J-S53031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NEIL RANDELL HARRIS,
Appellant No. 274 WDA 2014
Appeal from the Judgment of Sentence March 12, 2013
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0016484-2002
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 17, 2014
Appellant, Neil Randell Harris, appeals from the judgment of sentence
imposed following the revocation of his probation.1 Specifically, he
challenges the weight of the evidence. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant incorrectly appeals from the order of January 10, 2014, which
denied his motion to modify sentence nunc pro tunc. The court imposed
sentence on March 12, 2013. (See N.T. Probation Violation/Sentencing,
3/12/13, at 8). In a criminal action, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001), appeal denied, 800 A.2d 932 (Pa. 2002) (citing Commonwealth v.
Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995)). We have corrected
the caption accordingly.
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On August 4, 2003, Appellant entered into a negotiated guilty plea to
sexual assault, 18 Pa.C.S.A. § 3124.1, aggravated indecent assault, 18
Pa.C.S.A. § 3125(a)(7); indecent assault, 18 Pa.C.S.A. § 3126, and
corruption of minors, 18 Pa.C.S.A. § 6301. (See Sentencing Order,
8/04/03). The court sentenced him to a term of not less than three and
one-half years’ nor more than seven years’ incarceration, concurrent to a
term of ten years’ probation on the first count.2 (See id.). The court
imposed no further penalty on the remaining counts. (See id.). The
charges arose out of an incident with his then-girlfriend’s twelve year old
daughter. (See Trial Court Opinion, 4/24/14, at 1).
The trial court further notes that Appellant was initially paroled on
October 7, 2007, but subsequently was arrested and returned to prison after
the court found him to be in technical violation of his parole and probation.
(See id.). Appellant was re-paroled on September 7, 2010.
Appellant concedes that on March 22, 2012, he was detained after he
was determined to be deceptive in a voluntary polygraph examination
administered as part of his required sex-offender treatment. (See
Appellant’s Brief, at 6).
____________________________________________
2
As part of the negotiated plea, the Commonwealth amended the first count
from involuntary deviate sexual intercourse, forcible compulsion, 18
Pa.C.S.A. § 3123(a)(1), to sexual assault. (See Sentencing Order, supra;
see also Criminal Docket No. CP-02-CR-0016484-2002 at 2; Criminal
Information, 8/04/03).
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At a hearing on February 12, 2013, Supervising Agent Timothy
Waugaman, Forensic Case Manager Frank DeAngelis and Mercy Health
Program Manager Rita Lukas, testified to Appellant’s failure to achieve
successful completion of the required sex offender treatment program, and
his possession of prohibited property (cell phones and a knife). Appellant
was discharged from the treatment program as “unsuccessful” after his
responses to a voluntary polygraph examination administered as part of the
same program were determined to be deceptive. (See N.T. Hearing,
2/12/13, at 3). He was also found to be in possession of one or more
cellular telephones (at least one with Internet capability), and a serrated
knife, both in violation of the terms of probation. (See id.). The court
continued the hearing for a month to allow defense counsel an opportunity
to find another treatment program, but the search was unsuccessful. (See
N.T. Hearing, 3/12/13, at 3; see also Commonwealth’s Brief, at 4).
On March 12, 2013, with the benefit of a pre-sentence investigation
report, the court again found Appellant to be in violation of the technical
terms of his probation and resentenced him to a term of not less than one
nor more than three years’ incarceration, with 356 days’ credit for time
served. (See N.T. Hearing, 3/12/13, at 5, 8-9).
Notably, when Appellant asked for leniency, the court replied, in
pertinent part: “Mr. Harris, there’s nothing there [ ] for anyone to be lenient
about. Give me something that would indicate anything about you
complying with the rules and regulations of the orders that you’ve been
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given. You disobey everything and you do pretty much whatever you
choose.” (Id. at 5).
Appellant filed a pro se “Motion to Appeal Probation Violation” on April
4, 2013. This motion was rejected as untimely. Appellant filed a complaint
against his counsel with the Disciplinary Board of the Supreme Court of
Pennsylvania.
On June 12, 2013, the PCRA court appointed current counsel, Attorney
Ryan H. James, who filed an amended PCRA petition on November 6, 2013,
seeking the restoration of Appellant’s right to file a post-sentence motion.
The Commonwealth did not object. On December 6, 2013, the court
reinstated Appellant’s right to file post-sentence motions nunc pro tunc.
