J-S15007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEVI MARCUS MATHIS

Appellant No. 1420 MDA 2014

Appeal from the Judgment of Sentence August 5, 2014

In the Court of Common Pleas of Union County

Criminal Division at No(s): CP-60-CR-0000317-2008

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2015

Levi Marcus Mathis appeals from the judgment of sentence, imposed 

by the Court of Common Pleas of Union County, following the revocation of 

his probation. Upon review, we affirm.

The trial court set forth the history of this matter as follows:

On August 5, 2009, after [Mathis] entered a guilty plea to the 

crime of criminal conspiracy to commit robbery, a felony of the 

first degree, [Mathis] was sentenced to a period of twelve (12) 

months’ incarceration to a maximum of sixty (60) months. That 

sentence was followed by a period of thirty-six (36) months’ 

probation.

On April 15, 2014, the Commonwealth filed a [m]otion to revoke 

the probationary aspect of [Mathis’] sentence and a hearing was 

scheduled for May 7, 2014.

At the hearing the Commonwealth called Jason Lemay, [Mathis’] 

Parole Agent with the Pennsylvania Board of Probation and 

Parole. Mr. Lemay testified that [Mathis] was part of his 

caseload and he was supervising him as part of his duties as a 

State Probation Officer. Mr. Lemay testified that he is required 
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to see [Mathis] at least a minimum of once a month. On March 

19, 2014, he and another agent went to [Mathis’] house and 

talked to him. Based on his home inspection he detained 

[Mathis], and requested the Commonwealth file this [m]otion.

At the revocation hearing held on May 7, 2014, Mr. Lemay 

testified that on March 19, 2014, when he did he his home visit, 

[Mathis] was uncooperative and refused to permit the agents 

entry into his home and also refused to provide a urine sample.

The Court would take judicial [notice] from the record that the 

conditions governing [Mathis’] conditions of supervision require 

him to submit a urinalysis and he had expressly consented to 

this search of his residence.

After Mr. Lemay testified the defense made a motion to dismiss 

the Commonwealth’s [m]otion due to the fact that the State 

Probation Officer failed to identify [Mathis] in court. The defense 

did not contest the conduct at issue but limited his argument to 

the lack of in court identification. With the court’s permission, 

Probation Officer Lemay was recalled and identified [Mathis].

Trial Court Opinion, 10/6/14, at 1-2.

On appeal, Mathis raises two issues. First, “did the trial court commit 

error in ruling against [Mathis] when the Commonwealth closed its case 

without identifying [him]?” Second, “did the trial court commit error in 

permitting the record to be reopened for identification of [Mathis]?” 

Appellant’s Brief, at 4.

Our review is guided by the following principles:

The imposition of sentence following the revocation of probation 

is vested within the sound discretion of the trial court, which, 

absent an abuse of that discretion, will not be disturbed on 

appeal. An abuse of discretion is more than an error in 

judgment – a sentencing court has not abused its discretion 

unless the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.
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When assessing whether to revoke probation, the trial court 

must balance the interests of society in preventing future 

criminal conduct by the defendant against the possibility of 

rehabilitating the defendant outside of prison. In order to uphold 

a revocation of probation, the Commonwealth must show by a 

preponderance of the evidence that a defendant violated his 

probation.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citations, 

quotations, and footnote omitted).

Mathis’ first issue on appeal implicates the sufficiency of the evidence 

to support the revocation of his probation. Our standard of review regarding 

challenges to the sufficiency of the evidence is well-settled. In reviewing the 

sufficiency of the evidence, the appellate court must determine whether the 

evidence admitted at trial, and all reasonable inferences drawn therefrom, 

viewed in the light most favorable to the Commonwealth as the verdict 

winner, is sufficient to prove every element of the offense beyond a 

reasonable doubt. Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super. 

2008).

Instantly, Mathis argues that the Commonwealth failed to identify him 

during its case-in-chief, which, he contends, was a prerequisite to finding he 

violated his probation.

1

 Mathis, however, conflates the revocation of his 

probation with a criminal conviction.

