Com. v. Zangenberg, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES ZANGENBERG :
:
Appellant : No. 2619 EDA 2022
Appeal from the Judgment of Sentence Entered October 6, 2022
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000633-2012
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 14, 2023
Appellant, Charles Zangenberg, appeals from the October 6, 2022
judgment of sentence of one to five years’ incarceration entered in the Monroe
County Court of Common Pleas after the court found him in violation of his
probation. After careful review, we affirm.
A.
In June 2012, Appellant pleaded guilty to one count of Criminal
Attempt—Involuntary Deviate Sexual Intercourse with a Person Under Age
16.1 In February 2013, following two defense continuances, the court
sentenced Appellant to an aggregate term of one to two years, less one day,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 901(a).
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of incarceration followed by ten years’ probation.2 Appellant’s probation was
subject to the standard rules of probation, including: Rule 3—to comply with
all laws; Rule 4—to notify his probation officer within 72 hours of an arrest or
citation; and Rule 16—to comply with all other conditions set by the court.
One such condition prohibited Appellant from accessing the Internet.3
While on probation, Appellant received a citation for Harassment,4 a
summary offense, and pleaded guilty on June 4, 2021. Appellant did not
subsequently seek to withdraw his guilty plea and did not appeal from the
judgment of sentence imposed for that conviction.
Appellant failed, however, to notify his probation officer, Keith Bellas,
within 72 hours of the citation as required by the terms of his probation,
although he did tell Officer Bellas “several weeks or maybe a month or two”
later.5 N.T. Hr’g, 10/6/22, at 12. Nevertheless, Officer Bellas did not initially
file a VOP petition because Appellant was otherwise compliant.
On July 24, 2022, Appellant took a polygraph test as part of his sex
offender treatment. During the polygraph, Appellant admitted that he used a
cell phone to access the Internet, searched for child pornography, and
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2 Appellant’s probation began on February 11, 2015.
3 Sentencing Order, entered 2/19/13.
4 18 Pa. C.S.A. § 2709.
5 Officer Bellas did, however, receive a notification about the citation from the
JNet online system shortly after Appellant received the citation.
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destroyed his cell phone to hide his search history. At his next regularly
scheduled probation appointment, Appellant admitted to Officer Bellas that he
searched for child pornography.
On August 9, 2022, the Commonwealth filed a VOP petition alleging that
Appellant violated several probation rules: (1) Rule 3 by pleading guilty to
Harassment; (2) Rule 4 by failing to report the Harassment citation to
probation, and (3) Rule 16 by failing to comply with the court’s condition
regarding internet usage. VOP Petition, filed 8/9/22, at ¶4 (a)-(c).
On October 6, 2022, the court held a VOP hearing at which Officer Bellas
testified. The VOP court credited Officer Bellas’ testimony and concluded that
Appellant had violated his probation. Accordingly, the court revoked
Appellant’s probation and resentenced him to one to five years’ incarceration.
B.
Appellant filed a Notice of Appeal on October 14, 2022. Both he and the
VOP court complied with Pa.R.A.P. 1925.
Appellant presents four issues for our review:
I. Whether the Court had sufficient evidence to support a
finding that [Appellant] violated the conditions of his
probation without having documentary evidence admitted in
the record to support a prior conviction of a summary
offense of Harassment in the lower court.
II. Whether the Court erred in permitting the Probation Officer
to testify about statements made by [Appellant] about
accessing the [I]nternet and searching pornography in the
absence of him being first mirandized in accordance with the
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basic principles set forth in Miranda v. Arizona, 384 U.S.
436 [] (1966).
III. Whether the Commonwealth waived violation of
[Appellant’s]probation on the basis of his purported guilty
plea to summary Harassment after purportedly having
knowledge of same and by delaying filing a violation of
probation petition for more than a year following said
conviction.
IV. Whether the Court abused its discretion in sentencing
[Appellant] to one to five years of incarceration following its
finding that [Appellant] was in technical violation of the
terms of his probation for the first time and after many years
of compliance.
Appellant’s Br. at 7-8.
C.
Appellant’s first three issues pertain to the court’s finding that Appellant
violated his probation.
