J-S46011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY G. WOODS :
:
Appellant : No. 3450 EDA 2019
Appeal from the Judgment of Sentence Entered October 17, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005414-2002
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 12, 2021
Appellant, Barry G. Woods, appeals from the judgment of sentence of
one to five years’ incarceration, imposed following the revocation of his
probation. We affirm.
In addition to the findings the trial court made at the conclusion of
Appellant’s probation-revocation hearing, see N.T., 7/18/19, at 125-47, the
trial court discussed the evidence supporting Appellant’s probation violation
as follows:
Appellant pled guilty in 2003 to committing sexual crimes
including rape against his two daughters. He began raping them
when they were eight and nine years old[,] and did not stop until
he was arrested when they were twelve and thirteen. Having
completed a term of confinement in prison and probation, he now
serves a consecutive term of probation. In February of 2019[,]
he was notified that he violated two conditions of probation: “I will
conduct myself in a manner that will not create a danger to the
community or myself[,]” and “I will cooperate and participate in
any medical, psychological and/or psychiatric examination, test or
treatment, counseling or education programs, as directed.” See
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N.T.[, 7/18/19, at] 39. He was notified that he violated these
conditions by failing to comply with sex offender treatment and
then being unsuccessfully discharged from sex offender
treatment, id. at 42, having shown little empathy to his victims
and having failed to openly process sexual fantasies about them
in treatment, id. at 43. He was also notified that he violated these
conditions by having unauthorized contact with minor children in
breach of his sentencing order. Id. at 42-43.[1]
As a condition of probation, [A]ppellant was required to attend
and participate in group counseling sessions. For approximately
three years, psychologist Jennifer Bayer conducted the counseling
sessions [A]ppellant attended. [N.T., 6/20/19,] at 82. She
expressly told him that he was expected to participate in the group
discussions for therapeutic purposes. Id. at 84. Appellant did not
participate unless prompted, even after being told he would be
discharged from the counseling program if he failed to participate.
Id. at 85, 93, 94, 101. For example, [A]ppellant began treating
with Ms. Bayer in September of 2015, id. at 82, but in April of
2018[,] he admitted that he had been sexually fantasizing about
his daughters on an ongoing basis for a year without disclosing it
in group therapy, N.T.[, 7/18/19, at] 6-7. When he did
participate, he often minimized the severity of his crimes by
withholding the fact that he physically penetrated his daughters,
and by mentioning their ages when he was arrested[,] rather than
when he began raping them. N.T.[, 6/20/19, at] 86-87. Ms.
Bayer told [A]ppellant at the outset that he was expected to
become aware of cognitive distortions that put him at risk for
relapsing, id. at 84, and she gave [A]ppellant hand-outs and
worksheets to help him gain insight and awareness into his
cognitive distortions, id. at 84, 90, yet he persisted in telling the
group that his daughters enjoyed having sex with him, which is a
form of cognitive distortion that put him at risk of re-offending,
id. at 88, 89-90, 90. Based on her observations over the three
years in which he attended her counseling sessions, Ms. Bayer
concluded that [A]ppellant was not making progress in treatment
because he did not want to rehabilitate himself. Id. at 91. She
specifically noted his lack of effort to process his ongoing deviant
fantasies about having sex with his daughters or to learn to use
mentally healthful [sic] coping skills. Id. at 94, 95. The
____________________________________________
1Appellant had incidental contact with two minors in the lunchroom at his
church. N.T., 7/18/19, at 42, 43-44.
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undersigned found this testimony from Ms. Bayer to be credible
and persuasive.
In September[] 2019[,] Ms. Bayer withdrew as [A]ppellant’s
therapist, id. at 82, and he began group therapy with Forensic
Outpatient Therapist Lance Swaney, N.T.[, 7/18/19, at] 17.
Appellant remained in therapy with Mr. Swaney until February 5,
2019. Id. On that date, Mr. Swaney “challenged” [A]ppellant
about his lack of input during group therapy sessions, his failure
to take initiative in terms of processing his thoughts[,] and his
failure to work on his continuing sexual fantasies about his
daughters. Id. Appellant denied fantasizing about his daughters,
and deceptively minimized his thoughts by saying he had
“memories” of the sexual behaviors with his daughters, but
nothing more. Id. at 18. Mr. Swaney assessed [A]ppellant’s
problem as being a lack of honesty, id. at 20[,] therefore
reinforcing Ms. Bayer’s professional opinion that [A]ppellant did
not want to rehabilitate himself. Because of [A]ppellant’s failure
to process his risk factors, among other things, Mr. Swaney
discharged [A]ppellant from group therapy on February 5, 2019.
