Com. v. Medley, C. ( 2019 )

J-S65032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHESTER GENE MEDLEY :
:
Appellant : No. 1168 MDA 2019
Appeal from the Judgment of Sentence Entered June 17, 2019
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000486-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
JUDGMENT ORDER BY COLINS, J.: FILED DECEMBER 16, 2019
Appellant, Chester Gene Medley, appeals from the judgment of sentence
of one to two years of confinement, imposed after the revocation of his
intermediate punishment (“IP”) and probation for simple assault and
disorderly conduct.1 We affirm.
Appellant pleaded nolo contendere to the aforementioned charges and
was sentenced to two years of IP, which included nine months of house arrest
with electronic monitoring, followed by one year of probation. On May 21,
2019, a petition to revoke supervision was filed, asserting that Appellant had
violated his house arrest on May 1, 2, and 7, 2019. During his revocation
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2701(a) and 5503(a)(4), respectively.
J-S65032-19
hearing on June 6, 2019, Appellant testified that his alleged house arrest
violations were due to “mechanical difficulties” with his tracking monitor, and
his wife testified that he was home on May 1, 2, and 7. N.T. at 4, 26. His
probation officer and her supervisor testified that there were no indications
that his tracking monitor malfunctioned. Id. at 18-19, 32. The trial court
found that Appellant had repeatedly violated his house arrest and, on June 17,
2019, sentenced him to one to two years of confinement. The trial court’s
“determination that [Appellant] violated his house arrest was based . . . on an
assessment of credibility.” Tr. Ct. Op., 8/13/2019. After his timely post-
sentence motion was denied, Appellant filed this timely appeal on July 5, 2019.
Appellant presents the following issue for our review:
Whether the [trial] court erred by finding [Appellant] violated his
house arrest conditions and probation and parole supervision on
May 1st, 2019, May 2nd, 2019 and May 7th, 2019, when the
evidence suggested the equipment had malfunctioned on prior
occasions, when [Appellant] denied the violations, and when no
qualified mechanical expert testified to the contrary, causing the
court finding to go contrary to the preponderance of evidence?
Appellant’s Brief at 6 (unnecessary capitalization omitted).
An IP sentence is “analogous to a sentence of probation. We review a
sentence imposed following a revocation of probation for an error of law or an
abuse of discretion. Accordingly, we apply that same standard in reviewing
revocation of Appellant’s [IP] sentence.” Commonwealth v. Flowers, 149
A.3d 867, 872–73 (Pa. Super. 2016) (citations omitted). “[I]n reviewing an
appeal from a judgment of sentence imposed after the revocation of
probation, this Court’s scope of review includes the validity of the hearing, the
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legality of the final sentence, and if properly raised, the discretionary aspects
of the appellant’s sentence.” Commonwealth v. Kuykendall, 2 A.3d 559,
563 (Pa. Super. 2010).
Appellant’s claim is a challenge to credibility – whether the trial court
should have believed Appellant and his wife or the probation officer and
supervisor. “An argument that the finder of fact should have credited one
witness’s testimony over that of another goes to the weight of the evidence.”
Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018).
However, a challenge to the weight of the evidence is not cognizable for an
appeal from the revocation of probation. Commonwealth v. McDermott,
547 A.2d 1236, 1246 (Pa. Super. 1988) (“no authority for appellant’s
assumption that a challenge to the evidence may be properly entertained on
appeal from parole revocation”); Commonwealth v. Obert, No. 457 WDA
2019, unpublished memorandum at 7 (Pa. Super. filed Sept. 19, 2019)
(“challenge to the weight of the evidence is not cognizable for an appeal from
the revocation of probation”);2 Commonwealth v. Levenberg, No. 2680
EDA 2018, unpublished memorandum at 9 (Pa. Super. filed July 23, 2019)
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2 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):
(1) As used in this rule, “non-precedential decision” refers to an
unpublished non-precedential memorandum decision of the
Superior Court filed after May 1, 2019 . . .
(2) Non-precedential decisions as defined in (b)(1) may be cited
for their persuasive value.
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(“no authority . . . indicates that we may entertain on appeal a challenge to
the weight of the evidence from a probation revocation”); see also
Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (procedural
distinctions between a trial and a probation revocation hearing); Kuykendall,
2 A.3d at 563 (scope of appellate review does not include weight of evidence
claims). Accordingly, Appellant is not entitled to relief.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2019
____________________________________________
3 Assuming such a challenge were viable, we would note that, contrary to
Appellant’s allegation, there is no evidence that any of his tracking devices
had malfunctioned. Appellant’s probation officer had tried to accommodate
him when he had complained about the reliability of his devices in the past by
replacing his ankle monitor twice, even though there was no proof that those
first two devices had malfunctioned. N.T. at 18, 32. Appellant cannot rely
upon the officer’s two prior attempts to appease him as evidence that there
was something wrong with his third device – and there was no evidence that
his final monitor had malfunctioned, either. Appellant also cites no authority
to support his assertion that the Commonwealth is required to present expert
testimony regarding the functioning of electronic monitoring equipment.
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