J-S29039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD BOSSERT                            :
                                               :
                       Appellant               :   No. 3060 EDA 2017

            Appeal from the Judgment of Sentence September 6, 2017
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0002172-2012


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 30, 2018

        Appellant Richard Bossert appeals from the judgment of sentence

entered in the Court of Common Pleas of Lehigh County on September 6,

2017, following the revocation of his probation.           On appeal, Appellant

contends the evidence was insufficient to sustain the revocation of his

probation. After a careful review, we affirm.

        The relevant facts and procedural history are as follows: On September

4, 2012, Appellant pled nolo contendere to terroristic threats, simple assault,

and harassment.1 On October 5, 2012, following a sentencing hearing, the

trial court sentenced Appellant to 2½ years to 5 years in prison for terroristic



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1   18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(1), and 2709(a)(1), respectively.


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* Former Justice specially assigned to the Superior Court.
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threats, and a consecutive two-year period of probation for simple assault.

No further penalty was imposed for harassment.2

        On April 17, 2017, Appellant maxed out his prison sentence and began

serving his probationary sentence. On July 28, 2017, the trial court issued a

probation violation warrant for Appellant, and following a Gagnon I3 hearing,

the trial court ordered Appellant detained. Appellant, represented by counsel,

proceeded to a Gagnon II hearing on September 6, 2017.

        At the Gagnon II hearing, Probation Officer Kevin Chaundy testified

that he began supervising Appellant in June of 2017, shortly after Appellant

began serving his period of probation. N.T., 9/6/17, at 4. In June, on his own

accord, Appellant went to an Allentown hospital, which transferred Appellant

to Fairmont Behavioral Health in Philadelphia.       Id.   After Appellant left

Fairmont Behavioral Health, he, on his own accord, went to St. Luke’s Hospital

for mental health treatment. Id. at 4-5, 6.

        Probation Officer Chaundry testified as follows regarding Appellant’s

latest hospitalization:


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2  Thereafter, Appellant did not file a direct appeal to this Court; however, he
filed a collateral petition under the Post-Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. Following the appointment of counsel, the PCRA
court denied the petition, and Appellant filed an appeal to this Court. We
affirmed the denial of the PCRA petition on June 26, 2015.                  See
Commonwealth v. Bossert, 2904 EDA 2014 (Pa.Super. filed 6/26/15)
(unpublished memorandum).

3   Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).


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             On July 11th of [2017], [Appellant] entered, on his own, St.
      Luke’s Hospital in Quakertown. He was there for three days. Upon
      his discharge, [the probation office] received a phone call from St.
      Luke’s staff [indicating] that he was being discharged, but we
      were also informed that during his time there he had made several
      threats to staff and to a fellow patient[.]

Id. at 4.   Probation Officer Chaundry testified that he filed a violation of

probation petition against Appellant in response to the threat allegations. Id.

      Judith Matusic testified that she is a behavioral health care manager at

St. Luke’s Hospital. Id. at 5. She testified that Appellant was admitted to the

hospital on July 11, 2017. Id. at 7. During the first day of admission, when

Ms. Matusic was interviewing Appellant, he threatened “a patient who was

across the hall, [indicating] that he was going to kill him.”    Id. at 9. Ms.

Matusic indicated Appellant mentioned the patient by name, and she opined

that Appellant’s demeanor was “serious,” so she called a nurse to report to

the room. Id. at 9-10. When the nurse came to the room, Appellant repeated

that he was going to kill the patient across the hall. Id. Ms. Matusic noted

that, although the floor on which Appellant was staying was a “locked unit,”

the individual rooms did not lock so Appellant had access to the patient simply

by walking across the hall. Id. at 11.

      Ms. Matusic testified that, in a different interview, Appellant indicated

that he had guns, which a friend was holding for him, and he was going to get

the guns and spray gunfire at everybody. Id. at 12.      Ms. Matusic indicated

that the statements were made in such a way that it was not a “joke.” Id. at

14.

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      Ms. Matusic testified that, on July 14, 2017, Appellant indicated that he

wanted to leave the hospital.     Id. at 7-8.     Ms. Matusic testified that the

hospital’s “hands [were] tied” once Appellant signed a “notice that he no

longer wanted to stay in the hospital[,]” so plans were made to discharge

Appellant. Id. at 7. However, during the discharge process, Appellant would

not accept the hospital staff’s assistance in sending him to a stable housing

plan. Id. Ms. Matusic testified that Appellant informed her he was “homeless”

and “just wanted to be discharged to the street[.]” Id.      It was at this point

that Ms. Matusic telephoned the probation office to inform them that Appellant

was being discharged from the hospital with no assistance. Id. at 13. She

also reported the threats at this time. See id.

      Harvinder Singh, M.D., a psychiatrist at St. Luke’s Hospital, testified that

he was Appellant’s treating physician while he was in the hospital from July

11-14, 2017. Id. at 23-24. Dr. Singh testified that the “main reasons for

admission was worsening depression, increased irritability[,] and paranoid

ideations that people are out to get him.” Id.

      He noted that, when Appellant was admitted, Appellant originally had

another patient as a roommate. Id. at 27. However, Appellant demanded to

change rooms.     Id.   Appellant then “targeted” this other patient and was

“angry toward [the] one specific patient[.]” Id. Dr. Singh testified the other

patient intruded into Appellant’s room, and Appellant threatened to kill him.

Id. at 26. He testified Appellant specifically stated, “He [(the other patient)]


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is staring me down. He is always asking why other people get to do stuff.

You will not be able to get me off of him and I am not going to just hurt him,

I’m gonna murder him.” Id. at 27.

