Com. v. Hill, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BERNARD HILL :
:
Appellant : No. 1035 EDA 2020
Appeal from the Judgment of Sentence Entered February 11, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011031-2016
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 13, 2021
Appellant, Bernard Hill, appeals from the February 11, 2020 judgment
of sentence that imposed 3 to 23 months’ incarceration, followed
consecutively by 12 months’ probation, following the revocation of his
probation. The trial court, upon sentencing Appellant, immediately paroled
him to house arrest. Appellant’s attorney, Assistant Public Defender Karl L.
Morgan, Esquire (“Attorney Morgan”) filed an Anders brief1 and a petition to
withdraw. We grant counsel’s petition to withdraw and affirm the judgment
of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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The trial court summarized the procedural history as follows:
On March [2]3, 2017, Appellant [pleaded] guilty to burglary[2] and
was sentenced to 4 years[’] reporting probation. On March 5,
2018[,] Appellant was found in violation of probation for numerous
positive drug tests for opiates and benzodiazepines. His previous
probation was revoked[,] and he was sentenced to a new term of
4 years[’] reporting probation with a drug evaluation from the
street. Any positive drug screens would lead to an immediate
detainer. On June 27, 2019[,] Appellant was arrested and
charged with burglary[,] conspiracy[,] simple assault[,] recklessly
endangering another person[,] theft[,] and receiving stolen
property [at trial court docket number]
CP-51-CR-0004985-2019[.] On December 3, 2019[,] Appellant
appeared for a detainer hearing[,] and [the trial] court lifted the
detainer with house arrest as a condition. []Appellant was []
allowed to [leave his house for] work, with verifiable hours and
was also permitted to leave his house for [eight] hours on
Christmas Day 2019 to be with family. On January 28, 2020[,]
the [charges at trial court docket number]
CP-51-CR-0004985-2019[] were nolle prossed when the
complaining witness failed to appear. On February 11, 2020[,] at
his violation of probation hearing, [Appellant] was sentenced to 3
[to] 23 months[’ incarceration] plus [12 months’] probation with
immediate release to house arrest.
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2 The record demonstrates that the trial court sentenced Appellant for a
conviction of burglary of an overnight accommodation with a person present
under 18 Pa.C.S.A. § 3502(a)(1). Order of Sentence, 2/11/20. A review of
Appellant’s written guilty plea colloquy reveals that Appellant pleaded guilty
to burglary of an overnight accommodation without a person present under
18 Pa.C.S.A. § 3502(a)(2). Written Guilty Plea Colloquy, 3/23/17, at 1. The
affidavit of probable cause details that the burglary occurred in a dwelling
adapted for overnight accommodation but that the complainant was not
present at the time of the incident. Affidavit of Probable Cause, 6/15/16. The
trial court’s citation to burglary of an overnight accommodation with the
complainant present appears to be a clerical error. Both Section 3502(a)(1)
(person present) and Section 3502(a)(2) (person not present), however, are
graded as first-degree felonies and, therefore, are subject to the same
sentencing guidelines.
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Trial Court Opinion, 12/31/20, at 1-2 (extraneous capitalization and
references to exhibits omitted).
On February 24, 2020, Appellant filed an untimely post-sentence motion
to reconsider his revocation sentence.3 Appellant filed a notice of appeal on
March 12, 2020.4 On June 11, 2020, the trial court ordered Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) within 21 days. Appellant filed his Rule 1925(b) statement on
September 18, 2020.5 The trial court subsequently filed its Rule 1925(a)
opinion on December 31, 2020. On February 12, 2021, Attorney Morgan filed
an Anders brief and a petition to withdraw as Appellant’s counsel.
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3 “A motion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition.” Pa.R.Crim.P. 708(E). Here,
Appellant was sentenced on February 11, 2020, and 10 days thereafter would
have been February 21, 2020. Appellant’s motion to reconsider his revocation
sentence was not filed until February 24, 2020.
4 The filing of a motion to reconsider a sentence after a revocation does not
toll the 30-day appeal period. Pa.R.Crim.P. 708(E). “Any appeal must be filed
within the 30-day appeal period unless the [trial court] within 30 days of the
imposition of sentence expressly grants reconsideration or vacates the
sentence.” Id. at Official Comment. The trial court is divested of jurisdiction
to dispose of a motion for reconsideration if a notice of appeal is timely filed
or upon expiration of the 30-day period in which to file an appeal.
Commonwealth v. Swope, 123 A.3d 333, 337 n.16 (Pa. Super. 2015).
Here, even if the trial court accepted Appellant’s motion for reconsideration of
sentence as timely filed, the trial court was divested of jurisdiction to dispose
of Appellant’s motion to reconsider his sentence upon the filing of an appeal
on March 12, 2020.
