Com. v. Peno, K.
1795 MDA 2015
| Pa. Super. Ct. | Oct 13, 2016Background
- Kevin Peno was convicted in 1998 of multiple sexual offenses against his stepchildren and possession of a firearm; sentenced to an aggregate term of 7.5–15 years plus 20 years probation. He refused sex-offender treatment while incarcerated and served the full 15-year maximum.
- Before release in July 2014, the trial court (on remand after an earlier appellate decision) modified probation to include GPS-based geographic restrictions enforced by an electronic ankle monitor.
- On July 25, 2014, probation received a tamper alert. A probation officer found the electronic unit disassembled and parts hidden in Peno’s sock; Peno was later convicted in summary proceedings of criminal mischief for tampering with the device.
- A Gagnon II revocation hearing in March 2015 found Peno violated probation both by tampering with the GPS device (technical violation) and by the criminal mischief conviction. The court sentenced him to 3 years, 9 months, 24 days to 20 years imprisonment plus 20 years probation (sentence later adjusted for a calculation error).
- Peno appealed, arguing (1) insufficient evidence for revocation/criminal mischief, (2) GPS monitoring was an unconstitutional/improper probation condition, and (3) the sentence was excessive.
Issues
| Issue | Peno's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for revocation (tampering/ criminal mischief) | Evidence was insufficient; damage was minor/unintentional | PO Zurin’s testimony and the physical condition of the device show knowing tampering; Commonwealth need only prove by preponderance | Evidence sufficient to support technical violation; criminal-mischief conviction cannot be challenged here because no direct appeal was taken and is waived |
| Legality/constitutionality of imposing GPS as probation condition | GPS was imposed without hearing/consent and violated statutes, due process, and Fourth Amendment | Even if GPS imposition were improper, that does not excuse new criminal conduct or tampering; illegality of condition doesn’t nullify separate offenses | Rejected; illegality of condition (not decided) would not justify damaging device or avoid revocation |
| Collateral attack on criminal mischief conviction via revocation appeal | Peno attempted to challenge his summary conviction in this appeal | Summary conviction became final and is not reviewable in probation revocation appeal | Waived/lack of jurisdiction to review the separate criminal conviction on this appeal |
| Discretionary aspects of sentence (excessiveness of confinement) | Sentence of total confinement for a technical violation was excessive | Sentence justified by new criminal conviction, likelihood of future offenses, and need to vindicate court authority; Peno’s history (refusal of sex-offender treatment) supports confinement | No abuse of discretion; sentence affirmed — all three Edwards factors applied to support confinement |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (procedural due process standards for parole revocation)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (Gagnon I/Gagnon II framework for probation/parole revocation)
- Commonwealth v. Biagini, 655 A.2d 492 (Pa. 1995) (illegality of prior action does not justify commission of new offenses)
- Commonwealth v. Jackson, 924 A.2d 618 (Pa. 2007) (unlawful police action does not automatically immunize later criminal acts)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (probation revocation appeal cannot be used to collaterally attack underlying conviction)
- Commonwealth v. Edwards, 71 A.3d 323 (Pa. Super. 2013) (standards for imposing total confinement after probation revocation)
- Commonwealth v. Allshouse, 969 A.2d 1236 (Pa. Super. 2009) (burden of proof and due process in Gagnon II hearings)
- Commonwealth v. Perrault, 930 A.2d 553 (Pa. Super. 2007) (standard of review for sufficiency challenges)