J-A02030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN ANTHONY VIVIS : : Appellant : No. 751 WDA 2020
Appeal from the PCRA Order Entered July 1, 2020 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0002276-2004
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 25, 2021
Appellant Kevin Anthony Vivis appeals from the order denying, after an
evidentiary hearing, his timely petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred
in denying relief for his claims relating to the revocation of his probation. We
affirm.
A previous panel of this Court summarized the procedural history of this
case as follows:
On March 7, 2006, [Appellant] entered guilty pleas at three separate docket numbers to involuntary deviate sexual intercourse, corruption of minors, and possession with intent to deliver a controlled substance. Thereafter, on June 27, 2006, the trial court sentenced [Appellant] to 45 to 90 months’ incarceration, followed by 10 years’ probation. [Appellant] did not pursue a direct appeal. J-A02030-21
Commonwealth v. Vivis, 788 WDA 2013, 2014 WL 10920315, at *1 (Pa.
Super. filed May 1, 2014) (footnotes omitted).
We adopt the PCRA court’s summary of the subsequent procedural
history. See PCRA Ct. Op. & Order, 7/1/20, at 2-6. Briefly, we note that on
May 7, 2018, a state parole officer arrested Appellant for three violations of
the terms of his probation, including testing positive for amphetamines,
having a cell phone that contained pornographic images, and accessing
pornographic chatrooms. The trial court held a revocation hearing on June 5,
2019. On July 23, 2019, the trial court resentenced Appellant to a term of
two to five years’ incarceration. Id. at 5. Appellant filed a motion to modify
sentence, which the trial court denied. Id. Appellant filed a notice of appeal,
but this Court dismissed that appeal for failure to comply with Pa.R.A.P. 3517
on December 30, 2019. Id.
On March 30, 2020, Appellant filed a timely pro se PCRA petition. Id.
at 6. The PCRA court appointed counsel for Appellant, and counsel filed an
amended PCRA petition on April 29, 2020. Id. Appellant raised three claims
relating to the June 5, 2019 probation revocation hearing: (1) no evidence
was submitted to establish Appellant failed a drug test; (2) the state parole
officer’s search of a cell phone was illegal because the officer lacked a search
warrant; (3) no evidence was presented that Appellant possessed or viewed
pornography found on that cell phone. Am. PCRA Pet., 4/29/20, at 4-5.
The PCRA court held a hearing on May 5, 2020, at which Appellant
testified. PCRA Ct. Op. & Order at 6. At the hearing, Appellant rejected the
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Commonwealth’s offer to reinstate his direct appeal rights and instead elected
to proceed with the PCRA hearing. Id. at 7 n.1 (citing N.T. PCRA Hr’g, 5/5/20,
at 2-3).
On July 1, 2020, the PCRA court entered an opinion and order denying
Appellant’s petition. The PCRA court noted that Appellant’s claims were not
cognizable under the PCRA and should have been raised on a direct appeal.
Id. at 7. However, the PCRA court also addressed Appellant’s claims on the
merits, construing them as claims of ineffective assistance of counsel. Id.
The PCRA court concluded that Appellant failed to establish that his counsel at
the probation revocation hearing was ineffective. Id. at 7-10.
Appellant simultaneously filed a timely notice of appeal and a Pa.R.A.P.
1925(b) statement on July 20, 2020. The PCRA Court issued a Rule 1925(a)
opinion adopting the analysis set forth in its July 1, 2020 opinion and order
denying Appellant’s PCRA petition. See PCRA Ct. Op., 9/15/20, at 2-3.
Appellant raises the following issues on appeal:
1. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that his parole agent failed to present any evidence that he failed his drug screen.
2. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that his parole agent’s search of the cell phone was illegal as no search warrant existed for the cell phone.
3. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that [] Appellant’s parole agent failed to present any evidence that he was in possession of or viewed pornography on the cell phone which belonged to Hikeem Frost, and to which Frost testified to using to view pornography.
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Appellant’s Brief at 4 (some capitalization omitted).
Appellant’s first and third claims both relate to the sufficiency of
evidence supporting his probation violations. Specifically, Appellant’s first
claim challenges the results of his drug test and his third claim challenges the
evidence establishing that he possessed or viewed pornography. See id. at
12-13, 18-20. In his second claim, Appellant alleges that certain evidence
presented at the revocation hearing should have been suppressed because
the parole officer did not have a warrant to search the cell phone. See id. at
14-18.
The Commonwealth responds that all of Appellant’s issues are waived
because they could have been raised in his direct appeal, which was dismissed.
