Com. v. Koger, C. ( 2023 )

J-A06036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ALBERT KOGER :
:
Appellant : No. 251 WDA 2020
Appeal from the Judgment of Sentence Entered January 22, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000233-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: December 1, 2023
This matter is before this Court pursuant to a remand from the
Pennsylvania Supreme Court, which reversed our prior decision in part, and
remanded for further proceedings.1 In this appeal, Christopher Albert Koger
(Appellant) appeals from the judgment of sentence imposed in the Washington
County Court of Common Pleas, following the second revocation of his
probation and parole. After review, we affirm the trial court’s order to the
extent that it revoked Appellant’s parole and ordered him to serve the balance
of his underlying sentence, but reverse the trial court’s order to the extent it
revoked his probation and resentenced him to a term of incarceration.
The parties are well-informed of the underlying facts and procedural
history of this case. As such, we only provide a brief recitation. On August
____________________________________________
1 See Commonwealth v. Koger, 295 A.3d 699 (Pa. 2021).
J-A06036-21
21, 2018, Appellant pled guilty to possession of child pornography and criminal
use of a communication facility.2 For possession of child pornography, he was
sentenced to eight to 23 months’ incarceration — but was immediately paroled
to the Washington County Adult Probation Office — and for criminal use of a
communication facility, he was sentenced to a consecutive term of three years’
probation. See N.T. Plea & Sentencing, 8/21/18, at 16-17. On December 21,
2018, the trial court revoked Appellant’s probation and parole after he
stipulated to committing technical violations.
On September 16, 2019, after being rereleased on parole, the Office of
Probation and Parole filed a second petition to revoke Appellant’s parole and
probation, alleging he committed the following technical violations of his
conditions:
Condition #1: Report to your [probation officer (PO)] as directed
and permit a PO to visit you at your residence or place of
employment and submit to warrantless searches of your
residence, vehicle, property, and/or your person and the seizure
and appropriate disposal of any contraband found. . . .
Condition #2: Do not violate any criminal laws or ordinances. . . .
Condition #7: Refrain from any assaultive, threatening or
harassing behavior. . . .
Condition #10: Avoid unlawful and disreputable places and
people. Avoid any specific persons, places, groups, or locations if
so instructed by your PO. . . .
See Adult Probation Office’s Petition for the Revocation of Parole and
Probation, 9/16/19, at 2.
____________________________________________
2 18 Pa.C.S. §§ 6312(d), 7512(a).
-2-
J-A06036-21
On November 4, 2019, the trial court held a revocation hearing where
the Commonwealth presented Washington County Probation Officer Jeremy
Bardo. Officer Bardo testified to three incidents supporting the allegations of
Appellant’s parole and probation violations. First, on July 16th, he and his
partner, Washington County Probation Officer Dominic Moore, visited
Appellant’s residence and asked for his cell phone. See N.T. Revocation H’rg,
11/4/19, at 4-5, 9; Adult Probation Office’s Petition for the Revocation of
Parole and Probation at 2. Appellant refused to give the officers his cell phone
and disobeyed several directives, which required them to physically restrain
him and place him in custody for safety reasons. N.T., 11/4/19, at 9-10.
Officer Bardo testified that Appellant claimed the officers “weren’t allowed” to
look through his phone and “ma[de] up rules.” Id. at 9. Officer Bardo noted
that Appellant was previously “provided [with] a copy of the rules of the adult
probation office . . . that he signed[,]” which “permit[s] visits to the
residence[.]” Id. When Officer Bardo eventually retrieved Appellant’s phone
and searched its contents, he saw messages between Appellant and a minor
female — who identified herself as being 15 years old. Id. at 14. The
messages included a naked photo of the minor and demonstrated Appellant
was “grooming her with conversations, [regarding] her past life, relationships
with family[,] his personality, [and] romance[.]” Id. at 14-15.
