Com. v. Wilcox, H. ( 2021 )

J-S02011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HASSAN WILCOX :
:
Appellant : No. 1121 EDA 2020
Appeal from the Judgment of Sentence Entered March 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002206-2016
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 16, 2021
Appellant, Hassan Wilcox, appeals from the judgment of sentence of an
aggregate term of 2-4 years’ incarceration, followed by one year of probation,
imposed after the trial court revoked his probation.1 We affirm.
We need not set forth the relevant facts and procedural history of this
case here, as the trial court provided an adequate summary of both in its
November 16, 2020 opinion pursuant to Pa.R.A.P. 1925(a). See Trial Court
Opinion (TCO), 11/16/20, at 1-5. Presently, Appellant raises two issues for
our review:
1. Whether the evidence introduced at the probation revocation
hearing was insufficient to establish a technical violation by a
preponderance of the evidence.
2. Whether the lower court abused its discretion by imposing a
concurrent sentence of two to four years[’] state
____________________________________________
1
We note that Appellant also goes by the name Andre Montgomery.
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incarceration[,] plus one year [of] probation[,] on the counts
of insurance fraud and conspiracy, a manifestly excessive
violation[-]of[-]probation sentence for a technical violation of
probation.
Appellant’s Brief at 5 (unnecessary capitalization and emphasis omitted).
In Appellant’s first issue, he argues that “[t]he evidence introduced at
the probation revocation hearing was insufficient to establish a technical
violation by a preponderance of the evidence.” Id. at 11 (unnecessary
capitalization and emphasis omitted). He says that his “actions have not
shown that probation has been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future antisocial conduct[.]”
Id. at 12. He asks us to reverse the revocation, contending that the evidence,
specifically relating to the incident where he took personal items from a
woman he had been driving in a hack/taxi, “is so tenuous as to connect [him]
with criminal activity.” Id. at 13; see also id. at 12 (“Where a probation
revocation is based on evidence that ‘so tenuously’ connects an appellant to
criminal activity, a probation revocation is ‘not predicated upon evidence of
sufficient probative value’ and must be vacated.”) (quoting Commonwealth
v. Griggs, 461 A.2d 221, 224 (Pa. Super. 1983)).
No relief is due on this basis. We have reviewed the thorough and well-
reasoned opinion issued by the Honorable Anne Marie B. Coyle of the Court of
Common Pleas of Philadelphia County. We conclude that Judge Coyle’s
opinion accurately and thoroughly disposes of the sufficiency claim raised by
Appellant. TCO at 5-14. Accordingly, we adopt her opinion as our own with
respect to this issue.
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In Appellant’s second issue, he asserts that the trial court “abused its
discretion by imposing an excessive sentence on a technical violation of
probation that did not take into sufficient consideration [his] rehabilitative
needs.” Appellant’s Brief at 15 (emphasis omitted). He says that “[d]rug and
[a]lcohol treatment, anger management classes, job training[,] and house
arrest would have served the rehabilitative needs of Appellant and protected
the community.” Id. at 17. He also avers that the sentence imposed
constituted “too severe a punishment. … There was no consideration of
[A]ppellant[’s] having potential employment at the airport. There was no
consideration of [Appellant’s] being referred to the rehabilitative services of
the probation department … for drug treatment, employment[,] and anger
management.” Id. at 14-15.
Appellant’s claim implicates the discretionary aspects of his sentence.
See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A
challenge to an alleged excessive sentence is a challenge to the discretionary
aspects of a sentence.”) (citation omitted). However, before reaching the
merits of this issue, we must determine if Appellant has preserved it for our
review. “Issues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Id. (citations omitted). Here,
Appellant only stated in his post-sentence motion that “[t]he sentence was
excessive[,]” and provided no further elaboration. See Post-Sentence Motion,
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J-S02011-21
3/13/20, at ¶ 11. He also does not contend that he presented this specific
claim at sentencing. As the Commonwealth aptly discerns,
[Appellant’s] sentencing claim is waived[] because it was never
presented to the [trial] court. There, he argued in his motion to
reconsider only that the sentence was somehow “excessive,”
without further explanation. His argument now — that supposedly
“[t]here was no consideration of [Appellant’s] having potential
employment at the airport. There was no consideration of
[Appellant’s] being referred to the rehabilitative services of the
probation department[,] such as referrals for drug treatment,
employment[,] and anger management” — is raised for the first
time on appeal. It is therefore waived.
Commonwealth’s Brief at 8 (internal citations omitted).2 We agree.
