Com. v. Clausell, D. ( 2022 )

J-S17041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
Vv.
DEMETRIUS CLAUSELL
Appellant No. 1504 EDA 2021
Appeal from the Judgment of Sentence Entered July 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007166-2017
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER O1, 2022
Appellant, Demetrius Clausell, appeals from the July 8, 2021 judgment
of sentence, imposed after revocation of probation, of an aggregate three to
six years of incarceration followed by three years of probation. We affirm.
The trial court set forth the pertinent facts and procedural history in its
Pa.R.A.P. 1925(a) opinion:
The underlying arrest stemmed from the execution of a
search warrant on July 21, 2017 of Appellant’s residence at 405
Kerper Street, Apartment i, in the City and County of
Philadelphia. Appellant was present during the search when
investigators recovered seventy-four (74) grams of crack-
cocaine, a forty-caliber cartridge, a nine-millimeter magazine, as
well as a revolver and a forty-caliber handgun. Appellant was
subsequently arrested and arraigned. On September 17, 2018,
Appellant tendered to this Court a fully negotiated guilty plea to
two felony offenses, Manufacture, Delivery, Possession with
Intent to Manufacture or Deliver, ungraded felony, 35 [P.S.
§ 780-113(a)(30)] and Violation of the Uniform Firearms Act-
Possession of a Firearm Prohibited, [first-degree felony, 18
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Pa.C.S.A. § 6105(a)(1)]. Consistent with negotiations facilitated
by and between counsel, this court sentenced Appellant to
concurrent terms of eleven and a half (11.5) months to twenty-
three (23) months of county incarceration, followed by five (5)
years of probation for each charge. [...] Appellant was verbally
warned that this court had accepted very merciful negotiations
well below recommended guidelines with the caveat that his
violation of the terms and conditions of his probation, could
result in imposition of confinement to a term of up to thirty (30)
years.
[...]
On February 7, 2019, Appellant petitioned for parole and
this Court granted his motion the following day following
hearing. Appellant was once again cautioned to follow the terms
and conditions of his probation. Despite his explicit promise to
abide by those conditions, Appellant tested positive for cocaine
on November 19, 2019. Contrary to the language of the order of
Sentence that had directed a hearing to occur upon revelation of
the ‘first hot urine,’ the Adult Probation and Parole Department
never informed this court of Appellant’s positive drug test. On
March 10, 2020, Appellant reported that he had been ‘unable to
provide a sample.’ This refusal reflected a presumed positive
finding. Again, no immediate consequence resulted. Thereafter,
the Covid-19 pandemic afflicted the world, and Appellant
received littlhe supervision and was required to only occasionally
call his assigned probation officer.
On May 15, 2020, around 5:00 p.m., Appellant was
arrested and charged for allegedly riding an ATV recklessly and
erratically throughout a myriad of residential neighborhoods and
streets in Philadelphia and for fleeing pursuing law enforcement
responders. Philadelphia Police Officer Zachary Stout and his
partner, Officer Rosinkski (first name unknown) had reported
that on that same date and time they had been assigned to the
City-Wide ATV/Dirt Bike Detail in an unmarked police vehicle,
wearing plain clothes. Officer Stout testified that they were in
the 35th and the 2nd police districts following flash information
provided by Tact Air III (police helicopter). Tact Air III provided
the patrolling officers with information that a black male wearing
a white shirt and black pants, had been riding a red and blue
ATV erratically throughout the area of the 2nd and 35th Districts.
J-S17041-22
Those large districts are located within the Northeast and
Northwest section of the city.
As Officer Stout and his partner responded, the male that
had been described by and followed by Tact Air III had crossed
directly in front of their automobile. Officer Stout and about ten
(10) motorcycle officers, other marked and unmarked police
vehicles, as well as the Tact Air III police helicopter followed
Appellant for roughly forty-five (45) minutes; officers attempted
multiple times to stop Appellant and signal him to pull his ATV
over to no avail. Officers Stout and Rosinski followed Appellant
for about twenty (20) minutes, observing him ‘riding erratically
on the ATV, going the wrong way up one-ways, riding on
sidewalks, riding head-on into traffic, completely disregarding
red lights, stop lights, stop signs, everything.’ Officer Stout
estimated the ATV driver was going about fifty (50) to (60) miles
per hour on residential streets that had been posted to permit
only twenty-five (25) to thirty-five (35) miles per hour.
Pedestrians jumped out of the path of travel.
Appellant eventually jumped off the ATV on the 2000 block
of West Champlost Street in the City and County of Philadelphia
and attempted to blend himself within a number of people
including children who had been attending a barbecue and block
party. His unsuccessful attempt to flee on foot ended because
Officers had naturally kept in him in their sight and apprehended
him; [Appellant] was charged with various criminal offenses
including Recklessly Endangering Another Person (“REAP”) and
Fleeing or Attempting to Allude [sic] a Police Officer.
After the arrest, on May 17, 2020, the Honorable Idee Fox
issued a Probation Violation Bench Warrant due to Appellant’s
commensurate failure to report as directed to the probation
department which had been finally noticed and reported by the
probation department. Appellant’s Gagnon I[!] Summary was
filed on May 26, 2020, and his Motion to Remove Detainer was
denied by the Honorable Zachary Shaffer on May 28, 2020. On
May 29th, an additional detainer was issued and set to remain
pending a Gagnon II Violation of Probation hearing before this
Court. Appellant’s Gagnon II Summary was filed on June 26,
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
J-S17041-22
2020. The Gagnon reports detailed all alleged violations and
provided due notice.
