Com. v. Priester, R.
CourtSuperior Court of Pennsylvania
Date FiledOctober 22, 2026
Docket1137 WDA 2025
JudgeStabile
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND W. PRIESTER :
:
Appellant : No. 1137 WDA 2025
Appeal from the Judgment of Sentence Entered August 26, 2025
In the Court of Common Pleas of Butler County
Criminal Division at No: CP-10-CR-0000646-2023
BEFORE: STABILE, J., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY STABILE, J.: FILED: October 22, 2026
Appellant, Raymond W. Priester, appeals from the judgment of sentence
imposed following revocation of his parole on August 26, 2025, by the Court
of Common Pleas of Butler County. Upon review, we affirm.
On January 4, 2024, Appellant pleaded guilty to theft of secondary
metal1 and driving while operating privilege is suspended – 3rd or subsequent
violation2. He was sentenced on February 8, 2024, to an aggregate of six to
12 months imprisonment and 12 consecutive months of probation. Appellant
was immediately paroled.
On January 9, 2025, the Commonwealth filed a request to schedule a
violation of parole (“VOP”) hearing because Appellant incurred nine new
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1 18 Pa.C.S.A. § 3935.1(A).
2 75 Pa.C.S.A. § 1543(b)(1)(iii).
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criminal charges. A Gagnon I3 hearing was held on February 7, 2025,
wherein Appellant admitted to the violations. The Gagnon II hearing was
deferred pending disposition of the new charges or upon motion of either
party. Appellant’s detainer was lifted, and in exchange, Appellant agreed to
cooperate with Detective Matthew Irvin on unrelated investigations. N.T. VOP
Hearing, 8/21/25, at 15. Appellant was ordered to appear at the Butler County
Adult Probation Department every Monday following his release. A violation
would result in immediate detention.
Appellant was released from the Butler County jail on February 7, 2025,
and never reported to the probation department. As a result, the
Commonwealth filed a second request to schedule a VOP hearing. The VOP
court scheduled a Gagnon II hearing for March 21, 2025, but was continued
pending disposition of the new charges or upon motion of either party.
On March 27, 2025, defense counsel, Joseph L. Smith, Esquire, filed a
motion to withdraw and request for appointment of new counsel.4 Counsel
averred that he received a letter from Appellant which alleged “ineffective
assistance and unfounded allegations about working for the Commonwealth’s
interest.” Motion to Withdraw as Counsel, 3/27/25, at ¶ 4. Therefore, counsel
sought to withdraw due to a breakdown in the attorney-client relationship.
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4 Attorney Smith represented Appellant on 10 total dockets, including the one
subject to this appeal. He filed a motion to withdraw from all of Appellant’s
cases.
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Id. at ¶ 5. A hearing was scheduled for April 24, 2025. However, there is no
indication in the record whether that hearing occurred.
Counsel filed a second motion to withdraw and request for appointment
of new counsel on July 30, 2025. In addition to the averments in counsel’s
first motion, he added that Appellant “renewed his allegations against
undersigned counsel on the record with the trial court at the last status
conference.” Motion to Withdraw as Counsel, 7/30/25, at ¶ 7. A hearing was
scheduled for August 21, 2025.
On August 4, 2025, the Commonwealth filed a motion to revoke bond
and schedule a Gagnon II hearing. The Gagnon II hearing was scheduled
for the same date that the VOP court was scheduled to address counsel’s
request to withdraw – August 21, 2025.
At the hearing on August 21, 2025, the VOP court first addressed the
parole violation and the Commonwealth’s request to revoke bond. The VOP
court found that Appellant violated his parole and ordered him to serve his
back time. The VOP court then addressed counsel’s motion to withdraw. At
the conclusion of the hearing, the VOP court took the matter of counsel’s
withdraw under advisement. On August 26, 2025, the VOP court entered two
separate orders: (1) finding Appellant violated his parole and sentencing him
to serve his back time and (2) granting counsel’s motion to withdraw and
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appointing new counsel, Joel Hills, Esquire.5 This timely appeal followed. Both
Appellant and the VOP court complied with Pa.R.A.P. 1925. Appellant raises
the following issues for our review:
I. Whether the [VOP] court abused its discretion in failing to
permit counsel to withdraw prior to addressing the merits of
the alleged parole violation at the Gagnon II hearing,
thereby violating Appellant’s right to proceed pro se when it
was clear from the record that Appellant vehemently
objected to trial counsel’s continued representation.
II. Whether the [VOP] court abused its discretion in failing to
permit Appellant to proceed pro se at the Gagnon II
hearing which prevented Appellant from zealously cross-
examining witnesses at said hearing as to their conflicting
and false testimony.
III. Whether the evidence was insufficient to find Appellant had
violated the terms of his parole.