Nevertheless, even if not waived, we would ascertain no abuse of
discretion by the trial court in sentencing Appellant.
When reviewing sentencing matters, it is well-settled that:
[W]e must accord the sentencing court great weight as it is
in the best position to view the defendant’s character,
displays of remorse, defiance or indifference, and the overall
effect and nature of the crime. An appellate court will not
disturb the lower court[’]s judgment absent a manifest
abuse of discretion. In order to constitute an abuse of
discretion, a sentence must either exceed the statutory
limits or be so manifestly excessive as to constitute an
abuse of discretion. Further, a sentence should not be
disturbed where it is evident that the sentencing court was
aware of sentencing considerations and weighed the
considerations in a meaningful fashion.
Through the Sentencing Code, the General Assembly has enacted
a process by which defendants are to be sentenced. As a
threshold matter, a sentencing court may select one or more
options with regard to determining the appropriate sentence to be
____________________________________________
2
We also note that Appellant similarly made the bald allegation that his
“sentence was excessive” in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. See Rule 1925(b) Statement, 4/12/20, at ¶ 2.
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J-S02011-21
imposed upon a defendant. These options include probation, guilt
without further penalty, partial confinement, and total
confinement. In making this selection, the Sentencing Code offers
general standards with respect to the imposition of sentence which
require the sentence to be consistent with the protection of the
public, the gravity of the offense as it relates to the impact on the
life of the victim and on the community, and the rehabilitative
needs of the defendant. Thus, sentencing is individualized; yet,
the statute is clear that the court must also consider the
sentencing guidelines adopted by the Pennsylvania Commission
on Sentencing.
In considering an appeal from a sentence imposed following the
revocation of probation, [o]ur review is limited to determining the
validity of the probation revocation proceedings and the authority
of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing.
Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court’s decision will not
be disturbed on appeal in the absence of an error of law or an
abuse of discretion.
It is the law of this Commonwealth that once probation has been
revoked, a sentence of total confinement may be imposed if any
of the following conditions exist in accordance with Section
9771(c) of the Sentencing Code:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned;
or
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.[C.S.] § 9771(C).
The Commonwealth establishes a probation violation meriting
revocation when it shows, by a preponderance of the evidence,
that the probationer’s conduct violated the terms and conditions
of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future
antisocial conduct. [I]t is only when it becomes apparent that the
probationary order is not serving this desired end [of
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J-S02011-21
rehabilitation] the court’s discretion to impose a more appropriate
sanction should not be fettered.
Ahmad, 961 A.2d at 887-89 (most internal citations and quotation marks
omitted; some brackets added).
Judge Coyle cogently stated the rationale for the sentence she imposed.
It is apparent that she was mindful of the above-stated sentencing
considerations and weighed them carefully in sentencing Appellant. See TCO
at 14-18. She determined that “Appellant had amply established that
probation had been a futile rehabilitative vehicle. Zero deterrence of his anti-
social and criminal conduct had resulted.” Id. at 16. She also stated that she
“had thoroughly considered Appellant’s family and community ties, as well as
his rehabilitative needs when determining an appropriate sentence.” Id.
Accordingly, even if Appellant’s sentencing argument was properly preserved,
we would have no reason to disturb Judge Coyle’s sentence. Consequently,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Kunselman joins this memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/21
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Circulated 03/16/2021 09:24 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION -CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA CP-SI-CR-0002206- 2016
V.
SUPERIOR COURT
HASSAN WILCOX NO. 1121 EDA 2020
(A.K.A. ANDRE MONTGOMERY) FILED
NOV 16 2029
OPINION
Office of Judicial Records
Appeals,/Post Trial
COYLE, J. NOVEMBER 16, 2020
Appellant, Hassan Wilcox, as the above-named Defendant, by and through his appellate
counsel, seeks review of the Order of Sentence entered March 6, 2020, by the Honorable Anne Marie
B. Coyle, Judge of the Court of Common Pleas for the First Judicial District of Pennsylvania,
hereinafter referred to as "this Court." Appellant claimed that the Court had erred in finding
Appellant in violation of probation by apreponderance ofthe evidence and that the resulting
aggregate sentence of two (2) years to four (4) years of state supervised confinement followed by one
(1) year of probation, which had been entered following the revocation of probation supervision, had
been excessive. A fair review of the transcribed record reflected that Appellant's claims lacked
factual and legal merit.
