J-S69024-19

                                   2020 PA Super 129


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CALIPH GILIAM                              :
                                               :
                       Appellant               :   No. 3882 EDA 2016


           Appeal from the Judgment of Sentence December 2, 2016,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0012894-2015.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY KUNSELMAN, J.:                                 FILED JUNE 03, 2020

        Caliph Giliam appeals the judgment of sentence imposed following

revocation of his probation for committing new crimes.         Upon review, we

vacate Giliam’s revocation sentence.

        On July 11, 2016, Giliam entered into a negotiated guilty plea on

charges for terroristic threats with intent to terrorize another.1 These original

charges arose out of an incident that took place on October 16, 2015, when

Giliam verbally threatened a woman and her dog, then later walked by the

same woman and her neighbor, swinging a hammer and looking at them

sideways.     After, Giliam pled guilty, the trial court sentenced him to three

years of probation and required him to obtain his GED.

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2706(A)(1).
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      Six days after his guilty plea and sentencing, Giliam was arrested and

charged with aggravated assault, simple assault, and resisting arrest. These

new charges stemmed from an incident where an officer allegedly saw Giliam

grabbing his girlfriend by the face and slamming her against a wall several

times. The officer stopped Giliam and handcuffed him. Giliam knocked the

officer’s hand off his shoulder and ran off. When the officer caught up with

him, Giliam laid down on the floor. The officer tried to pick him up, and Giliam

bit his gloved finger. The bite did not tear through the glove but cut the skin,

which was treated with a Band-Aid. Giliam was treated at the hospital for

various injuries.

      A detainer was issued, and the Commonwealth filed a petition seeking

to proceed with a probation violation hearing prior to the trial on the new

charges pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973)

(holding that, because there is no statutory or constitutional bar, a court may

conduct a VOP hearing prior to trial on the criminal charges which form the

basis for the alleged probation violation).      The trial court granted the

Commonwealth’s request.

      On August 29, 2016, the VOP court held the violation of probation

hearing; one of the officers at the scene of the incident and Giliam both

testified. No other testimony or evidence was offered. The VOP court found

the officer’s testimony credible and Gilliam’s testimony incredible. The VOP

court noted that the case for which Giliam was already on probation involved

terroristic threats, and that the facts of that case “indicated a propensity of

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violence.” N.T., 8/29/16, at 53.         Moreover, the court observed, “[i]n this

case, Officer Thrasher indicates that he viewed and witnessed an act of

violence, that the defendant was hitting or banging . . . his girlfriend [against

a wall]. That’s definitely a violation of probation and clearly further shows a

propensity of violence on the part of [Giliam]. . . . Therefore, the Court finds

[Giliam] violated probation.” Id. The trial court then revoked his probation,

but deferred sentencing on the VOP until a mental health evaluation could be

conducted.

      On December 2, 2016, the VOP court held the sentencing hearing for

Giliam’s revocation of probation. The VOP court heard testimony from the

original complainant, the officer who testified at the violation hearing, Giliam’s

probation officer, and Giliam.     The mental health evaluation showed that

Giliam suffered from bi-polar disorder and post-traumatic stress disorder,

arising in part from a horrifically abusive childhood; inpatient treatment was

recommended. The VOP court sentenced Giliam to 2½ years to 5 years of

imprisonment.      Additionally,   the    court   ordered   specific   rehabilitative

conditions which included a requirement that Giliam obtain his GED, attend

drug and alcohol treatment, attend anger management and parenting classes,

take medication as required, and be supervised by the mental health unit.

      Giliam filed a post-sentence motion, but before the court could rule on

it, Giliam filed this appeal.      Both the court and Giliam complied with

Pennsylvania Rule of Appellate Procedure 1925.




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      Thereafter, on June 2, 2017, while this appeal was pending, a different

judge conducted a bench trial on Giliam’s new criminal charges. After hearing

testimony from several witnesses, including the officer who testified at the

probation revocation hearing and another officer who was at the scene, the

court found that the officers’ testimony was inconsistent and not credible, and

that the defense witnesses’ testimony was credible.       The court acquitted

Giliam of the new charges, telling the Commonwealth witnesses, “everywhere

you turn, your story falls short. I have to find this man not guilty and give

him our apologies.” N.T., 6/2/17, at 52-53.

      In light of his acquittal, Giliam filed a motion with this Court to remand

the appeal of his violation of probation for a new hearing. This Court denied

the motion without prejudice to raise the issue before a merits panel. Giliam

petitioned this Court a second time to remand for a new hearing, this time,

with the consent of the Commonwealth.         After receiving a supplemental

opinion from the VOP court, we again denied Giliam’s petition, without

prejudice to raise the issue before the merits panel.

