J-S32011-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

ALBERT P. PUSATERI, 

 Appellant No. 1210 WDA 2014 

Appeal from the Judgment of Sentence July 7, 2014 

In the Court of Common Pleas of Butler County 

Criminal Division at No(s): CP-10-CR-0001338-2004 

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2015 

 Appellant, Albert P. Pusateri, appeals from the judgment of sentence 

entered on July 7, 2014, following the revocation of his probation. We 

affirm. 

 The record reveals that on June 9, 2004, Appellant approached a 

seventeen-year-old female (“the victim”) on a sidewalk near his home in 

Butler, Pennsylvania. Affidavit of Probable Cause, 6/10/04, at 1; N.T., 

Sentencing, 10/18/05, at 4. Appellant requested a cigarette from the 

victim, but she informed him that she did not have any. N.T., Sentencing, 

10/18/05, at 4. Appellant then offered the victim money to come inside his 

house, but she refused. Id. At this point, Appellant grabbed the victim, 

dragged her inside his house, barricaded the door so that she could not 

escape, removed her clothing, and sexually assaulted her. Id. at 5. 
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Appellant was subsequently arrested and charged with rape, 

kidnapping, unlawful restraint, aggravated indecent assault, and simple 

assault. Complaint, 6/23/04. On January 27, 2005, Appellant entered a 

guilty plea to one count of aggravated indecent assault. On October 18, 

2005, Appellant was determined to be a sexually violent predator (“SVP”), 

and the trial court sentenced Appellant to a term of thirty-six to ninety 

months of incarceration followed by thirty months of probation. N.T., 

Sentencing, 10/18/05, at 14. 

Appellant was not paroled, and as his maximum sentence and release 

date approached, he was required to provide the Pennsylvania Board of 

Probation and Parole (hereinafter “the Board”) an approved home plan 

identifying where he would live during his thirty months on state-supervised 

special probation. However, as Appellant is an SVP, the home plans he 

suggested were not acceptable to the Board due to those residences being 

located close to schools and parks where children gather. N.T., 

Revocation/Sentencing, 7/7/14, at 13. Because Appellant violated his 

probation by failing to provide an approved home plan, which was a 

condition of his probation, the trial court revoked Appellant’s probation and 

recommitted him to a term of twelve to thirty months of incarceration, with 

credit for time already served. Id. at 15. Appellant filed a timely appeal, 

and both the trial and Appellant have complied with Pa.R.A.P. 1925. 
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In this appeal, Appellant raises one issue for this Court’s 

consideration: 

WHETHER A PROBATION VIOLATION CAN BE VESTED AGAINST

A DEFENDANT FOLLOWING HIS MAXIMUM EXPIRATION OF AN 

INCARCERATION SENTENCE UPON THE IMMEDIATE FAILURE TO 

SECURE AN APPROVED RESIDENCE SUBJECT TO THE 

DISCRETIONARY APPROVAL PROCESS CONDUCTED BY THE 

PENNSYVANIA BOARD OF PROBATION AND PAROLE UNDER THE

PENNSYVANIA SEXUAL OFFENDERS REGISTRATION AND 

NOTIFICATION ACT (SORNA) WHEN THE DEFENDNAT IS 

INDIGENT, DISABLED, AND WITHOUT ANY RESOURCES 

PROVIDED BY SORNA TO ASSIST WITH RESIDENCY? 

Appellant’s Brief at 6 (verbatim). 

Our standard of review is as follows: 

In general, 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. Commonwealth v. Sierra, 752 A.2d 

910, 913 (Pa. Super. 2000). Our standard of 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); Commonwealth v. 

Gheen, 688 A.2d 1206, 1207–08 ([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). 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); Commonwealth v. Coolbaugh, 770 A.2d 

788, 792 (Pa. Super. 2001). 

Commonwealth v. Hoover, 909 A.2d 321, 322-323 (Pa. Super. 2006). 
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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. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 

2012), affirmed, 91 A.3d 102 (Pa. 2014) (citation omitted). Moreover, an 

order of probation can be changed or revoked “if, at any time before the 

defendant has completed the maximum period of probation, or before he has 

begun service of his probation” the defendant commits offenses or otherwise 

demonstrates that he is unworthy of probation. Hoover, 909 A.2d at 323-

324. Finally, the Pennsylvania Code provides as follows: 

[The Board] may, during the probation or parole period, in case 

of violation of the conditions of probation or parole, detain the 

special probationer or parolee in a county prison and make a 

recommendation to the court, which may result in the revocation 

of probation or parole and commitment to a penal or correctional 

institution to serve a sentence in the case of probation or the 

remainder of the sentence in the case of parole. 

