Com. v. Major, B.

J-A01002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BYSIL MAJOR                                :
                                               :
                       Appellant               :   No. 613 EDA 2018

            Appeal from the Judgment of Sentence February 9, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003833-2016


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 28, 2020

        Appellant Bysil Major appeals from the judgment of sentence imposed

following the revocation of his probation. Appellant argues that the trial court

infringed upon his right to counsel of his choice by denying his request for a

continuance. Appellant also contends that the trial court erred in denying his

motion to continue the violation of probation (VOP) hearing pending the

disposition of the new charges. Lastly, Appellant challenges the sufficiency of

the evidence supporting the probation violation. We affirm.

        The trial court thoroughly summarized the underlying facts and

procedural history of this matter. See Trial Ct. Op. at 1-5. Briefly, Appellant

was arrested and charged with possession with intent to deliver a controlled

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A01002-20



substance (PWID), knowing and intentional possession, and conspiracy on

December 1, 2015. 1 On September 20, 2016, Appellant entered a negotiated

guilty plea to PWID. That same day, the trial court sentenced Appellant to an

agreed-upon term of thirty months’ reporting probation.          As part of his

probation, Appellant was ordered to pay mandatory court costs, participate in

vocational training, and maintain employment. See Trial Ct. Order, 9/20/16.

At the hearing, Appellant was represented by private counsel, A. Charles

Peruto, Esq. (Attorney Peruto).

        On August 18, 2017, while Appellant was on probation, he was arrested

and charged with PWID, resisting arrest, and possession of a controlled

substance.2 See Docket No. MC-51-CR-0024692-2017. Appellant’s probation

officer issued a bench warrant violation and the trial court held a Gagnon I3

hearing on September 18, 2017.

        On September 26, 2017, the Commonwealth filed a motion to proceed

with the VOP hearing pursuant to Commonwealth v. Kates, 

305 A.2d 701

(Pa. 1973) (holding that it is constitutionally permissible to hold a probation

revocation hearing after arrest, but prior to trial, on a charge that constitutes



____________________________________________


1   35 P.S. §§ 780-113(a)(30), (16), and 18 Pa.C.S. § 903(c), respectively.

235 P.S. § 780-113(a)(30), 18 Pa.C.S. § 5104, and 35 P.S. § 780-113(a)(16),
respectively.

3   Gagnon v. Scarpelli, 

411 U.S. 778

(1973).


                                           -2-
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a probation violation) (Daisy Kates). The trial court listed the matter for a

status hearing on September 28, 2017.

        At the status hearing, Attorney Peruto indicated that although he had

represented Appellant during the negotiated plea proceedings, he had not

been retained to represent Appellant for purposes of his VOP. See N.T. Status

Hr’g, 9/28/17, at 1.       The trial court granted Attorney Peruto’s request to

withdraw and agreed to appoint counsel on Appellant’s behalf.

Id. The matter was

re-listed for October 19, 2017, at which time the trial court appointed

Stephen Seidel, Esq. (appointed counsel) to represent Appellant. The trial

court again re-listed the matter for October 27, 2017, but ultimately moved

the hearing to November 29, 2017 to accommodate appointed counsel’s

schedule.4 See N.T. VOP Hr’g, 11/29/17, at 7.

        At the November 29, 2017 hearing, appointed counsel informed the trial

court that Appellant had apparently re-retained Attorney Peruto’s office for

the VOP hearing, although Attorney Peruto had not formally entered his

appearance. See

id. at 5.

At that time, Attorney Peruto’s associate, Scott

Sigman, Esq. (Attorney Sigman) appeared on Attorney Peruto’s behalf.5

Id. at 9.

   Attorney Sigman indicated that Attorney Peruto was in Montgomery


____________________________________________


4 The trial court docket indicates that appointed counsel             and   the
Commonwealth were attached for the rescheduled VOP hearing.

5 The record indicates that Attorney Sigman had previously appeared on
Appellant’s behalf at prior hearings when Attorney Peruto was unavailable for
court.

                                           -3-
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County handling another matter and requested that the trial court delay the

VOP hearing until later that afternoon.

Id. at 12.

       The trial court indicated that it had other matters scheduled for that day

and that the Commonwealth was ready to proceed with a police witness, who

had been subpoenaed for the hearing.

