J-S01009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :          IN THE SUPERIOR COURT OF
                                           :                PENNSYLVANIA
            v.                             :
                                           :
JOHN HART,                                 :
                                           :
                  Appellant                :              No. 465 EDA 2014

                    Appeal from the Order January 15, 2014
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0004329-2005

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 19, 2016

       John Hart (“Hart”) appeals, pro se, from the Order denying his Petition

to Lift the Detainer and to Rescind the Bench Warrant (“Petition to Lift

Detainer”). We quash the appeal as interlocutory.

       In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for purposes of this appeal.         See Trial

Court Opinion, 3/25/14, at 1-9.

       Before we may entertain the merits of Hart’s underlying claim, we

must first determine whether this Court has jurisdiction to consider the

appeal.1 Pursuant to Pa.R.A.P. 341, an appeal may be taken as of right only

from a final order. See Pa.R.A.P. 341(a). Generally, in criminal matters, “a

...   defendant   may   appeal    only   from   the    judgment   of   sentence.”

Commonwealth v. Swartz, 579 A.2d 978, 980 (Pa. Super. 1990).

1
 This Court has issued an Order directing Hart to show cause why this
appeal should not be quashed as interlocutory.
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Further, Rule 708 of the Pennsylvania Rules of Criminal Procedure, which

applies to probation revocation hearings, makes clear that the right to

appeal accrues after the court has revoked probation, imposed sentence,

and advised the defendant of his appellate rights. See Commonwealth v.

Heilman,      876   A.2d   1021,   1026    (Pa.   Super.   2005);   see   also

Commonwealth v. Hottinger, 537 A.2d 1, 3 n.2 (Pa. Super. 1987)

(stating that the appeal period does not begin to run until the trial court

imposes sentence, informs the defendant of his right to appeal, and enters

the judgment on the docket).

        Here, Hart challenged a detainer Order, and claims that the trial court

erred by denying his request to lift the detainer.         The detainer Hart

challenges is an intermediary step in the probation revocation process, which

involves both a Gagnon I2 hearing and a Gagnon II hearing before a




2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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decision may be made as to whether probation should be revoked.3 At the

time the trial court denied Hart’s Petition to Lift Detainer, Hart had waived

his right to a Gagnon I hearing; however, no Gagnon II hearing had yet

been scheduled.      Thus, no determination has been made regarding the

revocation of Hart’s probation, nor has any sentence been imposed as a

result of such revocation. Accordingly, the trial court’s Order denying Hart’s

Petition to Lift Detainer is a non-final order.

      Hart disagrees, and contends that the trial court’s Order denying Hart’s

Petition to Lift Detainer qualifies as a final order because, at the time of his

appeal (1) no Gagnon II hearing had yet been scheduled; and (2) although

a trial was scheduled on the pending charges, he had not yet been convicted

of any of those charges.      See Appellant’s Answer to February 13, 2015

Order, 3/11/15, at 2. Hart asserts that a Gagnon II hearing would not be




3
  In Gagnon, the United States Supreme Court held that a defendant
accused of violating the terms of his probation is entitled to two hearings
prior to formal revocation and re-sentencing. The first hearing, a Gagnon I
hearing, requires a determination that probable cause exists to believe that
a violation has been committed. See Commonwealth v. Sims, 770 A.2d
346, 349 (Pa. Super. 2001). 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. See Sims, 770 A.2d at 349.
The Gagnon II hearing requires two inquiries: (1) whether the probationer
has in fact violated one of the conditions of his probation, and, if so, (2)
should the probationer “be recommitted to prison or should other steps be
taken to protect society and improve chances of rehabilitation[.]” Id.
(quoting Gagnon, 411 U.S. at 784).



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scheduled unless he was ultimately convicted of the new charges pending

against him. See id.

      Hart’s arguments are unpersuasive. The fact that Hart had additional

criminal charges pending against him, which had been held over and were

scheduled for trial, underscores the interim nature of the trial court’s Order

denying the Petition to Lift Detainer.       Although Hart had waived his

Gagnon I hearing, a Gagnon I hearing is not required when the defendant

has had a preliminary hearing on the crimes that led to a request to have

the defendant’s probation revoked.      See generally Commonwealth v.

Davis, 336 A.2d 616, 622 (Pa. Super. 1975).          Here, the new criminal

charges against Hart were held over for court following preliminary hearings

conducted on April 4, 2012, and November 19, 2012. As noted by Hart, trial

had been scheduled in both of these cases.              Thus, necessarily, a

determination regarding revocation of Hart’s probation could not be

addressed, nor any Gagnon II hearing conducted, until the conclusion of

trial on the additional criminal charges lodged against him.

      Alternatively, Hart contends that the trial court’s Order denying his

Petition to Lift Detainer qualifies as a collateral order, which is subject to

appeal. See Appellant’s Answer to February 13, 2015 Order, 3/11/15, at 2.

Hart asserts that his probationary sentence expired on January 10, 2015, yet

the detainer and bench warrant remain lodged against him. Id. at 4. Hart




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argues that his claim that he is being illegally detained will be irreparably

lost if appellate review is postponed until after trial. Id. at 4-5.

      The trial court thoroughly addressed Hart’s collateral order argument,

set forth the relevant law, and determined that it lacks merit.        See Trial

Court Opinion, 3/25/14, at 9-11. We concur with the sound reasoning of the

trial court, as well as its conclusion that the Order denying Hart’s Petition to

Lift Detainer does not qualify as a collateral order. See id.4

      Because the Order denying Hart’s Petition to Lift Detainer is not

appealable, Hart’s challenge to that Order must be quashed.

      Appeal quashed.

      Mundy, J., joins the memorandum.

      Gantman, P.J., concurs in the result.




4
   Notably, Hart filed his Notice of Appeal on February 12, 2014,
approximately one year into his 2-year probationary term.          Thus, the
certified record on appeal, which was transmitted shortly thereafter, is
devoid of any developments in Hart’s cases beyond this date. Although Hart
has endeavored to bolster his argument by referencing events which post-
date his appeal, an appellate court is constrained to consider only evidence
appearing in the certified record. See Commonwealth v. O'Black, 897
A.2d 1234, 1240 (Pa. Super. 2006) (holding that “our review is limited to
those facts which are contained in the certified record” and what is not
contained in the certified record “does not exist for purposes of our
review.”).    Moreover, to the extent that Hart may have remained
incarcerated beyond his term of probation, we observe that Hart failed to
post bail in one of the criminal cases for which trial was pending. See Trial
Court Opinion, 3/25/14, at 5-6. Additionally, the trial court noted that Hart
admitted that he has been arrested for yet another offense. See id. at 8.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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