Com. v. Gomez, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW GOMEZ :
:
Appellant : No. 1162 EDA 2019
Appeal from the Judgment of Sentence Entered March 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005979-2015-,
CP-51-CR-0009019-2015, CP-51-CR-0009020-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW GOMEZ :
:
Appellant : No. 1163 EDA 2019
Appeal from the Judgment of Sentence Entered March 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005979-2015,
CP-51-CR-0009019-2015, CP-51-CR-0009020-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW GOMEZ :
:
Appellant : No. 1164 EDA 2019
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Appeal from the Judgment of Sentence Entered March 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005979-2015,
CP-51-CR-0009019-2015, CP-51-CR-0009020-2015
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2020
Appellant, Matthew Gomez, appeals from the judgments of sentence
imposed following a probation-revocation hearing. Appellant has filed appeals
in three underlying court of common pleas matters. Each appeal has been
given a separate Superior Court docket number: 1162 EDA 2019, 1163 EDA
2019, and 1164 EDA 2019. The appeals include identical issues and briefs.1
A single trial court opinion disposed of all three matters. As such, we sua
sponte consolidate these matters pursuant to Pa.R.A.P. 513 and address them
concurrently.
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1 As Appellant stated in his appellate briefs:
This appeal represents a challenge to three related matters, which
are listed consecutively by this Court, 1162 EDA 2019, 1163 EDA
2019, and 1164 EDA 2019 (on appeal from CP-51-CR-0009019-
2015, CP-51-CR-0005979-2015, and CP-51-CR-0009020-2015).
The lower court held a single hearing on all three matters as a
consolidated revocation and sentencing proceeding. As explained
infra, because this Court did not grant Petitioner’s request in the
alternative to consolidate the matter, and deferred the issue to
the panel, separate but identical briefs were filed in each case.
Appellant’s Brief at 1.
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The trial court summarized the factual and procedural history of these
cases as follows:
By way of background, as of CP-51-CR-0005979-2015,
[A]ppellant appeared before the Honorable Robert J. Coleman of
the Court of Common Pleas of Philadelphia County on July 28,
2016, and entered a negotiated guilty plea to charges of
aggravated assault graded as a felony of the second degree, and
possessing instruments of crime, generally, a misdemeanor of the
first degree, in exchange for which he received a sentence of five
years’ probation on the aggravated assault charge and a sentence
of eleven and one-half to twenty-three months’ incarceration
followed by a term of probation of three years which was ordered
to be served consecutively to the probationary sentence imposed
on the aggravated assault charge. Thereafter, [A]ppellant
appeared before this [c]ourt on May 15, 2017, for a violation of
probation hearing.1 At the conclusion of the hearing, this [c]ourt
revoked [A]ppellant’s probation and imposed a sentence of one to
two years’ incarceration followed by a term of probation of five
years. Appellant was ordered to be supervised by the Sex
Offender’s Unit of the Philadelphia Probation Department. No
further penalty was imposed on the possessing instruments of
crime, generally, charge.
1 The case was referred to this [c]ourt administratively
for the violation of probation hearing.
Appellant again appeared before this [c]ourt on March 22,
2019 for a violation of probation hearing. At the conclusion of the
hearing, this [c]ourt revoked [A]ppellant’s probation and imposed
a sentence of two to four years’ incarceration followed by a term
of probation of four years.
As of CP-51-CR-0009019-2015, and CP-51-CR-0009020-
2015 [A]ppellant appeared before this [c]ourt on March 17, 2016,
and entered a negotiated nolo contendere pleas to two separate
counts set forth in the above two Bills of Information charging
indecent assault of a person less than thirteen years of age in
exchange for which he was promised that he would receive
immediate parole followed by five years’ reporting probation with
Sex Offender Conditions. Said sentences were imposed on July
14, 2016. Appellant was directed to have no unsupervised contact
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with minors, to stay away from the victims, and submit to lifetime
sex registration.
On May 15, 2017, [A]ppellant appeared before this [c]ourt
for a violation of probation hearing at the conclusion of which
probation was revoked and sentences of one to two years’
incarceration followed by a term of probation of four years on both
of the indecent assault convictions were imposed on [A]ppellant.
This [c]ourt ordered [A]ppellant to be supervised by the Sex
Offender Unit of the Probation Department and to receive mental
health treatment.
