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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NON-PRECEDENTIAL DECISION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 Although the criminal charges were eventually withdrawn, apparently due to the victim's reluctance to pursue the matter further, the arrest triggered probation revocation proceedings.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 resentencing be based exclusively on non-competent inadmissible hearsay . . . ?

Appellant's brief at 3.

Our standard of review follows. "Generally, in reviewing an appeal from a judgment of sentence imposed after the revocation of probation, this Court's scope of review includes the validity of the hearing, the legality of the final sentence, and if properly raised, the discretionary aspects of the appellant's sentence." Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super. 2010). Furthermore,

[r]evocation 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, 447 Pa.Super. 502, 669 A.2d 1008, 1011 (Pa.Super. 1996).

Commonwealth v. Perreault, 930 A.2d 553, 557-558 (Pa.Super. 2007).

As it relates to Appellant's contention that the Commonwealth failed to adduce sufficient evidence to sustain the finding that he violated probation, we first observe that technical violations of the conditions governing probation are sufficient to trigger the revocation of probation. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). We have explained the relevant principles as follows:

the 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:
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.
Moreover, the Commonwealth need only make this showing by a preponderance of the evidence.

Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.Super. 2010) (citations and footnote omitted). "The 'preponderance of the evidence' is the lowest burden of proof in the administration of justice, and it is defined as the greater weight of the evidence, i.e., to tip a scale slightly in one's favor." Id. at n.3.

Herein, Appellant raises a two-pronged argument. First, he complains that the trial court erred in revoking probation based solely upon the fact of his November 7, 2012 arrest. However, recognizing that our jurisprudence will tolerate revocation so long as a defendant's conduct reveals that probation has proven ineffective and insufficient to deter against future antisocial conduct, Appellant challenges the propriety of the Commonwealth's recitation of the facts underlying the November 2012 arrest for assault. Essentially, Appellant contends that since "the only evidence presented at the instant violation hearing was non-competent double hearsay-introduced by the way of . . . reading an affidavit of probable cause[, ]" the Commonwealth failed to introduce competent evidence of a violation. Appellant's brief at 9.

In its Rule 1925(a) opinion, the trial court reconsidered its prior determination and agreed with Appellant that, since the affidavit of probable cause was not admitted into evidence and the Commonwealth's discussion of the Appellant's conduct was inadmissible hearsay, the certified record fails to support its decision to revoke Appellant's probation. For the following reasons, we reject the trial court's conclusion that the record does not sustain the revocation order.

Appellant's argument and the trial court's revised perspective rest upon our holdings in Commonwealth v. Sims, 770 A.2d 346, 352 (Pa.Super. 2001), and Commonwealth v. Allshouse, 969 A.2d 1236 (Pa.Super. 2009), for their respective conclusions that insufficient evidence existed in the record to support the revocation of probation. However, for the reasons explained below, the reliance upon those cases is unavailing.

In Sims, a defendant on probation for an aggravated assault conviction was subsequently arrested for rape. He waived the preliminary probation revocation hearing, i.e., Gagnon I, [2] and during the Gagnon II revocation hearing, the Commonwealth was unable to introduce evidence regarding the defendant's conduct. The police officer investigating the rape charge testified that he interviewed the alleged victim and transported a rape kit to the Pennsylvania State Police Lab. He also observed that the doctor treating the victim did not report any injuries or bruises to the victim's vaginal area. The revocation court granted the Commonwealth two continuances so that it could obtain supplementary evidence of the rape, but the Commonwealth still failed to adduce any additional evidence. Nevertheless, the trial court ultimately revoked the defendant's probation, reasoning that, since the defendant waived the Gagnon I hearing, there was sufficient evidence to revoke his probation.

This Court reversed. We found that the investigating officer's testimony was insufficient to establish that the defendant had violated the terms of his probation and that the defendant's decision to waive his right to the Gagnon I hearing did not constitute an admission during the revocation proceeding that the Commonwealth satisfied its burden of proving that the defendant violated his probation. We reasoned,

We know of no law that allows for probation to be revoked solely on the basis of an arrest and waiver of a preliminary hearing. On the contrary, we have found that an arrest alone, without facts to support the arrest, is not sufficient to revoke probation or parole.