Commonwealth’s Brief at 4-6. The Commonwealth also argues that
Appellant’s claims not cognizable under the PCRA because Appellant presents
them as if they were being raised on direct appeal. Id. at 6-8.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted). This Court “may affirm a decision of the
[PCRA] court if there is any basis on the record to support the [PCRA] court’s
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actions, even if we rely on a different basis.” Commonwealth v. Moser, 999
A.2d 602, 606 n.5 (Pa. Super. 2010) (citation omitted).
“To be entitled to PCRA relief, [the petitioner] must establish, by a
preponderance of the evidence, that his conviction or sentence resulted from
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),
and that the allegation of error has not been previously litigated or waived.”
Mitchell, 105 A.3d at 1265-66 (citation omitted); see also 42 Pa.C.S. §
9543(a)(3) (stating that in order to eligible for relief, the petitioner must plead
and prove “the allegation of error has not been previously litigated or
waived”). A claim is waived for the purposes of the PCRA when “the petitioner
could have raised it but failed to do so before trial, at trial . . . [or] on appeal
or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
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J-A02030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN ANTHONY VIVIS : : Appellant : No. 751 WDA 2020
Appeal from the PCRA Order Entered July 1, 2020 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0002276-2004
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 25, 2021
Appellant Kevin Anthony Vivis appeals from the order denying, after an
evidentiary hearing, his timely petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred
in denying relief for his claims relating to the revocation of his probation. We
affirm.
A previous panel of this Court summarized the procedural history of this
case as follows:
On March 7, 2006, [Appellant] entered guilty pleas at three separate docket numbers to involuntary deviate sexual intercourse, corruption of minors, and possession with intent to deliver a controlled substance. Thereafter, on June 27, 2006, the trial court sentenced [Appellant] to 45 to 90 months’ incarceration, followed by 10 years’ probation. [Appellant] did not pursue a direct appeal. J-A02030-21
Commonwealth v. Vivis, 788 WDA 2013, 2014 WL 10920315, at *1 (Pa.
Super. filed May 1, 2014) (footnotes omitted).
We adopt the PCRA court’s summary of the subsequent procedural
history. See PCRA Ct. Op. & Order, 7/1/20, at 2-6. Briefly, we note that on
May 7, 2018, a state parole officer arrested Appellant for three violations of
the terms of his probation, including testing positive for amphetamines,
having a cell phone that contained pornographic images, and accessing
pornographic chatrooms. The trial court held a revocation hearing on June 5,
2019. On July 23, 2019, the trial court resentenced Appellant to a term of
two to five years’ incarceration. Id. at 5. Appellant filed a motion to modify
sentence, which the trial court denied. Id. Appellant filed a notice of appeal,
but this Court dismissed that appeal for failure to comply with Pa.R.A.P. 3517
on December 30, 2019. Id.
On March 30, 2020, Appellant filed a timely pro se PCRA petition. Id.
at 6. The PCRA court appointed counsel for Appellant, and counsel filed an
amended PCRA petition on April 29, 2020. Id. Appellant raised three claims
relating to the June 5, 2019 probation revocation hearing: (1) no evidence
was submitted to establish Appellant failed a drug test; (2) the state parole
officer’s search of a cell phone was illegal because the officer lacked a search
warrant; (3) no evidence was presented that Appellant possessed or viewed
pornography found on that cell phone. Am. PCRA Pet., 4/29/20, at 4-5.
The PCRA court held a hearing on May 5, 2020, at which Appellant
testified. PCRA Ct. Op. & Order at 6. At the hearing, Appellant rejected the
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Commonwealth’s offer to reinstate his direct appeal rights and instead elected
to proceed with the PCRA hearing. Id. at 7 n.1 (citing N.T. PCRA Hr’g, 5/5/20,
at 2-3).
On July 1, 2020, the PCRA court entered an opinion and order denying
Appellant’s petition. The PCRA court noted that Appellant’s claims were not
cognizable under the PCRA and should have been raised on a direct appeal.
Id. at 7. However, the PCRA court also addressed Appellant’s claims on the
merits, construing them as claims of ineffective assistance of counsel. Id.
The PCRA court concluded that Appellant failed to establish that his counsel at
the probation revocation hearing was ineffective. Id. at 7-10.
Appellant simultaneously filed a timely notice of appeal and a Pa.R.A.P.