I
1. FACTS AND PROCEDURAL HISTORY
On March 3, 2017, Appellant, Hassan Wilcox, reportedly born as Andre Montgomery,
entered anegotiated guilty plea to Insurance Fraud, Intent to Defraud' and Conspiracy', both down-
graded as misdemeanors of the first degree and was immediately sentenced to the agreed upon
concurrent term of five (5) years of reporting probation. All other charges, including the felony
offenses, were dropped by the prosecution.
Before accepting the negotiated guilty plea, this Court had duty conducted averbal and
written colloquy to insure Appellant's knowledge and voluntariness. To promote rehabilitation and
prevent recidivism, particularly in view of Appellant's reported drug and alcohol addictions and
criminal history, this Court ordered Appellant to comply with all recommended drug and alcohol
treatments; submit to random drug and alcohol screening; submit to random home and vehicle
checks for drugs and weapons; and to refrain from involvement with any associated person involved
in the drug trade. Appellant was directed to seek and maintain legitimate employment and pay fines
and costs.
Critically given Appellant's previous history, the Order of Sentence specifically prohibited
Appellant from having any contact with any illegal narcotics or weapons. Appellant was explicitly
directed not to reside in any household where firearms or illegal narcotics were located. At the very
least, Appellant was instructed to report to the probation department and comply with the rules and
1 18 Pa. C.S.A. §4117 §§ B4
218 Pa. C.S.A. §903
2
I
regulations set forth by the supervising Philadelphia Parole and Probation Department, He was duly
advised as to the potential consequences of non-compliance. No appeal was taken.
The GAGNON reports that had been prepared by the assigned probation officers reflected
that while under this Court's supervision, Appellant had routinely missed his probation
appointments, failed to pay his fines and costs, remained unemployed, and became verbally
combative and abusive towards his probation officers and engaged in illegal ingestion of marijuana.
On or about August 30, 2019, Appellant was arrested and was charged with Robbery, Theft by
Unlawful Taking, Receiving Stolen Property, Simple Assault, and Recklessly Endangering Another
Person {MC-5 I-CR-0024626-2019 }. 3 He had also been arrested in Delaware County for driving with
asuspended license an or about May 16, 2019.
On or about September 17, 2019, this Court was notified of Appellant's potential technical
and direct probations violations. Pending disposition of his open matters, and the appointment of
new counsel, Appellant's violation-of-probation hearing was regularly continued per defense request
from September 24, 2019 through January 10, 2020.
Following hearing held on January 10, 2020, Appellant was determined to be in technical
violation of probation at the very least due to testing positive for controlled substances and
repeatedly failing to report as directed to the probation department. Disposition and sentencing was
deferred pending the completion of pre-sentence report, amental health evaluation, and aforensic
intensive rehabilitative or "FIR" drug and alcohol evaluation. Appellant was permitted to remain out
of county custody pending evaluations and was assigned to house arrest with electronic monitoring.
3 This matter was dismissed for lack of prosecution on December 16, 2019.
3
I
He was directed to surrender to the house arrest program upon inspection and acceptance of his
household and compliance with all relevant conditions on January 28, 2020, As part of this process
Appellant had signed the house arrest authorization forms that once again acknowledged prohibition
of access to firearms or illegal narcotics particularly within his residence.
In the interim, when the House Arrest Unit investigators had arrived to set up the equipment
for monitoring, it was discovered that Appellant's, maternal aunt, with whom he had been residing,
while under probation, had continually possessed afirearm in that home. Appellant's maternal aunt
had been an employee of the District Attorney's Office of Philadelphia and had announced her
position when she had telephoned the assigned probation officer to complain about the custodial
removal of Appellant, known to her as her sister's son Andre Montgomery. This admitted fact had
constituted aflagrant violation of the conditions of probation.
Given the demonstrated conflict of interest, this case was referred to and accepted for
prosecution by the Commonwealth of Pennsylvania Office of Attorney General. Following an
additional evidentiary hearing held on March 6, 2020, revocation was deemed due. On that same day
after further hearing and upon thorough review of all sentencing factors, Appellant was sentenced to
concurrent terms of two (2) years to four (4) years of incarceration followed by one (1) year of
reporting probation allocated to each charge. All previously recommended rehabilitative conditions
were again unposed. Appellant filed aMotion to Reconsider Finding of Violation of Probation,
which was subsequently denied. A timely Notice of Appeal was filed, A Statement o£ Matters
Complained of on Appeal was filed on or about April 13, 2020.
II, ISSUES ON APPEAL
4
The Statement of Errors recited the following claims verbatim on appeal:
1. Counsel intends to raise aclaim that it was error to find defendant in
violation of probation by apreponderance of the evidence.