Appellant’s violation or revocation evidentiary hearing took
place before this court on October 5, 2020. The Commonwealth
presented Philadelphia Police Officer Zachary Stout who credibly
related the events of May 15, 2020 and Appellant’s extended
ATV flight. The positive drug test and refusal to submit to
subsequent testing and noncompliance with the probation
department was admitted. LaDreya Mack, Appellant’s girlfriend
and the mother of his children, testified that Appellant was a
good father and provider for his family. She also testified that
she had been aware of his propensity to ride the ATV and
revealed the location of her garage wherein he had kept the
vehicle; she claimed did not know [sic] he had been riding the
ATV on the day of his arrest; she acknowledged his drug
addiction and impulsive immaturity.
During the violation hearing, Appellant testified incredibly
and contradicted himself; he admitted that he had been riding
the ATV that day, but he denied that he was the person who had
been dangerously driving the ATV during the extensive pursuit.
According to Appellant, he was riding his ATV, but that his bike
just happened to have been parked on the side of the area
where Officer Stout had found him, and it must have been some
other mysterious man who they had been following.
Trial Court Opinion, 9/21/21, at 2-5 (record citations omitted).
At the conclusion of the revocation proceedings, the trial court
imposed sentence as set forth above. This timely appeal followed.
Appellant argues that the evidence in support of revocation was insufficient,
and that the trial court abused its discretion in imposing a sentence of
incarceration. Appellant’s Brief at 6.
Our review 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. Gheen, [...| 688 A.2d
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1206, 1207 (Pa. Super. 1997) (the scope of review in an appeal
following a sentence imposed after probation revocation is
limited to the validity of the revocation proceedings and the
legality of the judgment of sentence). Also, upon sentencing
following a revocation of probation, the trial court is limited only
by the maximum sentence that it could have imposed originally
at the time of the probationary sentence. Id. at 1207-08.
Finally, it is the law of this Commonwealth that once probation
has been revoked, a sentence of total confinement may be
imposed if any of the following conditions exist:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned; or,
(3) such a sentence is essential to vindicate the authority
of court.
42 Pa.C.S.A. § 9771(c). Presently, Appellant challenges the
discretionary aspects of his sentence.
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (some
citation omitted); see also, Pa.R.Crim.P. 708. “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).
In his first assertion of error, Appellant argues the evidence of his
violation is insufficient because Officer Stout, in his testimony at the
Gagnon ITI hearing was not sufficiently specific as to the exact locations of
his pursuit of Appellant. Appellant also notes that charges stemming from
the ATV incident were withdrawn. The trial explained:
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J-S17041-22
As to what happened in the open case, then open case,
there is no finding of not guilty. There is - depending on who
was at fault for not properly preparing the open matter, it did
not proceed.
Trial Court Opinion, 9/21/21, at 8. We are cognizant that revocation of
probation cannot be based on acquittal. Commonwealth v. Brown, 469
A.2d 1371 (Pa. 1983). But there was no acquittal here, nor was the
dismissal of the charges based on evidence that Appellant was innocent.
Furthermore, Appellant’s two failed drug tests—one positive and one
presumed positive—were independent bases for finding Appellant in violation
of his probation. The trial court therefore found, given Appellant’s reckless
and dangerous behavior as eye witnessed by Officer Stout, that Appellant
was likely to commit another crime if not imprisoned. The court also noted
that Appellant persisted in drug use despite receiving a lenient, below-
guideline sentence on the underlying drug and firearm offenses. Thus, the
court also reasoned that imprisonment would vindicate its authority. Trial
Court Opinion, 9/21/21, at 15-18.
We have reviewed the record, the applicable law, the parties’ briefs,
and the trial court opinion. We conclude that the trial court thoroughly and
accurately addresses Appellant’s sufficiency of the evidence argument and
we reject Appellant’s argument on the basis of the trial court’s well-reasoned
opinion of September 21, 2021.
Appellant’s second assertion of error challenges the trial court’s
sentencing discretion. The Rules of Appellate Procedure require appellants
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J-S17041-22
to preserve this issue in a concise statement of the reasons relied upon for
allowance of appeal.
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
Pa.R.A.P. 2119(f). A Rule 2119(f) statement is required in revocation cases.
Fish, 752 A.2d at 923. Where an appellant fails to comply with Rule 2119(f)
and the Commonwealth objects, the issue is waived. Commonwealth v.
Griffin, 149 A.3d 349 (Pa. Super. 2016). Appellant’s brief does not include
a 2119(f) statement, and the Commonwealth has _ objected.
Commonwealth’s Brief at 6-7. This issue is waived. Were we to address this
issue on the merits, we would reject Appellant’s argument based on the trial
court's opinion.
For the foregoing reasons, we affirm the judgment of sentence and
direct that a copy of the trial court’s September 21, 2021 opinion be filed
along with this memorandum.
Judgment of sentence affirmed.
J-S17041-22
Judgment Entered.
seph D. Seletyn, Esq
Prothonotary
Date: 9/1/2022
Circulated 07/26/2022 02:41 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA ) CP-51-CR-0007166-2017
)
)
)
VS. )
SUPERIOR COURT
) NO. 1504 EDA 2021
DEMETRIUS CLAUSELL ) FILED
SEP 22 2021
oe
Appeals/Pest Trial
_ oftice of Judicial Record
a
Demetrius Clausell, as the above-named Defendant and Appellant, seeks review of the
Order and Judgement of Sentence imposed on July 8, 2021 by the Honorable Anne Marie Coyle,
Judge of the Court of Common Pleas for the First Judicial District Criminal Division, hereinafter
referred to as “this Court”. Appellant challenges the sentence imposed following revocation of the
probation periods of supervision due to violations of the terms and conditions set forth in the
previously imposed Orders of Sentence entered on September 19, 2018. Appellant complains that
the underlying revocation decisions had not been supported by evidence of violating conduct and
that the resulting Orders of Sentence had constituted an abuse of discretion. The transcribed record
does not support either appellate claim as recited.
