Com. v. Borochaner, A. ( 2018 )

J-S03041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ANDREW J. BOROCHANER :
: No. 3671 EDA 2016
Appellant
Appeal from the Judgment of Sentence October 28, 2016
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003029-2015,
CP-09-CR-0005280-2014, CP-09-CR-0006441-2014,
CP-09-CR-0007781-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 09, 2018
Appellant, Andrew J. Borochaner, appeals from the judgment of
sentence imposed following revocation of his probation. We affirm.
The lower court sets forth the pertinent factual and procedural history
as follows:
On October 6, 2016, after an extensive colloquy before [the lower
court], at which time [it was] determined that Appellant was
competent to proceed in these matters, Appellant entered into
negotiated pleas of nolo contendere to [four docketed cases
stemming from five separate criminal informations.][fn]
[fn] In exchange for Appellant’s negotiated pleas, the
Commonwealth nolle prossed all charges contained in a fifth
information including unlawful restraint, reckless endangerment,
simple assault and false imprisonment.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S03041-18
Under [the fourth docketed case], Appellant had been charged
with use/possession of drug paraphernalia and was sentenced to
a term of county probation of six (6) months.
Under [the second docketed case], Appellant had been charged
with accident involving damage to attended vehicle or property,
driving the wrong way, driving over the divider, failure to stop and
render aid, and operating a motor vehicle without required
financial responsibility. For the charge of accident involving
damage to attended vehicle or property Appellant was sentenced
to a term of county probation of one (1) year, concurrent to his
sentences under [the fourth and third docketed cases], and a
mandatory minimum fine of $100.00 was imposed for the charge
of operating a motor vehicle without required financial
responsibility.
Under [the third docketed case], Appellant had been charged with
disregarding traffic lane, operating a motor vehicle without
required financial responsibility, and driving under the
influence/general impairment – 1st offense. Appellant was
sentenced on the DUI charge to six (6) months of probation,
concurrent to the sentence under [the fourth docketed case], and
to pay a mandatory fine of $300.00. No further penalties for the
remaining charges were imposed.
Under [the first docketed case], Appellant was charged with
criminal defiant trespass, criminal trespass – entering a structure,
and disorderly conduct. Appellant was sentenced to a term of
county probation of one (1) year on Count 1, defiant trespass, to
be served concurrently with the sentences under [the other three
docketed cases], and to a term of probation of one (1) year on
Count 3, disorderly conduct, consecutive to the sentence issued
under Count 1.[fn] . . . .
[fn]As a result of the negotiated plea, the Commonwealth sought
leave to nolle prosequi Count 2, criminal trespass – entering a
structure . . . and amend Count 1, from criminal trespass –
breaking into a structure . . . which was a felony of the second
degree, to criminal defiant trespass . . . which was a misdemeanor
of the third degree. [The lower court] also granted that request.
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[Accordingly, Appellant was placed on a two-year period of
probation.] Appellant was also ordered to continue with his
mental health and/or drug and alcohol treatment and pay the
costs of prosecution. In addition, Appellant was warned that any
violation of his probation would result in a return for a hearing
before [the lower court] and a determination for the need for
resentencing.
A probation violation hearing was subsequently scheduled and
held on October 28, 2016. Appellant’s Probation Officer testified
that after [Appellant’s] sentencing on October 6, 2016, Appellant
reported to the intake of the Adult Probation and Parole
Department (“Department”) but did not stay to meet with the
Probation Officer. The Probation Officer testified that Appellant
was directed on the following day, Friday, October 7, 2016, to
report to the Department but called later that day and said he
could not make it. As a result of an upcoming holiday Appellant
was told to report on October 11, 2016, but called on that day and
said he again could not make it, at which point he was advised
that a bench warrant would be issued for his arrest. On October
17, 2016, the Department received notice of possible drug activity
at the address Appellant had provided on his offender information
sheet. On October 20, 2016, after a search warrant was issued,
Appellant’s residence was searched and Appellant was taken into
custody. According to the Probation Officer, a firearm, knives,
methadone, Suboxone and suspected methamphetamine were
found in Appellant’s room during the search. (N.T. 10/28.16, pp.
2-5.)
As a result, the Department requested that Appellant be found in
violation of his probation and it be revoked. It was further
recommended that he be sentenced to six to twelve months’
incarceration on Count 1 and a consecutive one year term of
probation on Count 3 under [the first docketed case]; that his
term of probation of one year under [the second docketed case]
be reinstated consecutive to Count 1 of [the first docketed case];
that his term of probation under [the third docketed case] be
reinstated for six months consecutive to Count 3 of [the second
docketed case]; and that his probation under [the fourth docketed
case] be reinstated for six months consecutive to [the third
docketed case].
