Com. v. Astrove, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JORDAN SCOTT ASTROVE, : No. 1981 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, November 6, 2015,
in the Court of Common Pleas of Venango County
Criminal Division at No. CP-61-CR-0000288-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2016
Jordan Scott Astrove appeals from the judgment of sentence of
November 6, 2015, following revocation of his probation. We affirm.
The trial court has summarized the history of this case as follows:
[Appellant] was arrested in June 2013
following a child pornography investigation.
Seventeen videos were downloaded by a computer
later to be determined to belong to [appellant]. The
download was traced to [the] internet provider of a
neighbor, though after investigation, it was
determined they were not in possession of the
computer used to download the child pornography.
It was later determined that [appellant], along with
two others, used the internet connection, and
[appellant] used that connection to download child
pornography.
[Appellant] was arraigned on June 14, 2013.
[Appellant] accepted a guilty plea on November 14th,
* Retired Senior Judge assigned to the Superior Court.
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2013, in which he pled guilty to four counts of
Sexual Abuse of Children, Dissemination less than
13 years, five counts of Sexual Abuse of Children,
Possession of Child Pornography, one count of
Criminal Use of a Communication Facility, and one
count of Theft of Services.[1] Per this guilty plea,
[appellant] was required to undergo a SORNA[2]
assessment. [Appellant] was sentenced [on]
March 25, 2014, to eleven and one half (11½)
months to twenty four (24) months less one day,
with a seven (7) year probationary tail.
According to the Notice of Charges and Hearing
filed March 20, 2015, on March 13, 2015, [appellant]
met as required with probation officers. When asked
about possession of an internet-capable cell phone,
[appellant] initially denied owning the item.
However, [appellant] did admit to ownership of the
cell phone. The probation officer then proceeded to
search [appellant]’s vehicle, found the cell phone
and a tablet, both of which contained images and
videos of adult and child pornography. Additionally,
there were stuffed animals and “excessive” amounts
of chocolate. [Appellant] admitted to the probation
officer that more pornographic materials were
present in [appellant]’s residence, which later search
corroborated.
Petition to Revoke Probation/Parole was filed in
Venango County [on] July 28, 2015. [Appellant]
waived his right to a Gagnon I hearing and
proceeded to a Gagnon II hearing, held August 20,
2015.[3] Probation was revoked following this
hearing. On November 6th, 2015, the court
resentenced [appellant] to an aggregate of
1
18 Pa.C.S.A. §§ 6312(c)(1), 6312(d)(1), 7512(a), & 3926(a)(1),
respectively.
2
Sexual Offender Registration and Notification Act, codified at 42 Pa.C.S.A.
§§ 9799.10-9799.41.
3
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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seventeen and one half (17½) to thirty five (35)
years in prison on the revocation.[4]
Trial court opinion, 3/1/16 at 1-2.
[Appellant] filed a Motion for Modification of
Sentence [on] November 16, 2015, which was
denied by this court [on] November 18. [Appellant]
took [a] direct appeal to the Superior Court [on]
December 17, 2015. [Appellant] was directed to file
[a] Concise Statement of Matters Complained of on
Appeal[5] within 21 days by Court Order dated
December 18, and was granted a thirty (30) day
extension on December 23 due to the status of
transcripts and Defense Counsel’s January trial.
[Appellant] filed the instant Concise Statement
on February 5, 2016.[6]
Id. at 3.
Appellant has raised the following issues for this court’s review:
[1.] Was the evidence presented at the time of the
Gagnon II hearing insufficient to sustain a
finding [appellant] violated the conditions of
his supervision?
4
On counts 2 through 10, all third-degree felonies, appellant received
consecutive sentences of 3½ to 7 years’ imprisonment. (Notes of testimony,
11/6/15 at 19-20.) On count 11, theft of services, a second-degree
misdemeanor, appellant received a consecutive sentence of 1 to 2 years’
imprisonment. (Id. at 20.) However, the sentences at counts 7 through 11
were run concurrently with the sentences at counts 2 through 6 for an
aggregate sentence of 17½ to 35 years’ imprisonment. (Id. at 21.)
5
Pa.R.A.P. 1925(b).
