Com. v. Parker, J. ( 2017 )


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  • J. S10030/17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                     :
    :
    :
    JASON PARKER,                             :
    Appellant        :
    :     No. 2144 EDA 2015
    Appeal from the Judgment of Sentence April 20, 2015
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0003077-2008
    BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
    MEMORANDUM BY DUBOW, J.:                           FILED MARCH 29, 2017
    Appellant, Jason Parker, appeals from the Judgment of Sentence of 18
    months’ to 3 years’ incarceration imposed following the revocation of his
    probation. We affirm.
    In 2008, Appellant entered an open guilty plea to Persons Not to
    Possess a Firearm.1 The court sentenced him to 11½ to 23 months’ county
    incarceration, followed by three years’ probation. On September 27, 2010,
    the parole board granted Appellant’s application for county parole.
    The following year, Appellant violated his probation. On February 8,
    2011, the court sentenced him to a term of incarceration of time-served to
    1
    18 Pa.C.S. § 6105(a)(1).
    J. S10030/17
    12 months, with a consecutive 3-year term of probation, commencing on
    November 22, 2010.
    On November 27, 2012, Appellant admitted to again violating his
    probation, and waived his right to a hearing. The court revoked Appellant’s
    February 8, 2011 sentence, and sentenced Appellant to 11½ to 23 months’
    incarceration calculated from December 13, 2011,2 followed by a 1-year
    term of probation.
    On May 20, 2014, Philadelphia police arrested and charged Appellant
    with Falsely Pretending to Hold Notary Public Office 3 in connection with his
    providing legal services at Philadelphia’s Criminal Justice Center.
    Appellant’s Philadelphia County arrest triggered another violation of
    probation proceeding in Montgomery County.                Accordingly, the court
    scheduled a Gagnon I4 hearing for January 20, 2015.
    On January 5, 2015, Appellant filed a pro se “Motion to Lift Detainer or
    Immediate Hearing on the Matter” seeking an entry of an Order lifting his
    probation violation and reinstating his probation.
    On January 20, 2015, the court continued the Gagnon I hearing at
    the request of Appellant’s counsel.
    2
    Appellant was, thus, eligible for immediate parole.
    3
    18 Pa.C.S. § 4913(a)(1).        The offense is graded as a second-degree
    misdemeanor.
    4
    Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
    -2-
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    On January 28, 2015, Appellant filed a Motion for Appointment of New
    Counsel based on an alleged irreconcilable conflict with his counsel.     On
    February 4, 2015, the court appointed a Public Defender to represent
    Appellant. However, Appellant proceeded to file a number of pro se Motions
    including: (1) a “Motion for Gagnon II Hearing/Contested” on February 24,
    2015; (2) a “Motion to Proceed Pro Se and Written Waiver of Counsel and
    Immediate Hearing on the Matter” on February 27, 2015; and (3) a “Motion
    to Terminate and/or Lift Detainer or an Immediate Contested Gagnon
    Hearing on the Matter” on March 3, 2015.5      On    March   3,   2015,   the
    Philadelphia County Municipal Court convicted Appellant of the false notary
    charge. Following numerous continuances, the court sentenced Appellant on
    November 24, 2015.     On December 9, 2015, Appellant filed a Notice of
    Appeal of his Judgment of Sentence to the Court of Common Pleas.6
    On March 10, 2015, the court entered an Order noting that, “this case
    has been scheduled for a Gagnon hearing on numerous occasions . . . at
    [Appellant’s] request in order for him to have adequate time to resolve open
    charges in Philadelphia County.”   Order, 3/10/15.   The court’s Order also
    5
    Appellant also filed a pro se Motion to Dismiss pursuant to Pa.R.Crim.P.
    600 on March 13, 2015, a Motion to Dismiss pursuant to Pa.R.Crim.P. 1013,
    and various requests for copies of his criminal dockets.
    6
    On October 31, 2016, the court dismissed the charge pending against
    Appellant without prejudice.
