J-A06036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER ALBERT KOGER : : Appellant : No. 251 WDA 2020
Appeal from the Judgment of Sentence Entered January 22, 2020 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000233-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 31, 2021
Christopher Albert Koger (Appellant) appeals from the judgment of
sentence entered in the Washington County Court of Common Pleas, following
his second revocation of parole for his conviction of possession of child
pornography1 and his second revocation of probation for his conviction of
criminal use of a communication facility.2 Appellant challenges the sufficiency
of evidence for his probation and parole revocations, arguing the
Commonwealth did not establish the specific conditions of his parole and
probation or that he was subject to these conditions. We remand for the trial
court to prepare a supplemental opinion addressing whether it imposed, or
____________________________________________
1 18 Pa.C.S. § 6312(d).
2 18 Pa.C.S. § 7512(a). J-A06036-21
advised Appellant of, the terms of his probation and parole at the time of the
initial sentencing.
On August 21, 2018, Appellant pled guilty to possession of child
pornography and criminal use of a communication facility. For his conviction
of possession of child pornography, Appellant was sentenced to eight to 23
months’ incarceration. N.T. Plea & Sentencing, 8/21/18, at 16. Appellant was
awarded sentencing credit and was immediately paroled to the Washington
County Adult Probation Office. Id. at 17. For criminal use of a communication
facility, Appellant was sentenced to a consecutive term of three years’
probation. Id. At sentencing, the trial court stated:
As special conditions of this sentence, [Appellant] shall have no contact with any victims or persons displayed in the images. [Appellant] shall submit to a drug and alcohol evaluation and complete any recommended treatment; perform 100 hours of [c]ommunity [s]ervice and complete sexual offender counseling.
N.T., 8/21/18; See Order of Sentence 8/21/18.
On December 21, 2018, the trial court revoked Appellant’s probation
and parole after he stipulated to committing technical violations.
On September 16, 2019, a second petition alleging Appellant violated
his parole and probation was filed. The petition alleged Appellant violated
“Condition 7, [relating to refraining] from any assaultive, threatening, or
harassing behavior[,]” “Condition 1, [failing] to permit a [probation officer] to
visit [him at his] residence [ ] and submit to warrantless searches of [his]
residence, vehicle, property, and/or [his] person[,]” and Condition 2,
-2- J-A06036-21
“[relating to violations of] criminal laws or ordinances.” Adult Probation
Office’s Petition for the Revocation of Parole and Probation, 9/16/19, at 2.
The trial court held a revocation hearing on November 4, 2019. Officer
Jeremy Bardo, (PO Bardo) testified that he searched Appellant’s phone where
he found pornographic images of a minor Appellant had been communicating
with via text messages. See N.T., 11/4/19, at 14-15. Before retrieving his
phone, Appellant stated the “probation office makes up rules.” Id. at 9. PO
Bardo testified Appellant had “been provided with a copy of the rules of the
adult probation office . . . that [Appellant] signed.” Id. After retrieving
Appellant’s phone, PO Bardo stated Appellant was agitated and subsequently
put Appellant in custody due to his safety. Id. at 10. Once at the jail,
Appellant threatened another officer. PO Bardo stated Appellant also had an
incident prior to this where he had to be removed from a community service
office where he was working in the “FITS Program.” Id. at 7-9. The trial court
found Appellant committed technical violations and revoked Appellant’s parole
and probation. Id. at 34.
The trial court conducted a resentencing hearing on January 22, 2020,
and resentenced Appellant to serve the “balance of his maximum sentence”
on his conviction for possession of child pornography and 1 to 3 years’
confinement for his conviction of criminal use of a communication facility.
N.T., 1/22/20, at 24.
-3- J-A06036-21
Appellant filed this timely counseled appeal and complied with the
court’s order to file a Pa.R.A.P.1925(b) statement of errors complained of on
appeal.3
Appellant presents the following three issues for our review:
1. Whether the trial court erred in revoking [Appellant’s] parole at count 1 where the Commonwealth failed to produce sufficient evidence establishing what the actual terms and conditions of [Appellant’s] parole were and [Appellant] had not been charged with or convicted of a new offense?
2. Whether the trial court abused its discretion in revoking [Appellant’s] probation at count 2 where the Commonwealth failed to produce sufficient evidence establishing what the actual terms and conditions of [Appellant’s] probation were and [Appellant] had not been charged with or convicted of a new offense?
3. Whether [Appellant’s] parole and probation revocation sentences are illegal where the same were imposed without authority as a result of the commonwealth’s failure to prove that [Appellant] violated any actual terms or conditions of his probation or parole?
Appellant’s Brief at 6.
In his first two issues, Appellant argues the Commonwealth failed to
present any “evidence of what the actual terms and conditions of” his parole ____________________________________________
3 On March 4, 2020, the trial court ordered a Pa.R.A.P.1925(b) statement of errors complained of on appeal to be filed within 21 days. Appellant requested an extension, which the court granted on March 31, 2020. Appellant then filed his 1925(b) statement on April 27, 2020.
