J. S83007/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JORDAN SCOTT ASTROVE, : No. 1981 WDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, November 6, 2015,

in the Court of Common Pleas of Venango County

Criminal Division at No. CP-61-CR-0000288-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2016

Jordan Scott Astrove appeals from the judgment of sentence of 

November 6, 2015, following revocation of his probation. We affirm.

The trial court has summarized the history of this case as follows:

[Appellant] was arrested in June 2013 

following a child pornography investigation. 

Seventeen videos were downloaded by a computer 

later to be determined to belong to [appellant]. The 

download was traced to [the] internet provider of a 

neighbor, though after investigation, it was 

determined they were not in possession of the 

computer used to download the child pornography. 

It was later determined that [appellant], along with 

two others, used the internet connection, and 

[appellant] used that connection to download child 

pornography.

[Appellant] was arraigned on June 14, 2013. 

[Appellant] accepted a guilty plea on November 14th, 

 

* Retired Senior Judge assigned to the Superior Court.
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2013, in which he pled guilty to four counts of 

Sexual Abuse of Children, Dissemination less than 

13 years, five counts of Sexual Abuse of Children, 

Possession of Child Pornography, one count of 

Criminal Use of a Communication Facility, and one 

count of Theft of Services.[1] Per this guilty plea, 

[appellant] was required to undergo a SORNA[2] 

assessment. [Appellant] was sentenced [on] 

March 25, 2014, to eleven and one half (111⁄2) 

months to twenty four (24) months less one day, 

with a seven (7) year probationary tail.

According to the Notice of Charges and Hearing 

filed March 20, 2015, on March 13, 2015, [appellant] 

met as required with probation officers. When asked 

about possession of an internet-capable cell phone, 

[appellant] initially denied owning the item. 

However, [appellant] did admit to ownership of the 

cell phone. The probation officer then proceeded to 

search [appellant]’s vehicle, found the cell phone 

and a tablet, both of which contained images and 

videos of adult and child pornography. Additionally, 

there were stuffed animals and “excessive” amounts 

of chocolate. [Appellant] admitted to the probation 

officer that more pornographic materials were 

present in [appellant]’s residence, which later search 

corroborated.

Petition to Revoke Probation/Parole was filed in 

Venango County [on] July 28, 2015. [Appellant] 

waived his right to a Gagnon I hearing and 

proceeded to a Gagnon II hearing, held August 20, 

2015.[3] Probation was revoked following this 

hearing. On November 6th, 2015, the court 

resentenced [appellant] to an aggregate of 

 

1 18 Pa.C.S.A. §§ 6312(c)(1), 6312(d)(1), 7512(a), & 3926(a)(1), 

respectively.

2 Sexual Offender Registration and Notification Act, codified at 42 Pa.C.S.A. 

§§ 9799.10-9799.41.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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seventeen and one half (171⁄2) to thirty five (35) 

years in prison on the revocation.[4]

Trial court opinion, 3/1/16 at 1-2.

[Appellant] filed a Motion for Modification of 

Sentence [on] November 16, 2015, which was 

denied by this court [on] November 18. [Appellant] 

took [a] direct appeal to the Superior Court [on] 

December 17, 2015. [Appellant] was directed to file 

[a] Concise Statement of Matters Complained of on 

Appeal[5] within 21 days by Court Order dated 

December 18, and was granted a thirty (30) day 

extension on December 23 due to the status of 

transcripts and Defense Counsel’s January trial.

[Appellant] filed the instant Concise Statement 

on February 5, 2016.[6]

Id. at 3.

Appellant has raised the following issues for this court’s review:

[1.] Was the evidence presented at the time of the 

Gagnon II hearing insufficient to sustain a 

finding [appellant] violated the conditions of 

his supervision?

 

4 On counts 2 through 10, all third-degree felonies, appellant received 

consecutive sentences of 31⁄2 to 7 years’ imprisonment. (Notes of testimony, 

11/6/15 at 19-20.) On count 11, theft of services, a second-degree 

misdemeanor, appellant received a consecutive sentence of 1 to 2 years’ 

imprisonment. (Id. at 20.) However, the sentences at counts 7 through 11 

were run concurrently with the sentences at counts 2 through 6 for an 

aggregate sentence of 171⁄2 to 35 years’ imprisonment. (Id. at 21.)

