Com. v. Peno, K.

J-S58009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

KEVIN PENO,

Appellant No. 1795 MDA 2015

Appeal from the Judgment of Sentence September 10, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002996-1996

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 13, 2016

Appellant, Kevin Peno, appeals from the judgment of sentence entered

on September 10, 2015, following the revocation of his probation. On

appeal, Appellant contends that the evidence was insufficient to sustain the

revocation of probation, that the use of an electronic monitoring bracelet

violated the Fourth Amendment to the United States Constitution and Article

I, Section 8 of the Pennsylvania Constitution, and that his sentence was

excessive and unreasonable. For the reasons discussed below, we affirm the

judgment of sentence.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
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We take the underlying facts and procedural history in this matter

from this Court’s prior memorandums, and our independent review of the

certified record.

On March 18, 1998, following a trial, a jury convicted Appellant of

possession of a firearm by a former convict.1 On April 17, 1998, the trial

court sentenced Appellant to a term of incarceration of not less than two and

one-half nor more than five years. That same day, Appellant entered a

negotiated guilty plea to one count each of rape, involuntary deviate sexual

intercourse, aggravated indecent assault, statutory sexual assault,

endangering the welfare of children, indecent assault, corruption of minors,

and criminal conspiracy.2 The charges arose from Appellant’s abuse of his

two very young stepchildren. (See N.T. Sentencing, 4/17/98 at 8-9).

In accord with the terms of the plea agreement, the trial court

sentenced Appellant to an aggregate term of incarceration (which included

the sentence for possession of a firearm) of not less than seven and one-half

nor more than fifteen years, to be followed by a term of twenty years of

probation. At sentencing, the trial court added an additional stipulation:

“[T]hat the [Appellant] shall not be eligible for parole until he has completed

____________________________________________

1
18 Pa.C.S.A. § 6105.
2
18 Pa.C.S.A. §§ 3121, 3123, 3125, 3122.1, 4304, 3126, 6301, and 903,
respectively.

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whatever sexual offender programming is available to him in the state

correctional system and found to be suitable for parole with regards to these

sexual offenses against children.” (Id. at 23). Appellant did not file a direct

appeal, but did file multiple petitions pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. All were denied.

While incarcerated, Appellant refused to complete a sexual offender’s

program. (See N.T. Revocation Hearing, 6/08/12, at 79). Thus, Appellant

served the maximum of his aggregate incarceration sentence of fifteen

years.

On November 10, 2011, immediately prior to Appellant’s release, the

Dauphin County Adult Probation Department lodged a detainer against

Appellant. The department subsequently issued a notice of alleged

violations of probation claiming that Appellant’s failure to complete sexual

offender treatment rendered him a poor candidate for probation.

On January 4, 2012, the trial court held a Gagnon II hearing.3 At the

hearing, Appellant challenged the propriety of subjecting him to revocation

of probation for non-compliance with an order to complete sex-offender

treatment as a violation of due process. (See N.T. Revocation Hearing,

1/04/12, at 4-6). The trial court continued the matter pending submission

of briefs. (See id. at 14).
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3
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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The revocation hearing resumed on May 22, 2012. At that time, the

Commonwealth presented a supplemental notice of violation based upon

alleged death threats Appellant issued against two trial judges and the

assistant district attorney who prosecuted the underlying action. (See N.T.

Revocation Hearing, 5/22/12, at 6-8). The trial court again continued the

matter to allow Appellant time to address the new allegations. (See id. at

7-8).

The continued hearing took place on June 8, 2012. At the close of the

hearing, the trial court revoked Appellant’s probation based both upon the

failure to complete sexual offender treatment and the death threats. (See

N.T. Revocation Hearing, 6/08/12, at 85-87). The court sentenced Appellant

to an aggregate term of incarceration of not less than seventeen and one-

half nor more than thirty-five years. (See id. at 87-88).

On appeal, this Court vacated the judgment of sentence. (See

Commonwealth v. Peno, No. 1219 MDA 2012, 2013 WL 11254189,

(unpublished memorandum) at *1 (Pa. Super. filed Aug. 16, 2013)). This

Court held that the condition of parole imposed by the trial court was illegal.

(See id. at *4).

