Com. v. Koger, C.

• Court: Superior Court of Pennsylvania
• Decided: December 1, 2023
• Docket: 251 WDA 2020
• Status: Unpublished

Opinion

J-A06036-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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: December 1, 2023

This matter is before this Court pursuant to a remand from the

Pennsylvania Supreme Court, which reversed our prior decision in part, and

remanded for further proceedings.1 In this appeal, Christopher Albert Koger

(Appellant) appeals from the judgment of sentence imposed in the Washington

County Court of Common Pleas, following the second revocation of his

probation and parole. After review, we affirm the trial court’s order to the

extent that it revoked Appellant’s parole and ordered him to serve the balance

of his underlying sentence, but reverse the trial court’s order to the extent it

revoked his probation and resentenced him to a term of incarceration.

The parties are well-informed of the underlying facts and procedural

history of this case. As such, we only provide a brief recitation. On August ____________________________________________

1 See Commonwealth v. Koger, 295 A.3d 699 (Pa. 2021). J-A06036-21

21, 2018, Appellant pled guilty to possession of child pornography and criminal

use of a communication facility.2 For possession of child pornography, he was

sentenced to eight to 23 months’ incarceration — but was immediately paroled

to the Washington County Adult Probation Office — and for criminal use of a

communication facility, he was sentenced to a consecutive term of three years’

probation. See N.T. Plea & Sentencing, 8/21/18, at 16-17. On December 21,

2018, the trial court revoked Appellant’s probation and parole after he

stipulated to committing technical violations.

On September 16, 2019, after being rereleased on parole, the Office of

Probation and Parole filed a second petition to revoke Appellant’s parole and

probation, alleging he committed the following technical violations of his

conditions:

Condition #1: Report to your [probation officer (PO)] as directed and permit a PO to visit you at your residence or place of employment and submit to warrantless searches of your residence, vehicle, property, and/or your person and the seizure and appropriate disposal of any contraband found. . . .

Condition #2: Do not violate any criminal laws or ordinances. . . .

Condition #7: Refrain from any assaultive, threatening or harassing behavior. . . .

Condition #10: Avoid unlawful and disreputable places and people. Avoid any specific persons, places, groups, or locations if so instructed by your PO. . . .

See Adult Probation Office’s Petition for the Revocation of Parole and

Probation, 9/16/19, at 2.

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2 18 Pa.C.S. §§ 6312(d), 7512(a).

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On November 4, 2019, the trial court held a revocation hearing where

the Commonwealth presented Washington County Probation Officer Jeremy

Bardo. Officer Bardo testified to three incidents supporting the allegations of

Appellant’s parole and probation violations. First, on July 16th, he and his

partner, Washington County Probation Officer Dominic Moore, visited

Appellant’s residence and asked for his cell phone. See N.T. Revocation H’rg,

11/4/19, at 4-5, 9; Adult Probation Office’s Petition for the Revocation of

Parole and Probation at 2. Appellant refused to give the officers his cell phone

and disobeyed several directives, which required them to physically restrain

him and place him in custody for safety reasons. N.T., 11/4/19, at 9-10.

Officer Bardo testified that Appellant claimed the officers “weren’t allowed” to

look through his phone and “ma[de] up rules.” Id. at 9. Officer Bardo noted

that Appellant was previously “provided [with] a copy of the rules of the adult

probation office . . . that he signed[,]” which “permit[s] visits to the

residence[.]” Id. When Officer Bardo eventually retrieved Appellant’s phone

and searched its contents, he saw messages between Appellant and a minor

female — who identified herself as being 15 years old. Id. at 14. The

messages included a naked photo of the minor and demonstrated Appellant

was “grooming her with conversations, [regarding] her past life, relationships

with family[,] his personality, [and] romance[.]” Id. at 14-15.

Next, Officer Bardo testified that immediately after the July 16, 2019,

incident they transported Appellant to the police station where he stated,

“You’re fucking with the wrong German.” N.T., 11/4/19, at 9. Officer Bardo

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asked Appellant if he was threatening him and Officer Moore, to which

Appellant clarified he was threatening Officer Moore. Id. at 9, 18. Also in

support of Appellant’s violations, Officer Bardo recounted that on July 2nd —

before officers visited his home and found incriminating information on his

phone — Appellant was working in a program at the community service office.

Id. at 7-8; Adult Probation Office’s Petition for the Revocation of Parole and

Probation at 2. While there, he used “vulgar language, [and was] disrespectful

with staff[,]” which resulted in the community service director asking

Appellant to “remove himself.” See N.T., 11/4/19, at 7-8.

Appellant testified that he did tell the officers he was going to “fight”

them, though he intended to do so on the law, not physically. See N.T.,

11/4/19, at 21-22. Appellant did not dispute the officer’s testimony that the

office of probation and parole imposed these conditions upon him, and he was

informed of these conditions prior to the hearing. Appellant also stated that

his parole would be completed on December 12, 2019, a fact the

Commonwealth did not contest. Id. at 23. After Appellant completed his

testimony, his attorney acknowledged that the “German comment” Appellant

made at the police station would be a basis for revocation “if the [c]ourt

[found] that [it was] threatening bodily harm[.]” Id. at 29-30.