Id. at 11.

  The trial court further

explained that

       [o]n September 28, [2017], Attorney Peruto stated that he was
       not going to represent Appellant and that was why this [c]ourt
       appointed counsel, and, quite frankly, used taxpayers’ money to
       do so. In retrospect, I should have probably checked further to
       see if [Appellant] could afford counsel, but it was represented to
       this court that he [c]ould not, and obviously he was in custody, so
       in fairness to [Appellant], I appointed counsel on his behalf. So
       then it was continued to [October 19th] and on that date, still,
       you know, there was a difficulty with whoever was going to be
       appointed. I rolled it over again to October 27, and then from that
       date . . . rescheduled it [for today]. So there were close to three
       months during which [Appellant] could have resolved this
       otherwise and did not. The fact that he or someone on his behalf
       chose to attempt to retain your office last night, which, you know,
       on the eve of a hearing, whether today or tomorrow,[6] it is of no
       import to me, because that’s just not the way we do things. I’m
       going to proceed with the [VOP] hearing as previously scheduled.

       Now, right now I have [appointed counsel] as [counsel of record].
       Unless you wish to represent him in the hearing now, I’ll consider
       that, but otherwise we’re going forward. I’m not going to wait for
       [Attorney] Peruto.

Id. at 13-15.


____________________________________________


6 The record indicates that the trial court had another matter scheduled for
trial on the same day as Appellant’s VOP hearing. However, the trial court did
not yet know whether that matter would result in a plea or if it would proceed
to trial.

                                           -4-
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      After Attorney Sigman stated that he would represent Appellant, the

trial court provided additional time for Attorney Sigman and appointed counsel

to discuss Appellant’s case before proceeding with the hearing.

Id. at 16.

The trial court then conducted a colloquy to confirm that Appellant understood

his rights.

Id. at 17-24.

The trial court explained to Appellant that Attorney

Peruto was unavailable and that he had not entered his appearance in

Appellant’s case.

Id. at 17.

Appellant stated that he wanted Attorney Sigman

to represent him for the hearing.

Id. The trial court

ultimately concluded that

      [b]ased upon this [c]ourt’s inquiry with [Appellant] and with
      counsels’ representations and with the additional time that was
      afforded to [Attorney] Sigman to consult with [Attorney] Seidel
      and prepare with this matter, I’m satisfied that [Attorney] Sigman
      can proceed, and I’m satisfied that [Appellant’s] decision to have
      [Attorney] Sigman represent him at this point in time is knowing,
      intelligent and voluntary.

Id. at 24.

      At the start of the VOP hearing, Attorney Sigman made an oral motion

to suppress, arguing that the police

      lacked probable cause and/or reasonable suspicion to ever stop or
      pull over [Appellant’s] vehicle. This was a vehicle-stop case. The
      vehicle was pulled over by police without having any reasonable
      suspicion and/or probable cause to do so.

      After doing so, he was questioned, provided all documentation,
      and they still proceeded to do further things in violation of his
      constitutional rights under the Pennsylvania and the United States
      constitutions.

Id. at 25.

      Further, Attorney Sigman stated:


                                       -5-
J-A01002-20


      I’ll put an objection and motion on the record that my client would
      prefer to have or request to have a jury trial in this matter, a
      motion to suppress in this matter on the underlying case. There
      would be no harm or prejudice of the Commonwealth because
      [Appellant is] in custody. He’s not going anywhere. He would
      prefer to proceed with his motion to suppress, his preliminary
      hearing, his jury trial. He intends to fight [his new charges] to
      the fullest extent of the law. He would obviously remain detained
      on Your Honor’s detainer. There would be no harm to the
      Commonwealth. He’s not going anywhere.

Id. at 26-27.

   The trial court agreed to consider Appellant’s suppression

motion, but denied his request to continue the matter pending the resolution

of the new charges.

Id. The Commonwealth presented

Officer Vincent Hall, who testified

regarding the circumstances of Appellant’s arrest for the new charges.

Id. at 28.

In explaining the reasons for stopping Appellant’s vehicle, Officer Hall

stated that Appellant’s windows had a “medium tint,” which was “dark, but

you could see through it.”