Following remand, on July 18, 2014, by agreement of the parties to

expedite Appellant’s release from incarceration, the trial court issued an

order modifying the conditions of Appellant’s probation to include certain

geographic restrictions to be enforced by GPS monitoring. (See N.T.

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Revocation Hearing, 3/16/15, at 1-4; see also Order of Court, 7/18/14, at

unnumbered pages 1-2). On August 1, 2014, the Dauphin County Adult

Probation Department issued a notice of alleged violation. (See N.T.

Revocation Hearing, 3/16/15, at 24-25). On March 16, 2015, a Gagnon II

hearing took place.

At the hearing, Meredith E. Zurin, a probation officer with the

Dauphin County Probation Services Office testified on behalf of the

Commonwealth. (See id. at 6-25). Probation Officer Zurin stated Appellant

was released from incarceration on July 18, 2014 and that, the same day,

she fitted Appellant for an electronic monitoring ankle bracelet and explained

the operation of the GPS component to him. (See id. at 7-8, 18). She told

Appellant not to “mess” with the device and that all he was to do was plug it

in every night for charging. (Id. at 8). She noted that Appellant signed the

rules for use of the system. (See id. at 9). Appellant was to use it until the

probation office could complete procedures for a pre-arranged transfer for

him to New Hampshire. (See id. at 9).

Probation Officer Zurin further testified that, on July 25, 2014, she

received a tamper notification with respect to Appellant’s electronic monitor.

(See id. at 10). She attempted to contact Appellant both via cell phone and

by making the ankle bracelet buzz and beep but did not receive any

response. (See id.). Approximately twenty to twenty-five minutes later,

Probation Officer Zurin located Appellant sitting on a park bench in front of

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his residence. (See id. at 11). When questioned, Appellant claimed that

“[n]othing” was going on with the device. (Id. at 12). Appellant pulled up

his pants and Probation Officer Zurin ascertained that while the ankle

bracelet was still around his leg, “the actual brain or device was not

attached. It was just laying (sic) in his sock.” (Id. at 12). Appellant

claimed that the ankle bracelet irritated him, so he decided to clean it. (See

id.). Probation Officer Zurin showed the court a representative electronic

monitoring appliance and demonstrated that it could not be taken apart

without the use of tools. (See id. at 12-16). Following the hearing, the trial

court adjourned the matter for briefing. (See id. at 27).

Because of the tampering with the appliance, the Commonwealth

charged Appellant with criminal mischief.4 On May 21, 2015, by agreement

of the parties, the trial court held a summary hearing and found Appellant

guilty of criminal mischief for tampering with it. (See N.T. Summary

Hearing, 5/21/15, at 4-6, 29). The trial court immediately sentenced

Appellant to pay the costs of prosecution and a fine of one hundred dollars.

(See id. at 30).

On June 11, 2015, the trial court issued an order finding that Appellant

violated the conditions of his probation. (See Order of Court, 6/11/15). A

sentencing hearing took place on September 10, 2015. The trial court
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4
18 Pa.C.S.A. § 3304.

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sentenced Appellant to a term of incarceration of not less than four years

and two months nor more than twenty years to be followed by a consecutive

term of probation of twenty years. (See N.T. Sentencing, 9/10/15, at 13-

14).

On September 21, 2015, Appellant filed a timely post-sentence

motion. On October 5, 2015, the trial court denied the motion, but based

upon a time-credit error, modified Appellant’s minimum sentence to not less

than three years, nine months and twenty-four days of incarceration. (See

Order, 10/05/15, at unnumbered page 1). The instant, timely appeal

followed on October 8, 2015.5

On appeal, Appellant raises the following questions for our review:6

I. Was not the evidence insufficient to establish either of
the two overlapping bases for the probation revocation when
there was no showing that [Appellant] with the requisite degree
of criminal culpability either damaged the GPS equipment for
purposes of the summary offense at 18 Pa.C.S.[A.] §3304 or
tampered with the GPS equipment for purposes of a charge of
technically violating the conditions of probation?

