Com. v. Blair, G. ( 2022 )

J-A11043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY BLAIR :
:
Appellant : No. 514 EDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008901-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY BLAIR :
:
Appellant : No. 515 EDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006086-2018
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 21, 2022
Gregory Blair appeals from the judgment of sentence entered after he
was found in violation of his parole (“VOP”). He challenges the court’s
premature revocation of his probation and evidence introduced by the
Commonwealth at his sentencing hearing. We vacate the judgment of
sentence and remand for further proceedings pursuant to Commonwealth v.
Simmons, 262 A.3d 512 (Pa.Super. 2021) (en banc).
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In March 2020, Blair pled guilty to charges arising from his actions
against his girlfriend at the time. He pleaded guilty to strangulation,
possession of an instrument of crime, simple assault, and recklessly
endangering another person,1 terroristic threats, stalking, and intimidation of
a witness.2 The court sentenced Blair to 11½ to 23 months’ incarceration with
immediate parole, followed by a consecutive term of five years’ probation. A
condition of his parole was that he have no contact with the victim.
Blair was brought before the court again on November 23, 2020, on
allegations that he was in violation for contacting the victim. The victim
testified that she believed Blair had contacted her through an application
(“app”) called “OfferUp,” where they had initially met. See N.T., VOP Hearing,
11/23/20, at 8, 11, 12, 13. OfferUp allows users to buy and sell furniture. Id.
at 8.
The victim testified that her profile name on the app is “Coca Cola” and
her profile picture is a picture of sneakers. Id. at 19-20. She testified that
while she was dating Blair, her profile name was the same, but the profile
picture was a picture of herself. Id. at 20. The victim testified that Blair
contacted her on the app from October 31, 2020, to November 2, 2020,
inquiring about furniture that she was selling on the app. Id. at 11. She
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118 Pa.C.S.A. §§ 2718, 907, 2701, and 2705, respectively. These charges
were at docket number 6086-2018.
2 18 Pa.C.S.A. §§ 2706, 2709.1, and 4952, respectively. These charges were
at docket number 8901-2019.
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testified that she was contacted by an account that had the name “Gregory,”
which is Blair’s first name, but did not have a photograph. Id. at 13. The
account listed the account holder’s location as Maryland. Id. at 14. The victim
stated that she believed this account belonged to Blair because of “[h]is tone.
He started becoming impatient with not responding right away[.]” Id. at 17.
She also testified that she believed it was Blair because the conversations
reflected his behavior when they were in a relationship.
[Victim]: With the, Hello, Hello, Hello. And that’s him. He
becomes very impatient if you don’t answer him right away.
And that’s when I started making the connection.
[Commonwealth]: And you said that’s him and that was
consistent with his behavior. Is that based on behavior that
you observed during your romantic relationship with [Blair]?
[Victim]: Yes
Id. at 18.
She said that another account also reached out to her with the name of
“Greg Blair.” Id. at 12. The account had a picture of Blair wearing a hat
bearing the logo of the Philadelphia public transportation system, SEPTA. She
testified that she blocked this account. Id. at 17. The Commonwealth also
introduced copies of screenshots of the messages. See id. at 11.
The trial court found that the Commonwealth had proven that Blair had
violated his parole. Regarding the account that listed the name Gregory, the
court stated, “I would not be surprised if the first Gregory was also him.” Id.
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at 30. The trial court revoked Blair’s parole and probation. It sentenced Blair
at a later hearing to a total of 10 to 20 years’ incarceration.
Blair filed a post-sentence motion that the court granted in part. At a
hearing, the court first considered resentencing Blair to back time for the
parole violation with an additional sentence for the probation violation. See
N.T., Hearing, 2/4/21, at 20. However, after the court clerk said she was
“confused,” the court determined it would revoke parole and impose new
sentences for the probation violations. Id. at 21. The court stated that the
new sentences were “just as well as back time because it gets too confusing.”
Id. at 22. The court thus imposed a new aggregate sentence of seven to 15
years’ incarceration. This timely appeal followed.3
Blair raises the following issues:
1. Did not the trial court lack authority under Pennsylvania
law to revoke consecutive sentences of probation that
[Blair] had not yet begun to serve?