Id. at 23. The undersigned found this testimony from Mr. Swaney
to be credible and persuasive.
Trial Court Opinion (TCO), 1/31/20, at 3-5 (emphasis in original).
Following the revocation hearing, the trial court determined that
Appellant violated the terms of his probation, and it sentenced Appellant to a
term of 1-5 years’ incarceration on October 17, 2019. At sentencing,
Appellant was advised that he had a right to file a motion to reconsider his
sentence within 10 days and then a right to appeal it within 30 days. N.T.
Sentencing, 10/17/19, at 63-64. On October 28, 2019, Appellant filed a
timely, post-sentence motion, which the trial court denied on November 4,
2019. In its order denying Appellant’s post-sentence motion, the trial court
stated that Appellant “has the right to appeal within 30 days of the entry of
this order[.]” Order, 11/4/19, at 1 (unnumbered). Appellant subsequently
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filed a notice of appeal on December 3, 2019. On December 4, 2019, the trial
court directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) no more than 28 days after the filing of
its Rule 1925(b) order on the docket, and notified him that his issues would
be deemed waived if not timely filed. Appellant filed his concise statement 30
days later on January 3, 2020.
Before delving into Appellant’s issues, we must address the timeliness
of his notice of appeal and concise statement. First, with respect to his notice
of appeal, we observe that Appellant did not file it within 30 days from the
date of his sentencing. See Pa.R.Crim.P. 708(E) (“The filing of a motion to
modify sentence will not toll the 30-day appeal period[.]”); see also
Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 1998) (stating that
a notice of appeal from a sentence imposed at a revocation hearing must be
filed within thirty days from the date of sentencing). Generally, this Court
may not enlarge the time for filing a notice of appeal. See Pa.R.A.P. 105(b)
(providing that we may not enlarge the time for filing a notice of appeal);
Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) (same).
However, on many occasions, we have refused to quash an untimely appeal
where the trial court misadvised a defendant about the appeal period,
recognizing that such conduct constitutes a breakdown in the court’s
operation. See, e.g., Commonwealth v. Coolbaugh, 770 A.2d 788, 791
(Pa. Super. 2001) (declining to quash untimely appeal, recognizing that the
problem arose as a result of the trial court’s misstatement of the appeal
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period, which operated as a breakdown in the court’s operation) (citations
omitted); see also Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa.
Super. 2020) (en banc) (setting forth cases where this Court has declined to
quash an appeal when the defect resulted from an appellant’s acting in
accordance with misinformation relayed to him or her by the trial court).
Accordingly, we will not quash Appellant’s appeal because of its untimeliness,
as the trial court misadvised Appellant about the appeal period both at
sentencing and in its order denying his post-sentence motion.
Second, it appears that Appellant did not file his concise statement on
time. Notwithstanding, our review of the docket shows that the trial court’s
December 4, 2019 Rule 1925(b) order was not served on Appellant’s counsel
until January 2, 2020. Consequently, Appellant has not waived his claims by
filing his concise statement late, as the record indicates that he was not
promptly served with the trial court’s Rule 1925(b) order. See Pa.R.Crim.P.
114(B)(1) (“A copy of any order or court notice promptly shall be served on
each party’s attorney….”) (emphasis added); Pa.R.Crim.P. 114(C)(2) (stating
that docket entries shall contain the date of service of the order or court
notice); Pa.R.A.P. 108(a)(1) (“[I]n computing any period of time under these
rules involving the date of entry of an order by a court or other government
unit, the day of entry shall be the day the clerk of the court or the office of
the government unit mails or delivers copies of the order to the parties….”).
Having concluded that the facial untimeliness of Appellant’s notice of
appeal and concise statement does not preclude our review, we proceed to
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the merits of his appeal. Appellant raises the following issues for our
consideration:
1. Whether the evidence was sufficient to violate [Appellant’s]
probation because he had incidental contact with minor children.
2. Whether the evidence was sufficient to violate [Appellant’s]
probation for violating a condition imposed by the probation
department, specifically that [Appellant] conduct himself in a
manner that will not create a danger to himself or the community.
3. Whether the evidence was sufficient to violate [Appellant’s]
probation for not complying with sex offender treatment.
4. Whether the evidence was sufficient to prove that probation has
been an ineffective vehicle to accomplish rehabilitation and to
deter against future anti-social conduct.
Appellant’s Brief at 5.