II. Was the court’s ordering of GPS monitoring as an
amended condition of probation without a hearing and without
[Appellant’s] consent rendered a nullity because: (a) it
contravened the terms of 42 Pa.C.S.[A.] §9771(d); (b) it
contravened [Appellant’s] due process rights; (c) it constituted
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5
On October 14, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on November 2, 2015. See
id. The trial court did not issue an opinion. See Pa.R.A.P. 1925(a).
6
We have reordered the issues in Appellant’s brief.

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an unreasonable search; and (d) [Appellant’s] counsel had no
standing to consent to the entry of such an order and was
coerced into consenting under threat of a continuation of
[Appellant’s] illegal incarceration?

III. Was the imposition of a probation violation sentence of
[not less than three] years, [ten] months, [nor more than
twenty] [sic] years[’] incarceration clearly unreasonable, so
manifestly excessive as to constitute an abuse of discretion, and
inconsistent with the protection of the public, the gravity of the
offenses, and [Appellant’s] rehabilitative needs where the
revocation conduct occurred one week after [Appellant] was
released from prison after serving almost three years of illegal
incarceration and where such conduct involved a summary
offense and technical violation?

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).

In the first issue on appeal, Appellant argues that the evidence was

insufficient to sustain the revocation of probation. (See Appellant’s Brief, at

47). Specifically, Appellant claims that the revocation was partially based

upon his criminal conviction for criminal mischief and the evidence was

insufficient to support that conviction. (See id. at 48-50). Appellant also

contends that the evidence was insufficient to support the technical violation

of tampering with the GPS device because his damage to the device was

minor and unintentional. (See id. at 50-51). We disagree.

The procedures for revoking probation and the rights
afforded to a probationer during revocation proceedings are well
settled:

[w]hen a parolee or probationer is detained
pending a revocation hearing, due process requires a
determination at a pre-revocation hearing, a
Gagnon I hearing, that probable cause exists to
believe that a violation has been committed. Where
a finding of probable cause is made, a second, more

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comprehensive hearing, a Gagnon II hearing, is
required before a final revocation decision can be
made.

The Gagnon II hearing entails two decisions:
first, a “consideration of whether the facts
determined warrant revocation.” Morrissey v.
Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d
484 (1972). “The first step in a Gagnon II
revocation decision . . . involves a wholly
retrospective factual question: whether the parolee
[or probationer] has in fact acted in violation of one
or more conditions of his parole [or probation].”
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,
1761, 36 L.Ed.2d 656 (1973) (citing Morrissey,
supra, 408 U.S. at 484, 92 S.Ct. 2593). It is this
fact that must be demonstrated by evidence
containing probative value. “Only if it is determined
that the parolee [or probationer] did violate the
conditions does the second question arise: should
the parolee [or probationer] be recommitted to
prison or should other steps be taken to protect
society and improve chances of rehabilitation?”
Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93
S.Ct. 1756, (citing Morrissey v. Brewer, supra,
408 U.S. at 484, 92 S.Ct. 2593, 33 L.Ed.2d 484).
Thus, the Gagnon II hearing is more complete than
the Gagnon I hearing in affording the probationer
additional due process safeguards, specifically: (a)
written notice of the claimed violations of [probation
or] parole; (b) disclosure to the [probationer or]
parolee of evidence against him; (c) opportunity to
be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation); (e) a neutral and detached hearing
body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the
evidence relied on and reasons for revoking
[probation or] parole.

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Further, we note that there is a lesser burden of proof in a
Gagnon II hearing than in a criminal trial because the focus of a
violation hearing is whether the conduct of the probationer
indicates that the probation has proven to be an effective vehicle
to accomplish rehabilitation and a sufficient deterrent against
future antisocial conduct. Thus, the Commonwealth need only
prove a violation of probation by a preponderance of the
evidence.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009)

(some citations and quotation marks omitted). Lastly, a claim that the

evidence was insufficient to sustain revocation 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. Perrault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal

denied, 945 A.2d 169 (Pa. 2008) (citation omitted).

Initially, we note that Appellant’s challenge to the sufficiency of the

evidence underlying his conviction for criminal mischief is not properly

before us. The trial court convicted and sentenced Appellant on May 21,

2015. Appellant did not file a post-sentence motion or direct appeal. It is

settled that the date of pronouncement “of sentence [is] the moment from

which [the appellant’s] filing clock commence[s].” Commonwealth v.