2. The sentence was excessive.
111. DISCUSSION
The scope of review in an appeal following asentence imposed after probation revocation is
limited to the validity of the revocation proceedings and the legality of the sentence imposed
following revocation. Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 790 (2005). In this
Commonwealth, the trial court's authority to impose aterm of probation has been set forth in the
following manner: Whenever any person shall be found guilty of any criminal offense by verdict of a
jury, plea, or otherwise, except murder in the first degree, in any court of this Commonwealth, the
court shall have the power, in its discretion, if it believes the character of the person and the
circumstances of the case to be such that he is not likely again to engage in acourse of criminal
conduct and that the public good does not demand or require the imposition of asentence of
imprisonment, instead of imposing such sentence, to place the person on probation for such definite
period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law
for the offense for which such sentence might be imposed. 61 P. S. §331.25.
Pennsylvania Rule of Criminal Procedure Rule 1409 Rirther provides; Whenever adefendant
has been placed on probation or parole, the judge shall not revoke such probation or parole as
allowed by law unless there has been ahearing held as speedily as possible at which Appellant is
present and represented by counsel and there has been afinding of record that the defendant violated
acondition of probation or parole .... See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
5
L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct, 2593, 33 L.Ed,2d 484 (1972);
Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973); Commonwealth v.
Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975).
.When imposing asentence of total confinement after aprobation revocation, the sentencing
court is to consider the factors set forth in 42 Pa.C.S. §9771. 4 Commonwealth v. Ferguson, 2006
PA Super 18, 893 A.2d 735, 737 (Pa. Super. 2006). Under 42 Pa.C.S. §9771(c), acourt may
sentence adefendant to total confinement subsequent to revocation of probation if any of the
following conditions exist: (1) the defendant has been convicted of another crime; or (2) the conduct
of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned;
or (3) such asentence is essential to vindicate the authority of the court. See also Commonwealth v.
Coolbaugh, 2001 PA Super 77, 770 A.2d 788 (Pa. Super. 2001).
Our appellate courts have repeatedly acknowledged the very broad standard that sentencing
4 §9771. Modification or revocation of order of probation
(a) General rule. -- The court may at any time terminate continued supervision or
lessen or increase the conditions upon which an order ofprobation has been imposed.
(b) Revocation. -- The court may revoke an order of probation upon proof of the
violation of specified conditions of the probation. Upon revocation the sentencing
alternatives available to the court shall be the saute as were available at the thne of
Initial sentencing, dire consideration being given to the time spent serving the order of
probation. [emphasis added.]
(c) Limitation on sentence of total confinement. —The court shall not impose a
sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit
another crime if he is not imprisoned; or
(3) such asentence is essential to vindicate the authority of the court.
1974, Dec. 30, P.L. 1452, No, 345, §1, effective in 90 days, Renumbered from 18 Pa.C.S.A. §1371 by 1980, Oct.
5, P.L. 693, No. 142, §401(a), effective in 64 days. 42 Pa,C.S.A. §977I. See also Pa.R.Crim.P. 1409.
6
courts must use in determining whether probation has been violated: "A probation violation is
established whenever it is shown that the conduct of the probationer indicates 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, 585 Pa. 408, 421, 888 A.2d 783,791
(2005); Commonwealth v. Burrell, 497 Pa. 367, 441 A.2d 744 (1982) citing Commonwealth v.
Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Brown, 503 Pa. 514,469 A,2d 1371,
13 76 (1983). The Commonwealth need only make this showing by apreponderance of the evidence.
Commonwealth v. A.R. 2010 PA Super 4,990 A.2d 1(Pa. Super. 2010).
Finally, under Pennsylvania law, achallenge to the validity of asentence is achallenge to its
legality. Commonwealth v. Isabell, 467 A.2d.1287 (Pa. 1983); Commonwealth v. Quinlan, 639 A.2d
1235 (Pa. Super. 1994), appeal granted, 659 A.2d 986 (Pa. 1995), appeal disrnissedas improvidently
granted, 675 A.2d 711 (Pa. 1996). If acourt does not possess statutory authorization to impose a
particular sentence, then the sentence is illegal and must be vacated. Commonwealth v. Thier, 663
A.2d 225, 229 (Pa. Super. 1995), appeal denied, 670 A.2d 643 (Pa. 1996). If no statutory
authorization exists for aparticular sentence, then that sentence is illegal and subject to correction.
Thi2L supra. An illegal sentence must be vacated. Commonwealth v. Kratzer, 660 A.2d 102,104
(Pa. Super. 1995), appeal denied, 670 A.2d 643 (Pa. 1996) citing Commonwealth v. Lee, 638 A.2d
1006 (Pa. Super. 1994).
