J-S84021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENDALL GARLAND

Appellant No. 1646 EDA 2014

Appeal from the Judgment of Sentence Dated May 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0804261-2001

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED February 27, 2017

Appellant Kendall Garland appeals from the judgment of sentence 

following the trial court’s determination that he violated his probation. On 

appeal, he contends the evidence was insufficient. We affirm.

In 2002, Appellant pleaded no contest to aggravated indecent assault 

and corruption of minors. Commonwealth v. Garland, 3027 EDA 2008 (Pa. 

Super., Oct. 30, 2009) (unpublished mem. at 1).1 He was sentenced to twoand-a-half to six years’ incarceration followed by nine years’ reporting 

probation. Id. The sentencing order and commitment form specified that, 

among other things, Appellant was to receive drug and alcohol counselling 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3125, 6301.
J-S84021-16

- 2 -

and sexual assault counselling. Order, 8/7/02; Ct. Commitment, 8/7/02. 

Appellant did not file a direct appeal from his judgment of sentence. 

Garland, 3027 EDA 2008, at *1. 

Appellant filed Post Conviction Relief Act (PCRA) petitions in 2003 and 

2006, which were dismissed by the PCRA courts as untimely. This Court 

affirmed both dismissals. See Commonwealth v. Garland, 3254 EDA 2004 

(Pa. Super., Mar. 7, 2006) (unpublished memorandum), appeal denied, 

911 A.2d 933 (Pa. 2006); Garland, 3027 EDA 2008.

At a hearing on December 21, 2007, regarding Appellant’s second 

PCRA petition, the trial court revisited Appellant’s conditions of probation 

and parole. N.T., 12/21/07, at 3. Noting that Appellant originally was 

ordered at sentencing to obtain sex offenders treatment and evaluation at 

the Joseph J. Peters Institute (“JJP”), id. at 10,2the court ordered Appellant 

to “stay away from NUDE [sic] bars, have no association with minors and 

complete JJ Peters.” Order, 12/21/07. 

On December 13, 2011, Appellant’s probation was continued after a 

violation-of-probation hearing. Order, 12/13/11. The order again specified 

that Appellant was to “[c]ontinue treatment at JJ Peters Institute and stay 

out of trouble.” Id.

____________________________________________

2 The record variously refers to the Institute as “JJP,” “JJPI,” “JJ Peters,” and 

“JJ Peters Institute.” The Institute is a treatment center for sex offenders in 

Philadelphia. See N.T., 5/30/14, at 28.
J-S84021-16

- 3 -

In July, 2012, Appellant signed a form entitled “Standard Special 

Conditions for Sex Offenders.”3 The first condition stated:

You must obtain a sex offender evaluation from a sex offender 

treatment provider who is approved by probation/parole 

supervision staff. You must comply with and successfully complete 

all treatment recommendations including polygraph examinations, 

resulting from this evaluation. You must pay the cost of the 

evaluation, polygraph(s) and treatment. You must also provide 

written authorization for release of confidential information 

between your sex offender treatment provider and the 

Pennsylvania Board of Probation and Parole.

Conditions, 7/23/12, at ¶ 1.

On May 6, 2014, Appellant was arrested for violating his probation, 

which is the subject of the instant appeal. N.T. 5/30/14, at 22. The 

Commonwealth sought to have Appellant incarcerated as a result of the 

violation.

At his violation-of-probation hearing on May 30, 2014, during which 

Appellant was represented by counsel, Dage Gardner, an agent for the 

Pennsylvania Board of Probation and Parole, testified that Appellant violated 

the terms of his probation when he was unsuccessfully discharged from JJP.4

____________________________________________

3

It is unclear from the certified record what sequence of events led to 

Appellant signing the form in 2012.