We note that Appellant untimely submitted his request for an extension to file his 1925(b) statement. However, we may still address Appellant’s claims. See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016) (“[W]here the trial court addresses the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits.”).
-4- J-A06036-21
and probation were. Appellant’s Brief at 17. Appellant argues the testimony
at his revocation hearing was not sufficient to establish the conditions he was
subject to nor the “rules [he] was required to follow[.]” Id. at 21-22, 26. The
Commonwealth offered evidence pertaining to the incidents with Appellant’s
phone contents, being removed from the community center, and threatening
another officer. However, the Commonwealth offered no evidence
establishing Appellant’s specific conditions of his parole or probation.
Appellant also points out he was not charged or convicted with any new
offense. Thus, he reasons, “the Commonwealth could not, by necessity, prove
[he] violated a term of condition of his parole” or probation. Id. at 26.
Appellant relies on Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa.
2019) (“[A] court may find a defendant in violation of probation only if the
defendant has violated one of the ‘specific conditions’ of probation [or parole]
Free access — add to your briefcase to read the full text and ask questions with AI
J-A06036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER ALBERT KOGER : : Appellant : No. 251 WDA 2020
Appeal from the Judgment of Sentence Entered January 22, 2020 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000233-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 31, 2021
Christopher Albert Koger (Appellant) appeals from the judgment of
sentence entered in the Washington County Court of Common Pleas, following
his second revocation of parole for his conviction of possession of child
pornography1 and his second revocation of probation for his conviction of
criminal use of a communication facility.2 Appellant challenges the sufficiency
of evidence for his probation and parole revocations, arguing the
Commonwealth did not establish the specific conditions of his parole and
probation or that he was subject to these conditions. We remand for the trial
court to prepare a supplemental opinion addressing whether it imposed, or
____________________________________________
1 18 Pa.C.S. § 6312(d).
2 18 Pa.C.S. § 7512(a). J-A06036-21
advised Appellant of, the terms of his probation and parole at the time of the
initial sentencing.
On August 21, 2018, Appellant pled guilty to possession of child
pornography and criminal use of a communication facility. For his conviction
of possession of child pornography, Appellant was sentenced to eight to 23
months’ incarceration. N.T. Plea & Sentencing, 8/21/18, at 16. Appellant was
awarded sentencing credit and was immediately paroled to the Washington
County Adult Probation Office. Id. at 17. For criminal use of a communication
facility, Appellant was sentenced to a consecutive term of three years’
probation. Id. At sentencing, the trial court stated:
As special conditions of this sentence, [Appellant] shall have no contact with any victims or persons displayed in the images. [Appellant] shall submit to a drug and alcohol evaluation and complete any recommended treatment; perform 100 hours of [c]ommunity [s]ervice and complete sexual offender counseling.
N.T., 8/21/18; See Order of Sentence 8/21/18.
On December 21, 2018, the trial court revoked Appellant’s probation
and parole after he stipulated to committing technical violations.
On September 16, 2019, a second petition alleging Appellant violated
his parole and probation was filed. The petition alleged Appellant violated
“Condition 7, [relating to refraining] from any assaultive, threatening, or
harassing behavior[,]” “Condition 1, [failing] to permit a [probation officer] to
visit [him at his] residence [ ] and submit to warrantless searches of [his]
residence, vehicle, property, and/or [his] person[,]” and Condition 2,
-2- J-A06036-21
“[relating to violations of] criminal laws or ordinances.” Adult Probation
Office’s Petition for the Revocation of Parole and Probation, 9/16/19, at 2.
The trial court held a revocation hearing on November 4, 2019. Officer
Jeremy Bardo, (PO Bardo) testified that he searched Appellant’s phone where
he found pornographic images of a minor Appellant had been communicating
with via text messages. See N.T., 11/4/19, at 14-15. Before retrieving his
phone, Appellant stated the “probation office makes up rules.” Id. at 9. PO
Bardo testified Appellant had “been provided with a copy of the rules of the
adult probation office . . . that [Appellant] signed.” Id. After retrieving
Appellant’s phone, PO Bardo stated Appellant was agitated and subsequently
put Appellant in custody due to his safety. Id. at 10. Once at the jail,
Appellant threatened another officer. PO Bardo stated Appellant also had an
incident prior to this where he had to be removed from a community service
office where he was working in the “FITS Program.” Id. at 7-9. The trial court
found Appellant committed technical violations and revoked Appellant’s parole
and probation. Id. at 34.
The trial court conducted a resentencing hearing on January 22, 2020,
and resentenced Appellant to serve the “balance of his maximum sentence”
on his conviction for possession of child pornography and 1 to 3 years’
confinement for his conviction of criminal use of a communication facility.
N.T., 1/22/20, at 24.
-3- J-A06036-21
Appellant filed this timely counseled appeal and complied with the
court’s order to file a Pa.R.A.P.1925(b) statement of errors complained of on
appeal.3
Appellant presents the following three issues for our review:
1. Whether the trial court erred in revoking [Appellant’s] parole at count 1 where the Commonwealth failed to produce sufficient evidence establishing what the actual terms and conditions of [Appellant’s] parole were and [Appellant] had not been charged with or convicted of a new offense?