In the instant matter, Appellant argued that it was erroneous to find Appellant in violation of
probation because apreponderance of evidence of Appellant's violating conduct had not been
presented. This claim lacked factual and legal merit.
7
"The Commonwealth establishes aprobation violation meriting revocation when it shows,
by apreponderance of the evidence, that the probationer's conduct violated the terms and conditions
of his probation and that probation has proven an ineffective rehabilitation tool incapable of
deterring probationer from future antisocial conduct." Commonwealth v. Ahmad, 2008 PA Super
271, 961 A.2d 884, 888--89 (2008) quoting Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.
Super 2007) (citation omitted). "[I]t is only when it becomes apparent that the probationary order is
not serving this desired end [of rehabilitation] the court's discretion to impose amore appropriate
sanction should not be fettered." Commonwealth v. Distefano, No. 581 EDA 2018, 2019 WL
6492588, at *4 (Pa. Super. Ct. Dec. 3, 2019) quoting Commonwealth v. Ahmad, supra;Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super.2007) (citation omitted).
As abundantly evidenced during the violation hearings held on January 10, 2020, January 24,
2020 and March 6, 2020, Appellant's repeated and multi-faceted supervision violations had
warranted revocation. Probation supervision had been easily proven to have been an ineffective
rehabilitation tool incapable of deterring Appellant from future antisocial conduct. Appellant's
overall reported conduct had easily demonstrated his complete disregard for authority of the trial
court,
On January b, 2020 the admitted, incorporated and recorded GAGNON II summaries had
demonstrated that while under this Court's directed probation supervision, Appellant had repeatedly
failed to report at least ten times to his assigned probation officer. He had admitted to ingestion of
marijuana and subsequently tested positive for this same illegal controlled substance to which had
previously confessed to suffering from addiction. He had been arrested in two different counties for
3
various criminal offenses. Wanted cards had also been issued at least once due his chronic
disappearances. He responded to probation directives by becoming frequently combative and
verbally abusive toward the designated officers. His excuses for his repeated non-compliance were
disingenuous.
As to the arrest warrant docketed in Delaware County, Appellant had been charged with
Driving While Operating Suspended or Revoked Driver's License on May 16, 2019. Notably, at the
time of his arrest in Delaware County, Appellant had not been given permission from the assigned
probation officer to leave Philadelphia County, As to the arrest on September 16, 2019 docketed in
Philadelphia under MC-51-CR-0024626-2019, Appellant had been charged with Robbery-Inflicting/
Threatening Bodily Injury and related charges. He had remained unemployed and had not been
making minimally due payments toward court mandated fines and costs.
On January 10, 2020, after full hearing wherein technical violations were largely admitted
and before Appellant's connection to the District Attorney's Office of Philadelphia employee became
known, this Court had determined that Appellant had violated the conditions of his probation based
upon presentment of apreponderance of evidence and had summarized the preceding thorough
evaluation of all circumstances known then to date as follows:
THE COURT: Mr. Wilcox comes backs before the court due to reported
violations of his probation and/or parole. A detainer was originally lodged due to the
fact that he was arrested in Philadelphia under docket number MC-51-CR-002462 of
2019. Charges of robbery and other related offenses. A detainer was lodged on
September 17th of 2019. However, on December 16th, 2019, apparently the matter was
dismissed for lack of prosecution, Commonwealth was not ready. So the detainer was
lifted.
However, Mr. Wilcox apparently also had aDelaware County warrant outstanding and
he was instructed to bring proof that that matter was resolved. And he failed adrug test
9
and claimed that he was using marijuana while in custody on the detainer. And he was
instructed to bring proof of employment. Prior to the warrant and the detainer being
lodged....
Ms. Fairman, are you handling Mr. Wilcox?
MS. FAIRMAN: Iam, your Honor.
THE COURT: Okay.
Prior to the detainer being lodged for the then open case of robbery, Mr. Montgomery
kept missing appointments: August 23rd, October 24th, November 26th, December
27th. And into the year 2019: January 28th, January 30th, May 9th, May 21 st, June 20th,
August 19th. The arrest warrant relative to Delaware County was for driving while
suspended license. He wasn't supposed to be leaving Philadelphia County. Whathe was
doing there, driving without alicense, is beyond my comprehension. And had not made
regular payments towards fines and costs as directed.
(N.T., 01/10/2020, pp. 34).