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    scheduled a contested Gagnon hearing for April 20, 2015, and reaffirmed
    that the court had appointed a Public Defender to represent Appellant.
    Following the April 20, 2015 Hearing, the court sentenced Appellant for
    his probation violation to a term of 1½ to 3 years’ state incarceration, with
    credit for time-served. On May 1, 2015, Appellant filed a pro se Notice of
    Appeal and a “Request to Proceed In Forma Pauperis for Purposes of Appeal
    and for Appointment of Counsel on Appeal.”      On May 22, 2015, Appellant
    filed a “Motion to Proceed Pro Se, and Written Waiver of Counsel and
    Immediate Hearing on the Matters.” That same day, Appellant also filed a
    pro se “Motion to Vacate or Resentence Nunc Pro Tunc.” On July 17, 2015,
    Appellant filed a pro se “Motion for Transcripts.” On July 21, 2015, Raymond
    D. Roberts, Esquire, from the Office of the Public Defender of Montgomery
    County, entered his appearance on behalf of Appellant.
    On September 9, 2015, this Court directed the trial court to conduct a
    Grazier7 hearing to determine whether Appellant wished to proceed pro se.
    Appellant participated in the hearing by way of videoconference from SCI
    Frackville.   The court questioned Appellant on the record and Appellant
    testified that he wished to withdraw his Motion to Proceed Pro Se. Following
    the hearing, on October 16, 2015, the court ordered that the Office of the
    Public Defender of Montgomery County continue to represent Appellant.
    7
    Commonwealth v. Grazier, 
    713 A.2d 81
     (Pa. 1998).
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    Appellant filed a counseled Pa.R.A.P. 1925(b) Statement on October
    22, 2015, and a Supplemental Pa.R.A.P. 1925(b) Statement on November
    16, 2016.
    Appellant raises the following issues on appeal:
    1. [W]hether the trial court erred in merely combining the
    Gagnon I and Gagnon II hearings where case law
    “clearly requires two independent hearings[?]”
    [1(b)] Whether Appellant was afforded notice or presented
    with disclosure of the evidence to be presented against
    him[?]
    2(a). Whether the trial court erred in finding [A]ppellant in
    violation of his Montgomery County probation before he
    was sentenced on the new charges out of Philadelphia,
    which was the basis for the Montgomery County violation?
    2(b). Whether the evidence was insufficient as a matter of
    law to sustain a finding that [A]ppellant violated his
    probation where there was no evidence presented at the
    Gagnon hearing that he ever entered into a courtroom or
    represented any person in a court of law and the only
    evidence presented was a mere verdict sheet on the new
    charges, not a certified copy of the [J]udgment of
    [S]entence?[8]
    2(c). Whether the trial court erred in finding [A]ppellant in
    violation of his probation where he filed an appeal from the
    Philadelphia County Municipal Court [J]udgment of
    [S]entence?
    8
    Appellant has not presented any argument in his Brief in support of this
    claim. Accordingly, it is waived.
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    Appellant’s Brief at 8 (reordered for ease of disposition).9
    In the first sub-issue of Appellant’s first issue, Appellant claims the
    court violated his due process rights by improperly combining his Gagnon I
    and Gagnon II hearings. Id. at 17.
    Generally, “[w]hen a parolee or probationer is detained pending a
    revocation hearing, due process requires a determination at a pre-revocation
    hearing, a Gagnon I hearing, that probable cause exists to believe that a
    violation has been committed.”     Commonwealth v. Ferguson, 
    761 A.2d 613
    , 617 (Pa. Super. 2000). Where the court makes a finding of probable
    cause, it must conduct a more comprehensive hearing—a Gagnon II
    hearing—before making a final determination. 
    Id.
    Our review of the record indicates that on December 31, 2014, the
    trial court scheduled Appellant’s Gagnon I hearing for January 20, 2015.