      When asked whether Appellant’s statements regarding the other patient

were the result of Appellant’s mental illness, Dr. Singh testified:

            Based on my evaluation, I will not describe them as
      psychotic in nature because if someone is psychotic, they should
      be directed at everybody, not one specific peer.
           They were more planned in nature, so I will not describe
      them as related to unstable mood or due to psychosis.

Id. at 28.

      Dr. Singh acknowledged that, in addition to threatening to kill a fellow

patient, Appellant verbalized to the case manager that he had guns and was

going to kill many people. Id. When asked whether Appellant made the latter

statements as a result of “psychosis,” Dr. Singh opined, “[B]ased on my

evaluation of him, I saw there was reasoning—his presentation was of

somebody who was more in control and making these decisions knowingly, so

I will not describe them secondary to psychosis or unstable mood at this time.”

Id. at 28-29. He noted that Appellant made the statements because of anger.

Id. at 31.

      Dr. Singh noted that a patient who wishes to be discharged may be

involuntarily committed for a period of time; however, Appellant was not

showing      behaviors   that   would   have   permitted   such   an   involuntary

commitment. Id. at 25. Instead, Dr. Singh opined Appellant was “angry that

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he was there[.]” Id. As such, after Appellant signed the 24-hour form, he

was discharged. Id. at 29.

      Appellant informed the trial court that he went to the hospital voluntarily

to receive treatment. Id. at 34-35. He admitted that he had “episodes” while

he was in the hospital, but that he is “sick.” Id. He indicated that his mental

illness, and the fact he was in the hospital seeking help, should allow him to

“speak [his] mind” without punishment. Id. at 35.

      At the conclusion of the hearing, the trial court found Appellant in

violation of his probation. Specifically, the trial court found Appellant violated

the terms of his probation by failing to refrain from overt, threatening

behavior. Thus, the trial court revoked Appellant’s probation and sentenced

him to 6 months to 24 months in prison.          This timely, counseled appeal

followed. All Pa.R.A.P. 1925 requirements have been met.

      Appellant contends the evidence was insufficient to revoke his

probation. While he admits that “he made threats against an individual and

other generalized threats during his hospitalization[,]” he contends that the

“threats were made. . .as a result of his psychiatric illness rather than any

aggressive intent.” Appellant’s Brief at 9. He specifically argues that he did

not intentionally, voluntarily, or knowingly violate his probation since the

threatening statements at issue were the product of his severe mental illness.

See id. 9-10, 12-13. Further, in this regard, he contends that, since he did

not voluntarily and knowingly make the threatening statements, the evidence


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does   not   sufficiently   demonstrate   that   probation   was   an   ineffective

rehabilitation tool incapable of deterring him from future antisocial conduct.

See id.

       Relevantly, this Court has held the following:

             A challenge to the sufficiency of the evidence is a question
       of law subject to plenary review. We must determine whether the
       evidence admitted at [the hearing] and all reasonable inferences
       drawn therefrom, when viewed in the light most favorable to the
       Commonwealth as the verdict winner, is sufficient to support all
       elements of the offenses. A reviewing court may not weigh the
       evidence or substitute its judgment for that of the trial court.
              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. When assessing whether to revoke
       probation, the trial court must balance the interests of society in
       preventing future criminal conduct by the defendant against the
       possibility of rehabilitating the defendant outside of prison. In
       order to uphold a revocation of probation, the Commonwealth
       must show by a preponderance of the evidence that a defendant
       violated his probation. [T]he reason for revocation of probation
       need not necessarily be the commission of or conviction for
       subsequent criminal conduct. Rather, this Court has repeatedly
       acknowledged the very broad standard that sentencing courts
       must use in determining whether probation has been violated[.]
       A probation violation is established 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.
                                   ***
                    The burden of proof for establishing a violation
             of probation is a preponderance of the evidence,
             lesser than the burden in a criminal trial of proof
             beyond a reasonable doubt. But there are other
             noteworthy      differences  between     a   probation
             revocation hearing and a criminal trial, and the
             manner in which each proceeding affects the other
             also is significant:


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                   The focus [of] a probation 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 anti-social conduct. It must be
             emphasized that a probation revocation hearing is not
             a trial: The court’s purpose is not to determine
             whether the probationer committed a crime. . .The
             degree of proof necessary for probation revocation is
             less than that required to sustain a criminal
             conviction. Probation may be revoked on the basis of
             conduct which falls short of criminal conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041–42 (Pa.Super. 2014)

(citations, quotations, and quotation marks omitted).        As this Court has

recognized, probation is a privilege, not an absolute right. Commonwealth

v. McNeil, 665 A.2d 1247 (Pa.Super. 1995).

      In the case sub judice, the trial court found credible Ms. Matusic’s

testimony that Appellant threatened to kill another patient at the hospital, as

well as threatened to get a gun and shoot others. See Trial Court Opinion,

filed 11/22/17, at 3. Although Appellant indicated at the Gagnon II hearing

that his threatening statements were the product of his mental illness, the

trial court found credible Dr. Singh’s testimony that Appellant’s threats were

not related or secondary to psychosis or an unstable mood. See id. As the

trial court found, Dr. Singh testified Appellant’s threats were made in anger,

“planned in nature,” and the product of “reasoning” by “somebody who was

[] in control and making [] decisions knowingly.” See id.; N.T., 9/6/17, at

28-29, 31.    We defer to the trial court’s credibility determinations in this

regard. See Colon, supra.

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      Accordingly, we find the trial court did not abuse its discretion in holding

the Commonwealth proved, by a preponderance of the evidence, that

Appellant’s threats to kill a patient, as well as others, established that

“probation has proven to have been an ineffective vehicle to accomplish

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

Trial Court Opinion, filed 11/22/17, at 2-3 (quotation and quotation marks

omitted). Thus, the trial court did not err in revoking Appellant’s probation.

See Colon, supra.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




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