-
Following the initial probation hearing on January 10, 2020, concerning Appellant's multi-
formed probation violations, this Court directed Appellant's assignment to the house arrest
supervision with electronic monitoring with increased supervision as required by this division of the
Adult Probation and Parole Department in lieu of county custody. He was permitted to subsequently
surrender to that program to enable non-custodial inspection and evaluation of his household and to
demonstrate compliance with the probation house-arrest rules. Pre-sentence investigations, mental
health and drug and alcohol evaluations were also ordered. Appellant failed the resulting drug test.
Pending evaluations, this Court was notified by the Adult Probation and Parole Department
House Arrest-Electronica Monitoring Program officials of Appellant's additional violation and
resulting custodial confinement following Court ordered inspection ofAppellant's household. This
inspection revealed the presence of afirearm reportedly owned by Appellant's maternal aunt with
whom Appellant had been living with while under this Court's supervision and well after
10
acknowledging zero tolerance policy of access to firearms directed by this Court and by the probation
department. This Court was further notified that the maternal aunt who had been involved was an
active employee of the District Attorney's Office of Philadelphia and that this aunt had directly
contacted the assigned probation investigators to complain about Appellant's naturally resulting
confinement following discovery of the blatant violation.
This Court notified all parties and counsel of the additional violation report and scheduled a
hearing to evaluate the reported violation and to determine the extent of conflict of interest. This
evidentiary hearing evidence had been introduced that revealed Appellant's flagrant defiance of the
Order of Sentence and consistent probation department directives. Appellant had been continually
residing in ahousehold while under this Court's supervision household where firearms had been
kept.
During this evidentiary hearing held on January 24, 2020, the assigned assistant district
attorney readily agreed to avoid any appearance of impropriety by referring representation of the
Commonwealth of Pennsylvania to the Office of Attorney General. Further evidentiary hearing was
subsequently scheduled for March 6, 2020 pending transfer of representation and completion of
evaluations.
On March 6, 2020, the assigned Deputy Attorney General Christopher Phillips represented
the Commonwealth of Pennsylvania. Following this Court's announced thorough recitation of
preceding events, additinal competent and compelling evidence was presented concerning
Appellant's violative conduct that had led to his initial detention and arrest for robbery and assault
and related offenses while under this Court's probationary supervision on August 30, 2019.
I
On March 6, 2020, Philadelphia Police Officer Joseph Porretta testified that he was working
as auniformed patrol officer and assigned to respond to aradio call of robbery at adelicatessen
located within the 6100 block of Woodland Avenue in Philadelphia about 5:20 p.m. on August 30,
2019. There he said hat he had met with the complainant who while sobbing had excitedly reported
being physically assaulted by Appellant. She told the officer that she had known Appellant as
"Andre" and had utilized adhis services hack taxi driver, She reported that following an argument
over payment for ataxi ride and sneaker reimbursement, she ran inside the Chinese store. She said he
had followed her, struck her, tussled with her and grabbed her cell phone, sneakers and left with her
belongings in his automobile which she had described accurately.
Officer Porretta testified that after speaking to the victim, he viewed the supporting video
footage from multiple cameras inside the deli store. The authenticated videos that the officer had
viewed were introduced into the record. They unequivocally demonstrated Appellant's violent
assault and forcible taking of personal items. Once the victim's version of events was confirmed, the
officer had submitted flash information to fellow law enforcement and Appellant, who had identified
himself as Andre Montgomery, was identified as the perpetrator and promptly arrested.
Southwest Detective Steven Farley testified that as art of his investigation into the robbery he
went to eh Chinese store to retrieve the video feeds. Along the way he observed Appellant's vehicle
parked in the area and acell phone in the vehicle. He had obtained aSearch Warrant and retrieved
the complainant's cell phone and returned it to her. He reported that the Appellant had provided a
voluntary statement after Miranda warnings had been provided to afellow investigator. He submitted
all data and the criminal charges were lodged. At the end of this additional evidentiary hearing, this
12
Court concluded that the cumulative evidence to date had amply demonstrated that Appellant had
committed arobbery which violated the terms and conditions of this Court's supervision. As this
Court stated:
THE COURT: "...This Court was advised that there were violations of the
terms of probation stemming initially from the reported positive drug tests entered on
December 30th, 2419, Januaiy 10th, 2020, positive for THC, marijuana. ,.