On March 22, 2019, [A]ppellant again appeared before this
[c]ourt for a violation of probation hearing. At the conclusion of
the hearing, this [c]ourt revoked [A]ppellant’s probation in both
cases and imposed a sentence of four years’ probation as of CP-
51-CR-0009019-2015 and a sentence of incarceration of two to
four years as of CP-51-CR-0009020-2015, which sentence was
ordered to run concurrently with the sentence of incarceration of
imposed as of CP-51-CR-0005979-2015.
On April 15, 2019, [A]ppellant filed an untimely post-
sentence motion as of CP-51-CR-0009020-2015 only.2 On April
22, 2[01]9, [A]ppellant filed notices of appeal in each of the three
cases.[2] He thereafter filed a court-ordered Pa.R.A.P. 1925(b)
Statement of Matters Complained of on Appeal.
2 This [c]ourt leaves it to the discretion of the
reviewing court to determine whether [A]ppellant
waived appellate review as of the other two Bills of
Information because of the failure to file separate
post-sentence motions in those other cases.
Trial Court Opinion, 7/8/19, at 1-3.
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2 Thirty days from March 22, 2019, was Sunday, April 21, 2019. Thus,
Appellant had until Monday, April 22, 2019, to file his notice of appeal. See
1 Pa.C.S. § 1908 (for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.).
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Appellant presents the following issues for our review:
1. Should not this Court address the merits of Appellant’s appeal
where he filed one timely appeal for each docket and the transcript
numbers all represent one judgment of sentence imposed by a
single judge on one defendant during one proceeding?
2. Was not the evidence insufficient to support a revocation of
probation on each case where the Commonwealth failed to prove
that Appellant violated lawfully imposed conditions of probation
relating to curfew, sex offender treatment, and possession of non
-obscene videos or games, where the Board of Probation and
Parole lacked authority to impose these condition[s], and the trial
court, as required by 42 Pa.C.S.A. §9754, had not imposed them?
3. Did not the trial court impose a manifestly excessive sentence
of total confinement for technical violations in violation of Sections
9771 and 9721 of the Sentencing Code, where the sentence is
both unreasonable and unnecessary to vindicate the authority of
the court, and where the court failed to consider the least
restrictive alternatives, Appellant’s needs, and the possible harm
to the community?
Appellant’s Brief at 4.
Appellant first raises the issue of whether these appeals are properly
before us.3 The record reveals that on April 22, 2019, Appellant filed identical
notices of appeal at trial court docket numbers at CP-51-CR-0009019-2015,
CP-51-CR-0009020-2015, and CP-51-CR-0005979-2015. All three notices of
appeal bore docket numbers CP-51-CR-0009019-2015, CP-51-CR-0009020-
2015, and CP-51-CR-0005979-2015. Notices of Appeal, 7/31/18. This Court’s
____________________________________________
3 While Appellant raises this matter in his first issue, had he not raised it, we
would have addressed this issue sua sponte as it pertains to our jurisdiction.
See Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997)
(permitting appellate court to sua sponte examine its jurisdiction).
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criminal docketing statements reflect that the appeal at CP-51-CR-0009019-
2015 was docketed at Superior Court docket number 1162 EDA 2019, the
appeal at CP-51-CR-0009020-2015 was docketed at Superior Court docket
number 1163 EDA 2019, and the appeal at CP-51-CR-0005979-2015 was
docketed at Superior Court docket number 1164 EDA 2019.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court explained that “[t]he Official Note to [Pa.R.A.P.] 341 provides a bright-
line mandatory instruction to practitioners to file separate notices of appeal.”
Id. at 976-977. “Where ... one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate notices of
appeals must be filed.” Id. at 976 (quoting Pa.R.A.P. 341, note). The failure
to file separate notices of appeal at each docket requires the appellate court
to quash the appeal. Id. at 977. Our Supreme Court held that Walker applies
prospectively to appeals filed after June 1, 2018. Id. at 971.
In the instant case, because Appellant’s notices of appeal each displayed
more than one docket number, we issued a Rule to Show Cause at 1162 EDA
2019, 1163 EDA 2019, and 1164 EDA 2019, as to why the appeals should not
be quashed pursuant to Walker. Rules to Show Cause, 5/1/19. Appellant
filed a timely response. Response to Rule to Show Cause, 5/10/19, at 1-12.
The Rules were discharged on August 7, 2019, and the matter was referred
to this panel.