    However, on January 5, 2015, Appellant filed a pro se Motion to Lift Detainer
    or Immediate Hearing on the Matter, in which he requested “an immediate
    Gagnon II hearing.” Trial Ct. Op., 6/20/16, at 7-8. At Appellant’s January
    20, 2015 Gagnon I hearing, his counsel requested that the trial court
    continue the matter to a Gagnon II hearing.         Order, 1/20/15; see also
    Trial Ct. Op. at 8.   Then, on February 24, 2015, Appellant filed a pro se
    Motion for an “immediate contested Gagnon II Hearing.” Motion, 2/24/15,
    9
    We note that, in violation of Pa.R.A.P. 2119(a), Appellant has raised in his
    Brief two distinct claims within his first argument and three claims within his
    second argument.
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    at 1. On February 27, 2015, Appellant filed a Motion to Proceed Pro Se, and
    Written Waiver of Counsel, and Immediate Hearing on the Matter, in which
    he reiterated his request that he “would like to be placed on the court’s
    earliest possible date for a Gagnon II hearing.” Motion, 2/27/15, at 2.
    Based on our review of the docket, we conclude that the trial court did
    not improperly consolidate Appellant’s Gagnon I and Gagnon II hearings.
    In fact, it was Appellant who asked the court to continue his Gagnon I
    hearing to a Gagnon II hearing and repeatedly requested that the court
    immediately, at the earliest possible date, conduct his Gagnon II hearing.
    Moreover, our review of the Notes of Testimony from Appellant’s April
    20, 2015 hearing reflects Appellant did not object to the combined nature of
    that proceeding at any time. See Pa.R.A.P. 302(a) (“Issues not raised in the
    lower court are waived and cannot be raised for the first time on appeal.”).
    Accordingly, Appellant is not entitled to relief.
    In his second sub-issue, Appellant claims the Commonwealth did not
    give him notice of the alleged violations of his probation or disclose the
    evidence against him.     Appellant’s Brief at 13.   He avers that the court’s
    conclusion that he sent to the court a signed Notice of Violation was
    unsupported by the evidence because the Commonwealth did not present a
    handwriting expert to confirm that it was, in fact, Appellant’s signature on
    the notice of violation.      Id. at 14.      Appellant also claims that the
    Commonwealth failed to prove at his Gagnon hearing that he received a
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    certified copy of his conviction.   Id. at 16.   Thus, Appellant argues the
    record at his Gagnon hearing failed to prove by a preponderance of the
    evidence that he received written notice of the claimed violations or
    disclosure of the evidence against him. Id.
    At a Gagnon I hearing, a defendant is entitled to “notice of the
    alleged violations of probation . . ., an opportunity to appear and to present
    evidence in his own behalf, a conditional right to confront adverse witnesses,
    an independent decision[-]maker, and a written report of the hearing.”
    Commonwealth v. Ferguson, 
    761 A.2d at
    617 citing Gagnon, 
    411 U.S. at 786
    .
    At a Gagnon II hearing, a defendant is entitled to “written notice of
    the claimed violations of probation or parole; (b) disclosure to the
    probationer or parolee of evidence against him; (c) opportunity to be heard
    in person and to present witnesses and documentary evidence; (d) the right
    to confront and cross-examine adverse witnesses (unless the hearing officer
    specifically finds good cause for not allowing confrontation); (e) a neutral
    and detached hearing body such as a traditional parole board, members of
    which need not be judicial officers or lawyers; and (f) a written statement by
    the factfinders as to the evidence relied on and reasons for revoking
    probation or parole.” Ferguson, 
    761 A.2d at 617-18
    , citing Gagnon, 
    411 U.S. at 768
     (citation and quotation marks omitted)).
