Com. v. Horning, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD I. HORNING :
:
Appellant : No. 507 MDA 2020
Appeal from the Judgment of Sentence Entered February 18, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001071-2011
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 08, 2021
Appellant, Edward I. Horning, appeals from the judgment of sentence
entered on February 18, 2020, following the revocation of his probation.1
After review, we affirm.
On March 1, 2011, the Commonwealth charged Appellant with twenty-
two counts of possessing or viewing child pornography.2 On November 22,
2011, the trial court sentenced Appellant as follows: at count one, one to two
years of incarceration; at counts two through twenty-two, ten years of
probation at each count to run concurrently to one another and consecutively
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1 On December 30, 2020, we remanded this matter to the trial court for a
supplemental opinion. The trial court complied in an expeditious manner and
filed its supplemental opinion on January 6, 2021.
2 18 Pa.C.S. § 6312(d).
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to the sentence imposed at count one. Sentencing Order, 11/22/11. This
resulted in an aggregate sentence of one to two years of incarceration,
followed by ten years of probation. Id.
Appellant filed an appeal alleging that the ten-year sentences of
probation were illegal because the offenses were graded as felonies of the
third degree and carried a maximum penalty of seven years. 18 Pa.C.S §
1102(3). The trial court confirmed that it agreed that Appellant’s ten-year
probationary sentences were illegal. Trial Court Correspondence, 4/22/16.
Upon review, we remanded Appellant’s case to the trial court for resentencing.
Order, 6/2/16.
On June 30, 2016, the trial court resentenced Appellant as follows. At
count one: the sentence is completed, and it is closed; at count two: the trial
court noted that Appellant’s probation at this count had been revoked
previously and on January 19, 2016, Appellant was resentenced to a term of
one and one-half to three years of incarceration and that sentence remains in
effect; at count three: sixty months of probation consecutive to count two; at
count four: sixty months of probation consecutive to count three; and at
counts five through twenty-two: sixty months of probation concurrent with
each other and concurrent with count three. Sentencing Order, 6/30/16.
While Appellant remained on probation at count three, the
Commonwealth alleged that Appellant was in violation of the terms of his
probation. On February 18, 2020, the trial court revoked Appellant’s probation
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and resentenced him. The trial court ordered that Appellant’s probation at
count three was revoked and imposed a sentence of twenty-four to sixty
months of incarceration. Sentencing Order, 2/18/20. At count four, the
probationary term that ran consecutively to count three was ordered to remain
in effect, and the probationary sentences at counts five through twenty-two
remain unchanged. Id.
Appellant filed a timely post-sentence motion requesting that his
sentence of incarceration be amended to a term of electronic home monitoring
and that the probationary sentences be ordered to run concurrently. On March
16, 2020, the trial court denied Appellant’s post-sentence motion. Appellant
filed a timely appeal on March 18, 2020, and both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents one issue for our consideration:
1. The Commonwealth alleged that Appellant violated the terms
of his supervision because he viewed pornography and possessed
a weapon. The testimony, however, did not prove that what
Appellant viewed was pornography and it did not prove that he
possessed a weapon. Nevertheless, the violation court found
violations. Did it abuse its discretion?
Appellant’s Brief at 4.
Our Supreme Court has explained that 42 Pa.C.S. § 9771 allows for
termination of supervision or modification of the conditions of probation at any
time. Commonwealth v. Foster, 214 A.3d 1240, 1249-1250 (Pa. 2019).
“Revocation of probation, however, is sanctioned only ‘upon proof of the
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violation of specified conditions of the probation.’” Id. at 1250 (quoting 42
Pa.C.S. § 9771(b)).
“[I]n an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (quoting Commonwealth v.
Cartrette, 83 A.3d 1030, 1033 (Pa. Super. 2013) (en banc)); 42 Pa.C.S. §
9771. Revocation of probation is a matter committed to the sound discretion
of the trial court, and that decision will not be disturbed on appeal in the
absence of an error of law or an abuse of discretion. Commonwealth v.
Smith, 669 A.2d 1008, 1011 (Pa. 1996).
Appellant contends that the evidence was insufficient to prove that he
violated the terms of his probation. Appellant’s Brief at 9. A challenge to the
sufficiency of the evidence supporting the revocation of probation is a question
of law subject to plenary review. Commonwealth v. Perreault, 930 A.2d
553, 558 (Pa. Super. 2007). We must determine whether the evidence
admitted at the revocation hearing and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the Commonwealth, is
sufficient to support the conclusion that the probationer violated the terms of
his probation. Id.The trial court addressed Appellant’s claim of error, as follows:
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Dauphin County Probation filed a revocation hearing
request(s) on January 17, 2020.1 Appellant was accused of
committing the following violations: Rule 11) Appellant may not
possess...any contraband such as: drugs, firearms, ammunition
or other weapons (during a field visit, the Appellant was in
possession of an extremely large hunting knife that was laying
beside his bedside table); Sexual Offender Rule 1) Appellant was
to participate in treatment for sexual offenders as directed by the
Probation Office and to comply with all rules and conditions
provided by the treatment provider (the Appellant was discharged
unsuccessfully from Triad Treatment Specialist on January 7, 2020
and the Appellant received written notice for failure to be
forthcoming in sessions, viewing pornography, engaging in sexual
deviant behavior, and attending adult bookstores on a weekly
basis); Sexual Offender Rule 11) Appellant may not purchase,
possess or transport any pornographic or sexually explicit
materials (during a cell phone search of [Appellant’s] phone on
1/7/2020, State Agents were able to locate multiple pornographic
movies via Netflix); and Sexual Offender Rule 13) Appellant may
not frequent adult bookstores (on October 14, 2019, the Appellant
was given a written notice from Triad for engaging in sexual
deviant behavior, and attending adult bookstores on a weekly
basis).2
1Said hearing request advised the Appellant of the
committing probation violations.
