J-S61022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LORRI JO RILEY

                            Appellant               No. 354 WDA 2014


          Appeal from the Judgment of Sentence of February 6, 2014
               In the Court of Common Pleas of Clarion County
              Criminal Division at No.: CP-16-CR-0000521-2010


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 12, 2014

       Lorri Jo Riley appeals the February 6, 2014 judgment of sentence,

which was imposed after the trial court revoked Riley’s probation due to her

repeated failure to comply with the conditions of her sentence. Herein, Riley

challenges the admission of certain evidence at her revocation hearing, and

the sufficiency of the evidence presented at that hearing to support the

revocation. We affirm.

       In the early morning hours of July 4, 2010, a McDonald’s restaurant1

employee called the Pennsylvania State Police to report that Riley appeared

intoxicated while operating a green Jeep in the restaurant’s drive-thru lane.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       The restaurant was located in Clarion County, Pennsylvania.
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The employee further reported that Riley had an open bottle of alcohol next

to her in the front seat of the vehicle.

       Trooper Lee Bunyak responded to the call.                 When he arrived at the

restaurant, the employee directed Trooper Bunyak to the parking area,

where he found Riley sitting in the Jeep. When Trooper Bunyak approached

the vehicle, Riley was in the driver’s seat. The key was in the ignition, and a

half-full bottle of alcohol was sitting next to Riley.                   Upon initiating a

discussion with Riley, Trooper Bunyak noticed a strong alcoholic odor

emanating from Riley’s breath. Riley’s speech was slow and slurred, and her

eyes were bloodshot and glassy.                Riley alleged that she had not been

drinking that evening.         She also maintained that the bottle of alcohol

belonged to someone else.

       After   being    removed      from      the    vehicle,   Riley    was   unable   to

satisfactorily complete field sobriety tests as administered by Trooper

Bunyak.     Consequently, she was placed under arrest for suspected driving

under the influence of alcohol (“DUI”).              Riley then was taken to a nearby

hospital. However, Riley twice refused to give blood.2

____________________________________________


2
      These facts derive from the July 15, 2010 affidavit of probable cause
that was submitted in conjunction with the criminal complaint. The certified
record does not contain a copy of Riley’s guilty plea transcript, from which
we might have obtained a more accurate statement of the facts.
Nonetheless, any differences between the facts as asserted in the affidavit of
probable cause and those to which Riley agreed at the guilty plea hearing
are immaterial to our disposition of this case.



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       On February 16, 2011, Riley pleaded guilty to DUI-second offense, 75

Pa.C.S. § 3802(a)(1). On March 23, 2011, Riley was sentenced to serve five

years of intermediate punishment, with ninety days of that term to be

served as incarceration and the remainder to be served as probation. As a

condition of the sentence, Riley was ordered to attend and complete any

evaluations and treatment that are deemed to be necessary by the adult

probation department.         Riley also was ordered to abstain from drinking

alcohol and to complete fifty hours of community service.

       On June 21, 2011, Riley was released from incarceration. On January

31, 2012, Riley was detained and charged with a violation of the terms of

her probation, because she was found intoxicated in her residence on

January 30, 2012.          Riley admitted to probation officers that she had

consumed alcohol on January 29 and 30, 2012. On February 6, 2012, Riley

waived her right to her Gagnon3 hearings, and admitted that she had

violated her probation. Riley consented to serving ten days in the Clarion

County Jail, and to be placed back on probation upon her release subject to

the original probationary conditions.

       On November 26, 2012, Riley was notified that she again had been

charged with violating her probation.            Like the first violation, Riley was

charged with consuming alcohol in violation of her probationary conditions.


____________________________________________


3
       See Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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She also was charged with illegally using prescription drugs.       Indeed, on

November 20, 2012, probation officers found Riley in such an intoxicated

state that they were compelled to call an ambulance to take her to a

hospital. There, a test of Riley’s blood revealed a blood alcohol content of

0.13%, as well as the presence of opiates. Riley admitted that she had been

consuming vodka on a daily basis.

