Com. v. Hicks, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WOODROW JOHN HICKS, JR. :
:
Appellant : No. 511 WDA 2020
Appeal from the Judgment of Sentence Entered March 19, 2020
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000467-2013
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED December 17, 2020
Appellant, Woodrow John Hicks Jr., appeals from the judgment of
sentence entered March 19, 2020, following revocation of his probation. We
affirm.
The facts and procedural history of this case are as follows. At the
conclusion of a trial on September 24, 2014, a jury found Appellant guilty of
the following offenses: unlawful contact with minor – sexual offenses;1
criminal attempt to commit statutory sexual assault – 11 years or older;2
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 6318(a)(1).
2 18 Pa.C.S.A. § 901 and 3122.1(b).
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corruption of a minor - defendant age 18 or above;3 simple assault;4 criminal
use of a communication facility;5 and fleeing or attempting to elude a police
officer.6 On January 5, 2015, the trial court sentenced Appellant to an
aggregate term of 16 months to five years’ incarceration, followed by five
years’ probation. In addition, the trial court designated Appellant as a sexual
offender subject to a lifetime registration under the Sexual Offender
Registration Notification Act (“SORNA”),” 42 Pa.C.S.A. §§ 9799.10-9799.41.
This Court affirmed Appellant’s judgment of sentence on November 12, 2015,
and our Supreme Court subsequently denied allocator on April 20, 2016.
Commonwealth v. Hicks, 2015 WL 7078623, *1 (Pa. Super. Nov. 12, 2015),
appeal denied, 138 A.3d 2 (Pa. 2016).
Appellant was released from the Pennsylvania Department of
Corrections on the maximum date of his sentence. Trial Court Opinion,
6/11/20, at 1. On February 25, 2020, Appellant’s probation officer filed a
petition to revoke his probation. On March 19, 2020, the trial court convened
a probation revocation hearing which “result[ed] in the revocation of
[Appellant’s] probation.” Id. at 2. On that same day, the trial court
“resentenced [Appellant] to incarceration of not less than two and one-half []
____________________________________________
3 18 Pa.C.S.A. § 6301(a)(1)(ii).
4 18 Pa.C.S.A. § 2701(a)(1).
5 18 Pa.C.S.A. § 7512(a).
6 75 Pa.C.S.A. § 3733(a).
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years nor more than five [] years for the offense of unlawful contact with a
minor; not less than two and one-half years [] nor more than five [] years for
the offense of criminal use of a communication facility; and not less than one
[] year nor more than two [] years for the offense of fleeing or attempting to
elude a police officer, all to run concurrently with credit for time served.” Id.
This timely appeal followed.7
Appellant raises the following issues on appeal:
I. Did the Commonwealth prove by a preponderance of the evidence
that [Appellant] failed to maintain regular contact with supervision
staff and failed to follow instructions by staff?
II. Did the Commonwealth prove by a preponderance of the evidence
that [Appellant] failed to abstain from using unlawful or dangerous
drugs?
III. Did the Commonwealth prove by a preponderance of the evidence
that [Appellant] accessed the internet or possessed a computer or
electronic device that ha[d] internet capabilities?
IV. Did the Commonwealth prove by a preponderance of the evidence
that [Appellant] failed to comply with sex[ual] offender
treatment?
Appellant’s Brief at 7.
____________________________________________
7 Appellant filed a notice of appeal on April 15, 2020. On April 21, 2020, the
trial court entered an order directing Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). After
securing an extension, Appellant timely complied. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on June 11, 2020.
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In each of his appellate issues, Appellant argues that the Commonwealth
failed to present sufficient evidence to revoke his probation. These claims are
interrelated and, as such, we will address them together.
A court may, at any time, terminate supervision or alter the terms and
conditions upon which an order of probation has been imposed. See 42
Pa.C.S.A. § 9771(a). Proof of a violation of a specific condition of a
probationary order will support revocation. A claim that the evidence was
insufficient to revoke probation is
a question of law subject to plenary review. We must determine
whether the evidence admitted . . . and all reasonable inferences
drawn therefrom, when viewed in the light most favorable to the
Commonwealth . . . , is sufficient to support [a finding that the
appellant violated the terms of his probation]. A reviewing court
may not weigh the evidence or substitute its judgment for that of
the trial court.
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal
denied, 945 A.2d 169 (Pa. 2008) (citation omitted).
This Court previously explained:
In order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant
violated his probation. Commonwealth v. Allshouse, 33 A.3d
31, 37 (Pa. Super. 2011) (quotation marks and citations omitted).
“[T]he reason for revocation of probation need not necessarily be
the commission of or conviction for subsequent criminal conduct.
