Com. v. Herrington, Q. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QURAN HERRINGTON,
Appellant No. 2635 EDA 2015
Appeal from the Judgment of Sentence July 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004001-2012
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 23, 2016
This is an appeal from the judgment of sentence entered by the Court
of Common Pleas of Philadelphia County after the revocation of Appellant
Quran Herrington’s probation and parole. Appellant claims there was
insufficient evidence to support the revocation and contends that the lower
court erred in imposing a new sentence of confinement when Appellant had
not been convicted of a new offense. After careful review, we affirm.
On May 21, 2014, Appellant entered a negotiated guilty plea to
Terroristic Threats, Contempt for Violation of a Protection Order, and Simple
Assault in connection with his arrest for allegations of domestic violence
upon Fatimah Stafford, the mother of one of his children. The trial court
sentenced Appellant to 11½ months to 23 months imprisonment to be
followed by five years reporting probation.
*Former Justice specially assigned to the Superior Court.
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The trial court directed Appellant to attend Anger Management classes
during his parole or probationary period and agreed to allow Appellant to
report to his parole/probation officer by telephone so that Appellant could
play professional basketball outside of the United States. The trial court
emphasized to Appellant that his negotiated accommodation of telephone
reporting was unusual and stressed the potential consequences of violating
the terms of supervision. Appellant received credit for time served and was
granted immediate parole.
On March 8, 2015, Appellant was arrested for knowing and intentional
possession of a controlled substance when officers confiscated crack cocaine
from his person during a traffic stop. Appellant’s violation of probation
hearing was bifurcated and held on April 2, 2015 and May 18, 2015.
Philadelphia Police Officer Leonard Lackey testified that he personally seized
crack cocaine from Appellant’s person during the March 8th traffic stop. In
addition, Appellant’s probation officers testified that Appellant did not
properly report by telephone in December 2014 and January 2015.
Although Appellant had been instructed to call the officers at specific times,
Appellant did not do so but called the officers and left voicemails when the
officers could not answer.
The lower court found Appellant to be in violation of his probation and
deferred sentencing to allow for a mental health evaluation and a
presentence report. On July 28, 2015, the lower court held Appellant’s
sentencing hearing, observing that while Appellant was incarcerated, he was
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placed in the Disciplinary Segregation Unit for assaulting staff members,
engaging in sexual acts, violating rules, and disturbing other inmates. The
lower court also noted that Appellant told the presentence investigator that
he was impulsive, had trouble controlling his anger, and considered methods
to commit homicide. Appellant also gave the investigator contradictory
statements about his abuse of controlled substances.
After reviewing the aforementioned information, the lower court
sentenced Appellant to two to five years incarceration for the Terroristic
Threats conviction and two years probation on the Simple Assault conviction.
Appellant filed this timely appeal and complied with the lower court’s
direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
1. The court erred in finding [Appellant] in violation of his
supervision for failing to report to his probation officers by
phone where the evidence was insufficient to find that
[Appellant] intentionally failed to report by phone.
2. The court erred by finding [Appellant] guilty of a direct
violation of his supervision where [Appellant] had not been
convicted of a new offense.
Rule 1925(b) Statement.
The scope of review in an appeal following a sentence imposed after
probation revocation is limited to the validity of the revocation proceedings,
the legality of the sentence imposed following revocation, and any challenge
to the discretionary aspects of the sentence imposed. Commonwealth v.
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Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). “A court may
revoke an order of probation upon proof of the violation of specified
conditions of the probation. 42 Pa.C.S. § 9771(b). Our Supreme Court
have repeatedly acknowledged that this is a broad standard as “[a]
probation 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.” Commonwealth v. Infante, 585 Pa.
408, 420, 888 A.2d 783, 791 (2005). “[T]he Commonwealth need only
make this showing by a preponderance of the evidence.” Commonwealth
v. Ortega, 995 A.2d 879, 886 (Pa.Super. 2010).