Appellant filed a counseled motion, including a challenge to the weight of the
evidence, which the PCRA court denied on January 10, 2014. Appellant
timely appealed, on February 7, 2014.3
Appellant raises one question for our review on appeal, which we
recite verbatim:
A revocation of probation, like a verdict, is against the
weight of the evidence if it is so contrary to the evidence to
shock one’s conscience or sense of justice. Was the revocation
of Appellant’s probation, and resulting sentence, against the
weight of the evidence where Appellant was adjudicated based
____________________________________________
3
Appellant filed a timely concise statement of errors on March 14, 2014.
See Pa.R.A.P. 1925(b). The PCRA court filed an opinion on April 24, 2014.
See Pa.R.A.P. 1925(a).
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upon unreliable testimony and possession of common, everyday
items?
(Appellant’s Brief, at 4).4
Our standard of review of an appeal from a sentence imposed
following the revocation of probation is well-settled:
Our 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.
42 Pa.C.S.A. § 9771(b). Also, upon sentencing following a
revocation of probation, the trial court is limited only by
the maximum sentence that it could have imposed
originally at the time of the probationary sentence.
Commonwealth v. Simmons, 56 A.3d 1280, 1286-87 (Pa. Super. 2012),
affirmed per curiam, 91 A.3d 102 (Pa. 2014), petition for cert. filed July 22,
2014 (case citations omitted).5
____________________________________________
4
Appellant expressly abandoned a challenge to the sufficiency of the
evidence. (See Appellant’s Brief, at 4 n.1).
5
Judge Donohue’s concurring statement takes issue with our recitation of
the standard of review. We respectfully disagree.
First, and foremost, as recognized by Judge Donohue, the distinction
she proposes is not germane to this case (which challenges only weight of
the evidence, not the discretionary aspects of sentence). (See Concurring
Statement, at 2). Therefore, at best, reference to a discretionary sentence
challenge, in this case, would be mere dicta. Furthermore, as also
recognized in the concurring statement, Cartrette itself addresses the scope
of review, not the standard of review. (See id.) (“this Court’s scope of
review . . . includes discretionary sentence challenges.”) (emphasis added).
“Pointedly, those few cases that use the abbreviated scope of review where
a discretionary sentencing claim is in question have not declined to
consider the merits of the issue because it was outside the court’s scope of
(Footnote Continued Next Page)
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Furthermore,
[T]he 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
_______________________
(Footnote Continued)
review.” Cartrette, supra at 1034 (emphases added). Here, unlike
Cartrette, no discretionary sentencing claim is in question.
Reference to Holt v. 2011 Legislative Reapportionment Comm'n,
38 A.3d 711 (Pa. 2012) also supports our analysis. (See Concurring
Statement, at 1 n.1). In Holt, as in many other cases, the distinction drawn
is between the scope of review, “what [we] examine,” and the standard of
review, “the degree of scrutiny to be applied.” (Id., at 728). See also
Morrison v. Commonwealth, Dept. of Public Welfare, Office of Mental
Health (Woodville State Hosp.), 646 A.2d 565 (Pa. 1994):
“Scope of review” and “standard of review” are often-albeit
erroneously-used interchangeably. The two terms carry distinct
meanings and should not be substituted for one another. “Scope
of review” refers to “the confines within which an appellate court
must conduct its examination.” Coker v. S.M. Flickinger
Company, Inc., 533 Pa. 441, 450, 625 A.2d 1181, 1186
(1993). In other words, it refers to the matters (or “what”) the
appellate court is permitted to examine. In contrast, “standard
of review” refers to the manner in which (or “how”) that
examination is conducted. In Coker we also referred to the
standard of review as the “degree of scrutiny” that is to be
applied. Id., 625 A.2d at 1186.
Id., at 570 (emphases added).
In this appeal, as in Cartrette, the scope of review is the “what:” viz.,
in Cartrette, the sentencing claim; here, the weight claim. “How” we
review the weight claim (the degree of scrutiny) is our standard of review,
which we have correctly enunciated.
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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.FN3
_________________
FN3. 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.
Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010), appeal
denied, 20 A.3d 1211 (Pa. 2011) (citations omitted).
Preliminarily, in this appeal, we note that Appellant’s assumed
equivalency between a verdict and a revocation of probation is unsupported
by any reference to controlling authority. (See Appellant’s Brief, at 10-11;
see also Commonwealth’s Brief, at 7). Furthermore, it patently disregards
our standard and scope of review. See Simmons, supra at 1286-87.