Next, Officer Bardo testified that immediately after the July 16, 2019,
incident they transported Appellant to the police station where he stated,
“You’re fucking with the wrong German.” N.T., 11/4/19, at 9. Officer Bardo
-3-
J-A06036-21
asked Appellant if he was threatening him and Officer Moore, to which
Appellant clarified he was threatening Officer Moore. Id. at 9, 18. Also in
support of Appellant’s violations, Officer Bardo recounted that on July 2nd —
before officers visited his home and found incriminating information on his
phone — Appellant was working in a program at the community service office.
Id. at 7-8; Adult Probation Office’s Petition for the Revocation of Parole and
Probation at 2. While there, he used “vulgar language, [and was] disrespectful
with staff[,]” which resulted in the community service director asking
Appellant to “remove himself.” See N.T., 11/4/19, at 7-8.
Appellant testified that he did tell the officers he was going to “fight”
them, though he intended to do so on the law, not physically. See N.T.,
11/4/19, at 21-22. Appellant did not dispute the officer’s testimony that the
office of probation and parole imposed these conditions upon him, and he was
informed of these conditions prior to the hearing. Appellant also stated that
his parole would be completed on December 12, 2019, a fact the
Commonwealth did not contest. Id. at 23. After Appellant completed his
testimony, his attorney acknowledged that the “German comment” Appellant
made at the police station would be a basis for revocation “if the [c]ourt
[found] that [it was] threatening bodily harm[.]” Id. at 29-30.
At the conclusion of the hearing, the trial court determined Appellant
had committed the alleged technical violations, and revoked both Appellant’s
parole and probation. N.T., 11/4/19, at 31-32. On January 22, 2020, the
trial court held a resentencing hearing. At the hearing, John Pankopf — an
-4-
J-A06036-21
employee at the Washington County Adult Probation Office — testified that
Appellant had completed his parole for possession of child pornography before
the date of sentencing. See N.T. Resentencing, 1/22/20, at 4, 7. Appellant
was then resentenced on the conviction of criminal use of a communication
facility to one to three years’ incarceration.3 Id. at 24.
Appellant then filed a notice of appeal to this Court where he raised the
following claims:
1. Whether the [VOP] court erred in revoking [Appellant’s] parole
at Count 1 where the Commonwealth failed to produce sufficient
evidence establishing what the actual terms and conditions of
[Appellant’s] parole were and [Appellant] had not been charged
with or convicted of a new offense?
2. Whether the [VOP] court abused its discretion in revoking
[Appellant’s] probation at Count 2 where the Commonwealth
failed to produce sufficient evidence establishing what the actual
terms and conditions of [Appellant’s] probation were and
[Appellant] had not been charged with or convicted of a new
offense?
3. Whether [Appellant’s] parole and probation revocation
sentences are illegal where the same were imposed without
authority as a result of the Commonwealth’s failure to prove that
[Appellant] violated any actual terms or conditions of his probation
or parole?
Appellant’s Direct Appeal Brief at 6 (some capitalization omitted).
On direct appeal, this Court concluded Appellant was entitled to relief
because the trial court “did not advise Appellant of the conditions of his
____________________________________________
3 Though Appellant completed his term of parole before the date of sentencing,
the trial court “remanded [him] to the state correctional institution to serve
the balance of his maximum sentence.” See N.T., 1/22/20, at 24.
-5-
J-A06036-21
probation and parole at the time of the initial sentencing[.]” See
Commonwealth v. Koger, 255 A.3d 1285, 1287 (Pa. Super. 2021), r’vd in
part, Koger, 295 A.3d 699. Instead, “the general rules, regulations, and
conditions governing [his] probation and parole . . . were explained to
[Appellant] by an adult probation officer immediately following the sentencing
proceeding.” See Koger, 255 A.3d at 1290 (record citation & footnote
omitted). Relying on Commonwealth v Foster, 214 A.3d 1240 (Pa. 2019),
we determined the trial court was required to impose both Appellant’s parole
and probation conditions at the time of sentencing. See id. at 1285. Because
the trial court failed to do so, we reversed the revocations of probation and
parole, and vacated the judgment of sentence. Id. at 1291.
The Commonwealth filed a petition for review with the Pennsylvania
Supreme Court, which the Court granted, and thereafter, reversed, in part,
this Court’s decision. See Koger, 295 A.3d 699. The Supreme Court
concluded this Court improperly applied rules exclusive to probation to the
trial court’s order revoking Appellant’s parole. See Koger, 295 A.3d at 709.
