United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
before the Court is a Petition filed by the Probation Office
on January 13, 2017; a Supplemental Petition filed by the
Probation Office on January 18, 2017; a Notice Regarding
Supervised Release Violation Hearing filed by the Government
on March 2, 2017; a Second Notice Regarding Supervised
Release Violation Hearing filed by the Government on June 14,
2017; and a Third Notice Regarding Supervised Release
Violation Hearing filed by the Government on August 4, 2017.
(Docket Nos. 4, 7, 22, 32, 40). On June 2, 2017, the Court
held a supervised release hearing, at which time Defendant
admitted to the Grade C violations set forth in the Petition
and Supplemental Petition. (Docket No. 27). On August 9,
2017, the Court held a hearing regarding the revocation of
Defendant's supervised release, at which time the
Government and Defendant presented evidence with respect to
the disputed Grade A and Grade B violations in the
Government's notices. (Docket No. 41). Defendant
presented additional evidence at a continuation of the
hearing on October 10, 2017. (Docket No. 53). After careful
consideration of the record, and for the following reasons,
the Court finds that the Government has demonstrated by a
preponderance of the evidence that Defendant committed Grade
A and Grade B violations. The Court will proceed as scheduled
on October 18, 2017. (See id.).
FINDINGS OF FACT
September 15, 2009, Defendant was sentenced by the United
States District Court for the Northern District of West
Virginia to 108 months' imprisonment for aiding and
abetting the distribution of cocaine base within 1, 000 feet
of a protected location, followed by a six-year term of
supervised release with standard and additional conditions.
(Docket No. 1-2). Defendant's sentence was reduced from
108 months' imprisonment to 87 months' imprisonment
on January 12, 2012. (Docket No. 1-3). Jurisdiction of this
matter was transferred to this Court on October 12, 2016.
(Docket No. 1-4 at 10). On December 13, 2016, the Court
granted the Probation Officer's request that the
conditions of Defendant's term of supervision be modified
to permit him to reside at the Renewal Center for a period of
not more than six months, to commence as soon as possible.
(Docket No. 3).
of a Petition filed on January 13, 2017, and a Supplemental
Petition filed on January 18, 2017, the Probation Office
advised the Court that Defendant had violated several
conditions of his supervised release. (Docket Nos. 4, 7). On
March 2, 2017, the Government filed a Notice Regarding
Supervised Release Violation Hearing, wherein the Government
averred that Defendant had committed Grade A, Grade B, and
Grade C violations and attached supporting exhibits. (Docket
No. 22). In light of the same, the Court granted
Defendant's two requests to postpone the supervised
release hearing. (Docket Nos. 24, 26).
2, 2017, based upon the parties' agreement, the Court
held a supervised release hearing, at which time Defendant
admitted to the Grade C violations set forth in the Petition
and Supplemental Petition. (Docket No. 27). The Court
scheduled a hearing as to Defendant's Grade A and Grade B
violations for August 9, 2017. (Id.). In the
interim, Defendant filed an ex parte motion to fire his
counsel, and his counsel filed a motion to withdraw. (Docket
Nos. 28, 29). On June 14, 2017, the Court held a hearing to
address the motions, which were terminated as moot after the
hearing. (Docket No. 31). Also on June 14, 2017, the
Government filed a Second Notice Regarding the Supervised
Release Hearing. (Docket No. 32). On June 22, 2017, and on
June 26, 2017, the Court granted Defendant's requests for
service of two subpoenas duces tecum. (Docket Nos. 36, 38).
On July 21, 2017, the Government filed a brief in support of
its Notice Regarding Supervised Release Violation Hearing.
(Docket No. 39). On August 4, 2017, the Government filed a
Notice Regarding Supervised Release Violation Hearing,
wherein it detailed the crimes alleged to have been committed
by Defendant. (Docket No. 40).
Court held a hearing regarding the revocation of
Defendant's supervised release on August 9, 2017, at
which time the Government and Defendant presented evidence
regarding the Grade A and Grade B violations. (Docket No.
41). After the parties completed their presentations, the
Court granted Defendant's request that the remainder of
the hearing be continued to permit him to access additional
records. (Id.). The Court scheduled the continuance
of the hearing for September 7, 2017. (Docket No. 42).