We address Appellant’s issues together, as they all challenge the
sufficiency of the evidence to support the revocation of his probation. It is
well-established that:
When we consider an appeal from a sentence imposed following
the revocation of probation, “[o]ur 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. § 9771(b).” Commonwealth v. Fish, 752 A.2d 921, 923
(Pa. Super. 2000), appeal denied, … 771 A.2d 1279 ([Pa.] 2001)
(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. Commonwealth v.
Smith, … 669 A.2d 1008, 1011 (Pa. Super. 1996). 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. Commonwealth v. Sims, 770 A.2d 346, 350
(Pa. Super. 2001).
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***
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 trial 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.
Commonwealth v. Snyder, 870 A.2d 336, 346-47 (Pa. Super.
2005) (citations and quotation marks omitted).
Commonwealth v. Perreault, 930 A.2d 553, 557-58 (Pa. Super. 2007).
Appellant argues that he did not violate probation by having contact with
children, see Appellant’s Brief at 18, and insists that he did not conduct
himself in a manner that could create a danger to himself or the community.
Id. at 20. He also claims that the evidence was insufficient to prove that he
willfully failed to comply with sex offender treatment. Id. at 24. He says that
his attendance at treatment was excellent, and that his “counselor was in
regular contact with his probation officer, and at no time did the counselor
indicate that [Appellant] was not in compliance or otherwise in jeopardy of
being terminated from the program.” Id. He observes that, “at the probation
violating hearing[,] the notes of [Appellant’s] counselor were reviewed for the
several months prior to his discharge and the notes were very positive.” Id.
(citation omitted). He contends that “[t]here was simply no indication given
to [Appellant] or to his probation officer that [Appellant] was not in compliance
until he was deemed to have been deceitful in response to [a] polygraph
question asking whether he had viewed [his c]hurch’s video surveillance for
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‘voyeuristic purposes[,]’” id. at 24-25, and he maintains that a failed
polygraph cannot justify his violation of probation. Id. at 25.2 Finally,
Appellant claims that the evidence was insufficient to prove that he lacked the
ability to reform, and that probation had been an ineffective vehicle to
accomplish rehabilitation. Id. at 26-27. He asserts that the evidence “does
not support a finding that [he] willfully or flagrantly violated the conditions of
his probation.” Id. at 27.
All of Appellant’s arguments are meritless. First, the evidence was
sufficient to establish that his conduct violated the terms and conditions of his
probation. Here, when sentencing Appellant in 2013 to a term of incarceration
followed by probation, the trial court ordered that “sex offender supervision is
to continue. He’s to comply with sex offender treatment and have no contact
with minor children.” N.T., 7/19/13, at 15.3 However, in February 2019,
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2 By way of further background, Appellant had assisted in installing
surveillance cameras at his church, and had put surveillance cameras on the
outside of his home, which was owned by the church and on the church
property. See N.T., 7/18/19, at 127-28, 132-33. When Appellant participated
in a therapeutic polygraph, the polygraph report indicated that he was
deceptive in answering “no” to the following question: “Since your last
polygraph, have you viewed your surveillance/live feeds for voyeuristic
purposes?” See Appellant’s Brief at 10; N.T., 6/20/19, at 63-65;
Commonwealth’s Exhibit 3 at 8 (unnumbered).
3 As such, to the extent Appellant claims that his probation cannot be revoked
for violating conditions imposed by the probation department and not by the
trial court, we reject his argument. See Appellant’s Brief at 21. The trial
court clearly directed Appellant to comply with sex offender treatment at
sentencing.
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Appellant was unsuccessfully discharged from sex offender treatment. Thus,
he violated the terms of his probation by not complying with sex offender
treatment. See Commonwealth v. Taylor, 2019 WL 6223801, at *5 (Pa.
Super. filed Nov. 14, 2019) (deeming the evidence sufficient to show that the
appellant violated his probation where the appellant conceded that he was
discharged from sex offender treatment).4, 5
Second, the evidence was sufficient to show that probation has proven
ineffective at deterring Appellant from future antisocial conduct. Before he
was unsuccessfully discharged from treatment, Appellant disclosed during his
pre-test interview for his polygraph test on January 28, 2019, inter alia, the
following:
[Appellant] stated he cannot obtain an erection any longer, due
to medical issues and medications. [Appellant] stated that he still
is sexually aroused by sexual fantasies about his daughters when
they were children, but he is unable to masturbate to these
thoughts.
[Appellant] stated he has sexual thoughts of his victims maybe
10%-15% of the times. [Appellant] admitted that he is sexually
attracted to children in general around the ages of 10-14 that he
see[s] on TV or out in public but cannot masturbate to these
thoughts.
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4 See Pa.R.A.P. 126(b) (stating that unpublished, non-precedential
memorandum decisions of the Superior Court filed after May 1, 2019, may be
cited for their persuasive value).
