Com. v. Cobbs, L. ( 2018 )

J-S05020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYDELL TEEMAN COBBS :
:
Appellant : No. 885 WDA 2017
Appeal from the Judgment of Sentence March 7, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013095-2002,
CP-02-CR-0013096-2002
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OTT, J.: FILED JUNE 25, 2018
Lydell Teeman Cobbs appeals from the judgment of sentence imposed
March 7, 2016, in the Allegheny County Court of Common Pleas. The trial
court sentenced Cobbs to an aggregate term of 10 to 20 years’ imprisonment,
following the violation of his probation in two separate cases involving the
sexual abuse of a minor. On appeal, Cobbs argues the trial court erred and/or
abused its discretion in determining he violated the conditions of his probation.
For the reasons below, we affirm.
The facts underlying Cobbs’ original conviction were summarized by the
trial court in a prior opinion as follows:
During the year 2002, Cobbs was permitted overnight visits
with his six year old biological daughter. During these visits, his
daughter would be required to sleep in Cobbs’ bed and on
numerous occasions during the middle of the night Cobbs would
wake up his daughter and force her to perform oral sex on him.
The last time that Cobbs forced her to perform oral sex, she
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* Retired Senior Judge assigned to the Superior Court.
J-S05020-18
became sick and, in fact, threw up on Cobbs. Cobbs became
enraged and struck her with a leather belt which he had done on
previous occasions to coerce her to perform oral sex on him. After
this incident, the six year old daughter went to her grandmother
and told her what Cobbs was doing to her and the grandmother
then separated Cobbs and his daughter and told his daughter to
go to sleep in the bedroom with Cobbs’ ten year old sister. The
six year old went into the ten year old’s bedroom and they
discussed what was going on and the ten year old then revealed
to the six year old that Cobbs had been doing the same things to
her over an extended period of time. This information was then
given to the Allegheny County Police Department, Sexual Assault
and Child Abuse Unit, and they went and arrested Cobbs on these
charges. After being given his Miranda[1] rights, Cobbs freely
confessed to the police that he had, in fact, committed these
crimes against his six year old daughter and his ten year old sister.
Trial Court Opinion, 2/23/2005, at 2-3.
Cobbs was charged in separate dockets for the crimes against each
victim. On April 6, 2004, he entered a negotiated guilty plea encompassing
both dockets: (1) at Docket No. 2002-13095, he pled guilty to involuntary
deviate sexual intercourse (two counts), indecent assault (two counts),
indecent exposure (two counts), endangering the welfare of a child, and
corruption of minors,2 for the offenses against his daughter; and (2) at Docket
No. 2002-13096, he pled guilty to involuntary deviate sexual intercourse,
indecent assault, incest and corruption of minors,3 for the offenses against his
sister. Following a hearing conducted in August of 2004, the trial court
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).
2 See 18 Pa.C.S. §§ 3123, 3126, 3127, 4304, and 6301, respectively.
3 See 18 Pa.C.S. §§ 3123, 3126, 4302, and 6301, respectively.
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determined Cobbs met the criteria for classification as a sexually violent
predator under the now-defunct Megan’s Law, and on August 5, 2004,
sentenced him to an aggregate term of five to 10 years’ imprisonment,
followed by five years’ probation. Cobbs filed a direct appeal challenging only
his classification as a sexually violent predator. A panel of this Court affirmed
his judgment of sentence, and the Pennsylvania Supreme Court denied his
petition for review. See Commonwealth v. Cobbs, 883 A.2d 685 (Pa.
Super. 2005) (unpublished memorandum), appeal denied, 891 A.2d 729 (Pa.
2005).
In December of 2012, after Cobbs served his maximum term of
imprisonment, he was released to begin his five-year probationary sentence.
On December 24, 2012, he signed three forms which outlined the conditions
of his probationary supervision as a convicted sex offender: (1) Standard
Special Conditions for Sex Offenders; (2) Optional Special Conditions for Sex
Offenders, and (3) Supplemental Special Conditions for Sex Offenders. Cobbs
was subsequently arrested for technical violations of his probation, specifically
for engaging in assaultive behavior. Following a hearing on July 1, 2013, the
trial court entered a new sentencing order, substantially the same as the prior
order, and directed that the sentence include the standard special conditions
for sex offenders that Cobbs acknowledged he had signed. See Order,
7/1/2013; N.T., 7/1/2013, at 4. Cobbs remained incarcerated, and appeared
for hearings on March 3, 2014, and March 2, 2015, because he was unable to
obtain acceptable housing. At the March 2015 hearing, the court transferred
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his probationary supervision to the county. Thereafter, Cobbs obtained
approved housing at Steadfast Ministries.