Appellant first claims there was insufficient evidence to show he failed
to comply with his reporting requirement as he contends he left voicemails
when a probation officer could not answer. The lower court found credible
the testimony of Appellant’s probation officer, averring Appellant was
instructed to call the office to report at specific times in December 2014 and
January 2015, but Appellant refused to follow these directions. Moreover,
the lower court emphasized how it had stressed to Appellant in imposing the
probation that it was lenient and unusual for a defendant to be given the
freedom of reporting to probation by phone and had fully informed Appellant
of the consequences of his failure to report. This Court has held that even
technical violations are sufficient to trigger revocation. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa.Super. 2000) (upholding the revocation of
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probation based on the appellant’s failure to properly report for scheduled
appointments with parole officer). We agree that this evidence was
sufficient for the trial court to conclude that Appellant had violated
conditions of his probation.
Moreover, as Appellant’s arrest for possession of crack cocaine is
strong indicator that his probationary sentence was not serving the desired
goal of rehabilitation, the lower court was further justified in revoking
Appellant’s probation. Although Appellant points out that he was never
convicted of knowing and intentional possession of the cocaine, “[i]t is well
settled that a probation violation hearing may be conducted prior to a trial
for the criminal charges based on the same activities.” Commonwealth v.
Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (quoting Commonwealth v.
Brown, 503 Pa. 514, 469 A.2d 1371, 1375 (1983)). As noted above, the
Commonwealth need only prove a violation of probation by a preponderance
of the evidence, not beyond a reasonable doubt. A violation of probation
hearing also differs from a criminal trial in the following manner:
The focus [of] a probation hearing, even though prompted
by a subsequent arrest, 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.... It follows that probation revocation
hearings are flexible, and material not admissible at trial may be
considered by the court. The degree of proof necessary for
probation revocation is less than that required to sustain a
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criminal conviction. Probation may be revoked on the basis of
conduct which falls short of criminal conduct.
Castro, 856 A.2d 178, 180 (Pa.Super. 2004) (quoting Commonwealth v.
Spinozzi, 345 A.2d 181, 182-83 (Pa.Super. 1975)).
As Appellant’s possession of crack cocaine showed that probation had
been ineffective at deterring criminal conduct, the lower court had sufficient
grounds for the revocation of Appellant’s probation. See Castro, 856 A.2d
at 181 (finding that Commonwealth’s proffer of eyewitness testimony of the
arresting officer to the appellant’s participation in a drug transaction was
sufficient evidence to show a violation of probation); Commonwealth v.
Donato, 508 A.2d 1256, 1261 (Pa.Super. 1986) (upholding the revocation
of probation where the criminal charges related to the relevant conduct were
dismissed due to the suppression of evidence, which was still admissible at
the revocation hearing).
To the extent that Appellant may be arguing that the trial court had no
authority to impose a sentence of total confinement when he had not been
convicted of a new offense, we find this claim to be meritless. Section 9771
provides in relevant part:
(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 a sentence is essential to vindicate the authority of the
court.
42 Pa.C.S. § 9771(c) (emphasis added).
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While Appellant had not been convicted of another crime while on
probation, the lower court suggested that Appellant’s conduct showed that
he would likely commit another offense and that confinement was necessary
to vindicate the court’s authority. As noted above, the lower court noted
that Appellant disregarded the lenient probation reporting requirement he
was given and failed to properly report to his probation officers. The lower
court found that Appellant’s arrest for “the possession of mind-altering
narcotics while under the Court’s probation or parole is obviously
counterproductive to the supervisory efforts that had been put in place to
rehabilitate [Appellant] and to deter his commission of future and anti-social
acts.” Trial Court Opinion, 1/14/16, at 10. The lower court also emphasized
that Appellant committed significantly serious disciplinary infractions while
incarcerated pending sentencing which caused him to be placed in the
Disciplinary Segregation Unit and Appellant had expressed anger and
homicidal thoughts to the presentence investigator.
Although the lower court did not specifically cite to the language in
Section 9771 when setting forth its reasons for revoking Appellant’s
probation, it provided ample reasons to infer that the trial court believed
that incarceration was necessary to avoid a future crime and to vindicate its
authority. See Commonwealth v. Aldinger, 436 A.3d 1196, 1200
(Pa.Super. 1981) (upholding lower court’s sentence of total confinement
after revocation of probation even though court did not state on the record
its reliance on Section 9771(c) as there was evidence that the appellant had
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violated probation by using drugs). Accordingly, the lower court was
justified in imposing a sentence of total confinement upon revocation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
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