Com. v. Haliday, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ARIS WILLIAM HALIDAY
Appellant No. 1380 EDA 2016
Appeal from the Judgment of Sentence April 21, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004503-2008
BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2017
Aris William Haliday appeals from the judgment of sentence of two to
four years incarceration, imposed following revocation of Appellant’s
probation. We affirm.
This matter traces to Appellant’s negotiated guilty plea to two counts
of indecent assault. On May 29, 2008, Abington Township police officers
initiated charges based upon allegations that Appellant had sexually abused
his minor female cousins, E.R. and J.R. The Commonwealth subsequently
filed a criminal information charging Appellant with fifty-four counts of, inter
alia, rape of a child, statutory sexual assault, aggravated indecent assault of
a child, and indecent assault of a child, spanning the time period October 1,
2005, through April 30, 2008.
* Former Justice specially assigned to the Superior Court.
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On January 11, 2010, Appellant agreed to plead guilty to two counts of
indecent assault; one graded as a misdemeanor of the first degree, and the
other graded as a misdemeanor of the second degree. 18 Pa.C.S. §
3126(a)(7),(8). The differing grades were due to the ages of the victims at
the time of the crimes. 18 Pa.C.S. § 3126(b). Appellant agreed during his
guilty plea colloquy that, sometime between October 1, 2005, and April 30,
2008, he placed his hand on the vaginal area of both E.R. and J.R. N.T.
Guilty Plea, 1/11/10, at 7-8. The parties agreed to a sentence of eleven and
one-half months to twenty-three months incarceration, followed by a
consecutive four year period of probation. Appellant was subsequently
deemed to be a sexually violent predator and received the agreed-upon
sentence.
At the violation of probation hearing, Adult Probation Officer Allison
Gazzale explained that she became Appellant’s supervising probation officer
in September or October of 2013. N.T. Violation Hearing, 12/3/15, at 66.
On April 22, 2015, she made an unscheduled visit to Appellant’s home,
where she discovered an adult woman leaving with an infant child. Id. at
70. This conduct violated his probation, as Appellant was to have no contact
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with children. Id. at 71. Appellant was detained for sixty days, and Officer
Gazzale stated that the matter “was handled administratively.” 1 Id.
The second detainer was lodged October 10, 2015. We now set forth
the circumstances leading to this detainer, part of which involved the
addition of a probationary condition that Appellant claims was
unconstitutional. This condition concerned Appellant’s contact with Faith
Witherspoon, his ex-girlfriend. Officer Gazzale explained that she became
aware of Appellant’s alleged stalking of Ms. Witherspoon from Mary Young,
Appellant’s counselor at Specialized Counseling Associates, a Sexual
Offender Assessment Board approved provider. Due to that report and
Appellant’s prior conviction for raping an ex-girlfriend, the probation office
determined that a no-contact order was warranted. Id. at 43, 67.
On September 21, 2015, Appellant appeared at the probation office as
previously scheduled. The officers had decided “to put him on GPS per the
information he had relayed to treatment, which was later relayed to us as
concerning behavior.” Id. at 77. Appellant, upon request, supplied
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1 Officer Gazalle noted that formal revocation proceedings were not
instituted. Instead, she submitted an administrative disposition to her
supervisor, Nicholas Honyara, who testified that “we had offered [Appellant]
the opportunity, as opposed to coming back before the [c]ourt, to handle his
violation administratively[.]” N.T. Violation Hearing, 12/3/15, at 43. The
docket shows that a scheduled violation hearing was canceled. The original
judge then sentenced Appellant to time served with an additional one year of
probation.
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addresses for Ms. Witherspoon, as well as the “mother of his child’s house.”
Officer Gazzale instructed Hunter Slugg, Jr., a fellow employee of
Montgomery County Adult Probation, to place an electronic monitor on
Appellant’s ankle. Mr. Slugg established boundaries through the monitor’s
software surrounding the two addresses supplied by Appellant. On cross-
examination, Mr. Slugg confirmed that he did not inform Appellant of the
specific areas established in the software. Id. at 36.
Mr. Slugg explained that the software reported that Appellant went
past Ms. Witherspoon’s address in the early afternoon hours of October 10,
2015, at approximately twenty miles per hour, and again at 10:19 p.m. at
the speed of one mile per hour. As a result, Mr. Honyara decided to detain
Appellant for violating probation. Id. at 44. While detained in a holding cell,
Appellant made comments to Officer Gazzale indicating that “[Ms.
Witherspoon] would see [his presence] as stalking behaviors.” Id. at 83.
Based on the foregoing conduct, Officer Gazzale initiated formal
revocation proceedings, which she explained was based on three
independent grounds. First, his failure to adhere to the no-contact order
violated his condition that he “abstain from creating a danger to himself or
to the community.” Id. at 76. Second, he had been discharged from
Specialized Counseling Associates. Id. Third, Appellant had failed to pay
fines and court costs.