However, on June 25, 2015, a detainer was issued for him due to several
alleged probation violations, including: (1) he had failed to abide by the
policies of Steadfast Ministries, (2) he was seen in one of his girlfriends’
vehicles with a minor in the car, and (3) he admitted to having five girlfriends,
three of whom had minor children. A violation hearing was held on September
14, 2015. However, the court took no action on the alleged violations, but
modified Cobbs’ sentence to include a new residence. Cobbs was
subsequently released from prison on October 2, 2015.
Once again, on November 17, 2015, Cobbs was arrested for violating
the terms of his probation. At the December 7, 2015, violation hearing, Cobbs’
supervising probation officer testified that Cobbs reported to her office on
November 17, 2015, and stated he had obtained a new cell phone a few days
ago. See N.T., 12/7/2015, at 3. However, after noticing the date stamps on
several photographs saved on the phone, the officer discovered that Cobbs
had actually gotten the phone in September and failed to report it. Further,
the phone contained “pictures of minors [Cobbs] was around, posing with
individuals at bars and with alcohol[, and] pictures of him posing with men
that appeared to be drug dealers[, although Cobbs] stated that they were not
selling drugs, rather [] some narcotic pain pills[.]” Id. at 4. Cobbs’ probation
officer stated this behavior, coupled with his previous violations, justified the
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revocation of his probation and resentencing to a term of incarceration. See
id. at 5.
Cobbs’ attorney responded that Cobbs “understands he’s violated the
conditions of [his] probation,” but argued that he was not acting as a predator
towards any of the minors in the pictures. Id. at 6. Further, counsel
requested a county sentence, or alternatively, a continuance so that a new
presentence investigation could be completed before the court imposed a new
sentence. See id. at 6-7. The trial court continued the hearing until March
7, 2016.
At the March 7, 2016, hearing, the court indicated it had reviewed the
presentence investigation report. Cobbs testified he was complying with the
terms of his probation, and he did not realize there was a minor in the picture
on his phone. See N.T. 3/7/2016, at 9-10. He further denied having multiple
girlfriends with children, and stated “[t]he only incident with a child was with
Sidney, with her little nephew in the back of the car.” Id. at 13. At the
conclusion of the hearing, the trial court revoked Cobbs’ probation, and
resentenced him to an aggregate term of 10 to 20 years’ imprisonment.
Cobbs filed a pro se post-sentence motion seeking reconsideration of his
sentence on March 23, 2016, followed by a pro se PCRA4 petition on June 21,
2016. Counsel was appointed, and filed an amended PCRA petition on
February 2, 2017, seeking, inter alia, reinstatement of Cobbs’ post-sentence
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4 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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and direct appeal rights from the March 7, 2016, judgment of sentence. On
May 8, 2017, the PCRA court granted Cobbs’ requested relief. Thereafter, on
May 17, 2017, Cobbs filed a post-sentence motion seeking modification of his
sentence, and challenging the bases for the court’s revocation of his probation.
The trial court expressly granted reconsideration on May 19, 2017, and,
following a hearing, subsequently denied Cobbs relief. This timely appeal
followed.5
The sole issue raised on appeal challenges the trial court’s determination
that Cobbs violated conditions of his probationary sentence. Our review is
guided by the following:
The Sentencing Code prescribes, with respect to the
imposition of conditions of probation, that “[t]he 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.” 42 Pa.C.S. § 9754(b).
In Commonwealth v. Vilsaint, 893 A.2d 753 (Pa. Super. 2006),
a panel of this Court, citing 42 Pa.C.S. § 9754(b), held that “the
legislature has specifically empowered the court, not the probation
offices and not any individual probation officers, to impose the
terms of probation.” Id. at 757. Furthermore,
in Commonwealth v. MacGregor, 912 A.2d 315 (Pa. Super.
2006), this Court noted that a sentencing court cannot revoke
probation based upon a probationer’s violation of a condition
imposed solely by a probation office.
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.
Ballard, 814 A.2d 1242, 1245 (Pa. Super. 2003). In order to
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5 Concomitant with his notice of appeal, Cobbs filed a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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uphold a revocation of probation, the Commonwealth must show
by a preponderance of the evidence that a defendant violated his
probation. Commonwealth v. Shimonvich, 858 A.2d 132, 134
(Pa. Super. 2004).