Id. at 31.

Officer Hall also indicated that Appellant

had a “clear, plastic cover” on his license plate.

Id. Officer Hall explained

that motorists are “not allowed to have those over the license plate [because]

when the light hits it a certain way you can’t read the plate.”

Id. Officer Hall testified

that when he stopped Appellant, he detected “a

strong odor of raw marijuana coming from the vehicle.”

Id. at 29.

After

running Appellant’s license, Officer Hall “observed a package in the rear seat

of the vehicle.”

Id. At that time,

Officer Hall “removed [Appellant and] placed

him in the patrol car,” at which time Appellant “began to actively resist.”

Id. at 29-30.

Officer Hall stated that Appellant eventually ended up on the ground


                                     -6-
J-A01002-20



struggling with both Officer Hall and his partner, Officer Monaghan.7

Id. After sixty seconds,

Officer Hall stated that Appellant broke free and began running

down the street.

Id. at 30.

At that time, Officer Monaghan “gave chase,”

while Officer Hall remained at Appellant’s vehicle and called for backup.

Id. After backup officers

arrived, Officer Hall drove his patrol vehicle down the

street and located Appellant and Officer Monaghan.

Id. Although Appellant was

“still resisting,” the officers were able to place Appellant in handcuffs and

effectuate the arrest.

Id. After Officer Hall

returned to Appellant’s vehicle, he recovered the

package from Appellant’s car, which was a vacuum-sealed bag that appeared

to contain marijuana.

Id. Officer Hall testified

that a narcotics identification

test (NIK test) came back positive for marijuana.

Id. at 30.

He also testified

to the contents of a property receipt, in which Officer Hall stated that police

recovered a “[g]reen leafy substance, wrapped in vacuum-sealed plastic,

approximately 520-grams. And one sandwich bag containing a green leafy

substance. 540-grams total.”

Id. at 35;

see also Ex. C-1. The property

receipt also confirmed the results of the field test.

Id. Ultimately, the trial

court denied Appellant’s suppression motion,

explaining that Officer Hall provided credible testimony to establish the basis

for the vehicle stop and for Appellant’s subsequent arrest.

Id. at 58.

Further,

the trial court explained that

____________________________________________


7   Officer Monaghan’s first name does not appear in the record.

                                           -7-
J-A01002-20


        The narcotics were in clear view of the officer after [he smelled]
        the marijuana. It doesn’t take a rocket scientist to figure out that
        one and one often makes two. And [Appellant’s] actions, more
        importantly, in response to the command of the officer to step out
        of the vehicle and go towards his vehicle [were] illuminating. He
        fought with these officers a great deal. And that is called
        consciousness of guilt. It’s also called resisting arrest.

        So at every step, the officer was justified in doing what he did.
        There was no violation [of Appellant’s rights]. I’m finding that as
        a matter of law and fact with respect to this motion. With respect
        to the circumstances as testified to by this officer, I’m finding that
        indeed this defendant did violate the terms of this [c]ourt’s
        supervision by his criminal activity as testified to. So I find that
        there was a clear violation and I’m revoking his probation.

Id. at 59-60.

        The trial court deferred sentencing for preparation of a pre-sentence

investigation (PSI) report and a mental health evaluation.

Id. at 60.

  On

February 9, 2018, the trial court sentenced Appellant to a term of two to five

years’ imprisonment.8 Sentencing Order, 2/9/18, at 1.

        Appellant filed a timely notice of appeal on February 12, 2018.          He

subsequently filed a timely court-ordered Pa.R.A.P. 1925(b) statement. The

trial court filed a responsive Rule 1925(a) opinion addressing Appellant’s

claims.

        Appellant raises the following issues for our review:

        1. Whether the trial court erred by depriving [Appellant] of his
           choice of his counsel on November 29, 2017, the day of the
           Daisy Kates hearing, in that the trial court judge would not
           wait until 2:00 p.m., for [Attorney] Peruto to appear, after he


____________________________________________


8   The certified record does not contain a transcript of the sentencing hearing.

                                           -8-
J-A01002-20


         was just retained the night before, and he was the counsel of
         choice of [Appellant].