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The Commonwealth also called Ms. Witherspoon, who testified that she
and Appellant had dated for approximately four-and-one-half years,
breaking up in April, 2014. In late August or early September of 2015, she
told him to stop contacting her. Id. at 11. Appellant persisted in visiting
her apartment, and Ms. Witherspoon saw him about five times in the span of
two weeks, always at night. When asked why he visited, Appellant told her
he was there “to check on you.” Id. On one occasion, she took her trash
outside and saw Appellant standing between two cars parked directly
underneath her window. Id. at 15. She reported the incident to the police. 2
Id.
Finally, Mary Young testified that Appellant revealed during a session
that Ms. Witherspoon told Appellant she felt he was stalking her, prompting
Ms. Young’s report to the probation officers. Id. at 55. Ms. Young also
related that Appellant was in denial of his offenses and was argumentative.
Id. at 52. As a result, Appellant was discharged from counseling.
At the conclusion of the hearing, the judge determined that the
Commonwealth had established the first two grounds for violation, but failed
with respect to the third.
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2On cross-examination, Ms. Witherspoon admitted that she had contact with
Appellant after he received the monitor, including one instance in which he
contacted her and picked her up from work. N.T. Violation Hearing,
12/3/15, at 23. She reiterated that she did not want him to come by her
home. Id.
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Sir, you did basically admit that you knew you were not
supposed to be around [Ms. Witherspoon’s home]. You can sit
there and say that you weren’t quite sure whether you could be
in the parking lot, it just doesn’t pass the smell test as to why
you’d be walking around her apartment. I think most definitely
that that’s a violation.
With regard to number two, quite clearly you were discharged
from the program according to the testimony of Ms. Young.
According to C-7, the discharge summary for Specialized
Counseling Associates, and based on the testimony of Ms.
Young, I’m going to find that you were discharged from that and
for failing to comply with the approved treatment program.
Id. at 101-02.
On April 21, 2016, the court sentenced Appellant to two to four years
incarceration. This timely appeal followed, and Appellant raises the following
issues for our review.3
I. Whether the trial court erred in crediting a condition placed
on the probationer by the probation department when no
such condition was placed on Appellant by the court, the
probation department failed to request the trial court add
the condition to the probation.
II. Whether the condition that the Appellant is alleged to have
violated is invalid and void for vagueness where there were
no distances or metes or bounds placed on the condition.
III. Whether the trial court erred in finding Appellant to be in
violation of his probation for failing to complete required
treatment where Appellant was discharged from treatment
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3 On August 23, 2016, we granted an application for remand to file a
supplemental Pa.R.A.P. 1925(b) statement. Upon return of the certified
record to this Court, Appellant failed to file a brief. On February 27, 2017,
we granted reinstatement of the appeal.
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because he was being held on the aforementioned, invalid
probation violation.
Appellant’s brief at 3.
We explained in Commonwealth v. Cartrette, 83 A.3d 1030(Pa.Super. 2013) (en banc), that our scope of review in probation revocation
cases encompasses the discretionary aspects of sentencing. When
examining a challenge to the validity of the proceedings, we apply the
following standard of review.
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. When assessing whether to revoke
probation, the trial court must balance the interests of society in
preventing future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison. 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. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014)
(quotation marks and citations omitted).
Appellant’s arguments assail the validity of the proceeding and do not
challenge the trial court’s sentencing decision. We first set forth the basic
principles governing the trial court’s revocation inquiry. “The Commonwealth
establishes a probation violation meriting revocation when it shows, by a
preponderance of the evidence, that the probationer's conduct violated the
terms and conditions of his probation, and that probation has proven an
ineffective rehabilitation tool incapable of deterring probationer from future
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antisocial conduct.” Commonwealth v. Ahmad, 961 A.2d 884, 888
(Pa.Super. 2008). “When assessing whether to revoke probation, the trial
court must balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating the
defendant outside of prison.” Commonwealth v. Allshouse, 33 A.3d 31,
37 (Pa.Super. 2011) (quotation marks and citation omitted).
Appellant’s arguments are confined to the no-contact requirement, and
therefore overlook the fact that his violation of that condition was but one
part of a much larger picture, namely, his prior probation violation for being
present with a minor and failure to comply with counseling. Therefore,
Appellant’s position proceeds from the flawed assumption that a violation of
the no-contact order was necessary to sustain the trial court’s decision.