Okay. Well, Ifind that the evidence does demonstrate that he committed a
robbery, so it violates the terms and conditions of my sentence. Ithink the evidence was
fairly clear. He strong-armed avery tiny individual. Mr. Montgomery, Mr. Wilcox is a
very large individual, and the menacing manner in which he approached the
complainant, albeit whether or not he thought he was justified, he was not, and he
physically forced the removal of the cell phone. Ican see it with my own eyes as to what
he did. And contextually, his staffed excuses of his behavior do not comport with the
reporting, an immediate reporting of same.
So from all of the facts and direct and circumstantial evidence presented before me, I
find that that is violative behavior while under my supervision.
Now, placing that also as one more layer of violating behavior that has been presented
before this Court -- well, if memory serves me correctly, Ihave all told to date, Ihave
positive, illegal narcotics being used while under my supervision. That's violating
behavior. Ihave aperiod of time where the defendant had been on wanted cards,
violating behavior. Ihave the defendant's intentional defiance of the Court's order and
admitted as the same when he signed the firearm policy not to reside in any location
with afirearm and averring that there were no firearms in that place of residence, and he
lived there quite some time with afirearm in that residence. As well as the testimony
presented to me to date.
Ialso find that there was violating behavior in that it's not the first time I'm seeing or
hearing about Mr. Wilcox's angry outbursts. In fact, the officer, his probation officer,
reported same in his dealings with her. And he was given multiple chances to try to
resolve his behavior, even when there were discussions about not reporting as he was
supposed to do and he did not. He was often verbally combative with his probation
officer to the point that it was noted within the Gagnon summaries, much concerm,about
his violative -- what's the right word -- his eruptions of anger, for lack of abetter term.
And that's with his probation officer.
All right. I'm going to make part of the record all of the respective hearings that I've had
with respect to this defendant thus far, and I'm revoking your period of probation."
13
(N.T., 03/06/2020, pp. 6, 37-40).
As Appellant's Statement of Errors had conceded, preponderance of the evidence was the
proper standard of proof that was to applied in aprobation violation hearing. Appellant disagreed
that this standard of proof had been met. The cumulative evidence that had been introduced
throughout this process, however, easily defeated this claim. This Court cannot be found in error for
applying that exact standard in finding that Appellant had violated the terms and conditions of his
probationary supervision upon review of Appellant's reported myriad and multi-faceted forms of
violating conduct. Sufficient evidence soundly supported this Court's factual and legal
determinations. Thus, no abuse of discretion had occurred.
Next, Appellant broadly argued that the resulting sentence following due revocation had been
excessive. This argument as so simply stated failed to present areviewable claim. Pennsylvania's
sentencing system is based upon individualized sentencing, and when viewed in Coto, the record
clearly indicated that this Court had rendered an individualized and reasonable penalty after due and
stated consideration of all relevant sentencing factors.
Appellant had entered a negotiated guilty plea to the crime of Insurance Fraud and
Conspiracy, graded as amisdemeanor of the first degree, which carried amaximum statutory penalty
of five (5) years of incarceration. Thus, Appellant had been sentenced well under the maximum
sentence allowed under the law. Because Appellant had deliberately and repeatedly violated the
terms of probationary supervision, revocation was justified and the resulting sentence could have
equaled the amount of time originally available.
Moreover, the length ofa VOP sentence "rests peculiarly within the discretion of the VOP
14
judge." Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1131 n.12 (2007). "[S]entencing
guidelines do not apply to sentences imposed as aresult of probation or parole revocations."
Commonwealthv. Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). Instead, aVOP sentencing court
"is limited only by the maximum sentence that it could have imposed originally at the time of the
probationary sentence." Commonwealth v. Pasture, 630 Pa. 440, 107 A.3d 21, 27-28 (2014).
The rationale for this difference is that a"convicted defendant released into the community
under such control of the sentencing judge, who violates the terms of his release(,] thereby betrays
the judge's trust." Reaves, supra at 1131 n.12. Further, "since the defendant has previously appeared
before the sentencing court, the stated reasons for arevocation sentence need not be as elaborate as
that which is required at initial sentencing." Pasture, supra at 28. See Commonwealth v. Presley,
2018 PA Super 207, 193 A,3d 436, 445--47 (2018), appeal denied, 201 A.3d 154 (Pa. 2019)
In this case, asplit sentence of state supervised confinement followed by probation was imposed
which had been computed to be afraction of the originally available maximum period of five (5) years of
incarceration. Therefore, despite Appellant's argument to the contrary., the imposition of this sentence
had not been illegal and had been imposed within the statutory power of the court. Confinement had
been imposed only after Appellant had violated probation with multiple failed drug tests, refused
treatment and demonstrated many forms of overall non-compliant behavior. Probationary supervision
had been rendered to be most ineffective as arehabilitative or crime deterrent tool.