2. Was not the evidence insufficient to prove that [Blair]
violated the conditions of his parole/probation where the
evidence failed to prove the identity of the person who
contacted the complainant?
3. Did not the trial court err by improperly permitting the
presentation of evidence at sentencing to prove [Blair’s]
parole/probation violation where the court had already
found [Blair] in violation of probation/parole?
4. Did not the trial court err by admitting evidence at
sentencing to prove [Blair’s] parole/probation violation
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3Blair filed his notice of appeal from the February 4, 2021 order on March 8,
2021. Nonetheless the appeal is timely because the 30 day deadline fell on a
Saturday. See Pa.R.A.P. 903(a); 1 Pa.C.S.A. § 1908.
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where that evidence consisted of hearsay and was not
properly authenticated?
Blair’s Br. at 5.
Blair first asserts that the trial court did not have the authority to revoke
his probation as an exercise of its discretion. He notes that recently our Court
held that a trial court may not anticipatorily revoke an order of probation. See
Simmons, 262 A.3d at 523. He argues that since he had not yet begun
serving the probationary portion of his sentence, the court erred by
anticipatorily revoking his probation. The Commonwealth and trial court agree
and ask us to remand for resentencing. We will do so.
Blair’s challenge to the court’s ability to anticipatorily revoke his
probation raises a challenge to the legality of the sentence. Simmons, 262
A.3d at 515. As such, our standard of review is de novo, and our scope is
plenary. Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014).
At the time the trial court found Blair in violation of parole and probation,
and at the time of Blair’s sentencing and resentencing, this Court’s precedents
held that a trial court could anticipatorily revoke a defendant’s probation. See
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980).
However, six months after the trial court resentenced Blair, this Court
rendered an en banc decision in Simmons overruling these precedents. See
Simmons, 262 A.3d at 523.4 We concluded that a court cannot anticipatorily
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4Our Supreme Court granted allowance of appeal in Commonwealth v.
Rosario, 271 A.3d 1285 (Pa. 2022), to review the Simmons decision.
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revoke a defendant’s probation when the defendant has allegedly violated
probation while serving parole. As that is what happened here, we must find
in Blair’s favor regarding the court’s authority to anticipatorily revoke
probation.
In view of the court’s comments at the resentencing hearing regarding
whether to fashion a sentence composed of back time for the parole violation
plus new sentences for the probation violation, we conclude our disposition
has disturbed the trial court’s sentencing scheme. We therefore vacate and
remand for resentencing.
Next, Blair claims that there was insufficient evidence to support the
court’s revocation of his parole. Specifically, Blair claims that the evidence
presented of the violation was speculative at best. He notes that there were
two pieces of evidence of his alleged violation: “1) the complainant’s belief
that Gregory from Maryland had an ‘impatient tone’ which she associated with
[Blair]” and “2) the assertion that it was [Blair] that made the inquiry from
the account associated with the name Greg Blair with [Blair’s] picture.” Blair’s
Br. at 27. Blair also maintains this evidence is insufficient because there was
no authentication of this information. He directs this Court to our decision in
Commonwealth v. Mangel, 181 A.3d 1154 (Pa.Super. 2018).
We review a challenge to the sufficiency of evidence for a
parole/probation violation by determining whether the Commonwealth has
shown “by a preponderance of the evidence, that a parolee violated his
parole.” Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.Super. 1993).
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We view the evidence in the light most favorable to the Commonwealth. See
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007).
Here, the evidence was sufficient based solely on the account that listed
the name “Greg Blair” and had a picture of Blair wearing a SEPTA hat. Blair
does not contest that at one point he worked for SEPTA nor does he contend
that he goes by a different name. The evidence viewed in the light most
favorable to the Commonwealth aligns with the court’s conclusion that the
account with Blair’s picture belonged to Blair. The evidence was sufficient.
Blair’s remaining issues go to sentencing. As we remand for
resentencing, we do not address them.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2022
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