5

Pa.R.A.P. 1925(b).

6 Appellant received an extension of 30 days from the original deadline to file 

his Rule 1925(b) statement. (Docket #45.) Therefore, appellant’s 

Rule 1925(b) statement was due on or before Monday, February 8, 2016. 

1 Pa.C.S.A. § 1908. As such, appellant’s Rule 1925(b) statement, filed on 

Friday, February 5, 2016, was timely. 
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[2.] Is the sentence imposed upon [appellant] too 

harsh for the alleged conduct he was found to 

have been engaged in violation of his 

conditions of supervision, and thus 

unreasonable, manifestly excessive and an 

abuse of discretion?

Appellant’s brief at 5.7

Before proceeding to appellant’s issues on appeal, we must address a 

jurisdictional question.8 Pennsylvania Rule of Criminal Procedure 708(E), 

relating to revocation of probation or parole, provides as follows:

(E) Motion to Modify Sentence

A motion to modify a sentence imposed after a 

revocation shall be filed within 10 days of the 

date of imposition. The filing of a motion to 

modify sentence will not toll the 30-day 

appeal period.

Pa.R.Crim.P. 708(E) (emphasis added).

Under this rule, the mere filing of a motion to modify 

sentence does not affect the running of the 30-day 

period for filing a timely notice of appeal. Any 

appeal must be filed within the 30-day appeal period 

unless the sentencing judge within 30 days of the 

imposition of sentence expressly grants 

reconsideration or vacates the sentence. See 

Commonwealth v. Coleman, 721 A.2d 798, 799, 

 

7 A third issue raised in appellant’s Pa.R.A.P. 1925(b) statement, challenging 

the constitutionality of the warrantless search, has been abandoned on 

appeal.

8 Although neither the Commonwealth nor the trial court raises the issue of 

the timeliness of this appeal, this court may raise questions of appellate 

jurisdiction sua sponte. Commonwealth v. Parlante, 823 A.2d 927, 929 

n.4 (Pa.Super. 2003), citing Commonwealth v. Coolbaugh, 770 A.2d 788, 

791 (Pa.Super. 2001).
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fn.2 (Pa.Super. 1998). See also Pa.R.A.P. 

1701(b)(3).

Id., Comment. See also Parlante, 823 A.2d at 929 (“An appellant whose 

revocation of probation sentence has been imposed after a revocation 

proceeding has 30 days to appeal her sentence from the day her sentence is 

entered, regardless of whether or not she files a post-sentence motion. 

Therefore, if an appellant chooses to file a motion to modify her revocation 

sentence, she does not receive an additional 30 days to file an appeal from 

the date her motion is denied.” (citations omitted)).

As recounted above, appellant was sentenced on November 6, 2015. 

Therefore, appellant had until Monday, December 7, 2015, to file a timely 

notice of appeal. 1 Pa.C.S.A. § 1908. Appellant’s motion to modify his 

revocation sentence, although filed within 10 days, did not toll the 30-day 

appeal period. Pa.R.Crim.P. 708(E). Accordingly, appellant’s notice of 

appeal filed December 17, 2015 was untimely.

Nevertheless, we will not quash the instant appeal where the record 

indicates that appellant was misinformed as to the relevant appeal period. 

Prior to sentencing, the trial court played a video explaining the defendants’ 

post-sentence and appellate rights:

If your post-sentence motion is denied you have the 

right to appeal the Sentence Order to the 

Pennsylvania Superior Court. Your right to appeal to 

the Pennsylvania Superior Court expires 30 days 

after the date of sentencing or 30 days after the 

Court files an Order resolving your post-sentence 
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motion, if you have filed a post[-]sentence motion 

within 10 days following sentencing.

Notes of testimony, 11/6/15 at 4-5.

In any event, the appeal to the Pennsylvania 

Superior Court must be filed within 30 days either 

from the date of the sentence or 30 days from the 

date the Court acts finally on your post-sentence 

motion, whichever is later.

Id. at 5-6.