This Court’s review of the results of a revocation hearing “is limited to
determining the validity of those proceedings and the legality of the judgment
of sentence imposed.” Commonwealth v. Heilman, 876 A.2d 1021, 1026
(Pa. Super. 2005) (citation omitted). In a VOP hearing, there is a lesser
burden of proof than in a criminal trial, and the Commonwealth only needs to
prove a VOP by a preponderance of the evidence. Commonwealth v.
Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009). “A preponderance of
the evidence is tantamount to a more likely than not standard.”
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Commonwealth v. Esquilin, 880 A.2d 523, 529 (Pa. 2005) (citations and
internal quotation marks omitted).
This Court’s standard of review of the challenge to the sufficiency of the
evidence is well-settled:
A challenge to the sufficiency of the evidence is a question of law
subject to plenary review. We must determine whether the
evidence admitted at trial and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
elements of the offenses. 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) (citation
omitted). An appellant may challenge the sufficiency of the evidence for the
first time on appeal. Pa.R.Crim.P. 606(A)(7); Commonwealth v. Gezovich,
7 A.3d 300, 302 n.2 (Pa. Super. 2010).
*
In his first issue, Appellant argues that Officer Bellas’ testimony was
insufficient to support the court’s finding that he violated his probation.
Appellant’s Br. at 13-17. Specifically, Appellant argues that, with respect to
the violation arising from his Harassment conviction, the “only evidence
admitted and relied on by the [VOP] court was the testimony of the officer,
who failed to provide any documentary evidence in support of the arrest or
conviction” or “specific details about the case” such as its docket number or
“any other exacting reference to corroborate the testimony.” Id. at 16. With
respect to the VOP arising from his failure to report his conviction, Appellant
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similarly asserts that the testimonial evidence provided by Officer Bellas was
insufficient to sustain a VOP finding.6, 7 Id. These arguments garner no relief.
Rule 3 of Appellant’s probationary terms required that Appellant follow
all local, state, and federal criminal laws.8 Here, Officer Bellas’ testimony at
Appellant’s VOP hearing indicated that (1) Officer Bellas received a notification
from the JNet system “sometime after the [Harassment] charges were filed;”
and (2) Appellant later admitted to pleading guilty to Harassment. N.T. Hr’g
at 14. The VOP court found Officer Bellas’ testimony credible. Trial Ct. Op.
at 4.
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6 Appellant also argues that the VOP court erred in considering alleged hearsay
testimony offered by Officer Ballas. This argument is, however, waived
because Appellant has not directed this Court to the place in the record where
he preserved this objection in violation of Pa.R.A.P. 2119(c). Moreover, our
review of the Notes of Testimony from Appellant’s VOP hearing indicates that
Appellant did not lodge a contemporaneous objection to this testimony. See
Commonwealth v. Ramos, 231 A.3d 955, 957 (Pa. Super. 2020) (explaining
“failure to raise a contemporaneous objection to evidence at trial waives that
claim on appeal”) (citations omitted); see also, Pa.R.E. 103(a)(1)(A)
(providing a party may only claim error regarding admission of evidence if he
makes timely objection on record).
7 To the extent that Appellant also asserts in his Brief to this Court that the
Commonwealth’s evidence was likewise insufficient to prove that Appellant
violated Rules 4 and 16, we find these issues waived because Appellant did
not include them in his Rule 1925(b) Statement. See Rule 1925(b)
Statement, filed 11/7/2022, at ¶1 (where Appellant raised a claim of error
pertaining to the sufficiency of the evidence in support of the VOP court’s
finding as to rule 3). Therefore, these claims are waived. See also Pa.R.A.P.
1925(b)(4)(vii) (stating “[i]ssues not included in the Statement . . . are
waived.”).
8 Trial Ct. Op. at 3.
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Based on our review, we conclude that the admitted, uncontradicted
evidence, which included testimony found credible that Appellant admitted
that he pled guilty to Harassment, was sufficient to prove that it was more
likely than not that Appellant violated probation. There is no requirement that
the Commonwealth must establish a violation through documentary evidence.
*
In his second issue, Appellant argues that the court erred in permitting
Officer Bellas to testify to Appellant’s statements about accessing the Internet
and searching pornography because he had not been given Miranda warnings
when he made them. Appellant’s Br. at 18. This issue merits no relief.
