J-S60042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEVEN PAUL SCOTT, : : Appellant : No. 618 MDA 2018
Appeal from the Judgment of Sentence March 14, 2018 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001063-2002
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 20, 2018
Steven Paul Scott (Appellant) appeals from his March 14, 2018
judgment of sentence, which the trial court imposed after revoking
Appellant’s probation. We affirm.
The trial court summarized the procedural history as follows.
On January 16, 2003, [A]ppellant pled guilty to two counts of involuntary deviate sexual intercourse (IDSI), two counts of aggravated indecent assault, one count of indecent assault, one count of endangering the welfare of children, and one count of corruption of minors. [Appellant] committed these crimes against a [ten-year-old] child. On March 13, 2003, [A]ppellant was sentenced to an aggregate term of five to ten years’ incarceration followed by seventeen years of special probation …. … [A]ppellant’s supervision was subject to the conditions governing special probation and parole, the standard special conditions for sex offenders, and optional special conditions for sex offenders.
*Retired Senior Judge assigned to the Superior Court. J-S60042-18
On December 28, 2017, [A]ppellant came before the [trial] court for a Gagnon I[1] or preliminary probation violation hearing. … On March 14, 2018, [A]ppellant came before the [trial] court for a Gagnon II or a final probation violation [(VOP)] hearing. The [trial] court found that [A]ppellant violated the conditions of his supervision. The court revoked [A]ppellant’s probationary sentences and resentenced him to an aggregate term of three to eight years’ incarceration….
Trial Court Opinion, 7/6/2018, at 1-2 (citation omitted).
Appellant timely filed this appeal.2 Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
On appeal, Appellant’s first issue challenges the sufficiency of the
evidence produced by the Commonwealth at the probation revocation
hearing, which presents a question of law subject to our plenary review.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014). In
examining these issues, “[w]e must determine whether the evidence
admitted at [the hearing] 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.” Id. We may
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2 After the Gagnon II hearing, Appellant filed a motion for reconsideration. This filing did not toll the 30–day appeal period. See Pa.R.Crim.P. 708(E). Because the trial court did not expressly grant reconsideration or vacate the sentence within 30 days, it was divested of jurisdiction to rule upon Appellant’s motion. See id., Comment; Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). However, Appellant filed the notice of appeal within 30 days of his judgment of sentence, rendering his appeal timely filed.
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not weigh the evidence or substitute our judgment for that of the trial court.
Id. Further, we bear in mind that a hearing regarding a probation violation
is different from a criminal trial. “The reason for revocation of probation
need not necessarily be the commission of or conviction for subsequent
criminal conduct.” Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.
Super. 2010). Rather, the Commonwealth establishes a probation violation
by showing, by a preponderance of the evidence, “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.” Id.
Appellant admits that he was unsuccessfully discharged from sex
offender treatment at Commonwealth Clinical Group, Inc. (CCG), but
nevertheless argues that the evidence presented during his probation
revocation hearing was insufficient to prove that probation has been
ineffective in deterring future antisocial behavior and/or incapable of
meeting his rehabilitative needs. Appellant’s Brief at 14. Appellant argues
that many of his behaviors ceased after a warning, demonstrating the
effectiveness of probation. Id. at 13-26. Furthermore, he claims that the
conduct relied upon by CCG to support his discharge from therapy and later
by the Commonwealth to support the probation revocation was too remote
in time or too minor to support a discharge from therapy and/or revocation
of probation. Id.
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Our review of the record reveals that at the VOP hearing, the
Commonwealth introduced evidence demonstrating Appellant’s long history
of noncompliance with the terms and conditions of his probation, which
culminated in the filing of a petition seeking revocation of Appellant’s
probation in December 2017.3
In March 2017, Appellant’s probation officer, Agent Michael Daub,
discovered that Appellant had searched for pornographic videos and the
websites Backpage and Craigslist for casual sexual encounters. N.T.,
3/14/2018, at 32-33. This conduct violated the terms and conditions of
Appellant’s probation. However, in lieu of sanctions, Agent Daub chose to
give Appellant a warning at that time. Id. at 39-40.
Appellant was required to attend weekly group therapy, but he failed
to attend consistently in 2017. He had fourteen unexcused absences in
2017, including one in November 2017. Id. at 3-4. Although he made up
ten sessions, many of his makeup sessions were prompted by his probation
officer’s continual reminders. Id. at 33-34. Appellant also missed three
scheduled psychiatric evaluations in August and September 2017 before he
finally attended. Appellant also did not take his medications as prescribed.
