J-S51010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

ARIS WILLIAM HALIDAY

                          Appellant                   No. 1380 EDA 2016


           Appeal from the Judgment of Sentence April 21, 2016
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0004503-2008


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 20, 2017

      Aris William Haliday appeals from the judgment of sentence of two to

four years incarceration, imposed       following   revocation of Appellant’s

probation. We affirm.

      This matter traces to Appellant’s negotiated guilty plea to two counts

of indecent assault.     On May 29, 2008, Abington Township police officers

initiated charges based upon allegations that Appellant had sexually abused

his minor female cousins, E.R. and J.R.     The Commonwealth subsequently

filed a criminal information charging Appellant with fifty-four counts of, inter

alia, rape of a child, statutory sexual assault, aggravated indecent assault of

a child, and indecent assault of a child, spanning the time period October 1,

2005, through April 30, 2008.


* Former Justice specially assigned to the Superior Court.
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     On January 11, 2010, Appellant agreed to plead guilty to two counts of

indecent assault; one graded as a misdemeanor of the first degree, and the

other graded as a misdemeanor of the second degree.           18 Pa.C.S. §

3126(a)(7),(8). The differing grades were due to the ages of the victims at

the time of the crimes. 18 Pa.C.S. § 3126(b). Appellant agreed during his

guilty plea colloquy that, sometime between October 1, 2005, and April 30,

2008, he placed his hand on the vaginal area of both E.R. and J.R.     N.T.

Guilty Plea, 1/11/10, at 7-8. The parties agreed to a sentence of eleven and

one-half months to twenty-three months incarceration, followed by a

consecutive four year period of probation.     Appellant was subsequently

deemed to be a sexually violent predator and received the agreed-upon

sentence.

     At the violation of probation hearing, Adult Probation Officer Allison

Gazzale explained that she became Appellant’s supervising probation officer

in September or October of 2013. N.T. Violation Hearing, 12/3/15, at 66.

On April 22, 2015, she made an unscheduled visit to Appellant’s home,

where she discovered an adult woman leaving with an infant child. Id. at

70. This conduct violated his probation, as Appellant was to have no contact




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with children. Id. at 71. Appellant was detained for sixty days, and Officer

Gazzale stated that the matter “was handled administratively.” 1 Id.

       The second detainer was lodged October 10, 2015. We now set forth

the circumstances leading to this detainer, part of which involved the

addition    of     a   probationary     condition    that   Appellant   claims   was

unconstitutional.      This condition concerned Appellant’s contact with Faith

Witherspoon, his ex-girlfriend.        Officer Gazzale explained that she became

aware of Appellant’s alleged stalking of Ms. Witherspoon from Mary Young,

Appellant’s      counselor   at   Specialized Counseling Associates,      a Sexual

Offender Assessment Board approved provider.                Due to that report and

Appellant’s prior conviction for raping an ex-girlfriend, the probation office

determined that a no-contact order was warranted. Id. at 43, 67.

       On September 21, 2015, Appellant appeared at the probation office as

previously scheduled. The officers had decided “to put him on GPS per the

information he had relayed to treatment, which was later relayed to us as

concerning behavior.”         Id. at 77.         Appellant, upon request, supplied

____________________________________________


1  Officer Gazalle noted that formal revocation proceedings were not
instituted. Instead, she submitted an administrative disposition to her
supervisor, Nicholas Honyara, who testified that “we had offered [Appellant]
the opportunity, as opposed to coming back before the [c]ourt, to handle his
violation administratively[.]” N.T. Violation Hearing, 12/3/15, at 43. The
docket shows that a scheduled violation hearing was canceled. The original
judge then sentenced Appellant to time served with an additional one year of
probation.



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addresses for Ms. Witherspoon, as well as the “mother of his child’s house.”

Officer   Gazzale    instructed   Hunter      Slugg,   Jr.,   a    fellow   employee     of

Montgomery County Adult Probation, to place an electronic monitor on

Appellant’s ankle.    Mr. Slugg established boundaries through the monitor’s

software surrounding the two addresses supplied by Appellant.                   On cross-

examination, Mr. Slugg confirmed that he did not inform Appellant of the

specific areas established in the software. Id. at 36.

      Mr. Slugg explained that the software reported that Appellant went

past Ms. Witherspoon’s address in the early afternoon hours of October 10,

2015, at approximately twenty miles per hour, and again at 10:19 p.m. at

the speed of one mile per hour. As a result, Mr. Honyara decided to detain

Appellant for violating probation. Id. at 44. While detained in a holding cell,

Appellant    made    comments      to   Officer    Gazzale        indicating   that   “[Ms.

Witherspoon] would see [his presence] as stalking behaviors.” Id. at 83.

