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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
WAYNE CHARLES CANADA,
Appellant No. 130 EDA 2017
Appeal from the Judgment of Sentence October 24, 2016
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0000321-2009
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2017
Appellant, Wayne Charles Canada, appeals from the judgment of
sentence imposed following revocation of his probation. We affirm.
The trial court set forth the relevant background of this case as follows:
On March 30, 2009, the Appellant pled guilty to one count
of Dissemination of Explicit Materials to Minor (18 Pa.C.S.A. §[]
5903(c)(1)). On that same date, he was sentenced to serve 36
months of probation.
On May 5, 2010, after the Appellant signed a waiver of his
Gagnon II Hearing,[1] [the trial court] revoked the Appellant’s
original sentence and resentenced the Appellant to serve three
years of probation under the supervision of the Pennsylvania
Board of Probation and Parole. On October 24, 2016, the
Appellant was found in violation of his state probation when he
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*
Retired Senior Judge assigned to the Superior Court.
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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was unsuccessfully discharged from sex offender treatment. He
was resentenced to serve no less than one (1) year nor more than
three (3) years of state prison incarceration.
On December 21, 2016, trial counsel for the Appellant filed
a Notice of Appeal Nunc Pro Tunc, which was granted on the same
day. On January 9, 2017, [the trial court] ordered that a
Statement of Errors Complained of on Appeal be filed within 21
days. Although due on January 30, 2017, appellate counsel did
not file said Statement until February 2, 2017, after inquiry was
made by [the trial court] as to whether or not it would be filed in
accordance with the January 9, 2017 Order. Despite its
untimeliness, [the court considered] the Appellant’s averments
and address[ed] them[.]
(Trial Court Opinion, 3/17/17, at 2-3) (footnotes omitted).2
Appellant raises the following question for our review: “Whether the
evidence presented at the time of the Gagnon II Hearing was sufficient to
prove that [Appellant] had violated the terms of his probation while under
supervision or was the violation based upon [Appellant’s] inability to pay for
the required sexual offender counseling?” (Appellant’s Brief, at 7). Appellant
argues that the trial court’s primary reason for revoking his probation was his
inability to pay for the significant costs of treatment. (See id. at 11-13). He
maintains that his difficult financial circumstances did not constitute sufficient
evidence to show that probation was an ineffective rehabilitation tool or an
inadequate deterrent from future antisocial behavior. (See id. at 13). This
issue does not merit relief.
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2
Because the trial court addressed the issue raised by Appellant on appeal,
we decline to find waiver, and it is unnecessary to remand. See
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016), appeal
denied, 165 A.3d 892 (Pa. 2017).
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Our standard of review is as follows:
A challenge to the sufficiency of the evidence 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 offenses. A reviewing court may not weigh the
evidence or substitute its judgment for that of the trial court.
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. When assessing whether to revoke
probation, the trial court must balance the interests of society in
preventing future criminal conduct by the defendant against the
possibility of rehabilitating the defendant outside of prison. In
order to uphold a revocation of probation, the Commonwealth
must show by a preponderance of the evidence that a defendant
violated his probation. [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 accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.
* * *
The burden of proof for establishing a violation
of probation is a preponderance of the evidence,
lesser than the burden in a criminal trial of proof
beyond a reasonable doubt. But there are other
noteworthy differences between a probation
revocation hearing and a criminal trial, and the
manner in which each proceeding affects the other
also is significant:
The focus [of] a probation hearing, even though
prompted by a subsequent arrest, is whether the
conduct of the probationer indicates that the
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probation has proven to be an effective vehicle to
accomplish rehabilitation and a sufficient deterrent
against future anti-social conduct. It must be
emphasized that a probation revocation hearing is not
a trial: The court’s purpose is not to determine
whether the probationer committed a crime. . . . The
degree of proof necessary for probation revocation is
less than that required to sustain a criminal
conviction. Probation may be revoked on the basis of
conduct which falls short of criminal conduct.
Commonwealth v. Colon, 102 A.3d 1033, 1041-42 (Pa. Super. 2014),
appeal denied, 109 A.3d 678 (Pa. 2015) (citations and quotation marks
omitted).