3 This petition does not appear in the certified record.
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In December 2017, as part of his treatment, Appellant took a
polygraph test and was deemed as having failed.4 Appellant then completed
a written assignment as part of his group therapy, wherein he described his
assessment of why he may have failed the test. Id. at 28. Appellant’s
written assignment was read into the record at the VOP hearing. Id. at 14-
15. In the written assignment, Appellant revealed that he had engaged in a
sexual encounter with a woman he had met through Craiglist. 5 Id.
Appellant admitted that she had told him to stop, but he persisted with his
advances, and ultimately coerced her into having sexual intercourse. Id.
Around this same time, Appellant revealed6 that his wife was engaging
in prostitution, and despite his alleged opposition to her behavior, he
accepted cigarettes purchased with her illegal proceeds. Id. at 16. Finally,
Appellant admitted that he and his wife had driven a seventeen-year-old co-
worker home from work, despite such contact violating his prohibition
against contact with minors. Id. at 17-18.
4 Neither the specific questions asked nor the results of the test were admitted into evidence.
5Appellant later told his probation officer that this incident had occurred in early 2016.
6 Appellant referenced some of these incidents in his written statement without detail. It appears that Appellant may have disclosed these other incidents in therapy, but the record is not clear exactly how and when the program learned about these other incidents.
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On December 21, 2017, CCG discharged Appellant from the sex
offender treatment program. During the VOP hearing, CCG’s assistant
director testified that the discharge was based upon numerous ongoing
concerns of CCG, which included the concerns referenced supra. Id. at 10.
Furthermore, based upon Appellant’s disclosures after the polygraph
examination, CCG believed Appellant was not being open and honest in
therapy and was retroactively confessing to behaviors instead of proactively
working out his issues in therapy. Id. at 16-17. This was particularly
concerning because these types of retroactive disclosures were similar to the
behavior that caused Appellant to be discharged from sex offender
treatment in 2015.7 Accordingly, the assistant director of CCG provided a
clinical recommendation that Appellant receive treatment in a secure setting
instead of on an outpatient basis. Id. at 20.
From our review of the record, it is apparent that some of CCG’s
concerns were ongoing, and others only arose after Appellant failed the
polygraph test and disclosed the Craigslist sexual encounter, his wife’s
prostitution, and his unsupervised contact with a minor. Similarly, Agent
Daub testified that although Appellant had a long history of probation
violations for which Agent Daub could have sought revocation, Agent Daub ____________________________________________
7 This discharge in 2015 resulted in the trial court finding’s that Appellant violated the terms and conditions of his probation. At that time, the trial court declined to revoke Appellant’s probation, but amended the conditions of supervision. Order, 10/20/2015, at 1.
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decided to seek revocation for the most serious violation: Appellant’s
discharge from CCG. Id. at 47-48. Moreover, this was Appellant’s second
discharge from sex offender treatment.
As put by the trial court in its re-sentencing order, “the evidence was
remarkably undisputed, and it would be narrow minded for the [c]ourt to
consider the tip of the iceberg instead of the totality of the circumstances
and [Appellant’s] entire history of behaviors.” Order, 3/20/2018, at 1.
Looking at Appellant’s conduct as a whole, we conclude that the trial court
correctly determined that the Commonwealth proved by a preponderance of
the evidence “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.” Ortega, 995 A.2d
at 886. Thus, his first issue does not entitle him to relief.
In his second issue, Appellant contends that our Supreme Court has
held that the results of a therapeutic polygraph examination may not be
used as the sole basis of a revocation petition. Appellant’s Brief at 27 (citing
Commonwealth v. A.R., 80 A.3d 1180 (Pa. 2013)). Appellant posits that
despite the Commonwealth’s claim that it sought revocation based upon his
unsuccessful discharge from his sex offender treatment at CCG, the facts
and circumstances demonstrate that the revocation was actually sought due
to his failed polygraph. Id. In support, Appellant argues that because many
of the underlying incidents relied upon by the Commonwealth occurred long
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before the polygraph test, but the Commonwealth did not file a petition to
revoke his probation until just five days after his failed polygraph test, the
timing suggests that the Commonwealth’s sole reason for seeking revocation
of probation was his failed test. Id. at 28-29.
Appellant misstates our Supreme Court’s holding in A.R. in a failed
attempt to use the polygraph test as a shield. In that case, A.R. admitted to
videotaping his 13-year-old step-daughter undressing. He claimed that he
did so to embarrass and admonish her, but the trial court did not find this
explanation to be credible and found him guilty of, inter alia, sexual abuse of
children, which contains a mens rea element of sexual gratification. As part
of Appellant’s probation, he was ordered to undergo a sex offender
evaluation and to follow all recommendations, which included participating in
mandated sex offender treatment. A.R., 80 A.3d at 1181-82.
