Com. v. Joe, D.

J-A12032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL JOE, JR. :
:
Appellant : No. 649 WDA 2019
Appeal from the Judgment of Sentence Entered March 27, 2019,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0014033-2016.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 11, 2020
Daniel Joe, Jr., appeals the judgment of sentence imposed following
revocation of his probation. Upon review, we vacate Joe’s revocation
sentence.
On May 9, 2017, Joe pled guilty to possession of firearm or other weapon
in court facility.1 The court sentenced him to one year of probation, and
imposed costs against him. On February 14, 2018, while serving that
sentence of probation, Joe was charged with persons not to possess a
firearm.2 This new charge arose when parole officers searched a house where
Joe and his girlfriend rented a room, and found a gun and ammunition under
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 913(a)(1).
2 18 Pa.C.S.A. § 6105(a)(1).
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the mattress in their room. The Commonwealth charged Joe with a violation
of probation for “failure to be of good behavior and comply with laws” and for
failure to pay his costs/restitution. A detainer was issued.
On March 27, 2019, the Commonwealth nolle prossed the new charge
of persons not to possess firearms filed against Joe.3 Later, that same day,
Joe appeared before the VOP court. At the outset of the proceeding, the VOP
court acknowledged that Joe’s new charge had been nolle prossed. No
evidence or testimony was presented. Nonetheless, the VOP court found that
Joe violated his sentence of probation. The VOP court revoked Joe’s probation
and resentenced him to a new, one (1) year period of probation.
Joe filed a post-sentence motion, which the VOP court denied. Joe filed
this timely appeal. Both the VOP court and Joe complied with Pennsylvania
Rule of Appellate Procedure 1925.
Joe raises the following two issues on appeal:
I. Where the [VOP court’s] only basis for revoking Mr. Joe's
probation was the [new] criminal case lodged against him [for
possession of fire arm prohibited] at CC 2018-12765, and [that
charge was] nolle prossed prior to the revocation hearing, was the
evidence sufficient to support the [VOP court’s] finding of a
probation violation?
II. Did the [VOP court] abuse its sentencing discretion in
sentencing [] Joe to a one-year term of probation without any
evidence of a violation of the terms of his probation upon which
to base such a sentence. . . . and contrary to the Sentencing Code
and fundamental norms underlying the sentencing process where
no consideration of the sentencing factors under 42 Pa.C.S.[A.] §
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3 The record does not reflect why Joe’s charge was nolle prossed, but Joe’s
brief suggests that the search was illegal. See Joe’s Brief at 29.
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9721 (Sentencing Generally) occurred on the record and
insufficient reasons to support this sentence appear on the record?
Joe’s Brief at 5.
When considering an appeal from a sentence imposed following the
revocation of probation, “[o]ur review is limited to determining the validity of
the probation revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the time of the
initial sentencing.” Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa.
Super. 2007), appeal denied, 945 A.2d 169 (2008) (citation omitted); 42
Pa.C.S.A. § 9771(b). “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. Smith, 669 A.2d 1008, 1011 (Pa. 1996).
In his first issue, Joe argues that there was insufficient evidence for the
VOP court to find that he violated his probation. Joe’s new charge of persons
not possess firearms, which served as the sole basis for his violation, was nolle
prossed. No evidence was presented at the VOP hearing to demonstrate that
Joe committed a new crime or violated a condition of his probation. Joe claims
the VOP court’s reliance on the statement of facts in his pre-trial motion,
explaining the circumstances underlying Joe’s nolle prossed charge, was
improper. As a result, only the fact of Joe’s arrest remained, which by itself,
was insufficient to find a probation violation. Consequently, Joe maintains,
his VOP sentence should be vacated. See Joe’s Brief at 22. While the
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Commonwealth does not specifically concede this, it does not dispute it. See
Commonwealth’s Brief at 10, 12-13.
The VOP court believed that there was sufficient evidence on the record
to support its finding that Joe committed a new crime. Therefore, Joe’s
probation violation sentence should stand. Trial Court Opinion, 8/27/19, at 9.
