J-S56045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRIAN DOUGLAS,

Appellant No. 267 MDA 2014

Appeal from the Judgment of Sentence December 19, 2013

in the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0001362-1997

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:FILED OCTOBER 29, 2014

Appellant, Brian Douglas, appeals from the judgment of sentence 

entered following the revocation of his probation. On appeal, Appellant 

contends that the evidence was insufficient to sustain the revocation of 

probation and that his sentence was excessive and unreasonable. We affirm 

the judgment of sentence.

We take the underlying facts and procedural history in this matter 

from the trial court’s April 9, 2014 opinion.

On April 1, 1998, Appellant entered a plea of guilty to 

charges of rape, statutory sexual assault, aggravated indecent 

assault, and corruption of minors. Th[e trial c]ourt sentenced 

Appellant to two and one-half (2 1/2) years to ten (10) years in 

a state correctional institution on Count 1, forcible rape, and to 

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* Retired Senior Judge assigned to the Superior Court.
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five (5) years special probation to be supervised by state parole 

on Counts 2, 3, 4, and 5, to run concurrent with each other but 

consecutive to Count 1. Appellant’s five-year probation became 

effective on January 23, 2009, with a completion date of January 

23, 2014. Appellant was to attend and complete sex offender 

treatment program as a condition of the special probation. On 

November 20, 2013, Appellant was unsuccessfully discharged 

from his sex offender treatment program. Appellant was 

charged with violating the conditions of his special probation, 

specifically Condition 8, as a result of having been unsuccessfully 

discharged from treatment.

On December 19, 2013, Appellant appeared before [the 

trial c]ourt for a hearing on his probation violation. Appellant 

was found in violation of his probation and sentenced to 

concurrent terms of two (2) years of special probation on the 

counts of aggravated indecent assault, indecent assault, and 

corruption of minors, with no further sentence on Count 2. 

Appellant filed a timely post-sentence motion, which was 

subsequently denied after consideration by [the trial c]ourt on 

January 10, 2014. On February 7, 2014, Appellant filed the 

instant appeal.[1]

(Trial Court Opinion, 4/09/14, at 1-2).

 On appeal, Appellant raises the following questions for our review:

I. Whether the Commonwealth failed to present sufficient 

evidence to revoke Appellant’s probation where it failed to 

prove that Appellant malingered on his polygraph 

examination and where the goal of the polygraph was to 

uncover evidence of new violations?

II. Whether the trial court abused its discretion in denying 

Appellant’s [m]otion for [m]odification of [s]entence where 

his sentence of two (2) years’ special probation is 

excessive and unreasonable as Appellant has already 

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1 On February 12, 2014, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). 

Appellant filed a timely Rule 1925(b) statement on March 5, 2014. See id. 

On April 9, 2014, the trial court filed an opinion. See Pa.R.A.P. 1925(a). 
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served extended periods of incarceration and probation 

and where probation serves no further[] rehabilitative 

purpose?

(Appellant’s Brief, at 6).

In his first issue on appeal, Appellant claims that the evidence was 

insufficient to sustain the revocation of probation because the 

Commonwealth did not prove that Appellant malingered on his polygraph 

and because the goal of the polygraph was to uncover evidence of new 

parole violations. (See id.). 

The procedures for revoking probation and the rights afforded to 

a probationer during revocation proceedings are well settled:

When a parolee or probationer is detained pending a revocation 

hearing, due process requires a determination at a prerevocation hearing, a Gagnon I hearing, that probable cause 

exists to believe that a violation has been committed. Where a 

finding of probable cause is made, a second, more 

comprehensive hearing, a Gagnon II hearing, is required before 

a final revocation decision can be made. 

