J-S59001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WAYNE HARRIS,

                            Appellant                  No. 1405 EDA 2015


           Appeal from the Judgment of Sentence Entered April 8, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015528-2008


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 18, 2016

        Appellant, Wayne Harris, appeals from the judgment of sentence of 6

to 24 months’ incarceration, followed by five years’ probation, imposed after

the revocation of his probation. On appeal, Appellant argues that the trial

court erred in determining that he violated his probation.          After careful

review, we affirm.

        The trial court set forth the facts and procedural history of this case as

follows:
               On August 26, 2008, Appellant was arrested and charged
        with rape and several related offenses.        After a mistrial,
        Appellant entered into a negotiated guilty plea to charges of
        unlawful contact with a minor, endangering the welfare of a
        child, and corruption of a minor. Appellant was sentenced by the
        Honorable Roger Gordon to an aggregate term of two to four
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       years[’] confinement, followed by eight years[’] reporting
       probation.    [Appellant] was designated a sexually violent
       predator (SVP).    Jurisdiction over Appellant’s probation was
       eventually assigned to this court.

              At a revocation hearing on April 8, 2015, Dr. William
       Russell, director of forensic services at the TAP sex offender
       program[1] testified that Appellant was receiving weekly
       treatment, and after successfully passing a maintenance
       polygraph, was stepped down to a monthly program. During a
       required annual polygraph on December 30, 2014, Appellant
       failed the examination after significant reactions were recorded
       when Appellant responded to questions about recent contact
       with minors.      When confronted with the polygraph results,
       Appellant admitted that he had accidentally seen his daughter
       nude. Appellant was placed into weekly group treatment, and
       began to deny his original offense. Because of the deception
       detected on the polygraph test and Appellant’s denial of his
       original offense, Appellant was discharged from therapy at TAP
       on January 26, 2015. Based on the circumstances described, Dr.
       Russell opined that Appellant was at a high risk to reoffend. This
       court found that Appellant had violated the terms of his
       probation, revoked Appellant’s probation and sentenced him to a
       period of 6 to 24 months[’] incarceration, followed by five
       years[’] of probation. Appellant filed his notice of appeal on May
       5, 2015. On May 20, 2015[,] this court ordered Appellant to file
       a concise statement of matters complained of on appeal
       pursuant to Pa.R.A.P. 1925(b) (hereinafter “Statement”).
       Appellant filed his Statement on August 4, 2015[.2]
____________________________________________


1
  Dr. Russell testified that “TAP” is administered through an agency called
“Assessment and Treatment Alternatives.” See N.T. Revocation Hearing,
4/8/15, at 11.
2
  We note that Appellant filed his Rule 1925(b) statement well after the 21-
day deadline imposed by the trial court on May 20, 2015. Given that the
trial court accepted Appellant’s untimely statement and wrote a responsive
opinion pursuant to Rule 1925(a), we will address Appellant’s issue raised on
appeal despite Appellant’s late filing.    See, e.g., Commonwealth v.
Rodriguez, 81 A.3d 103, 104 n.2 (Pa. Super. 2013) (“[T]he untimely filing
of a court-ordered Rule 1925(b) statement does not automatically result in
wavier of the issues on appeal. If the trial court accepts an untimely Rule
(Footnote Continued Next Page)


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Trial Court Opinion (TCO), 8/18/15, at 1-2 (internal citations omitted).

      In his appeal, Appellant purports to raise a single issue for our review:
          1. Did the [c]ourt err by finding that Appellant … failed to
             admit his original offense and was in technical violation of
             his probation?

Appellant’s Brief at 3.

      In reviewing Appellant’s claim, we apply the following standard of

review:
            When we consider 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. 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. The Commonwealth
      establishes a probation violation meriting revocation when it
      shows, by a preponderance of the evidence, that the
      probationer's conduct violated the terms and conditions of his
      probation, and that probation has proven an ineffective
      rehabilitation tool incapable of deterring probationer from future
      antisocial conduct.

Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007)

(internal citations omitted).




                       _______________________
(Footnote Continued)

1925(b) statement and addresses the issues raised in its Rule 1925(a)
opinion, we will not determine the issues to be waived.”) (internal citation
omitted); Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)
(en banc) (“[I]f there has been an untimely filing, this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.”).



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        Initially, we note that it is unclear upon reading Appellant’s brief

whether he is challenging the trial court’s factual finding that he failed to

admit to his original offense, as he purports, or is arguing that he did not

violate the terms of his probation because he immediately enrolled in

another treatment program and was committed to following the terms of his

probation. The record shows that Appellant only preserved the former issue

in his Rule 1925(b) statement and in his Pa.R.A.P. 2116(a) Statement of

Questions Involved in his brief; thus, we conclude that the latter issue has

been waived as a result.3            See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions … are waived.”); Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”).




____________________________________________


3
    In the Rule 1925(b) statement, Appellant alleged:

        The [c]ourt erred by finding that Appellant Wayne Harris failed to
        admit his original offense and was there for a technical violation
        of his probation. Appellant Wayne Harris testified that he was
        not in denial. He explained that he has difficulty reading and
        writing, and that he told Probation Officer [Michael] Gagliardi
        that he was in acceptance, and was told to sign the letter
        produced by Probation Officer Michael Gagliardi.        Appellant
        Wayne Harris stated he was in acceptance of what he did and
        was not in denial.

Appellant’s Rule 1925(b) Statement, 8/4/15, at 1.



