Com. v. White, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE WHITE :
:
Appellant : No. 1990 EDA 2015
Appeal from the Judgment of Sentence June 1, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013705-2012
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 21, 2018
Bruce White appeals from his judgment of sentence, entered in the
Court of Common Pleas in Philadelphia County, following the revocation of his
probation. White challenges the sufficiency of the evidence supporting the
court’s finding that he violated his probation. After careful review, we affirm.
The facts and procedural history are as follows: On October 16, 2012,
White was arrested in Philadelphia for retail theft.1 On January 8, 2014, he
entered an open guilty plea. The trial court sentenced White to time served
to 23 months’ incarceration with immediate parole, followed by two years of
reporting probation. The trial court ordered White to undergo random drug
testing “to make sure [he] stay[s] clean and [is] on the right path.” N.T.
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1 18 Pa.C.S.A. § 3929(A)(1).
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Guilty Plea/Sentencing Hearing, 1/8/14, at 15. The trial court explained that
reporting probation meant that once White was paroled, he would report to
his probation officer to get drug screens. Id. at 15-16.
White was charged and arrested for five summary offenses that occurred
on July 14, 2014, October 1, 2014, and October 16, 2014. 2 The trial court
held violation of probation hearings on September 3, 2014 and November 20,
2014, after both of which the court continued White’s probation. At the second
probation hearing on November 20, 2014, the trial court warned White, “this
type of behavior must stop.”3 Gagnon II4 Summary, 5/19/15, at 3. On June
1, 2015, at a third violation of probation hearing, the Commonwealth
presented a Gagnon II Summary, prepared on May 19, 2015 by White’s
Probation Officer Michael Mastalski. As indicated in the summary, White had
a positive drug screen for THC on July 10, 2014 as well as 35 prior arrests and
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2 On July 14, 2014, White was arrested and charged for smoking and drinking
in restricted areas in violation of Philadelphia Code § 10-602 Smoking (2006)
and Philadelphia Code § 10-604 Alcoholic Beverages (2007). He was found
guilty of these offenses on November 21, 2014. On July 14, 2014, White was
arrested and charged for alcoholic beverages restricted. He was found guilty
on December 5, 2014. On October 1, 2014, White was arrested and charged
with drinking restricted. He was found guilty on October 27, 2014. On
October 16, 2014, White was arrested and charged for alcoholic beverages
restricted. He was found guilty of that charge on November 21, 2014.
3 The type of behavior included “summary offenses he was incurring as his
overall negative attitude toward the criminal justice system, the courts, and
[the probation officer].” Gagnon II summary, 5/19/15 at 3.
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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15 prior conviction. Gagnon II Summary, 5/19/15. Moreover, the Gagnon
II summary indicates that on May 12, 2015, the Adult Probation and Parole
Department “conducted a monthly audit,” which revealed that White had been
arrested on May 4, 2015 for failure to appear.5
Further investigation revealed that White was arrested for five additional
summary offenses, none of which he reported. These offenses were as
follows: public urination on January 3, 2015; alcoholic beverages on April 2,
2015; alcoholic beverages on April 2, 2015; alcoholic beverages on April 2,
2015; and drinking restricted on April 22, 2015. These arrests formed the
basis of the revocation of probation, which is the subject of this appeal. The
report stated that “White has continued to repeat the same offenses over and
over, even after being warned numerous times to cease his behavior. This
reflects poorly on the neighborhood and [is] at the very least a nuisance to
the community.” Gagnon II Summary, 5/18/15, at 3. Subsequently, the
court revoked White’s probation and re-sentenced him to 10 months’
incarceration.
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5 Neither the Commonwealth nor White has clarified in their briefs what White
failed to appear for that resulted in his arrest. Additionally, after our review
of the record, we are unable to determine this.