Sims, supra at 352.

Hence, the crucial inquiry in the instant case is whether the Commonwealth adduced sufficient facts about Appellant's conduct so that revocation was not based upon the arrest alone. Relying upon our discussion in Allshouse, supra, Appellant maintains that the record was utterly bereft of competent evidence. In Allshouse, we reversed the trial court's revocation of a defendant's probation because, inter alia, the certified record lacked competent evidence of a violation. In that case, the probation officer summarized, over the defendant's several objections, a police report and a variety of documents that were never entered into evidence. We observed,

Initially, we note that, while it appears that the trial court relied on the letter and the police report in making its decision to revoke Appellant's probation, those documents were not only hearsay, they were not offered as exhibits at the hearing, not admitted into evidence, and are not contained within the certified record. Reliance on documents not admitted into evidence is error.
Further, reliance on the statements made by [probation officer] O'Brien at the hearing is error. At the hearing, O'Brien, over Appellant's objections, summarized, in vague fashion, the complaints made in the letter authored by the victim's mother and discussed the police report concerning the incident at the street fair. This is double hearsay. As noted above, hearsay is not admissible at a Gagnon II hearing absent a finding of good cause for not allowing confrontation. There was no such finding made at the instant hearing. . . .

Allshouse, supra, at 1241 (footnotes omitted).

As noted, Appellant complains that since Attorney Pastrana's recitation of the affidavit of probable cause was non-competent hearsay and the Commonwealth failed to introduce that document into evidence, the record cannot sustain the trial court's finding of a probation violation. We agree that the Commonwealth's evidence is subject to challenge based upon Attorney Pastrana's competency as a witness, her hearsay testimony regarding the affidavit of probable cause, and the Commonwealth's failure to introduce the affidavit of probable cause into evidence. Appellant, however, unlike the defendant in Allshouse, failed to object at any point during the revocation hearing. Thus, he did not, at any point, attack the manner in which the Commonwealth introduced the facts underlying Appellant's arrest for the assault of his ex-girlfriend. Hence, the various challenges that Appellant levels on appeal are waived. See Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Accordingly, we do not address those claims herein.

Moreover, we may not review the sufficiency of the evidence supporting the trial court's basis for the revocation order on a diminished record. Instead, "[w]here evidence, incompetent as hearsay, is admitted without objection, it may be given its natural probative effect as if it was in law admissible." Commonwealth v. Farquharson, 354 A.2d 545, 552 (Pa. 1976). As a result, in reviewing the sufficiency of the evidence, unless a trial court sustains an objection to the admissibility of evidence, we are required to consider all of the evidence actually presented regardless of whether it was properly admitted. See Commonwealth v. Weaver, 76 A.3d 562, 569 (Pa.Super. 2013) (distinguishing between sufficiency claim and substantive challenge to admission of evidence).

Thus, contrary to Appellant's assertions, the certified record transmitted on this appeal sustains the trial court's decision to revoke Appellant's probation. In addition to the mere fact of Appellant's arrest, the record confirms that Appellant first threatened and then physically assaulted his ex-girlfriend during an argument in her apartment. He initially warned the victim that he was going to have someone "f--k her up, " and he then shoved her head, grabbed her by the neck, and admonished, "You are not going to be happy until I do what I do to you." N.T. 1/29/13, at 9. Considering the similarities between this incident and the facts underlying his assault conviction that led to the imposition of probation in the first instance, wherein he beat a woman with his fist and threatened to put her in a coma, it is beyond argument that the unchallenged evidence regarding Appellant's physical aggression towards the victim and his threats of additional physical harm, warranted a technical violation of his probation. Appellant's challenge to the sufficiency of the evidence fails.

Judgment of sentence affirmed.

Judgment Entered.


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