Obviously, this was a misstatement of the law as it pertained to 

appellant, a probation violator. Nor was the error rectified after appellant 

was resentenced. (Id. at 21.) Appellant was never properly advised of the 

correct appeal deadline pursuant to Pa.R.Crim.P. 708(D)(3).9 Therefore, 

although appellant’s notice of appeal was untimely, we will consider this a 

nunc pro tunc appeal based on a breakdown of the court, and review his 

claims on the merits. See, e.g., Commonwealth v. Flowers, A.3d 

 , 2016 WL 6157509, at *3-4 (Pa.Super. October 24, 2016) (trial court 

 

9

(D) Sentencing Procedures

(3) The judge shall advise the defendant on 

the record:

(a) of the right to file a motion to 

modify sentence and to 

appeal, of the time within 

which the defendant must 

exercise those rights, and of 

the right to assistance of 

counsel in the preparation of 

the motion and appeal[.]
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provided the appellant with incorrect information about the appeal deadline, 

and his late filing was therefore excused because the misinformation 

constituted a breakdown of the judicial process); Parlante, 823 A.2d at 929 

(“[W]e decline to quash this appeal because Parlante’s error resulted from 

the trial court’s misstatement of the appeal period, which operated as a 

‘breakdown in the court’s operation.’”); Coolbaugh, 770 A.2d at 791 (where 

the appellant was led to believe that he had 30 days to appeal from the 

denial of his reconsideration motion following revocation of his probation, 

this court declined to quash the appeal, recognizing that the problem arose 

as a result of the trial court’s misstatement of the appeal period, which 

operated as a breakdown in the court’s operation); Commonwealth v. 

Anwyll, 482 A.2d 656, 657 (Pa.Super. 1984) (although the appeal was 

untimely, where the defendant’s failure to appeal on time appeared to be a 

result of a breakdown in the operation of the trial court, which gave 

erroneous information as to the appeal period, the appeal would not be 

quashed as untimely but would be regarded as though filed nunc pro tunc

and considered on the merits).

In his first issue on appeal, appellant argues that the Commonwealth 

failed to prove that he violated the conditions of his supervision. 

(Appellant’s brief at 12.) Appellant argues that the sole evidence that he 

possessed child pornography was the testimony of James Krauss, his 

probation officer, who testified regarding what he saw on appellant’s digital 
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devices. (Id.) Appellant complains that no expert testimony was presented 

to authenticate the images. (Id.)

The procedures for revoking probation and the rights 

afforded to a probationer during revocation 

proceedings are well settled:

[w]hen a parolee or probationer is 

detained pending a revocation hearing, 

due process requires a determination at 

a pre-revocation hearing, a Gagnon I

hearing, that probable cause exists to 

believe that a violation has been

committed. Commonwealth v. 

Ferguson, 761 A.2d 613 (Pa.Super. 

2000) (citing Commonwealth v. 

Holmes, 248 Pa.Super. 552, 375 A.2d 

379, 381 (1977)). 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. 

Commonwealth v. DeLuca, 275 

Pa.Super. 176, 418 A.2d 669, 672 

(1980).

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, 33 L.Ed.2d 484). It 

is this fact that must be demonstrated by 

evidence containing “probative value.” 
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Commonwealth v. Kates, 452 Pa. 102, 

305 A.2d 701 (1973). “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, 36 L.Ed.2d 656, 

(citing Morrissey v. Brewer, supra, 

408 U.S. at 484, 92 S.Ct. 2593, 33 

L.Ed.2d 484).

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

quoting Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001) 

(brackets in original).

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.” [Sims, 770 A.2d] 

at 350 (internal citation omitted). Thus, the 

Commonwealth need only prove a violation of 

probation by a preponderance of the evidence. Id. 

Lastly, hearsay is not admissible at a Gagnon II

hearing absent a finding of good cause for not 

allowing confrontation. Commonwealth v. 

Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128, 

1130-31 (1984).

Allshouse, 969 A.2d at 1241.

Instantly, Agent Krauss testified that he received information from 

appellant’s employer that appellant had a cell phone and tablet. (Notes of 
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testimony, 8/20/15 at 10.)10 One of the conditions of appellant’s probation 

was that he not access the internet for pornographic purposes. (Id.) 

Appellant was also prohibited from possessing any pornographic materials. 