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In Commonwealth v. Johnson, ___ A.3d ___, ___, 2020 PA Super
164, *4 (Pa. Super. filed July 9, 2020) (en banc)), this Court “observe[d] that
[Pa.R.A.P.] 341 and Walker make no mention of case numbers on a notice of
appeal.” Specifically, the en banc Court opined that where an appellant files
a separate notice of appeal at each trial court docket, “[t]he fact that the
notices [of appeal] contained [more than one trial court docket number] is of
no consequence.” Johnson, 2020 PA Super 164, at *5. Because Appellant
filed separate notices of appeal at each docket, he has complied with Walker.
Thus, we shall proceed to address the merits of Appellant’s remaining claims.
Appellant’s second issue appears to involve two separate, although
related, claims.4 First, Appellant argues that the evidence was insufficient to
support a revocation of probation on each of the cases on appeal. Appellant’s
Brief at 22. Second and relatedly, Appellant maintains that the
Commonwealth failed to prove that the conditions of probation relating to
curfew, sex-offender treatment, and possession of non-obscene videos or
games were lawfully imposed. Id. at 22. Appellant states that the Board of
Probation and Parole lacked authority to impose these conditions of probation,
which had not been imposed by the trial court as required by 42 Pa.C.S.
§ 9754. Id. Appellant asserts:
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4 Appellant presented this issue in similar fashion in his Pa.R.A.P. 1925(b)
statement. Pa.R.A.P. 1925(b) Statement, 6/10/19, at 2-3.
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In the instant case, the lower court, since it set no other
parameters, apparently considered the legally mandated function
of specifying “reasonable conditions” of probation as having been
adequately discharged by its delegation of full responsibility for
determining those conditions to the Sexual Offenders Unit of the
State Board of Probation.
Id. at 25. Appellant cites to Commonwealth v. Elliott, 50 A.3d 1284 (Pa.
2012), as support for this position that the agents of the Board “‘cannot
impose any condition of supervision it wishes, carte blanche.’” Appellant’s
Brief at 26 (emphasis in original). Appellant contends that the lower court
here has “done precisely that by its delegation to the Board of total authority
for formulating and implementing any and all conditions of probation, general
and specific.” Id. Appellant further maintains that “the Commonwealth
cannot be said to have proven beyond a reasonable doubt that Appellant failed
to comply with legitimate conditions of probation ordered by the lower court
so as to justify revocation of his probation as the court imposed no such
conditions.” Id. at 27. We shall address these issues together.
The standard for evaluating sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder[’s].
In addition, we note that the facts and circumstances established
by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
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may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
In Elliott, the Pennsylvania Supreme Court addressed the following
question: “[W]hether the Board, county probation officers, 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.” Elliott,
50 A.3d at 1289.
First, under the language provided by the Sentencing Code,
specifically Sections 9751 and 9771, we generally agree with [the
a]ppellee and the Superior Court that only “the court, not the
probation offices and not any individual probation officers, [may]
impose the terms [and conditions] of probation.” MacGregor,
912 A.2d at 317. Under Section 9754 of the Sentencing Code,
this necessitates that the sentencing court, when imposing an
order of probation: (1) “specify at the time of sentencing the
length of any term during which the defendant is to be
supervised;” (2) “the authority that shall conduct the
supervision;” and (3) attach any “reasonable conditions
authorized by [Section 9754(c)] as it deems necessary to insure
or assist the defendant in leading a law-abiding life.” 42 Pa.C.S.
§ 9754.
Consistent with the canons of statutory construction,
however, merely because the legislature has placed the authority
to impose a term of probation, and the conditions thereof, solely
with the trial courts, we cannot ignore the provisions of the Prisons
and Parole Code that mandate the Board and its agents to
establish uniform standards for the supervision of probationers
under its authority, and further to implement those standards and
conditions. 61 Pa.C.S. §§ 6131(a)(5)(ii) & 6151. Put differently,
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if courts shall levy “conditions of probation,” and the Board and its
agents may impose “conditions of supervision,” consistent with
the legislative mandates above, we must determine what, if any,
is the difference between the two and, consistent with the various
standards of statutory interpretation discussed above, how they
interlink.
In our view, the answer is found, again, in the respective
statutory provisions. The General Assembly has specifically
enumerated fourteen conditions that a court may place upon a
probationer. These conditions, found in 42 Pa.C.S. § 9754(c),
“shall” be imposed by a sentencing court “to insure or assist the
defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b).