2. Whether the trial court abused its discretion in revoking [Appellant’s] probation at count 2 where the Commonwealth failed to produce sufficient evidence establishing what the actual terms and conditions of [Appellant’s] probation were and [Appellant] had not been charged with or convicted of a new offense?
3. Whether [Appellant’s] parole and probation revocation sentences are illegal where the same were imposed without authority as a result of the commonwealth’s failure to prove that [Appellant] violated any actual terms or conditions of his probation or parole?
Appellant’s Brief at 6.
In his first two issues, Appellant argues the Commonwealth failed to
present any “evidence of what the actual terms and conditions of” his parole ____________________________________________
3 On March 4, 2020, the trial court ordered a Pa.R.A.P.1925(b) statement of errors complained of on appeal to be filed within 21 days. Appellant requested an extension, which the court granted on March 31, 2020. Appellant then filed his 1925(b) statement on April 27, 2020.
We note that Appellant untimely submitted his request for an extension to file his 1925(b) statement. However, we may still address Appellant’s claims. See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016) (“[W]here the trial court addresses the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits.”).
-4- J-A06036-21
and probation were. Appellant’s Brief at 17. Appellant argues the testimony
at his revocation hearing was not sufficient to establish the conditions he was
subject to nor the “rules [he] was required to follow[.]” Id. at 21-22, 26. The
Commonwealth offered evidence pertaining to the incidents with Appellant’s
phone contents, being removed from the community center, and threatening
another officer. However, the Commonwealth offered no evidence
establishing Appellant’s specific conditions of his parole or probation.
Appellant also points out he was not charged or convicted with any new
offense. Thus, he reasons, “the Commonwealth could not, by necessity, prove
[he] violated a term of condition of his parole” or probation. Id. at 26.
Appellant relies on Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa.
2019) (“[A] court may find a defendant in violation of probation only if the
defendant has violated one of the ‘specific conditions’ of probation [or parole]
included in the probation order or has committed a new crime.”). Appellant’s
Brief at 23-24.
The Commonwealth responds it “is unable to locate any case law from
this Court or our Supreme Court indicating that [it] is a requirement” “to
provide proof of the conditions, rules, and regulations under which [Appellant]
was supervised.” Commonwealth Brief at 8. Nevertheless, the
Commonwealth argues the Probation Office’s petition, for the revocation of
parole and probation, “clearly indicates the conditions and alleged violations.”
Commonwealth Brief at 8, citing Adult Probation Office’s Petition for the
Revocation of Parole and Probation.
-5- J-A06036-21
In Foster, a defendant was sentenced to four years’ probation after
pleading guilty to possession and possession with intent charges. Foster, 214
A.3d at 1243. The defendant was subsequently detained after posting photos
to social media which “depicted guns, drugs, large amounts of money and his
sentencing sheet[.]” Id. at 1243. The violation of probation (VOP) court
found the defendant in violation of his probation, but “never mentioned the
conditions of [the defendant’s] probation in reaching its decision,” and “[t]here
is no court order specifying the conditions of probation in the record.” Id. at
1244 & n.5.
On appeal, the Pennsylvania Supreme Court considered 42 Pa.C.S. §
9754(b), which provides, “The court shall attach reasonable conditions
authorized by section 9763 (relating to conditions of probation) as it deems
necessary to ensure or assist the defendant in leading a law-abiding life.” See
42 Pa.C.S. § 9754(b); Foster, 214 A.3d at 1248-50. Our Supreme Court
stated:
[Section 9754(b) of the Sentencing Code] requires that [t]he court shall attach such of the reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law-abiding life. 42 Pa.C.S. § 9754(b) (emphasis added). The failure to do so is a violation of this statutory mandate. While this Court has recognized that probation officers may, consistent with their statutory authority, impose specific conditions of supervision pertaining to the defendant’s probation, see 61 Pa.C.S. §§ 6131(a)(5)(ii), 6151, any supervision conditions imposed must be in furtherance of the trial court’s conditions of probation.
Foster, 214 A.3d at 1244, n.5 (quotation marks and some citations omitted).
-6- J-A06036-21
The Supreme Court thus vacated the probation revocation, concluding
the Commonwealth “never contended that [the defendant] violated a specific
condition of his probation” nor did they present evidence establishing that
defendant violated his probation. Foster, 214 A.3d at 1253. As stated above,
the Court held: “a court may find a defendant in violation of probation only if
the defendant has violated one of the ‘specific conditions’ of probation [or
parole] included in the probation order or has committed a new crime.” Id.
at 1250.
Here, on the record before us, we are unable to determine whether the
sentencing court, on August 21, 2018, imposed the conditions Appellant has
now been found to have violated. We thus remand for the trial court to
prepare a supplemental opinion, within 45 days of this memorandum,
addressing whether the court itself imposed or advised Appellant of the terms
of his probation and parole. In preparation of the opinion, the court may
conduct a hearing and/or direct the parties to file briefs.
Case remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/31/2021
-7-