      2. Whether the trial court erred by not continuing the November
         29, 2017 Daisy Kates hearing since the new arrest had not
         even had a preliminary hearing and [Appellant] could have re-
         butted the testimony of the arresting officer but didn’t want to
         testify at the Daisy Kates hearing because any testimony he
         made in court could be used against him for cross examination
         at any future proceeding, i.e. motion to suppress and trial of
         this very case.

      3. Whether the trial court erred by finding a violation when the
         Commonwealth failed to provide a seizure analysis and/or
         expert scientific testimony concerning the chemical analysis of
         the alleged contraband.

Appellant’s Brief at xiv.

      In his first issue, Appellant argues that the trial court infringed upon

Appellant’s right to counsel of his choice by refusing to continue the VOP

hearing in order to accommodate Attorney Peruto’s schedule.

Id. at 19.

Specifically, Appellant asserts that the trial court denied his continuance

request without balancing his right to counsel of his choice against the

Commonwealth’s interest in expediency.

Id. at 22.

Further, Appellant asserts

that the Commonwealth took no position on the continuance request, offered

no argument, and “appeared to have no interest that would be affected by the

change in counsel and brief adjournment.”

Id. at 23.

Therefore, Appellant

contends that his “right to privately retained counsel should have prevailed.”

Id. The Commonwealth responds

that under the specific facts of the case,

the trial court did not abuse its discretion in denying Appellant’s request to



                                     -9-
J-A01002-20



continue the matter until later that same day. Commonwealth’s Brief at 10.

The Commonwealth notes that “[Attorney] Peruto initially represented

[Appellant] at the trial stage, and affirmatively withdrew from representing

him on the subsequent [VOP].”

Id. at 8.

The Commonwealth asserts that,

as a result of Attorney Peruto’s withdrawal, the VOP matter was delayed for

two months in order for the trial court to appoint new counsel and then to

accommodate appointed counsel’s schedule and allow him time to prepare the

case.

Id. at 9.

  The Commonwealth contends that during the two-month

period, Appellant “could have retained any counsel of his choosing. Instead,

he waited until the night before his scheduled [VOP] hearing.”

Id. Further, although Attorney

Peruto represented Appellant in his original guilty plea, the

Commonwealth argues that “nothing in the record suggests that he was

informed about the circumstances of [Appellant’s] new arrest that formed the

basis of his alleged direct violation of probation.”

Id. Instead, Attorney Peruto’s

associate, Attorney Sigman, “who had appeared on [Appellant’s]

behalf in the past, was present and prepared to represent [Appellant]” for the

VOP hearing.

Id. The Commonwealth adds

that the trial court also “delayed

the hearing to allow [Attorney] Sigman to discuss the case with [appointed

counsel], who had also appeared and [was] prepared to represent

[Appellant].”

Id. The Commonwealth concludes

that, “[g]iven these facts,

the trial court did not abuse its discretion in denying defendant’s request to

delay his [VOP] hearing.”

Id. – 10 –

J-A01002-20



      We review a trial court’s grant or denial of a continuance for an abuse

of discretion. Commonwealth v. Brooks, 

104 A.3d 466

, 469 (Pa. 2014).

As our Supreme Court has explained:

      Appellate review of a trial court’s continuance decision is
      deferential. The grant or denial of a motion for a continuance is
      within the sound discretion of the trial court and will be reversed
      only upon a showing of an abuse of discretion. As we have
      consistently stated, an abuse of discretion is not merely an error
      of judgment. Rather, discretion is abused when the law is
      overridden or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will,
      as shown by the evidence or the record.

Id. (internal quotation and

citation omitted).

      A defendant’s right to counsel, which is guaranteed by both the Sixth

Amendment to the U.S. Constitution and Article I, Section 9 of the

Pennsylvania Constitution, guarantees the accused the right “to choose at his

own cost and expense any lawyer he may desire.”              Commonwealth v.

Radecki, 

180 A.3d 441

, 472 (Pa. Super. 2018) (citations and quotations

omitted).   However, these rights are not absolute, and a trial court must

balance them against the state’s interests and may impose reasonable

restrictions to secure “the swift and efficient administration of criminal

justice.”

