J-S84021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENDALL GARLAND
Appellant No. 1646 EDA 2014
Appeal from the Judgment of Sentence Dated May 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0804261-2001
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED February 27, 2017
Appellant Kendall Garland appeals from the judgment of sentence
following the trial court’s determination that he violated his probation. On
appeal, he contends the evidence was insufficient. We affirm.
In 2002, Appellant pleaded no contest to aggravated indecent assault
and corruption of minors. Commonwealth v. Garland, 3027 EDA 2008 (Pa.
Super., Oct. 30, 2009) (unpublished mem. at 1).1 He was sentenced to two-
and-a-half to six years’ incarceration followed by nine years’ reporting
probation. Id. The sentencing order and commitment form specified that,
among other things, Appellant was to receive drug and alcohol counselling
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3125, 6301.
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and sexual assault counselling. Order, 8/7/02; Ct. Commitment, 8/7/02.
Appellant did not file a direct appeal from his judgment of sentence.
Garland, 3027 EDA 2008, at *1.
Appellant filed Post Conviction Relief Act (PCRA) petitions in 2003 and
2006, which were dismissed by the PCRA courts as untimely. This Court
affirmed both dismissals. See Commonwealth v. Garland, 3254 EDA 2004
(Pa. Super., Mar. 7, 2006) (unpublished memorandum), appeal denied,
911 A.2d 933 (Pa. 2006); Garland, 3027 EDA 2008.
At a hearing on December 21, 2007, regarding Appellant’s second
PCRA petition, the trial court revisited Appellant’s conditions of probation
and parole. N.T., 12/21/07, at 3. Noting that Appellant originally was
ordered at sentencing to obtain sex offenders treatment and evaluation at
the Joseph J. Peters Institute (“JJP”), id. at 10,2 the court ordered Appellant
to “stay away from NUDE [sic] bars, have no association with minors and
complete JJ Peters.” Order, 12/21/07.
On December 13, 2011, Appellant’s probation was continued after a
violation-of-probation hearing. Order, 12/13/11. The order again specified
that Appellant was to “[c]ontinue treatment at JJ Peters Institute and stay
out of trouble.” Id.
____________________________________________
2
The record variously refers to the Institute as “JJP,” “JJPI,” “JJ Peters,” and
“JJ Peters Institute.” The Institute is a treatment center for sex offenders in
Philadelphia. See N.T., 5/30/14, at 28.
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In July, 2012, Appellant signed a form entitled “Standard Special
Conditions for Sex Offenders.”3 The first condition stated:
You must obtain a sex offender evaluation from a sex offender
treatment provider who is approved by probation/parole
supervision staff. You must comply with and successfully complete
all treatment recommendations including polygraph examinations,
resulting from this evaluation. You must pay the cost of the
evaluation, polygraph(s) and treatment. You must also provide
written authorization for release of confidential information
between your sex offender treatment provider and the
Pennsylvania Board of Probation and Parole.
Conditions, 7/23/12, at ¶ 1.
On May 6, 2014, Appellant was arrested for violating his probation,
which is the subject of the instant appeal. N.T. 5/30/14, at 22. The
Commonwealth sought to have Appellant incarcerated as a result of the
violation.
At his violation-of-probation hearing on May 30, 2014, during which
Appellant was represented by counsel, Dage Gardner, an agent for the
Pennsylvania Board of Probation and Parole, testified that Appellant violated
the terms of his probation when he was unsuccessfully discharged from JJP.4
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3
It is unclear from the certified record what sequence of events led to
Appellant signing the form in 2012.
