Com. v. Bozek, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TIMOTHY D. BOZEK
Appellant No. 1220 MDA 2021
Appeal from the Judgment of Sentence Entered August 17, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002917-2014
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 22, 2022
Appellant Timothy D. Bozek appeals from the August 17, 2021 judgment
of sentence entered in the Court of Common Pleas of Luzerne County (“trial
court”) following the revocation of his special probation for failure to obtain
approved housing. After careful review, we affirm.
Unless otherwise specified, the facts of this case come from the trial
court’s November 19, 2021 opinion. See Trial Court Opinion, 11/19/21, at 2-
9. On May 19, 2015, following a jury trial, Appellant was convicted of ten
counts of sexual abuse of children—possession of child pornography and one
count of criminal use of a communication facility.1 On August 14, 2015, the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
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trial court sentenced Appellant to an aggregate term of 30 to 60 months’
imprisonment for possession of child pornography followed by five years’
probation for criminal use of a communication facility. The trial court also
ordered Appellant to register for life as sexual offender under the Sexual
Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.10-9799.41. On May 13, 2021, Appellant’s five-year maximum term
of incarceration expired.
However, via a letter dated May 10, 2021, a few days before Appellant’s
maximum term expired, the Pennsylvania Parole Board (the “Board”)
requested that the trial court hold a status conference and issue a detainer
because Appellant did not have an approved residence or home plan. The
letter stated in relevant part:
On May 13, 2021, the Scranton District Office received the above
named offender, from the Parole Staff at SCI Rockview, following
the offender reaching his maximum expiration of sentence on May
13, 2021. He has a five-year special probation imposed by Your
Honor.
At the current time, [Appellant] has no approved residence, and
is a registered sex offender who will be homeless.
The Board is requesting, that a detainer be lodged against [him]
and that a status hearing be scheduled in order to address
[Appellant’s] homelessness. It should be noted that [Appellant]
has an extensive mental health history requiring intensive
monitoring and poses a significant risk to public.
Letter, May 10, 2021, at 1 (sic) (emphasis added). The Board was concerned
that, as a registered sex offender, Appellant would be homeless upon his
release from prison.
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Additionally, Appellant has serious health issues. While in prison, his
physical and mental condition deteriorated to the point where he could not
walk, used a wheelchair, wore adult diapers and could not hear clearly.
Considering his health conditions, the Board deemed it critical for him to have
appropriate housing upon his release.
Seemingly agreeing with the Board’s request,2 the trial court issued a
detainer pursuant to which Appellant was moved to Luzerne County
Correctional Facility (“LCCF”) upon his release from prison on May 13, 2021.3
As a result, Appellant commenced his term of probation at LCCF.
On May 19, 2021, as per the Board’s request, the trial court held a status
conference,4 at the start of which Appellant complained that the Board would
not “let [him] go live [with his] friends” or “find a home to live [in].” N.T.,
Hearing, 5/19/21, at 4.-5. Appellant explained that he had a friend that he
could go live with, but that he did not know this friend’s address. Id. at 5.
According to Appellant, this friend lived in either Dallas or Trucksville and that
he knew how to get to the residence. Id. (“I know at the light you turn left,
go up the top of the hill and make a right.”). When asked, Appellant testified
that his friends’ name was Maribel and Ennio Badilla. Id. He further testified
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2 The record is silent on whether, prior to or concurrently with the Board’s
request for a detainer, Appellant was notified that he violated a condition of
probation.
3 Because Appellant does not challenge the trial court’s authority to ex parte
issue a detainer in the absence of a probation violation, technical or otherwise,
we decline to examine the propriety of the trial court’s action in this regard.
4 At this hearing, the witnesses were not sworn in or placed under oath.
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that he believed Ennio was affiliated with Badilla Construction, a roofing
company. Id. Appellant also conceded that he had not spoken with his friends
in over six years and did not know their phone number. Id. at 8-9, 13-14.