We disagree.
Initially, a VOP court must determine whether the probationer has
violated his probation. A defendant’s probation may be revoked upon proof
that the defendant either: 1) violated a specific condition of his or her
probation; or 2) committed a new crime. 42 Pa.C.S.A. § 9771;
Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa. 2019). These are the
only grounds on which a court can find that a defendant violated his or her
probation. Id. “[T]he VOP court must find, based on the preponderance of
the evidence, that the probationer violated a specific condition of probation or
committed a new crime to be found in violation.” Id. Sufficient evidence of
probative value must be presented to demonstrate that a violation of
probation occurred. Commonwealth v. Allhouse, 969 A.2d 1236, 1240 (Pa.
Super. 2009). “Absent such evidence, a violation of probation does not occur
solely because a judge believes the probationer’s conduct indicates that
probation has been ineffective to rehabilitate or to deter against antisocial
conduct.” Foster, 214 A.3d at 1243. Id. “Revocation and resentencing are
warranted if, in the face of a new criminal act or the violation of a condition of
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probation, the court finds that probation is no longer achieving its desired aims
of rehabilitation and deterring criminal activity.” Id. at 1251.
To determine the validity of Joe’s VOP sentence, we consider the reason
the court found him in violation of his probation and whether that finding was
supported by sufficient evidence. Joe’s charge of probation violation alleged
that he failed to “be of good behavior and comply with laws” and pay
restitution/costs. In reaching its decision that Joe violated his probation, the
VOP court did not find a technical violation for Joe’s failure to pay
restitution/costs, but only found that he committed a new crime. At the VOP
proceeding, the court stated:
You didn't make it for my one year. And given what that charge
is and what the allegation was, I'm going to revoke that period of
probation and give you a new one year period of probation.
So you can show me that you can actually walk off that one year
period of probation without getting yourself chained up again.
Okay?
***
[Y]ou get another one year because of the nature of the
allegations of the new case and with the older one. So stop
playing with guns.
N.T., 3/27/19, at 5-7. In its 1925 opinion, the VOP court further explained:
Given the similarity between [Joe's] violation conduct and the
original crime, in that they both involved his unlawful possession
of a firearm, the court did not abuse its discretion in resentencing
[Joe] to another period of probation because he committed a new
crime and probation had been proven to be ineffective and
insufficient to deter against future antisocial conduct.
Trial Court Opinion, 8/27/19, at 8-9.
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As discussed above, generally, the commission of a new crime may form
the basis for finding that an individual violated probation. However, there
must be sufficient evidence to support that finding. Our review of the record
reveals that there was insufficient evidence to find that Joe violated his
probation based upon the commission of a new crime.
Joe’s charge of persons not to possess firearms was nolle prossed.
Because he was not convicted of a new crime, the court could not find Joe
violated probation on that basis. We note that a defendant may have new
charges nolle prossed and still have his probation revoked based upon the
underlying conduct of those charges. Indeed, when a charge is nolle prossed,
the Commonwealth is not prevented from pursuing a violation of probation if
evidence is presented to demonstrate that a crime occurred.4 See
Commonwealth v. Banks, 198 A.3d 391, 403 (Pa. Super. 2018) (emphasis
added). Under such circumstances, the Commonwealth must introduce
evidence of the arrest, the charges filed, evidence of the conduct underlying
the arrest and any physical evidence. Id. Here, however, the Commonwealth
presented no evidence at all at the VOP proceeding. Additionally, the
Commonwealth did not assert that Joe committed any other technical
violations. Thus, the only evidence before the VOP court was that Joe was
arrested. We have long held that an arrest alone, without facts to support the
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4We note that this circumstance is distinguishable from the situation where a
probationer is acquitted of a crime or his/her judgment of sentence is arrested.
See Commonwealth v. Giliam, 2020 WL 2895051, --- A.3d --- (Pa. Super.
2020); Commonwealth v. Royster, 572 A.2d 683 (Pa. 1990).