Having set forth that observation, we now turn our attention to
Appellant’s specific issues. His first claim is that compliance with the no-
contact order was not part of the conditions of probation as it was imposed
by the probation office, and not the trial court. “Appellant Haliday first
argues that the trial court erred in finding him to be in violation of the terms
of his probation for being in the vicinity of Ms. Witherspoon’s residence
where that condition was never placed upon him by the [c]ourt[.]”
Appellant’s brief at 10.
This issue has been waived, as Appellant failed to challenge the
condition on this basis. Appellant conceded that the probation department
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could impose a no-contact order; he simply maintained that the department
was required to clearly delineate its geographic bounds.
Ms. Gazzale . . . told him that he could not be at or around the
residence. At or around is necessarily a vague term, your
Honor. There would have been a very simple solution to this,
especially given the fact that Mr. Haliday told Ms. Gazzale that
he has family in that area. All she would have had to do is
basically give him something in writing saying Mr. Haliday, you
can’t be within a certain perimeter of her residence. But he was
not given anything in writing and, furthermore, he was not given
any perimeter. He was just told a very vague term, you can’t be
at or around her residence.
N.T. Violation Hearing, 12/3/15, at 97-98.
Even if the issue were preserved, Appellant is not entitled to relief.
In Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our Supreme Court
analyzed 42 Pa.C.S. § 9754, which states in relevant part:
(a) General rule.--In imposing an order of probation the 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 maximum term for which the defendant could be
confined, and the authority that shall conduct the supervision.
(b) Conditions generally.--The court shall attach such of the
reasonable conditions authorized by subsection (c) of this section
as it deems necessary to insure or assist the defendant in
leading a law-abiding life.
(c) Specific conditions.--The court may as a condition of its
order require the defendant:
....
(13) To satisfy any other conditions reasonably related to the
rehabilitation of the defendant and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.
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42 Pa.C.S. § 9754. At issue in Elliot was whether a condition imposed by
the Pennsylvania Board of Probation and Parole was valid, insofar as the
Board, rather than the sentencing judge, imposed the condition. Our
Supreme Court analyzed the Sentencing Code in pari materia with the
Prisons and Parole Code and concluded: “In summary, a trial court may
impose conditions of probation in a generalized manner, and the Board or its
agents may impose more specific conditions of supervision pertaining to that
probation, so long as those supervision conditions are in furtherance of the
trial court's conditions of probation.” Id. at 1292. While Elliot discussed a
condition imposed by the Pennsylvania Board of Probation and Parole, not a
county probation office as is the case herein, the case specifically noted that
the issue was a “general inquiry concerning whether the Board, county
probation offices, or the agents and officers thereof, can impose conditions
upon probationers that are not explicitly delineated in a trial court's
sentencing and probation order.” Id. at 1289 (emphasis added). Therefore,
the probation office was authorized to impose any other conditions
reasonably related to Appellant’s rehabilitation.
As a subsidiary component of this claim, Appellant argues that even if
the no-contact requirement was validly imposed, it was not reasonably
related to his rehabilitation as Ms. Witherspoon had no connection to the
underlying sexual assault crimes. However, we once again find that this
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issue is waived, as Appellant conceded that the condition could be imposed
and challenged only its lack of specific boundaries.
Appellant’s second claim is that the condition violated due process
because it was impermissibly vague. Appellant’s argument relies upon
Knight v. Commonwealth, Pennsylvania Board of Probation and
Parole, 510 A.2d 402, 403 (Pa.Cmwlth. 1986), overruled on other grounds
by Johnson v. Commonwealth, Pennsylvania Board of Probation and
Parole, 527 A.2d 1107 (Pa.Cmwlth. 1987).4 In Knight, the Commonwealth
Court determined that a probationer’s condition requiring him to stay away
from a mall during “late” evening hours was impermissibly vague and
violated constitutional due process.
Our research reveals that only one other case in this Commonwealth
has directly addressed a void-for-vagueness challenge in the context of
probationary conditions. “Supervisory release conditions are subject to the
constitutional doctrines of vagueness and overbreadth.” Commonwealth v.
Perreault, 930 A.2d 553, 559 (Pa.Super. 2007) (citing United States v.
Loy, 237 F.3d 251, 259–260 (3rd Cir. 2001)). Perreault involved a
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4 “While the Superior Court is bound to give due consideration to the
decisions and reasoning of the Commonwealth Court, this Court is not bound
to follow such decisions as controlling.” Nationwide Mutual Insurance
Company v. Yungwirth, 940 A.2d 523, 528, n.5 (Pa.Super. 2008) (citation
omitted).
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probation condition that prohibited Perreault from possessing “obscene
materials or materials which depict or describe sexual conduct[.]” Id. at
558. The trial court determined that he had violated his probation by
possessing a pornographic film. On appeal, he challenged the condition on
vagueness and overbreadth grounds. We concluded that the condition was
neither vague nor overbroad, as Perreault mischaracterized its limitations:
“The terms of [the condition], therefore, being both specific and well-
recognized in the context of law enforcement against sex offenses give
probationers of ordinary intelligence clear guidance as to what sex-related
content is prohibited, and do not encourage arbitrary enforcement.” Id. at
560.