      On that same date, Riley waived her right to a Gagnon I hearing. On

November 29, 2012, following a Gagnon II hearing at which Riley admitted

to violating her probation, Riley’s probation was revoked, and she was

placed into a treatment court program, which included a period of house

arrest. However, on October 24, 2013, probation officers learned that Riley

was being evicted from a counseling program for failure to comply with the

terms of the program. Once again, Riley was in violation of her sentence.

On October 29, 2013, Riley waived her rights to Gagnon hearings, and

consented to serving four days in the Clarion County Jail and, upon release,

to recommence participating in the treatment court program.

      On January 10, 2014, Riley again was notified that she was in violation

of the terms of her sentence. Riley was charged with failing to abide by the

verbal instructions of the probation department and with failing to refrain

from behavior that threatens or presents a clear and present danger to

herself or others. Specifically, probation officers alleged that Riley was being

evicted from her home due to her extended failure to pay rent, which the

officers had verbally instructed her was a violation of her probation and

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house arrest. Riley also failed to adhere to her house arrest schedule, and

occasionally would leave the approved residence without permission.

Finally, Riley failed to obey her case manager’s repeated instructions to

complete the necessary paperwork to obtain the medical coverage required

to treat her Crohn’s disease. The probation officers alleged that the failure

to secure the coverage presented the risk of her not receiving the medical

treatment that she required, a clear and present danger to her well-being.

      Riley waived her right to a Gagnon I hearing. On February 6, 2014,

the trial court conducted a Gagnon II hearing.            At that hearing, the

Commonwealth presented the testimony of Curtis Drake, Riley’s supervising

probation officer. Officer Drake testified that Riley had not complied with the

terms of the treatment court program, and, consequently, was voted out of

the program by the members of the treatment court team.          Officer Drake

explained to the trial court that Riley had failed to obtain adequate medical

coverage, and could not maintain stable housing either at the Arc Manor

House or the Oxford House, which provides housing for individuals suffering

from addiction. Officer Drake further testified that, despite having multiple

opportunities to earn money (including a job at a local Perkins restaurant

and emergency federal funding), Riley failed to secure the necessary funding

to pay rent to continue living at these residences. Officer Drake noted that,

if Riley was released from jail, she would be homeless.

      At the conclusion of the hearing, the trial court concluded that Riley

had violated the terms of her probation for failing to complete the terms of

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the treatment court program and for failing to maintain a proper residence.

The trial court resentenced Riley to a term of incarceration of six months,

with the opportunity to be paroled upon the submission of a home plan

acceptable to the probation department and the court.           Riley also was

ordered to complete mental health and drug and alcohol assessments and

treatment.    If paroled, the trial court imposed the conditions that Riley

maintain appropriate housing and that she complete any recommendations

for treatment.      All other aspects of her previous sentences, including

probationary terms, were ordered to remain in effect.

      On February 26, 2014, Riley filed a notice of appeal. In response, the

trial court directed Riley to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). On March 11, 2014, Riley timely

filed a concise statement.     On April 11, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(b).

      Riley presents the following two questions for our consideration:

      I.     Did the trial court err in admitting testimony that consisted
             only of hearsay, by a witness that did not have personal
             knowledge, and therefore, violated [Riley’s] Confrontation
             Clause rights?

      II.    Did the trial court err in finding that [Riley] had violated
             her probation by sufficient evidence, where the only
             evidence that existed for the alleged violations was from
             inadmissible testimony of a probation officer consisting of
             hearsay and lacking in personal knowledge?

Brief for Riley at 4.




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      In her first issue, Riley argues that the trial court erred in admitting

Officer Drake’s testimony, which Riley contends was “based wholly on

hearsay.” Brief for Riley at 11. We find Riley’s argument to be waived.

      The following exchange occurred between defense counsel, the

assistant district attorney [“ADA”], and the trial court during Officer Drake’s

testimony at Riley’s Gagnon II hearing:

      [Officer Drake]:        Basically I was notified by Jen Huff, who
                              is    the    Oxford     House    outreach
                              representative, this was on December
                              29th –

      [Defense Counsel]:      Objection. Hearsay, Your Honor.

      The Court:              What’s your response, [ADA]?

