J-S46042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
 DANIEL NEIL WEINER,                         :
                                             :
                    Appellant.               :   No. 547 EDA 2018


         Appeal from the Judgment of Sentence, January 18, 2018,
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009257-2015.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED OCTOBER 17, 2018

      Daniel Neil Weiner appealed from the judgment of sentence imposed

after he was found in technical violation of his probation.     The trial court

revoked Weiner’s probation, and resentenced him to 3 to 23 months of

incarceration with immediate parole plus three years of reporting probation.

Because the record does not support the trial court’s conclusion that Weiner

willfully violated probation, we vacate Weiner’s judgment of sentence and

reinstate the original order of probation.

      In his underlying criminal case, Weiner pleaded guilty to retail theft and

was sentenced to 3 to 23 months of incarceration with immediate parole plus

three years of reporting probation. Weiner was released from custody on July

22, 2017 after serving three months. The Philadelphia Adult Probation and

Parole Department (“APPD”) filed Gagnon I and Gagnon II summaries. They
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allege that Weiner never reported to the APPD after he was released from

custody. They also alleged that APPD mailed a contact notice to Weiner on

September 15, 2017, and then mailed an arrest warrant on October 20, 2017.

       On January 18, 2018, the trial court held a probation violation hearing.

Neither Weiner’s probation officer, nor anyone else from the APPD was present

to testify. Weiner claimed he did not receive either the contact notice or the

arrest warrant. Weiner further explained that he contacted APPD upon his

release and that the person with whom he spoke told him “[they did not] have

anything” regarding his case, that his file would be forwarded to someone

else, and that “they [would] get back to [him].” N.T., 1/18/18, at 18. The

Commonwealth did not rebut this evidence.          Additionally, the trial court

acknowledged that the wrong ZIP code for Weiner’s address was listed on the

run sheet which “might explain why [Weiner] didn’t get [APPD’s notices].” Id.

at 22. Nonetheless, the trial court found Weiner violated his probation for

failing to appear at APPD. The court revoked his probation and imposed his

original sentence of incarceration. Weiner appealed.

       Weiner presents the following issue on appeal:

          1. The evidence introduced at the probation revocation
             hearing was insufficient as a matter of law to establish a
             technical violation of probation.

Weiner’s Brief at 4.1
____________________________________________


1Weiner raised two additional issues in his brief concerning the new sentence
of incarceration and the discretionary aspects of sentencing. However,



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       When reviewing a trial court’s conclusion to revoke probation, this court

will not disturb that decision absent an abuse of discretion. Commonwealth

v. MacGreggor, 912 A.2d 315, 317 (Pa. Super. 2006).                    “Generally, in

reviewing an appeal from a judgment of sentence imposed after the revocation

of probation, this Court’s scope of review includes the validity of the hearing,

the legality of the final sentence, and, if properly raised, the discretionary

aspects of the appellant’s sentence.” Commonwealth v. Kuykendall, 2 A.3d

559 (Pa. Super. 2010).

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

his probation. The Commonwealth bears the burden of proving a probation

violation   by   a   preponderance       of    the   evidence.   Commonwealth      v.

Shimonvich, 858 A.2d 132, 134 (Pa.                   Super. 2004).   We outlined the

pertinent legal precepts in Commonwealth v. Perreault, 930 A.2d 553 (Pa.

Super. 2007). "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 [the] probationer from future antisocial conduct." Id. 558.

       Finding Weiner in technical violation of his probation, the trial court

reasoned:



____________________________________________


because the evidence was insufficient to support a technical violation of
probation, we need not address these remaining claims.

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             That as part of [Weiner’s] probation, it is required that
         he report to his probation officer. [Weiner] never physically
         appeared at the probation department to ascertain who his
         assigned probation officer was or to gain clarity of his
         alleged confusion regarding his reporting status.        The
         probation department issued warrant cards because
         [Weiner] never reported thus, prompting this probation
         revocation hearing. There were approximately three (3)
         months between the date that the probation department
         issued a contact notice and the date that the probation
         department issued wanted cards due to [Weiner]
         absconding. Nowhere on the record does it indicate that
         [Weiner] reported during those times.            Additionally,
         [Weiner] contends that he was unsure of where he was
         required to report for probation and this [c]ourt questions
         [Weiner’s] credibility of the statements he made during the
         proceeding.

            Due to [Weiner] absconding and never starting his
         probation, the new sentence was needed to vindicate the
         authority of the court because [Weiner] never finished the
         remainder of his sentence following his release from
         Montgomery County custody. As a result, Weiner was
         resentenced following the probation revocation hearing to
         the same sentence that [he] was initially given.

Trial Court Opinion, 4/18/18, at 4-5.

      On appeal, the Commonwealth does not agree with the trial court’s

aforementioned analysis, but rather, agrees with Weiner’s contention that the

evidence was insufficient as a matter of law to establish a technical violation

of probation.

      Although a technical violation of probation can support revocation,

absent evidence of “willful disobedience,” the violation is insufficient to

support revoking probation. Commonwealth v. Del Conte, 419 A.2d 780,

782 (Pa. Super. 1980).     Additionally, “a probation violation is established



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whenever it is shown that the conduct of the probationer indicates the

probation has proven to have been an ineffective vehicle to accomplish

rehabilitation and not sufficient to deter against future antisocial conduct.”

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010).

      The record does not reflect any evidence that Weiner’s violation of

probation was willful. The record, at most, suggests that a misunderstanding

on Weiner’s behalf, miscommunication, and clerical errors led to Weiner’s

failure to report to APPD.     Although the trial court discredited Weiner’s

testimony, his description of the phone calls and his explanation as to why he

did not report to APPD remained unrebutted by the Commonwealth.

Additionally, the only verifiable contacts between Weiner and APPD were the

Gagnon summaries and the arrest warrant, both of which were mailed, and

both listed an erroneous address for Weiner, which the trial court

acknowledged.

      Finally, the Commonwealth did not meet the second prong of the test to

warrant revocation of probation, namely that probation has proven an

ineffective rehabilitation tool incapable of deterring the probationer from

antisocial conduct. The Commonwealth presented no evidence that indicated

Weiner’s probation had ceased to serve its original purpose of attempting to

rehabilitate Weiner outside of prison.   The trial court never discussed this

factor before revoking Weiner’s probation. As such, we find that the trial court

abused its discretion in finding a probation violation meriting revocation of

probation and the subsequent imposition of incarceration.

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      In sum, because the Commonwealth concedes that evidence of a willful

probation violation was lacking and that no evidence was presented, which

demonstrated probation had proven ineffective, and both of these conclusions

are supported by our review of the record, we reverse the trial court’s order

finding a probation violation, vacate Weiner’s judgment of sentence, and

reinstate the original probation order.

      Judgment of sentence vacated.        Order of probation reinstated.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




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