5 On January 28, 2021, the trial court accepted Appellant’s Nunc Pro Tunc Rule
1925(b) statement as having been timely filed. Trial Court Order, 1/28/21.
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Preliminarily, we address Attorney Morgan’s petition to withdraw and
the accompanying Anders brief, both alleging this appeal is frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). To withdraw pursuant to Anders, “counsel must file
a brief that meets the requirements established by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Id. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his[, or her,] client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa. Super. 2014) (internal quotation marks and citation omitted). The brief
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must be accompanied by a letter that advises the client of the option to “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.” Id. “Once
counsel has satisfied the above requirements, it is then this Court’s duty to
conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (citation and internal quotation marks omitted).
Instantly, Attorney Morgan satisfied the technical requirements of
Anders and Santiago. In his Anders brief, counsel identified the pertinent
factual and procedural history and made citation to the record. Counsel raises
a claim challenging the sufficiency of the evidence to support Appellant’s
violation of probation and a claim that Appellant’s revocation sentence was
illegal. Counsel notes that these claims could arguably support an appeal but,
ultimately, counsel concludes the appeal is frivolous. Counsel also attached
to his petition to withdraw a letter to Appellant that fulfills the notice
requirements of Millisock. Appellant has not filed a response to counsel’s
letter, the Anders brief, or the petition to withdraw. Accordingly, we proceed
to conduct an independent review of the record to determine whether the
appeal is wholly frivolous.
In his Anders brief, counsel raises the following issues on Appellant’s
behalf:
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1. Was there sufficient evidence to support the finding that
[Appellant] was in violation of his probation?
2. Was [Appellant’s revocation] sentence illegal?
Anders Brief at 3.
In reviewing an appeal from a judgment of sentence imposed after
the revocation of probation, this Court's scope of review includes
the validity of the hearing, the legality of the final sentence, and
if properly raised, the discretionary aspects of the appellant's
sentence.
Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (citation and
quotation marks omitted), appeal denied, 243 A.3d 724 (Pa. 2020).
“Revocation of a probation sentence is a matter committed to the sound
discretion of the trial court and that court's decision will not be disturbed on
appeal in the absence of an error of law or an abuse of discretion.”
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal
denied, 945 A.2d 169 (Pa. 2008).
In his first issue, Appellant challenges the validity of the revocation
proceedings and whether the Commonwealth established, by a preponderance
of the evidence, that Appellant violated his probation. Anders Brief at 8-11.
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.
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Perreault, 930 A.2d at 558. For a trial court to find an individual in violation
of probation, the trial court “must find, based on the preponderance of the
evidence, that the probationer violated a specific condition of probation or
committed a new crime[.]” Commonwealth v. Foster, 214 A.3d 1240,
1243, 1250 (Pa. 2019) (stating, “a [trial] court may find a defendant in
violation of probation only if the defendant [] violated one of the ‘specific
conditions’ of probation included in the probation order or [] committed a new
crime”).
Here, a review of the record demonstrates that, pursuant to the March
5, 2018 violation of probation sentencing order, Appellant, in addition to being
sentenced to 4 years’ supervised probation, was required to submit to drug
screens. Trial Court Order VOP, 3/5/18. If Appellant tested positive for drug
use, then an immediate detainer would be lodged. Id. On June 27, 2019,
Appellant was arrested and charged with the aforementioned criminal offenses
at trial court docket CP-51-CR-0004985-2019 and, as a result, a bench
warrant for Appellant was issued on the ground Appellant violated his
probation. On July 10, 2019, a Gagnon I hearing6 was held, at which point,
the bench warrant was lifted, and a detainer was issued, which was to remain
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6 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a parolee
or probationer is detained pending a revocation hearing, due process requires
a determination at the pre-revocation hearing (Gagnon I hearing) of probable
cause to believe a violation was committed, and upon finding of probable
cause, a second, more comprehensive hearing (Gagnon II hearing) follows
before the trial court makes its final revocation decision).
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pending until Appellant’s Gagnon II hearing. Gagnon I Hearing Disposition,
7/10/19. At the Gagnon I hearing, the trial court found that probable cause
existed that Appellant violated his probation as a result of his pending criminal
charges. Id. On July 16, 2019, Appellant’s Gagnon II hearing was continued
indefinitely pending the resolution of those criminal charges filed at trial court
docket CP-51-CR-0004985-2019. At a December 3, 2019 detainer hearing,
the trial court lifted the detainer and subjected Appellant to house arrest, with
limited release for work and for Christmas Day. On January 28, 2020,
Appellant’s charges at trial court docket CP-51-CR-0004985-2019 were nolle
prossed.7 On February 11, 2020, the trial court held a Gagnon II hearing
whereupon the trial court found,
[Appellant] in violation of [his] probation [order] for absconding
[from house arrest]. I’m finding him in technical violation of [the
trial court’s] supervision. I’m revoking his probation.
