J-S76038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    WAYNE CHARLES CANADA,

                             Appellant                  No. 130 EDA 2017


            Appeal from the Judgment of Sentence October 24, 2016
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0000321-2009


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 29, 2017

        Appellant, Wayne Charles Canada, appeals from the judgment of

sentence imposed following revocation of his probation. We affirm.

        The trial court set forth the relevant background of this case as follows:

              On March 30, 2009, the Appellant pled guilty to one count
        of Dissemination of Explicit Materials to Minor (18 Pa.C.S.A. §[]
        5903(c)(1)). On that same date, he was sentenced to serve 36
        months of probation.

              On May 5, 2010, after the Appellant signed a waiver of his
        Gagnon II Hearing,[1] [the trial court] revoked the Appellant’s
        original sentence and resentenced the Appellant to serve three
        years of probation under the supervision of the Pennsylvania
        Board of Probation and Parole. On October 24, 2016, the
        Appellant was found in violation of his state probation when he
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.

1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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       was unsuccessfully discharged from sex offender treatment. He
       was resentenced to serve no less than one (1) year nor more than
       three (3) years of state prison incarceration.

              On December 21, 2016, trial counsel for the Appellant filed
       a Notice of Appeal Nunc Pro Tunc, which was granted on the same
       day. On January 9, 2017, [the trial court] ordered that a
       Statement of Errors Complained of on Appeal be filed within 21
       days. Although due on January 30, 2017, appellate counsel did
       not file said Statement until February 2, 2017, after inquiry was
       made by [the trial court] as to whether or not it would be filed in
       accordance with the January 9, 2017 Order.            Despite its
       untimeliness, [the court considered] the Appellant’s averments
       and address[ed] them[.]

(Trial Court Opinion, 3/17/17, at 2-3) (footnotes omitted).2

       Appellant raises the following question for our review: “Whether the

evidence presented at the time of the Gagnon II Hearing was sufficient to

prove that [Appellant] had violated the terms of his probation while under

supervision or was the violation based upon [Appellant’s] inability to pay for

the required sexual offender counseling?” (Appellant’s Brief, at 7). Appellant

argues that the trial court’s primary reason for revoking his probation was his

inability to pay for the significant costs of treatment. (See id. at 11-13). He

maintains that his difficult financial circumstances did not constitute sufficient

evidence to show that probation was an ineffective rehabilitation tool or an

inadequate deterrent from future antisocial behavior. (See id. at 13). This

issue does not merit relief.

____________________________________________


2
 Because the trial court addressed the issue raised by Appellant on appeal,
we decline to find waiver, and it is unnecessary to remand.            See
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016), appeal
denied, 165 A.3d 892 (Pa. 2017).


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     Our standard of review is as follows:

     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:

                The focus [of] a probation hearing, even though
           prompted by a subsequent arrest, is whether the
           conduct of the probationer indicates that the


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            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),

appeal denied, 109 A.3d 678 (Pa. 2015) (citations and quotation marks

omitted).

      Here, at the revocation proceeding, the Commonwealth alleged that

Appellant violated the conditions of his probation by failing to remain

compliant with and successfully complete court-ordered sexual offender

treatment. (See N.T. Hearing, 10/24/16, at 4). Theresa Comito, a therapist

at Appellant’s treatment provider, testified that Appellant failed to comply with

program rules regarding attendance, internet access, pornography use, and

alcohol consumption. (See id. at 5-8, 11-12). Specifically, Appellant had

nineteen unexcused absences, used Facebook, viewed pornography, and

drank alcohol periodically. (See id. at 7-8, 11-12, 18). Ms. Comito further

noted that Appellant had crossed relationship boundary lines by having an

affair with his sister-in-law, in his home, while his brother-in-law was present.

(See id. at 11, 19).

      With regard to Appellant’s financial difficulties, Ms. Comito testified that

he was informed that he could not be absent from treatment sessions because



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of a lack of money, and he was permitted to participate even if his account

was in arrears. (See id. at 7). She stated that although the program was

trying to work with him on payments, they could eventually reach a point

where he could not attend sessions, if he continued to increase arrears. (See

id. 7-8, 17). However, Ms. Comito explained that Appellant’s discharge from

the program was based on his large number of infractions, lack of progress,

and deceptive behavior. (See id. at 12). Probation Officer Christopher Ross

likewise testified that the reason for Appellant’s discharge was his lack of

overall compliance with program rules. (See id. at 24).

      Appellant testified to his financial problems, and explained that he was

forced to quit his job at McDonald’s because he “was supposedly making a

hostile environment there[,]” by having an affair with a co-worker. (Id. at

26; see id. at 29-30, 32). Appellant stated that he had sporadic employment

before he began working at a different McDonald’s, and that he was unable to

pay for treatment sessions.    (See id. at 26).   Appellant claimed that the

treatment facility informed him that he could not attend sessions if he did not

pay for them, and he believed the reason for his discharge was his inability to

pay for treatment. (See id. at 26-29). However, upon questioning by the

court, Appellant admitted that his inability to pay was not the sole reason for

his discharge, and that there were other issues related to his treatment. (See

id. at 30-31).




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      After hearing the testimony, the trial court concluded that the

Commonwealth had demonstrated by a preponderance of the evidence that

Appellant had violated his probation. (See id. at 34). The court explained:

             . . . [Appellant] presupposes that the [c]ourt revoked the
      Appellant’s probation supervision merely because the Appellant
      did not maintain his financial responsibility and ignores the
      preponderance of the evidence that the Appellant was not
      compliant with sex offender treatment as a whole. As noted by
      the [c]ourt and acknowledged by the Appellant during his Gagnon
      II Hearing, the Appellant drank alcohol, viewed pornography after
      being instructed not to (on at least two occasions), engaged in
      social media on the Internet, and violated relationship boundaries
      while he was attending sex offender treatment.               Though
      confronted after the first polygraph failure and after disclosures to
      staff and his therapy group, the Appellant did not change his
      behavior in treatment and continued to violate the conditions
      imposed on him by probation via the treatment provider,
      Pennsylvania Forensics.        While the Appellant’s outstanding
      financial obligation was more than the “normal” balance carried
      by other attendees, his unsuccessful release from sex offender
      treatment was not based solely on his lack of financial
      responsibility. The Appellant’s own behavior while in treatment
      “indicates the probation has proven to have been an ineffective
      vehicle to accomplish rehabilitation and not sufficient to deter
      against future antisocial conduct.” . . .

(Trial Ct. Op., at 6-7) (quoting Colon, supra at 1041).

      After review of the record, we discern no abuse of discretion in the trial

court’s decision to revoke Appellant’s probation. The testimony of record was

sufficient to demonstrate, by a preponderance of the evidence, that Appellant

violated numerous rules of the court-ordered treatment program; that he was

discharged because of his overall lack of compliance; and that probation was

ineffective in accomplishing rehabilitation and had not deterred his antisocial




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conduct. See Colon, supra at 1041-42. Therefore, Appellant’s sole issue on

appeal merits no relief. Accordingly, we affirm the judgment of sentence.

     Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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