Com. v. Camp, T. ( 2018 )

J-S19024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEK CAMP :
:
Appellant : No. 1694 EDA 2017
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010232-2011
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 20, 2018
Appellant Tyreek Camp appeals from the judgment of sentence entered
following a violation of his probation (VOP). He contends the evidence was
insufficient to establish a probation violation and that his sentence was
excessive. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op. at 1-5. Briefly, Appellant was originally sentenced
to two-and-a-half to five years’ imprisonment followed by two years’ probation
for carrying a firearm without a license1 and a consecutive sentence of three
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6106(a)(1). The maximum sentence for a third-degree felony
is seven years’ imprisonment. 18 Pa.C.S. § 1103(3).
J-S19024-18
years’ probation for carrying a firearm on the public streets or property of
Philadelphia.2 The court held a VOP hearing on October 11, 2016, after which
the court found Appellant violated his probation. Following a presentence
investigation, on December 16, 2016, the court sentenced Appellant to one to
two years’ imprisonment for carrying a firearm without a license and a
consecutive five years’ probation for carrying a firearm on the public streets
or property of Philadelphia.
On December 21, 2016, Appellant filed a motion to reconsider his VOP
sentence, which challenged the weight and sufficiency of evidence.
Appellant’s Post-Sentence Mot., 12/21/16, at 1-2 (unpaginated). Appellant’s
motion did not challenge the discretionary aspects of his sentence or contend
that the trial court failed to comply with 61 Pa.C.S. § 6138, also known as Act
122, which governs recommitment following a violation of parole. The court
denied Appellant’s post-sentence motion on December 23, 2016.
Following reinstatement of his direct appeal rights, Appellant appealed
from the judgment of the VOP sentence, and timely filed a court-ordered
Pa.R.A.P. 1925(b) statement, which challenged, among other things, the
court’s imposition of “consecutive, aggravated range sentences.” Pa.R.A.P.
1925(b) Statement, 1/31/17.
____________________________________________
2 18 Pa.C.S. § 6108. The maximum sentence for a first-degree misdemeanor
is five years’ imprisonment. 18 Pa.C.S. § 1104(1).
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Appellant raises the following issues in his brief:
1. Should [Appellant] be awarded an arrest of judgment on all
charges as there is insufficient evidence to sustain that a technical
violation of probation occurred. The Commonwealth did not prove
that [Appellant’s] actions rose to the level of assaultive behavior.
2. Should [Appellant] be awarded a new sentencing hearing as the
Court imposed a sentence for a technical violation of probation
without consideration of sentencing guidelines, the State Parole
Board Guidelines, or other relevant sentencing factors.
Appellant’s Brief at 4.
We summarize Appellant’s arguments for both of his issues. He
maintains that his statements, “Shit’s bout to go down” or “This shit just got
real,” were made while he “was consumed by transitory anger.” Id. at 9. He
explains that he was present at the court (to support his half-brother, who
was the defendant), when he witnessed his mother’s arrest.3 Id. at 6, 9.
Further, Appellant notes, he was present when the court set his mother’s bail
at $1 million and was taken into custody. Id. at 6, 9. Appellant maintains
that at the bail hearing, a police officer pushed him away when he attempted
to approach his mother. Id. at 9-10. Appellant also claims that standing at
the elevator, as discussed in the trial court opinion, “is not physically or
verbally assaultive.” Id. at 10.
____________________________________________
3 Appellant’s mother was disrupting the trial, so the court had ordered her to
stay at least 300 feet away from the courthouse. Trial Ct. Op. at 3.
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With respect to his sentencing challenge, Appellant contends for the first
time on appeal that the trial court violated 61 Pa.C.S. § 6138(d)(3)(i)4 by
sentencing him to a term of imprisonment exceeding six months.5 Id. at 11.
Accordingly, Appellant believes he is entitled to a new sentencing hearing. Id.
at 12.