The Gagnon II hearing entails two decisions: first, a 

“consideration of whether the facts determined warrant 

revocation.” Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 

2593, 33 L.Ed.2d 484 (1972). “The first step in a Gagnon II

revocation decision . . . involves a wholly retrospective factual 

question: whether the parolee [or probationer] has in fact acted 

in violation of one or more conditions of his parole [or 

probation].” Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 

1756, 1761, 36 L.Ed.2d 656 (1973) (citing Morrissey, supra,

408 U.S. at 484, 92 S.Ct. 2593). It is this fact that must be 

demonstrated by evidence containing probative value. “Only if it 

is determined that the parolee [or probationer] did violate the 

conditions does the second question arise: should the parolee 

[or probationer] be recommitted to prison or should other steps 

be taken to protect society and improve chances of 

rehabilitation?” Gagnon v. Scarpelli, supra, 411 U.S. at 784, 

93 S.Ct. 1756, (citing Morrissey v. Brewer, supra, 408 U.S. at 
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484, 92 S.Ct. 2593, 33 L.Ed.2d 484). Thus, the Gagnon II

hearing is more complete than the Gagnon I hearing in 

affording the probationer additional due process safeguards, 

specifically: (a) written notice of the claimed violations of 

[probation or] parole; (b) disclosure to the [probationer or] 

parolee of evidence against him; (c) opportunity to be heard in 

person and to present witnesses and documentary evidence; (d) 

the right to confront and cross-examine adverse witnesses 

(unless the hearing officer specifically finds good cause for not 

allowing confrontation); (e) a neutral and detached hearing body 

such as a traditional parole board, members of which need not 

be judicial officers or lawyers; and (f) a written statement by the 

factfinders as to the evidence relied on and reasons for revoking 

[probation or] parole.

Further, we note that there is a lesser burden of proof in a 

Gagnon II hearing than in a criminal trial because the focus of a 

violation hearing is whether the conduct of the probationer 

indicates that the probation has proven to be an effective vehicle 

to accomplish rehabilitation and a sufficient deterrent against 

future antisocial conduct. Thus, the Commonwealth need only 

prove a violation of probation by a preponderance of the 

evidence. 

Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009) 

(some citations and quotation marks omitted). Lastly, a claim that the 

evidence was insufficient to sustain revocation is

a question of law subject to plenary review. We must determine 

whether the evidence admitted at trial and all reasonable 

inferences drawn therefrom, when viewed in the light most 

favorable to the Commonwealth as the verdict winner, is 

sufficient to support all elements of the offenses. A reviewing 

court may not weigh the evidence or substitute its judgment for 

that of the trial court.

Commonwealth v. Perrault, 930 A.2d 553, 558 (Pa. Super. 2007), appeal 

denied, 945 A.2d 169 (Pa. 2008) (citation omitted).

Initially, we note that while Appellant claims that the polygraph 
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examination was administered for the purpose of uncovering evidence of 

new parole violations, (see Appellant’s Brief, at 6), he does not discuss this 

claim within his argument. (See id. at 16-21). Therefore, we find the claim 

waived. See Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) 

(claims raised in the Statement of Questions Involved but not pursued in the 

body of the brief are waived). Also, to the extent that Appellant claims that 

his right against self-incrimination was violated by certain questions raised 

during therapy, (see Appellant’s Brief, at 19-21), we find the issue waived 

because Appellant neither raised it below, (see N.T. Revocation Hearing, 

12/19/13, at 10-12), nor in his Rule 1925(b) statement, (see Pa.R.A.P. 

1925(b) Statement, 3/05/14, at unnumbered page 2). See Pa.R.A.P. 

302(a); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) 

(en banc), appeal denied, 57 A.3d 70 (Pa. 2012).

