J-A30027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    LAWRENCE RAYMOND CRAIG

                             Appellant              No. 1149 WDA 2016


        Appeal from the Judgment of Sentence imposed March 3, 2016
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No: CP-02-CR-0008524-2015

BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 23, 2018

        Appellant, Lawrence Raymond Craig, appeals from his March 3, 2016

judgment of sentence for aggravated indecent assault and indecent assault.1

He argues that several conditions of his special probation are unduly

restrictive and not rationally related to his crimes. We reverse.

        Appellant was charged with the foregoing offenses for assaulting D.D.,

a 34-year-old female, on June 3, 2016. D.D. testified that Appellant put his

hand down her pants without her consent while she was asleep in a residence

in McKeesport, Pennsylvania. Following a non-jury trial, the trial court found

Appellant guilty. On March 3, 2016, the trial court sentenced Appellant to

2½—5 years’ imprisonment followed by five years’ probation. The terms of

probation prohibited Appellant from (1) contact with, or participation in any
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1   18 Pa.C.S.A. §§ 3125(a)(1) and 3126(a)(1), respectively.
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activity with, children under age eighteen without approval and supervision,

and (2) computer or Internet access.2 Appellant objected to these conditions
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2 Appellant’s Charge Specific Special Conditions Form defined these
conditions as follows:

       CONTACT:
       The offender is not to have contact with children under the age
       of 18, beyond incidental business contact, unless approved by the
       probation/parole officer. The offender is not to loiter within 100
       feet of school yards, parks, playgrounds, arcades, or other places
       primarily used by children under the age of 18. The offender shall
       further not associate with children under the age of 18, except in
       the presence of a responsible adult who is aware of the nature of
       the offender’s current offense, criminal background and who has
       been approved by the probation officer.

                                           ***

       EMPLOYMENT:
       The defendant shall not be employed in or participate in any
       volunteer activity that involves contact with children, except
       under circumstances approved in advance and in writing by the
       supervising probation/parole officer.

       PARAPHERNALIA:
       The defendant shall not possess or use any pornographic,
       sexually oriented or sexually stimulating materials, including
       visual, auditory, telephonic, or electronic media and computer
       programs or services that are relevant to the offender’s deviant
       behavior pattern.

       COMPUTER/INTERNET ACCESS:
       The defendant shall not possess or use a computer with access
       to any “online computer service,” or any other electronic device
       that allows internet connections and/or access at any location
       (including employment) without the prior written approval of the
       probation/parole officer. This includes any internet services
       provided, bulletin board system or any other public or private
       computer network.       The defendant shall submit to the



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during the sentencing hearing, but the trial court overruled the objections,

stating that it “imposes the conditions in all cases.” N.T., 3/3/16, at 14.

       On March 10, 2016, the trial court held another sentencing hearing in

which it informed Appellant that he was not RRRI eligible.       On March 18,

2016, Appellant filed timely post-sentence motions. On July 6, 2016, the trial

court denied these motions.         On August 5, 2016, Appellant filed a timely

notice of appeal.         Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant raises the following issues in this appeal:

       I. The sentencing court stated that it imposed the same list of
       probation conditions on all defendants convicted of sex offenses.
       The court followed its sentencing policy regardless of the nature
       of the offense, the protection of the public, or the rehabilitative
       needs of the particular defendant. Did the court abuse its
       sentencing discretion when it levied these overbroad,
       unreasonable, and unduly restrictive probation conditions that
       were not reasonably related to [Appellant’s] rehabilitative needs,
       the nature of the offense, or the protection of the public?

       II. The sentencing court followed a predetermined sentencing
       policy of imposing a broad list of probation conditions on all
       defendants convicted of sex offenses. Is this predetermined
       sentencing policy illegal under the Sentencing Code?
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       probation/parole officer and or probation/parole service
       representative conducting periodic unannounced examinations of
       the defendant's computer equipment, which may include retrieval
       and copying of all data from the computer and any internal or
       external peripherals to ensure compliance with this condition
       and/or removal of such equipment for the purpose of conducting
       a more thorough inspection, and allow at the direction of the
       probation/parole officer installation on the defendant’s computer,
       at the defendant’s expense, any hardware or software systems
       to monitor the defendant’s computer use.