(Id.) According to appellant’s employer, “he overheard [appellant] stating 

that he had a cell phone that he didn’t want his P.O. to know about and he 

stated that he frequently had an iPad of some sort that was always on him 

that he always had his eyes on, that was always guarded.” (Id.)

On March 13, 2015, appellant arrived at the probation office for a 

conference. (Id. at 19.) At first, appellant denied owning a cell phone with 

internet capabilities, but later admitted that he did own such a device. (Id.) 

Probation officers proceeded to search appellant’s vehicle and retrieved a 

Samsung Galaxy tablet and an HTE cell phone from a black backpack on the 

front seat. (Id.) They also recovered several tubes of KY lubricating jelly 

from inside of appellant’s backpack. (Id. at 27.) Agent Krauss observed 

approximately six stuffed animals and large amounts of chocolate in the rear 

of the vehicle. (Id. at 20.)

The seized items were taken into the probation office. (Id.) When 

Agent Krauss asked appellant if there were any photographs on his phone, 

“he just put his head down.” (Id.) Agent Krauss discovered multiple 

images of child pornography on appellant’s cell phone, including graphic 

 

10 Agent Krauss is a state parole agent working out of the Allentown district 

office. (Id. at 3.)
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pictures of young children between ages 5 and 10. (Id.) There were also 

video files, including one depicting a female child approximately 6-8 years 

old inserting an object into her vagina. (Id.) In another video, an adult 

male masturbated and ejaculated onto the face of a 6-8 year old girl. (Id.

at 21-21.) Agent Krauss found additional pictures and videos on appellant’s 

Samsung Galaxy tablet. (Id. at 21.) Agent Krauss testified that they all 

depicted children between ages 5 and 16. (Id.) At that point, they notified 

police and appellant was taken into custody. (Id.)

When appellant was asked if he had any additional contraband in his 

apartment, he refused to answer. (Id.) Upon further questioning, however, 

he admitted that there was “stuff” in his room. (Id.) Agent Krauss and 

another probation officer, together with state police, entered appellant’s 

residence and conducted a search. (Id. at 22.) Underneath the bed, they 

found a cell phone containing graphic photos of what appeared to be child 

pornography. (Id.) At that time, the investigation was turned over to the 

state police who obtained a search warrant which was executed on 

March 14, 2015. (Id.)

Clearly, Agent Krauss’s testimony was sufficient to find that appellant 

violated the terms and conditions of his probationary supervision; 

specifically, that he not download or possess pornographic images. In fact, 

the underlying charges related to possession of child pornography. 

Appellant cites no authority for the proposition that the Commonwealth was 
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required, at a Gagnon II revocation hearing, to present expert testimony to 

authenticate the images. (Appellant’s brief at 12.) As stated above, the 

Commonwealth need only prove a probation violation by a preponderance of 

the evidence. Allshouse, 969 A.2d at 1241. There is no evidence that the 

images were digitally altered, as appellant suggests. (Id.) Furthermore, 

whether or not the photographs depicted “real” children, appellant was 

prohibited from possessing pornography of any kind. This claim fails.

In his second issue on appeal, appellant claims that his sentence of 

171⁄2 to 35 years’ incarceration was manifestly excessive and an abuse of 

discretion. Appellant argues that all of his sentences should have been run 

concurrently and that the trial court failed to adequately consider various 

mitigating factors, including his remorse, his voluntary participation in sexual 

offender programming, and the fact that he faced additional charges as a 

result of the same conduct underlying the petition to revoke probation. 

(Appellant’s brief at 9, 13-14.) Appellant also argues that the items found in 

his vehicle were innocent in nature and did not, in and of themselves, 

indicate criminal motive. (Id.)

11

An appellant wishing to appeal the discretionary 

aspects of a probation-revocation sentence has no 

absolute right to do so but, rather, must petition this 

Court for permission to do so. [Commonwealth v. 

Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)]; 

42 Pa.C.S.A. § 9781(b). Specifically, the appellant 

must present, as part of the appellate brief, a 

 

11 We assume that appellant is referring to the KY jelly, stuffed animals, and 

chocolates.
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concise statement of the reasons relied upon for 

allowance of appeal. Malovich, 903 A.2d at 1250; 

Pa.R.A.P. 2119(f). In that statement, the appellant 

must persuade us there exists a substantial question 

that the sentence is inappropriate under the 

sentencing code. Malovich, 903 A.2d at 1250; 

Pa.R.A.P. 2119(f).