August 22, 2017, Defendant filed a Motion to Enter Cell Tower
Information into Evidence, which the Court denied because the
motion was made pro se while Defendant is represented by
counsel. (Docket Nos. 44, 45). The same day, the official
transcript of the proceeding held on August 9, 2017, was
filed. (Docket No. 46). On September 5, 2017, the Court
granted Defendant's Unopposed Motion to Postpone the
Supervised Release Violation Hearing, wherein Defendant
stated that he had not yet received the records that he
requested. (Docket Nos. 47, 48). The Court rescheduled the
hearing for October 10, 2017. (Docket No. 48). After
receiving a letter and attachment from Defendant's
counsel, the Court convened a teleconference on September 29,
2017. (Docket No. 49). Defendant's counsel agreed to file
the letter and attachments as a pleading and stated that he
will present a witness with respect to the attachments at the
hearing on October 10, 2017. (Id.). On October 3,
2017, the Government filed a Post-Hearing Memorandum
Regarding Supervised Release Violation, and Defendant filed
Proposed Findings of Fact and Conclusions of Law. (Docket
Nos. 51, 52). On October 10, 2017, Defendant presented
additional evidence at a continuation of the hearing. (Docket
Third Notice Regarding Supervised Release Violation Hearing,
the Government delineated the crimes alleged to have been
committed by Defendant. (Docket No. 40). Specifically, the
Government stated that the Pennsylvania State crimes alleged
to have been committed include:
(1) Terroristic Threats, 18 Pa.C.S. § 2706, Misdemeanor
1 (M1), Grade B;
(2) Rape, 18 Pa.C.S. §§ 3121(a)(1) and (2), Felony
1 (F1), Grade A;
(3) Involuntary Deviate Sexual Intercourse, 18 Pa.C.S.
§§ 3123(a)(1) and (2), Felony 1 (F1), Grade A;
(4) Theft By Unlawful Taking, 18 Pa.C.S. § 3921(a)
(see 18 Pa.C.S. § 3903(b) and 18 Pa.C.S. §
1103), Grade B or C;
(5) Simple Assault (intentional), 18 Pa.C.S. §
2701(a)(1), Misdemeanor 2 (M2), Grade A (adult victim);
(6) Simple Assault (intentional), 18 Pa.C.S. §§
2701(a)(1) and (b)(2), Misdemeanor 1 (M1), Grade A (child
(7) Criminal Trespass, 18 Pa.C.S. § 3503(a)(1)(i),
Felony 3 (F3), Grade B
Hearing Held on August 9, 2017
hearing on August 9, 2017, the Court found Defendant to be
competent. (Docket No. 46 at 8). Specifically, based upon
Defendant's appearance, his demeanor, his answers to the
Court's questions, and the interactions between him and
his counsel, as well as his attorney's representations,
the Court concluded that Defendant was competent and that he
could participate in the hearing. (Id.).
Evidence Presented at the Hearing
outset, it is well established that it is the
Government's burden to prove that a violation of
supervised release was committed by a preponderance of the
evidence. See 18 U.S.C. § 3583(e)(3). The
evaluation of the credibility of the evidence is left to the
discretion of the Court. See United States v. Conde,
58 F. App'x 538, 539-40 (3d Cir. 2002) (citing United
States v. Whalen, 82 F.3d 528, 531 (1st Cir. 1996)
(“[T]he District Court was in the best position to
determine witness credibility.”)). Hence, the
Court's factual findings that follow summarize the facts
that were established during the hearing by a preponderance
of the evidence.
testimony of three witnesses was presented during the
hearing: (1) L.D., one of the victims of Defendant's
alleged violations; (2) Valerie Mozes; and (3) Defendant.
(See Docket No. 46 at 20-135). The testimony of each
witness centered around events occurring on the evening of
December 5, 2016.
Government presented the testimony of one witness, L.D.
(Id. at 20-70). While testifying, L.D. reviewed her
communications with Defendant through text messages, which
were admitted as Government's Exhibits 1A through 1DD.
(Id. at 21; see also Docket Nos. 41-1
through 41-32). In explaining why Defendant is listed as
“Sperm Donor” in her telephone, L.D. stated,
“[T]hat's all he is, ” and noted that she and
Defendant have a child, R., together. (Docket No. 46 at
21-22; see also Docket Nos. 41-1 through 41-32). In
summarizing the text messages between her and Defendant on
November 25, 2016, L.D. testified that when Defendant texted,
“Get ur. [sic] Ass up [sic] show me titties[, ]”
he wanted her to take pictures of herself. (Docket No. 46 at
23; Docket No. 41-4). Defendant next texted, “Let me c
[sic] them big ass titties, ” and, “Wtf, ”
which L.D. testified means, “[W]hat the fuck, ”
when she did not respond. (Docket No. 46 at 23-24; Docket No.
