Appeal from the Order of the Superior Court entered April 27, 2010 at Nos. 1701 WDA 2009 and 1702 WDA 2009, vacating the Judgment of Sentence of the Court of Common Pleas of Westmoreland County entered August 17, 2009 at Nos. CP-65- CR-0001543-2001 and CP-65-CR- 0001544-2001, and remanding.
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In this appeal by allowance, we are called to decide whether the Superior Court improperly reversed a revocation of probation, when the revocation was premised upon the conclusion that a probationer violated restrictions contained within a document entitled "Standard Special Conditions for Sex Offenders," which was authored by the Pennsylvania Board of Probation and Parole (the Board), rather than a judge of the court of common pleas. For the reasons that follow, we hold that the Superior Court erred in reversing the revocation of probation. We thus respectfully vacate the order of the Superior Court, and remand this case to that court for further proceedings consistent with this opinion.
On April 30, 2002, Appellee, Robert C. Elliott, Jr., pleaded guilty in the Westmoreland County Court of Common Pleas to various charges related to two separate cases, both of which involved sexual assault of children. After the completion of a presentencing report and Megan's Law assessment, the trial court held a hearing to impose sentence and determine whether Appellee was a sexually violent predator (SVP) under Megan's Law. At the conclusion of the hearing, the court imposed a sentence of four-and-one-half to nine years of imprisonment, followed by a consecutive probationary term of five years. The court further adjudicated Appellee a SVP, and accordingly imposed three conditions of his probation: Megan's Law registration; no contact, direct or indirect, with the victims; and no unsupervised contact with any minor child. Finally, in light of Appellee's status as a SVP, the court requested that the Board supervise Appellee as a special probationer upon his release from state prison.*fn1
During incarceration, Appellee was refused parole on four different occasions for his failure to complete a sex offender treatment program successfully. Accordingly, Appellee served the maximum nine-year sentence and was released on April 7, 2009. Upon regaining his freedom, Appellee moved to Erie and, on April 8, 2009, met with agents of the Board. At that meeting, and a second meeting two days later, Appellee was given a form created by the Board entitled "Standard Special Conditions for Sex Offenders -- Minor Victims." See Reproduced Record (R.R.) at 131a. The form, five pages in length, set forth twenty-five conditions of his probation supervision. Appellee initialed after each condition, and then signed his name at the end. During both the April 8 and April 10 meetings, an agent of the Board explained each condition to Appellee, and Appellee indicated that he understood them. Relevant to this appeal, Supervision Conditions 17 and 19 stated as follows:
(17) You must not have any contact with anyone under the age of 18 years old. This includes direct and indirect contact, written correspondence, telephone contact or contact through a third party. You must immediately report to your Parole Agent any incidental contact you have with anyone under the age of 18 years old. Contact is defined as follows: (1) actual physical touching; (2) writing letters, sending messages, buying presents, sending email, sending instant messages, sending text messages, calling on a telephone/cell phone/blackberry; (3) and verbal communication, such as talking, as well as nonverbal communication, such as body language (waiving, gesturing, winking), sign language and facial expressions.
(19) You must not enter or loiter within 1,000 feet of areas where the primary activity at such locations involve persons under the age of 18, including playgrounds, youth recreation centers, youth clubs, arcades, amusement parks, child daycare centers, elementary schools, high schools, elementary/high school bus stops, Special Olympics, Boy Scout/Girl Scout meetings/events or any similar areas where persons under the age of 18 commonly congregate.
After completing the first several weeks of his probation without incident, on June 24, 2009, Appellee's probation officer, Agent David Buchiet, observed Appellee sitting in Perry Square, a common area located in the center of the city of Erie. Agent Buchiet noted that Appellee was sitting "rather close" to a large water fountain in the park, in which young children were playing. Notes of Testimony (N.T.), Probation Revocation Hearing, Aug. 17, 2009 at 18. While observing Appellee for approximately thirty minutes, Agent Buchiet noticed that he was paying particular attention to one young girl in a red bathing suit. Appellee eventually left the park, but soon after returned for another twenty-five minutes. After leaving a second time, Appellee traveled the short distance from the square to the Erie County Courthouse for his regular sex offender group meeting.
Agent Buchiet intercepted Appellee prior to the beginning of the meeting and confronted him about his presence and actions in Perry Square. According to Agent Buchiet, Appellee admitted that he regularly went to the park to watch the children, and that he was sexually aroused by the girl in the red bathing suit. Based upon this statement, the next day, Agent Buchiet obtained a warrant and arrested Appellee for violating his probation. Thereafter, Board agents searched Appellee's apartment, and found a journal in which Appellee had documented prior visits to the square, and how those visits reminded him of his prior assault victims.
On August 17, 2009, Appellee was returned to Westmoreland County for a probation revocation hearing. Agent Buchiet testified concerning the above-referenced observations, Appellee's statements concerning his presence in the square, and the subsequent search of Appellee's residence. Agent Buchiet also related that he never saw Appellee come into contact or interact with any of the children in the square, and further that, after questioning some of the adults at Perry Square on the day in question, he discovered no evidence of direct contact by Appellee with the children. For Appellee's part, he testified that he never told Agent Buchiet that he was "sexually aroused" by the girl in the red bathing suit, and that he could not recall any of the specific provisions of the "Special Conditions" sheet that he initialed and signed at the commencement of his probationary period.
At the conclusion of the hearing, the trial court determined that Appellee had violated the "Special Conditions," revoked his probation, and incarcerated him for two consecutive terms of two-and-one-half to five years. Later, in its Rule 1925(a) opinion, the trial court opined that Appellee had violated Supervision Conditions 17 and 19. See supra p.3. The court first determined that the Commonwealth had shown by a preponderance of the evidence that, when Agent Buchiet observed Appellee in Perry Square, it was an "area where the primary activity . . . involve persons under the age of 18 . . . or any similar area where persons under the age of 18 commonly congregate," because of the common use of the fountain in Perry Square by young ...