      On appeal, Giliam raises two issues:

      1. Should not [Giliam's] probation violation and subsequent
      sentence, based entirely on conduct for which he was
      subsequently acquitted, be vacated?

      2. In the alternative, should not the sentence be vacated and the
      matter remanded for a new sentencing hearing, insofar as the
      sentence was manifestly excessive and unreasonable, and failed
      to sufficiently take into account [Giliam's] mental health and
      rehabilitation needs?



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Giliam’s Brief at 3.

      When considering an appeal from a sentence imposed following the

revocation of probation, “[o]ur 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.” Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa.

Super. 2007), appeal denied, 945 A.2d 169 (2008) (citation omitted); 42

Pa.C.S.A. § 9771(b).     “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 an abuse

of discretion.” Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. 1996).

      Giliam first argues that his VOP sentence should be vacated because he

was acquitted of the new criminal charges underlying the VOP charge. Giliam

contends that since these new charges were the sole basis for the trial court’s

finding that Giliam violated his probation, his VOP sentence should be vacated.

Giliam’s Brief at 16, 24. The Commonwealth agrees. Commonwealth’s Brief

at 9, 16.

      The trial court believes that the VOP sentence should stand.

Supplemental Trial Court Opinion, 4/26/19, at 5. We disagree.

      A defendant’s probation may be revoked upon proof that the defendant

either: 1) violated a specific condition of his or her probation or 2) committed

a new crime.     42 Pa.C.S.A. § 9771; Commonwealth v. Foster, 214 A.3d

1240, 1243 (Pa. 2019). These are the only grounds on which a court can find

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that a defendant violated his or her probation. Id. “[T]he VOP court must

find, based on the preponderance of the evidence, that the probationer

violated a specific condition of probation or committed a new crime to be found

in violation.” Id.

      Notably, “a violation of probation does not occur solely because a judge

believes the probationer’s conduct indicates that probation has been

ineffective to rehabilitate or to deter against antisocial conduct.” Id. “Rather,

the effectiveness of probation as a rehabilitative tool and as a deterrent to

antisocial conduct is the lens through which a violation is to be viewed.” Id.

at 1251. “Revocation and resentencing are warranted if, in the face of a new

criminal act or the violation of a condition of probation, the court finds that

probation is no longer achieving its desired aims of rehabilitation and deterring

criminal activity.” Id.

      Once the court concludes a violation occurred and probation was not

effective, the court may resentence the defendant to a total term of

incarceration if: (1) the defendant was convicted of a new crime; (2) the

defendant’s conduct makes it likely that he or she will commit a new crime if

not incarcerated; or (3) incarceration “is essential to vindicate the authority

of the court.” 42 Pa.C.S.A. § 9771(c); Foster, 214 A.3d at 1251.

      To determine the validity of Giliam’s VOP sentence, we initially must

consider why the court found him in violation.     The Commonwealth charged

Giliam with a violation because he allegedly committed new crimes. In its

motion to proceed with a probation violation hearing, the Commonwealth only

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asserted that Giliam was arrested and charged with new crimes.            The

Commonwealth did not allege that Giliam violated any condition of his

probation.   As such, Giliam’s new charges were the sole basis for seeking

revocation of his probation.

      In such circumstances, our courts have indicated, but not directly held,

that an acquittal of the charges which served as the basis for a probation

violation would be given preclusive effect. For example, in Commonwealth

v. Infante, 888 A.2d 783, 793 (Pa. 2005), abrogated on other grounds by

Foster, supra, the Commonwealth charged Infante with probation violations

based on new criminal charges and technical violations. The court held a VOP

hearing and found Infante violated his probation based upon the technical

violations, revoked his probation, and sentenced him to a county sentence

with a probation tail. The court warned Infante, however, that, if he were

convicted of the new criminal charges, it would revoke his parole and

probation and resentence him. Subsequently, Infante was convicted of those

new charges, and the VOP court imposed a stricter sentence. On appeal, this

Court vacated Infante’s revocation sentence. Our Supreme Court, however,

reversed.     The High Court concluded that Infante’s VOP sentence was

appropriate, stating, in dicta, that the VOP court’s deliberate intention “to

withhold action on [Infante’s] criminal charges until after the outcome of the

trial on those charges . . . allowed the court to avoid the risk of entering

a VOP sentence that would ultimately be void if the defendant were

acquitted of the new charges.         Infante, 888 A.2d at 793 (emphasis

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added), abrogated on other grounds by Foster, supra. The Court further

noted that this approach was the preferred course of action. Id.

      Similarly, this Court found ineffective assistance of counsel where a

defendant’s counsel at the probation revocation proceeding never advised him

that he could seek to delay his revocation hearing until after trial on his new

charges. Commonwealth v. Moriarty, 180 A.3d 1279, 1288 (Pa. Super.