41-5). Defendant continued to send text messages throughout
the day and requested “picd, ” but L.D. did not
respond until Defendant asked, “What u [sic] doin
[sic], ” to which L.D. wrote, “Usual, u [sic]?,
” and Defendant responded,
“Work.” (Id. at 24-25; Docket Nos. 41-6,
41-7). L.D. stated that she had not responded to
Defendant's earlier messages because she did not want to
send him pictures or encourage him. (Docket No. 46 at 25). On
November 26, 2016, Defendant texted, “Mornin [sic],
” to which L.D. did not respond. (Docket No. 46 at 25;
Docket Nos. 41-8, 41-9). Defendant did not send L.D. another
text message until the morning of December 7, 2016, when he
wrote, “U [sic] up, ” “Get up, ” and
“What u [sic] doinbto [sic] my baby.” (Docket No.
46 at 25-26; Docket Nos. 41-8, 41-9).
acknowledging the large gap of time between November 26 and
December 7, 2016, L.D. reviewed the events of her day on
December 5, 2016. (Docket No. 46 at 26). L.D. stated that she
was at school until 2:00 p.m., picked R. up from daycare, and
returned to her home for the rest of the day by 3:00 p.m.
(Id.). Defendant arrived at L.D.'s home
around 5:00 p.m. after he picked up dinner from
McDonald's for R. (Id. at 28-29). Defendant fed R.
her dinner in the dining room while L.D. remained in the
living room for approximately one-half hour. (Id.).
Defendant then entered the living room and “kept trying
to give [L.D.] hugs, ” while she “would just keep
moving away from him” because “[h]e was just
crossing the line.” (Id.). L.D. retreated
upstairs to her bedroom and shut the door. (Id.).
Defendant then went upstairs with R. and said that he was
going to try to put her to bed. (Id. at 29). When R. did
not want to go to bed “because it was too early,
” Defendant “was getting frustrated” and
“threw her down on the bed.” (Id.). In
explaining how Defendant threw R. on the bed, L.D. testified,
“He tossed her. He was holding her in his arms and she
was being fussy, so he tossed her down on the bed and she
landed on her back.” (Id. at 30). R.'s
crying increased when she was thrown on the bed.
testified that she was upset with Defendant's action and
asked him to give R. to her. (Id.). Defendant then
“got really aggressive, ” “pushed [L.D.]
down on the bed, ” and “proceeded to attack
[her].” (Id.). To this end, L.D. stated that
“[Defendant] just pushed me by my shoulders down onto
the mattress and forcefully made me have sex with him.”
(Id. at 30-31). She explained that Defendant removed
her clothes, pushed her shorts to the side, and had sexual
intercourse with her by inserting his penis into L.D.'s
vagina. (Id. at 31). L.D. did not want to have
sexual intercourse with Defendant, and she asked him to stop.
(Id.). L.D. testified, “I kept telling him,
why are you doing this. I kept asking him why because we are
not that close, we don't have sex. The last time we had
sex was two days before R.'s birthday and he forced me to
have sex then.” (Id.). During the course of
the assault, R., who was thirteen months old at the time, was
still on the bed next to L.D. (Id. at 32). Defendant
had an orgasm, and L.D. told him to leave because her father
would be arriving within fifteen minutes. (Id.).
Defendant gathered his things and left. (Id.).
returning to the text message communications, L.D. explained
that there was a large gap of time between November 26 and
December 7, 2016, because there was little communication
between the two and because she had deleted some of the text
messages. (Id. at 32-33). L.D. stated that on
December 7, 2016, Defendant texted, “What [u] doinbto
[sic] my baby, ” because he was outside of her home and
heard R. screaming upstairs in her bedroom. (Id. at
33; Docket Nos. 41-9, 41-10). Defendant then texted, “Y
[sic] i [sic] hav [sic] to keep callin [sic], ”
“I kno [sic] shit is fucked up but damn, ”
“im [sic] so sad people r [sic] the way they r [sic],
” “I need a few seconds of ur [sic] time can
[sic] u [sic] come down stairs [sic] and talk to me, ”
and, “Hello.” (Docket No. 46 at 33-34; Docket Nos.