Id. at 473

(citations and quotation marks omitted). Defendants may

not “unreasonably clog the machinery of justice or hamper and delay the

state’s efforts to effectively administer justice.”

Id. (citations and quotation

marks omitted).

      This Court has explained:


                                      - 11 -
J-A01002-20


      In examining whether a trial court abused its discretion in refusing
      to grant a continuance for a defendant to retain new counsel,
      Pennsylvania courts have historically looked at several factors.
      We have generally found that a trial court did not abuse its
      discretion in denying a request for a continuance to retain new
      counsel where the trial court conducted an “extensive inquiry” into
      the underlying causes of [a] defendant’s dissatisfaction with
      current counsel and based upon that inquiry determined that the
      differences did not constitute “irreconcilable differences.”

      We have also looked to the number of prior continuances in the
      matter, the timing of the motion, whether private counsel had
      actually been retained, and the readiness of private counsel to
      proceed in a reasonable amount of time.

Commonwealth v. Prysock, 

972 A.2d 539

, 542-43 (Pa. Super. 2009)

(citations omitted).

      More recently, our Supreme Court emphasized that a “trial court is

authorized   to   manage   its   own     trial    schedule;   the   silence   of   the

Commonwealth, or even the agreement of the Commonwealth, does not

control a judge’s exercise of discretion in such matters.” 

Brooks, 104 A.3d at 477

. Further, the Brooks Court stated that there was “some force” to the

Commonwealth’s argument “that the burden is upon the party requesting a

continuance to support that request.”            Id; see also Commonwealth v.

Fleming, 

480 A.2d 1214

, 1221 (Pa. Super. 1984) (stating that, when

reviewing the denial of a continuance motion, appellate courts “are to give

attention to the ‘reasons presented to the trial judge at the time the request

is denied.’” (quoting Commonwealth v. Wolfe, 

447 A.2d 305

, 308 (Pa.

Super. 1982)).

      As the Brooks Court explained,


                                       - 12 -
J-A01002-20


      the trial court does not have an obligation to assume that the
      request must be granted, and then probe the party (here, a
      defendant represented by counsel) for support for the request, or
      to find weaknesses in the request. . . .

      In any event, the record in this case reveals that the trial court
      did more than simply deny the request for a continuance. The
      court was aware of the circumstances surrounding appellee’s
      request; the court’s colloquy of appellee, and its exchanges with
      counsel, properly informed its exercise of discretion.

Brooks, 104 A.3d at 477

.

      Here, the trial court addressed Appellant’s continuance request as

follows:

      Appellant initially argued that [the trial court] had erred by
      depriving Appellant of his choice or preference of counsel for the
      [VOP] hearing conducted on November 29, 2017 when [the trial
      court] refused to grant another defense delay request following
      the last minute reentry of [Attorney] Peruto as counsel. Appellant
      claimed prejudicial error, citing [the trial court’s] single refusal to
      continue the violation hearing from 9:00 a.m. when it was
      scheduled to begin until 2:00 p.m. which was when it was
      represented by [Attorney] Sigman that morning that [Attorney]
      Peruto could possibly grace the [trial court] with his returned
      presence.     This appellate claim negated the documented
      contextual and procedural history of the violation hearing and the
      existing legal authorities which did not grant Appellant any right
      to continued delay to accommodate preferential choice of counsel.
      A thorough review of the record demonstrated that zero error had
      occurred.

                                   *     *      *

      [The trial court] in the instant matter had generously granted two
      prior continuance requests of the duly scheduled violation hearing
      on behalf of the Appellant. [The trial court] also had granted the
      request of [Attorney Peruto] to be removed as Appellant’s counsel
      after hearing argument, and appointed counsel on behalf of
      Appellant at taxpayer’s expense to insure protection of Appellant’s
      constitutional rights. Literally on the day of the third listing of the
      violation hearing November 29, 2017, after multiple months of
      delay and after appointed counsel had entered his appearance and

                                       - 13 -
J-A01002-20


      appeared prepared to represent Appellant, [Attorney Peruto]’s
      reentry of appearance was filed presumably by his associate
      [Attorney Sigman] with [the] county clerk’s office.