After A.R. continued to deny his sexual motivation for his conduct, “a
therapeutic polygraph was administered to confront [A.R.] with his
disingenuous behavior and attempt to steer him back to proper treatment,
which required he admit the sexual nature of his actions as established by
the trial court’s conclusions of fact, reflected in his conviction.” Id. at 1182.
The program concluded A.R. provided deceitful answers to the polygraph,
which demonstrated that he continued to “engag[e] in cognitive distortions
for the purpose of reasoning away his behavior” and was not making
progress in treatment. Id. Accordingly, the program discharged him. The
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trial court found such discharge to violate A.R.’s probation requirements and
revoked his probation.
On appeal, A.R. claimed, inter alia, that the trial court erred in
admitting the results of his therapeutic polygraph examination into evidence
at his VOP hearing. This Court disagreed, holding that
the results obtained from the administration of a therapeutic polygraph examination in a sexual offenders’ treatment program are admissible at a probation revocation hearing as evidence to support the underlying violation, i.e., a sexual offender’s lack of amenability to treatment, so long as [(1)] the results of that examination are not the sole basis for the revocation petition; [(2)] they do not reveal uncharged criminal conduct on the part of the defendant; and [(3)] they are not used for purposes of the investigation of criminal conduct.
Id. at 1182 (citing Commonwealth v. A.R., 990 A.2d 1, 7 (Pa. Super.
2010) (emphasis in original)). Thus, this Court affirmed the trial court,
stating “the administration of the therapeutic polygraph examination was a
‘last ditch’ attempt to keep [A.R.] in treatment, rather than having been the
reason for his ultimate discharge.” Id. (citing A.R., 990 A.2d at 7). Judge
Colville dissented based upon Commonwealth v. Gee, 354 A.2d 875, 883
(Pa. 1976) (plurality), overruled on other grounds by Commonwealth v.
Brady, 507 A.2d 66 (Pa. 1986), which held that the results of a polygraph
examination are inadmissible for any purpose due to the scientific
unreliability of such tests.
A.R. appealed to our Supreme Court. Noting that Gee was not binding
precedent, our Supreme Court distinguished Gee on the basis that Gee’s
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prohibition related to admission of a polygraph at trial, not a VOP hearing.
Id. at 1183. Thus, the Court concluded that
[d]espite prior case law excluding polygraph results from evidence, the admission here was not improper because the results were offered not as evidence of [A.R.’s] probation violation, but as background evidence to explain the actions taken by program staff. The record supports the Commonwealth’s contention that [A.R.’s] polygraph results were offered, not for the truth of whether [A.R.] received sexual gratification from his act, but to help explain the program’s actions and treatment procedures. That [A.R.’s] refusal to admit his sexual motivation for making the videotapes reflected a lack of candor was established at trial when the court discredited [A.R.’s] testimony and found him guilty of the offense charged. The polygraph evidence was simply offered by the Commonwealth to assist the court in attaining a full picture of why [A.R.] was dismissed from treatment. This information helped establish the somewhat collateral point that those administering the program had tried, albeit unsuccessfully, to keep [A.R.] in the rehabilitative regime. Thus, this case does not implicate the general reservations and concerns expressed concerning the admissibility of polygraph evidence into evidence, as [A.R.’s] results were proffered not for their accuracy, but to help explain the actions of others involved.
Accordingly, we affirm the Superior Court’s holding that [A.R.’s] therapeutic polygraph examination results were admissible at his VOP hearing for purposes of helping explain the program’s actions and the treatment procedures.
Id. at 1183-84. In arriving at this holding, our Supreme Court explicitly
declined to reach this Court’s “conclusion that therapeutic polygraph
examination results cannot serve as the sole basis for probation revocation.”
Id. at 1184 n.6. Our Supreme Court reasoned that
the value to be accorded to evidence is a matter for the fact- finder with a well-settled appellate standard of review. [A.R.’s] probation violation was supported by testimony from several treatment specialists involved in his therapy in addition to the
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results of his therapeutic polygraph, and we decline to require specific types of evidence in every case.[8]
Id.
Thus, contrary to Appellant’s argument, our Supreme Court did not
hold “that the results of a ‘therapeutic’ polygraph examination may be
submitted as evidence supporting an underlying violation of probation
requirements, only when the results … are not used as the sole basis of the
revocation petition.” Appellant’s Brief at 27 (emphasis in original).