The Court explained that its decision in Foster required examining “several
statutes . . . which relate exclusively to probation, not parole.” See Koger,
295 A.3d at 706 (emphasis added). With respect to conditions of parole,
however, the Supreme Court clarified “sentencing courts are authorized to
delegate to county probation officers the responsibility of communicating to
defendants the conditions of their parole, and to do so post-sentencing.” Id.
at 709 (emphasis added). Thus, the Supreme Court reversed our decision, in
-6-
J-A06036-21
part, and remanded for further proceedings. We now reconsider our decision
in light of the Supreme Court’s mandate.
Appellant’s first two claims challenge the sufficiency of the evidence
supporting the violations of both his parole and probation. First, we note that
Appellant’s revocation of probation is not at issue in this appeal. In this Court’s
prior opinion, we concluded the trial court erred when it revoked Appellant’s
probation. See Koger, 255 A.3d at 1290-91. Relying upon Foster, we
explained the trial court was required to impose the conditions of Appellant’s
probation at the time of sentencing. See id. Our Supreme Court agreed with
this determination and the Commonwealth conceded this point. See Koger,
295 A.3d at 706 n.9 (emphasizing the Court was “only concerned with the
propriety of [Appellant’s] parole revocation[,]” and the Commonwealth
“agree[d] the. . . reversal of [Appellant’s] probation revocation was ‘in line
with [the Supreme Court’s] holding in Foster[.]”). Accordingly, we only
address Appellant’s claims insofar as they challenge the revocation of his
parole.
“The Commonwealth must prove [a parole] 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, 291 (Pa. Super. 2008). “The ‘preponderance of the evidence’
is the lowest burden of proof in the administration of justice, and it is defined
as the ‘greater weight of the evidence, i.e., to tip a scale slightly [in one’s
favor].’” See Commonwealth v. A.R., 990 A.2d 1, 4 n.4 (Pa. Super. 2010)
-7-
J-A06036-21
(citation omitted). “Following parole revocation and recommitment, the
proper issue on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the defendant
to confinement.” Kalichak, 943 A.2d at 291 (citation omitted).
Returning to Appellant’s argument, he avers the Commonwealth did not
show by a preponderance of the evidence that he violated his conditions of
parole. Appellant’s Direct Appeal Brief at 20-21. Specifically, he contends the
Commonwealth did not “establish[ ] the actual conditions” of his supervision,
but instead, the court relied upon the allegations in the revocation petition
and Officer Bardo’s testimony to support revocation. Id. at 21-22. He insists
that the Commonwealth must provide more evidence to demonstrate a
violation. See id. at 22.
The trial court concluded the Commonwealth presented sufficient
evidence to establish, by a preponderance of the evidence, that Appellant
violated his parole. Trial Ct. Op., 5/26/20, at 14. It opined:
[Appellant’s] second revocation hearing was conducted only after
the Washington County Adult Probation Office submitted its
second “Petition for the Revocation of Parole and Probation,”
which detailed, inter alia, three specific technical violations that
[Appellant] allegedly violated.
Among those three technical violations was Condition 7,
which stated that Appellant failed to “refrain from assaultive,
threatening or harassing behavior.” Indeed, at the second
revocation proceeding, Officer Bardo provided the [trial c]ourt
with two specific occurrences that amounted to violations of
Condition [seven].
-8-
J-A06036-21
Trial Ct. Op.at 14 (citation omitted & paragraph break inserted). The trial
court also noted Appellant’s concession that he threatened to “fight” the
officers — regardless of his subconscious intent behind the statement —
combined with his attorney’s admission that the comment could be a basis for
revocation, supported a violation of condition seven. See id. at 14-15. The
court also credited Officer Bardo’s testimony whereby he described the July 2,
2019, community service center incident and the two July 16th incidents
involving Appellant’s cell phone and threatening behavior — which it stated
supported the allegation that Appellant violated condition two of his parole.
Id. at 14-19.