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arrest, is not sufficient to revoke probation. Commonwealth v. Sims, 770
A.2d 346, 352 (Pa. Super. 2001); see also, Commonwealth v. Warren,
378 A.2d 1271 (Pa. Super. 1977) (mere arrest does not constitute violation
of probation).
Nonetheless, the VOP court reasoned that the clear and unequivocal
factual statements set forth in Joe’s pretrial motion filed in the nolle prossed
case constituted judicial admissions by Joe. The court believed those
admissions were sufficient for it to find that Joe constructively possessed the
gun and ammunition, and violated his probation.5 Trial Court Opinion,
9/27/19, at 5-7. We conclude this was error for two reasons.
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5 The VOP court summarized those facts as follows:
(i)[Joe]and his girlfriend were discovered on the third floor of a
residence by parole agents during their search of a parolee's
residence; (ii) the location where [Joe] was found was ‘an open
area with a room, a closet, and a bedroom in the left side of the
room;’ (iii) there was only one bed located on the third floor; (iv)
[Joe’s] girlfriend told officers that she and [Joe] ‘had rented the
third-floor space from her sister since December of 2018 and that
only her and [Joe] go into the third-floor space;’ (v) after
encountering the Defendant on the third floor, he was told by the
parole agents to go downstairs while they completed their search
of the residence; (vi) [Joe] left the residence instead of remaining
downstairs; (vii) indicia of residence was found for [Joe] at the
house; (viii) agents located a silver .22 revolver and a bag of .22
ammunition when they lifted up the box spring and mattress of
the third-floor bed; (ix) [Joe] claimed a reasonable expectation of
privacy in the third-floor residence; and (x) the living area on the
third floor was removed from the rest of the home.
Trial Court Opinion, 9/27/19, at 5-6 (citations omitted).
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First, these statements did not constitute judicial admissions. A judicial
admission is:
an express waiver made in court or preparatory to trial by a party
or his attorney, conceding for the purposes of trial, the truth of
the admission. It has the effect of a confessory pleading, in that
the fact is thereafter to be taken for granted, so that the opposing
party need offer no evidence to prove it and the party by whom
the statement was made is not allowed to disprove it. A principal
element of a judicial admission is that the fact has been admitted
for the advantage of the admitting party, and consequently, a
judicial admission cannot be subsequently contradicted by the
party that made it.
Nasim v. Shamrock Welding Supply Co., 563 A.2d 1266, 1267 (Pa. Super.
1989) (citations omitted). Here, there was no indication that Joe expressly
admitted these facts as true and did not intend to dispute them. Although the
statements which the VOP court relied upon were part of Joe’s “statement of
facts” in his motion, Joe merely restated the allegations against him from the
preliminary hearing in his nolle prossed case. More significantly, it is not
evident that Joe admitted these “facts” for his own benefit. Thus, we conclude
that the trial court erred in treating these “facts” as judicial admissions.
Second, even if the “facts” stated in Joe’s pretrial motion constituted
judicial admissions, these facts were never made part of record in the VOP
case. At the VOP proceeding, the pretrial motion Joe filed in the nolle prossed
case was not entered into the record. Moreover, although the VOP court
explained that it relied upon that motion and the facts contained therein, the
VOP court did not indicate this or recite any of those facts at the VOP
proceeding. As Joe noted, the VOP court did not disclose its rationale for
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revoking Joe’s probation until it issued its Rule 1925(a) opinion. “[A] court
may not support an adjudication of guilt with evidence not part of the trial
record.” Commonwealth. v. McNeal, 120 A.3d 313, 328 (Pa. Super. 2015).
Accordingly, we find that the trial court erred in considering the motion Joe
filed in his nolle prossed case as evidence in his VOP case.
In short, there was no evidence to support the VOP court’s finding that
Joe violated his probation. Consequently, the revocation of Joe’s probation
and the resentencing were improper. We, therefore, must vacate Joe’s
judgment of sentence in the VOP matter, and remand for the VOP court to
recalculate Joe’s credit for the time served under his original sentence.
Judgment of sentence vacated and case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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