Com. v. Higgins, M. ( 2015 )

J-S54030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL HIGGINS
Appellant No. 492 EDA 2015
Appeal from the Judgment of Sentence January 13, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004538-2014
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED OCTOBER 21, 2015
Appellant, Michael Higgins, appeals from the judgment of sentence
entered following the revocation of his probation by the Honorable William E.
Ford, Court of Common Pleas of Lehigh County. We affirm.
On October 7, 2014, Higgins entered a guilty plea to one count of
possession of drug paraphernalia and to one count of harassment, and was
sentenced to nine months of probation on each count. Thereafter, a
probation officer issued a Probation/Parole Intermediate Punishment
Violation Warrant alleging that Higgins had violated the conditions of his
parole, including, among other things, Condition 5 – failure to remain drug
free.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S54030-15
On January 13, 2015, the court conducted a Gagnon II hearing, at
which the Commonwealth established that a urine drug test of Higgins
performed on October 17, 2014, tested positive for phencyclidine (PCP).
The lower court subsequently found Higgins in violation of the conditions of
his probation and re-sentenced him to time-served to 12 months’
imprisonment, with eligibility for immediate parole upon approval of a parole
plan. This timely appeal followed, in which appellant argues that “the
evidence presented at the time of the Gagnon II hearing was [in]sufficient to
prove that the Defendant had used illegal drugs while under supervison[.]”
Appellant’s Brief at 7.1
Our review of a sentence imposed following the revocation of
probation is limited to “determining the validity of the probation revocation
proceedings and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial sentencing.” 42
Pa.C.S.A. § 9771(b). See also Commonwealth v. Fish, 752 A.2d 921,
923 (Pa. Super. 2000). “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.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.
2008) (citations omitted).
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1
Higgins included an additional claim in his Rule 1925(b) statement, which
he abandoned on appeal.
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A court may revoke an order of probation upon proof of the violation of
specified conditions of the probation. See Commonwealth v. Infante, 888
A.2d 783, 791 (Pa. 2005). “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.” Id., at 791.
Moreover, even technical violations are sufficient to trigger revocation. See
Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).
In this case, the probation officer testified at the revocation hearing
that Higgins’s recently administered urine test was positive for PCP. See
N.T., Revocation Hearing, 1/13/15, at 17-18. The probation officer, in
compliance with probation department protocol, sent the urine sample to
another lab for further testing. A toxicology expert from that lab testified
about the verification process of urine samples that are sent by the
probation department and confirmed that Higgins’s urine sample was
“received intact and there was no leakages and seal was intact.” Id., at 6-7.
The expert further testified that he personally certified Higgins’s positive
drug-test results. See id., at 8.
As the testimony indicates, Higgins tested positive for illegal use of
PCP while on probation. Higgins’s use of illegal drugs is in direct violation of
the specified conditions of his probation. See Sierra, 752 A.2d at 912
(technical violations of probation are sufficient to trigger revocation). Based
on the testimony, we find no abuse of discretion in the court’s revocation of
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Higgins’s probation. Higgins’s averment that the Commonwealth failed to
present sufficient evidence to demonstrate his use of illegal drugs and
consequential violation of probation lacks merit.2 His use of illegal drugs
only days after the start of his probationary sentence is clear evidence that
“probation has proven to have been an ineffective vehicle to accomplish
rehabilitation.” Id., at 912.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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2
Not surprisingly, Higgins does not advance any evidence or cite to any
legal authority to support his dubious proposition that the positive urine drug
test was insufficient to prove that he actually ingested PCP.
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