With respect to nursing home placement, Appellant was adamant that
he did not want to go to a nursing home or personal care home because they
would take his Social Security payments. Id. at 12. Appellant explained that
he owed money to his brother and Badilla and he would not be able to repay
them if he were placed in a nursing home. Id.
Appellant appeared at the status conference in a decompensated state.
He was in a wheelchair and unable to walk without assistance. Id. at 15.
Appellant is diabetic and lost a toe during his incarceration due to diabetes
complications. Id. at 16-17. Moreover, Appellant is deaf, wears adult diapers,
and cannot not use the bathroom without assistance. When Appellant
reported to the Board’s office, two agents had to assist him in changing his
diaper. Id. at 14. Finally, Appellant stated that he was on suicide watch at
the LCCF.5 Id. at 18-19.
The Commonwealth presented the testimony of Agent Jeremiah
Johnson, State Parole, who testified that the Board requested this hearing to
address the issue of Appellant’s homelessness and his current health status.
Id. at 5-6, 11. Agent Johnson testified that the Area Agency on Aging
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5The record is bereft of any indication whether the Commonwealth considered
Appellant eligible for commitment under the Mental Health Procedures Act, 50
P.S. § 7101, et seq. in light of his suicidal ideations.
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determined that Appellant was qualified for placement in a nursing home. Id.
According to Agent Johnson, during the last couple of months, while he was
incarcerated, Appellant was presented with placement options. Id. at 6.
Appellant declined all options.
On numerous occasions he refused to go to those—to any of those
locations, refused to sign releases of information so he could be
considered for placement in any of those facilities. And he was
very combative verbally to each of the social workers when they
did try to attempt it.
Id. Agent Johnson further testified that the Board spoke with Appellant’s
brother who indicated that he would arrange for a hotel room for Appellant for
only one night. Id. at 6-7. The brother was not offering permanent housing
or medical assistance. The Board rejected Appellant’s proposed home plan
involving his brother because the brother was willing to pay for a room for
only a single night and because Appellant could not be supervised in a hotel.
Id. at 7. Agent Johnson explained that because of state conditions prohibiting
sex offenders from residing in a building that houses minors and the potential
for minors to stay in the same hotel at any given time, the Board determined
that a hotel was not a viable home plan. Id.
With respect to Maribel and Badilla, Agent Johnson testified that
Appellant had not provided any information on these individuals prior to the
status conference and an internet search for Badilla construction yielded no
results. Id. at 10, 13.
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According to Agent Johnson, the Board was trying to secure a safe
location for Appellant to reside because he is unable to care for himself to the
extent that if he were homeless, he would be a harm to himself. Id. at 14.
Appellant clearly could not maintain his daily life necessities. Id.
At the close of the hearing, Appellant’s counsel agreed to try to contact
Badilla and Appellant’s brother to see if they were willing to assist with
securing suitable housing and obtaining medical care. Id. at 10, 19.
Appellant’s counsel also indicated that the social workers in the public
defender’s office had experience in finding housing for individuals with a
higher level of need and would assist Appellant in this regard. Id. at 17. A
follow-up status conference was scheduled for May 28, 2021.
On May 20, 2021, the Board, for the first time, issued a revocation notice
to Appellant, alleging technical violations of his special probation. In
particular, the Board claimed that Appellant violated, inter alia, the second
condition of his probation: “Your residence may not be changed without
written permission of the parole supervising staff.” In support, the Board
claimed that Appellant had not submitted a home plan and that he refused
possible home plan options offered to him on April 20, April 21, and April 22,
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2021, while incarcerated. On May 24, 2021, Appellant waived his Gagnon I6
hearing.