We state the standard of review for a challenge to the sufficiency of
evidence for a technical probation violation:
A challenge to the sufficiency of the evidence is a question of law
subject to plenary review. We must determine whether the
evidence admitted at trial and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
elements of the offenses. A reviewing court may not weigh the
evidence or substitute its judgment for that of the trial court.
____________________________________________
4 This Section provides:
(d) Recommitment to correctional facility.—A technical
violator recommitted to a State correctional institution or a
contracted county jail under subsection (c) shall be recommitted
as follows:
...
(3) Except as set forth in paragraph (4) or (5), the parolee
shall be recommitted for one of the following periods, at
which time the parolee shall automatically be reparoled
without further action by the board:
(i) For the first recommitment under this subsection,
a maximum period of six months.
61 Pa.C.S. § 6138(d)(3) (emphasis added).
5 The Commonwealth elected to not argue that Appellant waived the issue.
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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. 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. In order to uphold
a revocation of probation, the Commonwealth must show by a
preponderance of the evidence that a defendant violated his
probation. The reason for revocation of probation need not
necessarily be the commission of or conviction for subsequent
criminal conduct. Rather, this Court has repeatedly acknowledged
the very broad standard that sentencing 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. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citations,
quotation marks, and brackets omitted).
With respect to assaultive behavior, in Commonwealth v. Simmons,
56 A.3d 1280 (Pa. Super. 2012), this Court found persuasive the reasoning of
the Commonwealth Court in Malarik v. Pa. Bd. of Prob. & Parole, 25 A.3d
468, 470 (Pa. Cmwlth. 2011):
the Commonwealth Court[] has long recognized that assaultive
behavior is broader than the crime of assault for purposes of
revocation of parole[.]
Although the [Board of Probation and Parole’s] regulations require
that parolees refrain from assaultive behavior, the regulations do
not provide a definition of assault. However, the Commonwealth
Court recognizes assaultive behavior encompasses a broader
category of actions than would the crime of assault, and thus
actions that would not constitute a crime may nonetheless be
sufficient grounds for revocation of parole.
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J-S19024-18
Moreover, in the context of parole violations, assaultive behavior
is defined under the ordinary dictionary definition of assault. The
Commonwealth Court has also reached such a conclusion in the
absence of specific testimony that the victim was, in fact, in
apprehension of bodily harm.
Simmons, 56 A.3d at 1284 (citations, formatting, ellipses, quotation marks,
and original brackets omitted). The Simmons Court applied the above
rationale for revoking parole to affirm a finding of assaultive behavior that
resulted in the revocation of the defendant’s probation. Id. at 1285. We add
that the dictionary definition of assault is “a violent attack with physical means
[or] nonphysical weapons,” or “an apparently violent attempt or a willful offer
with force or violence to do hurt to another without the actual doing of the
hurt threatened.” Webster’s Third New International Dictionary 130 (1986).
With respect to Appellant’s case, after careful review of the parties’
briefs, the record, and the decision by the Honorable Leon W. Tucker, we
affirm Appellant’s sufficiency challenge on the basis of the trial court’s
decision. See Trial Ct. Op. at 5-6.
We turn to Appellant’s sentencing challenge under 61 Pa.C.S. § 6138,
which is entitled “Violation of terms of parole.” 61 Pa.C.S. § 6138. We need
not resolve whether Appellant’s argument is a preserved challenge to the
discretionary aspects of his sentence or a challenge to the legality of his
sentence because Section 6138 does not apply: Appellant did not violate the
terms of his parole. As Appellant himself recognized, he violated the terms of
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J-S19024-18
his probation—not parole. Appellant’s Brief at 7-8. Probation is not identical
to parole, as the Pennsylvania Supreme Court explained:
a court faced with a violation of probation may impose a new
sentence so long as it is within the sentencing alternatives
available at the time of the original sentence. In contrast, a court
faced with a parole violation must recommit the parolee to serve
the remainder of the original sentence of imprisonment, from
which the prisoner could be reparoled.
Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (citations
omitted). Appellant cannot argue he is entitled to relief based on a statute
governing parole.
Judgment of sentence affirmed.
Judge Shogan joins in this memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/18
-7-
0044_Opinion
Circulated 03/29/2018 08:44 AM
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP-51-CR-0010232-2011
PENNSYLVANIA
:FILED
v.
oc: 112011
TYREEK CAMP, Office of.Jud1c1al Records SUPERIOR COURT
Appellant Appeflls/Post Trial
1694 EDA 2017
OPINION
LEON W. TUCKER, J. October 10, 2017
I. Procedural History
This matter comes before the Superior Court of Pennsylvania following the Judgment of
sentence imposed upon Tyreek Camp (hereinafter "Appellant") for a technical violation of
probation due to assaultive behavior. On April 25, 2012, the Honorable Diana Louise Anhalt
convicted Appellant of two violations under the Uniform Firearm Act (VUF A)· carrying a
firearm without a license; 1 and carrying a firearm on a public street 2
On June 1, 2012, Judge
Anhalt sentenced Appellant to two and half to five (2 Yi - 5) years incarceration for VUFA
§6106, and three (3) consecutive years probation for VUFA §6108. On July 28, 2016,
Appellant was released from pnson after serving the full five year sentence for VUF A §6106
The violation of probation ("VOP") occurred from events happening on August 15, 2016 and
August 17, 2016 before Judge Anhalt. Unbeknownst to her at the time. Appellant was on
Judge Anhalt's probation. To avoid impropnety or the appearance of impropriety by Judge
CP-51-CR-0010232-2011 Comm a Camp Tyreek
Opinion
1
2
18 Pa.C.S. §6106 1111111111111111111111111
18 Pa. C.S. §6108 8014577081
Anhalt the sentencing judge, jurisdiction was relinquished to the Honorable Judge Leon W
Tucker, Supervising Judge of the Philadelphia Court of Common Pleas, Criminal Division
On October 11, 2016, this Court found Appellant violated the terms of his probation On
December 16, 2016, after presentence reports, Appellant was sentenced to one to two (l-2)
years incarceration on VUF A §6106 followed by five (5) years probation on VUF A §6108.
On December 21, 2016, Appellant filed a Motion for Reconsideration of VOP sentence. The
Motion for Reconsideration ofVOP sentence was denied on December 23, 2016. On January
18, 2017, Appellant filed a Notice of Appeal that was quashed on March 13, 2017 due to an
untimely filmg. On March 19, 2017, Appellant filed a Post Conviction Relief Act (''PCRA '')3
petition requesting his direct appellate rights be remstated nunc pro lune due to several
reasons including ineffective assistance of counsel for filing an untimely Notice of Appeal
On May 16, 2017, this Court granted the PCRA petition and reinstated Appellant's
appellate rights, pursuant to agreement made with the Commonwealth, nunc pro tune. The
Appellant filed a Notice of Appeal to Superior Court on May 19, 2017. On June 19, 2017,
this court issued an Order directing Appellant to file a concise statement of matters
complained of on appeal, pursuant to Pa.R A.P. 1925(b). On July 7, 2017 Appellant timely
filed a statement of matters comp lamed of on appeal (hereinafter referred to as "l 925(b)
Statement"). In the 1925(b) Statement, the Appellant claimed verbatim·
1. That the Defendant should be awarded an arrest of judgment on all charges as there is
insufficient evidence to sustain that a technical violation of probation occurred. The
Commonwealth did not prove that Defendant's actions rose to the level of assaultive
behavior.
2. In the alternative, the Defendant must be awarded a new hearing as the greater weight
of the evidence does not support revocation of probation. The greater weight did not
3
42 Pa. Cons Stat. §§9541-9546
2
support any proposition findmg the Defendant engaged in assaultive behavior The
revocation was based on speculation, conjecture, and surmise.