Nahavandian, 954 A.2d 625, 630 (Pa. Super. 2008); see also Pa.R.Crim.P.

720. Thus, Appellant’s judgment of sentence became final after the trial

court imposed sentence and Appellant did not file a direct appeal. See

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Pa.R.A.P. 903(3). Therefore, Appellant has waived his right to appeal the

judgment of sentence for criminal mischief and we lack jurisdiction to review

it.

Moreover, Appellant has not provided any legal support for the novel

theory that he can collaterally challenge his criminal conviction in an appeal

of a probation revocation proceeding. To the contrary, this Court has stated,

“an appeal challenging a revocation of probation proceeding cannot be used

to attack the underlying conviction.” Commonwealth v. Cartrette, 83 A.3d

1030, 1036 (Pa. Super. 2013) (en banc) (interpreting Pennsylvania Supreme

Court’s decision in Commonwealth v. Gilmore, 348 A.2d 425, 427 (Pa.

1975)). Thus, Appellant cannot collaterally attack his conviction for criminal

mischief in this appeal.

Appellant also contends that the evidence of the technical violation of

probation presented at the March 16, 2015 revocation hearing was

insufficient.7 (See Appellant’s Brief, at 50-51). We disagree.

As discussed above, at the revocation hearing, Probation Officer Zurin

testified that she had explained the operation of the GPS device to Appellant

and warned him not to tamper with it. (See N.T. Revocation Hearing,

3/16/15, at 7-8, 18). Appellant signed the rules for use of the electronic
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7
We note that Appellant views the evidence in the light most favorable to
himself rather than the light most favorable to the Commonwealth as verdict
winner. See Perrault, supra at 558.

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monitoring device. (See id. at 9). Despite this, on July 25, 2014, Probation

Officer Zurin received a tamper notification with respect to it. (See id. at

10). She was unable to contact Appellant via either cell phone or the

appliance. (See id.). When she located Appellant sitting on a park bench in

front of his residence, he initially lied to her about the condition of the

electronic monitor and attempted to deceive her by demonstrating that the

bracelet was still attached to his leg. (See id. at 11-12). When Probation

Officer Zurin examined the machine, she discovered that it was in pieces,

with parts of it hidden in Appellant’s sock. (See id. at 12). Probation

Officer Zurin demonstrated to the trial court how difficult it was to damage

the mechanism in this manner and that it required the use of tools or

pointed objects to do so. (See id. at 12-16). Viewing the evidence in the

light most favorable to the Commonwealth, this was more than sufficient to

demonstrate that Appellant knowingly tampered with the electronic

monitoring system despite being warned not to touch it. Appellant’s first

claim lacks merit. See Perrault, supra at 558.

In the second issue, Appellant argues that the imposition of the added

condition of probation, the GPS monitoring, was unconstitutional and that

this, therefore, nullifies any subsequent violation of that condition. (See

Appellant’s Brief, at 34). We disagree.

Even if we were to assume, arguendo, that imposition of the GPS

monitoring was unconstitutional, (or for that matter, illegal or improper),

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Appellant provides no support for his claim that this nullifies his revocation

of probation. The trial court revoked Appellant’s probation based upon his

conviction for criminal mischief and upon his technical violation of probation

for tampering with the GPS device. There is simply no support in law for the

concept that you can challenge the constitutionality of GPS monitoring as a

condition of probation by damaging a GPS device and forcibly removing it.

We find helpful for the purpose of analogy, the Pennsylvania Supreme

Court’s decision in Commonwealth v. Biagini, 655 A.2d 492 (Pa. 1995).

In Biagini, our Supreme Court stated:

[t]he defendants’ argument in support of their position that the
convictions on resisting arrest and aggravated assault must be
reversed is set forth in the following syllogistic form: as the
crime of resisting arrest cannot be sustained where the
underlying arrest is unlawful, their convictions for resisting arrest
cannot stand; and since the underlying arrest was unlawful they
were justified in physically resisting the police; therefore, as
their resistance was justified it cannot become the basis for their
convictions for aggravated assault. This syllogism, although
facially appealing, is fatally flawed. The appeal of this argument
lies within the validity of the first premise; however, for the
reasons more thoroughly set forth hereinafter, the secondary
premise and thus, the conclusion are invalid.