4
Officer Gardner testified that Appellant also might have violated his
probation by registering an incorrect e-mail address, but he expressed doubt
about that conclusion and said that errors in Appellant’s e-mail address
could have been due to a clerical error. N.T. 5/30/14, at 4-5. Officer Gardner
stated:
(Footnote Continued Next Page)
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Appellant was discharged from the treatment program because he failed a
polygraph examination regarding sexual contact with minors and sexual
contact with prostitutes. See id. at 3-4. Officer Gardner stated that the
polygraph test was given to Appellant because he denied having committed
a sexual offense,5 and because he and Appellant’s therapist believed there
were inconsistencies between statements Appellant made during therapy
and his actions. Id. at 9-12. According to Officer Gardner, Appellant initially
refused to take the polygraph test. Id. at 10. Officer Gardner observed that
Appellant had been in treatment programs for approximately one-and-a-half
years and had made no progress towards rehabilitation in that time. Id. at
6. The trial court pointed out that this was Appellant’s third round of sex
offender treatment, after having previously been in the same program in
_______________________
(Footnote Continued)
[Appellant] failed to register his email as required by Megan’s
Law. He did register his email address as required, but had
missing scores or missing letters so his email didn’t match – his
email address didn’t match the email he was using.
. . . I kind of looked into it and, you know, whoever put it
in or registered him could have made a mistake on that. So that
could be – I can’t really . . . ascertain if he did it on purpose
and/or if we made a mistake.
Id. at 4-5.
5
It is unclear from the testimony whether Officer Gardner was asserting that
Appellant denied committing the original offense for which he was
sentenced, or a subsequent offense after his release from incarceration.
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2007 and 2011 and failing to complete the requirements for successful
discharge either time. N.T., 5/30/14, at 6-7.6
Appellant testified that he has been fully cooperative with the
treatment program’s requirements since 2007 and has not committed any
new offenses while on probation. N.T., 5/30/14, at 15-17. Appellant stated
that he did not intend to refuse to take the polygraph test, but, because his
probation officer at the time had called him by someone else’s name and
had mentioned an unrelated LinkedIn account, Appellant initially attempted
to clarify the request for the examination. Id. at 16. Appellant claimed that
he was not asked during the polygraph examination about the underlying
offense, which he has never denied, but was asked only about his current
sexual activity. Id. at 16-17.7 Appellant asserted that he answered truthfully
____________________________________________
6
The trial court reviewed Appellant’s Supervision History from 2011, which,
in discussing Appellant’s unsuccessful discharge from the treatment program
at that time, stated:
[T]he offender will only discuss one of his . . . sex offenses and
denies the other. The offender also avoids discussing a third
arrest that was sexual in nature. Group facilitators indicate that
the offender needs to maintain stable housing in order to lower
his risk and have more community stability.
N.T., 5/30/14, at 18-19, 25. Officer Gardner testified that Appellant was
reincarcerated in 2011 for accessing or possessing pornographic materials.
Id. at 25. Appellant, however, stated that he was unsuccessful in completing
the treatment program in 2011 due to a relapse in alcohol abuse. Id. at 19.
7
“[T]hey asked me about current sexual activity, if I had any girlfriends or
anything like that.” N.T., 5/30/14, at 17.
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during the test and should not have failed. Id. at 33. Appellant also argued
that he was not discharged from the program; he went to a treatment
meeting on a Monday, scheduled his next meeting for Wednesday, and was
arrested on the Tuesday in between. Id. at 32-33.8 If it had not been for the
arrest, Appellant claims, he would have continued attending the treatment
program.
The trial court read into the record an excerpt from Appellant’s latest
supervision history, which stated that in 2013, Appellant obtained
employment building a database for a website that assists children with
school work. N.T., 5/30/14, at 20-21. Appellant explained that he believed
he was permitted to work on this website so long as he disclosed his past
offense to his employer and did not have any contact with children, and he
maintained that he complied with both requirements. Id. at 22-23.9
____________________________________________
8
It is unclear on what date Appellant took and failed the polygraph exam.
We note that Officer Gardner stated that he was notified of the failure and
discharge on May 5, 2014, which was a Tuesday, although Appellant’s
testimony implies that his failure occurred prior to his scheduling of the
Wednesday meeting. See N.T., 5/30/14, at 4.