4 Officer Gardner testified that Appellant also might have violated his 

probation by registering an incorrect e-mail address, but he expressed doubt 

about that conclusion and said that errors in Appellant’s e-mail address 

could have been due to a clerical error. N.T. 5/30/14, at 4-5. Officer Gardner 

stated:

(Footnote Continued Next Page)
J-S84021-16

- 4 -

Appellant was discharged from the treatment program because he failed a 

polygraph examination regarding sexual contact with minors and sexual 

contact with prostitutes. See id. at 3-4. Officer Gardner stated that the 

polygraph test was given to Appellant because he denied having committed 

a sexual offense,5and because he and Appellant’s therapist believed there 

were inconsistencies between statements Appellant made during therapy 

and his actions. Id. at 9-12. According to Officer Gardner, Appellant initially 

refused to take the polygraph test. Id. at 10. Officer Gardner observed that 

Appellant had been in treatment programs for approximately one-and-a-half 

years and had made no progress towards rehabilitation in that time. Id. at 

6. The trial court pointed out that this was Appellant’s third round of sex 

offender treatment, after having previously been in the same program in 

(Footnote Continued) _______________________

[Appellant] failed to register his email as required by Megan’s 

Law. He did register his email address as required, but had 

missing scores or missing letters so his email didn’t match – his 

email address didn’t match the email he was using. 

. . . I kind of looked into it and, you know, whoever put it 

in or registered him could have made a mistake on that. So that 

could be – I can’t really . . . ascertain if he did it on purpose 

and/or if we made a mistake.

Id. at 4-5.

5

It is unclear from the testimony whether Officer Gardner was asserting that 

Appellant denied committing the original offense for which he was 

sentenced, or a subsequent offense after his release from incarceration.
J-S84021-16

- 5 -

2007 and 2011 and failing to complete the requirements for successful 

discharge either time. N.T., 5/30/14, at 6-7.6

Appellant testified that he has been fully cooperative with the 

treatment program’s requirements since 2007 and has not committed any 

new offenses while on probation. N.T., 5/30/14, at 15-17. Appellant stated 

that he did not intend to refuse to take the polygraph test, but, because his 

probation officer at the time had called him by someone else’s name and 

had mentioned an unrelated LinkedIn account, Appellant initially attempted 

to clarify the request for the examination. Id. at 16. Appellant claimed that 

he was not asked during the polygraph examination about the underlying 

offense, which he has never denied, but was asked only about his current 

sexual activity. Id. at 16-17.7 Appellant asserted that he answered truthfully 

____________________________________________

6 The trial court reviewed Appellant’s Supervision History from 2011, which, 

in discussing Appellant’s unsuccessful discharge from the treatment program 

at that time, stated:

[T]he offender will only discuss one of his . . . sex offenses and 

denies the other. The offender also avoids discussing a third 

arrest that was sexual in nature. Group facilitators indicate that 

the offender needs to maintain stable housing in order to lower 

his risk and have more community stability. 

N.T., 5/30/14, at 18-19, 25. Officer Gardner testified that Appellant was 

reincarcerated in 2011 for accessing or possessing pornographic materials. 

Id. at 25. Appellant, however, stated that he was unsuccessful in completing 

the treatment program in 2011 due to a relapse in alcohol abuse. Id. at 19. 

7

“[T]hey asked me about current sexual activity, if I had any girlfriends or 

anything like that.” N.T., 5/30/14, at 17.
J-S84021-16

- 6 -

during the test and should not have failed. Id. at 33. Appellant also argued 

that he was not discharged from the program; he went to a treatment 

meeting on a Monday, scheduled his next meeting for Wednesday, and was 

arrested on the Tuesday in between. Id. at 32-33.8If it had not been for the 

arrest, Appellant claims, he would have continued attending the treatment 

program.

The trial court read into the record an excerpt from Appellant’s latest 

supervision history, which stated that in 2013, Appellant obtained 

employment building a database for a website that assists children with 

school work. N.T., 5/30/14, at 20-21. Appellant explained that he believed 

he was permitted to work on this website so long as he disclosed his past 

offense to his employer and did not have any contact with children, and he 

maintained that he complied with both requirements. Id. at 22-23.9

____________________________________________

8

It is unclear on what date Appellant took and failed the polygraph exam. 

We note that Officer Gardner stated that he was notified of the failure and 

discharge on May 5, 2014, which was a Tuesday, although Appellant’s 

testimony implies that his failure occurred prior to his scheduling of the 

Wednesday meeting. See N.T., 5/30/14, at 4.

