J-S15007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LEVI MARCUS MATHIS
Appellant No. 1420 MDA 2014
Appeal from the Judgment of Sentence August 5, 2014 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000317-2008
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2015
Levi Marcus Mathis appeals from the judgment of sentence, imposed
by the Court of Common Pleas of Union County, following the revocation of
his probation. Upon review, we affirm.
The trial court set forth the history of this matter as follows:
On August 5, 2009, after [Mathis] entered a guilty plea to the crime of criminal conspiracy to commit robbery, a felony of the first degree, [Mathis] was sentenced to a period of twelve (12) months’ incarceration to a maximum of sixty (60) months. That sentence was followed by a period of thirty-six (36) months’ probation.
On April 15, 2014, the Commonwealth filed a [m]otion to revoke the probationary aspect of [Mathis’] sentence and a hearing was scheduled for May 7, 2014.
At the hearing the Commonwealth called Jason Lemay, [Mathis’] Parole Agent with the Pennsylvania Board of Probation and Parole. Mr. Lemay testified that [Mathis] was part of his caseload and he was supervising him as part of his duties as a State Probation Officer. Mr. Lemay testified that he is required J-S15007-15
to see [Mathis] at least a minimum of once a month. On March 19, 2014, he and another agent went to [Mathis’] house and talked to him. Based on his home inspection he detained [Mathis], and requested the Commonwealth file this [m]otion.
At the revocation hearing held on May 7, 2014, Mr. Lemay testified that on March 19, 2014, when he did he his home visit, [Mathis] was uncooperative and refused to permit the agents entry into his home and also refused to provide a urine sample.
The Court would take judicial [notice] from the record that the conditions governing [Mathis’] conditions of supervision require him to submit a urinalysis and he had expressly consented to this search of his residence.
After Mr. Lemay testified the defense made a motion to dismiss the Commonwealth’s [m]otion due to the fact that the State Probation Officer failed to identify [Mathis] in court. The defense did not contest the conduct at issue but limited his argument to the lack of in court identification. With the court’s permission, Probation Officer Lemay was recalled and identified [Mathis].
Trial Court Opinion, 10/6/14, at 1-2.
On appeal, Mathis raises two issues. First, “did the trial court commit
error in ruling against [Mathis] when the Commonwealth closed its case
without identifying [him]?” Second, “did the trial court commit error in
permitting the record to be reopened for identification of [Mathis]?”
Appellant’s Brief, at 4.
Our review is guided by the following principles:
The 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. An abuse of discretion is more than an error in judgment – a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
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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.
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citations,
quotations, and footnote omitted).
Mathis’ first issue on appeal implicates the sufficiency of the evidence
to support the revocation of his probation. Our standard of review regarding
challenges to the sufficiency of the evidence is well-settled. In reviewing the
sufficiency of the evidence, the appellate court must determine whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner, is sufficient to prove every element of the offense beyond a
reasonable doubt. Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super.
2008).
Instantly, Mathis argues that the Commonwealth failed to identify him
during its case-in-chief, which, he contends, was a prerequisite to finding he
violated his probation.1 Mathis, however, conflates the revocation of his
probation with a criminal conviction. ____________________________________________
1 Mathis cites to only one case, Commonwealth v. Montgomery, 861 A.2d 304 (Pa. Super. 2004), for the proposition that the Commonwealth was required to identify him in court. However, Mathis’ reliance on Montgomery is misplaced. There, this Court did not hold that a witness’ identification of the defendant is necessary. Rather, we suggested that (Footnote Continued Next Page)
-3- J-S15007-15
Our Supreme Court has expressly held that, “a [violation of probation
(“VOP”) hearing] differs from a trial, as probation and parole are not part of
the criminal prosecution; the full panoply of rights due to a defendant in a
criminal trial does not apply at a VOP hearing.” Commonwealth v.
Mullins, 918 A.2d 82, 85 (Pa. 2007). The Court went on to explain that “[a
VOP hearing] requires only a truncated hearing by the sentencing court to
determine whether probation remains rehabilitative and continues to deter
future antisocial conduct. Such a hearing takes place without a jury, with a
lower burden of proof, and with fewer due process restrictions.” Id. quoting
Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).
