J-S38038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOSHUA B. FETTEROLF, :

:

Appellant : No. 1932 MDA 2014

Appeal from the Judgment of Sentence entered on November 4, 2014

in the Court of Common Pleas of Union County,

Criminal Division, No. CP-60-CR-0000045-1999

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOSHUA B. FETTEROLF, :

:

Appellant : No. 1933 MDA 2014

Appeal from the Judgment of Sentence entered on November 4, 2014

in the Court of Common Pleas of Union County,

Criminal Division, No. CP-60-CR-0000046-1999

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 20, 2015

Joshua B. Fetterolf (“Fetterolf”) appeals from the judgment of 

sentence imposed following the revocation of his probation. We affirm. 

In June 1999, Fetterolf pled nolo contendere to one count of sexual 

assault and two counts of unlawful restraint. See 18 Pa.C.S.A. §§ 3124.1; 

2902(a). Fetterolf was sentenced to an aggregate sentence of four to eight 
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years in prison, to be followed by two probationary sentences of five years 

each to be served consecutively for the counts of unlawful restraint. 

On October 10, 2014, the Commonwealth filed a Motion to Revoke 

Fetterolf’s probation. The Commonwealth alleged that Fetterolf had violated 

probation on six occasions, including by possession of an offensive weapon 

(baton) and by assaulting his wife, Delann Fetterolf (“Delann”). 

The trial court found that Fetterolf violated the conditions of his 

probation by possessing the baton and assaulting his wife. The trial court 

sentenced Fetterolf to two consecutive prison terms of two and a half to five 

years. Fetterolf filed a timely Notice of Appeal and a court ordered 1925(b) 

Concise Statement of Errors Complained of on Appeal. Thereafter, the trial 

court issued an Opinion. 

On appeal, Fetterolf raises the following issues for our review: 

1. Did the [t]rial [c]ourt improperly credit and rely upon 

statements by [Delann] when she recanted said statements[,] 

and she was obviously untruthful? 

2. Did the [t]rial [c]ourt improperly base part of its decision 

upon observations made by it regarding supposed contact 

between [Fetterolf] and [Delann] in the courtroom, while a 

Protection from Abuse Act (PFA)[1] Order was in effect against 

[Fetterolf] and on [Delann’s] behalf, but not when testimony was 

being presented in the immediate case? 

Brief for Appellant at 7 (footnote added). 

“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 

 

1 See 23 Pa.C.S.A. §§ 6101-6122. 
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disturbed on appeal in the absence of an error of law or an abuse of 

discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 

2014). “The standard of proof is a preponderance of the evidence, or in 

other words, such proof as leads the trier of fact to find that the existence of 

a contested fact is more probable than its non-existence.” Commonwealth 

v. Del Conte, 419 A.2d 780, 781 (Pa. Super. 1980) (citations omitted). 

“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.” Colon, 102 A.3d at 1041.

In his first claim, Fetterolf argues that the evidence is not sufficient to 

support his revocation because much of the Commonwealth’s case came 

from Delann’s testimony about the PFA Order. Brief for Appellant at 10. At 

the hearing, Delann testified that Fetterolf had abused her, and that she had 

submitted a sworn statement in a PFA Petition. Id. However, Delann later 

testified that she lied in the Petition. Id. Fetterolf contends that since 

Delann lied about the abuse, the trial court erred in relying upon her 

statements in sentencing. Id. at 11. 

Jonathan Lehr (“Agent Lehr”), Fetterolf’s parole agent, testified that he 

searched Fetterolf’s residence, after learning that Fetterolf had used a baton 

to strike Delann. N.T., 11/3/14, at 46. While searching the residence, 

Agent Lehr found a baton inside Fetterolf’s coat. Id. at 50. 
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Delann testified that she had filed her PFA Petition on September 29, 

2014, regarding the abuse by Fetterolf. Id. at 18. Delann read parts of her 

PFA Petition, which alleged various forms of abuse, including that Fetterolf 

had threatened her, punched her, hit her with a baton, knocked her 

unconscious, and held her against her will. Id. at 20-23. During the 

testimony, Delann verified the accuracy of the statements in her PFA 

Petition. Id. Later, on cross examination, Delann claimed that she lied in 

her PFA Petition. Id. at 27. 

Regarding Delann’s contradictory testimony, the Honorable Michael H. 

Sholley (“Judge Sholley”) stated, “it is my assessment of [Delann] that she 

is scared to death of [Fetterolf]. . .and that is probably the explanation for 

her changing her story, not because it didn’t happen.” Id. at 76; see also

Trial Court Opinion, 1/26/15, at 3. Judge Sholley, as the fact finder, was 

free to believe any part of a Delann’s testimony. See Commonwealth v. 

Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (stating that the fact finder can 

believe all, part, or none of the evidence and can determine the credibility of 

the witnesses). 

Further, Judge Sholley considered Fetterolf’s rehabilitative needs 

versus the interest of society in preventing future crime. Judge Sholley 

believed that Fetterolf was “a dangerous and out-of-control man” who 

needed time in prison before being allowed back in society. N.T., 11/3/14, 

at 76. Thus, the Commonwealth proved by a preponderance of the evidence 
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that Fetterolf violated his probation and that his probation was properly 

revoked. See Colon, 102 A.3d at 1042 (stating that the trial court can 

determine whether or not probation has proven ineffective in rehabilitating 

the defendant). Therefore, Fetterolf’s first claim lacks merit. 

In his second claim, Fetterolf contends that the trial court based part 

of its revocation decision on the court’s observation that Fetterolf had 

violated the PFA Order by having contact with Delann while they were in 

court. Brief for Appeallant at 11. Fetterolf argues that the trial court could 

not use this observation in its decision because it is an assertion of fact that 

is outside the record. Id.

Here, Judge Sholley specifically stated that he did not base his decision 

on those observations. See Trial Court Opinion, 1/26/15, at 3; see also, 

N.T., 11/3/14, at 72 (wherein Judge Sholley stated that he could have held 

Fetterolf in contempt based on his in-court contact with Delann, but decided 

not to do so). Therefore, Fetterolf’s argument is without merit.2

Judgment of Sentence affirmed. 

 

2 We note that Fetterolf also argues that Judge Sholley based his decision on 

pictures that were allegedly found on Fetterolf’s phone, when that issue was 

not before the court. Brief for Appellant at 12. While Judge Sholley 

mentioned the issue in his Opinion, it was not the basis for the revocation of 

Fetterolf’s probation. See N.T., 11/13/14, at 83. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015