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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM E. TRAVIS, : No. 2101 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, November 9, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002337-2009
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 24, 2018
William E. Travis appeals from the judgment of sentence entered in
the Court of Common Pleas of Philadelphia County on November 9, 2016,
following revocation of his probation. We vacate the judgment of sentence
and remand for re-sentencing consistent with this memorandum.
The trial court set forth the following:
On January 28th, 2010, [appellant] pled guilty to
Forgery[1] before the Honorable Roxanne Covington,
and was sentenced to five (5) years of probation.
On November 11th, 2011, following [appellant’s] first
Violation of Probation (“VOP”), Judge Covington
revoked [appellant’s] probation and imposed a new
sentence of five (5) years of probation. Following
the imposition of this sentence, [appellant’s]
probation was transferred to this Court. On
September 24th, 2014, following a second VOP
hearing, this Court revoked [appellant’s] probation
1 18 Pa.C.S.A. § 4101(a)(1).
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and imposed a new sentence of five (5) years of
probation. After [appellant] violated his probation
for a third time, this Court sentenced [appellant] on
November 9th, 2016 to three to six (3-6) years[’]
confinement following by one (1) year probation.
[Appellant] filed a motion for reconsideration of the
VOP sentence on November 21st, 2016, followed by a
timely [PCRA2] petition on March 27th, 2017. This
Court granted [appellant’s] PCRA petition and
reinstated his appellate rights on June 26th, 2017.
[Appellant], through counsel, filed a Notice of Appeal
to the Superior Court on June 30th, 2017. This Court
issued a [Pa.R.A.P.] 1925(b) Order on July 11th,
2017, and [appellant] filed a [Rule 1925(b)]
Statement of Errors Complained of on Appeal on
July 17th, 2017.
Trial court opinion, 7/18/17 at unnumbered pp. 1-2.
Thereafter, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Did the trial court abuse its discretion by finding
[a]ppellant in technical violation when the evidence
presented at the [VOP] hearing did not establish a
violation occurred and if such violation occurred the
trial court did abuse its discretion by sentencing
[a]ppellant to an excessive and unreasonable three
to six year sentence when the record is lacking in
justification for the sentence?
Appellant’s brief at 3.
In reviewing a revocation of probation, we employ the following
standard of review:
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
2 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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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.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014)
(quotation marks and citations omitted).
Here, the record reflects that Theresa Slaughter,3 the mother of two of
appellant’s children (ages six and two), obtained a protection from abuse
(“PFA”) order against appellant on August 15, 2016, in connection with an
incident that occurred on August 10, 2016. (Notes of testimony, 11/9/16 at
5, 9, 15; Gagnon II summary, 8/24/16 at 2.) The PFA order was the
impetus for the VOP hearing. At the hearing, Ms. Slaughter testified as to
the facts that gave rise to the entry of the PFA order. Ms. Slaughter testified
that appellant had brought his new girlfriend to her home and “[w]e had an
altercation in my home with his -- another girl.” (Notes of testimony,
11/9/16 at 6.) During Ms. Slaughter’s direct examination, she indicated that
appellant was somehow involved in the altercation, that she did not know
the extent of appellant’s involvement in the altercation, but that she knew
3 The VOP hearing transcript identifies the complainant as
“Theresa Slaughter.” The August 24, 2016 Gagnon II summary, however,
identifies the complainant as “Dareisha Slaughter.”
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that she and appellant’s new paramour “had a fight.” (Id. at 6-7.)
Following testimony, the trial court found appellant in technical violation of
his probation, revoked appellant’s probation, and sentenced appellant to
three to six years of imprisonment, followed by one year of probation. (Id.
at 19.)
Appellant contends that the trial court found a probation violation
“based on scant information” and that “there is no information indicating
[a]ppellant ever assaulted [Ms. Slaughter] or much less an arrest being
made.” (Appellant’s brief at 16.) Appellant further contends that “[i]t is
unclear whether the court found a violation of the PFA [order] or an assault
had occurred.” (Id.) In its brief, the Commonwealth “agrees with
[appellant] that the evidence was insufficient to support his revocation of
probation, because it did not establish that he assaulted Ms. Slaughter.”
(Commonwealth’s brief at 5.)
Our review of the record reveals that the trial court based its
revocation of appellant’s probation on insufficient evidence of a technical
violation of his probation because the evidence presented merely
demonstrated that appellant’s new girlfriend and his former paramour
engaged in a physical altercation with each other. Although the record
reveals that appellant was present during this physical altercation between
the two women, it does not demonstrate that appellant participated or that
he physically assaulted Ms. Slaughter.
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Therefore, because the Commonwealth failed to show by a
preponderance of the evidence that appellant was in technical violation of his
probation, we are constrained to find that the trial court erred in revoking
appellant’s probation.
Judgment of sentence vacated. Case remanded for re-sentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/18
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