Com. v. Harris, W.

J-S59001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE HARRIS,
Appellant No. 1405 EDA 2015
Appeal from the Judgment of Sentence Entered April 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015528-2008
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 18, 2016
Appellant, Wayne Harris, appeals from the judgment of sentence of 6
to 24 months’ incarceration, followed by five years’ probation, imposed after
the revocation of his probation. On appeal, Appellant argues that the trial
court erred in determining that he violated his probation. After careful
review, we affirm.
The trial court set forth the facts and procedural history of this case as
follows:
On August 26, 2008, Appellant was arrested and charged
with rape and several related offenses. After a mistrial,
Appellant entered into a negotiated guilty plea to charges of
unlawful contact with a minor, endangering the welfare of a
child, and corruption of a minor. Appellant was sentenced by the
Honorable Roger Gordon to an aggregate term of two to four
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*
Former Justice specially assigned to the Superior Court.
J-S59001-16
years[’] confinement, followed by eight years[’] reporting
probation. [Appellant] was designated a sexually violent
predator (SVP). Jurisdiction over Appellant’s probation was
eventually assigned to this court.
At a revocation hearing on April 8, 2015, Dr. William
Russell, director of forensic services at the TAP sex offender
program[1] testified that Appellant was receiving weekly
treatment, and after successfully passing a maintenance
polygraph, was stepped down to a monthly program. During a
required annual polygraph on December 30, 2014, Appellant
failed the examination after significant reactions were recorded
when Appellant responded to questions about recent contact
with minors. When confronted with the polygraph results,
Appellant admitted that he had accidentally seen his daughter
nude. Appellant was placed into weekly group treatment, and
began to deny his original offense. Because of the deception
detected on the polygraph test and Appellant’s denial of his
original offense, Appellant was discharged from therapy at TAP
on January 26, 2015. Based on the circumstances described, Dr.
Russell opined that Appellant was at a high risk to reoffend. This
court found that Appellant had violated the terms of his
probation, revoked Appellant’s probation and sentenced him to a
period of 6 to 24 months[’] incarceration, followed by five
years[’] of probation. Appellant filed his notice of appeal on May
5, 2015. On May 20, 2015[,] this court ordered Appellant to file
a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) (hereinafter “Statement”).
Appellant filed his Statement on August 4, 2015[.2]
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1
Dr. Russell testified that “TAP” is administered through an agency called
“Assessment and Treatment Alternatives.” See N.T. Revocation Hearing,
4/8/15, at 11.
2
We note that Appellant filed his Rule 1925(b) statement well after the 21-
day deadline imposed by the trial court on May 20, 2015. Given that the
trial court accepted Appellant’s untimely statement and wrote a responsive
opinion pursuant to Rule 1925(a), we will address Appellant’s issue raised on
appeal despite Appellant’s late filing. See, e.g., Commonwealth v.
Rodriguez, 81 A.3d 103, 104 n.2 (Pa. Super. 2013) (“[T]he untimely filing
of a court-ordered Rule 1925(b) statement does not automatically result in
wavier of the issues on appeal. If the trial court accepts an untimely Rule
(Footnote Continued Next Page)
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Trial Court Opinion (TCO), 8/18/15, at 1-2 (internal citations omitted).
In his appeal, Appellant purports to raise a single issue for our review:
1. Did the [c]ourt err by finding that Appellant … failed to
admit his original offense and was in technical violation of
his probation?
Appellant’s Brief at 3.
In reviewing Appellant’s claim, we apply the following standard of
review:
When we consider 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. 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. 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
antisocial conduct.
Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007)
(internal citations omitted).
_______________________
(Footnote Continued)
1925(b) statement and addresses the issues raised in its Rule 1925(a)
opinion, we will not determine the issues to be waived.”) (internal citation
omitted); Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)
(en banc) (“[I]f there has been an untimely filing, this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.”).
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Initially, we note that it is unclear upon reading Appellant’s brief
whether he is challenging the trial court’s factual finding that he failed to
admit to his original offense, as he purports, or is arguing that he did not
violate the terms of his probation because he immediately enrolled in
another treatment program and was committed to following the terms of his
probation. The record shows that Appellant only preserved the former issue
in his Rule 1925(b) statement and in his Pa.R.A.P. 2116(a) Statement of
Questions Involved in his brief; thus, we conclude that the latter issue has
been waived as a result.3 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions … are waived.”); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).
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3
In the Rule 1925(b) statement, Appellant alleged:
The [c]ourt erred by finding that Appellant Wayne Harris failed to
admit his original offense and was there for a technical violation
of his probation. Appellant Wayne Harris testified that he was
not in denial. He explained that he has difficulty reading and
writing, and that he told Probation Officer [Michael] Gagliardi
that he was in acceptance, and was told to sign the letter
produced by Probation Officer Michael Gagliardi. Appellant
Wayne Harris stated he was in acceptance of what he did and
was not in denial.
Appellant’s Rule 1925(b) Statement, 8/4/15, at 1.