Moreover, the imposition of confinement upon revocation of Appellant's probation was not a
second punishment for his criminal act, but was an integral element of the original conditional
sentence. Consequently, this Court was well within its statutory power to sentence Appellant to a
is
term of confinement of two to four years, with credit for time served, plus one year of probation
upon revocation of his probation, Appellant's broad claim of illegality because it was "excessive"
had no merit. See Commonwealth v. Carver, 923 A.2d 495,498 (Pa. Super. 2007) (acknowledging
technical violations, where flagrant and indicative of an inability to reform, can support revocation
and imprisonment). Commonwealth v. Ortega, 2010 Pa. Super 87,112,995 A.2d 879,884 (2010).
The Superior Court of Pennsylvania has repeatedly acknowledged the very broad standard
that sentencing courts must use in determining whether probation has been violated: aprobation
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. See Commonwealth v. Ortega, 995 A.2d 879,
886 (Pa. Super. 2010). In the instant matter, Appellant had amply established that probation had
been afutile rehabilitative vehicle. Zero deterrence of his anti-social and criminal conduct had
resulted.
Contrary to defense claim, this Court had thoroughly considered Appellant's family and
community ties, as well as his rehabilitative needs when determining an appropriate sentence. All
relevant data gleaned from the specifically referenced and incorporated presentence investigative
reports and mental health assessments had been analyzed.
This Court had succinctly stated sound rationales for imposition of sentence. Relevant
sentencing factors that had been evaluated had been recited as follows:
THE COURT: "... All right. Well, the best predictor of how someone is going
to behave is viewing the conduct that preceded that. My view based upon the review of
your conduct: thus far is that you don't follow the rules unless you choose to or you like
16
them. Because your history reflects exactly that when things don't go your way, you react
potentially violently and angrily. You may have felt that
you were justified in taking the phone off of that girl because of your prior history with
her. You know, Idon't doubt that there was ahistory with her. But that's not how we
conduct ourselves. And the problem is that to date, that's exactly how you've conducted
yourself.
Istart with your criminal record going back to at least 1997, reflects convictions of
dealing narcotics on multiple occasions, theft by receiving stolen property, other
dealings of narcotics, possession of arms, convicted of acrime of violence, going
through to 2003. A conviction of assault, 1999. Conviction of another assault, 2003,
Conviction of unauthorized use of auto, 2004. And there's amyriad of other arrests
worked in there that either are negotiated out or
withdrawn. And then the case before me which involves falsehood to get money. If I
remember correctly, Ithink it was aslip and fall from an insurance company.
And while you were in custody in the state, sir, you apparently had difficulty behaving
yourself. Your infractions include four misconducts, infractions ranging from refusing to
obey an order to fighting, punishments ranging from 15 days to 60 days disciplinary
instructions. And that's when you were in state confinement.
Most notably, sir, you are correct, you are 42 years old, or 43 years old at this point, and
you should be well beyond this activity and, yet, you're not. Your juvenile records
account for additional juvenile adjudications and commitment to Glen Mills or drug
dealing in effect. So there were-efforts to rehabilitate you early on, sir.
Your ingestion of narcotics you alleged began at the age of 23, occasionally drinking on
the side. Okay. You initially tried to claim much of your record wasn't actually you.
Well, that wasn't the truth. So, you have difficulties with controlling your temper and
telling the truth and respecting other people's property rights.
You displayed complete disrespect to this Court. Icertainly did not appreciate after
giving you the opportunity not to have adetainer and staying in custody, coming to find
out that here you had been lying to the Probation Department all the way through. And
frankly, the Probation Department is the arm of this Court. And Ialso did not appreciate
the efforts extended on your behalf once that bit of information regarding the firearm
was revealed.
So each of those respective technical violations to date that seem to take on lives of their
own reflect to this Court that you are arisk of recidivism, that the authority of the Court
needs to be redeemed, and that you need to be held accountable for your actions.
So, here's what we're going to do -- Ijust want to get the right count here..."
17
I
(N.T., 03/05/2020, pp. 49-52).
In short, the transcribed record abundantly established that Appellant had not borne his
burden of proving that any abuse of sentencing discretion had occurred or that he had received an
illegal sentence,
IV. CONCLUSION
In summary, this Court carefully reviewed the entire record and found no harmH,
prejudicial, or reversible error had existed. For the reasons set forth above, the Order of Sentence that
had been imposed following his repeated violations of probation should be affirmed.
18