Moreover, these conditions are inherently non-inclusive, because
clause (13) of Section 9754(c) permits a court to impose any
condition necessary to ensure the “rehabilitation of the
defendant.” Id. § 9754(c). Consistent, then, with a court’s
constitutional and statutory authority to impose a sentence, see
e.g. id. §§ 9751, 9754, & 9771, these fourteen conditions must
be the starting point in any analysis of a probation violation.
Elliott, 50 A.3d at 1291.
The Court noted that because the trial court must start with these
fourteen conditions, “the Board and its agents cannot impose any condition of
supervision it wishes, carte blanche.” Elliott, 50 A.3d at 1291. The Court
went on to explain, however, that:
Accepting, however, the remainder of [the appellee’s]
argument that the Board has no power to impose conditions of
supervision would ignore that 61 Pa.C.S. §§ 6131(a)(5)(ii) and
6151 direct the Board and its agents to establish and impose
“conditions of supervision,” distinct from “conditions of probation.”
This would be improper. We thus conclude that the Board and its
agents may impose conditions of supervision that are germane to,
elaborate on, or interpret any conditions of probation that are
imposed by the trial court. This interpretation gives meaning to
all of the statutory provisions relevant to this case and thus: (1)
maintains the sentencing authority solely with a trial court; (2)
permits the Board and its agents to evaluate probationers on a
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one-on-one basis to effectuate supervision; (3) sustains the ability
of the Board to impose conditions of supervision; and (4)
authorizes that a probationer may be detained, arrested, and
“violated” for failing to comply with either a condition of probation
or a condition of supervision. 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.
In the case sub judice, the trial court addressed this issue as follows:
During the violation hearing it was revealed that on
September 23, 2018, [A]ppellant was released from state
custody, having served his entire sentence of incarceration
because he failed to attend sex offender treatment. (N.T.
3/22/19, 4-6). On September 26, 2018, he was arrested for a
GPS violation and a detainer was lodged against him. He
appeared before this [c]ourt on October 17, 2018, at which time
this [c]ourt lifted the detainer and permitted [A]ppellant to
continue serving probation. (N.T. 3/22/19, 4-5). Between
October 19, 2018 and November 3, 2018, [A]ppellant committed
five curfew violations. (NT, 3/22/19, 5). He also did not report on
November 13, 2018, for a sexual treatment evaluation. (N.T.
3/22/19, 5).
On November 13, 2018, [A]ppellant reported to a meeting
at the offices of the Probation Department. (N.T. 3/22/19, 5). In
his possession, [A]ppellant had a bag containing two children’s
videos, condoms, and lubricant. (N.T. 3/22/19, 6). It was claimed
that the videos were gifts for his nephews and that the condoms
and lubricants were given to him for free while he was out walking
around. (N.T. 3/22/19, 14, 18). Appellant also explained that the
curfew violations resulted from his standing outside the shelter
where he was housed. (N.T. 3/22/19, 19-20). No relief is due on
[A]ppellant’s claim.
“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
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appeal in the absence of an error of law or an abuse
of discretion,” Id. “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. Allshouse, 33 A.3d 31, 37
(Pa.Super.2011) (quotation marks and citations
omitted). “[T]he reason for revocation of probation
need not necessarily be the commission of or
conviction for subsequent criminal conduct. Rather,
this Court has repeatedly acknowledged the very
broad standard that sentencing courts must use in
determining whether probation has been violated [.]”
Commonwealth v. Ortega, 995 A.2d 879, 886
(Pa.Super.2010) (citations and internal quotations
omitted). “A probation violation is established
whenever it is shown that the conduct of the
probationer indicates the probation has proven to
have been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future
antisocial conduct.” Id.Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014).
In addition, “sentencing courts have discretion to impose
conditions of probation, [and] such conditions must be reasonable
and devised to serve rehabilitative goals, such as recognition of
wrongdoing, deterrence of future criminal conduct, and
encouragement of future law-abiding conduct.” Commonwealth
v. Hall, 80 A.3d 1204, 1215 (Pa. 2013). Thus, sentencing courts
have the authority to impose any condition of probation
“reasonably related to the rehabilitation of the defendant and not
unduly restrictive of his liberty or incompatible with his freedom
of conscience.” Commonwealth v. Infante, 888 A.2d 783, 791
(Pa. 2005).