9 Appellant’s probation requirements mandated that he “not obtain 

employment . . . that places [him] in a position where [he is] in charge of or 

have control, power or authority over vulnerable persons without the prior 

written approval of probation/parole supervision staff and if in treatment, in 

agreement with [his] treatment provider. Vulnerable persons are defined as 

. . . anyone under the age of 18.” Conditions, 7/23/12, at ¶ 13. It is unclear 

from the testimony whether the probation officers or the court considered 

his employment with the website to amount to a technical violation.
J-S84021-16

- 7 -

The 2013 supervision history also stated that Appellant “admitted he 

was not attending DNA at Minsec, nor was he attending AA meetings.” N.T., 

5/30/14, at 21.10 Appellant also had a storage unit which contained a 

computer,11 and the supervision history said Appellant had lied to his 

probation officer about the status of the computer and about when and why 

he went to the storage unit. Id.12 Appellant testified that there was a 

misunderstanding about his use of the storage unit due to his homeless 

____________________________________________

10 The references apparently were to treatment programs for substance and 

alcohol abuse.

11 One of Appellant’s probation requirements was that he “provide 

probation/parole supervision staff unlimited access to any computer or other 

multimedia device in [his] possession . . . and allow probation/parole 

supervision staff to search all programs and records maintained on any 

computer or such other device in [his] possession.” Conditions, 7/23/12, at 

¶ 14.

12 The report read:

[Appellant was] asked to produce keys to a storage unit. Initially 

denied having his access card and keys, but these items were

eventually provided. Upon searching the unit we were able to 

find a computer that had a cracked screen, which [Appellant] 

had earlier indicated to [a probation officer] that he could not 

produce because it was broken. However, he tried to explain he 

still uses it despite its being broken.

[Appellant] also questioned as to the last time he visited his unit. 

He responded he went there in the morning. After speaking with 

U-Haul, it was revealed he scanned in at 3:58 p.m. [Appellant] 

continued to lie about why and when he went to his storage unit.

N.T., 5/30/14, at 21.
J-S84021-16

- 8 -

status, and that the contents of the computer he kept there were never 

searched by probation officers. Id. at 23-24. 

Appellant lives in a homeless shelter, and, according to Officer 

Gardner, Appellant claimed to go only to: (1) that shelter where he lived, (2) 

another shelter that had computers, so that he could do homework, and (3) 

a train station, to use a wireless Internet connection. N.T., 5/30/14, at 25-

26. Officer Gardner expressed the belief that Appellant did not try to get a 

job so that he could remain homeless, N.T., 5/30/14, at 26, and he also 

expressed concern about Appellant’s travels to the train station because 

Appellant “would be at the station house where kids and everybody else 

roam and do things.” Id. at 26. Although Appellant testified that that he 

obtained a degree as a computer programmer after he was placed on 

probation, id. at 22, Officer Gardner stated that he never saw evidence that 

Appellant graduated from such a program. Id. at 26. Officer Gardner also 

raised questions about financial anomalies regarding Appellant. Id. at 25-

26.13 Officer Gardner stated, “[Appellant] keeps his progression being held 

back so he can stay in the transient state so he can do what he wanted to 

do.” Id. at 27.

____________________________________________

13 Officer Gardner said that searches of Appellant’s belongings revealed 

ledgers referencing thousands of dollars that Appellant could not adequately 

explain, and that Appellant has “a bunch” of credit cards. N.T., 5/30/14, at 

26-27. Officer Gardner stated that Appellant told him he “dips and dabs in 

trading stocks and things like that.” Id. at 26. 
J-S84021-16

- 9 -

At the conclusion of the hearing, the court stated

I don’t think that there is anything else that the Court needs to 

hear on this case. You are asking for leniency. The 

Commonwealth is asking for incarceration because you’ve had 

three attempts now with [JJP]. . . . But you have not been able 

to complete this program despite three attempts and that causes 

concern, in addition to the other concerns that have been 

expressed by [the] officer agent. . . . I do have great concerns 

concerning particularly the nature of the offense and the many 

reasons why . . . [Appellant] has been unable to successfully 

complete treatment.

N.T. 5/30/14, at 27-31. The trial court found Appellant in violation of the 

terms of his probation, revoked Appellant’s sentence of probation, and 

resentenced him to one to two years’ incarceration followed by five years’ 

reporting probation. Trial Ct. Op, 9/17/15, at 1. 