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On June 29, 2015, White filed a timely notice of appeal. Both White and
the trial court have complied with Pa.R.A.P. 1925, although not before various
procedural issues and delays.6 White raises the following issue for our review:
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6 On July 10, 2015, the trial court directed White to file a Rule 1925(b) concise
statement of errors complained of on appeal within 21 days. Counsel filed a
“preliminary” Rule 1925(b) statement on July 29, 2015, but did not identify
any issues because counsel had not yet received the notes of testimony from
the June 1, 2015 probation hearing. On the same day, counsel filed a request
for an extension of time to file a Rule 1925(b) statement upon receipt of the
notes of testimony, which was granted by the trial court. The trial court
informed counsel on June 15, 2016, that the notes of testimony had become
available. That same day, counsel filed a statement pursuant to Rule
1925(c)(4) asserting his intent to file a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 97 A.2d
349 (Pa. 2009), because there were no non-frivolous issues preserved for
appeal. The trial court directed White to file his Anders brief before
September 30, 2016. On September 20, 2016, White’s counsel filed a petition
requesting this Court to vacate the briefing schedule, explaining that:
[I]n preparing the Anders brief, counsel cannot now allege in good
conscience after reviewing the notes of testimony that Mr. White
does not have any non-frivolous issues to raise on appeal. If
permitted by [the trial] [c]ourt, counsel intends to argue that the
evidence was insufficient to prove that Mr. White’s conduct
supported revocation.
Petition to Vacate Briefing Schedule, 9/20/16, at 2.
On October 7, 2016, this Court granted White’s petition, ordered counsel to
file a Rule 1925(b) concise statement of errors complained on appeal within
21 days of the order, and directed the trial court to file a supplemental opinion
pursuant to Pa.R.A.P. 1925(a) within 30 days of receiving counsel’s Rule
1925(b) statement. Order, 10/7/16. The trial court filed a supplemental
opinion on November 9, 2016 stating that White never filed a Rule 1925(b)
statement and, therefore, waived any issues for appeal. On December 2,
2016, White filed another petition for remand asserting that his “[c]ounsel
never received the Order, and was unaware that this Court had acted upon
[White’s] petition until the trial court filed a supplemental opinion on
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Was not the evidence insufficient to prove that [White] violated
his probation where the only evidence before the [trial] court was
a Gagnon II summary report which listed five summary offenses
that were mere arrests?
The standard of review for a challenge to the sufficiency of the evidence
for a technical probation violation is as follows:
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) (internal
citations omitted) (emphasis added).
Here, the Commonwealth has met its burden to prove that White’s
conduct violated the terms of his probation. As the trial court pointed out, the
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November 9, 2016.” Petition to Vacate Briefing Schedule, 12/2/16. This Court
granted White’s petition on December 21, 2016. The trial court filed a Rule
1925(a) opinion on June 16, 2016, and a supplemental Rule 1925(a) opinion
on June 27, 2016. On January 10, 2017, White filed a Rule 1925(b) statement
of errors complained of on appeal, and the court filed its opinion on September
14, 2017. Inexplicably, the trial court refiled the same opinion on January 31,
2018.
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evidence presented at the probation revocation hearing established that
“probation had proven ineffective at rehabilitating [White] and deterring him
from antisocial behavior.” Trial Court Opinion, 1/31/18, at 3.
First, we note that “do not commit another crime” is an implied condition
of probation. Commonwealth v. Vilsaint, 893 A.2d 753, 757 n.5 (Pa. Super.
2006); Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011);
see also Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005) (stating
that “Superior Court has recognized on numerous occasions that, ‘an implied
condition of any sentence of probation is that the defendant will not commit a
further offense.’”). While the offenses subject to this appeal were “mere
arrests” at the time of his third probation hearing, White was found guilty of
violating various city ordinances, pursuant to 234 Pa. Code Rule 1002,7 which
included: smoking in a prohibited area8 and drinking restricted9 on November
21, 2014; alcoholic beverages10 on December 5, 2014; and alcoholic
beverages11 on November 21, 2014—between his second and third probation
hearings. Thus, even though mere arrests may not be sufficient to support
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7 Procedure in Summary Cases.
8 Philadelphia Code § 10-602 Smoking (2006).
9 Philadelphia Code § 10-604 Alcoholic Beverages (2007).
10 Id.
11 Id.
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revocation of probation, White was found guilty of crimes before his third
probation hearing and thus violated an implied condition of probation.
Additionally, White stated that he had “an opened can of beverage and all of
that” and thus admitted that he violated a city ordinance for at least one of
the crimes charged. N.T., Violation of Probation Hearing, 6/1/15, at 5.
It is clear from the record that probation has not been an effective
rehabilitative tool for deterring White from antisocial conduct. Colon, supra.
White was convicted of four crimes, failed a drug test, and was arrested for
five more crimes during his probation period. Additionally, as evidenced by
White’s lengthy criminal history prior and subsequent to the third probation
revocation hearing, White has not been deterred from committing crimes.
Colon, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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