Com. v. Clausell, D. (memorandum)
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J-S17041-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. DEMETRIUS CLAUSELL Appellant No. 1504 EDA 2021 Appeal from the Judgment of Sentence Entered July 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0007166-2017 BEFORE: BOWES, J., LAZARUS, J., and STABILE, J. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 01, 2022 Appellant, Demetrius Clausell, appeals from the July 8, 2021 judgment of sentence, imposed after revocation of probation, of an aggregate three to six years of incarceration followed by three years of probation. We affirm. The trial court set forth the pertinent facts and procedural history in its Pa.R.A.P. 1925(a) opinion: The underlying arrest stemmed from the execution of a search warrant on July 21, 2017 of Appellant’s residence at 405 Kerper Street, Apartment 1, in the City and County of Philadelphia. Appellant was present during the search when investigators recovered seventy-four (74) grams of crackcocaine, a forty-caliber cartridge, a nine-millimeter magazine, as well as a revolver and a forty-caliber handgun. Appellant was subsequently arrested and arraigned. On September 17, 2018, Appellant tendered to this Court a fully negotiated guilty plea to two felony offenses, Manufacture, Delivery, Possession with Intent to Manufacture or Deliver, ungraded felony, 35 [P.S. § 780-113(a)(30)] and Violation of the Uniform Firearms ActPossession of a Firearm Prohibited, [first-degree felony, 18 J-S17041-22 Pa.C.S.A. § 6105(a)(1)]. Consistent with negotiations facilitated by and between counsel, this court sentenced Appellant to concurrent terms of eleven and a half (11.5) months to twentythree (23) months of county incarceration, followed by five (5) years of probation for each charge. […] Appellant was verbally warned that this court had accepted very merciful negotiations well below recommended guidelines with the caveat that his violation of the terms and conditions of his probation, could result in imposition of confinement to a term of up to thirty (30) years. […] On February 7, 2019, Appellant petitioned for parole and this Court granted his motion the following day following hearing. Appellant was once again cautioned to follow the terms and conditions of his probation. Despite his explicit promise to abide by those conditions, Appellant tested positive for cocaine on November 19, 2019. Contrary to the language of the order of Sentence that had directed a hearing to occur upon revelation of the ’first hot urine,’ the Adult Probation and Parole Department never informed this court of Appellant’s positive drug test. On March 10, 2020, Appellant reported that he had been ‘unable to provide a sample.’ This refusal reflected a presumed positive finding. Again, no immediate consequence resulted. Thereafter, the Covid-19 pandemic afflicted the world, and Appellant received little supervision and was required to only occasionally call his assigned probation officer. On May 15, 2020, around 5:00 p.m., Appellant was arrested and charged for allegedly riding an ATV recklessly and erratically throughout a myriad of residential neighborhoods and streets in Philadelphia and for fleeing pursuing law enforcement responders. Philadelphia Police Officer Zachary Stout and his partner, Officer Rosinkski (first name unknown) had reported that on that same date and time they had been assigned to the City-Wide ATV/Dirt Bike Detail in an unmarked police vehicle, wearing plain clothes. Officer Stout testified that they were in the 35th and the 2nd police districts following flash information provided by Tact Air III (police helicopter). Tact Air III provided the patrolling officers with information that a black male wearing a white shirt and black pants, had been riding a red and blue ATV erratically throughout the area of the 2nd and 35th Districts. -2- J-S17041-22 Those large districts are located within the Northeast and Northwest section of the city. As Officer Stout and his partner responded, the male that had been described by and followed by Tact Air III had crossed directly in front of their automobile. Officer Stout and about ten (10) motorcycle officers, other marked and unmarked police vehicles, as well as the Tact Air III police helicopter followed Appellant for roughly forty-five (45) minutes; officers attempted multiple times to stop Appellant and signal him to pull his ATV over to no avail. Officers Stout and Rosinski followed Appellant for about twenty (20) minutes, observing him ‘riding erratically on the ATV, going the wrong way up one-ways, riding on sidewalks, riding head-on into traffic, completely disregarding red lights, stop lights, stop signs, everything.’ Officer Stout estimated the ATV driver was going about fifty (50) to (60) miles per hour on residential streets that had been posted to permit only twenty-five (25) to thirty-five (35) miles per hour. Pedestrians jumped out of the path of travel. Appellant eventually jumped off the ATV on the 2000 block of West Champlost Street in the City and County of Philadelphia and attempted to blend himself within a number of people including children who had been attending a barbecue and block party. His unsuccessful attempt to flee on foot ended because Officers had naturally kept in him in their sight and apprehended him; [Appellant] was charged with various criminal offenses including Recklessly Endangering Another Person (“REAP”) and Fleeing or Attempting to Allude [sic] a Police Officer. After the arrest, on May 17, 2020, the Honorable Idee Fox issued a Probation Violation Bench Warrant due to Appellant’s commensurate failure to report as directed to the probation department which had been finally noticed and reported by the probation department. Appellant’s Gagnon I[1] Summary was filed on May 26, 2020, and his Motion to Remove Detainer was denied by the Honorable Zachary Shaffer on May 28, 2020. On May 29th, an additional