IV. Whether Appellant was not afforded with properly/timely
notice of the Gagnon II hearing in violation of his due
process rights which prevented him from properly defending
the allegations and/or confront witnesses, especially in light
of the fact that he was forced to proceed with counsel he
vehemently objected to given the motion to withdraw
pending before the court at the time of the Gagnon II
hearing.
V. Whether Appellant’s sentence to serve the balance of the
maximum with no credit for “street time” was excessive
given the allegations lodged against him and the fact that
Appellant had not been convicted of any further crimes at
the time of the Gagnon II hearing.
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5 On October 20, 2025, Attorney Hills filed to withdraw with this Court.We
directed the VOP court to conduct a Grazier hearing to determine whether
Appellant wanted to proceed pro se or appoint substitute counsel. Following
the Grazier hearing, the VOP court appointed Christy P. Foreman, Esquire, to
represent Appellant on appeal.
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VI. Whether Appellant’s credit time has been improperly
calculated thus affecting the release dates as to the state
sentence he is currently serving for retail theft at CP-10-CR-
651-2025, which was ordered to run concurrent to any other
sentence.
Appellant’s Brief, at 7-8.
In Appellant’s first issue, he contends that the VOP court abused its
discretion when it failed to address counsel’s request to withdraw before
commencement of the Gagnon II hearing. See Appellant’s Brief, at 15-18.
He argues this failure amounted to a violation of his Sixth Amendment right
to proceed pro se. See id. at 15. He cites no relevant authority to support
his position.
“A criminal defendant’s right to counsel under the Sixth Amendment
includes the concomitant right to waive counsel’s assistance and proceed to
represent oneself at criminal proceedings.” Commonwealth v. El, 977 A.2d
1158, 1162 (Pa. 2009). The right to represent oneself is guaranteed where a
defendant “understands the nature of his choice” and “knowingly, voluntarily,
and intelligently seeks to waive his right to counsel[.]” Id.; see also
Pa.R.Crim.P. 121. However, the right to represent oneself is not automatic
and the request must be made timely and must be clear and unequivocal.
See id. at 1163; see also Commonwealth v. Davido, 868 A.2d 431, 438
(Pa. 2005). A request is timely when it is asserted before “meaningful trial
proceedings” have begun. El, 977 A.2d at 1163. “[T]he inquiry surrounding
whether a request to proceed pro se is unequivocal is fact intensive and should
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be based on the totality of the circumstances surrounding the request.”
Davido, 868 A.2d at 439.
Here, as the VOP court correctly points out, Appellant never made a
clear and unequivocal request to proceed pro se. Attorney Smith filed two
motions to withdraw; on March 27, 2025 and July 30, 2025. In both, Attorney
Smith requested appointment of new counsel and did not assert that Appellant
wished to proceed pro se. When given the opportunity to address the VOP
court regarding Attorney Smith’s motion to withdraw, the focus was on
Appellant’s dissatisfaction with and distrust of his current counsel. See N.T.
VOP Hearing, 8/21/25, at 34-37. Appellant never explicitly requested to
proceed pro se.
Based on the totality of the circumstances, we conclude that Appellant
did not make a clear and unequivocal request to proceed pro se. Accordingly,
Appellant never invoked his Sixth Amendment right of self-representation, and
the VOP court did not err in failing to address counsel’s request prior to
commencement of the Gagnon II hearing.
Relatedly, in Appellant’s second issue, he argues that the VOP court
abused its discretion by not allowing him to proceed pro se at the Gagnon II
hearing. See Appellant’s Brief, at 19-23. “This flagrant abuse completely
thwarted Appellant’s ability to defend against the Commonwealth’s evidence,
which included zealously cross-examining conflicting and false testimony.”
Id. at 19.
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Appellant’s argument on this issue, practically speaking, is that counsel
was ineffective. He essentially argues that he would have done a better job
questioning the Commonwealth’s witness than his counsel. Absent
established exceptions not present here, “claims of ineffective assistance of
counsel are to be deferred to PCRA review; trial courts should not entertain
claims of ineffectiveness upon post-verdict motions; and such claims should
not be reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013). Thus, we are unable to review this claim.6
Appellant’s third issue challenges the sufficiency of the evidence to find
that he violated his parole. See Appellant’s Brief, at 23-27. He claims that
the Commonwealth failed to meet its burden because: (1) his counsel failed
to object to the playing of a recorded prison call between Appellant and his
paramour where he admitted to committing the new crimes; and (2) the
“evidence was clearly insufficient given the credible testimony offered by
Appellant.” Id. at 2
“Unlike a probation revocation, a parole revocation does not involve the
imposition of a new sentence.” Commonwealth v. Kalichak, 943 A.2d 285,
290 (Pa. Super. 2008). “The Commonwealth must prove the violation by a
preponderance of the evidence, and once it does so, the decision to revoke
parole is a matter for the court’s discretion.” Id. “[T]he only option for a
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6 Additionally, Appellant does not explicitly claim counsel was ineffective and
does not assert an exception to the rule that ineffectiveness claims must be
deferred to collateral review.