6
Appellant received an extension of 30 days from the original deadline to file
his Rule 1925(b) statement. (Docket #45.) Therefore, appellant’s
Rule 1925(b) statement was due on or before Monday, February 8, 2016.
1 Pa.C.S.A. § 1908. As such, appellant’s Rule 1925(b) statement, filed on
Friday, February 5, 2016, was timely.
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[2.] Is the sentence imposed upon [appellant] too
harsh for the alleged conduct he was found to
have been engaged in violation of his
conditions of supervision, and thus
unreasonable, manifestly excessive and an
abuse of discretion?
Appellant’s brief at 5.7
Before proceeding to appellant’s issues on appeal, we must address a
jurisdictional question.8 Pennsylvania Rule of Criminal Procedure 708(E),
relating to revocation of probation or parole, provides as follows:
(E) Motion to Modify Sentence
A motion to modify a sentence imposed after a
revocation shall be filed within 10 days of the
date of imposition. The filing of a motion to
modify sentence will not toll the 30-day
appeal period.
Pa.R.Crim.P. 708(E) (emphasis added).
Under this rule, the mere filing of a motion to modify
sentence does not affect the running of the 30-day
period for filing a timely notice of appeal. Any
appeal must be filed within the 30-day appeal period
unless the sentencing judge within 30 days of the
imposition of sentence expressly grants
reconsideration or vacates the sentence. See
Commonwealth v. Coleman, 721 A.2d 798, 799,
7
A third issue raised in appellant’s Pa.R.A.P. 1925(b) statement, challenging
the constitutionality of the warrantless search, has been abandoned on
appeal.
8
Although neither the Commonwealth nor the trial court raises the issue of
the timeliness of this appeal, this court may raise questions of appellate
jurisdiction sua sponte. Commonwealth v. Parlante, 823 A.2d 927, 929
n.4 (Pa.Super. 2003), citing Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa.Super. 2001).
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fn.2 (Pa.Super. 1998). See also Pa.R.A.P.
1701(b)(3).
Id., Comment. See also Parlante, 823 A.2d at 929 (“An appellant whose
revocation of probation sentence has been imposed after a revocation
proceeding has 30 days to appeal her sentence from the day her sentence is
entered, regardless of whether or not she files a post-sentence motion.
Therefore, if an appellant chooses to file a motion to modify her revocation
sentence, she does not receive an additional 30 days to file an appeal from
the date her motion is denied.” (citations omitted)).
As recounted above, appellant was sentenced on November 6, 2015.
Therefore, appellant had until Monday, December 7, 2015, to file a timely
notice of appeal. 1 Pa.C.S.A. § 1908. Appellant’s motion to modify his
revocation sentence, although filed within 10 days, did not toll the 30-day
appeal period. Pa.R.Crim.P. 708(E). Accordingly, appellant’s notice of
appeal filed December 17, 2015 was untimely.
Nevertheless, we will not quash the instant appeal where the record
indicates that appellant was misinformed as to the relevant appeal period.
Prior to sentencing, the trial court played a video explaining the defendants’
post-sentence and appellate rights:
If your post-sentence motion is denied you have the
right to appeal the Sentence Order to the
Pennsylvania Superior Court. Your right to appeal to
the Pennsylvania Superior Court expires 30 days
after the date of sentencing or 30 days after the
Court files an Order resolving your post-sentence
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motion, if you have filed a post[-]sentence motion
within 10 days following sentencing.
Notes of testimony, 11/6/15 at 4-5.
In any event, the appeal to the Pennsylvania
Superior Court must be filed within 30 days either
from the date of the sentence or 30 days from the
date the Court acts finally on your post-sentence
motion, whichever is later.
Id. at 5-6.
Obviously, this was a misstatement of the law as it pertained to
appellant, a probation violator. Nor was the error rectified after appellant
was resentenced. (Id. at 21.) Appellant was never properly advised of the
correct appeal deadline pursuant to Pa.R.Crim.P. 708(D)(3). 9 Therefore,
although appellant’s notice of appeal was untimely, we will consider this a
nunc pro tunc appeal based on a breakdown of the court, and review his
claims on the merits. See, e.g., Commonwealth v. Flowers, A.3d
, 2016 WL 6157509, at *3-4 (Pa.Super. October 24, 2016) (trial court
9
(D) Sentencing Procedures
(3) The judge shall advise the defendant on
the record:
(a) of the right to file a motion to
modify sentence and to
appeal, of the time within
which the defendant must
exercise those rights, and of
the right to assistance of
counsel in the preparation of
the motion and appeal[.]
