Com. v. Miller, J.

J-S06001-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH L. MILLER
Appellant No. 3014 EDA 2012
Appeal from the Judgment of Sentence September 21, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0501021-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
DISSENTING STATEMENT BY FITZGERALD, J.: FILED FEBRUARY 18, 2015
I respectfully dissent. In my view, the trial court’s statement of
reasons did not support its decision to revoke Appellant’s probation in light
of the record. Instantly, the trial court emphasized that it revoked
Appellant’s probation for his failure to save money for a required polygraph
test. See Trial Ct. Op., 7/17/13, at 2 n.1.1 However, the record established
*
Former Justice specially assigned to the Superior Court.
1
Appellant also admitted to being in the presence of minor children while
staying at his mother’s home. However, the trial court did not revoke
Appellant’s probation for that reason. See Trial Ct. Op. at 2 n.1. Moreover,
the Probation Department did not seek revocation of Appellant’s probation
after that incident, but rather afforded him “roughly five months,” from
February 2012 to June 2012, to save money for a polygraph test, which he
failed to do. See N.T., 7/20/12, at 6. The trial court also observed
J-S06001-15
that Appellant lived at his mother’s home, his annual income was $205 per
month, and the required test cost $305.2 Although the court suggested
Appellant had ample time to save, but refused to do so, I believe Appellant
established a prima facie case of indigence that should have been addressed
before the trial court revoked his probation based on a willful failure to save
or pay for a required test. See generally Commonwealth v. Eggers, 742
A.2d 174, 176 (Pa. Super. 1999); see also Miller v. Pa. Bd. of Prob. &
Parole, 784 A.2d 246, 249 (Pa. Cmwlth. 2001). Therefore, I would remand
this matter for a new revocation hearing.
Appellant also had some nineteen months—from his 2010 violation of
probation to June 2012—to save for a test.
2
Based on the present record Appellant’s average daily income was $6.74.
Although there was some indication that Appellant’s mother planned to
assist him financially before her death in May of 2012, neither party
developed a record regarding this possible assistance or income, or other
financial support Appellant may have had.
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