2018). There, a VOP court revoked Moriarity’s probation based solely on the

new charges, for which Moriarty was ultimately acquitted. Id. We noted that

his probation revocation was “based on what turned out to be nonexistent

violations.” Id. Instead of remanding, we found his revocation sentence was

“infirm,” and corrected it as an illegal sentence. Id. at 1288 n. 5.

      Here, because Giliam’s violation of probation was based solely on

allegations of new criminal charges for which he was later acquitted,

ultimately, no violation of probation occurred.     Consequently, we conclude

Giliam’s probation revocation sentence is void.

      The trial court contends that it did not rely solely on Giliam’s new

charges to revoke his probation. Rather, the trial court concluded that the

three-year probation sentence for Giliam’s original charges was not serving

the desired outcome to rehabilitate Giliam, because he was still acting

erratically and violently.   Relying on Kates, the trial court explained:

      it is not necessary to wait until the person on probation to be
      convicted of the alleged crime for a revocation of probation
      hearing to be held, because if it becomes apparent that the
      probation isn’t serving the desired outcome the court is allowed to
      impose a more appropriate sanction.

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Trial Court Opinion, 10/3/18, at 8-9 (citation omitted). The trial court further

explained:

       It is clear that probation [has] not proven effective because
       [Giliam] admitted to being violent during his right of allocution at
       his sentencing for violation of probation hearing where he
       admitted to being angry following his original sentencing and
       apologized to the officer for biting him. Because probation was
       not enough of a deterrent for [Giliam], and because he admitted
       to his violent behavior SIX DAYS after being sentenced, the court
       took into account the following: the violence against the officer,
       violent acts toward other individuals, the violence against the
       Defendant’s child[ren]’s mother Giliam’s defiant, angry, and wild
       behavior when the court indicated that he was to get a GED in his
       underlying case, the needs and safety of the public, the fact that
       Giliam has shown no remorse for his actions, and Giliam’s
       propensity to be a danger to the public.

Supplemental Trial Court Opinion, 4/26/19, at 4. “Therefore, the court did

not err in revoking probation and resentencing Giliam to SCI Chester for his

mental health, because Giliam’s violent behavior is why Giliam was before the

court in his underlying case, and, just SIX DAYS after his negotiated guilty

plea, he exhibited the same violent behavior.” Trial Court Opinion, 10/3/18,

at 9 (emphasis in original).

       Critically, we note that a VOP court may not consider whether the

probation was an effective deterrent when deciding whether a defendant

violated probation. Foster, 214 A.3d at 1243. In Foster,2 the Supreme Court

of Pennsylvania clarified the process a court must undertake when considering

____________________________________________


2 Foster was decided after Giliam’s VOP hearing. We therefore recognize that
the VOP court did not have the benefit of its holding.


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whether to revoke probation. First, a VOP court must determine whether a

probation violation actually occurred.         If it did, only then the court may

consider the rehabilitative effectiveness of the probation in deciding whether

to revoke the probation.

       Here, the VOP court’s finding the probation was ineffective may not

serve as the basis to revoke Giliam’s probation.3 Once Giliam was acquitted

of the new charges, the finding of a probation violation had to be set aside

because the Commonwealth did not allege or prove any other violation of

probation charge.

       Finally, although the Kates decision from 1973 permits a VOP court to

conduct a revocation of probation hearing prior to trial on the underlying

charges, more recently our Supreme Court has cautioned against proceeding

in this manner. 4 See Infante, 888 A.2d at 793. This Court has also observed

that in many cases it may be “preferable to defer [] hearing until after the

trial, thus avoiding the possibly unjust result of revoking probation, only to

find later that the probationer has been acquitted of the charges that

prompted the revocation hearing.” Commonwealth v. Davis, 336 A.2d 616,

623 (Pa. Super. 1977).         The instant case exemplifies why, as a practical
____________________________________________


3We also observe that Giliam had only been on probation six days. This was
barely sufficient time to establish whether Giliam’s probation was effective. It
was therefore unreasonable for the VOP court to reach this conclusion.

4 Given the Pennsylvania Supreme Court’s ruling in Foster, the application of
Kates in cases like this one, where the sole basis of a probation violation is
the commission of a new crime, is highly dubious.


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matter, the appellate courts have cautioned against proceeding with a

probation violation hearing before the trial on new charges where, as here,

the new charges are the sole basis for the alleged probation violation.

       In sum, because Giliam was acquitted of the new criminal charges, his

revocation of probation sentence cannot stand. Accordingly, we vacate the

decision of the VOP court, and remand for the court to determine whether

Giliam should be credited for any time served against his original probation

sentence.5

       Judgment of sentence vacated.               Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




____________________________________________


5Because our resolution of Giliam’s first issue is dispositive of this case, we
do not address his second issue.

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