Com. v. Harris, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEED HARRIS :
:
Appellant : No. 1335 EDA 2021
Appeal from the Judgment of Sentence Entered June 7, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000662-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 3, 2022
Appellant Rasheed Harris seeks review of the judgment of sentence
imposed after he entered a stipulation during a Gagnon II1 hearing
acknowledging that he violated his probation. He challenges the sufficiency
of the evidence underlying his probation revocation, and the legality of his
sentence. After careful review, we affirm.
On September 17, 2018, Appellant pled guilty in Montgomery County at
two different docket numbers to Possession with Intent to Deliver (“PWID”)
heroin and Possession of unprescribed oxycodone pills. The court sentenced
Appellant to 45 days to 23 months’ incarceration, followed by three years’
probation. The written sentencing order listed several conditions of probation.
Appellant was released on parole in November 2018 and his
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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incarceration/parole sentence expired on August 17, 2020. His three-year
probationary tail, thus, began on August 18, 2020.
On November 4, 2020, the Philadelphia Police Department arrested
Appellant in connection with an October 9, 2020 burglary. When arrested,
Appellant possessed a loaded .45 caliber firearm. The Commonwealth
charged him with, inter alia, Possession of Firearm Prohibited, Possession of
an Unlicensed Firearm with a partially-obliterated serial number, Receiving
Stolen Property, and Carrying Firearm in Public in Philadelphia.
In March 2021, Montgomery County Adult Probation Services provided
a Notice of Violation listing three violations, beginning with the following
relevant violation (“Violation #1”):
1. You were arrested on or about November 4, 2020, by the
Philadelphia Police Department for conduct of the following
nature: Possession of Firearm Prohibited, Alter/Obliterate Mark
of Identification, Firearms Not to be Carried Without a License,
Receiving Stolen Property, and Carry Firearms Public in
Philadelphia. Incident date: on or about November 4, 2020
(Violation of Rule #2).
Notice of Violation, dated 3/10/2021.2
On June 7, 2021, the court held a violation of probation (“VOP”) hearing
where Appellant waived his right to a Gagnon I hearing and proceeded to a
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2Rule #2 of the Montgomery County Adult Probation provides, in part: “I must
comply with all local, state and federal criminal laws.” Tr. Ct. Op., 9/22/21,
at 4.
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Gagnon II hearing.3 At the hearing, Appellant admitted to “Violation #1”
above. N.T. Hearing, 6/7/21, at 5. In addition, Appellant acknowledged that
he had reviewed the written Probation/Parole Stipulation Colloquy with his
attorney. Id. at 5-6; Exhibit D-2. Notably, paragraph 11 provides: “Do you
admit that you did all of the things it is alleged you have done to be in violation
of your probation [ ] and are you willing to stipulate to being in violation
today?” Id., at ¶ 11. The line next to the word “Yes” following that question
contains a check mark. The court admitted both the Notice of Violation and
the Written Stipulation Colloquy into evidence.
In exchange for his stipulation, the Commonwealth agreed to
recommend a sentence of time served (90 days) to 12 months’ incarceration,
followed by a term of two years’ probation.
The court accepted Appellant’s stipulation as entered into voluntarily,
knowingly, and intelligently, revoked his probation, and imposed the
negotiated sentence.
On June 14, 2021, Appellant filed a Motion to Vacate Illegal Sentence,
citing Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021), appeal
granted, 270 WAL 2021 (Pa. filed Apr. 5, 2022), contending that his VOP
sentence was illegal because the original sentencing court had failed to put
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3 At a Gagnon I hearing, the Commonwealth must show probable cause that
the defendant committed a parole or probation violation. Commonwealth v.
Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (explaining differences
between Gagnon I and Gagnon II hearings). At a Gagnon II hearing, the
court determines if the defendant violated their probation or parole and, if so,
what sentence to impose. Id.-3-
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the conditions of his probation on the record. Appellant filed his Notice of
Appeal on July 1, 2021, before the trial court ruled on this Motion. As a result,
the court found itself without jurisdiction to address the merits of Appellant’s
Motion. Both Appellant and the VOP court complied with Pa.R.A.P. 1925.4
Appellant raises the following issues for our review:
1. Whether there is sufficient evidence to find that Appellant
stipulated to committing a new crime where he has not
been convicted for the alleged offenses underlying the
violations and there are no facts in the record to support
the arrests?
2. If the above (1.) is answered in the negative, whether
Appellant’s June 7, 2021 VOP sentence for a “technical”
violation of his supervision is illegal because he was
never informed of the specific conditions of his
supervision by the original sentencing court, which is a
violation of 42 Pa.C.S. § 9754(b)?
Appellant’s Br. at 4.
Legal Analysis
Our review of sentence imposed following a probation violation “is
limited to determining the validity of the probation revocation proceedings and
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4 On July 2, 2021, the court scheduled a hearing on Appellant’s Motion to
Vacate Illegal Sentence. However, on July 13, 2021, in response to
Appellant’s Notice of Appeal, the court directed Appellant to file a Pa.R.A.P.
1925(b) Statement. On July 14, 2021, the court held a hearing on the Motion
to Vacate Illegal Sentence, following which it held the matter under
advisement and directed counsel to file Memoranda of Law. The court did not
ultimately enter an order on the motion, explaining in its Rule 1925(a) Opinion
that could not decide the motion because, as a result of Appellant’s appeal to
this Court, it no longer had jurisdiction. Tr. Ct. Op., 9/22/21, at 3 n.6, citing
Pa.R.A.P. 1701.