On June 3, 2014, even though he was still represented by counsel, 

Appellant filed a timely pro se notice of appeal. Thereafter, there was an 

extremely long delay in transmittal of the certified record to this Court; 

much of that delay was caused by confusion in the trial court regarding 

Appellant’s counseled status.14 The trial court filed a Rule 1925(a) opinion on 

____________________________________________

14 The trial court explained:

On June 3, 2014. Defendant filed a pro se Notice of Appeal from 

the May 30, 2014 sentencing order. On August 8. 2014, the 

docket reflected that the Superior Court was in receipt of 

Defendant’s pro se appeal, although Defendant was represented 

by Court appointed counsel, Lawrence J. Bozzelli. Esq. (“Mr. 

Bozzelli”). A copy of the receipt was sent to the Defendant’s 

attorney of record.

(Footnote Continued Next Page)
J-S84021-16

- 10 -

September 15, 2015, in which it did not address the merits of Appellant’s 

issues, but instead stated that the appeal should be dismissed because the 

(Footnote Continued) _______________________

On August 28, 2014, Defendant was scheduled for a 

reconsideration hearing. Defendant’s counsel, Mr. Bozzelli, did 

not appear and Defendant was represented by Robert Muench, 

Esq., for the purposes of this hearing only. The hearing was 

continued until September 26. 2014, and Mr. Bozzelli was again 

appointed to represent Defendant. On September 12, 2014 

Defendant was scheduled for a status hearing; Mr. Bozzelli 

acknowledged his representation of Defendant. On 

September 26, 2014, Defendant appeared for a video hearing in 

which he withdrew all pending motions and petitions other than 

the pro se appeal of his May 30, 2014 sentencing order.

On December 12, 2014. Defendant sent a letter to the 

Superior Court, in which he objected to the delay of his appeal 

and offered to submit his own record. On December 31, 2014 

the Superior Court forwarded Defendant’s December 12, 2014 

letter to counsel.

On January 20, 2015 Defendant filed a PCRA petition. On 

January 28, 2015, this office forwarded Defendant’s Notice of 

Appeal to Mr. Bozzelli and inquired if he intended to file a Notice 

of Appeal on Defendant’s behalf as counsel of record. Mr. 

Bozzelli did not respond. 

On July 23, 2015, this office asked the Superior Court to 

clarify the status of Defendant’s appeal. The Superior Court 

responded to this office by telephone and informed Chambers 

that Defendant’s appeal was an open matter and that the 

Superior Court was waiting for an opinion pursuant Pa. R.A.P. 

1925(a).

Tr. Ct. Op. at 1-2. As the trial court noted, Appellant filed a new PCRA 

petition to challenge his sentence for the parole violation during this long 

period of delay. The petition, which as of the date of the transmittal of the 

record had not been addressed by the trial court, is premature, as it was 

filed before Appellant’s judgment of sentence for his violation of probation 

became final. See 42 Pa.C.S. § 9545.
J-S84021-16

- 11 -

notice of appeal was impermissibly filed pro se while Appellant was 

represented by counsel. See Trial Ct. Op. at 2-3 (citing Commonwealth v. 

Jette, 23 A.3d 1032, 1035 (Pa. 2011); Commonwealth v. Ellis, 626 A.2d 

1137 (Pa. 1993)). Once the trial court filed its opinion, the record was 

transmitted to this Court on September 21, 2015.

In November 2015, this Court received Appellant’s pro se “Motion for 

Change of Counsel,” in which Appellant stated that his appointed counsel 

had informed him that he would be taking no further action on the matter. 

On December 8, 2015, this Court remanded this case to the trial court for a 

Grazier hearing to determine the status of Appellant’s representation. Mot., 

11/10/15; Order, 12/8/15.15 On February 11, 2016, we received a letter 

from the trial court which stated that Appellant “withdrew his [Grazier] 

hearing on February 8, 2016,” and informed this Court that Appellant would 

be represented by private counsel on appeal. Letter, 2/11/16. Through 

counsel, Appellant filed a timely Rule 1925(b) statement of errors 

____________________________________________

15 We directed the trial court “to conduct an on-the-record determination as 

to whether the Appellant’s waiver of counsel is knowing, intelligent and 

voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 

1998), and to provide written notice of its determination to the Prothonotary 

of this Court within sixty (60) days of the date that this Order is filed.” 