41-10, 41-11, 41-12). L.D. testified that Defendant came
inside her home that morning and was downstairs in her living
room when he heard her father say something inappropriate,
which is why he left L.D.'s home and sent her the text
messages. (Id. at 34). L.D. did not respond
to Defendant's messages because she had school that
morning. (Id.; Docket Nos. 41-10, 41-11, 41-12).
did not communicate with Defendant until December 9, 2016,
when she texted, “U [sic] hurt us so bad we never [sic]
gon [sic] b [sic] ok.” (Docket No. 46 at 35; Docket No.
41-12). L.D. was referencing “[w]hat he had done to us,
how he had attacked me in front of R., and just everything he
has done as a whole.” (Docket No. 46 at 35). When
Defendant responded, “Stop texting me, ” L.D.
replied, “I c [sic] but u [sic] can blow up my phone
then show up at my house rite [sic]?, ” and, “And
let urself [sic] in my front door.” (Docket No. 46 at
35; Docket Nos. 41-13, 41-14). L.D. testified that she was
referring to when he came to her house and entered without
her permission. (Docket No. 46 at 35). Four hours after she
texted, “Quit pretending like u [sic] care wen [sic]
actually u [sic] careless, ” L.D. texted, “Did u
[sic] go to jail?” (Id. at 36; Docket No.
41-16). In discussing this text message, L.D. testified,
“[A]fter he assaulted me Monday, I told him that I was
going to call the police and report it and get the PFA
[Protection from Abuse] reinstated because I didn't want
him around me or R. anymore. He told me, don't worry
about it, because he is going back to jail that Friday for
probation violations. So he was going to be going back to
jail.” (Docket No. 46 at 36). When Defendant did not
respond, L.D. assumed that he had gone back to jail.
(Id. at 37).
learned that Defendant had not returned to jail when she was
shopping at Target with her mother and R. and saw Defendant,
who did not acknowledge L.D. or R. (Id.). On
December 19, 2016, L.D. texted, “U [sic] can walk up in
my house tresspassn [sic] but u [sic] cant [sic] even say
hello to [R.] or even acknowledge her in public, u [sic] can
take my pussy against my will while my baby is watchn [sic]
but u [sic] cant [sic] say hi to her as u [sic] pass us at
the store? Is that rite [sic] daddy? Ur [sic] a sick
mutherfucker [sic] don't [sic] ever come around us again
ur [sic] fuckn [sic] crazy.” (Docket Nos. 41-17,
41-17). L.D. stated that she sent the text message because
Defendant had sexually assaulted her and because she was
frustrated with him for the reasons included in the message.
(Docket No. 46 at 38). On December 20, 2016, when L.D.
texted, “I will never understand y [sic] u [sic]
decided to hurt me and [R.] so bad but i [sic] hope it was
worth it, ” she was referring to Defendant throwing R.
on the bed and sexually assaulting L.D. (Id. at 39;
Docket No. 41-18).
December 25, 2016, L.D. texted, “Lying to us for
months, played us, u [sic] not in jail u [sic] fuckn [sic] 2
face [sic] liar.” (Docket No. 46 at 39; Docket No.
41-19). L.D. also texted, “Its [sic] ok u [sic] let
fugs harass me n [sic] [R.] weneva [sic] shes [sic] feeln
[sic] weak and lonely.” (Docket No. 41-19). L.D.
explained that “fugs, ” which means
“fucking ugly, ” is in reference to Ms. Mozes.
(Docket No. 46 at 39-40). She also stated that Defendant had
given her telephone number to Ms. Mozes and that Ms. Mozes
“would continuously call me and text me out of the blue
for no reason at all.” (Id. at 40). Also on
December 25, 2016, L.D. texted, “U [sic] raped me in
front of [R.] two weeks ago . . . dnt [sic] lie, im [sic]
sick of u [sic] sayn [sic] im [sic] crazy cuz [sic] u [sic]
so ignorant u [sic] kno [sic] the truth Santana, u [sic] did
this to me and [R.], ” and, “U [sic] didnt [sic]
have to hurt us so bad, u [sic] just did it cuz [sic] u [sic]
hate us i [sic] guess idk.” (Id.; Docket No.