      Commensurate with filing of the reentry form, [Attorney Sigman]
      . . . physically appeared in the courtroom on behalf of Appellant
      on that same morning of the violation hearing November 29, 2017
      and verbally requested [the trial court’s] approval of [Attorney]
      Peruto’s late reentry and delay to accommodate [Attorney]
      Peruto’s possible appearance given his busy schedule until at least
      2:00 p.m. At 9:00 a.m. when the violation hearing was scheduled
      to proceed, the Commonwealth was ready with summoned
      witnesses and evidence present in the courtroom at 9:00 a.m.
      [Appointed Counsel] also appeared ready as counsel of record.

      Following an extensive colloquy and private discussions between
      Appellant, [Attorney Sigman, and appointed counsel], all parties
      and counsel and [the trial court] agreed that [Attorney Sigman]
      could represent Appellant at the violation hearing and that
      [appointed counsel] would be relieved of service. Additionally,
      [Attorney] Sigman was given additional time to prepare and
      privately meet with Appellant prior to the violation hearing. [The
      trial court] had properly acted with due discretion by proceeding
      with Appellant’s violation of probation hearing on the scheduled
      day.

Trial Ct. Op. at 6-9 (some formatting altered).

      Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s request for a continuance. See 

Brooks, 104 A.3d at 469

, 477. As noted previously, Appellant did not indicate that he

had irreconcilable differences with appointed counsel or that he was

dissatisfied with appointed counsel’s representation.      Instead, Appellant

stated his preference to proceed with Attorney Peruto, who had previously

withdrawn from Appellant’s case but had not formally entered his appearance

in Appellant’s VOP matter. Moreover, there was no indication that Attorney

Peruto was ready to proceed with the VOP hearing, even if the trial court had

                                    - 14 -
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granted Appellant’s request. Lastly, our review of the record confirms that

the trial court was fully aware of the circumstances surrounding Appellant’s

request and was further informed by Appellant’s statements during the

colloquy and the discussions with counsel. See

id. Therefore, Appellant is

not entitled to relief on his claim concerning his preference of counsel.

       In his second issue, Appellant argues that the trial court erred by

denying his request to continue the VOP hearing until after Appellant’s new

charges were resolved. Appellant’s Brief at 24. However, beyond this general

assertion, Appellant does not develop his claim. Instead, Appellant contends

that the arguments supporting his first and second appellate issues on “go

hand-in-hand and are one in the same.”

Id. at 10.

       The Commonwealth responds that Appellant waived his claim by failing

to properly present the argument in his brief.9 Commonwealth’s Brief at 10.

We agree.
____________________________________________


9  The Commonwealth acknowledges that Appellant’s new charges were
ultimately nolle prossed and that the Philadelphia District Attorney’s “current
office policy is to seek deferral of hearings on direct probation violations until
after trial on the new alleged criminal behavior.” Commonwealth’s Brief at
11.

Nonetheless, as this Court recently explained, “although the Kates decision
from 1973 permits a VOP court to conduct a revocation of probation hearing
prior to trial on the underlying charges, more recently our Supreme Court has
cautioned against proceeding in this manner.” Commonwealth v. Giliam,

233 A.3d 863

, 869 (Pa. Super. 2020) (footnote omitted). “[I]n many cases it
may be ‘preferable to defer [a VOP] hearing until after the trial, thus avoiding
the possibly unjust result of revoking probation, only to find later that the
probationer has been acquitted of the charges that prompted the revocation



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       It is well settled that “[w]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 

985 A.2d 915

, 924 (Pa. 2009) (citations

omitted).

       Here, Appellant provides no legal authority to support his claim, nor

does he develop any meaningful analysis.           Therefore, Appellant’s claim is

waived.10 See id.; see also Pa.R.A.P. 2119(a); see also Commonwealth

v. Smyrnes, 

154 A.3d 741

, 748 (Pa. 2017) (holding that waiver is required

where the appellant’s argument was not sufficiently developed to allow for

meaningful review).

       In his final issue, Appellant argues that there was insufficient evidence

to support a probation violation because the Commonwealth failed to present

a seizure analysis or expert testimony to confirm that the substance seized

____________________________________________


hearing.’”