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court that decides to revoke parole is to recommit the defendant to serve the
already-imposed, original sentence.” Id. As such, our review is limited to
determining whether the VOP court erred as a matter of law in deciding to
revoke parole and recommitting the defendant to confinement. Id. at 291.
This third issue is without merit. Appellant was sentenced on February
8, 2024, to serve six to 12 months in prison and 12 consecutive months of
probation. One of the conditions of Appellant’s probation and parole was to
comply with all laws and to notify his probation officer within 72 hours of any
arrest. See Butler County Conditions of Probation and Parole, 2/8/24. To
prove Appellant violated his parole, the Commonwealth played portions of a
recorded prison call on July 29, 2025, between Appellant and his paramour.
See N.T. VOP Hearing, 8/21/25, at 19-20, Commonwealth’s Exhibit 1. On the
call, Appellant states, “From day 1, I’ve admitted I fucking stole this shit from
the stores. I never once argued that I did not take that shit. You got me.”
Id., Exhibit 1 at 18:55-19:05. Additionally, Appellant admitted that he
violated his parole during the February 7, 2025, Gagnon I hearing, and
confirmed that admission during the Gagnon II hearing. See id. at 22.
Accordingly, the VOP court found the Commonwealth met its burden, revoked
Appellant’s parole and ordered him to serve his back time. We find no abuse
of discretion.
To the extent Appellant argues that his counsel was ineffective, that
issue must be deferred to post-conviction review. See Holmes, supra. To
the extent Appellant challenges the VOP court’s credibility determinations,
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those are within the sole discretion of the VOP court. See Commonwealth
v. Myers, 722 A.2d 649, 651-52 (Pa. 1998) (“questions of credibility and
conflicts in the evidence presented are for the trial court to resolve, not our
appellate courts” so long as the determination is supported by the record).
No relief is due.
In Appellant’s fourth issue, he contends that his due process rights were
violated because he did not receive timely notice of the VOP hearing. See
Appellant’s Brief, at 27-29. “[T]his lack of prior notice prevented him from
properly defending the allegations and confront the witnesses against him,
especially given that he was forced to proceed with counsel he had clearly
terminated prior to the revocation hearing.” Id. at 27.
This issue is without merit. The order scheduling the VOP hearing was
filed on August 14, 2025 – one week prior to the hearing. The distribution list
on the order indicates that a copy of the order was provided to Appellant at
Butler County Prison. See Order, 8/14/25. Moreover, Appellant’s argument
that had he been provided ample notice, he would have subpoenaed witnesses
and gathered evidence to negate the allegations is unavailing. His parole
violations consisted of incurring nine new criminal charges and not paying his
fines, costs, and/or restitution. Appellant admitted to the violations during
the Gagnon I hearing and confirmed that admission during the Gagnon II
hearing. No relief is due.
Appellant’s fifth issue appears to challenge the discretionary aspects of
his sentence. He argues:
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Appellant alleges that the sentence to serve the balance of the
maximum with no credit for his “street time” was excessive in light
of the unsubstantiated allegations lodged against him, especially
in light of the fact that he appeared before the [VOP court] with
no additional convictions.
****
[This] was clearly an abuse of discretion and unambiguously
excessive under the circumstances given the fact that Appellant
was not a “convicted violator” at the time the parole was revoked.
Appellant’s Brief, at 29-31. Based on this argument, Appellant seems to
challenge the sufficiency of the evidence to prove that he violated his parole
disguised as a challenge to the discretionary aspects of sentencing. Under
either theory, Appellant’s argument fails.
As previously discussed, there was sufficient evidence to prove
Appellant violated his parole. To the extent Appellant challenges the
discretionary aspects of his sentence, that challenge is improper. “[A]n appeal
of a parole revocation is not an appeal of the discretionary aspects of
sentence.” Kalichak, 943 A.2d at 291. We explained:
As such, a defendant appealing recommitment cannot contend,
for example, that the sentence is harsh and excessive. Such a
claim might implicate discretionary sentencing but it is improper
in a parole-revocation appeal. Similarly, it is inappropriate for a
parole-revocation appellant to challenge the sentence by arguing
that the court failed to consider mitigating factors or failed to place
reasons for sentence on the record. Challenges of those types
again implicate the discretionary aspects of the underlying
sentence, not the legal propriety of revoking parole.