9
Appellant’s probation requirements mandated that he “not obtain
employment . . . that places [him] in a position where [he is] in charge of or
have control, power or authority over vulnerable persons without the prior
written approval of probation/parole supervision staff and if in treatment, in
agreement with [his] treatment provider. Vulnerable persons are defined as
. . . anyone under the age of 18.” Conditions, 7/23/12, at ¶ 13. It is unclear
from the testimony whether the probation officers or the court considered
his employment with the website to amount to a technical violation.
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The 2013 supervision history also stated that Appellant “admitted he
was not attending DNA at Minsec, nor was he attending AA meetings.” N.T.,
5/30/14, at 21.10 Appellant also had a storage unit which contained a
computer,11 and the supervision history said Appellant had lied to his
probation officer about the status of the computer and about when and why
he went to the storage unit. Id.12 Appellant testified that there was a
misunderstanding about his use of the storage unit due to his homeless
____________________________________________
10
The references apparently were to treatment programs for substance and
alcohol abuse.
11
One of Appellant’s probation requirements was that he “provide
probation/parole supervision staff unlimited access to any computer or other
multimedia device in [his] possession . . . and allow probation/parole
supervision staff to search all programs and records maintained on any
computer or such other device in [his] possession.” Conditions, 7/23/12, at
¶ 14.
12
The report read:
[Appellant was] asked to produce keys to a storage unit. Initially
denied having his access card and keys, but these items were
eventually provided. Upon searching the unit we were able to
find a computer that had a cracked screen, which [Appellant]
had earlier indicated to [a probation officer] that he could not
produce because it was broken. However, he tried to explain he
still uses it despite its being broken.
[Appellant] also questioned as to the last time he visited his unit.
He responded he went there in the morning. After speaking with
U-Haul, it was revealed he scanned in at 3:58 p.m. [Appellant]
continued to lie about why and when he went to his storage unit.
N.T., 5/30/14, at 21.
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status, and that the contents of the computer he kept there were never
searched by probation officers. Id. at 23-24.
Appellant lives in a homeless shelter, and, according to Officer
Gardner, Appellant claimed to go only to: (1) that shelter where he lived, (2)
another shelter that had computers, so that he could do homework, and (3)
a train station, to use a wireless Internet connection. N.T., 5/30/14, at 25-
26. Officer Gardner expressed the belief that Appellant did not try to get a
job so that he could remain homeless, N.T., 5/30/14, at 26, and he also
expressed concern about Appellant’s travels to the train station because
Appellant “would be at the station house where kids and everybody else
roam and do things.” Id. at 26. Although Appellant testified that that he
obtained a degree as a computer programmer after he was placed on
probation, id. at 22, Officer Gardner stated that he never saw evidence that
Appellant graduated from such a program. Id. at 26. Officer Gardner also
raised questions about financial anomalies regarding Appellant. Id. at 25-
26.13 Officer Gardner stated, “[Appellant] keeps his progression being held
back so he can stay in the transient state so he can do what he wanted to
do.” Id. at 27.
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13
Officer Gardner said that searches of Appellant’s belongings revealed
ledgers referencing thousands of dollars that Appellant could not adequately
explain, and that Appellant has “a bunch” of credit cards. N.T., 5/30/14, at
26-27. Officer Gardner stated that Appellant told him he “dips and dabs in
trading stocks and things like that.” Id. at 26.
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At the conclusion of the hearing, the court stated
I don’t think that there is anything else that the Court needs to
hear on this case. You are asking for leniency. The
Commonwealth is asking for incarceration because you’ve had
three attempts now with [JJP]. . . . But you have not been able
to complete this program despite three attempts and that causes
concern, in addition to the other concerns that have been
expressed by [the] officer agent. . . . I do have great concerns
concerning particularly the nature of the offense and the many
reasons why . . . [Appellant] has been unable to successfully
complete treatment.
N.T. 5/30/14, at 27-31. The trial court found Appellant in violation of the
terms of his probation, revoked Appellant’s sentence of probation, and
resentenced him to one to two years’ incarceration followed by five years’
reporting probation. Trial Ct. Op, 9/17/15, at 1.