Order, 12/8/15.
J-S84021-16

- 12 -

complained of on appeal. See Order, 3/9/16; Statement, 3/15/16. The trial 

court did not file a responsive Rule 1925(a) opinion.16

Appellant raises the following issue:

Did the Court err by finding [Appellant] in violation of his 

probation? There was no witness at the violation of 

probation hearing other than Dage Gardner, State Agent 

for Pennsylvania Board of Probation & Parole. It was not 

claimed that [Appellant] committed any sexual act or new 

allegations of misconduct. [Appellant] was discharged from 

a sex offenders treatment program after he failed a 

polygraph test. [Appellant] should have been allowed to 

enter a treatment program and should not have been 

found in violation of his probation.

Appellant’s Brief at 3.

Appellant contends that his failure of the polygraph test was not 

sufficient evidence to establish that he violated his probation. Appellant’s 

Brief at 12-15. He maintains that he adhered to all the conditions of 

probation, no allegations of new misconduct were made, and the only 

evidence that he failed a polygraph examination or was unsuccessfully 

discharged from therapy hinges on the testimony of one probation officer. 

Id. Appellant does not challenge the allegation that he failed the polygraph 

test or that he has entered the treatment program multiple times and has 

yet to successfully complete treatment. Appellant provides no specific 

____________________________________________

16 We would ordinarily remand this case to the trial court to file a Rule 

1925(a) opinion that addresses the merits of the appeal. However, due to 

the delay of nearly two years that has occurred between Appellant’s notice 

of appeal and the date of this decision, we elect to resolve this case based 

on the record before us.
J-S84021-16

- 13 -

response to the other allegations made against him at the hearing regarding, 

for example, his failure to attend AA meetings.

The Commonwealth maintains that the officer’s testimony regarding 

the failure of the polygraph comprised sufficient evidence for the court to 

revoke Appellant’s probation. See Commonwealth’s Brief at 12. The 

Commonwealth bases its argument in part on Appellant’s failure to cite any 

law requiring more than the testimony of one probation officer, and in part 

on the lower burden of proof needed at a revocation hearing. Id. (citing 

Commonwealth v. Holder, 805 A.2d 499, 503-04 (Pa. 2002)). The 

Commonwealth also argues that the revocation of parole was justified 

because Appellant failed to register his e-mail address, refused to cooperate 

with the request for a polygraph test, was not attending meetings, lied about 

the use of his storage unit, and did work for a website that “was suspect, to 

say the least.” Id. at 8-11.17

Whether there was sufficient evidence for the trial court to revoke 

Appellant’s probation is —

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

whether the evidence admitted at [the hearing] 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 [violations]. A reviewing 

____________________________________________

17 The Commonwealth also erroneously contends that Appellant failed to 

register his employment for the website. Commonwealth’s Brief at 10-11. 

Appellant did register his employment, which led to further inquiry about the 

position by his probation officers. See N.T., 5/30/14, at 20.
J-S84021-16

- 14 -

court may not weigh the evidence or substitute its judgment for 

that of the trial court.

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

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

The purpose of a revocation hearing is not to determine whether a 

probationer committed a new crime, Commonwealth v. Castro, 856 A.2d 

178, 180 (Pa. Super. 2004), but “to establish to the satisfaction of the judge 

who granted probation that the individual’s conduct warrants his continuing 

as a probationer.” Commonwealth v. Mullins, 918 A.2d 82, 85-86. (Pa. 

2007) (citation omitted). 

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. The Commonwealth establishes a 

probation violation meriting revocation when it shows, by a 

preponderance of the evidence, that the probationer’s conduct 

violated the terms and conditions of his probation, and that 

probation has proven an ineffective rehabilitation tool incapable 

of deterring probationer from future antisocial conduct.

Perreault, 930 A.2d at 557-58 (citations, brackets, and quotation markets 

omitted). Technical violations of probation “can support revocation and a 

sentence of incarceration when such violations are flagrant and indicate an 

inability to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. 