At the May 28 Gagnon II hearing, it was determined that the issue of
Appellant’s lack of suitable housing remained unsolved and his health issues
made it virtually impossible for him to live alone. Moreover, Appellant’s
attorney indicated that she was unable to locate the Badillas and that,
although she attempted to contact Appellant’s brother, she was unable to
speak with him. N.T., Hearing, 5/28/21, at 5, 7. The attorney also confirmed
that the social workers from the public defender’s office were working on
finding Appellant a placement, but that it would likely take more time because
of the serious nature of Appellant’s needs and his sexual offender registration
status. Id. at 5.
Next, Agent Johnson testified that the Board was able to contact
Appellant’s brother and that the brother indicated he did not want anything to
do with Appellant. Id. at 10-11. Agent Johnson further testified that there
were two treatment providers for sexual offenders located in Luzerne County
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6 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before parole or probation may
be revoked:
[A] parolee [or probationer] is entitled to two hearings, one a
preliminary hearing [Gagnon I] at the time of his arrest and
detention to determine whether there is probable cause to believe
that he has committed a violation of his parole [or probation], and
the other a somewhat more comprehensive hearing [Gagnon II]
prior to the making of a final revocation decision.
Id. at 781-82.
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and that neither one of them would provide treatment to individuals, such as
Appellant, who deny having committed any sexual offenses and assert their
innocence. Id. at 11, 13.
At the conclusion of the hearing, the trial court continued the revocation
hearing to June 25, 2021 to allow the public defender’s office additional time
to find an appropriate housing for Appellant. On June 21, 2021, the June 25
hearing was rescheduled to June 30, 2021.
At the June 30 hearing, Appellant stated that he was not feeling any
better. N.T., Hearing, 6/30/21, at 3. He further stated he needed 48 hours
to locate his friends in Trucksville or Dallas. Id. at 3-4. When questioned
whether he would accept placement at South Hills Rehab or any facility where
he would be considered for admission, Appellant answered in the affirmative.
Id. at 18-19, 25-27.
His attorney stated that, given Appellant’s convictions, his registration
status, and the higher level of care required for him, the social workers from
the public defender’s office were not yet able to locate housing for Appellant.
Id. at 4, 16 (“[W]e have not found anywhere that will accept both the
registration status and can provide the level of care. I know we have places
that can do one or the other.”). Appellant’s attorney also stated that she
would research South Hills Rehab, a facility initially proposed by the Board
and that considered accepting him, but which Appellant refused prior to his
release from state prison. Id. at 17-18, 22. Appellant’s attorney noted on
the record that the Department of Corrections and the Area Agency on Aging
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contacted numerous nursing homes to find suitable housing for Appellant. Id.
at 21. However, their efforts were unsuccessful because some of the
contacted facilities advised them that they either would not accept Appellant,
or that there was no availability. Id. The remaining facilities simply failed to
respond to the inquiries. Id.
Agent Johnson testified that when Appellant was given an opportunity
to go to a nursing home, arrangement for which was to be made by the
Department of Corrections prior to his release, Appellant refused to do what
was then necessary to be considered for placement. Id. at 5. He further
testified that the Board searched, without success, for the names and locations
for individuals who Appellant previously indicated might be able to provide
him housing and care. Id.
At the conclusion of the hearing, the trial court again continued the
revocation hearing to August 17, 2021 to allow additional time to find a
suitable placement for Appellant.
At the August 17 hearing, the Commonwealth laid out its basis for
seeking the revocation of Appellant’s special probation. N.T., Hearing,
8/17/21, 5. In this regard, the Commonwealth reiterated its claim that
Appellant committed a technical violation of his probation. Id. Specifically,
he violated the second condition of his probation, i.e., residence may not be
changed without written permission. Id. In support, the Commonwealth
alleged that Appellant failed to provide a home plan and that he refused to
accept possible home plan options offered to him. Id. at 5-6. The
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Commonwealth noted that to the extent Appellant submitted a home plan, it
was rejected because it involved his brother securing a hotel room for him for
a single night. Id. at 7. Indeed, the brother indicated to the Board that he
would not assist Appellant in finding appropriate housing. Id. Agent Johnson
testified that he was not aware of any facility in this Commonwealth that would
accept Appellant. Id. at 12-13. Agent Johnson also requested that, upon
revocation of Appellant’s probation, the trial court make Appellant eligible for
immediate parole upon imposing a prison sentence. Id. at 15.