On June 3, 2014, even though he was still represented by counsel,
Appellant filed a timely pro se notice of appeal. Thereafter, there was an
extremely long delay in transmittal of the certified record to this Court;
much of that delay was caused by confusion in the trial court regarding
Appellant’s counseled status.14 The trial court filed a Rule 1925(a) opinion on
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14
The trial court explained:
On June 3, 2014. Defendant filed a pro se Notice of Appeal from
the May 30, 2014 sentencing order. On August 8. 2014, the
docket reflected that the Superior Court was in receipt of
Defendant’s pro se appeal, although Defendant was represented
by Court appointed counsel, Lawrence J. Bozzelli. Esq. (“Mr.
Bozzelli”). A copy of the receipt was sent to the Defendant’s
attorney of record.
(Footnote Continued Next Page)
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September 15, 2015, in which it did not address the merits of Appellant’s
issues, but instead stated that the appeal should be dismissed because the
_______________________
(Footnote Continued)
On August 28, 2014, Defendant was scheduled for a
reconsideration hearing. Defendant’s counsel, Mr. Bozzelli, did
not appear and Defendant was represented by Robert Muench,
Esq., for the purposes of this hearing only. The hearing was
continued until September 26. 2014, and Mr. Bozzelli was again
appointed to represent Defendant. On September 12, 2014
Defendant was scheduled for a status hearing; Mr. Bozzelli
acknowledged his representation of Defendant. On
September 26, 2014, Defendant appeared for a video hearing in
which he withdrew all pending motions and petitions other than
the pro se appeal of his May 30, 2014 sentencing order.
On December 12, 2014. Defendant sent a letter to the
Superior Court, in which he objected to the delay of his appeal
and offered to submit his own record. On December 31, 2014
the Superior Court forwarded Defendant’s December 12, 2014
letter to counsel.
On January 20, 2015 Defendant filed a PCRA petition. On
January 28, 2015, this office forwarded Defendant’s Notice of
Appeal to Mr. Bozzelli and inquired if he intended to file a Notice
of Appeal on Defendant’s behalf as counsel of record. Mr.
Bozzelli did not respond.
On July 23, 2015, this office asked the Superior Court to
clarify the status of Defendant’s appeal. The Superior Court
responded to this office by telephone and informed Chambers
that Defendant’s appeal was an open matter and that the
Superior Court was waiting for an opinion pursuant Pa. R.A.P.
1925(a).
Tr. Ct. Op. at 1-2. As the trial court noted, Appellant filed a new PCRA
petition to challenge his sentence for the parole violation during this long
period of delay. The petition, which as of the date of the transmittal of the
record had not been addressed by the trial court, is premature, as it was
filed before Appellant’s judgment of sentence for his violation of probation
became final. See 42 Pa.C.S. § 9545.
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notice of appeal was impermissibly filed pro se while Appellant was
represented by counsel. See Trial Ct. Op. at 2-3 (citing Commonwealth v.
Jette, 23 A.3d 1032, 1035 (Pa. 2011); Commonwealth v. Ellis, 626 A.2d
1137 (Pa. 1993)). Once the trial court filed its opinion, the record was
transmitted to this Court on September 21, 2015.
In November 2015, this Court received Appellant’s pro se “Motion for
Change of Counsel,” in which Appellant stated that his appointed counsel
had informed him that he would be taking no further action on the matter.
On December 8, 2015, this Court remanded this case to the trial court for a
Grazier hearing to determine the status of Appellant’s representation. Mot.,
11/10/15; Order, 12/8/15.15 On February 11, 2016, we received a letter
from the trial court which stated that Appellant “withdrew his [Grazier]
hearing on February 8, 2016,” and informed this Court that Appellant would
be represented by private counsel on appeal. Letter, 2/11/16. Through
counsel, Appellant filed a timely Rule 1925(b) statement of errors
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15
We directed the trial court “to conduct an on-the-record determination as
to whether the Appellant’s waiver of counsel is knowing, intelligent and
voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), and to provide written notice of its determination to the Prothonotary
of this Court within sixty (60) days of the date that this Order is filed.”