3. The Defendant must be awarded a new sentencing as the Court imposed a sentence
for a technical violation of probation without consideration of sentencing guidelines,
the State Parole Board Guidehnes, or other relevant sentencing factors
II. Facts
On August 15, 2016, Appellant and his mother Fatima James (hereinafter, "James") were
attending Shaheed Kelly's (hereinafter, "Kelly") trial where Kelly was charged with
homicide. N.T., 10/11/2016 at 15. Kelly is Appellant's brother. Id Judge Anhalt presided
over Kelly's trial. Id at 14. During the proceedings, Judge Anhalt banned James from
attending the remainder of the trial because of her disruptive behavior. Id. at 18 Judge
Anhalt also issued an Order requiring James stay 300 feet away from the courthouse and
prohibiting her from communicating with any Jurors whatsoever. James left the courtroom
and proceeded to scream and yell in the hallway NT., 10/11/2016 at 19. According to Judge
Anhalt's stipulated testimony, after the jury was excused for the day, James was brought to
the courtroom, in the custody of the shenff Commw Ex. l , Anhalt's Test., at 1. Judge
Anhalt conducted a brief hearing and set James' bail. Id James continued to be disruptive,
and had to be carried to a holdmg cell by the sheriff. Id Appellant stood up angnly and
began shouting something to the effect of "Shit' s bout [sic] to go down" or "This shit Just got
real." Commw. Ex. 1, Anhalt's Test, at 1.
According to the testimony of Highway Officer James Boone (hereinafter, "Boone"),
Appellant made threatening statements after his mother's arrest for violatmg Judge Anhalts
Order. Commw. Ex. 2, Boone's Test., at l Boone testified that Appellant tried to force his
way past the sheriffs to get to his mother and had to be pushed back Id. According to the
stipulated testimony of Boone, he pushed the Appellant back. Id. Appellant responded by
3
saying "You better get your hands off of me if you know what's best for you." Id. "Do you
know who I am? Y'all [sic] can google search me, I'm a mother fucking monster. If my
brother goes down, I'm taking y'all [sic] down with me. This slut's about to get real" Id.
Officer Boone informed Appellant that he was not allowed back in the building. Id
Appellant responded by saying "there isn't anyone in that building who can stop me." Id
On August 17, 2017 while the Jury was dehberating, Judge Anhalt took a break and went
4
out to the public elevator Commw. Ex. 1, Anhalt's Test, at l As Judge Anhalt arnved at
the elevators, Appellant followed her and also pressed the down button Id Appellant then
"turned his body to face the Judge and stared at her as she waited for the elevator" Id. Judge
Anhalt felt uneasy and did not want to get in the elevator with Appellant alone so she walked
back towards the courtroom. Id As she began walking, she heard the elevator amve. Id
Judge Anhalt went to get a police escort to go with her downstairs. Id As the officer was
escorting her, she noticed that Appellant was still standing by the elevator after it left. Id
Appellant never got on the elevator that came while he and Judge Anhalt were waiting. Id A
police officer escorted Judge Anhalt from the gth floor to the 6th floor Id Judge Anhalt took
an elevator from the 6111 floor to the l " floor and reported the incident to the Philadelphia
Sheriffs Office. Id. Judge Anhalt subsequently learned that Kelly is Appellant's brother and
Appellant is on her probation Id
Guy D' Andrea, the Assistant District Attorney on Kelly's case, the homicide case
which Judge Anhalt was presiding over, testified that Judge Anhalt's demeanor on August
17, 2016, after the encounter with Appellant, was "mcredibly shaken, clearly scared, and
4
Judge Anhalt used the pub! ic elevator as most judges and employees in the courthouse do. As
of August 4, 2016, the Judicial and employee elevator have been out of service
4
there's no other words to describe it." N .T., 10/11/2016 at 26. On August 1 9, 2016, the
Dignitary Protection Unit was transporting Judge Anhalt to and from work, and staying with
her dunng off hours because she feared for her physical safety Commw. Ex I. Anhalts
Test, at 1
/
On August 26, 20 I 6, Appellant was arrested for a technical violation of probation
stemming from his encounter with Judge Anhalt This Court held a VOP hearing on October
11, 2016. At the hearing, Judge Anhalt's testimony was presented by way of a stipulated
statement Commw Ex. 1, Anhalt's Test., at 1 After a full heanng before this Court,
Appellant was found to have violated condition 5( c) of his probation conditions, which states
that one shall refrain from any assaultive behavior 37 Pa Code § 63 4(5)(1i1) Appellant's
probation on his sentence for VUF A §6106 was revoked and he was sentenced to one to two
(l-2) years of state incarceration. N.T., 12/16/2016 at 30 For his violation of probation
stemmmg from his violation ofVUFA §6108, Appellant's probation was revoked and he was
sentenced to five years reporting probation which runs consecutive to his incarceration Id at
31.
