Com. v. Godson, D. ( 2018 )

J-S71034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DESMOND GODSON,
Appellant No. 1589 EDA 2016
Appeal from the Judgment of Sentence May 19, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0011013-2010
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED JANUARY 19, 2018
Appellant, Desmond Godson,1 appeals from the order of restitution
imposed at his violation of probation hearing, as based on inadmissible
hearsay evidence. The revocation court agrees, and asks this Court to vacate
the order of restitution. The Commonwealth is not opposed. Accordingly, we
vacate the order of restitution and remand for further proceedings.
In the underlying case, Appellant entered a guilty plea to aggravated
harassment by prisoner, and received a sentence of not less than six nor more
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s surname is alternately spelled “Godson” and “Godsen” in the
record before us. We have amended the caption to use the predominant
spelling, “Godson.”
J-S71034-17
than twenty-three months’ incarceration, followed by two years of probation,
including requirements for mental health treatment. This Court affirmed.2
Appellant failed to comply with various requirements of probation,
including the failure to complete several programs of mental health treatment.
Subsequently, in the course of a violation of probation hearing, the revocation
court heard testimony from the director of a mental health treatment facility,
Robert Beck, that his staff had informed him that Appellant broke several
windows, apparently in an effort to escape.3 The court found a violation of
probation, for numerous reasons, re-sentenced Appellant, and, based on Mr.
Beck’s testimony, also imposed a condition of restitution on Appellant for the
broken windows. This timely appeal followed.4
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2
For a more detailed history of the case, see Commonwealth v. Godson,
145 A.3d 790 (Pa. Super. filed April 25, 2016) (unpublished memorandum).
3
The transcript of the revocation of probation hearing is not included in the
electronic record presented to us for review. We could find Appellant’s issue
waived on this basis. However, several related docket entries confirm that
the hearing took place on the date specified, (May 19, 2016), and the court
imposed sentence. Additionally, there is no dispute about the fact of the
hearing. Rather, both parties and the presiding judge agree on the facts at
issue. (See Appellant’s Brief, at 7; Commonwealth’s Brief, at 2-4). The judge
and the parties also agree on the recommended disposition. (See Trial Court
Opinion, 1/13/17, at 4; Commonwealth’s Brief, at 5). Accordingly, in the
interest of judicial economy, we will accept the statement of facts as presented
by the presiding judge, and agreed to by the parties, and decide the appeal
on the legal merits.
4
Both Appellant and the trial court complied with the requirements of
Pennsylvania Rule of Appellate Procedure 1925. However, counsel for
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J-S71034-17
Appellant presents one question for our review:
[Whether] the trial court committed error at the [violation
of probation] hearing when it ordered the Appellant to pay
restitution when: (A) said restitution was ordered to be paid to an
individual who was not a complaining witness in the underlying
case; [and] (B) said restitution was based entirely upon hearsay
evidence[?]
(Appellant’s Brief, at 6) (unnecessary capitalization omitted).
“We review a sentence imposed following a revocation of probation for
an error of law or an abuse of discretion.” Commonwealth v. Flowers, 149
A.3d 867, 873 (Pa. Super. 2016) (citation omitted). “[H]earsay is not
admissible at a [revocation] hearing absent a finding of good cause for not
allowing confrontation.” Commonwealth v. Allshouse, 969 A.2d 1236,
1241 (Pa. Super. 2009) (citing Commonwealth v. Kavanaugh, 482 A.2d
1128, 1130–31 (Pa. Super. 1984)); see also Gagnon v. Scarpelli, 411 U.S.
778 (1973). Here, the trial court expressly notes that it made no finding as
to good cause. (See Trial Ct. Op., at 4). On independent review, we conclude
that the revocation court improperly accepted the hearsay testimony of Mr.
Beck about the breakage of the windows and the amount of the resulting
damages. Accordingly, remand is required.
Judgment of sentence vacated. Case remanded for new proceedings
consistent with this decision. Jurisdiction relinquished.
____________________________________________
Appellant failed to comply with Pa.R.A.P. 2111(d) (requiring counsel to append
statement of errors to Appellant’s brief).
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J-S71034-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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