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Appellant’s Brief at 6.

      In his first argument, which we find dispositive, Appellant challenges

the discretionary aspects of sentencing.      An appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. [720]; (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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Here,

Appellant satisfies all four requirements of the Moury test. Appellant filed a

timely appeal to this Court, preserved the issue on appeal both at sentencing

and through post-sentence motions, and submitted a Pa.R.A.P. 2119

statement in his brief. Moreover, Appellant has raised a substantial question

by contending that the trial court abused its discretion in imposing

probationary conditions that were not reasonably related to his rehabilitative

needs or the public interest. Commonwealth v. Houtz, 982 A.2d 537, 539

(Pa. Super. 2009) (defendant raised substantial question by arguing that trial

court imposed terms of probation that were not reasonably related to her

rehabilitative needs).




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      In imposing an order of probation, the trial court may require a

defendant “[t]o satisfy any other conditions reasonably related to the

rehabilitation of the defendant and not [be] unduly restrictive of his liberty or

incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(c)(13).

A probation order “is unique and individualized.” Commonwealth v. Koren,

646 A.2d 1205, 1208 (Pa. Super. 1994). As an alternative to imprisonment,

a probation order “is designed to rehabilitate a criminal defendant while still

preserving the rights of law-abiding citizens to be secure in their persons and

property. When conditions are placed on probation orders they are

formulated to insure or assist a defendant in leading a law-abiding life.” Id.

at 1208–09. So long as conditions placed on probation are reasonable, it is

within the trial court’s discretion to order them. Id. at 1209.

      In Houtz, the defendant pleaded guilty to corruption of a minor and

indecent assault for engaging in oral intercourse with a fifteen-year-old

female. The trial court sentenced the defendant to probation, but one of the

probationary conditions was that she could not possess or have access to a

computer or otherwise access the Internet. The defendant argued that this

term was unduly restrictive and impeded her efforts to further her education,

and that this prohibition was “not tailored to the offense committed[,] since

there is no record that [she] had ever used the computer to access

inappropriate materials or otherwise acted in such a way that would justify

such dramatic restrictions.”     Houtz, 982 A.2d at 540.          The trial court


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responded that this term was reasonable under Commonwealth v.

Hartman, 908 A.2d 316 (Pa. Super. 2006), because “often the Internet is

used by sexual offenders as a resource to establish and cultivate

relationships.” Houtz, 982 A.2d at 540. This Court reversed, reasoning:

      We disagree with the trial court’s computer/Internet restriction
      as a condition of Appellant’s probation, especially when there is
      no nexus between the offense charged and access to a
      computer/Internet.

      The trial court’s reliance upon [Hartman] to buttress its
      prohibition of Appellant’s use of a computer/Internet misses the
      mark because Hartman’s crime involved having child
      pornography on the hard drive of his computer. Herein, there is
      no evidence that Appellant’s sexual offense involving a minor
      child was facilitated by or incorporated the use of a
      computer/Internet.

Id.

      Houtz’s logic applies with equal force to this case. There is no evidence

that Appellant committed any crime involving minors. Thus, the terms of

probation prohibiting contact with minors, going to areas where minors are

present, or volunteering or working with children have no relation to his crime

or his rehabilitative needs. Further, there is no evidence that Appellant used

a computer or the Internet to view illegal photographs involving minors or

adults or to contact minors or adults for unlawful activities. Thus, the terms

of probation prohibiting access to computers or the Internet have no relation

to his crime or his rehabilitative needs.

      Accordingly, the trial court abused its discretion by imposing terms of

probation (1) prohibiting contact with minors, going to areas where minors

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J-A30027-17


are present, or volunteering or working with children, and (2) prohibiting

access to computers or the Internet. We reverse the judgment of sentence

and remand to remedy the probation portion of Appellant’s sentence.3

       Judgment of sentence reversed.           Case remanded for proceedings

consistent with this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2018




____________________________________________


3 Based on this decision, we find it unnecessary to review Appellant’s second
argument, a claim that his sentence was illegal due to inclusion of the
foregoing probationary terms.

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