III. Legal Analysis
This Court properly determined that Appellant violated his probation due to assaultive
behavior based on the stipulated testimony of Judge Anhalt and Officer Boone, and the
credible testimony of Assistant Distnct Attorney, Guy D'Andrea Appellant's sentence was
in accord with his violation.
1. There was sufficient evidence to sustain that a technical violation of
probation occurred.
5
In order to revoke probation, the Commonwealth is required to prove by a preponderance
of the evidence that a defendant violated his probation Commonwealth v Allshouse, 33 A 3d
31, 3 7 (Pa. Super. 2011 ). Appellant is not required to commit or be convicted of a cnme for
probanon to be revoked. Commonwealth v Castro, 856 A.2d 178, 180 (Pa Super. 2004). A
technical violation occurs when an individual fails to abide by the conditions of his
probation Hines v. Pennsylvania Board of Probation and Parole, 420 A.2d 381 (Pa 1980)
As a condition of his probation, an individual is not permitted to engage in assault: ve
behavior. 37 Pa. Code§ 63.4(5)(iii). Courts recognize that assaultive behavior encompasses a
broader category of actions than the crime of assault, and thus actions that would not
constitute a crime, may nonetheless, be sufficient grounds for revocation of parole
Commwealth v Simmons, 56 A.3d 1280, 1284 (PA. Super. 2012)(citmgJack.wn v
Pennsylvania Board of Probation and Parole, 885 A.2d 598, 601 (Pa.Commw.Ct 2005))
Cases dealing with parole are persuasive because the language of the relevant condition is the
same m both parole and probation contexts Simmons, 56 A 3d at 1284
Here, Appellant engaged in assaultive behavior on two occasions. On August 15, 2017.
Judge Anhalt heard the defendant yell something to the effect of, "Slut's bout[sic] to go
down" or "This shit Just got real" after the shenff earned his mother to the hold mg cell for
being disruptive. Commw. Ex 1, Anhalt's Test, at 1. Officer Boone also testified that he
heard Appellant yell "Google search me, I'm a mother fucking monster." Cornmw. Ex. 2,
Boone's Test, at 1. "If my brother goes down, I'm taking y'all with me." Id. The act of
expressing a threat, and not its effect on the intended victim, is sufficient to warrant a
revocation of parole. Stmmons, 56 A 3d at 1284 (citing Malartk v Pennsylvania Board of
Probation and Parole, 25 A.3d 468, 470 (Pa Commw Ct.2011)). Therefore, the threats
6
Appellant made on August I 5, 2017 alone rise to the level of assaultive behavior because
they were made in the presence of Judge Anhalt and can be construed, as she did, to include
her.