At the conclusion of the hearing, the trial court determined Appellant

had committed the alleged technical violations, and revoked both Appellant’s

parole and probation. N.T., 11/4/19, at 31-32. On January 22, 2020, the

trial court held a resentencing hearing. At the hearing, John Pankopf — an

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employee at the Washington County Adult Probation Office — testified that

Appellant had completed his parole for possession of child pornography before

the date of sentencing. See N.T. Resentencing, 1/22/20, at 4, 7. Appellant

was then resentenced on the conviction of criminal use of a communication

facility to one to three years’ incarceration.3 Id. at 24.

Appellant then filed a notice of appeal to this Court where he raised the

following claims:

1. Whether the [VOP] 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 [VOP] 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 Direct Appeal Brief at 6 (some capitalization omitted).

On direct appeal, this Court concluded Appellant was entitled to relief

because the trial court “did not advise Appellant of the conditions of his

3 Though Appellant completed his term of parole before the date of sentencing,

the trial court “remanded [him] to the state correctional institution to serve the balance of his maximum sentence.” See N.T., 1/22/20, at 24.

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probation and parole at the time of the initial sentencing[.]” See

Commonwealth v. Koger, 255 A.3d 1285, 1287 (Pa. Super. 2021), r’vd in

part, Koger, 295 A.3d 699. Instead, “the general rules, regulations, and

conditions governing [his] probation and parole . . . were explained to

[Appellant] by an adult probation officer immediately following the sentencing

proceeding.” See Koger, 255 A.3d at 1290 (record citation & footnote

omitted). Relying on Commonwealth v Foster, 214 A.3d 1240 (Pa. 2019),

we determined the trial court was required to impose both Appellant’s parole

and probation conditions at the time of sentencing. See id. at 1285. Because

the trial court failed to do so, we reversed the revocations of probation and

parole, and vacated the judgment of sentence. Id. at 1291.

The Commonwealth filed a petition for review with the Pennsylvania

Supreme Court, which the Court granted, and thereafter, reversed, in part,

this Court’s decision. See Koger, 295 A.3d 699. The Supreme Court

concluded this Court improperly applied rules exclusive to probation to the

trial court’s order revoking Appellant’s parole. See Koger, 295 A.3d at 709.

The Court explained that its decision in Foster required examining “several

statutes . . . which relate exclusively to probation, not parole.” See Koger,

295 A.3d at 706 (emphasis added). With respect to conditions of parole,

however, the Supreme Court clarified “sentencing courts are authorized to

delegate to county probation officers the responsibility of communicating to

defendants the conditions of their parole, and to do so post-sentencing.” Id.

at 709 (emphasis added). Thus, the Supreme Court reversed our decision, in

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part, and remanded for further proceedings. We now reconsider our decision

in light of the Supreme Court’s mandate.

Appellant’s first two claims challenge the sufficiency of the evidence

supporting the violations of both his parole and probation. First, we note that

Appellant’s revocation of probation is not at issue in this appeal. In this Court’s

prior opinion, we concluded the trial court erred when it revoked Appellant’s

probation. See Koger, 255 A.3d at 1290-91. Relying upon Foster, we

explained the trial court was required to impose the conditions of Appellant’s

probation at the time of sentencing. See id. Our Supreme Court agreed with

this determination and the Commonwealth conceded this point. See Koger,

295 A.3d at 706 n.9 (emphasizing the Court was “only concerned with the

propriety of [Appellant’s] parole revocation[,]” and the Commonwealth

“agree[d] the. . . reversal of [Appellant’s] probation revocation was ‘in line

with [the Supreme Court’s] holding in Foster[.]”). Accordingly, we only

address Appellant’s claims insofar as they challenge the revocation of his

parole.

“The Commonwealth must prove [a parole] violation by a

preponderance of the evidence and, once it does so, the decision to revoke

parole is a matter for the court’s discretion.” Commonwealth v. Kalichak,

943 A.2d 285, 291 (Pa. Super. 2008). “The ‘preponderance of the evidence’

is the lowest burden of proof in the administration of justice, and it is defined

as the ‘greater weight of the evidence, i.e., to tip a scale slightly [in one’s

favor].’” See Commonwealth v. A.R., 990 A.2d 1, 4 n.4 (Pa. Super. 2010)

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(citation omitted). “Following parole revocation and recommitment, the

proper issue on appeal is whether the revocation court erred, as a matter of

law, in deciding to revoke parole and, therefore, to recommit the defendant

to confinement.” Kalichak, 943 A.2d at 291 (citation omitted).

Returning to Appellant’s argument, he avers the Commonwealth did not

show by a preponderance of the evidence that he violated his conditions of

parole. Appellant’s Direct Appeal Brief at 20-21. Specifically, he contends the

Commonwealth did not “establish[ ] the actual conditions” of his supervision,

but instead, the court relied upon the allegations in the revocation petition

and Officer Bardo’s testimony to support revocation. Id. at 21-22. He insists

that the Commonwealth must provide more evidence to demonstrate a

violation. See id. at 22.