-l-
I. FACTUAL AND PROCEDURAL HISTORY
The underlying arrest stemmed from the execution of a search warrant on July 21, 2017 of
Appellant’s residence at 405 Kerper Street, Apartment 1, in the City and County of Philadelphia.
Appellant was present during the search when investigators recovered seventy-four (74) grams of
crack-cocaine, a forty-caliber cartridge, a nine-millimeter magazine, as well as a revolver and a
forty-caliber handgun. Appellant was subsequently arrested and arraigned. On September 17,
2018, Appellant tendered to this Court a fully negotiated guilty plea to two felony offenses,
Manufacture, Delivery, Possession with Intent to Manufacture or Deliver, ungraded felony, 35 §
780 §§ A30 and Violation of the Uniform Firearms Act-Possession of a Firearm Prohibited, F1,
18 § 6105 §§ Al. Consistent with negotiations facilitated by and between counsel, this Court
sentenced Appellant to concurrent terms of eleven and a half (11.5) months to twenty-three (23)
months of county incarceration, followed by five (5) years of reporting probation for each charge.
Commensurate with imposition of sentence, the specific conditions of parole and probation
were verbally recited and included within the written Orders entered by this Court on September
17, 2018 and reiterated in the parole/probation documents that had been signed as agreed and
acknowledged by Appellant. Those supervisory terms included, but weren’t limited to the
following: reporting as directed to his supervising parole or probation authorities; providing
legitimate residence data; complying with all recommended mental health and drug/alcohol
treatments and submitting to random drug and alcohol testing; actively participating in counseling
and anger management counseling; having zero contact with victims/witnesses; having zero
contact with illegal narcotics and weapons, either on his person, in a home or a vehicle; submitting
to random home and vehicle inspections for illegal narcotics and weapons; completing vocational
training; and upon release for custody, seeking and maintaining legitimate employment and
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providing proof of efforts to his supervising agents. Appellant received due custodial credit for
time served. Additionally, Appellant was verbally warned that this Court had accepted very
merciful negotiations well below recommended guidelines with the caveat that his violation of the
terms and conditions of his probation, could result in imposition of confinement to a term of up to
thirty (30) years. (See N.T. 9/17/18, p. 16).
On February 7, 2019, Appellant petitioned for parole and this Court granted his motion the
following day following hearing. Appellant was once again cautioned to follow the terms and
conditions of his probation. Despite his explicit promise to abide by those conditions, Appellant
tested positive for cocaine on November 19, 2019. Contrary to the language of the Order of
Sentence that had directed a hearing to occur upon revelation of the “first hot urine,” the Adult
Probation and Parole Department never informed this Court of Appellant’s positive drug test. On
March 10, 2020, Appellant reported that he had been “unable to provide a sample.” This refusal
reflected presumed positive finding. Again, no immediate consequence resulted. Thereafter, the
COVID-19 pandemic afflicted the world, and Appellant received little supervision and was
required to only occasionally call his assigned probation officer.
On May 15, 2020, around 5:00 p.m., Appellant was arrested and charged for allegedly
riding an ATV recklessly and erratically throughout a myriad of residential neighborhoods and
streets in Philadelphia and for fleeing pursuing law enforcement responders. Philadelphia Police
Officer Zachary Stout and his partner, Officer Rosinski (first name unknown) had reported that on
that same date and time they had been assigned to the City-Wide ATV/Dirt Bike Detail in an
unmarked police vehicle, wearing plain clothes. Officer Stout testified that they were in the 35th
and the 2nd police districts following flash information provided by Tact Air III (police helicopter).
Tact Air III provided the patrolling officers with information that a black male wearing a white
shirt and black pants, had been riding a red and blue was ATV erratically throughout the area of
the 2"! and 35" Districts. Those large districts are located within the Northeast and Northwest
section of the city.
As Officer Stout and his partner responded, the male that had been described by and
followed by Tact Air III had crossed directly and dangerously in front of their automobile. (N.T.
10/5/20, pp. 28-29, 31). Officer Stout and about ten (10) motorcycle officers, other marked and
unmarked police vehicles, as well as the Tact Air III police helicopter followed Appellant for
roughly forty-five (45) minute; officers attempted multiple times to stop Appellant and signal him
to pull his ATV over to no avail. Officers Stout and Rosinski followed Appellant for about twenty
(20) minutes, observing him “riding erratically on the ATV, going the wrong way up one-ways,
riding on sidewalks, riding head-on into traffic, completely disregarding red lights, stop lights,
stop signs, everything.” (Id. at 30). Officer Stout estimated that the ATV driver was going about
fifty (50) to sixty (60) miles per hour on residential streets that had been posted to permit only
twenty-five (25) to thirty-five (35) miles per hour. Pedestrians jumped out of the path of travel.
(Id. at 31).
Appellant eventually jumped off the ATV on the 2000 block of West Champlost Street in
the City and County of Philadelphia and attempted to blend himself within a number of people
including children who had been attending a barbecue and block party. His unsuccessful attempt
to flee on foot ended because Officers had naturally kept him in their sight and apprehended him;
Mr. Clausell was charged with various criminal offenses including Recklessly Endangering
Another Person (“REAP”) and Fleeing or Attempting to Allude a Police Officer.