Moreover, citing Commonwealth v. Marchesano, 544 A.2d 1333,
1336 (Pa. 1988), a collateral appeal, (the only case cited by Appellant in his
argument), Appellant concedes that “the evidentiary bar may be lower and
liberally applied in probation-revocation proceedings[.]” (Appellant’s Brief,
at 10).
Nevertheless, Appellant maintains that the court revoked his probation
on “innocuous and less-than-competent evidence.” (Id. at 10). However,
aside from the bare invocation of general constitutional principles and a
quotation from Pennsylvania Rule of Evidence 602, he fails to develop an
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argument supported by pertinent authority in support of his specific weight
claim. (See id. at 10-11).
Notably, Appellant complains that the revocation court admitted
testimony about the polygraph results even though the polygraph examiner
did not testify. (See id. at 10). But he fails to address the fact that at the
revocation hearing, defense counsel agreed to the admission of a letter
disclosing the polygraph results for the limited purpose of explaining its role
in his discharge. (See N.T. Hearing, 2/12/13, at 6).
At the hearing, Appellant admitted possession of the prohibited cell
phone and steak knife. (See N.T. Hearing, 3/12/13, at 5) (“Yes, I did have
those, Your Honor.”). However, on appeal he argues they were only
“common, everyday household items.” (Appellant’s Brief, at 11). Appellant
has failed to develop an argument supported by pertinent citation of
authorities on his weight claim. Accordingly, the weight of the evidence
issue is waived. See Pa.R.A.P. 2119(a), (b).
Moreover, even if properly developed, his weight claim would not merit
relief. In the context of a violation of parole, this Court has explained:
We find no authority for appellant’s assumption that a
challenge to the weight of the evidence may properly be
entertained on appeal from parole revocation by the trial court.
It is clear that such a challenge is not available from parole
revocations entered by the Pennsylvania Board of Probation and
Parole. Moreover, regardless of whether such challenges may be
raised from common pleas court parole revocations, we do not
find that the alleged conflicts in the juvenile witnesses’ testimony
render the finding of technical parole violations contrary to the
weight of the evidence. Rather, the conflicts raised issues of
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credibility which were for the finder of fact to resolve. We find
no abuse of discretion in this respect.
Commonwealth v. McDermott, 547 A.2d 1236, 1246 (Pa. Super. 1988)
(citations omitted).
Here, we discern no basis on which to distinguish this explanation of
the applicable law merely on the basis that probation, not parole, is at issue.
Accordingly, we adopt this reasoning as our own.
Moreover, a weight claim, even if it were reviewable, would not merit
relief.
In assessing the trial court’s ruling [on a weight of the evidence
claim], we must “review [ ] the trial court’s exercise of
discretion, not the underlying question of whether the verdict is
against the weight of the evidence.” Commonwealth v. Smith,
604 Pa. 126, 985 A.2d 886, 888 (2009). The fact-finder is free
to believe all, part, or none of the evidence; an appellate court
will not make its own assessment of the credibility of the
evidence. Commonwealth v. Ramtahal, 613 Pa. 316, 33 A.3d
602, 609 (2011). “The trial court will only award a new trial
when the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice.” Id. In turn, we will reverse a trial
court’s refusal to award a new trial only when we find that the
trial court abused its discretion in not concluding that the verdict
was so contrary to the evidence as to shock one’s sense of
justice. In effect, “the trial court’s denial of a motion for a new
trial based on a weight of the evidence claim is the least
assailable of its rulings.” Id.
Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013).
In this case, as in McDermott and Olsen, questions of credibility
were for the revocation court to decide as the finder of fact. The court
assessed the credibility of Supervising Agent Waugaman, Forensic Case
Manager DeAngelis and Mercy Health Program Manager Lukas, “and found
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them all to be credible.” (Trial Court Opinion, at 5). The court also found
Appellant’s testimony “to be not credible.” (Id.). We will not disturb the
court’s credibility determinations. The court’s revocation was proper.
We conclude that the court properly determined that Appellant had
violated his probation, by a preponderance of the evidence. Moreover,
Appellant’s weight claim is waived and would not merit relief. Even if the
claim were reviewable, we would conclude that the court properly revoked
Appellant’s probation. We discern no basis on which to conclude that the
court abused its discretion in denying relief.
Judgment of sentence affirmed.
Olson, J., concurs in the result.
Donohue, J., files a Concurring Statement in which Judge Olson joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2014
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