. . . [Appellant’s conduct amounts to] technical violation[s of his
probation] for absconding from house arrest and using drugs.
N.T., 2/11/20, at 15-16 (emphasis added). In its Rule 1925(a) opinion, the
trial court further explained,
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7 A nolle prosequi is a voluntary withdrawal by a prosecuting
attorney of proceedings on a particular criminal bill or information,
which at any time in the future can be lifted upon appropriate
motion in order to permit a revival of the original criminal bill or
information. Since a nolle prosequi acts neither as an acquittal
nor a conviction, double jeopardy does not attach to the original
criminal bill or information.
Commonwealth v. Banks, 198 A.3d 391, 403 (Pa. Super. 2018).
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The allegation that [] Appellant’s house arrest should have been
vacated when his [charges at trial court docket
CP-51-CR-0004985-2019 were nolle prossed,] hence he would not
have violated house arrest, is without legal basis and factually
incorrect. The first violation of house arrest occurred on January
27, 2020[,] one day before his [case at trial court docket
CP-51-CR-0004985-2019 was] nolle prossed. Appellant] also
tested positive for cocaine on January 6[, 2020,] and [on]
January 28, 2020. [] Appellant did appear before the [trial]
court on January 28, 2020[,] and informed [the trial] court he was
absconding from house arrest. In an effort to help [] Appellant,
[the trial] court reached out to his probation officer and reinstated
Appellant to house arrest instead of taking him into custody. []
Appellant was even given a new violation of [probation] hearing
date of February 11, 2020. After he was reinstated to house arrest
on January 28, 2020[,] Appellant absconded again on February 7,
2020[], and was in absconding status until he appeared before
[the trial] court on [February 11], 2020.
Trial Court Opinion, 12/31/20, at 3 (record citations and extraneous
capitalization omitted, emphasis added).
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, there is sufficient evidence to prove by a preponderance of
the evidence that Appellant violated a specific condition of his probation. At
the Gagnon II hearing, a probation officer testified that Appellant tested
positive for cocaine on January 6, 2020, and again on January 28, 2020. N.T.,
2/11/20, at 7. A specific condition of Appellant’s probation was that he would
refrain from drug use. Trial Court Order VOP, 3/5/18. Therefore, there was
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sufficient evidence to support the trial court’s finding that Appellant violated
his probation.8
In his second issue, Appellant challenges the legality of his revocation
sentence, for which our standard of review is well-settled. “The issue of
whether a sentence is illegal is a question of law and our scope of review is
plenary.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super.
2010), appeal denied, 13 A.3d 475 (Pa. 2010).
Subsequent to revocation of probation, the [trial] court has
available to it all the options permissible at the time of initial
sentencing, giving due consideration “to the time spent serving
the order of probation.” 42 Pa.C.S.[A.] § 9771(b). As long as the
new sentence imposed does not exceed the statutory maximum
when factoring in the incarcerated time already served, the
sentence is not illegal.
Crump, 995 A.2d at 1285. “Additionally, Section 9754 of the Sentencing Code
only mandates that a [trial] court keep a term of probation under the
maximum term a defendant could be confined.” Id. at 1284; see also 42
Pa.C.S.A. § 9754(a) (stating, “[i]n imposing an order of probation the [trial]
court shall specify at the time of sentencing the length of any term during
which the defendant is to be supervised, which term may not exceed the
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8 Moreover, Appellant’s sentence of 4 years’ probation was to be supervised
by the Philadelphia County Adult Probation and Parole Department. Trial Court
Order VOP, 3/5/18. When Appellant absconded on January 27, 2020, and
again on February 7, 2020, Appellant was not supervised by the necessary
party and was in violation of his probation.
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maximum term for which the defendant could be confined, and the authority
that shall conduct the supervision”).
Here, Appellant was convicted of burglary, which is a first-degree felony.
As such, the trial court could have sentenced Appellant to a term of
imprisonment of not more than 20 years. 18 Pa.C.S.A. § 1103(1). Therefore,
Appellant’s sentence of 3 to 23 months’ incarceration to be followed by 12
months’ probation with immediate release to house arrest is not illegal.
Upon review of the record, we conclude that it supports Attorney
Morgan’s assessment that Appellant’s appeal is wholly frivolous. Moreover,
our independent review of the entire record reveals no additional,
non-frivolous claims. Therefore, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2021
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