The trial court concluded the Commonwealth presented sufficient

evidence to establish, by a preponderance of the evidence, that Appellant

violated his parole. Trial Ct. Op., 5/26/20, at 14. It opined:

[Appellant’s] second revocation hearing was conducted only after the Washington County Adult Probation Office submitted its second “Petition for the Revocation of Parole and Probation,” which detailed, inter alia, three specific technical violations that [Appellant] allegedly violated.

Among those three technical violations was Condition 7, which stated that Appellant failed to “refrain from assaultive, threatening or harassing behavior.” Indeed, at the second revocation proceeding, Officer Bardo provided the [trial c]ourt with two specific occurrences that amounted to violations of Condition [seven].

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Trial Ct. Op.at 14 (citation omitted & paragraph break inserted). The trial

court also noted Appellant’s concession that he threatened to “fight” the

officers — regardless of his subconscious intent behind the statement —

combined with his attorney’s admission that the comment could be a basis for

revocation, supported a violation of condition seven. See id. at 14-15. The

court also credited Officer Bardo’s testimony whereby he described the July 2,

2019, community service center incident and the two July 16th incidents

involving Appellant’s cell phone and threatening behavior — which it stated

supported the allegation that Appellant violated condition two of his parole.

Id. at 14-19.

We agree with the trial court’s conclusion. At the time of Appellant’s

conduct on July 2 and 16, 2019, he was completing his parole for his conviction

of possession of child pornography. At the hearing, the Commonwealth

needed only to prove by a preponderance of the evidence that Appellant

committed technical violations of his parole. See Kalichak, 943 A.2d at 291.

The crux of Appellant’s argument is that the Commonwealth did not establish

that he was subject to the conditions he was accused of violating. See

Appellant’s Brief at 22. However, Appellant does not cite — nor could this

Court locate — any precedent stating the Commonwealth could not satisfy the

preponderance of the evidence standard through the office’s revocation

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petition and sworn testimony. Additionally, Appellant did not contest the fact

that he was subject to these conditions during the hearing.4

Here, the Commonwealth needed only “to tip a scale slightly” in its

favor. See A.R., 990 A.2d at 4 n.1. We agree with the trial court’s conclusions

that it did so by providing the probation office’s petition for revocation — which

listed the conditions Appellant was accused of violating — and Officer Bardo’s

testimony that Appellant was previously provided with these conditions of

parole. See N.T., 11/4/19, at 9; Adult Probation Office’s Petition for the

Revocation of Parole and Probation at 2. For this reason, Appellant has failed

to establish that the court erred in revoking his parole. See Kalichak, 943

A.2d at 291.

Appellant’s final claim challenges the legality of his sentence. He relies

largely on his previous argument that the Commonwealth did not establish he

was subject to the conditions for which the trial court concluded he violated.

See Appellant’s Direct Appeal Brief at 28-29. Thus, he avers the court had no

authority to impose a sentence. Id.

4 Our Supreme Court suggested in its opinion that Appellant may have waived

his argument at both the trial and appellate levels. See Koger, 295 A.3d at 711 n.12. To the extent Appellant did not contest Officer Bardo’s testimony that the office of probation and parole informed him of the conditions of his supervision, we agree. However, Appellant did properly preserve his challenge to the sufficiency of the evidence supporting his revocation of parole in both his Pa.R.A.P. 1925(b) concise statement and his appellate brief. See Appellant’s Pa.R.A.P. 1925(b) Statement, 4/27/20, at 4-5 (unpaginated); Appellant’s Direct Appeal Brief at 19-22 (arguing the Commonwealth did not establish the terms and conditions of his parole).

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Our standard of review for a challenge to the legality of a sentence is de

novo and our review is plenary. See Commonwealth v. Bickerstaff, 204

A.3d 988, 995 (Pa. Super. 2019). Further, we note:

[A] parole revocation does not involve the imposition of a new sentence. Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence. At some point thereafter, the defendant may again be paroled.

Kalichak, 943 A.2d at 290 (citations & footnote omitted).

As discussed above, we concluded the trial court did not err in its

determination that Appellant committed parole violations. As a result of the

revocation, the court “remanded [him] to serve the balance of his maximum

sentence” at that conviction. N.T., 1/22/20, at 24. The court did not impose

a new sentence, but instead recommitted Appellant to serve the balance of

his maximum term, which it had the authority to do. See Kalichak, 943 A.2.d

at 290. Thus, the trial court did not impose an illegal sentence and Appellant

is not entitled to relief on this claim.

In summary, our Supreme Court agreed, and the Commonwealth

conceded, the trial court erred in revoking Appellant’s probation. Thus, we

reverse in part the trial court’s November 4, 2019, order to the extent the

court revoked Appellant’s probation, and we vacate the January 22, 2020,

judgment of sentence of one to three years’ incarceration. However, because

Appellant did not demonstrate that the trial court erred when it determined

that he violated the conditions of his parole, we affirm in part the court’s

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November 4th order and subsequent judgment of sentence. See Kalichak,

943 A.2d at 290-91.

Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.

DATE: 12/1/2023

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