Order, 12/8/15.
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complained of on appeal. See Order, 3/9/16; Statement, 3/15/16. The trial
court did not file a responsive Rule 1925(a) opinion.16
Appellant raises the following issue:
Did the Court err by finding [Appellant] in violation of his
probation? There was no witness at the violation of
probation hearing other than Dage Gardner, State Agent
for Pennsylvania Board of Probation & Parole. It was not
claimed that [Appellant] committed any sexual act or new
allegations of misconduct. [Appellant] was discharged from
a sex offenders treatment program after he failed a
polygraph test. [Appellant] should have been allowed to
enter a treatment program and should not have been
found in violation of his probation.
Appellant’s Brief at 3.
Appellant contends that his failure of the polygraph test was not
sufficient evidence to establish that he violated his probation. Appellant’s
Brief at 12-15. He maintains that he adhered to all the conditions of
probation, no allegations of new misconduct were made, and the only
evidence that he failed a polygraph examination or was unsuccessfully
discharged from therapy hinges on the testimony of one probation officer.
Id. Appellant does not challenge the allegation that he failed the polygraph
test or that he has entered the treatment program multiple times and has
yet to successfully complete treatment. Appellant provides no specific
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16
We would ordinarily remand this case to the trial court to file a Rule
1925(a) opinion that addresses the merits of the appeal. However, due to
the delay of nearly two years that has occurred between Appellant’s notice
of appeal and the date of this decision, we elect to resolve this case based
on the record before us.
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response to the other allegations made against him at the hearing regarding,
for example, his failure to attend AA meetings.
The Commonwealth maintains that the officer’s testimony regarding
the failure of the polygraph comprised sufficient evidence for the court to
revoke Appellant’s probation. See Commonwealth’s Brief at 12. The
Commonwealth bases its argument in part on Appellant’s failure to cite any
law requiring more than the testimony of one probation officer, and in part
on the lower burden of proof needed at a revocation hearing. Id. (citing
Commonwealth v. Holder, 805 A.2d 499, 503-04 (Pa. 2002)). The
Commonwealth also argues that the revocation of parole was justified
because Appellant failed to register his e-mail address, refused to cooperate
with the request for a polygraph test, was not attending meetings, lied about
the use of his storage unit, and did work for a website that “was suspect, to
say the least.” Id. at 8-11.17
Whether there was sufficient evidence for the trial court to revoke
Appellant’s probation is —
a question of law subject to plenary review. We must determine
whether the evidence admitted at [the hearing] and all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as the verdict winner, is
sufficient to support all elements of the [violations]. A reviewing
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17
The Commonwealth also erroneously contends that Appellant failed to
register his employment for the website. Commonwealth’s Brief at 10-11.
Appellant did register his employment, which led to further inquiry about the
position by his probation officers. See N.T., 5/30/14, at 20.
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court may not weigh the evidence or substitute its judgment for
that of the trial court.
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)
(citation omitted), appeal denied, 945 A.2d 169 (Pa. 2008).
The purpose of a revocation hearing is not to determine whether a
probationer committed a new crime, Commonwealth v. Castro, 856 A.2d
178, 180 (Pa. Super. 2004), but “to establish to the satisfaction of the judge
who granted probation that the individual’s conduct warrants his continuing
as a probationer.” Commonwealth v. Mullins, 918 A.2d 82, 85-86. (Pa.
2007) (citation omitted).
Revocation 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. The Commonwealth establishes a
probation violation meriting revocation when it shows, by a
preponderance of the evidence, that the probationer’s conduct
violated the terms and conditions of his probation, and that
probation has proven an ineffective rehabilitation tool incapable
of deterring probationer from future antisocial conduct.