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    Two facts belie Appellant’s claim that the Commonwealth failed to
    prove that he received Notice of his probation violations.          First, the
    Commonwealth presented the testimony of Brittany Koch, a parole officer
    from the Montgomery County Adult Probation Office. Ms. Koch testified that
    she is familiar with Appellant and his probation file. N.T., 4/20/15, at 21,
    22, 25. Ms. Koch identified documents presented by the Commonwealth as
    copies of the Rules and Regulations of Montgomery County Probation and
    Parole and Montgomery County Adult Probation Procedure of Charges of
    Violations, which Appellant had signed.10 Id. at 24-25. The court marked
    these documents as Exhibits C-1A and C-1B. Id. at 23. Ms. Koch testified
    that, although she did not see Appellant sign these documents, she was
    familiar with Appellant’s signature because there are “multiple copies of his
    signature in the file[.]” Id. at 23, 48. Ms. Koch also testified that she was
    familiar with Appellant’s signature because the Probation Office had received
    correspondence from Appellant.     Id. at 26. Ms. Koch testified that the
    signature on the letter sent to the Probation Office matched the signature on
    the forms marked Exhibits C-1A and C-1B.
    Appellant’s   counsel   objected   to   Ms.   Koch’s   authentication   of
    Appellant’s signature, and the trial court sustained his objection. However,
    it is clear that Ms. Koch permissibly opined as to the authenticity of
    10
    Ms. Koch admitted on cross-examination that she did not know on what
    date Appellant had signed the documents, and the hearing exhibits are not
    part of the Certified Record. See N.T., 4/20/15, at 48.
    -9-
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    Appellant’s signature on the Notice of Violation returned, via U.S. Mail, to
    the Montgomery County Adult Probation Office, as Pa.R.E. 901(b)(2) permits
    a non-expert to authenticate handwriting if her opinion is “based on a
    familiarity with it that was not acquired for the current litigation.” Pa.R.E.
    901(b)(2).
    Furthermore, and more importantly, at the Commonwealth’s request,
    the court took judicial notice of, and admitted as exhibits, two pro se
    Motions filed by Appellant on March 3, 2015 and April 1, 2015, to which
    Appellant appended copies of his Notice of Violation. The court concluded,
    on the record at Appellant’s hearing, that, “having sent a copy of those
    documents to the court with his signature affixed to the filing to which they
    were attached, you have established that he had a copy of that document.”
    N.T., 4/20/15, at 61.       Accordingly, Appellant’s claim with respect to Notice
    of his Violation fails.11
    Appellant also claims that the Commonwealth failed to prove that
    Appellant received a copy of the Certified Copy of his Conviction, and that,
    therefore, the Commonwealth did not disclose to Appellant all of the
    evidence against him. Appellant’s Brief at 16.
    With respect to presenting the evidence of Appellant’s Philadelphia
    County Municipal Court conviction, the Commonwealth presented the
    11
    Moreover, Appellant has not supported his bald assertion, that in the
    absence of a handwriting expert witness, the Commonwealth failed to prove
    that he had Notice of his Violation, with citation to any authority.
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    testimony of Mr. Mark Gaillard from the Philadelphia County Office of Judicial
    Records. Id. at 51. The Commonwealth questioned Mr. Gaillard about the
    “trial disposition and dismissal form” from Appellant’s Philadelphia County
    case, noting the Municipal Court’s finding of “guilty.”   Id. at 53-56.   Mr.
    Gaillard also testified about, and the violation of probation court admitted
    into evidence, the Criminal Complaint in the Philadelphia County matter. Id.
    at 56-59.
    Our review of the Notes of Testimony indicates that Appellant did not
    object to the Commonwealth’s admission of the Philadelphia County business
    records evidencing Appellant’s conviction.   N.T., 4/20/15, at 56.    In fact,
    Appellant’s counsel conceded that he could not contest the fact of
    Appellant’s conviction. Id. at 65-66. Therefore, Appellant did not preserve
    this issue for appeal, and it is, thus, waived. See Pa.R.A.P. 302(a) (“Issues
    not raised in the lower court are waived and cannot be raised for the first
    time on appeal.”).