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008).

In general, an appellant may demonstrate the 

existence of a substantial question by advancing a 

colorable argument that the sentencing court’s 

actions were inconsistent with a specific provision of 

the sentencing code or violated a fundamental norm 

of the sentencing process. Malovich, 903 A.2d at 

1252. While this general guideline holds true, we 

conduct a case-specific analysis of each appeal to 

decide whether the particular issues presented 

actually form a substantial question. Id. Thus, we 

do not include or exclude any entire class of issues 

as being or not being substantial. Id. Instead, we 

evaluate each claim based on the particulars of its 

own case. Id.

Id. at 289-290.

In his Rule 1925(b) statement, appellant framed his discretionary 

aspects of sentencing claim as follows: “The sentence received by 

[appellant] from the lower court was too harsh for the alleged conduct the 

Court used to find [appellant] violated the conditions of supervision[.]” 

(Rule 1925(b) statement, 2/5/16 at 2, ¶3(b); docket #8.) A bald allegation 

that the sentence appellant received was “too harsh” is vague and waives 

the issue on appeal. Rule 1925(b) provides: “The Statement shall concisely 

identify each ruling or error that the appellant intends to challenge with 
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sufficient detail to identify all pertinent issues for the judge.” 

Pa.R.A.P. 1925(b)(4)(ii).

It has been held that when the trial court directs an 

appellant to file a concise statement of matters 

complained of on appeal, any issues that are not 

raised in such a statement will be waived for 

appellate review. Commonwealth v. Dowling, 778 

A.2d 683, 686 (Pa.Super. 2001), citing 

Commonwealth v. Lord, 553 Pa. 415, 418, 719 

A.2d 306, 308 (1998). Similarly, when issues are 

too vague for the trial court to identify and address, 

that is the functional equivalent of no concise 

statement at all. Id. Rule 1925 is intended to aid 

trial judges in identifying and focusing upon those

issues which the parties plan to raise on appeal. 

Commonwealth v. Lemon, 804 A.2d 34, 37 

(Pa.Super. 2002). Thus, Rule 1925 is a crucial 

component of the appellate process. Id. “When the 

trial court has to guess what issues an appellant is 

appealing, that is not enough for meaningful review.” 

Id., citing Dowling, supra.

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008) (en banc). 

Similarly, in his motion to modify sentence, appellant asserted that his 

sentence was “too harsh” and excessive. (Motion to modify sentence, 

11/16/15 at 2; docket #11.) The only specific allegation was that the trial 

court abused its discretion in imposing consecutive sentences. (Id.) See

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013), appeal 

denied, 85 A.3d 482 (Pa. 2014) (“Challenges to the discretionary aspects of 

a sentence must be raised first in the trial court, either in a post-sentence 

motion or by presenting them during the sentencing proceedings. The 

failure to do so results in a waiver of all such claims.”) (citations omitted). 
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Appellant’s vague and boilerplate sentencing claim is waived for appeal 

purposes.12 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016

 

12 At any rate, appellant’s allegations in his Rule 2119(f) statement that his 

sentences should have been run concurrently and that the trial court failed 

to give adequate weight to certain mitigating factors do not raise a 

substantial question for this court’s review. (Appellant’s brief at 9.) 

Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989) (en banc) 

(an allegation that the sentencing court did not adequately consider various 

factors is, in effect, a request that this court substitute its judgment for that 

of the lower court in fashioning a defendant’s sentence); Commonwealth 

v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (“[i]n imposing a sentence, 

the trial judge may determine whether, given the facts of a particular case, a 

sentence should run consecutive to or concurrent with another sentence 

being imposed.”) (citations omitted); Commonwealth v. Mastromarino, 2 

A.3d 581, 586-587 (Pa.Super. 2010), appeal denied, 14 A.3d 825 (Pa. 

2011) (same). We also note that the sentencing guidelines do not apply to 

sentences imposed as the result of probation revocations. Commonwealth 

v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) (citations omitted).