      [ADA]:                  This is for the purpose of dealing with
                              [sic] probation violation.      I think the
                              supervising probation officer has to rely
                              on commentary or the description of
                              things that happened for level of care
                              otherwise [sic].       I think the rules of
                              hearsay in probation violations are
                              different than the rules of hearsay
                              traditionally in trial.

      [Defense Counsel]:      Your Honor, I would respectfully argue
                              that    the    admittance  of   evidence
                              regardless [of] at trial or [during a]
                              probation violation doesn’t preclude the
                              requirement [that] the evidence be
                              competent, and here Officer Drake is
                              testifying to something he does not have
                              firsthand knowledge of.

      [ADA]:                  I can work around the hearsay, Your
                              Honor.

      The Court:              You are withdrawing the question?



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     [ADA]:                  I will withdraw my question and ask a
                             different one.

                               *     *      *

     [ADA]:                  Was there ever a time she did not live in
                             the Oxford House?

     [Officer Drake]:        She was asked to leave and refused to
                             do so on December 29th.

     [Defense Counsel]:      Objection. Foundation, Your Honor.

     The Court:              All right. So it’s still a hearsay objection?

     [Defense Counsel]:      Yes.

     The Court:              You say there’s an exception for
                             probation, the hearsay rule is relaxed?

     [ADA]:                  My understanding is the hearsay rule is
                             relaxed in Gagnon 2.

     The Court:              All right. Well, we’ll take a recess and I
                             will do some research.        Court is in
                             recess.

                               *     *      *

     The Court:              I find that the Rules of Evidence do apply
                             to his Gagnon 2 hearing. Now, [ADA],
                             are you offering this testimony to prove
                             the truth of the matter stated or are you
                             offering it to show what Mr. Drake did in
                             response to that?

     [ADA]:                  I was offering it – I guess, I was offering
                             it for the proof.

     The Court:              So the objection is sustained.

Notes of Testimony (“N.T.”), 2/6/2014, at 5-7.

     Riley steadfastly argues that the trial court erred in admitting hearsay

evidence.   However, the trial court did not do so.      Riley’s objection was


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sustained with regard to the attempted use of hearsay testimony during the

Gagnon II hearing. In other words, Riley’s successful objection prevented

the hearsay that specifically was challenged by Riley from being introduced

at the hearing. From that point on, Officer Drake testified to the facts as set

forth above without any further objection from Riley. Riley now argues that

the entirety of Officer Drake’s testimony was based upon hearsay evidence,

and not based upon firsthand knowledge.       Brief for Riley at 11, 14.     But,

again, Riley did not object to the remainder of Officer Drake’s testimony.

Riley only objected to the proffered hearsay set forth above.

      It is both a bedrock and axiomatic principle in appellate jurisprudence

that “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Indeed, we reiterated this

foundational tenet most recently in Commonwealth v. Akbar, 91 A.3d 227

(Pa. Super. 2014):

      Preliminarily, we observe that to preserve a claim of error for
      appellate review, a party must make a specific objection to the
      alleged error before the trial court in a timely fashion and at the
      appropriate stage of the proceedings; failure to raise such
      objection results in waiver of the underlying issue on appeal.
      Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super.
      2011); Commonwealth v. Shamsud–Din, 995 A.2d 1224 (Pa.
      Super. 2010). See also Commonwealth v. Arroyo, 723 A.2d
      162, 170 (Pa. 1999) (explaining if ground upon which objection
      is based is specifically stated, all other reasons for its exclusion
      are waived).

Akbar, 91 A.3d at 235.      Because Riley’s objection in the trial court was

limited to the testimony proffered at the time of the objection, and because


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Riley did not object to the remainder of Officer Drake’s testimony, her

present challenge that the entirety of Officer Drake’s testimony was

inadmissible is waived for purposes of this appeal.4

       In her second issue, Riley argues that the evidence presented by the

Commonwealth at the probation hearing was insufficient to demonstrate by

a preponderance of the evidence that Riley had violated her probation. In

considering such a claim, we are guided by the following, well-established

principles:

          The imposition of sentence following the revocation of
          probation is vested within the sound discretion of the trial
          court, which, absent an abuse of that discretion, will not be
          disturbed on appeal. An abuse of discretion is more than
          an error in judgment-a sentencing court has not abused its
          discretion unless the record discloses that the judgment
          exercised was manifestly unreasonable, or the result of
          partiality, prejudice, bias or ill-will.

       Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.
       2000) (quotation marks and citations omitted).

       The Sentencing Code prescribes, with respect to the imposition
       of conditions of probation, that “[t]he court shall attach such of
       the reasonable conditions authorized by subsection (c) of this
       section as it deems necessary to insure or assist the defendant
       in leading a law-abiding life.”      42 Pa.C.S. § 9754(b).      In
       Commonwealth v. Vilsaint, 893 A.2d 753 (Pa. Super. 2006), a
       panel of this Court, citing 42 Pa.C.S. § 9754(b), held that “the
       legislature has specifically empowered the court, not the
____________________________________________


4
      Riley also argues that her objection was the functional equivalent of a
“continuous objection.” Brief for Riley at 11. However, she did not request
a continuing objection, nor did she indicate in any other manner that she
intended her objection to cover the entirety of Officer Drake’s testimony.
Thus, this specific argument is unavailing.



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     probation offices and not any individual probation officers, to
     impose the terms of probation.” Id. at 757. Furthermore, in
     Commonwealth v. MacGregor, 912 A.2d 315 (Pa. Super.
     2006), this Court noted that a sentencing court cannot revoke
     probation based upon a probationer’s violation of a condition
     imposed solely by a probation office.

     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.”
     Commonwealth v. Ballard, 814 A.2d 1242, 1245 (Pa. Super.
     2003).     In order to uphold a revocation of probation, the
     Commonwealth must show by a preponderance of the evidence
     that a defendant violated his probation. Commonwealth v.
     Shimonvich, 858 A.2d 132, 134 (Pa. Super. 2004).

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011).

     Although, as noted, a trial court may only find a violation of conditions

that the court itself imposed upon a probationer, see Vilsaint, MacGregor,

supra, “[t]he courts have recognized ‘implied conditions' of probation, such

as ‘do not commit another crime.’    Such implied conditions are obvious in

nature.” Vilsaint, 893 A.2d at 757 n. 5; Allshouse, 33 A.3d at 37. When

Riley was resentenced on December 6, 2012, after multiple prior violations,

the trial court instructed her by written order that she was placed into the

treatment court program, and that she was required to complete all levels of

care associated with that program.           Moreover, Riley was required to

complete six months of house arrest, and to comply with all of the conditions

of her prior sentences that were not modified by the order. Order of Court,

12/6/2012, at ¶¶1-4.     On January 10, 2014, Riley was notified by the

probation department that she had violated her probation by failing to abide


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by the directions of the probation department by failing to secure and

maintain reasonable housing and by failing to comply with the conditions of

her house arrest. Additionally, she had failed to apply for, and obtain, the

necessary medical coverage to treat her serious illness. Although the notice

is drafted in terms of violating conditions set forth by the probation

department, it is quite clear to this Court that having reasonable housing

and securing medical treatment for her illness are implied conditions of the

trial court’s command that she complete the requirements of the treatment

court program and house arrest. It is obvious to us that maintaining stable

housing is not only implied, but also essential to complying with the court’s

house arrest order.

      Turning to the sufficiency of the evidence presented, we agree with the

trial court that the testimony of Officer Drake was sufficient to prove by a

preponderance of the evidence that Riley had violated her probation. On the

record, the trial court explained the basis for its ruling as follows:

      The evidence [demonstrates that Riley] didn’t maintain a
      household which would accommodate the house arrest with
      electronic monitoring, and no longer has a residence, which is
      essential to her.      First of all, the house arrest electronic
      monitoring is a condition of successful completion of the
      treatment court program.         And the failure to maintain a
      residence and also the failure to obtain appropriate medical
      coverage and care adversely affects her ability to successfully
      complete the treatment court program in terms of her recovery.
      If she has significant medical problems, if she has no home, no
      place to live she can’t meet the goals of the program so I do find
      the violation for those reasons.

N.T. at 16-17.

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     Having reviewed the record, we discern no abuse of discretion by the

trial court in rendering the above conclusion. The evidence supported the

trial court’s ruling that Riley had violated her probation by a preponderance

of the evidence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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