Here, as noted, [A]ppellant claims that this [c]ourt should
not have revoked his probation because the Commonwealth failed
to prove that this [c]ourt specifically ordered [A]ppellant to
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comply with the conditions of probation he was found to be in
violation of and the Department of Probation had no legal right to
impose them on [A]ppellant. This claim lacks merit.
Instantly, this [c]ourt ordered that [A]ppellant be
supervised by the Sexual Offender Unit of the Probation
Department. That directive was not unreasonable given that
[A]ppellant was convicted of sexually assaulting children under
the age of thirteen. The conditions thereafter imposed by the
Probation Department such as imposing a curfew on [A]ppellant
and directing him not to possess items that could be considered
sexually triggering with regard to minors, in response to this
[c]ourt’s directive were not illegal because they were reasonable
given[A]ppellant’s convictions and this [c]ourt’s order requiring
that [A] ppellant be supervised by the Sexual Offender Unit of the
Probation Department. In Commonwealth v. Elliott, 50 A.3d 1284(Pa. 2012), the Supreme Court held that although a Department
of Probation cannot “impose any condition of supervision it wishes,
carte blanche”, Elliott at 1291, it may impose conditions that are
“germane to, elaborate on, or interpret any conditions of
probation that are imposed by the trial court”. Elliott at 1292.
The Court then stated:
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.
Elliott at 1292.
The Commonwealth presented more than sufficient
evidence to find that [A]ppellant violated these reasonable
conditions given that the Commonwealth presented unrefuted
evidence that [A]ppellant violated curfew numerous times and
also had children’s videos together with condoms and lubricant in
his possession. In fact, the defense conceded that [A]ppellant had
violated the foregoing conditions during the revocation hearing.
(N.T. 3/22/19, 7, 9). Given this and in view of the above
discussion, this [c]ourt suggests that [A]ppellant’s first claim be
rejected.
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Trial Court Opinion, 7/8/19, at 3-6.
We agree. In the case sub judice, as noted, at docket number CP-51-
CR-0009019-2015, and docket number CP-51-CR-0009020-2015, Appellant
was sentenced, following negotiated nolo-contendere pleas, on July 14, 2016.
At both dockets, Appellant was sentenced to “reporting probation with Sex
Offender’s Condition; . . . Orders to have no unsupervised contact with minors;
to stay away from complainants[.]” Docket Number CP-51-CR-0009019-2015
Order, 7/29/15, at 1; Docket Number CP-51-CR-0009020-2015, 7/29/15, at
1. Furthermore, upon his first probation violation following sentencing,
Appellant was resentenced on May 15, 2017, to an additional term of
probation and was ordered to be supervised by the Sex Offender Unit of the
Probation Department. Docket Number CP-51-CR-0009019-2015 Order,
5/15/17, at 1; Docket Number CP-51-CR-0009020-2015, 5/15/17, at 1.
At the probation violation hearing, the probation officer explained the
basis of Appellant’s violation as follows:
[PAROLE AGENT]: He incurred -- he was placed on GPS
monitoring when you released him at that time at that violation
hearing. On -- he was placed on GPS on October 19th. From
October 25th to November 3rd he incurred five different
violations, curfew violations. I addressed these violations.
After the first one, I increased his curfew, after the second
-- the four subsequent ones, I issued a sanction for community
service.
Additionally, [Appellant] was referred to . . . sex offender
treatment. He had an intake date, which I had given him written
instructions to attend, on November 13th. I have included the
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written instruction, which [Appellant] signed in my packet, at the
end.
He failed to report to that evaluation as directed to. He did
show up to the office that day, unscheduled. He met with my
supervisor and my deputy. They conferenced him due to multiple
violations, his failure to attend treatment, and his just blatant
disregard for the conditions of the supervision.
He was in possession at that time of a lunch bag, Your
Honor. We searched the lunch bag and it contained two children’s
videos, which I have here if you would like to see. But I also made
photocopies for Your Honor’s packet.
And so it had these two children’s video games and there
was also condoms and lube in with the lunch bag. [Appellant] was
in possession of this. It was contained and it was geared toward
children, obviously. And it’s extremely concerning to myself.
THE COURT: Yes. I’d say so.
