J-S37008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AKEEM WATSON                             :
                                          :
                    Appellant             :   No. 1238 EDA 2017

           Appeal from the Judgment of Sentence March 17, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010503-2008


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 10, 2018

      Appellant, Akeem Watson, appeals from the judgment of sentence

entered on March 17, 2017, following the revocation of his probation. We

affirm.

      The trial court summarized the relevant background of this case as

follows:

      On July 2, 2009, Appellant appeared before the [c]ourt and
      entered a guilty plea to unlawful restraint/serious bodily injury,
      indecent assault, and criminal conspiracy (indecent assault). After
      accepting his plea as knowingly, intelligently, and voluntarily
      tendered, the [c]ourt sentenced Appellant to 11½ to 23 months’
      incarceration for unlawful restraint followed by five years’
      reporting probation, with no further penalty on his remaining
      convictions. As part of his sentence, Appellant was ordered to
      obtain sex offender treatment.

      Since that time, Appellant has appeared before the [trial c]ourt
      for numerous violation of probation/parole (VOP) hearings.
      Specifically, on June 13, 2012, Appellant’s probation was revoked
      for two (2) new arrests, for missing numerous appointments with

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* Former Justice specially assigned to the Superior Court.
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     his probation officer, absconding and having a warrant issued, and
     failing to complete his sex offender treatment. A new sentence of
     11½ to 23 months’ confinement followed by five years’ reporting
     probation was imposed.

     On May 27, 2016, Appellant’s probation once again was revoked
     for admittedly abusing the narcotic K2 and for being discharged
     from (and failure to complete) his court-mandated programs due
     to hostile and combative behavior at his substance abuse
     treatment facility.    A new sentence of [six] to 23 months’
     confinement followed by three years’ reporting probation was
     imposed. [The trial court] explicitly advised Appellant that he was
     to re-engage at the treatment facility and that there would be no
     tolerance for further positive drug screens or aggressive behavior
     at the facility.

     Appellant was paroled on November 12, 2016. Unfortunately, his
     violent and unruly behavior continued [and the Commonwealth
     initiated revocation proceedings.] On March 17, 2017, [at the
     conclusion of a VOP hearing, the trial court revoked Appellant’s
     parole and terminated his probation] for, among other things,
     physically assaulting a security guard at [Northwest Human
     Services] and for aggressive/combative behavior at [the Joseph J.
     Peters Institute], resulting in his discharge from the program.

     [At the March 17, 2017 hearing, the Commonwealth introduced
     the testimony of Appellant’s probation officer to establish the facts
     underlying its claim that Appellant violated the terms of his
     probation. The information offered by the probation officer was
     based upon reports generated by other probation agents;
     Appellant’s probation supervisor conceded that he lacked personal
     knowledge of the events. Initially, trial counsel objected to the
     officer’s testimony and the trial court simply noted counsel’s
     objection. Eventually, however, the court offered Appellant the
     option of continuing the proceedings so that he could confront and
     cross-examine witnesses with personal knowledge of the events
     giving rise to the VOP proceedings. The following exchange
     occurred.]

       [Trial Counsel]: I will object to this, Your Honor,. It’s
       hearsay. I have no way to cross-examine this security guard
       in this case or anyone who was allegedly involved in this
       incident. There’s no paperwork that I was presented with


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        other than this brief paragraph.     So for the record, I am
        objecting.

        Trial Court: And your objection is noted. This is one of many,
        many incidents that are included in the report. If this was
        the only incident, I probably would need to hear from the
        security guard and need some corroboration of what you’re
        saying, but there’s much more in here regarding [Appellant]
        that I’m going – we’ll go forward.

                                      ***


        Let me ask you this: although we’ve made [Appellant’s
        probation officer] wait around all this time, if you want to
        bring in any of these people, I’ll, you know, give you that
        opportunity and we can continue this.

        [Trial Counsel] May I ask my client, Your Honor?

        Trial Court: Sure.

        [Trial Counsel]: We’re going to go forward today.

        Trial Court: All right.

Trial Court Opinion, 10/5/17, at 1-2 and 5, quoting N.T., 3/17/17, at 4-7.