After the arrest, on May 17, 2020, the Honorable Idee Fox issued a Probation Violation
Bench Warrant due to Appellant’s commensurate failure to report as directed to the probation
-4.
department which had been finally noticed and reported by the probation department. Appellant’s
Gagnon I Summary was filed on May 26, 2020, and his Motion to Remove Detainer was denied
by the Honorable Zachary Shaffer on May 28, 2020. On May 29th, an additional detainer was
issued and set to remain pending a Gagnon II Violation of Probation hearing before this Court.
Appellant’s Gagnon II Summary was filed on June 26, 2020. The GAGNON reports detailed all
alleged violations and provided due notice.
Appellant’s violation or revocation evidentiary hearing took place before this Court on
October 5, 2020. The Commonwealth presented Philadelphia Police Officer Zachary Stout who
credibly related the events of May 15, 2020 and Appellants extended ATV flight. The positive
drug test and refusal to submit to subsequent testing and noncompliance with the probation
department was admitted. LaDreya Mack, Appellant’s girlfriend and the mother of his children,
testified that Appellant was a good father and provider for his family. She also testified that she
had been aware of his propensity to ride the ATV and revealed the location of her garage wherein
he had kept the vehicle; she claimed did not know he had been riding the ATV on the day of his
arrest; she acknowledged his drug addiction and impulsive immaturity.
During the violation hearing, Appellant testified incredibly and contradicted himself; he
admitted that he had been riding an ATV that day, but he denied that he was the person who had
been dangerously driving the ATV during the extensive pursuit. According to Appellant, he was
riding his ATV, but that his bike just happened to have been parked on the side of the area where
Officer Stout had found him, and it must have been some other mysterious man who they had been
following. (Id. at 56-57). After hearing the evidence and respective arguments on behalf of the
Commonwealth and Appellant, this Court determined that Appellant had violated the previously
acknowledged terms and conditions of his probation and that his cumulative conduct deserved
revocation. His actions had been deemed dangerous and violative of the probationary period of the
Order of Sentence.
Following revocation of probation, Appellant remained remanded to county custody, and
pre-sentence and mental health evaluations were ordered in advance of formal sentencing.
Thereafter, multiple continuances of Appellant’s sentencing hearing were granted largely due to
difficulties related to the COVID-19 pandemic, specifically the “Shelter in Place Order” followed
by prison authorities.
On February 25, 2021, after full and fair evidentiary hearing and thoughtful consideration
of all relevant sentencing factors, the following sentence was imposed:
Count 1: Manufacture, Delivery, Possession with Intent to Manufacture or Deliver,
ungraded felony, 35 § 780 §§ A30: Minimum three (3) years and six (6) months to
maximum seven (7) years of state supervised term confinement, followed by three
(3) years county regular probation;
Count 2: Violation of the Uniform Firearms Act-Possession of a Firearm
Prohibited, F1, 18 § 6105 §§ Al: Minimum three (3) years and six (6) months to
maximum seven (7) years of state supervised term confinement, followed by three
(3) years county regular probation, to run concurrently with Count 1.
Thus, the aggregate sentence imposed was a minimum period of three (3) years and six (6)
months to seven (7) years of state supervised confinement, followed by three (3) years of reporting
probation. Many of the previously directed supervisory and rehabilitative conditions were
reinstated and recited verbally as well as incorporated within Order and Judgement of Sentence
Additional conditions were imposed including the following directions: (1) that Appellant does
not operate an ATV, nor is a passenger on any ATV, and (2) that he attends parenting classes.
On March 5, 2021, Appellant filed a timely counselled post-sentence motion, wherein he
raised the following arguments:
A. “This Court should have granted the continuance request and should schedule a
new Gagnon II hearing.”
B. “Insufficient evidence existed to support the violations for fleeing and eluding and
REAP.”
C. “This Court should resentence Mr. Clausell based only on the cocaine violation.”
On March 5, 2021, this Court granted an evidentiary hearing concerning the defense post-
sentence motions. Again, postponements occurred due to ongoing court administrative scheduling
pandemic difficulties. Thereafter, a hearing to determine the merit of Appellant’s post-sentence
motion was scheduled for June 21, 2021. However, this hearing was postponed because this Court
was conducting a jury trial.
On July 8, 2021, a hearing was held concerning the defense post-sentence motions. Defense
counsel argued for Appellant to be boot camp eligible again and reiterated the arguments in his
motion on the record; namely, (1) that this Court should have waited for the outcome of
Appellant’s open matter to render a decision on his VOP, (2) that insufficient evidence existed to
support the finding of violation for fleeing/eluding, and REAP, citing the opinion that the testifying
officer was not credible, and (3) that Appellant should only be held accountable for the positive
drug test. The Commonwealth presented additional thoughts. Additionally, Mr. Clausell was again
permitted to allocate.
After a full and fair evidentiary hearing and careful thought and consideration, this Court
denied in part and granted in part defense’s post-sentence motion, stating the following reasoning
on the record:
THE COURT: All right. Well, while I am looking for a copy of my order of
sentence to review myself of some things, with respect to the record and the motions
that have been filed, I am going to deny in part and grant in part the defense
motions.
Number one, I'll incorporate the arguments of the Commonwealth because
the Commonwealth is correct. The evidence that was presented before me by the
credible officer that testified demonstrated quite clearly that the defendant engaged
in extraordinarily reckless conduct that comports with the statutes at issue.
-7-
In addition, the defendant himself admitted to being on the ATV in his
testimony. The defendant's girlfriend admitted that Mr. Clausell frequently would
need “to get air and drive his ATV.”
The conduct that was reported and viewed directly by Officer Stout was
most reckless and most concerning because Mr. Clausell is old enough to know
better and should know better and does know better, but he chose to act differently.
