COMMONWEALTH of Pennsylvania, Appellee v. Michelle WRIGHT, Appellant.
No. unknown
Superior Court of Pennsylvania.
Filed May 8, 2015.
114 A.3d 133
The Commonwealth echoes the trial court‘s rationale and relies on Harris. In addition, it argues that Appellant‘s defense hinged on the identity of the driver and that Corporal Carrick‘s report and testimony assumed Appellant was the driver. It highlights that Officer Gregory, Mr. Sullenberger, Kevin Roles, Dr. Perry, and Dr. Roslonski all testified regarding Appellant being the driver. The Commonwealth adds that Appellant‘s own expert testified that his own analysis of who was driving was not altered by Corporal Carrick‘s testimony that differed from his report. Indeed, Appellant‘s expert, Mr. Laino, dismissed both Corporal Carrick‘s report and testimony because it was not based on an independent analysis.
A discovery violation and testimony exceeding the scope of the expert‘s report, as a result of court questioning, do not automatically command a new trial. Appellant still must establish that the introduction of the expert testimony caused him prejudice to the degree that it affected his trial strategy or likely affected the outcome of the proceedings. Commonwealth v. Hood, 872 A.2d 175 (Pa.Super.2005); Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super.2003); see also Commonwealth v. Henry, 550 Pa. 346, 706 A.2d 313 (1997) (assuming arguendo that expert testimony exceeded the scope of expert‘s report did not result in a successful ineffective assistance of counsel claim where counsel failed to object because there was overwhelming evidence of guilt).
The trial court and Commonwealth‘s reliance on Harris is misplaced because the Commonwealth admitted it was aware that Corporal Carrick had changed his opinion and the testimony objected to was elicited by the trial court and not by defense counsel in an attempt to discredit the officer. However, we agree that Appellant cannot establish prejudice.
Instantly, Appellant‘s own expert reviewed Corporal Carrick‘s written report and heard his different in-court testimony. He opined that neither of the conclusions reached by Corporal Carrick affected his own expert opinion that Appellant‘s son was driving. Furthermore, as it relates to preparation, Corporal Carrick‘s testimony in response to the court‘s questioning was consistent with the conclusion reached by Mr. Sullenberger. Thus, defense counsel was already prepared to rebut that testimony. We acknowledge that based on Corporal Carrick‘s change in stance, evidence was introduced buttressing Mr. Sullenberger‘s testimony as to the point of impact. However, in light of Appellant‘s own admissions to two doctors and Officer Gregory, as well as Kevin Roles’ testimony, we cannot agree that jury would have determined that Appellant was not the driver.
For the aforementioned reasons, we affirm.
Judgment of sentence affirmed.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
* Former Justice specially assigned to the Superior Court.
Michelle Wright appeals from the judgment of sentence of eleven and one-half to twenty-three months imprisonment followed by five years probation that the trial court imposed after she was found to be in violation of the terms of her probation. We find that Appellant had concluded serving her probationary term when the probation was revoked and that her violation of probation (“VOP“) proceeding was not held within a reasonable period after her probation violations. We therefore vacate the judgment of sentence.
On November 14, 2005, Appellant entered a negotiated guilty plea to one count of welfare fraud in return for a sentence of three years of reporting probation and restitution in the amount of $13,967. No petition to revoke the probation appears in the record nor does the docket indicate that one was filed. A violation of probation (“VOP“) hearing was conducted on December 2, 2013. At that time, the following occurred. Appellant objected to the court‘s jurisdiction to conduct a VOP hearing and claimed that her probationary period expired years before the hearing was conducted. The Commonwealth countered that Appellant absconded from probation during the probationary period so that Appellant remained subject to probation.
To establish Appellant‘s status as absconder, Probation Officer Brian Brown testified as follows. According to Appellant‘s probation records, Appellant reported to her probation officer until June 25, 2007, and paid $22.50 in restitution. Mr. Brown then testified that Appellant re-initiated contact with the probation office on December 2, 2009. N.T. VOP, 12/2/13, at 8 (“THE PROBATION OFFICER: It was noted that there was contact June 25, 2007, and then not until December 2, 2009.“); Id. at 18 (“I wrote down that she had contact on June 25, 2007, and didn‘t have contact again until December 2, 2009.“). Officer Brown could not testify personally as to these events, his testimony being premised upon notations in Appellant‘s probation records by her previous probation officer. Officer Brown testified that, “According to the last probation officer‘s notes, from 6/25/07 she absconded until December 2, 2009.” Id. at 7-8.
The Commonwealth also reported to the trial court that Appellant had a direct violation of the terms of her probation in the form of 2013 federal convictions for bank fraud and conspiracy. Appellant objected to the Commonwealth‘s characterization of those convictions as probation violations and maintained that her probationary period had expired by 2013. The Commonwealth responded that Appellant was a probation absconder and that her probationary period had not expired. Based upon the 2013 federal convictions, the Commonwealth sought a term of incarceration.