Perreault, 930 A.2d at 557-58 (citations, brackets, and quotation markets
omitted). Technical violations of probation “can support revocation and a
sentence of incarceration when such violations are flagrant and indicate an
inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
Super. 2007). Sentencing courts must employ a very broad standard in
determining whether probation has been violated. Commonwealth v.
Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citation omitted), appeal
denied, 109 A.3d 678 (Pa. 2015). A revocation of probation hearing is a
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truncated proceeding that takes place without a jury, with a lower burden of
proof, and with fewer due process protections. Mullins, 918 A.2d at 85-86
(citations omitted). “Probation is given by grace, not by right.” Id. at 86.
Applying this standard, we hold Appellant is due no relief. A condition
of Appellant’s probation was that he “[c]ontinue treatment at [JJP].” Order,
12/13/11. Instead, Appellant was discharged from JJP after he failed a
polygraph test that asked about his sexual contact with minors and
prostitutes. We understand that Appellant contends that he answered all
questions on that test truthfully, but the personnel responsible for JJP
concluded otherwise and discharged Appellant, and the trial court treated
that discharge as proper and valid. Because Appellant violated this critical
term of his probation, the trial court acted within its authority in revoking
probation.
The fact that Appellant’s discharge was based in part on his failure of a
polygraph test does not provide grounds for a different result. We have
previously opined that polygraph examinations are —
an essential tool for a therapist whose job it is to reveal an
offender’s deception and encourage him or her to confront his or
her urges and deviant behavior. The test results further the
primary goal of counseling as part of a sexual offender’s
sentence, which is to rehabilitate the offender and prevent
recidivism, with reasonably small incremental deprivations of the
offender’s liberty.
Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007).
Therefore, where a probationer fails or lies during a mandated polygraph
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test or otherwise is shown by the test to have been dishonest with his
therapists, and as a result of the test the probationer has been discharged
from a therapeutic program that is a required condition of his probation,
there is sufficient evidence to revoke his probation.
For example, in Commonwealth v. A.R., 990 A.2d 1 (Pa. Super.
2010), aff’d, 80 A.3d 1180 (Pa. 2013), a specific condition of probation was
that the probationer would follow all treatment recommendations following
his sex-offender evaluation. Those recommendations included that the
probationer participate in sex offender treatment, which included the use of
therapeutic polygraph examinations. 990 A.2d at 3. The probationer was
questioned before, during, and after a polygraph test regarding the sexual
motives for the underlying offense for which he had pleaded guilty, which he
denied. He failed the test, and was subsequently discharged from the
program for his inability to progress in treatment. Id. at 3-4. On appeal, the
probationer challenged both the admissibility of the polygraph results,
because of their unreliability, and the sufficiency of the evidence justifying
his revocation. We affirmed. Id. at 4-5.
Regarding sufficiency, we concluded that —
[The probationer’s] initial probation requirements mandated
him to obtain a sex offender evaluation and to comply with all
treatment recommendations flowing from that evaluation,
which included participation in a program that focused on
treating [the probationer’s] denial and justification behavior
and that administered therapeutic polygraph examinations to
assist in treatment. . . . [The probationer] was discharged from
the Program due to his failure to progress in treatment, i.e.,
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from his inability to admit in treatment the sexual gratification
motive underlying his convictions. [The probationer] steadfastly
denied any sexual gratification motive in his acts, despite his
convictions of the offenses, and he continued to offer varying
justifications for his acts. This pattern of denial and justification
caused [the probationer’s discharge] from the Program. Thus, it
was [the probationer’s] absence from recommended treatment
that resulted in his violation of the requirements of his sentence
of probation. Therefore, we are satisfied that the evidence was
sufficient for the trial court to find that Appellant was in
violation of his probation, and, as such, Appellant’s issue fails.
Id. at 5 (emphasis omitted).
Regarding the reliability and admissibility of the polygraph test, we
opined that —
the results obtained from the administration of a therapeutic
polygraph examination in a sexual offenders’ treatment
program are admissible at a probation revocation hearing as
evidence to support the underlying violation, i.e., a sexual
offender’s lack of amenability to treatment, so long as the
results of that examination are not the sole basis for the
revocation petition . . .