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provided the appellant with incorrect information about the appeal deadline,
and his late filing was therefore excused because the misinformation
constituted a breakdown of the judicial process); Parlante, 823 A.2d at 929(“[W]e decline to quash this appeal because Parlante’s error resulted from
the trial court’s misstatement of the appeal period, which operated as a
‘breakdown in the court’s operation.’”); Coolbaugh, 770 A.2d at 791 (where
the appellant was led to believe that he had 30 days to appeal from the
denial of his reconsideration motion following revocation of his probation,
this court declined to quash the appeal, recognizing that the problem arose
as a result of the trial court’s misstatement of the appeal period, which
operated as a breakdown in the court’s operation); Commonwealth v.
Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (although the appeal was
untimely, where the defendant’s failure to appeal on time appeared to be a
result of a breakdown in the operation of the trial court, which gave
erroneous information as to the appeal period, the appeal would not be
quashed as untimely but would be regarded as though filed nunc pro tunc
and considered on the merits).
In his first issue on appeal, appellant argues that the Commonwealth
failed to prove that he violated the conditions of his supervision.
(Appellant’s brief at 12.) Appellant argues that the sole evidence that he
possessed child pornography was the testimony of James Krauss, his
probation officer, who testified regarding what he saw on appellant’s digital
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devices. (Id.) Appellant complains that no expert testimony was presented
to authenticate the images. (Id.)
The procedures for revoking probation and the rights
afforded to a probationer during revocation
proceedings are well settled:
[w]hen a parolee or probationer is
detained pending a revocation hearing,
due process requires a determination at
a pre-revocation hearing, a Gagnon I
hearing, that probable cause exists to
believe that a violation has been
committed. Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super.
2000) (citing Commonwealth v.
Holmes, 248 Pa.Super. 552, 375 A.2d
379, 381 (1977)). Where a finding of
probable cause is made, a second, more
comprehensive hearing, a Gagnon II
hearing, is required before a final
revocation decision can be made.
Commonwealth v. DeLuca, 275
Pa.Super. 176, 418 A.2d 669, 672
(1980).
The Gagnon II hearing entails two
decisions: first, a “consideration of
whether the facts determined warrant
revocation.” Morrissey v. Brewer, 408
U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972). “The first step in a Gagnon II
revocation decision . . . involves a wholly
retrospective factual question: whether
the parolee [or probationer] has in fact
acted in violation of one or more
conditions of his parole [or probation].”
Gagnon v. Scarpelli, 411 U.S. 778, 93
S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973)
(citing Morrissey, supra, 408 U.S. at
484, 92 S.Ct. 2593, 33 L.Ed.2d 484). It
is this fact that must be demonstrated by
evidence containing “probative value.”
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Commonwealth v. Kates, 452 Pa. 102,
305 A.2d 701 (1973). “Only if it is
determined that the parolee [or
probationer] did violate the conditions
does the second question arise: should
the parolee [or probationer] be
recommitted to prison or should other
steps be taken to protect society and
improve chances of rehabilitation?”
Gagnon v. Scarpelli, supra, 411 U.S.
at 784, 93 S.Ct. 1756, 36 L.Ed.2d 656,
(citing Morrissey v. Brewer, supra,408 U.S. at 484, 92 S.Ct. 2593, 33
L.Ed.2d 484).
Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa.Super. 2009),
quoting Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001)
(brackets in original).
Further, we note that there is a lesser burden of
proof in a Gagnon II hearing than in a criminal trial
because the focus of a violation hearing is “whether
the conduct of the probationer indicates that the
probation has proven to be an effective vehicle to
accomplish rehabilitation and a sufficient deterrent
against future antisocial conduct.” [Sims, 770 A.2d]
at 350 (internal citation omitted). Thus, the
Commonwealth need only prove a violation of
probation by a preponderance of the evidence. Id.Lastly, hearsay is not admissible at a Gagnon II
hearing absent a finding of good cause for not
allowing confrontation. Commonwealth v.
Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128,
1130-31 (1984).
Allshouse, 969 A.2d at 1241.
Instantly, Agent Krauss testified that he received information from
appellant’s employer that appellant had a cell phone and tablet. (Notes of
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testimony, 8/20/15 at 10.)10 One of the conditions of appellant’s probation
was that he not access the internet for pornographic purposes. (Id.)
Appellant was also prohibited from possessing any pornographic materials.
(Id.) According to appellant’s employer, “he overheard [appellant] stating
that he had a cell phone that he didn’t want his P.O. to know about and he
stated that he frequently had an iPad of some sort that was always on him
that he always had his eyes on, that was always guarded.” (Id.)
On March 13, 2015, appellant arrived at the probation office for a
conference. (Id. at 19.) At first, appellant denied owning a cell phone with
internet capabilities, but later admitted that he did own such a device. (Id.)
Probation officers proceeded to search appellant’s vehicle and retrieved a
Samsung Galaxy tablet and an HTE cell phone from a black backpack on the
front seat. (Id.) They also recovered several tubes of KY lubricating jelly
from inside of appellant’s backpack. (Id. at 27.) Agent Krauss observed
approximately six stuffed animals and large amounts of chocolate in the rear
of the vehicle. (Id. at 20.)
The seized items were taken into the probation office. (Id.) When
Agent Krauss asked appellant if there were any photographs on his phone,
“he just put his head down.” (Id.) Agent Krauss discovered multiple
images of child pornography on appellant’s cell phone, including graphic
10
Agent Krauss is a state parole agent working out of the Allentown district
office. (Id. at 3.)
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pictures of young children between ages 5 and 10. (Id.) There were also
video files, including one depicting a female child approximately 6-8 years
old inserting an object into her vagina. (Id.) In another video, an adult
male masturbated and ejaculated onto the face of a 6-8 year old girl. (Id.
at 21-21.) Agent Krauss found additional pictures and videos on appellant’s
Samsung Galaxy tablet. (Id. at 21.) Agent Krauss testified that they all
depicted children between ages 5 and 16. (Id.) At that point, they notified
police and appellant was taken into custody. (Id.)
When appellant was asked if he had any additional contraband in his
apartment, he refused to answer. (Id.) Upon further questioning, however,
he admitted that there was “stuff” in his room. (Id.) Agent Krauss and
another probation officer, together with state police, entered appellant’s
residence and conducted a search. (Id. at 22.) Underneath the bed, they
found a cell phone containing graphic photos of what appeared to be child
pornography. (Id.) At that time, the investigation was turned over to the
state police who obtained a search warrant which was executed on
March 14, 2015. (Id.)
Clearly, Agent Krauss’s testimony was sufficient to find that appellant
violated the terms and conditions of his probationary supervision;
specifically, that he not download or possess pornographic images. In fact,
the underlying charges related to possession of child pornography.
Appellant cites no authority for the proposition that the Commonwealth was
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required, at a Gagnon II revocation hearing, to present expert testimony to
authenticate the images. (Appellant’s brief at 12.) As stated above, the
Commonwealth need only prove a probation violation by a preponderance of
the evidence. Allshouse, 969 A.2d at 1241. There is no evidence that the
images were digitally altered, as appellant suggests. (Id.) Furthermore,
whether or not the photographs depicted “real” children, appellant was
prohibited from possessing pornography of any kind. This claim fails.
In his second issue on appeal, appellant claims that his sentence of
17½ to 35 years’ incarceration was manifestly excessive and an abuse of
discretion. Appellant argues that all of his sentences should have been run
concurrently and that the trial court failed to adequately consider various
mitigating factors, including his remorse, his voluntary participation in sexual
offender programming, and the fact that he faced additional charges as a
result of the same conduct underlying the petition to revoke probation.