As to what happened in the open case, then open case, there is no finding of
not guilty. There is -- depending on who was at fault for not properly preparing the
open matter, it did not proceed. And the evidence supported revocation after all of
the cumulative evidence was derived by this Court. And it was particularly violative
of the order of sentence because he conducted criminal behavior and also he was
positive for cocaine use.
Within the reviewed presentence investigative and mental health
assessments, Mr. Clausell's cocaine use reportedly went back to the age of 14.
Despite attempts to rehabilitate him, obviously, he had slid back. That was also a
technical... violation of this order of sentence.
All of the combined information, including the positive steps that Mr.
Clausell did take with respect to OPTIONS, I took into consideration before
sentencing.
I also note that while in county, the defendant was disciplined for at least
one institutional misconduct. Now, it was very minor in nature, and it didn't impact
my sentence in any way, shape or form; but to clarify the record, there were some
difficulties even waiting for this matter to be concluded...
All right. Mr. Clausell, I reviewed all of the information imparted to me in
detail multiple times. Let's start with the... significantly serious charges for which
you were before this Court and pursuant to the negotiations and received a sentence
that had been well below the guidelines and merciful in nature extended to you by
the Commonwealth. The offense gravity score at that time was a ten. The prior
record score was a four. The standard range was 48 to 60, plus or minus 12, as it
related to the drug dealing charge. And the Violation of the Uniform Firearms Act
under Section 6105 was also at issue.
Despite the severity of that, Mr. Clausell, pursuant to negotiations, received
a sentence of 11-and-a-half to 23 months followed by five years of reporting
probation on each charge. Periods of confinement were run concurrently. Periods
of probation were run concurrently to each other. The period of probation was to
run consecutively to the period of confinement. A strict condition was no drug use.
First hot urine, he was supposed to come back to me. I retained jurisdiction over
this entire sentence. It was a county sentence and probation.
I noted the positive aspects of Mr. Clausell. I noted the negative aspects and
conduct of Mr. Clausell. And a few notations that I'll highlight in addition to
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incorporating my prior findings, Mr. Clausell, unlike many of the people that come
before me, had many gifts to offer in life. He had the support of his girlfriend, Ms.
Mack, who stood with him through thick and thin, worked tremendously hard while
she pursued her dreams, or tried to, through La Salle, et cetera, who forgave him
over and over again and tried to help Mr. Clausell along the way in addition to being
mother to his child or children.
Mr. Clausell's history was most concerning in that there was a prediction
therein that future criminal conduct would occur. That was the reason why my
original sentence incorporated the very strict supervision and assignment of Mr.
Clausell to the anti-violence unit, if memory serves me correctly. I didn't put in play
those conditions because I like to talk. I put those conditions in to make sure that
we wouldn't have a return to a matter involving a .45 caliber firearm as well as a .9
millimeter and 74 grams of crack cocaine resurfacing.
Mr. Clausell's reported behavior during the revocation hearing was most
concerning because despite have all of these abilities and clearly mental acuity
beyond most folks, he disregarded the safety of every other human being that was
out in those residential neighborhoods on the day at issue and he tried to hide from
his family and/or everyone else his return to cocaine use.
If I recall correctly, Mr. Clausell's excuse given to me, “well, she and I were
on a break; that's why she didn't know about that.” Ms. Mack enabled, to a certain
extent, Mr. Clausell's behavior by permitting the garage to facilitate his continued
use of the ATV to let him, I guess, blow off steam or get air for whatever -- I forget
what the phrase was.
You know, kindness and mercy has been extended to Mr. Clausell on
multiple occasions, including by this Court. So under the section of 9771,
revocation was completely due because it was clear to this Court that no other
option was available. It was disrespectful to the order of sentence. It posed a high
risk of future recidivism. And the other sections that I mentioned were at issue.
I really also have difficulty with the defense continued argument as to what
Mr. Clausell was doing when he admitted he was on the ATV. Granted, he didn't
agree that his behavior was to the extent as testified by the officer, but okay. All
right. I found differently. I'm the finder of fact. And under the standards at issue, I
found that he did act dangerously. And he's very lucky that someone wasn't killed.
Now, as to sentencing, the prior order of sentence took into consideration
all of Mr. Clausell's reported history, all of the good that he did, the circumstances
that he presented as testified and reported to this Court very succinctly by counsel,
by the presentence investigator, the mental health investigator and Mr. Clausell
himself.
I do accept the fact that Mr. Clausell is sorry. And while I don't know
whether he's sorry because he's still in jail or whether or he's sorry for the behavior
that caused him to return to it, I did accept that there is a level of remorse.
I did view boot camp as a potential avenue to try to set Mr. Clausell straight
for the future despite the failed attempts previously, not only under this order of
sentence but whatever else he had and his history that I recited. I'm not going to go
through all of that all over again.
So the order of sentence that I entered on February 25, 2021 did, in fact,
take into account everything. Now, I will accept the representation that a three-to-
six-year sentence would make Mr. Clausell more eligible for boot camp, although,
quite frankly, if memory serves me correctly, that's not necessarily the case, which
is why I waived -- the DA waived an ineligibility objection. I deemed him to be
boot camp eligible while not RRRI eligible.
So I will reduce my sentence accordingly and give greater weight to the
efforts reportedly made by Mr. Clausell to improve. So, first of all, I'm going to go
over the order of sentence conditions that I expect to be met. Number one, the
defendant will receive credit for time served on this case only as calculate by the
prison authorities. The previous detainer remains lifted. The defendant remains
boot comp eligible. The ADA, I'm assuming, continues to waive eligibility.
