Opinion
J-S19024-18 No. 1694 EDA 2017
04-20-2018
COMMONWEALTH OF PENNSYLVANIA v. TYREEK CAMP Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010232-2011 BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. MEMORANDUM BY NICHOLS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Tyreek Camp appeals from the judgment of sentence entered following a violation of his probation (VOP). He contends the evidence was insufficient to establish a probation violation and that his sentence was excessive. We affirm.
We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op. at 1-5. Briefly, Appellant was originally sentenced to two-and-a-half to five years' imprisonment followed by two years' probation for carrying a firearm without a license and a consecutive sentence of three years' probation for carrying a firearm on the public streets or property of Philadelphia. The court held a VOP hearing on October 11, 2016, after which the court found Appellant violated his probation. Following a presentence investigation, on December 16, 2016, the court sentenced Appellant to one to two years' imprisonment for carrying a firearm without a license and a consecutive five years' probation for carrying a firearm on the public streets or property of Philadelphia.
18 Pa.C.S. § 6106(a)(1). The maximum sentence for a third-degree felony is seven years' imprisonment. 18 Pa.C.S. § 1103(3).
18 Pa.C.S. § 6108. The maximum sentence for a first-degree misdemeanor is five years' imprisonment. 18 Pa.C.S. § 1104(1).
On December 21, 2016, Appellant filed a motion to reconsider his VOP sentence, which challenged the weight and sufficiency of evidence. Appellant's Post-Sentence Mot., 12/21/16, at 1-2 (unpaginated). Appellant's motion did not challenge the discretionary aspects of his sentence or contend that the trial court failed to comply with 61 Pa.C.S. § 6138, also known as Act 122, which governs recommitment following a violation of parole. The court denied Appellant's post-sentence motion on December 23, 2016.
Following reinstatement of his direct appeal rights, Appellant appealed from the judgment of the VOP sentence, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement, which challenged, among other things, the court's imposition of "consecutive, aggravated range sentences." Pa.R.A.P. 1925(b) Statement, 1/31/17.
Appellant raises the following issues in his brief:
1. Should [Appellant] be awarded an arrest of judgment on all charges as there is insufficient evidence to sustain that a technical violation of probation occurred. The Commonwealth did not prove that [Appellant's] actions rose to the level of assaultive behavior.Appellant's Brief at 4.
2. Should [Appellant] be awarded a new sentencing hearing as the Court imposed a sentence for a technical violation of probation without consideration of sentencing guidelines, the State Parole Board Guidelines, or other relevant sentencing factors.
We summarize Appellant's arguments for both of his issues. He maintains that his statements, "Shit's bout to go down" or "This shit just got real," were made while he "was consumed by transitory anger." Id. at 9. He explains that he was present at the court (to support his half-brother, who was the defendant), when he witnessed his mother's arrest. Id. at 6, 9. Further, Appellant notes, he was present when the court set his mother's bail at $1 million and was taken into custody. Id. at 6, 9. Appellant maintains that at the bail hearing, a police officer pushed him away when he attempted to approach his mother. Id. at 9-10. Appellant also claims that standing at the elevator, as discussed in the trial court opinion, "is not physically or verbally assaultive." Id. at 10.
Appellant's mother was disrupting the trial, so the court had ordered her to stay at least 300 feet away from the courthouse. Trial Ct. Op. at 3.
With respect to his sentencing challenge, Appellant contends for the first time on appeal that the trial court violated 61 Pa.C.S. § 6138(d)(3)(i) by sentencing him to a term of imprisonment exceeding six months. Id. at 11. Accordingly, Appellant believes he is entitled to a new sentencing hearing. Id. at 12.
This Section provides:
(d) Recommitment to correctional facility.—A technical violator recommitted to a State correctional institution or a contracted county jail under subsection (c) shall be recommitted as follows:
. . .
(3) Except as set forth in paragraph (4) or (5), the parolee shall be recommitted for one of the following periods, at which time the parolee shall automatically be reparoled without further action by the board:
61 Pa.C.S. § 6138(d)(3) (emphasis added).(i) For the first recommitment under this subsection, a maximum period of six months.
The Commonwealth elected to not argue that Appellant waived the issue.
We state the standard of review for a challenge to the sufficiency of evidence for a technical probation violation:
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.
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. The 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.Commonwealth v. Colon , 102 A.3d 1033, 1041 (Pa. Super. 2014) (citations, quotation marks, and brackets omitted).
With respect to assaultive behavior, in Commonwealth v. Simmons , 56 A.3d 1280 (Pa. Super. 2012), this Court found persuasive the reasoning of the Commonwealth Court in Malarik v. Pa. Bd. of Prob. & Parole , 25 A.3d 468, 470 (Pa. Cmwlth. 2011):
the Commonwealth Court[] has long recognized that assaultive behavior is broader than the crime of assault for purposes of revocation of parole[.]
Although the [Board of Probation and Parole's] regulations require that parolees refrain from assaultive behavior, the regulations do not provide a definition of assault. However, the Commonwealth Court recognizes assaultive behavior encompasses a broader category of actions than would the crime of assault, and thus actions that would not constitute a crime may nonetheless be sufficient grounds for revocation of parole.
Moreover, in the context of parole violations, assaultive behavior is defined under the ordinary dictionary definition of assault. The Commonwealth Court has also reached such a conclusion in the absence of specific testimony that the victim was, in fact, in apprehension of bodily harm.Simmons , 56 A.3d at 1284 (citations, formatting, ellipses, quotation marks, and original brackets omitted). The Simmons Court applied the above rationale for revoking parole to affirm a finding of assaultive behavior that resulted in the revocation of the defendant's probation. Id. at 1285. We add that the dictionary definition of assault is "a violent attack with physical means [or] nonphysical weapons," or "an apparently violent attempt or a willful offer with force or violence to do hurt to another without the actual doing of the hurt threatened." Webster's Third New International Dictionary 130 (1986).
With respect to Appellant's case, after careful review of the parties' briefs, the record, and the decision by the Honorable Leon W. Tucker, we affirm Appellant's sufficiency challenge on the basis of the trial court's decision. See Trial Ct. Op. at 5-6.
We turn to Appellant's sentencing challenge under 61 Pa.C.S. § 6138, which is entitled "Violation of terms of parole." 61 Pa.C.S. § 6138. We need not resolve whether Appellant's argument is a preserved challenge to the discretionary aspects of his sentence or a challenge to the legality of his sentence because Section 6138 does not apply: Appellant did not violate the terms of his parole. As Appellant himself recognized, he violated the terms of his probation—not parole. Appellant's Brief at 7-8. Probation is not identical to parole, as the Pennsylvania Supreme Court explained:
a court faced with a violation of probation may impose a new sentence so long as it is within the sentencing alternatives available at the time of the original sentence. In contrast, a court faced with a parole violation must recommit the parolee to serve the remainder of the original sentence of imprisonment, from which the prisoner could be reparoled.Commonwealth v. Holmes , 933 A.2d 57, 59 n.5 (Pa. 2007) (citations omitted). Appellant cannot argue he is entitled to relief based on a statute governing parole.
Judgment of sentence affirmed.
Judge Shogan joins in this memorandum.
Judge Platt concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/20/18
Image materials not available for display.