2 See Notice of Alleged Violations of
Probation/Parole/Intermediate Punishment filed
January 17, 2020.
A revocation hearing was held on February 18, 2020. The
Appellant did not contest the violations. Transcript of Proceedings,
Revocation hearing, page 2, February 18, 2020 (hereinafter N.T.
at ___”). Nonetheless, Probation Officer (PO) Michael Russo and
State Parole Agent Elizabeth Lucas were present and did offer
credible testimony. PO Russo testified that the Appellant was
unsuccessfully discharged from Triad Treatment for “being
deceptive, struggling with viewing pornography, utilizing
distortions to justify sexually deviant thoughts.” N.T. at 4. The
Appellant received written notice of these violations which also
included Appellant entering an adult bookstore on a weekly basis.
Additionally, Agent Lucas met with the Appellant and the Appellant
admitted that he continues to masturbate to thoughts of children
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in his mind. Id. The Appellant also admitted to entering adult
bookstores, going into a booth, finding a pornographic movie with
the youngest looking actors, and masturbating before leaving the
store. Appellant was also found with a smart device that had a
Netflix account. Appellant admitted that he watched a
pornographic movie on Netflix, Immor[al] Tales.
Agent Lucas also testified that the Appellant continues to
take treatment as a joke and is not amenable to treatment or
supervision. N.T. at 8-9. Additional testimony revealed that the
Appellant was in possession of a large knife that was on a bedside
table. N.T. at 13.
Trial Court Opinion, 1/6/21, at 2-3 (emphasis in original).
Appellant contends that the film “Immoral Tales” is not pornographic
and that the knife found at Appellant’s house is not a weapon. Appellant’s
Brief at 9. However, as emphasized by the trial court, Appellant, who was
represented by counsel, stipulated to violating the terms of his probation.
Trial Court Opinion, 1/6/21, at 3; N.T., 2/18/20, at 2. Indeed, when
Appellant’s counsel was asked if she was contesting the violations, she
responded: “No.” N.T., 2/18/20, at 2.
The record reflects that Appellant received and acknowledged a written
statement of his alleged probation violations. Notice, 1/9/20. Moreover,
Appellant waived his Gagnon I hearing.3 Waiver, 1/9/20. As the trial court
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Starr, 234 A.3d 755, 762 (Pa. Super. 2020) (explaining when probationer is
detained based on an alleged probation violation, due process requires a
Gagnon I hearing to determine if there is probable cause that probationer
committed a violation of his probation, followed by a second more
comprehensive Gagnon II hearing wherein trial court determines whether to
revoke probation).
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noted, counsel confirmed at Appellant’s Gagnon II hearing that she was not
contesting the violations. N.T., 2/18/20, at 2.
We conclude that Appellant waived his issue on appeal due to his failure
to raise any objection or contest his stipulation to violating his probation at
the revocation hearing. See Commonwealth v. King, 430 A.2d 990 (Pa.
Super. 1981) (citing Commonwealth v. Collins, 424 A.2d 1254 (Pa. 1981))
(holding that objections not raised during a counselled revocation proceeding
will not be considered on appeal); see also Pa.R.A.P. 302(a) (“Issues not
raised in lower court are waived and cannot be raised for the first time on
appeal.”). When a probationer agrees not to contest the alleged probation
violations, he surrenders “important rights.” Commonwealth v. Bell, 410
A.2d 843, 844 (Pa. Super. 1979). However, we note that neither at the
revocation hearing, nor on appeal, does Appellant assert that this stipulation
was involuntary. Thus, we conclude that Appellant failed to preserve his sole
issue on appeal.
Moreover, even in the absence of the film or the knife, the testimonial
evidence from the probation officer and parole agent, which the revocation
court deemed credible, unequivocally established that Appellant violated the
terms of his probation. Trial Court Opinion, 1/6/21, at 3. The uncontradicted
testimony at Appellant’s revocation hearing established that Appellant violated
Sexual Offender Rule 1 (mandating sex-offender treatment) and Rule 13
(prohibiting Appellant from patronizing adult bookstores); Appellant was
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unsuccessfully discharged from sex-offender treatment and masturbated to a
sexually explicit video inside an adult bookstore. N.T., 2/18/20, at 5; Trial
Court Opinion, 1/6/21, at 2-3. Therefore, even if Appellant had challenged
the Commonwealth’s assertion that the film “Immoral Tales” was
pornographic and that the knife found on his bedside table was a weapon, the
remaining uncontradicted evidence established that Appellant violated the
terms of his probation and would have supported the revocation of his
probation. Foster, 214 A.3d at 1250.
For the reasons set forth above, we conclude that Appellant failed to
preserve the issue he presented on appeal. Assuming, arguendo, that
Appellant had properly preserved and raised his issue on appeal, we would
discern no error of law or abuse of discretion in the trial court finding Appellant
violated the terms of his probation. Smith, 669 A.2d at 1011; Foster, 214
A.3d at 1250. Accordingly, we affirm Appellant’s judgment of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/08/2021
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