Com. v. Gill, W. ( 2017 )

J-S57018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WILLIE C. GILL, JR.
Appellant No. 3456 EDA 2016
Appeal from the Judgment of Sentence dated October 11, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005200-2005
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2017
Appellant Willie C. Gill, Jr. appeals from the judgment of sentence
imposed by the trial court after it conducted a Gagnon II hearing,1 revoked
Appellant’s parole, and recommitted that he serve the balance of his original
sentence. We affirm.
The court set forth the factual and procedural history as follows:
On January 27, 2005, [Appellant] was charged with crimes
arising from his use of the personal checks and check card of a
third person repeatedly over the span of three weeks to steal
$18,171.41 from Wachovia Bank. On May 5, 2005, the matter
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). “[W]hen a parolee or
probationer is detained pending a revocation hearing, due process requires a
determination at a pre-revocation hearing, a Gagnon I hearing, that
probable cause exists to believe that a violation has been committed. Where
a finding of probable cause is made, a second, more comprehensive hearing,
a Gagnon II hearing, is required before a final revocation decision can be
made.” Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa. Super.
2009) (citations omitted).
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was resolved by negotiated plea. [Appellant] pled guilty to
violating 18 Pa.C.S.A. § 4106(a)(1)(i), access device fraud. The
Honorable Bernard A. Moore on that date sentenced [Appellant]
to four (4) years of county probation and to pay restitution to
Wachovia Bank in the amount of $18,771.41.
On August 9, 2005, [Appellant] was charged with crimes
arising from his use of the credit card of a third person
repeatedly over the span of nine (9) weeks to steal $7,283.86
from Chase Manhattan Bank and also with having possession of
a stolen motor vehicle. On February 6, 2006, [Appellant] pled
guilty to violating 18 Pa.C.S.A. § 4106(a)(3), access device
fraud, and 18 Pa.C.S.A. § 3928, unauthorized use of automobiles
and other vehicles. For the former offense, the Honorable
William R. Carpenter on that date sentenced [Appellant] to five
(5) years of county probation and to pay restitution to Chase
Manhattan Bank in the amount of $7,283.86 within the first fifty-
two (52) months of supervision. For the latter offense, Judge
Carpenter sentenced [Appellant] to two (2) years of county
probation, to run concurrently.
Since his first sentencings in 2005 and 2006, [Appellant]
was subsequently found to have violated his probation or parole
a total of nine (9) times. [Appellant] stipulated to having
violated his probation or parole on March 14, 2016; July 25,
2007; July 1, 2011; May 9, 2012; January 3, 2013; August 27,
2014; April 17, 2015; September 24, 2015; and February 11,
2016.
On October 11, 2016, [Appellant] appeared before the
[revocation court] for a contested Gagnon II hearing. The
Commonwealth sought to prove that [Appellant] violated his
parole in either of four (4) ways: (1) for committing violence
against his ex-girlfriend; (2) for getting arrested for committing
violence against his ex-girlfriend; (3) for using marijuana; and
(4) for failing to pay fines, costs and/or restitution. Based upon
the evidence presented, the [revocation court] found that the
Commonwealth had failed to meet its burden to prove that
[Appellant] had committed violence against his ex-girlfriend.
While the Commonwealth had subpoenaed the ex-girlfriend, and
while she had appeared in court and testified at the hearing, her
testimony was non-responsive, vague, halting and evasive, and
it appeared that she was afraid to testify against [Appellant].
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At the October 11, 2016, hearing, the [revocation court]
found that the Commonwealth had successfully met its burden to
prove that [Appellant] had violated the terms and conditions of
his parole in three (3) ways. The first was that [Appellant] was
arrested by Norristown Police after his ex-girlfriend went to the
police station with apparent wounds reporting that [Appellant]
had attacked her. The second was that [Appellant] had used
marijuana as evidenced by the urine test done by [Appellant’s]
parole officer. The third was that [Appellant] failed to pay
anything at all in restitution as required ever since his original
criminal sentences back in 2005 and 2006.
Accordingly, by order entered on October 11, 2016, [the
court] revoked [Appellant’s] parole and sentenced [Appellant] to
his back time of five (5) months and nineteen (19) days,
commitment to date from July 14, 2016, on both files, [with] the
sentence[s] to run consecutively [].
[Appellant] filed a timely notice of appeal on November 9,
2016 and a timely concise statement of matters complained of
on appeal on November 30, 2016.
Trial Court Opinion, 1/31/17, at 1-3.