Even assuming, arguendo, that there was, as Mathis suggests, a due
process requirement that he be identified in court, we find that because of
the lesser procedural protections afforded at a VOP hearing, such a
requirement is not implicated here. In fact, at a VOP hearing, the
Commonwealth need only establish by a preponderance of the evidence that
a defendant violated his probation. See Commonwealth v. Ortega, 995
A.2d 879, 886 (Pa. Super. 2010).
Here, the Commonwealth presented ample evidence to satisfy this
burden, including the testimony of Officer Lemay, Mathis’ probation officer.
Officer Lemay testified that he was required to see Mathis at least once a
_______________________ (Footnote Continued)
where there is ample other evidence of the defendant’s criminal actions, identification becomes even less dispositive. Id. at 307-08.
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month. He further testified that on March 19, 2014, Mathis refused to
provide a urine sample and allow the agents to enter his home, both
conditions of his probation. The VOP court found this testimony credible,
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J-S15007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LEVI MARCUS MATHIS
Appellant No. 1420 MDA 2014
Appeal from the Judgment of Sentence August 5, 2014 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000317-2008
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2015
Levi Marcus Mathis appeals from the judgment of sentence, imposed
by the Court of Common Pleas of Union County, following the revocation of
his probation. Upon review, we affirm.
The trial court set forth the history of this matter as follows:
On August 5, 2009, after [Mathis] entered a guilty plea to the crime of criminal conspiracy to commit robbery, a felony of the first degree, [Mathis] was sentenced to a period of twelve (12) months’ incarceration to a maximum of sixty (60) months. That sentence was followed by a period of thirty-six (36) months’ probation.
On April 15, 2014, the Commonwealth filed a [m]otion to revoke the probationary aspect of [Mathis’] sentence and a hearing was scheduled for May 7, 2014.
At the hearing the Commonwealth called Jason Lemay, [Mathis’] Parole Agent with the Pennsylvania Board of Probation and Parole. Mr. Lemay testified that [Mathis] was part of his caseload and he was supervising him as part of his duties as a State Probation Officer. Mr. Lemay testified that he is required J-S15007-15
to see [Mathis] at least a minimum of once a month. On March 19, 2014, he and another agent went to [Mathis’] house and talked to him. Based on his home inspection he detained [Mathis], and requested the Commonwealth file this [m]otion.
At the revocation hearing held on May 7, 2014, Mr. Lemay testified that on March 19, 2014, when he did he his home visit, [Mathis] was uncooperative and refused to permit the agents entry into his home and also refused to provide a urine sample.
The Court would take judicial [notice] from the record that the conditions governing [Mathis’] conditions of supervision require him to submit a urinalysis and he had expressly consented to this search of his residence.
After Mr. Lemay testified the defense made a motion to dismiss the Commonwealth’s [m]otion due to the fact that the State Probation Officer failed to identify [Mathis] in court. The defense did not contest the conduct at issue but limited his argument to the lack of in court identification. With the court’s permission, Probation Officer Lemay was recalled and identified [Mathis].
Trial Court Opinion, 10/6/14, at 1-2.
On appeal, Mathis raises two issues. First, “did the trial court commit
error in ruling against [Mathis] when the Commonwealth closed its case
without identifying [him]?” Second, “did the trial court commit error in
permitting the record to be reopened for identification of [Mathis]?”
Appellant’s Brief, at 4.
Our review is guided by the following principles:
The 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. An abuse of discretion is more than an error in judgment – a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
-2- J-S15007-15
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.
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citations,
quotations, and footnote omitted).
Mathis’ first issue on appeal implicates the sufficiency of the evidence
to support the revocation of his probation. Our standard of review regarding
challenges to the sufficiency of the evidence is well-settled. In reviewing the
sufficiency of the evidence, the appellate court must determine whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner, is sufficient to prove every element of the offense beyond a
reasonable doubt. Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super.
2008).
