Com. v. Haliday, A. ( 2017 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
    J-S51010-17
    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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