Here, at the revocation proceeding, the Commonwealth alleged that
Appellant violated the conditions of his probation by failing to remain
compliant with and successfully complete court-ordered sexual offender
treatment. (See N.T. Hearing, 10/24/16, at 4). Theresa Comito, a therapist
at Appellant’s treatment provider, testified that Appellant failed to comply with
program rules regarding attendance, internet access, pornography use, and
alcohol consumption. (See id. at 5-8, 11-12). Specifically, Appellant had
nineteen unexcused absences, used Facebook, viewed pornography, and
drank alcohol periodically. (See id. at 7-8, 11-12, 18). Ms. Comito further
noted that Appellant had crossed relationship boundary lines by having an
affair with his sister-in-law, in his home, while his brother-in-law was present.
(See id. at 11, 19).
With regard to Appellant’s financial difficulties, Ms. Comito testified that
he was informed that he could not be absent from treatment sessions because
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of a lack of money, and he was permitted to participate even if his account
was in arrears. (See id. at 7). She stated that although the program was
trying to work with him on payments, they could eventually reach a point
where he could not attend sessions, if he continued to increase arrears. (See
id. 7-8, 17). However, Ms. Comito explained that Appellant’s discharge from
the program was based on his large number of infractions, lack of progress,
and deceptive behavior. (See id. at 12). Probation Officer Christopher Ross
likewise testified that the reason for Appellant’s discharge was his lack of
overall compliance with program rules. (See id. at 24).
Appellant testified to his financial problems, and explained that he was
forced to quit his job at McDonald’s because he “was supposedly making a
hostile environment there[,]” by having an affair with a co-worker. (Id. at
26; see id. at 29-30, 32). Appellant stated that he had sporadic employment
before he began working at a different McDonald’s, and that he was unable to
pay for treatment sessions. (See id. at 26). Appellant claimed that the
treatment facility informed him that he could not attend sessions if he did not
pay for them, and he believed the reason for his discharge was his inability to
pay for treatment. (See id. at 26-29). However, upon questioning by the
court, Appellant admitted that his inability to pay was not the sole reason for
his discharge, and that there were other issues related to his treatment. (See
id. at 30-31).
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After hearing the testimony, the trial court concluded that the
Commonwealth had demonstrated by a preponderance of the evidence that
Appellant had violated his probation. (See id. at 34). The court explained:
. . . [Appellant] presupposes that the [c]ourt revoked the
Appellant’s probation supervision merely because the Appellant
did not maintain his financial responsibility and ignores the
preponderance of the evidence that the Appellant was not
compliant with sex offender treatment as a whole. As noted by
the [c]ourt and acknowledged by the Appellant during his Gagnon
II Hearing, the Appellant drank alcohol, viewed pornography after
being instructed not to (on at least two occasions), engaged in
social media on the Internet, and violated relationship boundaries
while he was attending sex offender treatment. Though
confronted after the first polygraph failure and after disclosures to
staff and his therapy group, the Appellant did not change his
behavior in treatment and continued to violate the conditions
imposed on him by probation via the treatment provider,
Pennsylvania Forensics. While the Appellant’s outstanding
financial obligation was more than the “normal” balance carried
by other attendees, his unsuccessful release from sex offender
treatment was not based solely on his lack of financial
responsibility. The Appellant’s own behavior while in treatment
“indicates the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient to deter
against future antisocial conduct.” . . .
(Trial Ct. Op., at 6-7) (quoting Colon, supra at 1041).
After review of the record, we discern no abuse of discretion in the trial
court’s decision to revoke Appellant’s probation. The testimony of record was
sufficient to demonstrate, by a preponderance of the evidence, that Appellant
violated numerous rules of the court-ordered treatment program; that he was
discharged because of his overall lack of compliance; and that probation was
ineffective in accomplishing rehabilitation and had not deterred his antisocial
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conduct. See Colon, supra at 1041-42. Therefore, Appellant’s sole issue on
appeal merits no relief. Accordingly, we affirm the judgment of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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