Id. (citations omitted). Because Appellant’s challenge that the sentence was
excessive is improper, we need not address this issue further.
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In Appellant’s eighth issue, he argues “that appropriate time credit in
this matter has been improperly calculated, thus effecting the release date for
his state sentence imposed at CP-10-CR-651-2025, which was ordered to run
concurrent with any other sentence he was serving, i.e., this parole revocation
sentence.” Appellant’s Brief, at 32.
A claim that the trial court failed to award credit for time spent in
custody implicates the legality of sentence. Commonwealth v. Nobles, 198
A.3d 1101, 1105 (Pa. Super. 2018). The scope and standard of review to
determine the legality of a sentence are well established:
If not statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. In evaluating a trial
court’s application of a statute, our standard of review is plenary
and is limited to determining whether the trial court committed an
error of law.
Commonwealth v. Whatley, 221 A.3d 651, 653 (Pa. Super. 2019) (citation
omitted). Time credit is governed by 42 Pa.C.S.A. § 9760:
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of
the criminal charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S.A. § 9760(1). “Section 9760 does not contemplate [or authorize]
credit for time served to be awarded twice.” Barndt v. PA Dept. of
Corrections, 902 A.2d 589, 595 (Pa. Commw. Ct. 2006); see also Taglienti
v. Dept. of Corrections, 806 A.2d 988, 993 (Pa. Commw. Ct. 2002)
(“[C]redit for time served prior to the sentencing date is governed by Section
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9760 which does not provide for credit for time served on unrelated offenses
or when credit has been already credited against another sentence.”).
Here, at the time Appellant was sentenced on this charge, he was
already serving multiple sentences. After he was sentenced on this charge,
Appellant received 10 new sentences. In addressing Appellant’s claim, the
trial court explained:
Appellant fails to specify how the credit time was improperly
calculated or how much credit he is due. The Butler County Prison
records indicate that Appellant was credited with [165] days
served in the above-captioned matter. Appellant’s remaining time
incarcerated during the pendency of this case was properly
credited to Appellant’s other cases. See CP-10-CR-0000525-
2023; CP-10-CR-0000997-2021; CP-10-CR-0000651-2025. The
credit time available from January 7, 2025 to February 7, 2025,
that was attributed to 651-2025 [Appellant’s state sentence] could
have been credited to this case, however, it was more beneficial
to Appellant to apply the credit to his state sentence.
Trial Court Opinion, 2/13/26, at 5 (our pagination).
Appellant’s argument on this issue is as follows:
At the time of the revocation hearing, Appellant had served
approximately 11 months of “street time” after parole from the
original sentence. It should be noted that the original sentence
imposed on February 8, 2024, was a period of 12 months’
probation at count one (1) and a term of imprisonment of six to
twelve months at count two (2), with the sentence to run
concurrent to any other sentence.
Appellant submits that appropriate credit time in this matter has
been improperly calculated, thus effecting the release date for his
state sentence imposed at CP-10-CR-651-2025, which was
ordered to run concurrent with any other sentence he was serving,
i.e., this parole revocation sentence. Court records allot only 165
days credit time to this particular case, March 4, 2025-August 15,
2025, which Appellant purports is incorrect given the length of
time he has been incarcerated related to this offense. As such,
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this miscalculation as to proper credit time is affecting his parole
date related to [CP-10-CR-651-2025]. To allow this egregious
error to remain will in essence increase his punishment in relation
to his original sentence, this violating double jeopardy. Appellant
is entitled to a proper calculation as to credit time and relief is
warranted.
Appellant’s Brief, at 31-32. In challenging the trial court’s decision, Appellant
does not indicate how the decision was wrong, what time credit he is owed or
how it should be applied. We are unable to review this issue because Appellant
is not specific to where the error occurred and does not cite any authority for
how the credit should be applied.
To the extent Appellant contends he was entitled to double time credit,
that claim is without merit. See Bardnt, Taglienti, supra. To the extent
Appellant alleges that the Department of Corrections erred in the computation
of sentence, that claim must be addressed to the Commonwealth Court. See
Commonwealth v. Wyatt, 115 A.3d 876, 879 (Pa. Super. 2015). To the
extent Appellant challenges the VOP court’s decision to not award him credit
for time spent on parole, that claim is without merit. Offenders who are
recommitted following a parole violation are not entitled to credit for time
spent at liberty on parole. See Commonwealth v. Fair, 497 A.2d 643, 645
(Pa. Super. 1985); see also Commonwealth v. Chambers, 2023 WL
6459356 at *3 (Pa. Super. filed Oct. 4, 2023) (unpublished memorandum) 7.
Thus, no relief is due.
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7 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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Judgment of sentence affirmed.
DATE: 10/22/2026
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