Appellant presents one issue for our review:
Did the trial court err in determining that Appellant was in
technical violation of the conditions of his parole where (1) his
new arrest did not result in a conviction or a finding of
responsibility, (2) the evidence was insufficient to establish that
he used marijuana, and (3) his failure to pay restitution was not
the result of a willful refusal to pay or a failure to make sufficient
bona fide efforts?
Appellant’s Brief at 5.
In reviewing a revocation of parole, we have explained:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Commonwealth v.
Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (1993).
Indeed, there is no authority for a parole-revocation court to
impose a new penalty. Id. Rather, the only option for a court
that decides to revoke parole is to recommit the defendant to
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serve the already-imposed, original sentence. Id. At some point
thereafter, the defendant may again be paroled. Id.Therefore, the purposes of a court’s parole-revocation
hearing—the revocation court’s tasks—are to determine whether
the parolee violated parole and, if so, whether parole remains a
viable means of rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
recommitment, are in order. Mitchell, 632 A.2d at 936, 937.
The Commonwealth must prove the violation by a
preponderance of the evidence and, once it does so, the decision
to revoke parole is a matter for the court’s discretion. Id. at
937. . . .
Following parole revocation and recommitment, the proper
issue on appeal is whether the revocation court erred, as a
matter of law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement. Mitchell, 632 A.2d at
936.
Commonwealth v. Kalichak, 943 A.2d 285, 290–91 (Pa. Super. 2008)
(footnote omitted). Technical violations of parole can justify revocation.
Commonwealth v. Mitchell, 632 A.2d 934, 937 (Pa. Super. 1993). “The
Commonwealth need only show, by a preponderance of the evidence, that a
parolee violated the conditions of his parole.” Id.At the revocation hearing, Montgomery County Probation Officer Alicia
Mulholland testified to being assigned to supervise Appellant. N.T.,
10/11/16, at 6. She identified Appellant’s signature on a document with the
“rules and regulations for everybody who’s currently on probation and
parole.” Id. at 7; Ex. C-1. Ms. Mulholland testified that Appellant signed
“several” such documents and that those documents were in his file. N.T. at
8. The document signed by Appellant and admitted into evidence as Exhibit
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C-1 stated that Appellant would comply with all laws, pay restitution, and
“stay away from any illegal drugs.” Id. at 9-10. In July of 2016, Ms.
Mulholland served Appellant with a “notice of violation letter” as a result of
his arrest on assault charges; his June 14, 2016 marijuana-positive
urinalysis results2; and his ongoing failure to pay restitution. Id. at 10-14;
Ex. C-2. Ms. Mulholland testified that Appellant was ordered to pay
restitution in 2005 and “no payments have been made to date.” N.T. at 19.
She clarified that Appellant’s case was “completed” in 2007 and there were
no payments “over the past nine years.” Id. at 20.
Norristown Police Officer Darren Buckwalter testified to receiving a
“walk in” report in from Appellant’s girlfriend, who alleged that Appellant
assaulted her. N.T., 10/11/16, at 22-23. Officer Buckwalter took
photographs of the victim’s injuries and Appellant was ultimately arrested.
Id. at 24-26.
Appellant’s girlfriend, Tina Watts, was subpoenaed to testify and
stated that she did not “want to talk about it,” but conceded that Appellant
was at her house on June 30, 2016, and she and Appellant had “a
disagreement.” Id. at 28-30. Ms. Watts also admitted to going to the
Norristown police station and making a complaint the next day. Id. at 34.
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2 Ms. Mulholland testified to being trained to administer urinalysis tests for
drugs, and doing so “practically every day.” N.T., 10/11/16, at 14-15.
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Appellant took the stand and stated that he was in Philadelphia and
not in Norristown on June 29 and 30, 2016, when he was alleged to have
assaulted Ms. Watt. Id. at 38. He admitted that he failed to pay any
restitution. Id. at 42. Appellant attributed his failure to make any
payments to being incarcerated or employed in a commission-only job, and
to having child support obligations for his five daughters. Id. at 39-41.
On this record, there is no merit to Appellant’s sufficiency claim
because the evidence – of Appellant’s arrest, marijuana-positive urinalysis,
and failure for more than a decade to make any payment toward restitution
– supports the trial court’s determination that Appellant violated his parole.
See N.T., 10/11/16, at 55-56. The court concluded:
The Court finds the violation of parole is serious enough to
revoke parole, as the conduct of [Appellant] indicates that parole
has not been effective to accomplish rehabilitation, nor [has it
been a] sufficient deterrent against future anti-social conduct.
Parole is hereby revoked.
Id. at 61. Accordingly, we find no abuse of discretion by the trial court and
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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