      Based upon the testimony presented by Appellant’s probation officer,

the trial court found Appellant in violation of the terms of his supervision and

re-sentenced him to one to two years’ incarceration followed by three years’

probation. Appellant filed a timely motion for reconsideration, which the court

denied on March 29, 2017. Appellant lodged a timely appeal and the court

ordered him to file a concise statement of errors complained of on appeal in

accord with Pa.R.A.P. 1925(b). Appellant complied in a timely manner and

the trial court issued its Rule 1925(a) opinion on October 5, 2017.


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        Appellant raises the following issues for our review:

        In admitting hearsay evidence at [A]ppellant’s probation
        revocation hearing without a showing of good cause by the
        Commonwealth, did not the [trial] court violate [A]ppellant’s state
        and    federal     constitutional  rights     to    confrontation,
        cross-examination and due process, as well as state decisional law
        and the rules of evidence?

        Even assuming arguendo [A]ppellant had waived his objection to
        the hearsay evidence, did not the [trial] court violate due process
        and state decisional law by revoking [A]ppellant’s probation based
        on uncorroborated hearsay?

Appellant’s Brief at 3.

        Appellant alleges in his first claim that the trial court erred in admitting

inadmissible      and     uncorroborated       hearsay   testimony    where     the

Commonwealth failed to show good cause for not permitting confrontation of

the witnesses. This claim merits no relief.

        Under Pennsylvania law, “hearsay is not admissible at a Gagnon II1

hearing absent a finding of good cause for not allowing confrontation.”

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).

Notwithstanding, “[t]o be preserved for review, an issue must not only be

raised by [objection or] post-trial motion, but also, not abandoned when the

case is argued to the trial court.”        Commonwealth v. Warren, 459 A.2d

1285, 1288 (Pa. Super. 1983); see also Commonwealth v. Johnson, 301




____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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A.2d 632 (Pa. 1973) (issue based on objection withdrawn by defense counsel

at trial cannot be raised later on appeal).

       In this case, trial counsel objected to the use of hearsay testimony to

establish that Appellant violated the terms of his probation. Subsequently,

the trial court presented Appellant with an option to continue the proceedings

in order to permit confrontation and cross-examination of witnesses with

personal knowledge of the relevant events. After consulting with Appellant,

counsel declined this opportunity. In so doing, counsel effectively withdrew

his objection and Appellant cannot now raise the issue on appeal. Hence, no

relief is due.2

       Appellant’s second claim asserts that even if counsel waived or withdrew

his hearsay objection, Appellant is nonetheless entitled to relief because

uncorroborated hearsay cannot support the revocation of a probationary

sentence consistent with due process. This position is untenable under the

present circumstances. Both evidentiary and constitutional claims are subject

to waiver where they are not properly raised or preserved before the trial


____________________________________________


2 We are not inclined to adopt Appellant’s view which suggests that the trial
court’s offer constituted an impermissible effort to shift the Commonwealth’s
burden onto Appellant and compel him to “locate, subpoena, and present
adverse witnesses so he could then exercise his constitutional rights to
confront and cross-examine them.” Appellant’s Brief at 14. Instead, we
construe the court’s statements as an invitation, albeit an inartful one, to
continue the proceedings so as to allow the Commonwealth to call witnesses
with personal knowledge of the relevant events who would then be subject to
confrontation and cross-examination by trial counsel. Viewed in this manner,
we discern no error.

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court.    State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa.

Super. 2015) (“It is axiomatic that ‘[i]n order to preserve an issue for

appellate review, a party must make a timely and specific objection at the

appropriate stage of the proceedings before the trial court. Failure to timely

object to a basic and fundamental error will result in waiver of that issue.’”),

appeal denied, 116 A.3d 605 (Pa. 2015); Commonwealth v. Foreman, 797

A.2d 1005, 1016 (Pa. Super. 2002) (reviewing challenge to admission of

hearsay evidence and holding that “[i]n the absence of an appropriate

objection made when the evidence is proffered at trial, the issue is not

preserved for appeal and the applicable rule of evidence is waived”);

Commonwealth v. Chamberlain, 30 A.3d 381, 405 (Pa. 2011) (defendant

waived appellate review of state due process claim that was not directly raised

before the trial court); Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).          Here,

Appellant withdrew his hearsay objection before the trial court and never

advanced a due process claim during the revocation proceedings.           Since

Appellant never raised a due process claim before the revocation court, he

cannot, within the context of this appeal, invoke a newly-minted due process

theory to resurrect his withdrawn hearsay challenge. This claim also fails.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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