We conclude that Appellant is not entitled to relief. While we agree
that the condition was hardly the model of clarity, the trial court’s revocation
was not based purely on a technical violation of the condition.5 Our review of
the record demonstrates that the trial court focused on the conduct as it
bore on Appellant’s rehabilitative prospects, and not the technicalities of the
violation. Unlike Perreault, which dealt with a restriction on access to
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5 In the context of penal statutes, the void-for-vagueness doctrine requires
that a statute “creating a new offense must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable
to its penalties[.]” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa.
2003) (quoting Commonwealth v. Heinbaugh, 354 A.2d 244, 246 (Pa.
1976)).
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material that was otherwise legal, the underlying conduct herein is not
constitutionally protected; stalking and harassment are punishable when
committed by probationers and ordinary citizens alike. To take Appellant’s
argument to its logical endpoint, the court would have to completely ignore
his behavior if he had fully complied with a clearly delineated prohibition. In
other words, if the probation office had instructed him to stay 200 yards
from Ms. Witherspoon’s residence, Appellant assumes that the court could
not consider Ms. Witherspoon’s testimony if he had continuously monitored
her home from a distance of 201 yards.
We find that the court could factor Appellant’s behavior into its
probation revocation calculus. Commonwealth v. Hoover, 909 A.2d 321(Pa.Super. 2006), is illustrative in this regard. Therein, Hoover was granted
work release from a sentence of incarceration imposed for two DUI
convictions. Id. at 322. One day, Hoover returned from work release while
intoxicated, which violated the work release policy. The judge “concluded
that [Hoover] was likely to commit new crimes while on probation” due to
that violation, and revoked probation. Id. We determined that the trial
court was permitted to consider intoxication as inconsistent with
rehabilitation even though his intoxication was not a crime.
Although Appellant herein did not, strictly speaking, violate the
law by becoming intoxicated, he clearly violated the terms of his
work release and demonstrated to the court that he is unworthy
of probation and that the granting of the same would not be in
subservience to the ends of justice [or] the best interests of the
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public. The record reflects that the trial judge was cognizant of
Appellant's extensive history of alcohol abuse, numerous prior
DUI convictions, and apparent inability to control his addiction to
alcohol. The court concluded that, in light of Appellant's
behavior, Appellant would be difficult to supervise while on
probation and posed a risk to the community in that he was
likely to commit new crimes.
Id. at 324 (citations and quotation marks omitted).
The same logic applies herein. Strictly speaking, Appellant did not
violate the law as he was not charged with any type of stalking or
harassment offense. However, the probation office’s directive was not the
product of an arbitrary or capricious act. C.f. Elliot, supra at (“[T]he Board
and its agents cannot impose any condition of supervision it wishes, carte
blanche.”). Appellant admitted that Ms. Witherspoon would see his behavior
as stalking, and she testified in court that she told him to stay away from
her residence. The court could properly consider Appellant’s persistent
behavior in assessing whether Appellant posed a risk to the community and
was a good candidate for continued probation. Thus, no relief is due.
We now reach Appellant’s third claim. Appellant contends that the fact
he was discharged from counseling was itself based upon his violation of the
no-contact order. Since the condition was invalid, the argument goes, so
too was his discharge from counseling.
The resolution of this claim is dictated by our foregoing analysis.
Appellant does not explain why the purported illegality of the no=contact
order further required the counselor, and, by extension, the trial court, to
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ignore the evidence generated by the ankle monitor. Appellant is implicitly
applying exclusionary rule principles to the evidence gleaned from the ankle
monitor without developing that argument. Even if we agreed that the
condition was unlawfully imposed, it does not follow that the evidence
gathered from the software must be shielded from the fact-finder.
Compare Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016)
(exclusionary rule applied in probation revocation proceedings to evidence
gathered by police officers that was suppressed in a criminal trial).
Therefore, we hold that the court did not abuse its discretion in
considering all of the evidence presented, which included: Appellant’s prior
probation violation which was resolved informally, Appellant’s criminal
history, which included rape, and Appellant’s behavior towards Ms.
Witherspoon in determining that he posed a risk to the community.
Hoover, supra. Furthermore, the fact Appellant was discharged from
counseling due to his inability to admit to committing the crimes during
counseling was a proper consideration. Commonwealth v. A.R., 990 A.2d
1 (Pa.Super. 2010) (violation of probation established by, inter alia,
appellant’s “inability to admit in treatment the sexual gratification motive
underlying his convictions”).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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