Id. (citation omitted). However,

where charges forming the basis
of the revocation are nolle prossed, it does not have the same preclusive effect
as an acquittal. See Commonwealth v. Banks, 

198 A.3d 391

, 403 (Pa.
Super. 2018) (reiterating that “a nolle prosequi is a voluntary withdrawal by
a prosecuting attorney of proceedings on a particular criminal bill or
information, which at any time in the future can be lifted upon appropriate
motion in order to permit a revival of the original criminal bill or information”).

10 However, we share the concern of the Giliam Court that, although the 1973
Kates decision permits such a revocation of probation hearing prior to the
trial of the pending charges, probation could be revoked for charges for which
the probationer is subsequently acquitted; or as in this case, Appellant’s new
charges are nolle prossed, in that the Commonwealth opted not to go forward
with the prosecution of the case. See 

Banks, 198 A.3d at 403

.


                                          - 16 -
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from Appellant was marijuana. Appellant’s Brief at 12-13. Further, Appellant

maintains that, because the Commonwealth did not qualify Officer Hall as an

expert, his testimony regarding the identity of the substance is inadmissible

hearsay.

Id. at 30.

Therefore, Appellant contends that there was insufficient

evidence to support the violation.

Id. The Commonwealth responds

that Appellant’s evidentiary challenge is

waived because he failed to object to the evidence at the VOP hearing.

Commonwealth’s Brief at 14. Nonetheless, the Commonwealth contends that

there was sufficient evidence to establish that Appellant violated his probation.

Id. at 19.

      The Commonwealth argues that neither chemical evidence nor

expert testimony are necessary to prove “that contraband is a controlled

substance.”

Id. at 17.

Further, the Commonwealth asserts that Officer Hall

testified to his observations at the time of the arrest and did not offer an

improper opinion.

Id. at 18.

    Specifically, the Commonwealth notes that

Officer   Hall    “testified   that   he   smelled   marijuana   upon   approaching

[Appellant’s] car, saw a vacuum-sealed package containing a green, leafy

substance[,] packaged consistently with marijuana he had recovered in other

cases, and received positive results for marijuana from a NIK field test.”

Id. at 19.

Additionally, Officer Hall “testified that [Appellant] resisted arrest by

struggling with him and his partner and fleeing. This was sufficient to find

that [Appellant] violated his probation.”

Id. When considering an

appeal from a sentence imposed following the

revocation of probation, “[o]ur review is limited to determining the validity of

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the probation revocation proceedings and the authority of the sentencing court

to consider the same sentencing alternatives that it had at the time of the

initial sentencing.” Commonwealth v. Perreault, 

930 A.2d 553

, 557 (Pa.

Super. 2007) (citation and quotation marks omitted); see also 42 Pa.C.S. §

9771(b). “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court, and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.”   Commonwealth v. McNeal, 

120 A.3d 313

, 322 (Pa. Super.

2015).

      In order to revoke a defendant’s probation, “the VOP court must find,

based on the preponderance of the evidence, that the probationer violated a

specific condition of probation or committed a new crime . . . .”

Commonwealth v. Foster, 

214 A.3d 1240

, 1243 (Pa. 2019); see also 42

Pa.C.S. § 9771.     “Unlike a criminal trial where the burden is upon the

Commonwealth to establish all of the requisite elements of the offenses

charged   beyond    a   reasonable   doubt,   at   a   revocation   hearing   the

Commonwealth need only prove a violation of . . . probation by a

preponderance of the evidence.” Commonwealth v. Moriarity, 

180 A.3d 1279

, 1286 (Pa. Super. 2018) (citation and quotation marks omitted). As our

Supreme Court has explained, “preponderance of the evidence is ‘a more likely

than not inquiry,’ supported by the greater weight of the evidence; something

a reasonable person would accept as sufficient to support a decision.”




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Commonwealth v. Batts, 

163 A.3d 410

, 453 (Pa. 2017) (citations omitted

and some formatting altered).

      In cases where a defendant has not yet been convicted of new charges,

the Commonwealth may establish a direct violation by presenting evidence to

demonstrate that a crime occurred.       

Banks, 198 A.3d at 403

; see also

Moriarity, 180 A.3d at 1286

(reiterating that “the threat of revocation may

be executed on the basis of an arrest and evidence of some facts in

addition” but noting that an “arrest alone, without facts to support arrest, is

insufficient to revoke” (emphasis in original and citations omitted)).