(Appellant’s brief at 9, 13-14.) Appellant also argues that the items found in
his vehicle were innocent in nature and did not, in and of themselves,
indicate criminal motive. (Id.)11
An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no
absolute right to do so but, rather, must petition this
Court for permission to do so. [Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)];
42 Pa.C.S.A. § 9781(b). Specifically, the appellant
must present, as part of the appellate brief, a
11
We assume that appellant is referring to the KY jelly, stuffed animals, and
chocolates.
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concise statement of the reasons relied upon for
allowance of appeal. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f). In that statement, the appellant
must persuade us there exists a substantial question
that the sentence is inappropriate under the
sentencing code. Malovich, 903 A.2d at 1250;
Pa.R.A.P. 2119(f).
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).
In general, an appellant may demonstrate the
existence of a substantial question by advancing a
colorable argument that the sentencing court’s
actions were inconsistent with a specific provision of
the sentencing code or violated a fundamental norm
of the sentencing process. Malovich, 903 A.2d at
1252. While this general guideline holds true, we
conduct a case-specific analysis of each appeal to
decide whether the particular issues presented
actually form a substantial question. Id. Thus, we
do not include or exclude any entire class of issues
as being or not being substantial. Id. Instead, we
evaluate each claim based on the particulars of its
own case. Id.Id. at 289-290.
In his Rule 1925(b) statement, appellant framed his discretionary
aspects of sentencing claim as follows: “The sentence received by
[appellant] from the lower court was too harsh for the alleged conduct the
Court used to find [appellant] violated the conditions of supervision[.]”
(Rule 1925(b) statement, 2/5/16 at 2, ¶3(b); docket #8.) A bald allegation
that the sentence appellant received was “too harsh” is vague and waives
the issue on appeal. Rule 1925(b) provides: “The Statement shall concisely
identify each ruling or error that the appellant intends to challenge with
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sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii).
It has been held that when the trial court directs an
appellant to file a concise statement of matters
complained of on appeal, any issues that are not
raised in such a statement will be waived for
appellate review. Commonwealth v. Dowling, 778
A.2d 683, 686 (Pa.Super. 2001), citing
Commonwealth v. Lord, 553 Pa. 415, 418, 719
A.2d 306, 308 (1998). Similarly, when issues are
too vague for the trial court to identify and address,
that is the functional equivalent of no concise
statement at all. Id. Rule 1925 is intended to aid
trial judges in identifying and focusing upon those
issues which the parties plan to raise on appeal.
Commonwealth v. Lemon, 804 A.2d 34, 37
(Pa.Super. 2002). Thus, Rule 1925 is a crucial
component of the appellate process. Id. “When the
trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.”
Id., citing Dowling, supra.Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc).
Similarly, in his motion to modify sentence, appellant asserted that his
sentence was “too harsh” and excessive. (Motion to modify sentence,
11/16/15 at 2; docket #11.) The only specific allegation was that the trial
court abused its discretion in imposing consecutive sentences. (Id.) See
Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013), appeal
denied, 85 A.3d 482 (Pa. 2014) (“Challenges to the discretionary aspects of
a sentence must be raised first in the trial court, either in a post-sentence
motion or by presenting them during the sentencing proceedings. The
failure to do so results in a waiver of all such claims.”) (citations omitted).
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Appellant’s vague and boilerplate sentencing claim is waived for appeal
purposes.12
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
12
At any rate, appellant’s allegations in his Rule 2119(f) statement that his
sentences should have been run concurrently and that the trial court failed
to give adequate weight to certain mitigating factors do not raise a
substantial question for this court’s review. (Appellant’s brief at 9.)
Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989) (en banc)
(an allegation that the sentencing court did not adequately consider various
factors is, in effect, a request that this court substitute its judgment for that
of the lower court in fashioning a defendant’s sentence); Commonwealth
v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (“[i]n imposing a sentence,
the trial judge may determine whether, given the facts of a particular case, a
sentence should run consecutive to or concurrent with another sentence
being imposed.”) (citations omitted); Commonwealth v. Mastromarino, 2
A.3d 581, 586-587 (Pa.Super. 2010), appeal denied, 14 A.3d 825 (Pa.
2011) (same). We also note that the sentencing guidelines do not apply to
sentences imposed as the result of probation revocations. Commonwealth
v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) (citations omitted).
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