It is axiomatic that “failure to raise a contemporaneous objection to
evidence at trial waives that claim on appeal.” Commonwealth v. Ramos,
231 A.3d 955, 957 (Pa. Super. 2020) (citations omitted); see also Pa.R.E.
103(a) (providing a party may only claim error regarding admission of
evidence if he makes timely objection on record).
Our review of the notes of testimony from the VOP hearing indicates
that when the Commonwealth elicited the challenged testimony from Officer
Bellas on direct examination, Appellant’s counsel did not object. N.T. Hr’g at
10-11. Because Appellant failed to lodge a contemporaneous objection when
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Officer Bellas testified regarding Appellant’s incriminating statement,
Appellant has waived this claim on appeal.9
*
In his third issue, Appellant claims that the Commonwealth could not
pursue the violations based on the Harassment conviction was due to the delay
between Appellant’s conviction and the VOP hearing. Appellant’s Br. at 21.
He asserts three arguments in support of this claim. First, Appellant argues
that the length of the delay, “more than a year,” was unreasonable. Id. at
22. Next, Appellant avers that the reason for the delay was unreasonable
because Officer Bellas could have filed a VOP “close in time to [Appellant’s]
arrest” but did not because Appellant was otherwise compliant with his
probation conditions. Id. at 23. Finally, Appellant argues that the delay
“significantly prejudiced” him because the Commonwealth “stacked”
violations, leading to a harsher sentence. Id. at 24.
Appellant has failed to develop these arguments as required by our
Rules of Appellate Procedure and we are, thus, unable to provide meaningful
review. Accordingly, we find Appellant waived his arguments. “The Rules of
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9 Even if Appellant had not waived this claim, it would warrant no relief. A
defendant is only entitled to Miranda warnings when subject to custodial
interrogation; here, the record does not support the contention that Appellant
was subject to a “formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest” indicating he was in custody, or that
he was subject to interrogation. Minnesota v. Murphy, 465 U.S. 420, 430-
31 (1984) (citations and internal quotation marks omitted).
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Appellate Procedure state unequivocally that each question an appellant raises
is to be supported by discussion and analysis of pertinent authority.”
Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020) (citation
and bracketed language omitted). See Pa.R.A.P. 2111 (listing briefing
requirements for appellate briefs) and Pa.R.A.P. 2119 (listing argument
requirements for appellate briefs). When issues are not properly raised and
developed in briefs with arguments that are sufficiently developed for our
review, we may dismiss the appeal or find certain issues waived.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007); Pa.R.A.P.
2101 (explaining that substantial briefing defects may result in dismissal of
appeal). It is not the role of this Court to develop an appellant’s argument
where the brief provides mere cursory legal discussion. Commonwealth v.
Johnson, 985 A.2d 915, 925 (Pa. 2009).
Our review of Appellant’s Brief reveals that, although Appellant has cited
to boilerplate case law explaining the applicable legal standards, he has utterly
failed to provide this Court with citation to relevant case law, applied and
analyzed under the facts of this case. See Appellant’s Br. at 21-24. Rather,
he provides conclusory statements that the delay was not reasonable, the
reasons for the delay were not reasonable, and he suffered prejudice. Id. at
22-24. Appellant’s neglect in providing this Court with a legal framework in
which to analyze the reasonableness of the delay in this case not only violates
our briefing requirements, but more importantly, precludes this Court from
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effectuating meaningful appellate review.10 We decline to act as counsel.
Accordingly, this issue is waived.
*
In his final issue, Appellant purports to challenge the discretionary
aspects of his sentence. However, Appellant has not addressed this issue in
his brief beyond the statement of questions involved. Accordingly, Appellant
waived this claim. See, e.g., Commonwealth v. Jones, 815 A.2d 598, 604
n.3 (Pa. 2002) (finding claims raised in the Statement of Questions Involved
but not pursued in the body of the brief are waived); Commonwealth v.
Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (explaining “[w]hen issues are
not properly raised and developed in briefs... a court will not consider the
merits thereof.”) (citations omitted).
D.
In sum, we conclude that Appellant’s sufficiency of the evidence claim
lacks merit and that he has waived his remaining issues.
Judgment of sentence affirmed.
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10 We further note that Appellant fails to cite to the record as required by
Pa.R.A.P. 2119(c) to support his arguments, thus, compounding our inability
to provide meaningful review. See Appellant’s Br. at 22-24.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2023
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