We agree with the trial court’s conclusion. At the time of Appellant’s
conduct on July 2 and 16, 2019, he was completing his parole for his conviction
of possession of child pornography. At the hearing, the Commonwealth
needed only to prove by a preponderance of the evidence that Appellant
committed technical violations of his parole. See Kalichak, 943 A.2d at 291.
The crux of Appellant’s argument is that the Commonwealth did not establish
that he was subject to the conditions he was accused of violating. See
Appellant’s Brief at 22. However, Appellant does not cite — nor could this
Court locate — any precedent stating the Commonwealth could not satisfy the
preponderance of the evidence standard through the office’s revocation
-9-
J-A06036-21
petition and sworn testimony. Additionally, Appellant did not contest the fact
that he was subject to these conditions during the hearing.4
Here, the Commonwealth needed only “to tip a scale slightly” in its
favor. See A.R., 990 A.2d at 4 n.1. We agree with the trial court’s conclusions
that it did so by providing the probation office’s petition for revocation — which
listed the conditions Appellant was accused of violating — and Officer Bardo’s
testimony that Appellant was previously provided with these conditions of
parole. See N.T., 11/4/19, at 9; Adult Probation Office’s Petition for the
Revocation of Parole and Probation at 2. For this reason, Appellant has failed
to establish that the court erred in revoking his parole. See Kalichak, 943
A.2d at 291.
Appellant’s final claim challenges the legality of his sentence. He relies
largely on his previous argument that the Commonwealth did not establish he
was subject to the conditions for which the trial court concluded he violated.
See Appellant’s Direct Appeal Brief at 28-29. Thus, he avers the court had no
authority to impose a sentence. Id.____________________________________________
4 Our Supreme Court suggested in its opinion that Appellant may have waived
his argument at both the trial and appellate levels. See Koger, 295 A.3d at
711 n.12. To the extent Appellant did not contest Officer Bardo’s testimony
that the office of probation and parole informed him of the conditions of his
supervision, we agree. However, Appellant did properly preserve his
challenge to the sufficiency of the evidence supporting his revocation of parole
in both his Pa.R.A.P. 1925(b) concise statement and his appellate brief. See
Appellant’s Pa.R.A.P. 1925(b) Statement, 4/27/20, at 4-5 (unpaginated);
Appellant’s Direct Appeal Brief at 19-22 (arguing the Commonwealth did not
establish the terms and conditions of his parole).
- 10 -
J-A06036-21
Our standard of review for a challenge to the legality of a sentence is de
novo and our review is plenary. See Commonwealth v. Bickerstaff, 204
A.3d 988, 995 (Pa. Super. 2019). Further, we note:
[A] parole revocation does not involve the imposition of a new
sentence. Indeed, there is no authority for a parole-revocation
court to impose a new penalty. Rather, the only option for a court
that decides to revoke parole is to recommit the defendant to
serve the already-imposed, original sentence. At some point
thereafter, the defendant may again be paroled.
Kalichak, 943 A.2d at 290 (citations & footnote omitted).
As discussed above, we concluded the trial court did not err in its
determination that Appellant committed parole violations. As a result of the
revocation, the court “remanded [him] to serve the balance of his maximum
sentence” at that conviction. N.T., 1/22/20, at 24. The court did not impose
a new sentence, but instead recommitted Appellant to serve the balance of
his maximum term, which it had the authority to do. See Kalichak, 943 A.2.d
at 290. Thus, the trial court did not impose an illegal sentence and Appellant
is not entitled to relief on this claim.
In summary, our Supreme Court agreed, and the Commonwealth
conceded, the trial court erred in revoking Appellant’s probation. Thus, we
reverse in part the trial court’s November 4, 2019, order to the extent the
court revoked Appellant’s probation, and we vacate the January 22, 2020,
judgment of sentence of one to three years’ incarceration. However, because
Appellant did not demonstrate that the trial court erred when it determined
that he violated the conditions of his parole, we affirm in part the court’s
- 11 -
J-A06036-21
November 4th order and subsequent judgment of sentence. See Kalichak,
943 A.2d at 290-91.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
DATE: 12/1/2023
- 12 -