I would state if he could be made immediately eligible for parole
by the court so that he may be placed onto parole supervised by
the state, not on special probation, at that point we may be able
to put him into a facility where he would be able to be in
treatment, as well as no longer incarcerated.
Id.
Appellant, who appeared at the hearing using a walker, testified that he
signed papers to be considered for placement at South Hills Rehab and another
facility, but never heard back. Id. at 9, 11. Agent Johnson, however, testified
that he was unaware of Appellant signing papers. N.T., Hearing, 8/17/21, at
11.
Based on this evidence, the trial court found that Appellant had “[n]o
viable options at this point.” Id. at 13. As a result, the trial court revoked
Appellant’s special probation for his underlying conviction of criminal use of a
communication facility and resentenced him to three months to five years’
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incarceration. Id. at 16. The trial court awarded Appellant 96 days’ credit for
time served from May 13, 2021 until August 17, 2021. Id. at 17.
Appellant did not file any post-sentence motions, but filed a timely
notice of appeal to this Court. The trial court directed Appellant to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
complied, challenging the trial court’s authority to anticipatorily revoke his
probation for a technical violation. In this regard, he asserted that his
probation was revoked while he was incarcerated and prior to the
commencement of probation. In response, the trial court issued a Pa.R.A.P.
1925(a) opinion.
On appeal,7 the crux of Appellant’s argument is that the Commonwealth
failed to present sufficient evidence to prove that Appellant violated the
second condition of his probation.8 In other words, Appellant does not
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7 “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. Smith, 669 A.2d 1008, 1011 (Pa. 1996).
8 Insofar as Appellant relies upon Commonwealth v. Simmons, 262 A.3d
512 (Pa. Super. 2021) (en banc) to argue that the trial court anticipatorily
revoked his probation, the reliance is misplaced because Simmons is factually
distinguishable. In Simmons, this Court overruled longstanding precedent
that allowed courts to anticipatorily revoke probation based on crimes
committed while a defendant was on parole. The Court in Simmons held that
where a court has imposed a sentence of probation to be served consecutive
to a term of incarceration and a defendant commits a crime while on parole,
the trial court may find only a violation of parole. Simmons, 262 A.3d at
523-27. The court cannot find an anticipatory violation of probation. Id.
Here, unlike in Simmons, Appellant’s probation was not revoked
(Footnote Continued Next Page)
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challenge any condition of his probation, but merely argues that the evidence
was insufficient to prove that he violated the second condition.
A challenge to the sufficiency of the evidence supporting the revocation
of probation is a question of law subject to plenary review. Commonwealth
v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal denied, 945
A.2d 169 (Pa. 2008). We must determine whether the evidence admitted at
the revocation hearing and all reasonable inferences drawn therefrom, when
viewed in the light most favorable to the Commonwealth, is sufficient to
support the conclusion that the probationer violated the terms of probation.
Id.Before the trial court may revoke probation, the court must find, “based
on the preponderance of the evidence, that the probationer violated a specific
condition of probation or committed a new crime[.]” Commonwealth v.
Parson, 259 A.3d 1012, 1019 (Pa. Super. 2021) (citations omitted). “Unlike
a criminal trial where the burden is upon the Commonwealth to establish all
of the requisite elements of the offenses charged beyond a reasonable doubt,
at a revocation hearing the Commonwealth need only prove a violation of
probation by a preponderance of the evidence.” Commonwealth v.