Instantly, Mathis argues that the Commonwealth failed to identify him
during its case-in-chief, which, he contends, was a prerequisite to finding he
violated his probation.1 Mathis, however, conflates the revocation of his
probation with a criminal conviction. ____________________________________________
1 Mathis cites to only one case, Commonwealth v. Montgomery, 861 A.2d 304 (Pa. Super. 2004), for the proposition that the Commonwealth was required to identify him in court. However, Mathis’ reliance on Montgomery is misplaced. There, this Court did not hold that a witness’ identification of the defendant is necessary. Rather, we suggested that (Footnote Continued Next Page)
-3- J-S15007-15
Our Supreme Court has expressly held that, “a [violation of probation
(“VOP”) hearing] differs from a trial, as probation and parole are not part of
the criminal prosecution; the full panoply of rights due to a defendant in a
criminal trial does not apply at a VOP hearing.” Commonwealth v.
Mullins, 918 A.2d 82, 85 (Pa. 2007). The Court went on to explain that “[a
VOP hearing] requires only a truncated hearing by the sentencing court to
determine whether probation remains rehabilitative and continues to deter
future antisocial conduct. Such a hearing takes place without a jury, with a
lower burden of proof, and with fewer due process restrictions.” Id. quoting
Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).
Even assuming, arguendo, that there was, as Mathis suggests, a due
process requirement that he be identified in court, we find that because of
the lesser procedural protections afforded at a VOP hearing, such a
requirement is not implicated here. In fact, at a VOP hearing, the
Commonwealth need only establish by a preponderance of the evidence that
a defendant violated his probation. See Commonwealth v. Ortega, 995
A.2d 879, 886 (Pa. Super. 2010).
Here, the Commonwealth presented ample evidence to satisfy this
burden, including the testimony of Officer Lemay, Mathis’ probation officer.
Officer Lemay testified that he was required to see Mathis at least once a
_______________________ (Footnote Continued)
where there is ample other evidence of the defendant’s criminal actions, identification becomes even less dispositive. Id. at 307-08.
-4- J-S15007-15
month. He further testified that on March 19, 2014, Mathis refused to
provide a urine sample and allow the agents to enter his home, both
conditions of his probation. The VOP court found this testimony credible,
and there is nothing in the record to disturb this credibility determination,
nor did Mathis contest these facts. The Commonwealth also proffered
testimony that showed Mathis’ identity had been previously established
when he was criminally convicted and on several other occasions when he
appeared in court following his conviction. Furthermore, Judge Sholley had
presided over Mathis’ guilty plea and sentencing, and thus, was familiar with
Mathis at the time of his VOP hearing.
Considering the diminished burden of proof, in conjunction with the
lower court’s pre-existing familiarity with Mathis, we conclude that in-court
identification was not critical to determining whether Mathis violated his
probation. Mullins, supra. As such, we find that there was sufficient
evidence to support the revocation sentence imposed by the court.
In his second issue, Mathis argues the trial court erred in reopening
the record to permit his identification. It is well settled in Pennsylvania that
a trial court has the discretion to reopen a case for either side, before the
entry of a final judgment, in order to prevent a failure or miscarriage of
justice. Commonwealth v. Baldwin, 58 A.3d 754 (Pa. 2012), citing
Commonwealth v. Tharp, 575 A.2d 557, 558-59 (Pa. 1990). Mathis
contends that this long-standing principle does not apply to the instant
matter because “[t]he case was not midstream, this was not a motion for
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judgment of acquittal after the prosecution rested. Here, the parties were in
closing argument. The case was, for all intents and purposes, over.”
Appellant’s Brief, at 9. We are not persuaded by this argument.
In Tharp, the trial court reopened the case, after the Commonwealth
closed its case, to permit the admission of immediately available evidence
directly related to the issue raised. Here, the fact that the parties had
moved to closing arguments does not, as Mathis contends, suggest that the
court lacked discretion to reopen the case. Our precedent is clear, a trial
court may, at any time prior to the entry of final judgment, reopen the case.
Baldwin, supra (emphasis added). Accordingly, this issue is moot,
especially in light of our preceding analysis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/13/2015
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