Moreover, we find Appellant’s case to be indistinguishable from A.R. Like
A.R., Appellant was required to participate in sex offender treatment, and as
part of that treatment, he was required to undergo therapeutic polygraph
examinations to test whether he was being active and honest in treatment.
In both cases the polygraph examination led to a revelation of underlying
concerns with the efficacy of and honest participation with treatment, which
prompted discharge from treatment. The polygraph examination was not
the reason the Commonwealth sought revocation or why Appellant was
found in violation of probation; instead, he was found in violation because he
did not remain in sex offender treatment and did not benefit from CCG’s ____________________________________________
8 The Court also declined to state an opinion regarding the Superior Court’s Fifth Amendment analysis, i.e., whether the polygraph examination evidence revealed a commission of an offense or was used as an investigative tool to ferret out any uncharged criminal conduct in violation of the Fifth Amendment, because A.R. did not allege a Fifth Amendment violation. Id. (citing A.R., 990 A.2d at 7). Likewise, Appellant does not raise a Fifth Amendment claim in the instant case.
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attempts to rehabilitate him. Any testimony about the polygraph results
“was simply offered by the Commonwealth to assist the court in attaining a
full picture of why [Appellant] was dismissed from treatment.” A.R., 80
A.3d at 1183-84. Thus, the trial court did not err in concluding that the
Commonwealth established that Appellant violated the terms and conditions
of his probation.
Appellant’s final issue asks us to review whether the trial court abused
its discretion when it imposed his sentences consecutively, resulting in three
to eight years of incarceration. Appellant’s Brief at 30. We review this issue
mindful of the following. “An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no absolute right to do so
but, rather, must petition this Court for permission to do so.”
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008).
Before this Court can address such a discretionary challenge, an appellant
must invoke this Court’s jurisdiction by establishing that (1) the appeal was
timely filed; (2) the challenge was properly preserved by objecting during
the revocation sentencing or in a post-sentence motion; (3) his or her brief
includes a concise statement of the reasons relied upon for allowance of
appeal of the discretionary aspects of the sentence pursuant to Pa.R.A.P.
2119(f); and (4) the concise statement raises a substantial question that the
sentence is inappropriate under the Sentencing Code. Commonwealth v.
Swope, 123 A.3d 333, 338 (Pa. Super. 2015).
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Instantly, Appellant has satisfied the first three requirements by timely
filing a post-sentence motion challenging the excessiveness of his sentence,
timely filing a notice of appeal, and including a Rule 2119(f) concise
statement in his brief. Thus, we examine whether Appellant has presented a
substantial question for our review.
Appellant asks this Court to review the discretionary aspects of his
sentence based upon the trial court’s imposition of a sentence that he
argues is “manifestly excessive in relation to his criminal conduct,
rehabilitative needs, behavior under supervision, and mental disabilities[,]”
resulting in a sentence that is too severe. Appellant’s Brief at 11. Appellant
further argues that the trial court relied upon the ineffectiveness of
probation as a tool for his rehabilitation, but such ineffectiveness is not
supported by the record. Id.
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010).
However, this Court has held that a challenge to the excessiveness of
consecutive sentences imposed following revocation of probation, together
with a claim that a trial court failed to consider rehabilitative needs and
mitigating factors upon fashioning the sentence, presents a substantial
question. Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.
2015). Furthermore, “a claim that a particular probation revocation
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sentence is excessive in light of its underlying technical violations can
present a question that we should review.” Commonwealth v. Malovich,
903 A.2d 1247, 1253 (Pa. Super. 2006); see also Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (“The imposition of a
sentence of total confinement after the revocation of probation for a
technical violation, and not a new criminal offense, implicates the
‘fundamental norms which underlie the sentencing process.’”). Therefore,
we conclude that Appellant presents a substantial question for our review.
As we have explained,
[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. 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.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012).
Upon revoking probation, “the sentencing alternatives available to the
court shall be the same as were available at the time of initial sentencing,
due consideration being given to the time spent serving the order of
probation.” 42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence. Commonwealth v.
Infante, 63 A.3d 358, 365 (Pa. Super. 2013). However, once probation has
been revoked,
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the court shall not impose a sentence of total confinement unless it finds that
(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 the court.
42 Pa.C.S. § 9771(c). In all cases where the trial court resentences an
offender following revocation of probation, the trial court must place its
reasons for the sentence on the record. 42 Pa.C.S. § 9721(b);
Commonwealth v. Cartrette, 83 A.3d 1030, 1040–1041 (Pa. Super.
