constitutional challenge to the additional conditions placed

on his probationary sentence. McGee did not appear at the hearing on his

Post-Sentence Motion, and the Motion was denied. McGee filed no appeal of

the trial court’s September 17, 2018, Order.

      At the May 1, 2019, VOP hearing, McGee conceded that he was present

at the September 17, 2018, hearing.            N.T., 5/1/19, at 6-7.      McGee

acknowledged his awareness of the additional conditions placed on his

probation, and that those conditions remained in effect. Id. at 7-8. McGee

further admitted to violating those conditions. Id. at 8, 10.

      McGee was re-sentenced on May 1, 2019, after which McGee filed a

post-sentence Motion.     However, McGee’s Motion did not challenge the

additional conditions previously placed on his probationary sentence. At the

hearing on McGee’s Motion for reconsideration of his sentence, McGee asked

only for a reduced sentence. N.T., 5/22/19, at 7-8. McGee did not orally

challenge the conditions of his probation. See id.

      Thus, McGee first raised the four, above-listed claims in his Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal. It is well-

settled that “[i]ssues not raised in the lower court are waived and cannot be


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raised for the first time on appeal.” Pa.R.A.P. 302(a). Issues must be raised

prior to trial, during trial, or in a timely-filed post-sentence motion to be

preserved for appeal. Commonwealth v. Melendez-Rodriguez, 856 A.2d

1278, 1288-89 (Pa. Super. 2004) (en banc). “[A] party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule

1925(b) order.” Id. at 1288 (citation omitted).

       Because McGee failed to properly raise these claims before the trial

court, following its September 17, 2018, Order, or even before the trial court

at or following resentencing on May 22, 2019, we deem them to be waived.

See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time

on appeal); see also Commonwealth v. Moran, 104 A.3d 1136, 1144 n.8

(Pa. 2014) (applying Pa.R.A.P. 302(a) and declining to address a constitutional

challenge, where the appellant had failed to raise the issue before the trial

court); Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)

(recognizing that an appellant challenging the discretionary aspects of his

sentence2 must first invoke this Court’s jurisdiction by satisfying a four-part

test, which includes demonstrating that the issue was properly preserved at

sentencing or in a post-sentence motion).




____________________________________________


2 A challenge to the conditions of probation implicates the discretionary
aspects of sentencing. Commonwealth v. Fenton, 750 A.2d 863, 867 n.4
(Pa. Super. 2000).

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      Even if McGee had properly preserved his claims, we would conclude

that they lack merit, for the reasons stated in the well-reasoned Opinion of

the trial court. See Trial Court Opinion, 8/28/19, at 3-5.

      Judgment of sentence affirmed.

      Judge Dubow concurs in the result.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/20




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