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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LAVAR SMITH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 29, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015243-2010

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.

MEMORANDUM

BOWES, J.

Lavar Smith appeals from the judgment of sentence of one year probation that was imposed following the revocation of his probation. We affirm.

On February 8, 2011, Appellant pled guilty to simple assault and criminal mischief graded as a summary offense. The convictions stemmed from his physical assault of an ex-girlfriend. He punched her in the face six times, threatened to put her in a coma, and smashed the windshield on her automobile. The trial court imposed two years probation for simple assault and no further penalty for criminal mischief.

On October 5, 2012, Appellant assaulted a second ex-girlfriend in her home. Specifically, after threatening to have someone assault the victim on his behalf, Appellant pushed the victim's head, placed his hands around her neck and warned, "You're not going to be happy until I do what I do to you." N.T., 1/29/13, at 9. Appellant was arrested on November 7, 2012, and charged with aggravated assault, terroristic threats, simple assault, and reckless endangerment of another person ("REAP"). Id. at 6. Although the criminal charges were eventually withdrawn, apparently due to the victim's reluctance to pursue the matter further, the arrest triggered probation revocation proceedings. Id. at 4-6, 10. The Commonwealth sought to revoke probation due to the nature of Appellant's violent conduct and the similarity of the two domestic violence incidents. Id. at 4-6. The Commonwealth requested that the trial court revoke probation and re-sentence Appellant to a new period of probation that included an anger management component. Id. at 6-7, 9-10.

At the outset of the revocation hearing, the parties stipulated to a hearing summary that outlined Appellant's history with the probation department and identified the basis for the technical violation of his probation, i.e., the conduct that brought about the November 7, 2012 arrest. Thereafter, the trial court heard argument regarding the probation department's recommendation that the court revoke probation. During that exchange, the trial court asked that the assistant district attorney, Christina Pastrana, Esquire, summarize the facts in the affidavit of probable cause for the October 5, 2012 assault. Without objection, the Commonwealth recited the pertinent facts as follows:

The facts in the affidavit for the case that was withdrawn indicate that on October 5th of 2012 at around 10:45 a.m. [Appellant's] then girlfriend . . . was inside of her apartment with [Appellant].
They began to argue about the dissolution of the relationship, and [Appellant] began to throw items around the apartment looking for items that he thought the [girlfriend] was hiding. He thought that she had money. She refused to give him anything. He said that I'm going to get somebody to --excuse my language – f--k you up.
As the [girlfriend] was attempting to clean the apartment, he then began to push her head with his hands and eventually placed both of his hands around her neck and stated, ["]you're not going to be happy until I do what I do to you."

Id. at 8-9.

Thereafter, the trial court revoked probation and imposed a new sentence of one year probation with an additional requirement that Appellant attend anger management within thirty days. This timely appeal followed within thirty days of the imposition of sentence.[1] Appellant complied with the trial court's order to file a concise statement of matters complained of on appeal pursuant to Pa.R.Crim.P. 1925(b), wherein he raised two issues that he reiterates collectively on appeal as follows:

Did not the lower court err in revoking probation and imposing sentence upon insufficient evidence of a violation of probation as there were no technical nor direct violations and the fact of an arrest alone cannot be a technical violation for it contains no probative value; nor can a revocation and ...

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