      Based on the foregoing conduct, Officer Gazzale initiated formal

revocation   proceedings,     which     she      explained    was      based    on    three

independent grounds.       First, his failure to adhere to the no-contact order

violated his condition that he “abstain from creating a danger to himself or

to the community.”       Id. at 76.     Second, he had been discharged from

Specialized Counseling Associates.         Id.    Third, Appellant had failed to pay

fines and court costs.




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       The Commonwealth also called Ms. Witherspoon, who testified that she

and   Appellant     had    dated    for   approximately   four-and-one-half   years,

breaking up in April, 2014. In late August or early September of 2015, she

told him to stop contacting her. Id. at 11. Appellant persisted in visiting

her apartment, and Ms. Witherspoon saw him about five times in the span of

two weeks, always at night. When asked why he visited, Appellant told her

he was there “to check on you.” Id. On one occasion, she took her trash

outside and saw Appellant standing between two cars parked directly

underneath her window. Id. at 15. She reported the incident to the police. 2

Id.

       Finally, Mary Young testified that Appellant revealed during a session

that Ms. Witherspoon told Appellant she felt he was stalking her, prompting

Ms. Young’s report to the probation officers.         Id. at 55.   Ms. Young also

related that Appellant was in denial of his offenses and was argumentative.

Id. at 52. As a result, Appellant was discharged from counseling.

       At the conclusion of the hearing, the judge determined that the

Commonwealth had established the first two grounds for violation, but failed

with respect to the third.
____________________________________________


2On cross-examination, Ms. Witherspoon admitted that she had contact with
Appellant after he received the monitor, including one instance in which he
contacted her and picked her up from work.          N.T. Violation Hearing,
12/3/15, at 23. She reiterated that she did not want him to come by her
home. Id.



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       Sir, you did basically admit that you knew you were not
       supposed to be around [Ms. Witherspoon’s home]. You can sit
       there and say that you weren’t quite sure whether you could be
       in the parking lot, it just doesn’t pass the smell test as to why
       you’d be walking around her apartment. I think most definitely
       that that’s a violation.

       With regard to number two, quite clearly you were discharged
       from the program according to the testimony of Ms. Young.
       According to C-7, the discharge summary for Specialized
       Counseling Associates, and based on the testimony of Ms.
       Young, I’m going to find that you were discharged from that and
       for failing to comply with the approved treatment program.

Id. at 101-02.

       On April 21, 2016, the court sentenced Appellant to two to four years

incarceration. This timely appeal followed, and Appellant raises the following

issues for our review.3

       I.     Whether the trial court erred in crediting a condition placed
              on the probationer by the probation department when no
              such condition was placed on Appellant by the court, the
              probation department failed to request the trial court add
              the condition to the probation.

       II.    Whether the condition that the Appellant is alleged to have
              violated is invalid and void for vagueness where there were
              no distances or metes or bounds placed on the condition.

       III.   Whether the trial court erred in finding Appellant to be in
              violation of his probation for failing to complete required
              treatment where Appellant was discharged from treatment

____________________________________________


3  On August 23, 2016, we granted an application for remand to file a
supplemental Pa.R.A.P. 1925(b) statement. Upon return of the certified
record to this Court, Appellant failed to file a brief. On February 27, 2017,
we granted reinstatement of the appeal.



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            because he was being held on the aforementioned, invalid
            probation violation.

Appellant’s brief at 3.

      We explained in Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc), that our scope of review in probation revocation

cases encompasses         the   discretionary   aspects   of   sentencing.   When

examining a challenge to the validity of the proceedings, we apply the

following standard of review.

      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.

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

(quotation marks and citations omitted).

      Appellant’s arguments assail the validity of the proceeding and do not

challenge the trial court’s sentencing decision. We first set forth the basic

principles governing the trial court’s revocation inquiry. “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

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antisocial conduct.”       Commonwealth v. Ahmad, 961 A.2d 884, 888

(Pa.Super. 2008). “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. Allshouse, 33 A.3d 31,

37 (Pa.Super. 2011) (quotation marks and citation omitted).

      Appellant’s arguments are confined to the no-contact requirement, and

therefore overlook the fact that his violation of that condition was but one

part of a much larger picture, namely, his prior probation violation for being

present with a minor and failure to comply with counseling.          Therefore,

Appellant’s position proceeds from the flawed assumption that a violation of

the no-contact order was necessary to sustain the trial court’s decision.

      Having set forth that observation, we now turn our attention to

Appellant’s specific issues.   His first claim is that compliance with the no-

contact order was not part of the conditions of probation as it was imposed

by the probation office, and not the trial court.      “Appellant Haliday first

argues that the trial court erred in finding him to be in violation of the terms

of his probation for being in the vicinity of Ms. Witherspoon’s residence

where that condition was never placed upon him by the [c]ourt[.]”

Appellant’s brief at 10.