Super. 2007). Sentencing courts must employ a very broad standard in 

determining whether probation has been violated. Commonwealth v. 

Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citation omitted), appeal 

denied, 109 A.3d 678 (Pa. 2015). A revocation of probation hearing is a 
J-S84021-16

- 15 -

truncated proceeding that takes place without a jury, with a lower burden of 

proof, and with fewer due process protections. Mullins, 918 A.2d at 85-86 

(citations omitted). “Probation is given by grace, not by right.” Id. at 86. 

Applying this standard, we hold Appellant is due no relief. A condition 

of Appellant’s probation was that he “[c]ontinue treatment at [JJP].” Order, 

12/13/11. Instead, Appellant was discharged from JJP after he failed a 

polygraph test that asked about his sexual contact with minors and 

prostitutes. We understand that Appellant contends that he answered all 

questions on that test truthfully, but the personnel responsible for JJP 

concluded otherwise and discharged Appellant, and the trial court treated 

that discharge as proper and valid. Because Appellant violated this critical 

term of his probation, the trial court acted within its authority in revoking 

probation. 

The fact that Appellant’s discharge was based in part on his failure of a 

polygraph test does not provide grounds for a different result. We have 

previously opined that polygraph examinations are —

an essential tool for a therapist whose job it is to reveal an 

offender’s deception and encourage him or her to confront his or 

her urges and deviant behavior. The test results further the 

primary goal of counseling as part of a sexual offender’s 

sentence, which is to rehabilitate the offender and prevent 

recidivism, with reasonably small incremental deprivations of the 

offender’s liberty.

Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007). 

Therefore, where a probationer fails or lies during a mandated polygraph 
J-S84021-16

- 16 -

test or otherwise is shown by the test to have been dishonest with his 

therapists, and as a result of the test the probationer has been discharged 

from a therapeutic program that is a required condition of his probation, 

there is sufficient evidence to revoke his probation. 

For example, in Commonwealth v. A.R., 990 A.2d 1 (Pa. Super. 

2010), aff’d, 80 A.3d 1180 (Pa. 2013), a specific condition of probation was 

that the probationer would follow all treatment recommendations following 

his sex-offender evaluation. Those recommendations included that the 

probationer participate in sex offender treatment, which included the use of 

therapeutic polygraph examinations. 990 A.2d at 3. The probationer was 

questioned before, during, and after a polygraph test regarding the sexual 

motives for the underlying offense for which he had pleaded guilty, which he 

denied. He failed the test, and was subsequently discharged from the 

program for his inability to progress in treatment. Id. at 3-4. On appeal, the 

probationer challenged both the admissibility of the polygraph results, 

because of their unreliability, and the sufficiency of the evidence justifying 

his revocation. We affirmed. Id. at 4-5. 

Regarding sufficiency, we concluded that —

[The probationer’s] initial probation requirements mandated 

him to obtain a sex offender evaluation and to comply with all 

treatment recommendations flowing from that evaluation, 

which included participation in a program that focused on 

treating [the probationer’s] denial and justification behavior 

and that administered therapeutic polygraph examinations to 

assist in treatment. . . . [The probationer] was discharged from 

the Program due to his failure to progress in treatment, i.e.,
J-S84021-16

- 17 -

from his inability to admit in treatment the sexual gratification 

motive underlying his convictions. [The probationer] steadfastly 

denied any sexual gratification motive in his acts, despite his 

convictions of the offenses, and he continued to offer varying 

justifications for his acts. This pattern of denial and justification 

caused [the probationer’s discharge] from the Program. Thus, it 

was [the probationer’s] absence from recommended treatment 

that resulted in his violation of the requirements of his sentence 

of probation. Therefore, we are satisfied that the evidence was 

sufficient for the trial court to find that Appellant was in 

violation of his probation, and, as such, Appellant’s issue fails.

Id. at 5 (emphasis omitted). 

Regarding the reliability and admissibility of the polygraph test, we 

opined that —

the results obtained from the administration of a therapeutic 

polygraph examination in a sexual offenders’ treatment 

program are admissible at a probation revocation hearing as 

evidence to support the underlying violation, i.e., a sexual 

offender’s lack of amenability to treatment, so long as the 

results of that examination are not the sole basis for the 

revocation petition . . .