MS. LAWLESS: Yes, Your Honor.
THE COURT: The defendant, because of the nature of the charges, is not RRRI
eligible, which is why we tried to accommodate the efforts to get him into boot
camp. I don't know whether or not boot camp will accept Mr. Clausell due to,
particularly, the gun charge. 6105 means that he was in possession of firearms --
actually I think there were two at issue -- while prohibited from so doing due to his
prior convictions and/or adjudication.
So that gives boot camp pause, and they may not accept Mr. Clausell. I
really don't know, but I do know this, that he has to apply for it. It can't be done for
him, which is one of the problems of Mr. Clausell. Everybody else does things for
him. So you are going to have to exercise initiative.
In addition, I will reorder, as part of this order of sentence, a full drug and
alcohol evaluation. You are to comply with any recommended drug and alcohol
treatment. You will submit to drug and alcohol screening. Your first hot urine is to
result in a violation hearing. You are prohibited from having anything to do with
any illegal narcotics or weapons; that means no direct contact, no indirect contact,
no third-party contact, no posting on social media of same or proceeds of same.
You may not reside in any home where there are illegal narcotics or
weapons located. You may not be in any vehicle where any illegal narcotics or
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weapons are located. You may not operate any ATV or be even a passenger on an
ATV while under this Court's supervision. You will seek out vocational training
because upon your release, you will need to obtain and maintain legitimate
employment and provide proof of same.
You've completed your parenting classes. I'll accept that representation. So
I'll delete that for now... I'll just leave it as vocational training. You will submit to
random home checks and auto checks for illegal drugs and/or weapons. You will
be intensively supervised upon parole.
All right. The sentence of this Court: To Count 1, manufacture, delivery or
possession with the intent to manufacture, deliver a controlled substances as an
ungraded felony, the sentence of this Court is that you serve three years to six years
followed by three years of reporting probation, also supervised by the state.
Your three to six years is pursuant to the state correctional supervision
confinement. The probationary period of three years will be supervised by the state
and run consecutively to the confinement.
The same sentence is imposed on Count 2, possession of a firearm as a
prohibited person as a felony of the first degree, sir, the sentence of this Court is
three years to six years state form of confinement followed by three years of
reporting probation. The period of probation will run consecutively to the period of
confinement. All periods of confinement will run concurrently with each other, that
is, at the same time. All periods of probation will run concurrently with each, that
is, at the same time. Regular fines and costs.
(N.T. 7/8/21, p. 16-24).
Thus, Appellant’s total aggregate sentence was reduced to a term of three (3) to six (6)
years of state supervised confinement, followed by three (3) years of reporting probation.
Although Appellant did not qualify for RRRI programs and boot camp due to the nature
of the original offenses, this Court and the prosecutor waived objections to boot camp
ineligibility. The previous probationary terms were reinstated in full. Credit for custodial
time was provided.
On July 27, 2021, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania. A Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P.
-li-
II.
Til.
Rule 1925 (b) was directed by this Court and filed on behalf of Appellant on August 5,
2021.
ISSUES ON APPEAL
Appellant has raised the following claims:
1. “The sentence imposed by the Trial Court is an abuse of discretion.”
2, “Insufficient evidence existed to support technical violations for
Fleeing/Eluding and REAP.”
DISCUSSION
Within his Statement of Matters Complained of on Appeal filed pursuant to Pa.R.A.P.
§1925(b), Appellant alleges that the sentence imposed by the trial court was an abuse of discretion.
Appellant also argued that insufficient evidence existed to support the technical violations for
Fleeing/Eluding and Recklessly Endangering Another Person. A full and fair review of the record
and all evidence reflects that Appellant’s claims lacked factual and legal merit.
The scope of appellate review of a sentence that had been imposed following the revocation
of probation is limited to the validity of the revocation proceedings, the legality of the sentence
imposed following revocation, and any challenge to the discretionary aspects of the sentence
imposed. Commonwealth v. Wright, 2015 PA Super 116, 116 A.3d 133, 136 (Pa. Super. 2015)
(citation omitted). Imposition of sentences following the revocation of probation is vested within
the sound discretion of the trial court, which, absent an abuse of that discretion, will not be
disturbed on appeal. An abuse of discretion is more than an error in judgment - a sentencing court
has not abused its discretion unless the record discloses that the judgment exercised was manifestly
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unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Colon, 2014
PA Super 242, 102 A.3d 1033, 1043 (Pa. Super. 2014).
In this Commonwealth, the trial court’s common law and statutorily based authority to
impose a term of probation has been set forth as follows:
“Whenever any person shall be found guilty of any criminal offense by
verdict of a jury, plea, or otherwise, except murder in the first degree, in any court
of this Commonwealth, the court shall have the power, in its discretion, if it believes
the character of the person and the circumstances of the case to be such that he is
not likely again to engage in a course of criminal conduct and that the public good
does not demand or require the imposition of a sentence of imprisonment, instead
of imposing such sentence, to place the person on probation for such definite period
as the court shall direct, not exceeding the maximum period of imprisonment
allowed by law for the offense for which such sentence might be imposed.”
61 P.S. § 331.25.
Moreover, Pennsylvania Rule of Criminal Procedure Rule 1409 provides: “Whenever a
defendant has been placed on probation or parole, the judge shall not revoke such probation or
parole as allowed by law unless there has been a hearing held as speedily as possible at which the
defendant is present and represented by counsel and there has been a finding of record that the
defendant violated a condition of probation or parole... .” See Gagnon v. Scarpelli, 411 U.S.
778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S, 471, 92 S.Ct. 2593, 33
L.Ed.2d 484 (1972); Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973);
Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975).