detainer was issued and set to remain pending a Gagnon II Violation of Probation hearing before this Court. Appellant’s Gagnon II Summary was filed on June 26, ____________________________________________ 1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). -3- J-S17041-22 2020. The Gagnon reports detailed all alleged violations and provided due notice. Appellant’s violation or revocation evidentiary hearing took place before this court on October 5, 2020. The Commonwealth presented Philadelphia Police Officer Zachary Stout who credibly related the events of May 15, 2020 and Appellant’s extended ATV flight. The positive drug test and refusal to submit to subsequent testing and noncompliance with the probation department was admitted. LaDreya Mack, Appellant’s girlfriend and the mother of his children, testified that Appellant was a good father and provider for his family. She also testified that she had been aware of his propensity to ride the ATV and revealed the location of her garage wherein he had kept the vehicle; she claimed did not know [sic] he had been riding the ATV on the day of his arrest; she acknowledged his drug addiction and impulsive immaturity. During the violation hearing, Appellant testified incredibly and contradicted himself; he admitted that he had been riding the ATV that day, but he denied that he was the person who had been dangerously driving the ATV during the extensive pursuit. According to Appellant, he was riding his ATV, but that his bike just happened to have been parked on the side of the area where Officer Stout had found him, and it must have been some other mysterious man who they had been following. Trial Court Opinion, 9/21/21, at 2-5 (record citations omitted). At the conclusion of the revocation proceedings, the trial court imposed sentence as set forth above. This timely appeal followed. Appellant argues that the evidence in support of revocation was insufficient, and that the trial court abused its discretion in imposing a sentence of incarceration. Appellant’s Brief at 6. Our review is limited to determining the validity of 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. 42 Pa.C.S.A. § 9771(b). See also Commonwealth v. Gheen, […] 688 A.2d -4- J-S17041-22 1206, 1207 (Pa. Super. 1997) (the scope of review in an appeal following a sentence imposed after probation revocation is limited to the validity of the revocation proceedings and the legality of the judgment of sentence). Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence. Id. at 1207-08. Finally, it is the law of this Commonwealth that once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: (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 court. 42 Pa.C.S.A. § 9771(c). Presently, Appellant challenges the discretionary aspects of his sentence. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (some citation omitted); see also, Pa.R.Crim.P. 708. “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. Moriarty, 180 A.3d 1279, 1286 (Pa. Super. 2018). In his first assertion of error, Appellant argues the evidence of his violation is insufficient because Officer Stout, in his testimony at the Gagnon II hearing was not sufficiently specific as to the exact locations of his pursuit of Appellant. Appellant also notes that charges stemming from the ATV incident were withdrawn. The trial explained: -5- J-S17041-22 As to what happened in the open case, then open case, there is no finding of not guilty. There is – depending on who was at fault for not properly preparing the open matter, it did not proceed. Trial Court Opinion, 9/21/21, at 8. We are cognizant that revocation of probation cannot be based on acquittal. A.2d 1371 (Pa. 1983). Commonwealth v. Brown, 469 But there was no acquittal here, nor was the dismissal of the charges based on evidence that Appellant was innocent. Furthermore, Appellant’s two failed drug tests—one positive and one presumed positive—were independent bases for finding Appellant in violation of his probation. The trial court therefore found, given Appellant’s reckless and dangerous behavior as eye witnessed by Officer Stout, that Appellant was likely to commit another crime if not imprisoned. The court also noted that Appellant persisted in drug use despite receiving a lenient, belowguideline sentence on the underlying drug and firearm offenses. Thus, the court also reasoned that imprisonment would vindicate its authority. Trial Court Opinion, 9/21/21, at 15-18. We have reviewed the record, the applicable law, the parties’ briefs, and the trial court opinion. We conclude that the trial court thoroughly and accurately addresses Appellant’s sufficiency of the evidence argument and we reject Appellant’s argument on the basis of the trial court’s well-reasoned opinion of September 21, 2021. Appellant’s second assertion of error challenges the trial court’s sentencing discretion. The Rules of Appellate Procedure require appellants -6- J-S17041-22 to preserve this issue in a concise statement of the reasons relied upon for allowance of appeal. (f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). A Rule 2119(f) statement is required in revocation cases. Fish, 752 A.2d at 923. Where an appellant fails to comply with Rule 2119(f) and the Commonwealth objects, the issue is waived. Commonwealth v. Griffin, 149 A.3d 349 (Pa. Super. 2016). Appellant’s brief does not include a 2119(f) statement, and the Commonwealth has objected. Commonwealth’s Brief at 6-7. This issue is waived. Were we to address this issue on the merits, we would reject Appellant’s argument based on the trial court's opinion. For the foregoing reasons, we affirm the judgment of sentence and direct that a copy of the trial court’s September 21, 2021 opinion be filed along with this memorandum. Judgment of sentence affirmed. -7- J-S17041-22 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/1/2022 -8- Circulated 07/26/2022 02:41 PM
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