Appellant then objected to the timeliness of the revocation proceedings. She also claimed that she could not be found to be a probation absconder because such a finding would be premised solely upon hearsay in her probation records consisting of the notations that she did not report from June 25, 2007, to December 2, 2009. The trial court concluded that Appellant violated her probation based upon technical violations as well as a direct violation, the federal convictions. It imposed “11 and a half to 23 months incarceration with immediate parole to be followed by five years of reporting probation.” Id. at 26.
Appellant filed a motion for reconsideration of the revocation decision and the sentence, that motion was promptly denied, and this timely appeal followed. She raises the following issues for our review:
- Did not the trial court lack jurisdiction or authority to revoke appellant‘s
probation, where that probation had naturally expired approximately five years prior to the revocation hearing and where the court‘s conclusion that appellant had absconded from supervision was not justified by the evidence? - Did not the trial court violate appellant‘s right to a speedy revocation hearing, where no allegations of technical violations were brought and no hearing was held until five years after the natural expiration of her supervision?
Appellant‘s brief at 3.
Initially, we note that, in an appeal from a sentence imposed after the court has revoked probation, we can review the validity of the revocation proceedings, the legality of the sentence imposed following revocation, and any challenge to the discretionary aspects of the sentence imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa.Super.2013) (en banc). In this case, Appellant‘s position pertains to the validity of the proceedings. Commonwealth v. Ortega, 995 A.2d 879 (Pa.Super.2010). “In a revocation hearing the Commonwealth has the obligation of establishing its case by a preponderance of the evidence.” Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371, 1374 n. 2 (1983).
We also observe that the hearing was extremely disjointed, with the Commonwealth maintaining that Appellant was an absconder and thus still subject to probation, that she violated probation by failing to report, and that she violated probation by committing the 2013 federal offenses. Appellant continually interjected that she was no longer on probation, that the VOP hearing was not held in a timely manner, and that the Commonwealth did not prove that she was an absconder since that finding could not be premised upon the hearsay proof submitted being the notations made by the prior probation officer.
We first discuss the issue of whether Appellant was a probation absconder since that finding impacts the remaining issues. Appellant maintains that it was impermissible for the trial court to determine that she was a probation absconder based upon inadmissible hearsay consisting of the notations made by the prior probation officer, who failed to testify. We conclude that we need not address the hearsay issue since, even if the notations were improper hearsay admitted to establish that Appellant was an absconder, those same hearsay notations likewise proved that Appellant had finished serving her probationary term when the direct violations occurred and that the VOP hearing was not conducted within a reasonable period after the 2007-2009 reporting violations.
In Ortega, supra, at 885, we held that a defendant‘s probation will be “extended by his ongoing delinquency.” Herein, the notations in Appellant‘s file indicated that she was on probation from November 14, 2005 to June 25, 2007, nineteen months, and that she re-initiated contact with her probation officer on December 2, 2009. Officer Brown stated unequivocally that Appellant was no longer an absconder as of December 2, 2009. N.T. VOP Hearing, 12/2/13 at 7-8 (emphasis added) (“According to the last probation officer‘s notes, from 6/25/07 she absconded until December 2, 2009.“)1 As of December 2, 2009, Appellant had to serve an additional seventeen months probation. Thus, Appellant‘s probationary term, according to the Commonwealth‘s own proof, expired on May 2,
In rendering this finding, we observe the following. The Commonwealth, as noted, has the burden of proof in a probation revocation setting. Thus, it had to establish that Appellant was a probation absconder. Under Ortega, the probationary term is extended only by the period of delinquency. Although the Commonwealth presented evidence that Appellant resumed contact with her probation officer on December 2, 2009, it presented not a scintilla of evidence that Appellant was an absconder after that date. Instead, her probation officer admitted that she was no longer considered an absconder on December 2, 2009. Thus, Appellant‘s absconder status ceased at that time.
Assuming, arguendo, that Appellant‘s delinquency began on June 25, 2007, and expired on December 2, 2009, her probation, as extended by Appellant‘s period of delinquency, ended on May 2, 2011. Her probation was not revoked until December 2, 2013, which was thirty-one months after expiration of her probationary period, and four years after she committed the 2007-2009 probation violations consisting of the failure to report and pay restitution.
We are aware that a sentence for a violation of the terms of probation can be imposed after the expiration of the probationary period if the revocation is based on a violation which occurred within the probationary period. Commonwealth v. Lipton, 52 A.2d 521 (Pa.Super.1975). However, in that circumstance, the probation must be revoked and the sentence must be imposed within a reasonable time after the expiration of the probationary period. Id. at 522 (“When a sentence is imposed after the expiration of a probationary period, based upon a violation which occurred within the period (the situation in the case before us), the probation must be revoked and the sentence imposed within a reasonable time after the expiration of that period.“).
Similarly,
(B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.
The bolded language has been interpreted as requiring a probation violation hearing within a reasonable time. In determining whether a VOP hearing is held within a reasonable period, we examine “the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay.” Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super.2009) (quoting Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa.Super.2004)).