5 Because the evidence supports that Appellant violated his probation by
failing to comply with sex-offender treatment, we need not address his
argument that he did not violate his probation by having contact with children.
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Commonwealth’s Exhibit 3 at 3 (unnumbered pages).6
Despite this admission, Appellant’s former psychologist, Jennifer Bayer,
explained that Appellant rarely discussed these fantasies and attractions at
treatment. She called Appellant “high risk[,]” because he disclosed at the
polygraph test that he was currently having fantasies and sexual attraction to
minors, but did not volunteer that information at treatment. N.T. Trial,
7/18/19, at 8. According to Ms. Bayer, this lack of disclosure meant that
Appellant had not made much progress in treatment and did not want to
rehabilitate himself, as “[t]here was no opportunity for him to process his
distortions or his defense mechanisms due to his inability to self disclose and
process that information….” N.T., 6/20/19, at 91, 92-93. She detailed that
Appellant “very rarely engaged in participation [during sex-offender
treatment] unless prompted to do so[,]” which she said “is very significant,
because that does show some type of noncompliance with the program as
participation is a huge factor as to progress.” Id. at 85. She observed that
Appellant did not engage in self-disclosure, and “was very stoic in nature and
presented as unmotivated. He seemed disconnected with his thoughts and
his feelings.” Id. She noted that, at the outset of treatment, she told
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6 Commonwealth v. A.R., 80 A.3d 1180, 1183 (Pa. 2013) (“Despite prior
case law excluding polygraph results from evidence, the admission here was
not improper because the results were offered not as evidence of [the]
appellant’s probation violation, but as background evidence to explain the
actions taken by program staff. … The polygraph evidence was simply offered
by the Commonwealth to assist the court in attaining a full picture of why
[the] appellant was dismissed from treatment.”).
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Appellant that he was expected to participate, and explained that Appellant
and his group members “are fully aware at the time that they enter treatment
that participation is what improves … rehabilitation. If you’re not willing to
disclose, then there’s a resistance to treatment.” Id. at 84, 93-94.
Nevertheless, Appellant “would just sit there and not volunteer information or
reflect on how his behavior impacted his victims.” Id. at 93.
Further, when the results of the polygraph test came out, Appellant’s
current psychologist, Lance Swaney, testified to the following:
[The Commonwealth:] What happened on February 5th, 2019?
[Mr. Swaney:] That’s when we had the results of his failed
polygraph, and that was the group where I gave him a chance to
process information that emerged from the content of the
polygraph, and at that time I challenged [Appellant] in terms of,
you know, deception related to question three about video feeds,
and also … really primarily challenged him around his lack of input
in group [therapy], and taking initiative in terms of processing,
working on the sexual attraction to children and fantasy about his
daughters.
***
[The Commonwealth:] Was [Appellant] receptive to that
challenge?
[Mr. Swaney:] He denied having any -- using any video feed for
voyeuristic purposes, and he kind of shut down the idea of any
sexual fantasy. His response was that he had memories of the
sexual behavior with his daughters and that was the extent of it.
[The Commonwealth:] Now, are we talking solely about February
5th, 2019, or [Appellant’s] progression as a whole during your
time with him?
[Mr. Swaney:] That was primarily February 5.
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N.T., 7/18/19, at 17-18. In general, throughout treatment, Mr. Swaney
conveyed that Appellant “was not able to be … fully invested in the treatment
process. I mean, effective treatment requires one to be open and honest, and
particularly[,] the longer someone has been in treatment [the more honesty
is needed], to make sure that … the issues that they’re working on are being
addressed.” Id. at 19. He elaborated:
[T]he problem is in terms of [Appellant’s] lack of honesty, in that
[Appellant] would not mention that he had a sexual fantasy or a
sexual memory, as he called it. You know, when we were working
on some different phases of the cycle that we used, there was no
awareness of risk, risk factors toward relapse, and … if he’s not
acknowledging … any kind of deviant fantasies, then … it’s very
challenging trying to get work or progress done at that point.
Id. at 20. Accordingly, the record supports that probation has proven
ineffective at deterring Appellant from future antisocial conduct, given his lack
of honesty and participation in treatment, despite knowing the importance of
those things to his rehabilitation.
Based on the foregoing, we conclude that the trial court did not err or
abuse its discretion in revoking Appellant’s probation. Viewing the evidence
in the light most favorable to the Commonwealth as the verdict winner, the
Commonwealth has established, by a preponderance of the evidence, that
Appellant violated the terms of his probation, and that probation has proven
ineffective at deterring him from future antisocial conduct.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2021
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