Rather, this Court has repeatedly acknowledged the very broad
standard that sentencing courts must use in determining whether
probation has been violated[.]” Commonwealth v. Ortega, 995
A.2d 879, 886 (Pa. Super. 2010) (citations and internal quotations
omitted). “A probation violation is established whenever it is
shown that the conduct of the probationer indicates th[at]
probation has proven to have been an ineffective vehicle to
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accomplish rehabilitation and not sufficient to deter against future
antisocial conduct.” Id.Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014).
The Commonwealth presented the following evidence during the March
19, 2020 revocation hearing. Initially, the Commonwealth called James
Decker (“Decker”), Appellant’s probation officer, to testify about the terms of
Appellant’s probation. Specifically, Decker explained that Appellant needed to
maintain regular contact with [supervisory] staff, report[]
regularly and follow[] any written instructions of the Board of
Probation and Parole staff[;]
***
abstain from unlawful, dangerous drugs and use of any controlled
substances[;]
***
comply with any special conditions imposed by the [trial c]ourt
and be subject to the Pennsylvania Board of Probation and Parole
Sex Offender Conditions, [which included abstaining from]
access[ing] the internet or possess[ing] a computer or wireless or
electronic device [with] internet excess without prior written
permission[; and]
***
comply with sex[ual] offender evaluation and treatment[.]
N.T. Revocation Hearing, 3/19/20, at 5-6.
Thereafter, multiple witnesses testified and detailed Appellant’s
non-compliance with the aforementioned terms of his probation. The trial
court summarized the relevant testimony as follows.
[First, Appellant’s] social worker, Lori Spare, testified that
[Appellant] was unable to move past the first part of a four-part
treatment program because he would not take accountability for
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his actions. [Then,] Matthew Lippart, a security monitor at
Tomorrow’s Hope, a transitional housing facility where [Appellant
stayed,] testified that [Appellant once] argued with another
resident and threated to throw him off [of] the balcony. Lippart
[also] testified that[,] on another occasion, [Appellant] refused to
take a breathalyzer test when he returned to the facility after
[allegedly] attending church. Also testifying was Brad Jester, a
mental health agent for the Pennsylvania Board of Probation and
Parole. According to Jester, [Appellant] refused to cooperate with
the conditions of his probation and became so agitated that he
injured himself and had to go to the hospital. [After Appellant’s]
visit to the hospital, [Appellant] was transferred to the Indiana
County Prison where it was discovered that he had an electronic
tablet with internet access in his possession. [Appellant also
admitted to Jester that he used the electronic tablet to visit dating
sites on the internet]. … [Thereafter, supervisory] agent Deb
Patton [] testified that she had [similarly] confiscated [] electronic
tablet[s] and cell[ular tele]phones from [Appellant] on more than
one occasion. [Patton] stated that these devices could be used to
access the internet and contained numerous links to online dating
sites. [Patton] also [testified that] she found a bag containing
another resident’s prescription[] narcotics in [Appellant’s]
possession.
[Following the Commonwealth’s presentation of evidence,
Appellant] testified on his own behalf[. When he was] asked why
he did not progress past phase one of his treatment plan[,
Appellant] stated that he refused to admit guilt, which [was] a
requirement. According to [Appellant, he refused] because he
[was] still in the appeal[] process, [and] an admission of guilt
during treatment would[] “ruin [his] court case.” [Appellant also
testified regarding the altercation with the resident at Tomorrow’s
Hope and] stated that [they did engage in an argument, . . . ] but
[he never] threaten[ed] to throw someone off a balcony.
[Appellant also] admit[ted] that he refused a breathalyzer test
[but] claimed it was because he was returning from church and
he [] never had an alcohol problem. [In addition, Appellant]
admitted to having the electronic tablets and cell[ular tele]phones
and also telling Patton that he would continue to possess internet
devices no matter how many times they were confiscated from
him. When asked about [] possessi[ng] another resident’s
medication, [Appellant] explained that he [took] it from that
resident because he was concerned that he was suicidal.
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Trial Court Opinion, 6/11/20, at 3-4.
A review of the aforementioned evidence reveals that the
Commonwealth introduced testimony from multiple witnesses detailing
specific occasions that Appellant violated the terms of his probation. In
addition, Appellant himself admitted to almost all of the instances of
non-compliance when questioned. See Trial Court Opinion, 6/11/20, at 4;
see also N.T. Revocation Hearing, 3/19/20, at 30-50. Combined, these facts
showed, by a preponderance of the evidence, that probation has proven an
ineffective vehicle for accomplishing rehabilitation and preventing antisocial
conduct on the part of Appellant. Accordingly, there was sufficient evidence
for the trial court to revoke Appellant's probation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2020
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