When imposing a sentence of total confinement after a probation revocation, the sentencing
court is to consider the factors set forth in 42 Pa.C.S. § 9771.! Commonwealth v. Ferguson, 2006
PA Super 18, 893 A.2d 735, 737 (Pa. Super. 2006). Under 42 Pa.C.S. § 9771(c), a court may
sentence a defendant to total confinement subsequent to revocation of probation if any of the
following conditions exist: (1) the defendant has been convicted of another crime; or (2) the
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conduct of the defendant indicates that it is likely that he will commit another crime if he is not
imprisoned; or (3) such a sentence is essential to vindicate the authority of the court. See also
Commonwealth v. Coolbaugh, 2001 PA Super 77, 770 A.2d 788 (Pa. Super. 2001).
Our appellate courts have 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. Brown, 503 Pa. 5 14, 469 A.2d at 1376 (1983)
(citing Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); and Commonwealth v. Burrell,
497 Pa. 367, 441 A.2d 744 (1982)).
Importantly, the Superior Court has explained that “it is clear that the effectiveness of
probation as a rehabilitative tool and as a deterrent to antisocial conduct is the lens through which
a violation is to be viewed. Revocation and resentencing are warranted if, in the face of a new
criminal act or the violation of a condition of probation, the court finds that probation is no longer
achieving its desired aims of rehabilitation and deterring criminal activity.” Commonwealth v.
Foster, 214 A.3d 1240, 1251 (Pa. 2019); See e.g., Brown, 469 A.2d at 1376 (holding that the
Commonwealth cannot establish probation violation where defendant was acquitted of the charges
that constituted the alleged VOP). A court never reaches this question unless there is a violation
of a specified term of the probation order or the probationer commits a new crime. Foster, 214
A.3d 1240, 1251.
Furthermore, the Commonwealth need only demonstrate that the probationer had violated a
specified term of probation or committed a new crime by a preponderance of the evidence.
Commonwealth y, A.R., 2010 PA Super 4, 990 A.2d 1 (Pa. Super. 2010) (considering the positive
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drug tests and Appellant’s concession to the technical violations, the evidence was enough to
support the revocation sentence imposed by the court); See Young v. Com. Bd. of Probation and
Parole, 487 Pa. 428, 437, 409 A.2d 843, 848 (1979) (holding that the Board properly denied a
parolee credit on his sentence for time spent on parole where his “street time” was marked with
delinquency and failure to comply with conditions of parole).
In the instant matter, Appellant alleged error formed from the factual finding that Appellant
had violated the terms and conditions of his probation and asserted that there had been insufficient
evidence presented at the violation hearing to support this determination; specifically, that
insufficient evidence existed to support technical violations for Fleeing/Eluding and REAP.
Interestingly, had denied his involvement with riding the ATV within the Post Sentence Motions
Apparently, he had forgotten his prior testimony that had included that recorded specific admission
under oath, This Court had refreshed everyone’s memory and corrected the record misstatement
with the transcribed hearing notes. Additionally, Appellant challenged his sentence by broadly
averting that the aggregate sentence had resulted in an abuse of the trial court’s discretion. These
arguments again were in direct conflict with the transcribed record that had reflected ample
evidence of various forms of Appellant’s violating behavior and that the respective Orders and
Judgements of Sentences had been reasonably imposed after thorough review of all relevant
sentencing factors.
Appellant has a known Commonwealth of Pennsylvania juvenile record of four (4) arrests,
though none of those arrests resulted in an adjudication of delinquency or commitment. As a thirty-
one-year-old adult, Appellant has amassed thus far twelve (12) arrests, which had resulted in in
three (3) convictions and five (5) commitments. Additionally, he has incurred five (5) violations
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of probation or parole so far as an adult, which has resulted in three (3) revocations of said
sentence. Philadelphia County Prison records reflect one misconduct while incarcerated.
Moreover, as noted by this Court, the presentence investigator reasonably opined that based
upon Appellant’s criminal history and the violating conduct that had been habitually committed,
Appellant would not by amenable to community supervision because he is at a significant risk for
incurring future offenses. This Court shared the same conclusion upon fair review of all data
presented. While on various forms of probation, Appellant had incurred several direct and
technical forms of violations. Appellant’s history of illegal narcotic use was also referenced.
It is worth noting that Appellant’s admitted technical violation for failing a drug test by
testing positive for cocaine on November 19, 2019 had constituted a singular sufficient reason to
revoke Appellant’s probation. Under 42 Pa. C.S.A. § 9771, a sentencing court “may increase the
conditions, impose a brief sanction under section 9771.1 (relating to court-imposed sanctions for
violating probation) or revoke an order of probation upon proof of the violation of specified
conditions of the probation.” During his original guilty plea and sentencing hearing on September
17, 2018, Appellant was specifically told that a term of his probation was to not use any drugs
whatsoever, and he was warned of the consequences if he failed to comply:
THE COURT: Here's what you need to understand, Mr. Clausell. Is that number
one, I will accept these very generous negotiations but with one word of caution.
You deviate from any particular line in any way, shape or form, I can hold you up
to 30 years, and there have been occasions where I have done just that without
blinking an eye. I say that not to scare you, sir, but to give you a dose of reality.
Because thus far the path that you're going is going to cause you to end up being in
a box either below ground or above...
It is a condition of my sentence, sir, that you obtain and maintain legitimate
employment. You are going to have random home checks and vehicle checks for
drugs and/or weapons. You cannot be in a vehicle or in a residence with any drugs
or weapons. I don't care if you're driving or not. You're going to have random
analysis for drugs and/or alcohol in your system. First hot urine, you come back to
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me. If there's a drug problem, tell us now because we can get you treatment. If
there's not and something comes up hot, you're going to have more of a problem.