Appellant then testified in his own defense that he never
absconded because after reporting to the Department intake on
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October 6, 2016, he felt dizzy and sick and needed to get
something to eat and therefore left. He said he did not report on
October 11, 2016, because he had “severe pain in his neck” and
could not get anyone to drive him. He said he was going to report
to the Department on October 17, 2016, but was involved in an
altercation on October 16, 2016, and was taken by ambulance to
the hospital and received six stitches for a cut over his eye. He
acknowledged that he should have contacted his Probation Officer
but stated he was too “embarrassed” because of the cut to contact
him. He then testified that when he came home on October 20,
2016, and was taken into custody, he had been “out all night”
apparently at a casino and at “a girlfriend’s house.” N.T.
10/28/16, at 11-18.
At the conclusion of the hearing, [the lower court] admonished
Appellant for not complying with the conditions of his probation,
and in particular for his proximity to drugs and a firearm in his
residence, and we found him in violation of his probation. He was
thereafter sentenced [to not less than six nor more than 12
months’ incarceration under the first docketed case, to be followed
by an aggregate two years’ probation under the remaining
docketed cases]. N.T., at 23-27.
Trial Court Opinion, 3/15/17, at 1-4.
Appellant filed a timely post-sentence motion presenting a number of
issues, including a weight of the evidence challenge against the court’s
determination that he had violated his probation. The court conducted a
hearing and denied Appellant’s motion. N.T. 11/23/16, at 21-24. Appellant
timely appealed to this Court and filed a court-ordered Pa.R.A.P. 1925(b)
concise statement asserting a single issue: “Whether the finding of a violation
of probation on October 28, 2016, was against the weight of the evidence.”
Pa.R.A.P. 1925(b) statement, 1/31/17.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
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judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033–34 (Pa.Super. 2013).
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 abuse of discretion.
Commonwealth v. Perreault , 930 A.2d 553, 557-58 (Pa.Super. 2007)
(quotations and citations omitted). An abuse of discretion is more than an
error of judgment, such that a sentencing court will not be found to have
abused its discretion unless the record discloses that it ignored or misapplied
the law, or that the judgement exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill will. Commonwealth v. Highland,
875 A.2d 1175, 1184 (Pa.Super. 2005).
Probation is a privilege, not an absolute right. Commonwealth v.
McNeil, 665 A.2d 1247, 1252 (Pa. Super. 1995). Further, probation
revocation requires only a truncated hearing by the sentencing court to
determine whether probation remains rehabilitative and continues to deter
future antisocial conduct. Commonwealth v. Mullins, 918 A.2d 82, 86 (Pa.
2007). A violation of probation hearing takes place without a jury, with a
lower burden of proof, and with fewer due process protections. Id. Technical
violations are sufficient to trigger probation revocation. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).
As a prefatory matter, we observe that Appellant's brief does not include
a recitation of his question presented on appeal in violation of Pa.R.A.P. 2116.
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Generally, we deem waived issues not presented in the statement of questions
involved. Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001)
(citation omitted) (noting “generally, questions not presented in the
‘Statement of Questions Involved’ are deemed waived.”); Commonwealth v.
Bryant, 57 A.3d 191, 196 n.7 (Pa. Super. 2012) (finding weight and
sufficiency challenges waived for failure to include them in statement of
questions presented). Insofar as Appellant has failed to raise his challenge to
the trial court's revocation of probation in a statement of the question
presented, we find the issue waived. Long, supra; Pa.R.A.P. 2116.
Even if we assumed, arguendo, that Appellant properly raised his
challenge before us, he would not be entitled to relief. Appellant argues that
the verdict was against the weight of the evidence. Specifically, he maintains
that his testimony established he did not abscond or otherwise flout his
reporting obligations when he failed to report to the probation office as
required. Contrary to the position taken by the Commonwealth, Appellant
insists his testimony proved he was simply incapable of reporting despite his
good faith intentions because of either poor health or difficulties in obtaining
transportation. See Brief of Appellant, at 3.
This Court has previously explained, however, that weight of the
evidence claims involving conflicts in testimony and credibility determinations
are unavailing in an appeal from probation revocation:
We find no authority for appellant's assumption that a challenge
to the weight of the evidence may properly be entertained on
appeal from parole revocation by the trial court. It is clear that
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such a challenge is not available from parole revocations entered
by the Pennsylvania Board of Probation and Parole. Moreover,
regardless of whether such challenges may be raised from
common pleas court parole revocations, we do not find that the
alleged conflicts in the juvenile witnesses' testimony render the
finding of technical parole violations contrary to the weight of the
evidence. Rather, the conflicts raised issues of credibility which
were for the finder of fact to resolve. We find no abuse of
discretion in this respect.
Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa.Super. 1988)
(citations omitted).
We discern no reason to distinguish this explanation of applicable law
merely because McDermott involved a violation of parole rather than
probation. Accordingly, we apply the reasoning therein to the case sub judice
and find Appellant’s claim unreviewable as presented.
Moreover, Appellant’s weight claim, even if it were reviewable, would
not merit relief.
In assessing the trial court's ruling [on a weight of the evidence
claim], we must “review [ ] the trial court's exercise of discretion,
not the underlying question of whether the verdict is against the
weight of the evidence.” Commonwealth v. Smith, 604 Pa. 126,
985 A.2d 886, 888 (2009). The fact-finder is free to believe all,
part, or none of the evidence; an appellate court will not make its
own assessment of the credibility of the evidence.
Commonwealth v. Ramtahal, 613 Pa. 316, 33 A.3d 602, 609
(2011). “The trial court will only award a new trial when the jury's
verdict is so contrary to the evidence as to shock one's sense of
justice.” Id. In turn, we will reverse a trial court's refusal to
award a new trial only when we find that the trial court abused its
discretion in not concluding that the verdict was so contrary to the
evidence as to shock one's sense of justice. In effect, “the trial
court's denial of a motion for a new trial based on a weight of the
evidence claim is the least assailable of its rulings.” Id.
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Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa.Super. 2013). The
Commonwealth need only establish a probation violation by a preponderance
of the evidence, which “is the lowest burden of proof in the administration of
justice and . . . is defined as the greater weight of the evidence, i.e., to tip a
scale slightly in one's favor. Commonwealth v. Ortega, 995 A.2d 879, 886
n.3 (Pa.Super. 2010).
In this case, questions of credibility were for the trial court to decide as
the finder of fact. At the revocation hearing, the court assessed the credibility
of Adult Probation and Parole Officer Luke Walker and found him to be credible.
The court also considered Appellant’s explanations for failing to report to the
Adult Probation Intake Department as ordered and found his testimony to be
incredible. Specifically, the court opined:
Appellant failed to meet with his Probation Officer immediately
after his sentencing on October 6, 2016, as he was required to do.
It was also undisputed that Appellant repeatedly failed to meet
with the Probation Officer or report to the Adult Probation and
Parole Department after he was provided with several additional
opportunities to make up for his initial failure to meet with him.
Appellant was only taken into custody on October 20, 2016, after
a bench warrant was issued, and after a search warrant had been
executed in response to a report received three days earlier that
illegal activities were allegedly occurring at the recovery house
where Appellant was residing.
This court further noted that the explanations that Appellant
provided for his failures to meet with his Probation Officer did not
sufficiently justify his conduct. For example, after Appellant was
provided with an opportunity to report to the Department on
October 11, 2016, Appellant claimed that he was unable to do so
because of . . . severe neck pain; yet rather than report to Adult
Probation, he was able to involve himself in an altercation five
days later which required hospitalization. Furthermore,
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Appellant’s own testimony revealed that once again, rather than
report to adult Probation as required, he chose instead to
participate in activities at a casino and stay “out all night” with a
girlfriend prior to being taken into custody on the following day.
Finally, the Probation Officer’s unrebutted testimony revealed that
after a search of Appellant’s residence was executed, a firearm,
knives and various drugs were found in Appellant’s bedroom,
clearly indicating that Appellant was in the presence of and close
proximity to such prohibited items.
Despite Appellant’s assurances to this court at all of the previous
hearings that he would abide by the conditions of his probation,
Appellant’s actions did not reveal an intention to do so. Due to
the number and nature of the various charges contained in the
above-captioned four dockets that the Commonwealth chose to
prosecute, this court concluded that Appellant’s sentences of
probation alone had not yet had any rehabilitative effect on him,
nor had it sufficiently deterred Appellant against future antisocial
conduct. [This court, therefore] sentenced Appellant to the Adult
Probation and Parole Department’s recommendation of a period of
incarceration of six to twelve months in the Bucks County
Correctional Facility, to be followed by three years of probation.
Trial Court Opinion, at 6-7.
From this record, we identify no basis on which to assail the court’s
exercise of discretion in denying Appellant’s post-sentence weight of the
evidence claim, were we to review the claim on its merits. As such, we reject
Appellant’s challenge to the revocation of his probation.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/18
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