Id. at 7. In A.R., we specified that the polygraph results were not the sole 

basis for the revocation petition, but signified the probationer’s overall 

resistance to treatment:

[The probationer’s] probation officer . . . explained that the 

purpose of the therapeutic polygraph examination was to verify 

information provided by a defendant to the Program, and, if the 

defendant cannot or will not admit to the behavior reflected 

factually in their conviction, the therapeutic polygraph 

examination was used as a means to reevaluate the defendant’s 

treatment. . . . [The] Probation department did not file a petition 

for violation of probation solely on the basis of a sexual 

offender’s “failing” of a therapeutic polygraph examination in the 

Program, due to the well-documented unreliability of polygraph 

examinations. . . . [W]e conclude that the administration of the 

therapeutic polygraph examination was a “last ditch” attempt to 
J-S84021-16

- 18 -

keep Appellant in treatment, rather than having been the reason 

for his ultimate discharge.

Id. at 6-7.18 The admissibility issue was appealed to the Supreme Court, 

which held that the admission of the exam —

was not improper because the results were offered not as 

evidence of appellant’s probation violation, but as background 

evidence to explain the actions taken by program staff. . . . 

Accordingly, we affirm the Superior Court’s holding that 

appellant’s therapeutic polygraph examination results were 

admissible at his [violation of probation] hearing for purposes of 

helping explain the program’s actions and the treatment 

procedures. 

A.R., 80 A.3d at 1183-84.19

____________________________________________

18 In A.R., we also instructed that the subject of polygraph questioning must 

to be restricted to the underlying offense for which the probationer was 

convicted, and not expanded to new, uncharged criminal conduct, in order to 

protect the probationer’s Fifth Amendment rights. A.R., 990 A.2d at 7. As 

pointed out by the Supreme Court on appeal, that issue was not before us. 

A.R., 80 A.3d at 1184 n.6. We note that the Fifth Amendment issue has 

since been addressed by the Supreme Court in Commonwealth v. Knoble, 

42 A.3d 976 (Pa. 2012), and is not at issue in the instant case.

19 The Supreme Court clarified in a footnote:

We do not reach the Superior Court’s conclusion that therapeutic 

polygraph examination results cannot serve as the sole basis for 

probation revocation. The value to be accorded to evidence is a 

matter for the fact-finder with a well-settled appellate standard 

of review. Appellant’s probation violation was supported by 

testimony from several treatment specialists involved in his 

therapy in addition to the results of his therapeutic polygraph, 

and we decline to require specific types of evidence in every 

case.

80 A.3d at 1184 n.6.
J-S84021-16

- 19 -

Similar to the probationer in A.R., Appellant was required to

participate in a specific sex-offender treatment program which required him 

to be honest with his therapists and to take polygraph examinations as part 

of his treatment. Appellant was discharged from the program without having 

successfully completed it, which constituted a technical violation of the terms 

of his probation, and Appellant’s probation was ultimately revoked in large 

part based on the discharge.20

Moreover, the discharge marked just one of a series of treatment 

failures by Appellant, after two prior unsuccessful rounds of treatment. The 

trial court expressed concern regarding these repeated failures. The court’s 

reservations about Appellant’s progress while on probation were buttressed 

by the other information provided to the court in the probation report — for 

example, Appellant’s dishonesty with probation officers surrounding the use 

of his storage unit where he kept a computer, and his failure to attend 

required meetings. 

Appellant’s multiple discharges from the program, in addition to the 

information presented by the probation report, sufficiently support the trial 

court’s conclusion that “probation has proven an ineffective rehabilitation 

tool incapable of deterring [Appellant from engaging in] antisocial conduct,” 

Perreault, 930 A.2d at 558, and that Appellant’s violation indicates an 

____________________________________________

20 Unlike in A.R., the contents of the Appellant’s polygraph test were not 

admitted during the probation violation hearing.
J-S84021-16

- 20 -

“inability to reform,” Carver, 923 A.2d at 498. Accordingly, we discern no 

abuse of discretion or error of law by the trial court in revoking Appellant’s 

probation.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2017