    In the first sub-issue of Appellant’s second issue, Appellant claims the
    trial court erred in finding him in violation of probation in Montgomery
    County because the Philadelphia County court had not sentenced him on his
    conviction there. Appellant’s Brief at 20. Appellant insists that the March 3,
    2015 verdict sheet from Philadelphia Municipal Court County was insufficient
    to prove Appellant’s Montgomery County probation violation. Id.
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    “[A] court may revoke an order of probation upon proof of the
    violation of specified conditions of the probation.”   42 Pa.C.S. § 9771(b).
    Our Supreme Court has repeatedly acknowledged that this is a broad
    standard as “[a] probation violation is established whenever it is shown that
    the conduct of the probationer indicates [that] the probation has proven to
    have been an ineffective vehicle to accomplish rehabilitation and not
    sufficient to deter against future antisocial conduct.”   Commonwealth v.
    Infante, 
    888 A.2d 783
    , 791 (Pa. 2005). “[T]he Commonwealth need only
    make this showing by a preponderance of the evidence.” Commonwealth
    v. Ortega, 
    995 A.2d 879
    , 886 (Pa. Super. 2010). Even technical violations
    are sufficient to trigger revocation.   Commonwealth v. Sierra, 
    752 A.2d 910
    , 912 (Pa. Super. 2000) (upholding the revocation of probation based on
    the appellant’s failure to properly report for scheduled appointments with
    parole officer).
    “It is well[-]settled that a probation violation hearing may be
    conducted prior to a trial for the criminal charges based on the same
    activities.” Commonwealth v. Castro, 
    856 A.2d 178
    , 180 (Pa. Super.
    2004) (quoting Commonwealth v. Brown, 
    469 A.2d 1371
    , 1375 (Pa.
    1983)). A violation of probation hearing also differs from a criminal trial in
    the following manner:
    The focus of a probation hearing, even though prompted
    by a subsequent arrest, is whether the conduct of the
    probationer indicates that the probation has proven to be
    an effective vehicle to accomplish rehabilitation and a
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    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.... It follows
    that probation revocation hearings are flexible, and
    material not admissible at trial may be considered by the
    court. 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.
    Castro, 
    856 A.2d at 180
     (quoting Commonwealth v. Spinozzi, 
    345 A.2d 181
    , 182-83 (Pa. Super. 1975)).
    Appellant’s   claim   that   entry   of   his   Judgment   of   Sentence   in
    Philadelphia County was a condition precedent to a violation of probation in
    Montgomery County is wholly without merit.            Based on our review of the
    relevant authority, we agree with the trial court that, “[t]here is no
    requirement that [Appellant] had to be convicted and sentenced [on] the
    underlying conviction prior to revocation.” Trial Ct. Op. at 13. Accordingly,
    this claim fails.
    In his last issue, Appellant claims the trial court erred in finding him in
    violation of his probation because he filed an appeal from the Philadelphia
    County Municipal Court Judgment of Sentence.
    In Commonwealth v. Davis, 
    336 A.2d 616
     (Pa. Super. 1975), this
    court held that if a probationer is convicted of an offense within the
    Municipal Court’s jurisdiction before a probation revocation hearing, “[e]ven
    though there is an automatic right to appeal and to obtain a trial de novo in
    - 13 -
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    the Court of Common Pleas, [ ] a Gagnon II hearing may be held without
    awaiting the outcome of that trial.” Davis, supra at 623.
    Moreover, there is a difference between a trial on criminal charges and
    a probation revocation, and even if a defendant is later acquitted of the
    underlying criminal charges, “factual support of the earlier revocation of
    probation is not necessarily removed, and the revocation may still stand.”
    Commonwealth v. Tomczak, 
    381 A.2d 140
    , 142 (Pa. Super. 1977).
    Here, as a condition of Appellant’s probation he was obligated to
    comply with all local, state, and federal criminal laws. The Commonwealth
    proved by a preponderance of the evidence at Appellant’s Gagnon II
    hearing that Appellant violated the rules of his probation.         Accordingly,
    pursuant to the holding in Davis, Appellant is not entitled to relief.
    Judgment of Sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/29/2017
    - 14 -