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011), appeal
denied, 49 A.3d 441 (Pa. 2012). Accord Commonwealth v. Simmons, 56
A.3d 1280, 1284 (Pa. Super. 2012), aff’d, 91 A.3d 102 (Pa. 2014).
Nevertheless, while a condition of probation must be court-imposed
pursuant to the Sentencing Code, the Pennsylvania Supreme Court recognized
that the Board of Probation and Parole and its agents have statutory authority
to impose conditions of supervision upon probationers. See
Commonwealth v. Elliott, 50 A.3d 1284, 1291 (Pa. 2012), citing 61 Pa.C.S.
§§ 6131(a)(5)(ii), 6151. However, the Court emphasized the Board and its
agents “cannot impose any condition of supervision it wishes, carte blanche.”
Id. at 1291. Rather, probation officers may “impose conditions of supervision
that are germane to, elaborate on, or interpret any conditions of probation
that are imposed by the trial court.” Id. at 1292. The Elliott Court opined:
This interpretation gives meaning to all of the statutory provisions
relevant to this case and thus: (1) maintains the sentencing
authority solely with a trial court; (2) permits the Board and its
agents to evaluate probationers on a one-on-one basis to
effectuate supervision; (3) sustains the ability of the Board to
impose conditions of supervision; and (4) authorizes that a
probationer may be detained, arrested, and “violated” for failing
to comply with either a condition of probation or a condition of
supervision. 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.
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Id. (footnote omitted and emphasis supplied).
In the present case, Cobbs argues the purported violations, for which
the trial court revoked his probation, were not court-imposed conditions of his
probationary sentence. See Cobbs’ Brief at 15-19. He summarizes those
violations as follows: (1) he had curfew violations and issues while staying at
Steadfast Ministries; (2) he was seen in June of 2016 in his girlfriend’s car
with a minor child also in the car; (3) he had a photo of a minor on his cell
phone; (4) he had photos of himself posing with individuals in a bar with
alcohol, and with men who appeared to be drug dealers; (5) he had five
girlfriends, three of whom had minor children; (6) he had 50 misconducts
while serving his 10-year prison term; and (7) he failed to immediately report
his purchase of a cell phone to his probation officer. See id. at 15-16.6 Cobbs
insists none of the behaviors listed above violated any court-imposed
condition of his probation. Indeed, his sentencing order checked only one
special condition, that is, he was prohibited from having any contact with the
victims of his crimes. See Order, 8/5/2004. Furthermore, while he
acknowledges the court later adopted the conditions set forth in the Standard
Special Conditions for Sex Offenders, a document he signed after he was
released from prison, Cobbs maintains none of his actions violated any of the
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6Cobbs also complains the trial court revoked his probation, in part, because
he failed to pay fines and costs. See Cobbs’ Brief at 15. However, the trial
court clarified in its opinion that Cobbs’ failure to pay these amounts “played
no part in the determination that he was in violation” of his probation. Trial
Court Opinion, 10/24/2017, at 4.
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conditions listed therein. See Cobbs’ Brief at 17-19. See also Appendix to
Brief in Support of Amended PCRA, 2/2/2017, Standard Special Conditions for
Sex Offenders. Rather, he maintains the basis for these alleged violations
would have been in the Optional Special Conditions for Sex Offenders and the
Supplemental Special Conditions for Sex Offenders, both of which he signed,
but were not specifically adopted or imposed by the trial court. See Cobbs’
Brief at 23. Moreover, because the conditions set forth in those documents
were not “in furtherance of the conditions of probation adopted by the Court
of Common Pleas and, on the contrary, are incongruous with, and in
derogation of, the Standard [Special Conditions for Sex Offenders] adopted
by that Court,” Cobbs insists the record does not support the court’s
determination that he violated conditions of his probation. Id. at 26-27.
Preliminarily, we note our review of the record reveals no basis to
support a finding that Cobbs was instructed to refrain from drinking alcohol as
a condition of his probation. Although the Commonwealth contends Cobbs
was required to exhibit “good behavior,”7 as a panel of this Court observed in
Vilsaint, “[d]rinking alcohol and/or being intoxicated are not illegal in and of
themselves.” Vilsaint, 893 A.2d at 757 n.5. Accordingly, the Vilsaint panel
rejected the argument that refraining from drinking alcohol was “in the realm
of ‘implied conditions’ of probation.” Id. Therefore, we agree with Cobbs that
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7 Commonwealth’s Brief at 24.