Here, Appellant did not dispute that he was “kicked out” of sex 

offender treatment. (N.T. Revocation Hearing, 12/19/13, at 2). Further, the 

evidence demonstrated that this was Appellant’s third discharge from the 

program. (See id. at 5). The evidence also showed that the polygraph 

examination in question was a routine exit maintenance polygraph of the 

type that Appellant had successfully completed in the past. (See id. at 6, 

16). Appellant’s therapist, John Welch, testified that Appellant admitted in 

group therapy that he had attempted to manipulate the polygraph and 

withhold information. (See id. at 7). Mr. Welch also testified that Appellant 
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was being evasive and uncooperative in group therapy. (See id.). Both of 

these actions were violations of Appellant’s treatment contract. (See id. at 

8). Further, Mr. Welch testified that Appellant, who had previously been 

discharged from the program for using prostitutes, had recently “loan[ed]” a 

woman money then later engaged in sexual activity with her, behavior which 

concerned the therapist. (Id. at 7-8). While Appellant claimed that he was 

unable to complete the polygraph successfully because of his mental health 

issue and traumatic brain injury, the trial court did not credit this 

explanation because of Appellant’s previous lack of difficulty with polygraph 

tests. (See Trial Ct. Op., at 8). 

This evidence, particularly Appellant’s admission to Mr. Welch that he 

was trying to manipulate a polygraph test required as a condition of the sex 

offender treatment program, was sufficient to sustain a revocation of 

probation. See Perreault, supra at 557-58 (evidence sufficient to sustain 

revocation of probation where Appellant made out-of-court statement 

admitting he violated condition of sex offender treatment program). 

Appellant’s first claim lacks merit.

In his second issue, Appellant challenges the discretionary aspects of 

his sentence.2 In a recent decision, Commonwealth v. Cartrette, 83 A.3d 

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2 We note that Appellant preserved his discretionary aspects of sentence 

claim by filing a timely post-sentence motion for reconsideration of 

sentence. See McAfee, infra at 275.
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1030 (Pa. Super. 2013) (en banc), an en banc panel of this Court held that 

“this Court’s scope of review in an appeal from a revocation sentencing 

includes discretionary sentencing challenges.” Cartrette, supra at 1034. 

Thus, Appellant’s claim is properly before us. 

The right to appeal the discretionary aspects of a sentence is not 

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant 

challenges the discretionary aspects of the sentence imposed, he must 

present “a substantial question as to the appropriateness of the sentence[.]” 

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) 

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(f), articulate “a colorable argument that the 

sentence violates a particular provision of the Sentencing Code or is contrary 

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) 

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If 

an appellant’s Rule 2119(f) statement meets these prerequisites, we 

determine whether a substantial question exists. See Commonwealth v. 

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which 

the appeal is sought, in contrast to the facts underlying the appeal, which 
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are necessary only to decide the appeal on the merits.” Id. (emphases in 

original).

Here, Appellant has included a Rule 2119(f) statement in his brief. 

(See Appellant’s Brief, at 13-15). Appellant argues that the sentence was 

manifestly excessive and unreasonable because he had already served the 

vast majority of his extensive sentence at the time of his discharge from the 

sex offender program. (See id. at 14-15). This claim raises a substantial 

question. See Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 

2012), appeal denied, 67 A.3d 796 (Pa. 2013). 

[T]he 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. . . . 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.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013), appeal 

denied, 81 A.3d 75 (Pa. 2013) (citations omitted). 

Here, as discussed by the trial court, Appellant’s sentence was less 

than the maximum allowed by law. (See Trial Ct. Op., at 5). Further, the 

sentence imposed was less than that recommended by the probation officer, 

who requested reincarceration. (See N.T. Revocation Hearing, 12/19/13, at 

8). Further, the trial court felt that sentence was
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warranted as Appellant has repeatedly violated the conditions of 

his probation and is in need of continued therapy, as evidenced 

by his inability to successfully complete the therapy requirement. 

Extending the period of special probation will enable Appellant to 

seek further treatment in order to rehabilitate his sexually 

related behaviors so that he may no longer be a threat to young 

girls and society.

(Trial Ct. Op., at 5-6). Thus, the record amply supports Appellant’s sentence 

of two more years of special probation and his claim that the sentence was 

excessive and unreasonable is meritless.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2014