2013). “A trial court need not undertake a lengthy discourse for its reasons
for imposing a sentence or specifically reference the statute in question, but
the record as a whole must reflect the sentencing court’s consideration of
the facts of the crime and character of the offender.” Crump, 995 A.2d at
1282–1283.
In its Rule 1925(b) opinion,9 the trial court offered the following
explanation for its re-sentencing of Appellant:
[Appellant’s] actions showed that he was unwilling or unable to take advantage of his treatment opportunities while on probation. Treatment is only effective if the individual ____________________________________________
9 This explanation is consistent with the remarks made by the trial court at the re-sentencing hearing and in its sentencing order. N.T., 3/14/2018, at 97-98; Order, 3/20/2018, at 1-3.
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consistently attends his therapy sessions and follows the recommendations of his therapist. [Appellant] was not doing that. Instead of attending therapy every week as scheduled, [A]ppellant was missing therapy sessions for no apparent reason. Furthermore, he was not taking his psychotropic medications as directed. He [was not] using therapy to help him work through his issues and avoid engaging in prohibited behaviors. Instead, he was confessing after the fact, and then sometimes only after he was “caught” not being truthful such as the incident with the female from Craigslist that was only revealed after [A]ppellant failed his therapeutic polygraph.
*** [A]ppellant also asserts that the imposition of consecutive periods of total incarceration for each of the remaining probationary sentences was manifestly excessive and an abuse of discretion. … The court did not impose consecutive sentences because it had any partiality, prejudice, bias or ill will against [A]ppellant. The court imposed consecutive sentences due to the nature of the offenses, the need to protect the public, and [A]ppellant’s supervision history. The court found that the need to protect the public greatly outweighed [A]ppellant’s rehabilitation needs in this case. Probation was not rehabilitating [A]ppellant. … According to [A]ppellant’s own testimony, he was re-paroled on December 24, 2015 and by early 2016 he had met a [woman] on Craigslist and had a sexual encounter with her despite the [woman] saying “Stop, I can’t do this.” Although [A]ppellant stopped briefly, he kept making sexual advances until the [woman] relented and had sex with him. In March of 2017, [A]ppellant was viewing pornography and again was seeking casual sexual encounters through websites such as Back Pages and Craigslist. He [did not] discuss his urges to view pornography or these websites in his group therapy sessions to try to avoid violating the conditions of his probation nor did he address these issues immediately after he was caught. How could he? He missed four sessions between January 16, 2017 and March 10, 2017[,] and then, once Agent Daub found the pornography and websites in the browser history on [A]ppellant’s phone on March 29, 2017, [A]ppellant missed his group therapy sessions on April 7, 2017; April 14, 2017; and April 25, 2017.
This also was not the first time that [A]ppellant’s sexual encounters resulted in violations of his supervision. He was
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unsuccessfully discharged from treatment with CCG and his parole was violated in 2015 due to hitting a partner prior to and after intercourse. He was before the court in 2015 for a probation violation hearing as well, but the court declined to revoke [A]ppellant’s probationary sentences at that time. [A]ppellant’s resumption of treatment with CCG in 2016 was his second chance at rehabilitation outside of a secure setting, but [A]ppellant failed to take advantage of it.
[A]ppellant was originally sentenced to a period of state incarceration followed by a lengthy term of probation. Unfortunately, [A]ppellant’s conduct while on supervision showed that probation was not an effective rehabilitation tool. [A]ppellant continued to engage in conduct that created an undue risk that he would commit another crime. The consecutive sentences imposed by the court were necessary to protect the public.
[A]ppellant also contends the court had no further obligation to consider the impact on the original victim because there was neither an allegation that [A]ppellant participated in any misconduct involving the original victim nor any sexual behaviors toward any children. The court cannot agree. … Although his probation violations did not involve the original victim or sexual behaviors toward children, his violations involved high-risk behaviors. He viewed pornographic videos and visited inappropriate websites, he had contact with a minor without getting approval from Agent Daub and without an authorized supervisor being present, and he persisted in sexual advances toward an adult female despite her saying “Stop, I can’t do this.” All of these behaviors show that [A]ppellant was going down a slippery slope toward committing another offense.
Based on the foregoing [o]pinion, there was ample evidence to support the … imposition of consecutive sentences….
Trial Court Opinion, 7/6/2018, at 8-11.
Upon review, we conclude that the trial court’s analysis thoroughly
addresses all of Appellant’s arguments regarding the discretionary aspects of
his sentence, and we discern no abuse of discretion in the court’s decision to
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impose a sentence of total confinement in consecutive sentences.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/20/2018
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