We now examine both aspects of the trial court‘s finding that Appellant violated her probation. It found a direct violation due to the 2013 federal convictions as well as technical violations consisting of the failure to report and pay restitution from 2007-2009. As noted, when a violation of probation occurs within the probationary period, but the VOP hearing occurs after probation expires, probation can be revoked if the VOP hearing is held within a reasonable period. Herein, the Commonwealth reported that Appellant was con-
THE COURT: Why are we here?
THE PROBATION OFFICER: For a direct violation.
THE COURT: That occurred after my probation ended?
THE PROBATION OFFICER: It did, correct.
THE COURT: Why did you schedule a hearing?
THE PROBATION OFFICER: I just took the case about a month ago. The direct violation happened—but these cases tend to not naturally expire because it‘s financial, so they get really clouded.
N.T. VOP, 12/2/13, at 5. Since Appellant‘s probation was over as of May 2, 2011, a conviction occurring in 2013 cannot serve as a basis for revoking that probation.
We stress that, at the probation revocation hearing, the Commonwealth provided no proof as to when these federal crimes were committed. It reported only that the conviction was in 2013. In its brief, the Commonwealth suggests that the crime occurred while Appellant was still on probation herein. Commonwealth‘s brief at 3. It cites to pages ten and twenty-one of the VOP hearing in support of this factual assertion. The transcript provides no support for this position. At page ten, the district attorney stated that the federal “conviction occurred this year,” which was 2013. N.T. VOP Hearing, 12/2/13, at 10. Page twenty-one does not mention the federal crimes. Thus, the record cannot sustain a finding that Appellant was charged in the federal case before her probation expired in 2011. Moreover, Appellant was no longer a fugitive from justice as of December 2, 2009. Thus, we reject the Commonwealth‘s assertion that, while she was “a fugitive, defendant defrauded a federal bank, and was convicted in federal court of bank fraud and criminal conspiracy.” Commonwealth‘s brief at 2.
We now examine whether probation was properly revoked due to Appellant‘s alleged failure to report and pay restitution from June 25, 2007 to December 2, 2009. We conclude that the VOP hearing for those violations was not held within a reasonable period after the violations occurred. Herein, the length of the delay was significant, four years after the violations occurred and thirty-one months after probation expired. We believe this delay was unreasonable. Commonwealth v. Stancil, 362 Pa.Super. 276, 524 A.2d 505 (1987), is instructive. Therein, we held that the defendant‘s counsel was ineffective for failing to object to an unexplained and lengthy delay in conducting a VOP hearing. The defendant failed to make required restitution, and, three years after the end of his probationary term, his probation was revoked based on that default.
We observed that, even though “there is no presumptive period in which a defendant‘s probation must be revoked, revocation hearings must be held with reasonable promptness after a probation officer is chargeable with knowing that probation has been violated.” Id. at 506-07. We noted that the Commonwealth did not offer any reason for the delay and that it was a long one. We specifically indicated, “Although Appellant does not allege any prejudice from this delay, we have held that in cases where probation revocation hearings are not held until after the expiration of the probationary term, a certain
In this case, the Commonwealth knew about the 2007-2009 reporting violations when Appellant reinitiated contact with her probation officer on December 2, 2009. See Commonwealth v. Bomberger, 214 Pa.Super. 429, 257 A.2d 630, 632 (1969) (the probation “department which is charged with the duty to investigate whether appellant obeyed the terms of his probation certainly should have known of his failure to make restitution” and defendant‘s VOP hearing was not held within a reasonable period after he defaulted on restitution payments). It offered absolutely no reason for failing to conduct VOP proceedings until December 2, 2013, four years after Appellant violated her probation by failing to report, which weighs in favor of Appellant herein. McCain, supra at 384 (“absence of adequate explanation for the delay must be weighed” against Commonwealth). In this connection, we note that, since there was no evidence that Appellant committed the federal crimes before May 2, 2011, the Commonwealth cannot contend that the delay resulted from its decision to await the outcome of the federal trial.
Finally, Appellant was presumptively prejudiced by this delay since it occurred two and one-half years after her probation was over. Additionally, we find prejudice because the trial court‘s decision to sentence her to jail was affected by the 2013 convictions, which would not have been a consideration had the VOP hearing been held promptly after Appellant began reporting to her probation officer on December 2, 2009, when the reporting violations ceased. Specifically, we find that the trial court elected to sentence Appellant to incarceration based solely upon the 2013 offenses due to the following. The Commonwealth requested a term of imprisonment because Appellant committed the 2013 federal crimes, which, as noted, it claimed were direct probation violations. The trial court agreed that a jail sentence was appropriate based upon these direct violations. N.T. VOP, 12/2/13, at 13 (where the trial court indicated that Appellant should serve a period of incarceration given that she “has a direct violation“).
In conclusion, we find the following. The Commonwealth established that Appellant‘s period of delinquency extended her probation to May 2, 2011, the 2013 federal crimes cannot serve as a basis for a revocation of Appellant‘s probation, and Appellant‘s December 2, 2013 VOP hearing was untimely as to her alleged reporting violations, which occurred from 2007 to 2009.
Judgment of sentence vacated. Jurisdiction relinquished.
Judge SHOGAN joins the Opinion.
Justice FITZGERALD concurs in the result.