Moriarty, 180 A.3d 1279, 1286 (Pa. Super. 2018) (citation omitted). As our
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anticipatorily. Appellant was released from state prison upon serving his
maximum term. Upon release, he was shuttled to LCCF to begin his term of
probation. While serving his probationary term, Appellant was slapped with
technical violations, which resulted in the revocation of his probation. Simply
put, the revocation was not anticipatory as he was on probation.
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Supreme Court has explained, “preponderance of the evidence is ‘a more likely
than not inquiry,’ supported by the greater weight of the evidence; something
a reasonable person would accept as sufficient to support a decision.”
Commonwealth v. Batts, 163 A.3d 410, 453 (Pa. 2017) (citations omitted).
With the foregoing principles in mind, and based upon our extensive
review of the record, viewed in the light most favorable to the Commonwealth,
we cannot agree with Appellant that the Commonwealth failed to present
sufficient evidence to establish that he violated the second condition of his
probation.9 Here, as detailed earlier, on May 13, 2021, upon completion of
his five-year maximum sentence for multiple counts of possession of child
pornography, Appellant was whisked away to LCCF on a detainer issued on
the Board’s concern that Appellant lacked a home plan and would become
homeless upon his release from SCI Rockview.10 As a result, Appellant
commenced his five-year term of special probation at LCCF. During the
hearings that followed, it became clear that the Board felt compelled to detain
Appellant at LCCF because he simply had nowhere to go and would become
homeless if not detained. An ancillary concern was that, given his physical
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9 Appellant does not argue that the Commonwealth failed to present any
evidence that an approved home plan was a condition of his probation.
Nonetheless, we note the record is devoid of any evidence that homelessness,
while a basis of the revocation, was a violation of Appellant’s probation.
10 The court suggested that, if not imprisoned, Appellant would either be
homeless or fail to properly register under SORNA, resulting in arrest and
criminal charges.
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and medical conditions, Appellant could not care for himself and, therefore,
required placement in a nursing facility.
The trial court noted that, prior to his release from prison, Appellant
repeatedly refused to do what was then necessary to be considered for
placement in a nursing home. Even after his release, especially during the
May 19 status hearing, Appellant was adamant in his refusal to be placed in a
nursing home. He reasoned that a nursing home or a personal care home
would take his social security payments. Appellant did not want to part with
his social security payments because, as he explained, he needed that money
to repay debts he owed to his brother and friends. To the extent Appellant
claims that he signed papers to be considered for placement, Agent Johnson’s
testimony directly contradicted Appellant’s claim. See Commonwealth v.
Sanchez, 848 A.2d 977, 982 (Pa. Super. 2004) (in sufficiency of evidence
review, conflicts in testimony are resolved in favor of the verdict winner). In
Sanchez, we noted that “[w]hile there is a great deal of contradictory
testimony in this case, we are constrained to resolve all conflicts in favor of
the Commonwealth. In so doing, we are compelled to find that appellant’s
convictions were supported by sufficient evidence.” Id. Here, the trial court
credited Agent Johnson’s testimony on this issue, considering that the court
found in favor of the Commonwealth and revoked Appellant’s probation.
Further, his continued denial that he committed any crime rendered him
ineligible for placement at two facilities in Luzerne County.
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Moreover, Appellant also did not present any viable, non-nursing home
options. The trial court found that his brother was not a resource because the
brother was willing to put Appellant up in a hotel room for a single night and
could not provide or arrange for any medical care for him. Appellant’s
proposal to live with his friends likewise was not viable because he had not
spoken to them in over six years and he did not know their telephone number
or where they lived. It was thus solely on the basis of his refusal to be placed
in a nursing home and failure to submit any non-nursing home alternatives
that the Commonwealth charged Appellant with a technical violation of his
probation for failure to submit a suitable home plan. In light of the record
evidence, and given the unique circumstances of this case, we are constrained
to agree with the trial court that the Commonwealth presented sufficient
evidence to prove that Appellant violated the second condition of his
probation.
Accordingly, we affirm Appellant’s judgment of sentence following
revocation of his probation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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