41-20). While discussing Defendant's responses, “I
aint [sic] saw [sic] u [sic] n [sic] week quit ur [sic] shit,
” and, “Dont [sic] take it out on [R.] cause
[sic] u [sic] mad at me, ” L.D. noted that Defendant
did not deny that he had raped her or assaulted R. (Docket
No. 46 at 41; Docket No. 41-21).
December 26, 2016, L.D. sent several screen shots of text
messages that Ms. Mozes had sent to her. (Docket No. 46 at
41-42; Docket Nos. 41-22 through 41-29). In discussing why
she forwarded the messages to Defendant, L.D. stated,
“[W]henever I would bring that to his attention, he
would act like she never did anything, I'm making this
up. He didn't believe me.” (Docket No. 46 at 42.).
That day, L.D. also texted, “My dad was here that
mornin [sic] u [sic] broke in my house so i [sic] hav [sic] a
witness, ” and, “U [sic] get away with so much in
life . . . responsibilities etc [sic] . . . u [sic] think u
[sic] can shit on me & [R.] then get away with that too,
ima [sic] make sure u [sic] pay this time cuz [sic] u [sic]
didnt [sic] hav [sic] to hurt us so bad u [sic] did it
deliberately, shit u [sic] never even apologized u [sic] keep
on hurtn [sic] us.” (Docket No. 46 at 42-43; Docket
Nos. 41-29, 41-30). L.D. testified that her text messages
referred to the day that Defendant entered her home without
permission and to the day that Defendant raped her and
assaulted R. (Docket No. 46 at 43).
a.m. on December 27, 2016, L.D. texted, “Is that u
[sic] at my door??, ” “Go away, ” and,
“Omg idk who it is.” (Id. at 43-44;
Docket No. 41-31). In discussing these messages, L.D. stated,
“I thought it was him at first because I didn't
think anybody else would be at my door in the middle of the
night. Then whenever he didn't respond, I didn't know
who it was.” (Docket No. 46 at 44). Defendant responded
approximately seven hours later by texting, “No not at
ur [sic] crib but u [sic] kno [sic] this.” (Docket No.
46 at 44-45; Docket No. 41-32). L.D. never learned who was at
her door but believes that it was Defendant. (Docket No. 46
at 44). At the conclusion of her direct examination, L.D.
reiterated that Defendant entered her home without
permission, that he raped her; and that he threw R. on the
bed. (Id. at 45). She also noted that Defendant has
threatened her by calling her and stating that she abuses
[R.] and that he “could get her taken off of me.”
cross examination, L.D. again stated that some of the text
history was not preserved. (Id. at 46). She noted,
however, that she did not recollect deleting any text
messages or photographs that could have been text messages
between the end of November and December 7, 2016.
(Id. at 47). She stated that she and Defendant had
communicated through telephone calls from November 25, 2016,
through the end of December. (Id. at 47-48). L.D.
also testified that the texting history ended on December 27,
2016, because she purchased a new phone. (Id. at
next reviewed text messages from January 16, 2017, wherein
Defendant texted, “What do I do from here, ” and,
“I want to turn myself in.” (Id. at
48-49; Docket No. 41-35). L.D. did not recall Defendant's
messages, but she remembered her response, “U [sic]
turn urself [sic] in yet?” (Docket No. 46 at 48-49;
Docket No. 41-35). L.D. then addressed her PFA, which was
filed in January 2017. (Docket No. 46 at
49-50). L.D. testified that Defendant was
personally served at the Renewal Center on January 13, 2017,
and that he left the Renewal Center approximately one hour
after he was served with the PFA. (Docket No. 46 at 50-51).
To this end, L.D. explained that Defendant's Probation
Officer called her approximately one hour after Defendant was
served and advised her to go home, lock her doors, and avoid
answering the door because Defendant had left the Renewal
Center. (Id. at 51). L.D. returned to her text
messages from January 16, 2017, wherein she stated, “U
[sic] kno [sic] my intentions were to keep [R.] safe away
from u [sic] & fugs. I never intended for u [sic] to go
back to prison for 4yrs, [sic] wow, u [sic] did that to
urself [sic], ” “Felt bad for yest [sic] wen
[sic] p told me u [sic] had a temper tantrum & got urself
[sic] 4yrs [sic] in prison, ” and “[R.] says bye
hav [sic] a nice life w ...