PAROLE AGENT: He has displayed, as I said, a blatant disregard
for the conditions of the supervision. He maxed out because he
failed to attend sex offender treatment and he also incurred
numerous misconducts while he was in state custody. So he did
not have a favorable parole recommendation, and ended up
maxing out that sentence.
N.T., 3/22/19, at 5-6.
Appellant’s counsel responded:
So, for starters, yes, he did have some technical violations.
We’re not disputing those technical violations. He has been in
custody on those technical violations since, I believe, November
13th of 2018.
* * *
He did violate curfew, he did not get his evaluations done,
we’re not disputing that. All I’m asking, Your Honor, is that he
has served time for that. He did serve four months -- more than
four months now for those technical violations.
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In terms of what the – [parole agent] has brought with the
games, the condom, and the lube, Your Honor, I will say this: In
terms of the games, he’s not supposed to have that, it is part of
the rules. However, as you know, sex offender rules are -- there’s
a lot. There’s a lot of rules, and he signed the form.
But, you know, he made a mistake[.]
N.T., 3/22/19, at 9.
Thus, there is sufficient evidence to establish that Appellant violated the
probationary terms. Indeed, Appellant acknowledged that he violated the
conditions of his probation relating to curfew, sex-offender treatment and
possession of children’s video games. Moreover, Appellant acknowledged that
he had signed the form outlining the sex-offender conditions.
Furthermore, the terms of the sex offender probationary rules were
properly set by the Probation Board. The trial court sentenced Appellant to
probation and ordered the length of probation, making such probation subject
to sex offender conditions. As the Court in Elliott explained, probationary
factor (c)(13) is a catchall, allowing for terms necessary to ensure the
“rehabilitation of the defendant.” Elliott, 50 A.3d at 1291; 42 Pa.C.S.
§ 9754(c)(13). As this Court also explained in Elliott, “the Board and its
agents may impose conditions of supervision that are germane to, elaborate
on, or interpret any conditions of probation that are imposed by the trial
court.” Id. at 1292. Thus, the Probation Board acted within its authority by
imposing specific conditions in furtherance of the trial court’s order of
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probation. Accordingly, Appellant is entitled to no relief on his claim that the
conditions of probation relating to curfew, sex-offender treatment, and
possession of non-obscene children’s videos or games were unlawfully
imposed.
In his final claim, Appellant argues that the trial court imposed a
manifestly excessive sentence of total confinement for technical probation
violations in derogation of Sections 9771 and 9721 of the Sentencing Code.
Appellant’s Brief at 28. Appellant further asserts that the sentence imposed
was unreasonable and unnecessary to vindicate the authority of the court, and
that the court failed to consider the least restrictive alternatives, Appellant’s
needs, and the possible harm to the community. Id. at 30-31.
Appellant’s issue challenges the discretionary aspects of his sentence.
We note that “[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 708; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).
Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Here, two requirements of the four-part test were met in all three
underlying cases: Appellant filed a timely appeal, and Appellant included a
statement raising this issue in his brief pursuant to Rule 2119(f). Moury, 992
A.2d at 170.
We observe, however, that Appellant failed to meet the requirement
that the issue be properly preserved at sentencing or in a motion to reconsider
and modify sentence. Moury, 992 A.2d at 170. “[W]hen a court revokes
probation and imposes a new sentence, a criminal defendant needs to
preserve challenges to the discretionary aspects of that new sentence either
by objecting during the revocation sentencing or by filing a post-sentence
motion.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super.
2008); Pa.R.Crim.P. 708(D). The record reflects that Appellant did not object
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to the new sentence at the revocation sentencing. N.T., 3/22/19, at 1-24.
Moreover, the record reveals that Appellant filed a post-sentence motion in
only one of the three underlying cases, docket number CP-51-CR-0009020-
2015. Thus, this claim arguably is preserved as to only docket number CP-
51-CR-0009020-2015.
Furthermore, Pa.R.Crim.P. 708(E) provides: “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.” At docket number CP-51-CR-0009020-2015, the only
underlying docket at which Appellant filed a post-sentence motion, Appellant’s
motion to modify sentence was filed on April 15, 2019, more than ten days
from the imposition of sentence on March 22, 2019. Petition to Vacate and
Reconsider Sentence, 4/15/19, at 1-8. Thus, the motion was untimely and
did not preserve his claim. Accordingly, Appellant has failed to preserve the
challenge to the discretionary aspects of his sentence claim. Moury, 992 A.2d
at 170.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
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