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      Furthermore, despite being properly preserved, we also find that

Appellant has waived his remaining issue, regarding the trial court’s finding

that he failed to admit his original offense, because of his undeveloped

briefing. Appellant’s brief predominantly consists of a recitation of facts, and

includes almost no citation to pertinent legal authority, aside from setting

forth our standard of review.        This Court could identify no coherent

argument or analysis therein.     Pennsylvania Rule of Appellate Procedure

2119(a) sets forth that “[t]he argument … shall have … the particular point

treated therein, followed by such discussion and citation of authorities as are

deemed pertinent.” Pa.R.A.P. 2119(a). It is well established that “[w]hen

briefing the various issues that have been preserved, it is an appellant's duty

to present arguments that are sufficiently developed for our review.        The

brief must support the claims with pertinent discussion, with references to

the record and with citations to legal authorities.” In re R.D., 44 A.3d 657,

674 (Pa. Super. 2012) (internal citations and quotations omitted). “We will

not act as counsel and will not develop arguments on behalf of an appellant.

Moreover, when defects in a brief impede our ability to conduct meaningful

appellate review, we may dismiss the appeal entirely or find certain issues to

be waived.” Id. (internal citation omitted). Consequently, we find this issue

is also waived.

      Notwithstanding that Appellant failed to adequately develop his

argument, we would nevertheless determine that the trial court did not

abuse its discretion by finding that Appellant failed to admit his original

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offense. We begin by noting that such a finding is supported by the record.

Indeed, at the revocation hearing, Dr. Russell, director of forensic services at

TAP, testified as follows:

       [The Commonwealth:] Why was [Appellant] discharged? Like,
       what concerns did you have when you discharged [] [Appellant]?

       [Dr. Russell:] The biggest concern was his denial of the original
       offense. It brings him back into a position of increased risk. He
       came up deceptive on the polygraph, indicating he had had
       contact with a minor.

             He then, subsequent to that, admitted he had had contact
       with a minor. He not only admitted that he had had contact with
       a minor, but he had contact with the same type of victim as the
       original offense; that is a daughter. None of that was brought
       up in group treatment prior to this. He had not discussed in his
       group treatment having any contact with a victim, having seen
       anybody nude.

             So what we’re seeing is a lot of deception in his group
       treatment. You see deception in the polygraph. These are
       concerns for us, especially with an SVP of increased risk of
       reoffending. So based on that and the fact that he wouldn’t
       admit to his original offense, we discharged him.

N.T. Revocation Hearing, at 19-20.               Additionally, following the failed

polygraph, Appellant’s probation officer, Mr. Gagliardi, testified that he

composed a letter, dictated by Appellant, for Appellant to transmit to TAP so

that he could tell his “side of the events.” 4       Id. at 45, 46. In that letter,

____________________________________________


4
  Mr. Gagliardi testified that Appellant has difficulty with reading and writing.
Id. at 45. As a result, Mr. Gagliardi explained, “[Appellant] and I spent
roughly three hours coming up with this letter … that he had written, with
my help. He had told me his side of the events. I made notes. Read the
notes back to him. We made corrections. Read it back to him. He made
more corrections….” Id. at 42-43.



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which was signed by Appellant when he was satisfied with it, Appellant

similarly denied the original offense. See id. at 45, 51-55. Thus, there is

sufficient evidence on the record showing that Appellant failed to admit his

original offense, and we would not conclude that the trial court abused its

discretion in making such a finding.

      Moreover, contrary to Appellant’s argument, the trial court did not

base its decision to revoke Appellant’s probation on his failure to admit his

original offense to his probation officer.      See Appellant’s Brief at 11

(“Appellant … testified that he was not in denial. He explained that he has

difficulty reading and writing, that he told Probation Officer Gagliardi that he

was in acceptance, and was told to sign the letter produced by [his probation

officer].”); Appellant’s Rule 1925(b) Statement, supra. Instead, in its Rule

1925(a) opinion, the trial court explained:

             Appellant was required by the terms of his probation to
      participate in sex offender treatment.           Appellant was
      unsuccessfully discharged from treatment at TAP based on his
      denial of his original offense. Therefore, the court properly
      found that Appellant had violated the terms of his probation.
      Appellant’s claim that he admitted his offense to his probation
      officer does not address his conduct in treatment, which was the
      basis for his revocation.

TCO at 3. We would agree with the trial court’s reasoning, especially absent

more developed advocacy on behalf of Appellant. Both parties concede that

Appellant was required to participate in sex offender treatment by the terms

of his probation.   See Appellant’s Brief at 9; Commonwealth’s Brief at 3.

Ultimately, Appellant was “unsuccessfully discharged” from the treatment


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program, which demonstrates that he failed to properly participate in his

mandated treatment.           Further, Dr. Russell’s testimony indicated that the

treatment had not been effective at deterring Appellant from future

antisocial conduct.5 See Perreault, 930 A.2d at 557. Accordingly, because

the record shows that Appellant failed to adequately participate in the

required treatment and has been unsuccessful at rehabilitation thus far, we

would determine that the trial court did not err in revoking Appellant’s

probation.

        Judgment of sentence affirmed.




____________________________________________


5
    Dr. Russell testified, in relevant part:

        [The Commonwealth:] So Doctor, based on your experience and
        your expertise, do you consider [Appellant], Mr. Harris, to be a
        high risk to reoffend?

        [Dr. Russell:] Yes.

        [The Commonwealth:] Do you see him as a threat to the
        community, in terms of reoffending?

        [Dr. Russell:] He’s a high risk to reoffend.

N.T. Revocation Hearing, at 20.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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