On August 17, 2017, Appellant followed Judge Anhalt to the elevator and stared her down
Commw. Ex. I, Anhalt's Test, at 1 According to the testimony of Guy D' Andrea. the
Assistant District Attorney on Kelly's case, Judge Anhalt was incredibly shaken and clearly
scared after the encounter. N.T., 10/11/2016 at 26 Assaultive behavior includes conduct that
would clearly evoke a reasonable apprehension of bodily harm in any individual. Simmons,
56 A 3d at 1284 ( citing Moore v Pennsylvania Board of Probation and Parole, 505 A.2d
1366, 1367 (Pa.Commw.Ct 1986)). On August 19, 2016, two days after the elevator mcident.
Judge Anhalt requested the Dignitary Protection Unit transport her to and from work because
she feared for her physical safety Commw. Ex. 1, Anhalt's Test, at l. A violation of
probation can be found when probation is no longer a proper or sufficient means of
rehabilitating an offender. Commonwealth v Ortega, 995 A.2d 879, 886 (Pa Super. 2010)
Clearly, Appellant's actions rose to a level where probation is no longer proper or a sufficient
means of rehabilitation.
Appellant's actions also constitute intentional assaultive behavior personally against the
court It is evident from the Appellant's conduct during his mother's arrest and outside the
elevator, that he committed assaultive behavior. Appellant's conduct equates to assaultive
behavior because any reasonable person in Judge Anhalt's positon would have reason to
believe that they were going to suffer bodily harm, and Appellant's mtention was to
communicate that he would cause physical harm Therefore, there is sufficient evidence to
sustain that a technical violation occurred.
7
2. The verdict was not against the weight of the evidence because the
credible testimony from several witnesses show that Appellant's actions
rose to the level of assaultive behavior.
The role of the trial judge as the tner of fact ts to determine which witnesses are most
credible and to weigh the evidence that has been produced Commonwealth v Brown, 23
A.3d 544, 559 (Pa. Super 2011) The tner of fact is free to believe all, part, or none of the
testimonies Id at 560. It also determines which testimonies it finds most credible or
convincing Id In Commonwealth v Richard, 150 A.3d 504, 520 (Pa. Super 2016), the
defendant was found guilty of intimidating several witnesses Two of the witnesses testified
that defendant intentionally threatened them There, defendant testified his statements were
not threatening. The jury, as the trier of fact, gave more weight to the testimony of the two
witnesses than the defendant. Id. On review, the Supenor Court determined that the tnal
court's verdict was not against the weight of the evidence. Id As here, the Court found the
Commonwealth's testimony credible and the Commonwealth proved its burden
A new trial should only be awarded when the verdict goes against the weight of the
evidence, so as to shock one's sense of Justice and the award mg of a new tnal is vital for
justice to prevail Brown, 23 A.3d at 558. In Brown, the defendant argued that the Jury's
verdict was against the weight of the evidence because the witness' testimony was
"inconsistent and her identification of him was tainted and unreliable" Id. at 557 The
Superior Court found that because the witness made detailed observations of the defendant's
appearance and the testimony was corroborated by the officer's testimony, her idennfication
of the defendant was reliable and the jury's findings were not against the weight of the
evidence. Id. at 559.
8
Here, the Court did not find the Appellant to be credible, in fact the Court found his
testimony incredible The Appel lant dented stating "shit' s bout to go down" or "this shit Just
got real" and merely stated "shit is real" and did not direct that statement towards anyone.
NT, 10/11/2016 at 35. Appellant also dented stating "don't come near me, I'm a mother
fuckin monster! . " and denied coming in contact with Police Officers in the court. Id
Finally, Appellant stated he JUSt happened to be walking in the same direction as the Judge
and did not follow her to the elevator Id.Weighing all of the evidence before the court, including testimonies from Judge Anhalt,
Officer Boone, Assistant District Attorney Guy D' Andre, and the Appellant, the court found
Appellant did engage in assaultive behavior, directed in part towards Judge Anhalt Although
Appellant denies saying and engagmg in most of the behavior alleged by the Commonwealth.
the Court cannot ignore testimony from three different witnesses regarding the events on
August 15, 2016 and August 17, 2016. The evidence shows that the defendant intended to
intimidate, and did intimidate Judge Anhalt. Therefore, Appellant committed assaultive
behavior.