      Here, the trial court addressed Appellant’s claim as follows:

      In the instant matter, as part of a very lenient sentence following
      a negotiated plea to the charge of [PWID,] graded as a felony,
      Appellant had been specifically directed by this [c]ourt to refrain
      from any further involvement with illegal narcotics and was duly
      advised of [the] consequences of a violation. At the violation
      hearing, the Commonwealth presented compelling and credible
      evidence from the arresting police officers and submitting into the
      record as Exhibits C-1 and C-2 without defense objection, the
      associated property receipts which encompassed the confirmation
      of positive field testing reflecting the presence of marijuana at the
      violation hearing. This cumulative evidence demonstrated that
      Appellant had been stopped in a vehicle for just reasons at a point
      in time not even halfway through the probationary period of his
      sentence with approximately a pound of illegal controlled
      substances, marijuana, in the packaged form readied for lucrative
      sale. Ironically this activity mirrored the criminal behavior for
      which Appellant had been under this [c]ourt’s supervision after
      tendering his prior plea of guilt.

      The credible testimony introduced from these same arresting
      officers further proved that . . . just before the arrest[,] officers
      had smelled the strong recognized odor of marijuana emanating
      from Appellant’s vehicle that he had been driving without any
      other passengers; that Appellant had committed additional


                                     - 19 -
J-A01002-20


      criminal conduct when he physically fought the officers and
      resisted lawful arrest; and that 540 grams of green leafy
      substance bearing all recognized earmarks of packaged marijuana
      had been confiscated from Appellant’s vehicle in plain view; that
      the same packaging and contents had been duly field tested
      reflected the presence of marijuana as reflected upon the
      introduced associated property receipts before submission to the
      laboratory for subsequent formal analysis.             Additionally,
      Appellant’s choice to physically strike and fight the arresting
      officers displayed his consciousness of guilt. [The trial c]ourt had
      certainly been presented with enough information to discern that
      the confiscated narcotics contained the illegal controlled
      substance of marijuana.

      Moreover, in the instant case, at no time was it debated or even
      mentioned by the defense as a factual issue that the confiscated
      substance that looked, smelled and was field tested as positive for
      the presence of marijuana was anything other than marijuana.
      Indeed at [the] sentencing hearing and within the presentence
      investigative reports Appellant firmly acknowledged that his sales
      of marijuana had occurred because he had been severely addicted
      to that same illegal substance. Similarly, no post sentence
      motions had been filed citing this issue. Thus it was disingenuous
      to raise the claim of error due to lack of introduction of formal
      testing at the violation hearing. In addition, criminally resisting
      lawful arrest itself constituted a violation of the conditions of
      probationary supervision. The cumulative evidence sufficiently
      demonstrated Appellant’s violating behavior and reasons for
      revocation.

Trial Ct. Op. at 13-15 (some formatting altered).

      On this record, we find no abuse of discretion by the trial court in finding

Appellant in direct violation of his probation based on current law.         See

Perreault, 930 A.2d at 557

; see also 

McNeal, 120 A.3d at 322

.

      Officer Hall testified regarding the circumstances of Appellant’s arrest,

including his physical altercation with police, his attempt to flee the scene,

and the package in Appellant’s car that appeared to contain marijuana. See



                                     - 20 -
J-A01002-20



N.T. VOP Hr’g at 28-50. Even without a seizure analysis to confirm the results

of the field test, there was sufficient evidence to support the Commonwealth’s

contention that Appellant resisted arrest, which was also an offense with which

Appellant had been charged. Therefore, Appellant is not entitled to relief on

this claim. See 

Batts, 163 A.3d at 453

; see also 

Moriarity, 180 A.3d at 1286

.

        Finally, to the extent Appellant argues that Officer Hall’s testimony was

inadmissible hearsay, we conclude that he waived this issue by failing to object

at the VOP hearing. See Commonwealth v. Baumhammers, 

960 A.2d 59

,

73 (Pa. 2008) (reiterating that a defendant’s “failure to offer a timely and

specific objection” results in waiver (citation and quotation marks omitted)).

Accordingly, we affirm.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2020




                                      - 21 -
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