Com. v. Bossert, R. ( 2018 )

J-S29039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD BOSSERT :
:
Appellant : No. 3060 EDA 2017
Appeal from the Judgment of Sentence September 6, 2017
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002172-2012
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 30, 2018
Appellant Richard Bossert appeals from the judgment of sentence
entered in the Court of Common Pleas of Lehigh County on September 6,
2017, following the revocation of his probation. On appeal, Appellant
contends the evidence was insufficient to sustain the revocation of his
probation. After a careful review, we affirm.
The relevant facts and procedural history are as follows: On September
4, 2012, Appellant pled nolo contendere to terroristic threats, simple assault,
and harassment.1 On October 5, 2012, following a sentencing hearing, the
trial court sentenced Appellant to 2½ years to 5 years in prison for terroristic
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1 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
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* Former Justice specially assigned to the Superior Court.
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threats, and a consecutive two-year period of probation for simple assault.
No further penalty was imposed for harassment.2
On April 17, 2017, Appellant maxed out his prison sentence and began
serving his probationary sentence. On July 28, 2017, the trial court issued a
probation violation warrant for Appellant, and following a Gagnon I3 hearing,
the trial court ordered Appellant detained. Appellant, represented by counsel,
proceeded to a Gagnon II hearing on September 6, 2017.
At the Gagnon II hearing, Probation Officer Kevin Chaundy testified
that he began supervising Appellant in June of 2017, shortly after Appellant
began serving his period of probation. N.T., 9/6/17, at 4. In June, on his own
accord, Appellant went to an Allentown hospital, which transferred Appellant
to Fairmont Behavioral Health in Philadelphia. Id. After Appellant left
Fairmont Behavioral Health, he, on his own accord, went to St. Luke’s Hospital
for mental health treatment. Id. at 4-5, 6.
Probation Officer Chaundry testified as follows regarding Appellant’s
latest hospitalization:
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2 Thereafter, Appellant did not file a direct appeal to this Court; however, he
filed a collateral petition under the Post-Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. Following the appointment of counsel, the PCRA
court denied the petition, and Appellant filed an appeal to this Court. We
affirmed the denial of the PCRA petition on June 26, 2015. See
Commonwealth v. Bossert, 2904 EDA 2014 (Pa.Super. filed 6/26/15)
(unpublished memorandum).
3 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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On July 11th of [2017], [Appellant] entered, on his own, St.
Luke’s Hospital in Quakertown. He was there for three days. Upon
his discharge, [the probation office] received a phone call from St.
Luke’s staff [indicating] that he was being discharged, but we
were also informed that during his time there he had made several
threats to staff and to a fellow patient[.]
Id. at 4. Probation Officer Chaundry testified that he filed a violation of
probation petition against Appellant in response to the threat allegations. Id.
Judith Matusic testified that she is a behavioral health care manager at
St. Luke’s Hospital. Id. at 5. She testified that Appellant was admitted to the
hospital on July 11, 2017. Id. at 7. During the first day of admission, when
Ms. Matusic was interviewing Appellant, he threatened “a patient who was
across the hall, [indicating] that he was going to kill him.” Id. at 9. Ms.
Matusic indicated Appellant mentioned the patient by name, and she opined
that Appellant’s demeanor was “serious,” so she called a nurse to report to
the room. Id. at 9-10. When the nurse came to the room, Appellant repeated
that he was going to kill the patient across the hall. Id. Ms. Matusic noted
that, although the floor on which Appellant was staying was a “locked unit,”
the individual rooms did not lock so Appellant had access to the patient simply
by walking across the hall. Id. at 11.
Ms. Matusic testified that, in a different interview, Appellant indicated
that he had guns, which a friend was holding for him, and he was going to get
the guns and spray gunfire at everybody. Id. at 12. Ms. Matusic indicated
that the statements were made in such a way that it was not a “joke.” Id. at
14.
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Ms. Matusic testified that, on July 14, 2017, Appellant indicated that he
wanted to leave the hospital. Id. at 7-8. Ms. Matusic testified that the
hospital’s “hands [were] tied” once Appellant signed a “notice that he no
longer wanted to stay in the hospital[,]” so plans were made to discharge
Appellant. Id. at 7. However, during the discharge process, Appellant would
not accept the hospital staff’s assistance in sending him to a stable housing
plan. Id. Ms. Matusic testified that Appellant informed her he was “homeless”
and “just wanted to be discharged to the street[.]” Id. It was at this point
that Ms. Matusic telephoned the probation office to inform them that Appellant
was being discharged from the hospital with no assistance. Id. at 13. She
also reported the threats at this time. See id.
Harvinder Singh, M.D., a psychiatrist at St. Luke’s Hospital, testified that
he was Appellant’s treating physician while he was in the hospital from July
11-14, 2017. Id. at 23-24. Dr. Singh testified that the “main reasons for
admission was worsening depression, increased irritability[,] and paranoid
ideations that people are out to get him.” Id.
He noted that, when Appellant was admitted, Appellant originally had
another patient as a roommate. Id. at 27. However, Appellant demanded to
change rooms. Id. Appellant then “targeted” this other patient and was
“angry toward [the] one specific patient[.]” Id. Dr. Singh testified the other
patient intruded into Appellant’s room, and Appellant threatened to kill him.