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the court had no basis to revoke his probation based upon his consumption of
alcohol.
Nevertheless, we agree with the Commonwealth’s argument that Cobbs’
behavior violated the Optional and Supplemental Special Conditions for Sex
Offenders, which he signed and acknowledged.8 See Commonwealth’s Brief
at 24. First, absent prior approval from his probation officer, Cobbs obtained
a cell phone, which had saved at least one picture of a minor, in violation of
the Supplemental Special Conditions relating to contraband. See Appendix to
Brief in Support of Amended PCRA, 2/2/2017, Supplemental Special
Conditions for Sex Offenders, at 3 (prohibiting Cobbs from purchasing or
possessing “any photography equipment,” including “camera phones,” or any
photographs of a person under the age of 18, without “prior written approval
of probation/parole supervision staff”). Moreover, Cobbs was seen in a vehicle
driven by one of his girlfriends, with a minor in the back seat, in violation of
the Optional Special Conditions for Sex Offenders. See id., Optional Special
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8 We note the Commonwealth also asserts Cobbs’ argument is waived on
appeal because his attorney did not challenge the validity of the special sex
offender condition during his revocation hearing, and, in fact, conceded he
had violated the terms of his probation. See Commonwealth’s Brief at 16.
Nonetheless, we decline to find waiver. First, we disagree that counsel’s brief
statement during the December 2015 hearing that Cobbs “understands he’s
violated the conditions of [his] probation,” constitutes a knowing and
voluntary admission. N.T, 12/7/2015, at 6. Furthermore, Cobbs raised the
argument on appeal in his post-sentence motion nunc pro tunc. See Motion
for Reconsideration of March 7, 2016 Sentence, 5/17/2017, at ¶ 22.
Accordingly, we find his claim is preserved for our review.
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Conditions for Sex Offenders, at 1 (prohibiting Cobbs from have any contact
with persons under the age of 18 without prior written approval). Cobbs also
admitted to probation staff that he had five girlfriends, three of which had
minor children,9 in violation of the Optional Special Conditions. See id. at 1
(prohibiting Cobbs from forming a romantic relationship with any person who
has custody of, or visitation rights with, anyone under the age of 18 without
prior approval).
Cobbs insists, however, that his violation of the Optional and
Supplemental Special Conditions should not have been a basis for the court’s
revocation of his probation because these conditions were not court-imposed,
and were not “in furtherance” of the conditions specifically adopted by the trial
court. Cobbs’ Brief at 26. We disagree. The Standard Special Conditions for
Sex Offenders, which the trial court specifically adopted, prohibited Cobbs
from having any contact with his victims, both of whom were minors, as well
as required him to provide his probation officer with “unlimited access to any
… multimedia device” including cell phones. Appendix to Brief in Support of
Amended PCRA, 2/2/2017, Standard Special Conditions for Sex Offenders, at
1-2. The additional requirements that Cobbs obtain prior approval before
having contact with minors, entering into a relationship with a person who has
custody of a minor, or obtaining a cell phone with photographic capabilities,
are all in furtherance of the court-imposed conditions.
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9 See N.T., 9/14/2015, at 4.
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We also reject Cobbs’ attempt to minimize his violations by emphasizing
his contact with the minor in the vehicle was a “one-time encounter[]” where
no actual physical contact occurred, and the photo of the minor on his cell
phone was not “sexually explicit in nature.” Cobbs’ Brief at 24, 25.
Furthermore, he contends his delay in reporting possession of a cell phone
was only “for a short period of time” and not “a violation which was
contemplated by the Court of Common Pleas’ conditions.” Id. at 25. The
Commonwealth was required to demonstrate by a preponderance of the
evidence that Cobbs violated the conditions of his probation. See Allshouse,
supra. The trial court determined the Commonwealth met this burden, with
the exception of violating probation because of his consumption of alcohol.
We find no basis to disagree. Indeed, the fact that Cobbs did not commit
more egregious violations does not excuse his behavior. Moreover, he admits
that a court can “consider prior history/conduct when considering whether to
revoke probation and impose a new sentence of incarceration when a
probationee is before the court because of alleged new/recent violations.”
Cobbs’ Brief at 17 n.7. Here, the record reveals Cobbs had difficulty complying
with the terms of his probation from the time he was released from prison.
However, the court refrained from imposing a new term of incarceration until
the most recent cell phone violation. Accordingly, no relief is warranted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2018
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