Id. at 7. In A.R., we specified that the polygraph results were not the sole
basis for the revocation petition, but signified the probationer’s overall
resistance to treatment:
[The probationer’s] probation officer . . . explained that the
purpose of the therapeutic polygraph examination was to verify
information provided by a defendant to the Program, and, if the
defendant cannot or will not admit to the behavior reflected
factually in their conviction, the therapeutic polygraph
examination was used as a means to reevaluate the defendant’s
treatment. . . . [The] Probation department did not file a petition
for violation of probation solely on the basis of a sexual
offender’s “failing” of a therapeutic polygraph examination in the
Program, due to the well-documented unreliability of polygraph
examinations. . . . [W]e conclude that the administration of the
therapeutic polygraph examination was a “last ditch” attempt to
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keep Appellant in treatment, rather than having been the reason
for his ultimate discharge.
Id. at 6-7.18 The admissibility issue was appealed to the Supreme Court,
which held that the admission of the exam —
was not improper because the results were offered not as
evidence of appellant’s probation violation, but as background
evidence to explain the actions taken by program staff. . . .
Accordingly, we affirm the Superior Court’s holding that
appellant’s therapeutic polygraph examination results were
admissible at his [violation of probation] hearing for purposes of
helping explain the program’s actions and the treatment
procedures.
A.R., 80 A.3d at 1183-84.19
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18
In A.R., we also instructed that the subject of polygraph questioning must
to be restricted to the underlying offense for which the probationer was
convicted, and not expanded to new, uncharged criminal conduct, in order to
protect the probationer’s Fifth Amendment rights. A.R., 990 A.2d at 7. As
pointed out by the Supreme Court on appeal, that issue was not before us.
A.R., 80 A.3d at 1184 n.6. We note that the Fifth Amendment issue has
since been addressed by the Supreme Court in Commonwealth v. Knoble,
42 A.3d 976 (Pa. 2012), and is not at issue in the instant case.
19
The Supreme Court clarified in a footnote:
We do not reach the Superior Court’s conclusion that therapeutic
polygraph examination results cannot serve as the sole basis for
probation revocation. The value to be accorded to evidence is a
matter for the fact-finder with a well-settled appellate standard
of review. Appellant’s probation violation was supported by
testimony from several treatment specialists involved in his
therapy in addition to the results of his therapeutic polygraph,
and we decline to require specific types of evidence in every
case.
80 A.3d at 1184 n.6.
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Similar to the probationer in A.R., Appellant was required to
participate in a specific sex-offender treatment program which required him
to be honest with his therapists and to take polygraph examinations as part
of his treatment. Appellant was discharged from the program without having
successfully completed it, which constituted a technical violation of the terms
of his probation, and Appellant’s probation was ultimately revoked in large
part based on the discharge.20
Moreover, the discharge marked just one of a series of treatment
failures by Appellant, after two prior unsuccessful rounds of treatment. The
trial court expressed concern regarding these repeated failures. The court’s
reservations about Appellant’s progress while on probation were buttressed
by the other information provided to the court in the probation report — for
example, Appellant’s dishonesty with probation officers surrounding the use
of his storage unit where he kept a computer, and his failure to attend
required meetings.
Appellant’s multiple discharges from the program, in addition to the
information presented by the probation report, sufficiently support the trial
court’s conclusion that “probation has proven an ineffective rehabilitation
tool incapable of deterring [Appellant from engaging in] antisocial conduct,”
Perreault, 930 A.2d at 558, and that Appellant’s violation indicates an
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Unlike in A.R., the contents of the Appellant’s polygraph test were not
admitted during the probation violation hearing.
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J-S84021-16
“inability to reform,” Carver, 923 A.2d at 498. Accordingly, we discern no
abuse of discretion or error of law by the trial court in revoking Appellant’s
probation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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Com. v. Garland, K.
Combined Opinion