You are to speak to your probation officer and obtain whatever vocational training
you can get your hands on.
(N.T. 9/17/18, p. 16-17).
Thus, even without the direct testimonial evidence from the surveilling police officer as to
his observations of Appellant’s participation in illegally and dangerously driving an ATV
throughout the streets of Philadelphia, the violation had been demonstrated by a preponderance of
evidence. Appellant’s reported violating conduct that had been committed during the probationary
period following release from confinement unequivocally reflected Appellant’s continued risk of
recidivism and danger to the community.
Not only did Appellant violate the terms and conditions of his probation by using cocaine
and not reporting, he also violated by partaking in dangerous criminal activity on May 15, 2020.
Although Appellant had not yet been or may never be formally convicted of the outstanding
criminal charges, of Fleeing/Eluding and REAP, the officer’s independent credible testimony
provided enough evidence that Appellant had again violated the terms of his probation. The
Commonwealth must only prove the violation by a preponderance of the evidence and, once it
does so, the decision to revoke parole is a matter for the court’s discretion. Commonwealth v.
Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008). That burden was met.
After the GAGNON evidentiary hearing held on July 8, 2021, this Court determined that
Appellant “presents an identifiable threat to public safety” because his conduct “indicates that it is
likely that he will commit another crime if he is not imprisoned.” 42 Pa. C.S.A. § 9771. Thus, an
increased sentence was essential to vindicate this Court’s authority. Id.
Historically and contextually, it is important to comprehend that the violations at issue had
occurred after Appellant had been granted an extremely merciful negotiated sentence. Appellant
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had benefited greatly from the generous negotiations that had ensued. The rehabilitation efforts
were additionally reflected in this Court’s grant to him of waive of ineligibility of the state
supervised early release Boot Camp program. However, Appellant’s conduct following his grant
of early custodial release evidenced his defiant unabated intention to commit crimes and to defy
this Court’s authority to the detriment of our society. Vindication of the trial court’s authority was
essential. While under supervision, Appellant tested positive for cocaine and recklessly drove
throughout the streets of Philadelphia on an ATV while being chased by Philadelphia police. His
conduct was most deplorable and indicated a disrespect of the Court’s authority, a likely risk of
recidivism, and a complete disregard for the value of the human lives of his fellow Philadelphians.
Because of the foregoing reasons, the argument for the imposition of another period of
probation lacks prudence. Appellant flagrantly disregarded this Court’s authority and ignored all
directives when this Court had imposed the original negotiated merciful sentences in 2017. This
Court’s original Order and Judgement of Sentence had reflected a sentence at the very bottom
range of the recommended sentencing guidelines. When this Court had entered the original
sentence, Appellant had convinced this Court that he had obtained and maintained legitimate
employment and was on the straight and narrow path to sobriety and legal conduct. Hence, this
Court provided due warnings that any violation would not be tolerated. The subsequently reported
violating conduct sufficiently confirmed the need to vindicate the authority of this Court that had
been repeatedly and blatantly flouted.
Finally, under Pennsylvania law, a challenge to the validity of a sentence is a challenge to
its legality. Commonwealth v. Starr, 2020 PA Super 147, 234 A.3d 755, 764, appeal denied, 243
A.3d 724 (Pa. 2020). If a court does not possess statutory authorization to impose a particularized
sentence, then the sentence is illegal and must be vacated. Commonwealth v. Thier, 663 A.2d 225,
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229 (Pa. Super. 1995), appeal denied, 670 A.2d 643 (Pa. 1996). Ifno statutory authorization exists
for a particular sentence, then that sentence is illegal and subject to correction. Thier, supra. An
illegal sentence must be vacated. Commonwealth v. Kratzer, 660 A.2d 102, 104 (Pa. Super. 1995),
appeal denied, 670 A.2d 643 (Pa. 1996).
Upon sentencing following revocation for probation, the trial court is limited only by the
maximum sentence that could have been imposed at the time of the issuance of the probationary
sentence. Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). It is common
knowledge that the revocation sentence may not exceed the statutory limits of the originally
imposed sentence, including allowable deductions for custody time served. Jd.
In the underlying case, Appellant had entered to negotiated guilty pleas to two offenses:
(1) Manufacture, Delivery, Possession with Intent to Manufacture or Deliver, as an ungraded
felony, under 35 § 780 §§ A30; and (2) Possession of a Firearm Prohibited, as a first degree felony,
under 18 § 6105 §§ Al. The maximum period of incarceration for the ungraded felony drug offense
is ten (10) years and the maximum period of incarceration for the first-degree felony firearm
offense is twenty (20) years. Thus, the statutorily allowed maximum aggregate period of
confinement was thirty (30) years. In contrast, Appellant’s total aggregate sentence following
violation of probation was limited to three (3 )years to six (6) years of state supervised term
confinement, followed by three (3) years of reporting probation, which had been well under the
permitted maximum period. In summary, Appellant has not borne his burden of establishing that
he received an illegal sentence, since he had failed to demonstrate any abuse of discretion.
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IV. CONCLUSION
As Appellant’s arguments lack any legal or factual merit, the imposed Orders and
Judgements of Sentence in each of the above-captioned cases constituted reasonable exercises of
judicial sentencing discretion.
After careful review of the entire record, no harmful, prejudicial, or reversible error was
detected that would justify the granting of Appellant’s request for relief. For the reasons set forth
above, the Order and Judgment of Sentence should be affirmed.
BY THE COURT,
Kor :
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DATE: G20 fro Lf ANNE MARIE B. 60
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