1925(b) statement on July 20, 2020. The PCRA Court issued a Rule 1925(a)
opinion adopting the analysis set forth in its July 1, 2020 opinion and order
denying Appellant’s PCRA petition. See PCRA Ct. Op., 9/15/20, at 2-3.
Appellant raises the following issues on appeal:
1. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that his parole agent failed to present any evidence that he failed his drug screen.
2. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that his parole agent’s search of the cell phone was illegal as no search warrant existed for the cell phone.
3. The [PCRA] court erred in denying [] Appellant’s [PCRA petition] in regards to the issue that [] Appellant’s parole agent failed to present any evidence that he was in possession of or viewed pornography on the cell phone which belonged to Hikeem Frost, and to which Frost testified to using to view pornography.
-3- J-A02030-21
Appellant’s Brief at 4 (some capitalization omitted).
Appellant’s first and third claims both relate to the sufficiency of
evidence supporting his probation violations. Specifically, Appellant’s first
claim challenges the results of his drug test and his third claim challenges the
evidence establishing that he possessed or viewed pornography. See id. at
12-13, 18-20. In his second claim, Appellant alleges that certain evidence
presented at the revocation hearing should have been suppressed because
the parole officer did not have a warrant to search the cell phone. See id. at
14-18.
The Commonwealth responds that all of Appellant’s issues are waived
because they could have been raised in his direct appeal, which was dismissed.
Commonwealth’s Brief at 4-6. The Commonwealth also argues that
Appellant’s claims not cognizable under the PCRA because Appellant presents
them as if they were being raised on direct appeal. Id. at 6-8.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted). This Court “may affirm a decision of the
[PCRA] court if there is any basis on the record to support the [PCRA] court’s
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actions, even if we rely on a different basis.” Commonwealth v. Moser, 999
A.2d 602, 606 n.5 (Pa. Super. 2010) (citation omitted).
“To be entitled to PCRA relief, [the petitioner] must establish, by a
preponderance of the evidence, that his conviction or sentence resulted from
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),
and that the allegation of error has not been previously litigated or waived.”
Mitchell, 105 A.3d at 1265-66 (citation omitted); see also 42 Pa.C.S. §
9543(a)(3) (stating that in order to eligible for relief, the petitioner must plead
and prove “the allegation of error has not been previously litigated or
waived”). A claim is waived for the purposes of the PCRA when “the petitioner
could have raised it but failed to do so before trial, at trial . . . [or] on appeal
or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
“Generally, an appellant may not raise allegations of error in an appeal from
the denial of PCRA relief as if he were presenting the claims on direct appeal.”
Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (citation
omitted); see also Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
780 (Pa. Super. 2015) (stating that “[a]t the PCRA stage, claims of trial court
error are either previously litigated (if raised on direct appeal) or waived (if
not)” (citation omitted)).
Here, the PCRA court concluded that Appellant’s claims were not
cognizable under the PCRA because they should have been raised on direct
appeal. PCRA Ct. Op., 9/15/20, at 2.
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Following our review, we conclude that Appellant’s claims are waived for
the purposes of the PCRA. Both of Appellant’s sufficiency claims could have
been presented on direct appeal as a challenge to the revocation of his
probation. See Commonwealth v. Perreault, 930 A.2d 553, 557-59 (Pa.
Super. 2007) (reviewing the sufficiency of the evidence supporting the
defendant’s probation violations on direct appeal). Similarly, Appellant’s
suppression claim could have been raised before the revocation of Appellant’s
probation.1 See Commonwealth v. Arter, 151 A.3d 149, 152 (Pa. 2016)
(reviewing the denial of a motion to suppress prior to a parole revocation
hearing on direct appeal).
As all of Appellant’s claims could have been raised before the revocation
hearing and/or on direct appeal concerning the revocation of his probation and
resentencing, therefore we conclude that all of his claims have been waived
under the PCRA. See 42 Pa.C.S. § 9544(b); Price, 876 A.2d at 995; see
also Reyes-Rodriguez, 111 A.3d at 780. For these reasons, we affirm the
PCRA court’s denial of Appellant’s PCRA petition, albeit on a different basis
than the PCRA court. See Ousley, 21 A.3d at 1242; see also Moser, 999
A.2d at 606 n.5.
Order affirmed.
____________________________________________
1Although the PCRA court also addressed this suppression issue in the context of an ineffective assistance claim, Appellant does not allege his prior counsel was ineffective in failing to argue that the contents of the cell phone should have been suppressed. Compare Appellant’s Brief at 14-18 with PCRA Ct. Op. & Order at 9-10.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/25/2021
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