      This issue has been waived, as Appellant failed to challenge the

condition on this basis. Appellant conceded that the probation department

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could impose a no-contact order; he simply maintained that the department

was required to clearly delineate its geographic bounds.

     Ms. Gazzale . . . told him that he could not be at or around the
     residence. At or around is necessarily a vague term, your
     Honor. There would have been a very simple solution to this,
     especially given the fact that Mr. Haliday told Ms. Gazzale that
     he has family in that area. All she would have had to do is
     basically give him something in writing saying Mr. Haliday, you
     can’t be within a certain perimeter of her residence. But he was
     not given anything in writing and, furthermore, he was not given
     any perimeter. He was just told a very vague term, you can’t be
     at or around her residence.

N.T. Violation Hearing, 12/3/15, at 97-98.

       Even if the issue were preserved, Appellant is not entitled to relief.

In Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our Supreme Court

analyzed 42 Pa.C.S. § 9754, which states in relevant part:

     (a) General rule.--In imposing an order of probation the court
     shall specify at the time of sentencing the length of any term
     during which the defendant is to be supervised, which term may
     not exceed the maximum term for which the defendant could be
     confined, and the authority that shall conduct the supervision.

     (b) Conditions generally.--The 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.

     (c) Specific conditions.--The court may as a condition of its
     order require the defendant:

     ....

     (13) To satisfy any other conditions reasonably related to the
     rehabilitation of the defendant and not unduly restrictive of his
     liberty or incompatible with his freedom of conscience.



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42 Pa.C.S. § 9754. At issue in Elliot was whether a condition imposed by

the Pennsylvania Board of Probation and Parole was valid, insofar as the

Board, rather than the sentencing judge, imposed the condition.            Our

Supreme Court analyzed the Sentencing Code in pari materia with the

Prisons and Parole Code and concluded: “In summary, a trial court may

impose conditions of probation in a generalized manner, and the Board or its

agents may impose more specific conditions of supervision pertaining to that

probation, so long as those supervision conditions are in furtherance of the

trial court's conditions of probation.” Id. at 1292. While Elliot discussed a

condition imposed by the Pennsylvania Board of Probation and Parole, not a

county probation office as is the case herein, the case specifically noted that

the issue was a “general inquiry concerning whether the Board, county

probation offices, or the agents and officers thereof, can impose conditions

upon probationers that are not explicitly delineated in a trial court's

sentencing and probation order.” Id. at 1289 (emphasis added). Therefore,

the probation office was authorized to impose any other conditions

reasonably related to Appellant’s rehabilitation.

      As a subsidiary component of this claim, Appellant argues that even if

the no-contact requirement was validly imposed, it was not reasonably

related to his rehabilitation as Ms. Witherspoon had no connection to the

underlying sexual assault crimes.     However, we once again find that this




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issue is waived, as Appellant conceded that the condition could be imposed

and challenged only its lack of specific boundaries.

       Appellant’s second claim is that the condition violated due process

because it was impermissibly vague.                Appellant’s argument relies upon

Knight v. Commonwealth, Pennsylvania Board of Probation and

Parole, 510 A.2d 402, 403 (Pa.Cmwlth. 1986), overruled on other grounds

by Johnson v. Commonwealth, Pennsylvania Board of Probation and

Parole, 527 A.2d 1107 (Pa.Cmwlth. 1987).4 In Knight, the Commonwealth

Court determined that a probationer’s condition requiring him to stay away

from a mall during “late” evening hours was impermissibly vague and

violated constitutional due process.

       Our research reveals that only one other case in this Commonwealth

has directly addressed a void-for-vagueness challenge in the context of

probationary conditions.       “Supervisory release conditions are subject to the

constitutional doctrines of vagueness and overbreadth.” Commonwealth v.

Perreault, 930 A.2d 553, 559 (Pa.Super. 2007) (citing United States v.

Loy, 237 F.3d 251, 259–260 (3rd Cir. 2001)).                  Perreault involved a

____________________________________________


4 “While the Superior Court is bound to give due consideration to the
decisions and reasoning of the Commonwealth Court, this Court is not bound
to follow such decisions as controlling.” Nationwide Mutual Insurance
Company v. Yungwirth, 940 A.2d 523, 528, n.5 (Pa.Super. 2008) (citation
omitted).




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probation condition that prohibited Perreault from possessing “obscene

materials or materials which depict or describe sexual conduct[.]”       Id. at

558.    The trial court determined that he had violated his probation by

possessing a pornographic film. On appeal, he challenged the condition on

vagueness and overbreadth grounds. We concluded that the condition was

neither vague nor overbroad, as Perreault mischaracterized its limitations:

“The terms of [the condition], therefore, being both specific and well-

recognized in the context of law enforcement against sex offenses give

probationers of ordinary intelligence clear guidance as to what sex-related

content is prohibited, and do not encourage arbitrary enforcement.” Id. at

560.