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Furthermore, despite being properly preserved, we also find that
Appellant has waived his remaining issue, regarding the trial court’s finding
that he failed to admit his original offense, because of his undeveloped
briefing. Appellant’s brief predominantly consists of a recitation of facts, and
includes almost no citation to pertinent legal authority, aside from setting
forth our standard of review. This Court could identify no coherent
argument or analysis therein. Pennsylvania Rule of Appellate Procedure
2119(a) sets forth that “[t]he argument … shall have … the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). It is well established that “[w]hen
briefing the various issues that have been preserved, it is an appellant's duty
to present arguments that are sufficiently developed for our review. The
brief must support the claims with pertinent discussion, with references to
the record and with citations to legal authorities.” In re R.D., 44 A.3d 657,
674 (Pa. Super. 2012) (internal citations and quotations omitted). “We will
not act as counsel and will not develop arguments on behalf of an appellant.
Moreover, when defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.” Id. (internal citation omitted). Consequently, we find this issue
is also waived.
Notwithstanding that Appellant failed to adequately develop his
argument, we would nevertheless determine that the trial court did not
abuse its discretion by finding that Appellant failed to admit his original
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offense. We begin by noting that such a finding is supported by the record.
Indeed, at the revocation hearing, Dr. Russell, director of forensic services at
TAP, testified as follows:
[The Commonwealth:] Why was [Appellant] discharged? Like,
what concerns did you have when you discharged [] [Appellant]?
[Dr. Russell:] The biggest concern was his denial of the original
offense. It brings him back into a position of increased risk. He
came up deceptive on the polygraph, indicating he had had
contact with a minor.
He then, subsequent to that, admitted he had had contact
with a minor. He not only admitted that he had had contact with
a minor, but he had contact with the same type of victim as the
original offense; that is a daughter. None of that was brought
up in group treatment prior to this. He had not discussed in his
group treatment having any contact with a victim, having seen
anybody nude.
So what we’re seeing is a lot of deception in his group
treatment. You see deception in the polygraph. These are
concerns for us, especially with an SVP of increased risk of
reoffending. So based on that and the fact that he wouldn’t
admit to his original offense, we discharged him.
N.T. Revocation Hearing, at 19-20. Additionally, following the failed
polygraph, Appellant’s probation officer, Mr. Gagliardi, testified that he
composed a letter, dictated by Appellant, for Appellant to transmit to TAP so
that he could tell his “side of the events.” 4 Id. at 45, 46. In that letter,
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4
Mr. Gagliardi testified that Appellant has difficulty with reading and writing.
Id. at 45. As a result, Mr. Gagliardi explained, “[Appellant] and I spent
roughly three hours coming up with this letter … that he had written, with
my help. He had told me his side of the events. I made notes. Read the
notes back to him. We made corrections. Read it back to him. He made
more corrections….” Id. at 42-43.
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which was signed by Appellant when he was satisfied with it, Appellant
similarly denied the original offense. See id. at 45, 51-55. Thus, there is
sufficient evidence on the record showing that Appellant failed to admit his
original offense, and we would not conclude that the trial court abused its
discretion in making such a finding.
Moreover, contrary to Appellant’s argument, the trial court did not
base its decision to revoke Appellant’s probation on his failure to admit his
original offense to his probation officer. See Appellant’s Brief at 11
(“Appellant … testified that he was not in denial. He explained that he has
difficulty reading and writing, that he told Probation Officer Gagliardi that he
was in acceptance, and was told to sign the letter produced by [his probation
officer].”); Appellant’s Rule 1925(b) Statement, supra. Instead, in its Rule
1925(a) opinion, the trial court explained:
Appellant was required by the terms of his probation to
participate in sex offender treatment. Appellant was
unsuccessfully discharged from treatment at TAP based on his
denial of his original offense. Therefore, the court properly
found that Appellant had violated the terms of his probation.
Appellant’s claim that he admitted his offense to his probation
officer does not address his conduct in treatment, which was the
basis for his revocation.
TCO at 3. We would agree with the trial court’s reasoning, especially absent
more developed advocacy on behalf of Appellant. Both parties concede that
Appellant was required to participate in sex offender treatment by the terms
of his probation. See Appellant’s Brief at 9; Commonwealth’s Brief at 3.
Ultimately, Appellant was “unsuccessfully discharged” from the treatment
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program, which demonstrates that he failed to properly participate in his
mandated treatment. Further, Dr. Russell’s testimony indicated that the
treatment had not been effective at deterring Appellant from future
antisocial conduct.5 See Perreault, 930 A.2d at 557. Accordingly, because
the record shows that Appellant failed to adequately participate in the
required treatment and has been unsuccessful at rehabilitation thus far, we
would determine that the trial court did not err in revoking Appellant’s
probation.
Judgment of sentence affirmed.
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5
Dr. Russell testified, in relevant part:
[The Commonwealth:] So Doctor, based on your experience and
your expertise, do you consider [Appellant], Mr. Harris, to be a
high risk to reoffend?
[Dr. Russell:] Yes.
[The Commonwealth:] Do you see him as a threat to the
community, in terms of reoffending?
[Dr. Russell:] He’s a high risk to reoffend.
N.T. Revocation Hearing, at 20.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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