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the authority of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial [proceeding].”
Commonwealth v. Giliam, 233 A.3d 863, 866 (Pa. Super 2020) (citation
omitted). We may only vacate a sentence for an error of law or an abuse of
discretion. Id. at 866-67.
It is “a general condition of probation – that a defendant lead ‘a law-
abiding life,’ i.e., that the defendant refrain from committing another crime.”
Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa. 2019). A court may
find a probationer in violation if, inter alia, he engages in new criminal conduct.
Koger, 255 A.3d at 1290.
“If, after finding a violation, the court revokes a defendant's probation,
it may only resentence the defendant to a term of incarceration if (1) the
defendant was convicted of a new crime; (2) the defendant's conduct makes
it likely that he or she will commit a new crime if not incarcerated; or (3)
incarceration ‘is essential to vindicate the authority of the court. [42 Pa.C.S.] §
9771(c).’” Foster, 214 A.3d at 1250.
Further, when a probationer stipulates to a probation violation, he
surrenders certain rights, including his right to have the Commonwealth prove
the violation; therefore, a probationer’s stipulation to a probation violation
must be voluntary and supported by the record. See Commonwealth v. Bell,
410 A.2d 843, 844 (Pa. Super. 1979).
Where a defendant enters a negotiated stipulation admitting to a
probation violation, and the court finds that he has entered the stipulation
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knowingly, voluntarily, and intelligently, sufficient grounds support the
revocation. Commonwealth v. Kalichak, 943 A.2d 285, 292-93 (Pa. Super.
2008). Moreover, a defendant “is bound by the statements he makes in open
court while under oath and he may not later ... contradict the statements he
made....” Commonwealth v. Hopkins, 228 A.3d 577, 583 (Pa. Super.
2020) (citation omitted).
In his first issue, Appellant challenges the sufficiency of the evidence
supporting the court’s finding of a probation violation by contending that he
stipulated only that he was arrested and not that he committed the conduct
underlying the arrest. Appellant’s Br. at 12. He notes that “[t]here is nothing
in the record about a Gagnon I hearing because he waived that hearing.” Id.
at 15. He also notes that the record does not “contain the affidavits of
probable cause from the [underlying] incidents themselves to provide the
factual support for the arrests,” and “neither the Commonwealth nor the VOP
court mentioned at the June 7th hearing that [Appellant’s] supervision was
being revoked because of specific conduct related to the arrest.” Id.
Our review of the record reveals that Appellant did not raise this
challenge before the trial court in either his Pa.R.A.P. 1925(b) Statement or
his supplement. It is well-settled that “[a]ny issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.” Commonwealth v. Kearney, 92
A.3d 51, 59 (Pa. Super. 2014) (citation omitted); see also Pa.R.A.P.
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1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”).
Appellant, thus, waived this challenge.5
Appellant’s second issue purports to challenge the legality of his
sentence by asserting that the court “did not have statutory authorization to
revoke [Appellant] probation for a violation of the specific conditions of his
supervision because it never informed hi[m] what those conditions were, in
violation of section 9754(b) of the Sentencing Code.” Appellant’s Br. at 24.
Appellant relies on Koger, 255 A.3d 1285, to support his argument. It is
unavailing.
In Koger, this Court held that because the trial court “erred in failing to
specifically advise [the a]ppellant of the conditions of his probation and parole
at the time of his initial sentencing . . . the Commonwealth could not prove by
a preponderance of the evidence that Appellant committed any violations as
allegedly defined in the probation officer’s petition.” Id. at 1290-91. The Court
declined to address the issue in the appellant’s terms of a court’s “lacking the
authority to impose” the sentence. Rather, the Court’s holding is based on a
conclusion that because the conditions were not provided by the trial court,
the Commonwealth could not carry its burden of proof.
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5 Moreover, by entering the stipulation, which the trial court found was
knowing, voluntary, and intelligent, admitting he violated probation by
participating in criminal conduct, Appellant waived his challenge to the
sufficiency of the evidence underlying his probation revocation.
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Here, as noted above, Appellant entered his stipulation admitting that
he violated the terms of his probation by participating in criminal conduct, i.e.,
illegally possessing a stolen firearm. In entering that stipulation, he released
the Commonwealth from its burden of proof.6 Accordingly, this challenge is
waived.
Appellant also contends that, pursuant to Giliam, 233 A.3d at 868, his
revocation sentence should be voided because the new charges were
dismissed after the preliminary hearing. Appellant’s Br. at 20.
In Giliam, this Court vacated the appellant’s violation of probation
sentence because the appellant was acquitted after a bench trial of the new
criminal charges. “Once Giliam was acquitted of the new charges, the finding
of a probation violation had to be set aside because the Commonwealth did
not allege or prove any other violation of probation charge.” Id. at 869.
Unlike Appellant, the defendant in Giliam did not stipulate that he
engaged in criminal conduct. In the instant case, Appellant stipulated that he
engaged in criminal conduct and thus, he agreed that he violated his
probation. The fact that the trial court dismissed the new charges does not
discount the fact that Appellant stipulated that he engaged in criminal conduct
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6 Moreover, it is absurd to suggest that Appellant was not aware that an
implicit general condition of probation is that one must not partake in criminal
activity. The fact that Appellant stipulated to violating his probation by
participating in the criminal conduct for which he was arrested indicates that
he was well aware of the condition that he lead a law-abiding life.
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and violated his probation. Accordingly, we decline to vacate Appellant’s
sentence based on Giliam.
Having found no error of law or abuse of discretion, we affirmed the
Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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