Id. at 26. He testified Appellant specifically stated, “He [(the other patient)]
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is staring me down. He is always asking why other people get to do stuff.
You will not be able to get me off of him and I am not going to just hurt him,
I’m gonna murder him.” Id. at 27.
When asked whether Appellant’s statements regarding the other patient
were the result of Appellant’s mental illness, Dr. Singh testified:
Based on my evaluation, I will not describe them as
psychotic in nature because if someone is psychotic, they should
be directed at everybody, not one specific peer.
They were more planned in nature, so I will not describe
them as related to unstable mood or due to psychosis.
Id. at 28.
Dr. Singh acknowledged that, in addition to threatening to kill a fellow
patient, Appellant verbalized to the case manager that he had guns and was
going to kill many people. Id. When asked whether Appellant made the latter
statements as a result of “psychosis,” Dr. Singh opined, “[B]ased on my
evaluation of him, I saw there was reasoning—his presentation was of
somebody who was more in control and making these decisions knowingly, so
I will not describe them secondary to psychosis or unstable mood at this time.”
Id. at 28-29. He noted that Appellant made the statements because of anger.
Id. at 31.
Dr. Singh noted that a patient who wishes to be discharged may be
involuntarily committed for a period of time; however, Appellant was not
showing behaviors that would have permitted such an involuntary
commitment. Id. at 25. Instead, Dr. Singh opined Appellant was “angry that
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he was there[.]” Id. As such, after Appellant signed the 24-hour form, he
was discharged. Id. at 29.
Appellant informed the trial court that he went to the hospital voluntarily
to receive treatment. Id. at 34-35. He admitted that he had “episodes” while
he was in the hospital, but that he is “sick.” Id. He indicated that his mental
illness, and the fact he was in the hospital seeking help, should allow him to
“speak [his] mind” without punishment. Id. at 35.
At the conclusion of the hearing, the trial court found Appellant in
violation of his probation. Specifically, the trial court found Appellant violated
the terms of his probation by failing to refrain from overt, threatening
behavior. Thus, the trial court revoked Appellant’s probation and sentenced
him to 6 months to 24 months in prison. This timely, counseled appeal
followed. All Pa.R.A.P. 1925 requirements have been met.
Appellant contends the evidence was insufficient to revoke his
probation. While he admits that “he made threats against an individual and
other generalized threats during his hospitalization[,]” he contends that the
“threats were made. . .as a result of his psychiatric illness rather than any
aggressive intent.” Appellant’s Brief at 9. He specifically argues that he did
not intentionally, voluntarily, or knowingly violate his probation since the
threatening statements at issue were the product of his severe mental illness.
See id. 9-10, 12-13. Further, in this regard, he contends that, since he did
not voluntarily and knowingly make the threatening statements, the evidence
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does not sufficiently demonstrate that probation was an ineffective
rehabilitation tool incapable of deterring him from future antisocial conduct.
See id.
Relevantly, this Court has held the following:
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 [the hearing] 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.
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. [T]he 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.
***
The burden of proof for establishing a violation
of probation is a preponderance of the evidence,
lesser than the burden in a criminal trial of proof
beyond a reasonable doubt. But there are other
noteworthy differences between a probation
revocation hearing and a criminal trial, and the
manner in which each proceeding affects the other
also is significant:
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The focus [of] a probation hearing. . .is whether
the conduct of the probationer indicates that the
probation has proven to be an effective vehicle to
accomplish rehabilitation and a sufficient deterrent
against future anti-social conduct. It must be
emphasized that a probation revocation hearing is not
a trial: The court’s purpose is not to determine
whether the probationer committed a crime. . .The
degree of proof necessary for probation revocation is
less than that required to sustain a criminal
conviction. Probation may be revoked on the basis of
conduct which falls short of criminal conduct.
Commonwealth v. Colon, 102 A.3d 1033, 1041–42 (Pa.Super. 2014)
(citations, quotations, and quotation marks omitted). As this Court has
recognized, probation is a privilege, not an absolute right. Commonwealth
v. McNeil, 665 A.2d 1247 (Pa.Super. 1995).
In the case sub judice, the trial court found credible Ms. Matusic’s
testimony that Appellant threatened to kill another patient at the hospital, as
well as threatened to get a gun and shoot others. See Trial Court Opinion,
filed 11/22/17, at 3. Although Appellant indicated at the Gagnon II hearing
that his threatening statements were the product of his mental illness, the
trial court found credible Dr. Singh’s testimony that Appellant’s threats were
not related or secondary to psychosis or an unstable mood. See id. As the
trial court found, Dr. Singh testified Appellant’s threats were made in anger,
“planned in nature,” and the product of “reasoning” by “somebody who was
[] in control and making [] decisions knowingly.” See id.; N.T., 9/6/17, at
28-29, 31. We defer to the trial court’s credibility determinations in this
regard. See Colon, supra.
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Accordingly, we find the trial court did not abuse its discretion in holding
the Commonwealth proved, by a preponderance of the evidence, that
Appellant’s threats to kill a patient, as well as others, established that
“probation has proven to have been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future antisocial conduct.”
Trial Court Opinion, filed 11/22/17, at 2-3 (quotation and quotation marks
omitted). Thus, the trial court did not err in revoking Appellant’s probation.
See Colon, supra.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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