       We conclude that Appellant is not entitled to relief.   While we agree

that the condition was hardly the model of clarity, the trial court’s revocation

was not based purely on a technical violation of the condition.5 Our review of

the record demonstrates that the trial court focused on the conduct as it

bore on Appellant’s rehabilitative prospects, and not the technicalities of the

violation.   Unlike Perreault, which dealt with a restriction on access to

____________________________________________


5 In the context of penal statutes, the void-for-vagueness doctrine requires
that a statute “creating a new offense must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable
to its penalties[.]” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa.
2003) (quoting Commonwealth v. Heinbaugh, 354 A.2d 244, 246 (Pa.
1976)).



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material that was otherwise legal, the underlying conduct herein is not

constitutionally protected; stalking and harassment are punishable when

committed by probationers and ordinary citizens alike. To take Appellant’s

argument to its logical endpoint, the court would have to completely ignore

his behavior if he had fully complied with a clearly delineated prohibition. In

other words, if the probation office had instructed him to stay 200 yards

from Ms. Witherspoon’s residence, Appellant assumes that the court could

not consider Ms. Witherspoon’s testimony if he had continuously monitored

her home from a distance of 201 yards.

        We find that the court could factor Appellant’s behavior into its

probation revocation calculus. Commonwealth v. Hoover, 909 A.2d 321

(Pa.Super. 2006), is illustrative in this regard. Therein, Hoover was granted

work release from a sentence of incarceration imposed for two DUI

convictions. Id. at 322. One day, Hoover returned from work release while

intoxicated, which violated the work release policy.        The judge “concluded

that [Hoover] was likely to commit new crimes while on probation” due to

that violation, and revoked probation.         Id.   We determined that the trial

court    was   permitted   to   consider   intoxication    as   inconsistent   with

rehabilitation even though his intoxication was not a crime.

        Although Appellant herein did not, strictly speaking, violate the
        law by becoming intoxicated, he clearly violated the terms of his
        work release and demonstrated to the court that he is unworthy
        of probation and that the granting of the same would not be in
        subservience to the ends of justice [or] the best interests of the

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     public. The record reflects that the trial judge was cognizant of
     Appellant's extensive history of alcohol abuse, numerous prior
     DUI convictions, and apparent inability to control his addiction to
     alcohol. The court concluded that, in light of Appellant's
     behavior, Appellant would be difficult to supervise while on
     probation and posed a risk to the community in that he was
     likely to commit new crimes.

Id. at 324 (citations and quotation marks omitted).

     The same logic applies herein.      Strictly speaking, Appellant did not

violate the law as he was not charged with any type of stalking or

harassment offense. However, the probation office’s directive was not the

product of an arbitrary or capricious act. C.f. Elliot, supra at (“[T]he Board

and its agents cannot impose any condition of supervision it wishes, carte

blanche.”). Appellant admitted that Ms. Witherspoon would see his behavior

as stalking, and she testified in court that she told him to stay away from

her residence.   The court could properly consider Appellant’s persistent

behavior in assessing whether Appellant posed a risk to the community and

was a good candidate for continued probation. Thus, no relief is due.

     We now reach Appellant’s third claim. Appellant contends that the fact

he was discharged from counseling was itself based upon his violation of the

no-contact order.   Since the condition was invalid, the argument goes, so

too was his discharge from counseling.

     The resolution of this claim is dictated by our foregoing analysis.

Appellant does not explain why the purported illegality of the no=contact

order further required the counselor, and, by extension, the trial court, to


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ignore the evidence generated by the ankle monitor. Appellant is implicitly

applying exclusionary rule principles to the evidence gleaned from the ankle

monitor without developing that argument.           Even if we agreed that the

condition was unlawfully imposed, it does not follow that the evidence

gathered from the software must be shielded from the fact-finder.

Compare      Commonwealth         v.    Arter,    151      A.3d   149   (Pa.   2016)

(exclusionary rule applied in probation revocation proceedings to evidence

gathered by police officers that was suppressed in a criminal trial).

      Therefore, we hold that the court did not abuse its discretion in

considering all of the evidence presented, which included: Appellant’s prior

probation violation which was resolved informally, Appellant’s criminal

history,   which   included   rape,    and   Appellant’s    behavior    towards   Ms.

Witherspoon in determining that he posed a risk to the community.

Hoover, supra.       Furthermore, the fact Appellant was discharged from

counseling due to his inability to admit to committing the crimes during

counseling was a proper consideration. Commonwealth v. A.R., 990 A.2d

1 (Pa.Super. 2010) (violation of probation established by, inter alia,

appellant’s “inability to admit in treatment the sexual gratification motive

underlying his convictions”).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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