____________________________________________

1 Mathis cites to only one case, Commonwealth v. Montgomery, 861 A.2d 

304 (Pa. Super. 2004), for the proposition that the Commonwealth was 

required to identify him in court. However, Mathis’ reliance on 

Montgomery is misplaced. There, this Court did not hold that a witness’ 

identification of the defendant is necessary. Rather, we suggested that 

(Footnote Continued Next Page)
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Our Supreme Court has expressly held that, “a [violation of probation 

(“VOP”) hearing] differs from a trial, as probation and parole are not part of 

the criminal prosecution; the full panoply of rights due to a defendant in a 

criminal trial does not apply at a VOP hearing.” Commonwealth v. 

Mullins, 918 A.2d 82, 85 (Pa. 2007). The Court went on to explain that “[a 

VOP hearing] requires only a truncated hearing by the sentencing court to 

determine whether probation remains rehabilitative and continues to deter 

future antisocial conduct. Such a hearing takes place without a jury, with a 

lower burden of proof, and with fewer due process restrictions.” Id. quoting 

Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).

Even assuming, arguendo, that there was, as Mathis suggests, a due 

process requirement that he be identified in court, we find that because of 

the lesser procedural protections afforded at a VOP hearing, such a 

requirement is not implicated here. In fact, at a VOP hearing, the 

Commonwealth need only establish by a preponderance of the evidence that 

a defendant violated his probation. See Commonwealth v. Ortega, 995 

A.2d 879, 886 (Pa. Super. 2010). 

Here, the Commonwealth presented ample evidence to satisfy this 

burden, including the testimony of Officer Lemay, Mathis’ probation officer. 

Officer Lemay testified that he was required to see Mathis at least once a 

(Footnote Continued) _______________________

where there is ample other evidence of the defendant’s criminal actions, 

identification becomes even less dispositive. Id. at 307-08.
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month. He further testified that on March 19, 2014, Mathis refused to 

provide a urine sample and allow the agents to enter his home, both 

conditions of his probation. The VOP court found this testimony credible, 

and there is nothing in the record to disturb this credibility determination, 

nor did Mathis contest these facts. The Commonwealth also proffered 

testimony that showed Mathis’ identity had been previously established 

when he was criminally convicted and on several other occasions when he 

appeared in court following his conviction. Furthermore, Judge Sholley had 

presided over Mathis’ guilty plea and sentencing, and thus, was familiar with 

Mathis at the time of his VOP hearing.

Considering the diminished burden of proof, in conjunction with the 

lower court’s pre-existing familiarity with Mathis, we conclude that in-court 

identification was not critical to determining whether Mathis violated his 

probation. Mullins, supra. As such, we find that there was sufficient 

evidence to support the revocation sentence imposed by the court.

In his second issue, Mathis argues the trial court erred in reopening 

the record to permit his identification. It is well settled in Pennsylvania that 

a trial court has the discretion to reopen a case for either side, before the 

entry of a final judgment, in order to prevent a failure or miscarriage of 

justice. Commonwealth v. Baldwin, 58 A.3d 754 (Pa. 2012), citing 

Commonwealth v. Tharp, 575 A.2d 557, 558-59 (Pa. 1990). Mathis 

contends that this long-standing principle does not apply to the instant 

matter because “[t]he case was not midstream, this was not a motion for 
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judgment of acquittal after the prosecution rested. Here, the parties were in 

closing argument. The case was, for all intents and purposes, over.” 

Appellant’s Brief, at 9. We are not persuaded by this argument.

In Tharp, the trial court reopened the case, after the Commonwealth 

closed its case, to permit the admission of immediately available evidence 

directly related to the issue raised. Here, the fact that the parties had 

moved to closing arguments does not, as Mathis contends, suggest that the 

court lacked discretion to reopen the case. Our precedent is clear, a trial 

court may, at any time prior to the entry of final judgment, reopen the case. 

Baldwin, supra (emphasis added). Accordingly, this issue is moot, 

especially in light of our preceding analysis.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015