3. Appellant's sentence was in accord with the violation.
Sentencing courts have broad discretion in determining sentences for probation violators
Upon revocation, the court may impose incarceration when the defendant has been convicted
of another crime, the defendant's behavior suggests that he is in danger of committing
another crime if not imprisoned, or the sentence is necessary to "vindicate the authority of the
court" 42 Pa.C.S. § 9771 (c). After probation has been revoked, a sentencing court may
impose any sentence that was available at the time of the initial underlying sentence. 42
Pa. C.S § 9771 (b ). Upon sentencing following a revocation of probation, the tnal court is
9
limited only by the maximum sentence that it could have imposed originally at the time of
the probationary sentence Simmons, 56 A.3d at 1286, 1284 (cuing Commonwealth v
MacGregor, 912 A.2d 315, 317 (Pa Super2006)).
In Simmons, the Superior Court held that a sentence of six (6) months to ten (10) years
incarceration was legal because the sentence fell within the maximum sentence that the court
could have imposed during his original conviction Simmons, 56 A.3d at 1287. Like the
defendant in Simmons, Appellant has been found to have engaged in assaultive behavior and
his probation has therefore been revoked and incarceration is proper. N T. 12/16/2016 at 33
Appellant's behavior clearly has not been consistent with the rehabilitative mtent of
probation.
In Commonwealth v Crump, 995 A 2d 1280, 1284 (Pa. Super. 2010), Supenor Court
determined that because the defendant's new sentence, one to two (1-2) years incarceration
followed by four ( 4) years probation, did not surpass the ten ( 10) year maximum that the
original sentencmg court could have imposed for the underlymg crime that led to the
probation, the sentence was legal.
Similar to Crump, Appellant's consecutive split sentence does not exceed the statutory
maximum that can be imposed on a VUF A charge. A violation of§ 6106, which prohibns
mdividuals from carrying a concealed firearm without a license, is a felony of the third
degree and carries a maximum sentence of seven (7) years incarceration 18 Pa C S § 6106,
18 Pa.C.S. § 1103. Appellant's sentence, one to two (1-2) years followed by five (5) years of
probation, does not exceed the statutory limit.
10
IV. Conclusion
The Commonwealth submitted sufficient evidence to prove the defendant engaged in
assaultive behavior The court's verdict is not contrary to the weight of the evidence because
the stipulated testimonies from Judge Anhalt and Officer Boone prove that the Defendant
engaged in assaultive behavior and the defendant should not be awarded a new hearing, or a
new sentence because the sentence that has been imposed is within the statutory limits of the
angina! violation of the Uniform Firearms Act
BY THE COURT:
CSW
11
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH V. TYREEK CAMP, CP-51-CR-0010232-2011, 1694 EDA 2017
TYPE: Opmion
PROOF OF SERVICE
I hereby certify that I am this day serving the foregomg Court Order upon the person(s)
and m the manner indicated below, which service satisfies the requirements of PA R.CRIM P.
114·
Defense Counsel/Party Joseph Todd Schultz, Esquire
1518 Walnut Street
Ste 808
Philadelphia, PA 19102
Type ofService ( ) Personal ( X ) First Class Mail ( ) Other, please specify
Dtstrtct Attorney Hugh J. Bums, Jr., Esquire
District Attorney's Office
Widener Building
3 South Penn Sq.
Philadelphia,PA 19107
Type of Service ( ) Personal ( X ) First Class Mail ( ) Other, please specify
Dated. I fl - \\ - t..o \l
� U-4-
Law Clerk's Signature
- 1 -