37 Pa. Code § 65.3. 

 Here, Appellant argues that he: 

is in the situation where he cannot surmount the Board’s 

statutory authority to deny residences and exhausted all of his 

options after submitting seven or eight of them for approval. He 

is indigent and disabled and is now serving a probation violation 

sentence because of his lack of residence. Appellant was never 

released from incarceration following the expiration of his 

maximum jail sentence. Appellant believes such violation and 

subsequent sentence is illegal, and the Board’s actions of 

immediate and continued detention of him are unconstitutional. 

Appellant believes that he can be effectively and strictly 
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monitored within the community by special conditions of 

probation imposed by [the Board]. Appellant believes his 

continued incarceration is illegal. 

Appellant’s Brief at 20-21. 

Initially, we point out that Appellant has failed to direct this Court’s 

attention to any authority that would permit us to review the discretion of 

the Board in approving or disapproving a home plan, nor has our 

independent research uncovered any such authority.1 As such, the 

appealable order is the judgment of sentence and its propriety, which we 

review under the standard set forth above. Hoover, 909 A.2d 322-324; 

Simmons, 56 A.3d at 1283-1284. To that end, we disagree with Appellant’s 

claim of error, and we conclude that the Board had no duty to approve 

Appellant’s home plan, did not err in rejecting Appellant’s home plan due to 

their locations relative to children, and the trial court did not err revoking 

probation and resentencing Appellant. 

The residency restrictions placed on sex offenders were addressed in 

an opinion filed in our sister court. In Nieves v. Pennsylvania Board of 

Probation and Parole, 995 A.2d 412 (Pa. Cmwlth. 2010),2 the 

____________________________________________ 

1

 We note also that Appellant has failed to comply with the rules of appellate 

procedure by failing to include a statement of both the scope of review and 

the standard of review in violation of Pa.R.A.P. 2111. 

 

2

 Although our Court is not bound by decisions of the Commonwealth Court, 

we may elect to deem the rationale of those decisions as persuasive. 

Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa. Super. 2002). 
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Commonwealth Court reviewed the Board’s residency restrictions which were 

applied pursuant to Megan’s Law, the predecessor to the Sex Offender 

Registration and Notification Act (“SORNA”). Neither 42 Pa.C.S. § 9799.10 

of SORNA nor 42 Pa.C.S. § 9798 of Megan’s Law contains specific residency 

restrictions. However, the Commonwealth Court stated that “silence, by 

itself, is not sufficient to create a mandatory duty in the Board to impose no 

residence restrictions on sex offenders or sexually violent predators whose 

victims have been minors.” Nieves, 995 A.2d at 418. Rather, as Appellant 

concedes, the Board has the authority to approve the home plan as follows: 

“[i]f parole is granted, the parolee shall . . . [l]ive at the residence 

approved by the Board at release and not change residence without the 

written permission of the parole supervision staff.” Appellant’s Brief at 16 

(quoting 37 Pa. Code § 63.4(2)) (emphasis added); see also 37 Pa. Code § 

65.4 (concerning probationers). 

As noted above, each residence Appellant submitted was in close 

proximity to an area where children gather. Because Appellant is an SVP 

convicted of sexually assaulting a child, it is undisputed that an approved 

home plan was a condition of Appellant’s probation. However, it is also 

undisputed that Appellant failed to provide an approved home plan. 

Therefore, Appellant was in violation of the terms of his probation. It was 

within the Board’s discretion to approve the home plan as the purpose of 

SORNA is to protect the citizens of Pennsylvania from sex offenders, 42 
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Pa.C.S. §§ 9799.10 – 9799.11, and it is within the discretion of the trial 

court to determine if Appellant is worthy of probation. Hoover, 909 A.2d at 

323-324. We discern no abuse of discretion. Accordingly, we discern no 

error in the trial court’s decision to revoke Appellant’s probation and 

resentence Appellant due to the aforementioned violation of his probation. 

Thus, we affirm Appellant’s judgment of sentence.3

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/11/2015 

____________________________________________ 

3

 To the extent that Appellant claims he did not receive the benefit of his 

plea agreement, we conclude that this claim is specious. There is nothing in 

Appellant’s plea agreement relieving him of his duties to comply with the 

terms of release on either probation or parole. Appellant received his 

bargained-for sentence, and his written plea agreement reveals that the 

duration of probation was left to the discretion of the trial court. Guilty Plea, 

1/27/05. During his incarceration, Appellant elected not to participate in 

sex-offender therapy, which resulted in the denial of parole, and Appellant 

subsequently failed to provide an approved home plan, which, as discussed 

above, was a violation of his probation. None of these factors impugns the 

integrity of Appellant’s plea agreement as Appellant’s subsequent failures 

are distinct from his initial sentencing after the plea.