Biagini, supra at 496.

While finding that both defendants’ arrests were unlawful, the Court

noted that this did not justify the use of force in resisting that arrest, and it

therefore affirmed the defendants’ convictions for aggravated assault arising

out of that illegal arrest. See id. at 499-500; see also Commonwealth v.

Jackson, 924 A.2d 618, 621 (Pa. 2007) (“The initial illegality does not give

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the arrestee a free pass to commit new offenses without responsibility.

Neither does that initial illegality ‘poison the tree,’ preventing lawful police

conduct thereafter—the new crimes are new trees, planted by appellee, and

the fruit that grows from them is not automatically tainted by the initial lack

of probable cause.”).

We find the reasoning in Biagini and Jackson both persuasive and

relevant. Even if the imposition of the GPS monitoring was illegal, which we

do not decide, Appellant did not have a “free pass” to commit criminal

mischief by damaging the device or to violate his probation by tampering

with it. Jackson, supra at 621; see also Biagini, supra at 499-500.

Appellant’s second claim lacks merit.

In the third issue, Appellant challenges the discretionary aspects of his

sentence.8 In Cartrette, supra, an en banc panel of this Court held that

“this Court’s scope of review in an appeal from a revocation sentencing

includes discretionary sentencing challenges.” Cartrette, supra at 1034.

Thus, Appellant’s claim is properly before us.

The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant

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8
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.

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challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 13-15). Appellant argues that his sentence was

manifestly excessive because his technical violation of probation did not

justify a sentence of total confinement. (See id. at 32-33). He also argues

that the trial court relied on impermissible factors in imposing sentence.

(See id. at 33).

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Initially, Appellant has waived his claim that the trial court relied on

impermissible factors in imposing sentence. (See Appellant’s Brief, at 55-

58). This Court has long held an appellant waives any discretionary aspects

of sentence issue not raised in a post-sentence motion; further, an appellant

cannot raise an issue for the first time on appeal. See Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 831 A.2d 599

(Pa. 2003) (finding claim sentencing court did not put sufficient reasons to

justify sentence on record waived where issue was not raised in post-

sentence motion); see also Pa.R.A.P. 302(a). The only claim Appellant

raised in his post-sentence motion was that his technical violation of

probation did not justify a sentence of total confinement. (See Appellant’s

Post Sentence Motions, 9/21/15, at unnumbered page 2). Thus, Appellant

waived this claim. See Mann, supra at 794.

Appellant next claims that his sentence was manifestly excessive

because he only committed a technical violation of probation, which did not

justify a sentence of total confinement. (See Appellant’s Brief, at 53-55).

Appellant properly preserved this claim by raising it in his post-sentence

motion. (See Appellant’s Post Sentence Motions, 9/21/15, at unnumbered

page 2); see also Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.

Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013) (defendant must

preserve argument that record is devoid of evidence supporting sentence of

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total confinement as challenge to discretionary aspects of sentence). This

claim raises a substantial question. See id.

[T]he imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. . . . Once probation has been revoked, a sentence of
total confinement may be imposed if any of the following
conditions exist: (1) the defendant has been convicted of
another crime; or (2) the conduct of the defendant indicates that
it is likely that he will commit another crime if he is not
imprisoned; or, (3) such a sentence is essential to vindicate the
authority of court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citations omitted).

Here, Appellant’s argument relies on the erroneous supposition that

this Court would overturn his conviction for criminal mischief. (See

Appellant’s Brief, at 54). It was both his new criminal conviction and the

technical violation of probation that supported a sentence of total

confinement. Moreover, at sentencing, the trial court found that all three

conditions mandating total confinement applied. (See N.T. Sentencing,

9/10/15, at 13). Our review of the record demonstrates no abuse of

discretion in this finding, given that Appellant was on probation for

approximately one week, when he deliberately damaged the GPS monitoring

device. Further, his history demonstrates that he served the maximum

sentence for raping two young children because he was unwilling to comply

with the requirements of sex offender treatment. (See id.). Thus, the

record amply supports Appellant’s sentence of total confinement and his

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claim that the sentence was excessive and unreasonable is meritless. See

Edwards, supra at 327.

Therefore, for the reasons discussed above, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2016

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