J-S60036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellee                :
                                           :
                    v.                     :
                                           :
DAVID PILAWSKI,                            :
                                           :
                   Appellant               :    No. 3606 EDA 2015

         Appeal from the Judgment of Sentence November 2, 2015,
              in the Court of Common Pleas of Bucks County,
           Criminal Division, at No(s): CP-09-CR-0000276-2012
                         CP-09-CR-0001181-2014
                         CP-09-CR-0004986-2013

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JANUARY 19, 2017

      David Pilawski (Appellant) appeals from the judgment of sentence

imposed on November 2, 2015, following revocation of his parole at CP-09-

CR-0000276-2012 (276-2012) and CP-09-CR-0001181-2014 (1181-2014),

and the revocation of his probation at CP-09-CR-0004986-2013 (4986-

2013). We affirm.

      The revocation court aptly set forth the relevant factual and procedural

history of this matter as follows.

      [276-2012]

             On March 9, 2012, [Appellant] pled guilty [at 276-2012] to
      retail theft and receiving stolen property after his arrest on
      November 11, 2011 for stealing baby formula from the


* Retired Senior Judge assigned to the Superior Court.
J-S60036-16


     Genuardi’s Supermarket in Middletown Township, Bucks County,
     Pennsylvania. He was sentenced to 18 months of probation, to
     be served consecutively to a prior sentence of probation he had
     received.

           On September 10, 2012, [Appellant] was found to have
     violated his probation, which was thereafter revoked. He was
     resentenced to another 18 months of probation, to be again
     served consecutively to a prior sentence of probation he had
     received [on a prior, unrelated case].

           On October 30, 2013, pursuant to a stipulated violation of
     probation, [Appellant’s] probation previously granted on
     September 10, 2012 was revoked, and he was resentenced to
     one year of probation. This probation was again to be served
     consecutively to the previous sentence he received [on a prior,
     unrelated case].

           On May 15, 2014, [Appellant] was again found to have
     violated his probation, which was again revoked, and he was
     sentenced to undergo incarceration in the Bucks County
     Correctional facility (“BCCF”) for not less than 1 year minus one
     day nor more than 2 years minus one day.

            On November 2, 2015, pursuant to an agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, [Appellant] was found to be in
     violation of his parole granted under the sentence issued on May
     15, 2014, and he was sentenced to serve his backtime of 9
     months 13 days, concurrent to the sentences he was serving
     under [4986-2013 and 1181-2014].

     [4986-2013]

            On October 3, 2013, [Appellant] pled guilty to retail theft,
     after he and an accomplice were arrested on June 28, 2013 for
     stealing Similac baby formula from the Toys R Us store in
     Langhorne, Bucks County. [Appellant] received a sentence of
     two (2) years of probation for that conviction.

           On May 15, 2015, [Appellant] was found to be in violation
     of that probation. His probation was revoked, and he was
     resentenced to four (4) years of probation, to be served


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     concurrently with his sentences of probation under Bill Nos.
     [276-2012] and [1181-2014].

            On November 2, 2015, pursuant to another agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, [Appellant] was found to be in
     violation of that probation, which was thereafter revoked, and he
     was resentenced to undergo incarceration in a state correctional
     institution in a therapeutic community for not less than two (2)
     nor more than four (4) years.

     [1181-2014]

           On May 2, 2014, [Appellant] pled guilty to simple assault
     and harassment after his arrest for assaulting another inmate in
     a holding cell at the BCCF on January 7, 2014. On May 15, 2014,
     [Appellant] was sentenced to undergo imprisonment at the BCCF
     for not less than 1 year minus one day nor more than 2 years
     minus one day. On August 1, 2015, he was granted parole from
     that sentence.

            On November 2, 2015, pursuant to a third agreement
     [Appellant] entered into with the Commonwealth prior to the
     bench warrant proceeding, this court found [Appellant] in
     violation of his parole, which was thereafter revoked, and he was
     sentenced to serve the remaining backtime of nine (9) months
     and thirteen (13) days.

          On November 10, 2015, the Bucks County Public
     Defender’s Office filed on behalf of [Appellant] a Motion for
     Appointment of Private Counsel and a Motion to Withdraw
     Admission of Violation of Parole and/or Probation and for
     Reconsideration of Sentence. In the latter motion, [Appellant]
     “asked to withdraw his admission that he was in violation of his
     probation and parole and asked for reconsideration of his
     sentences because he claims he did not knowingly, intelligently,
     and voluntarily waive his rights, did not fully understand the
     proceeding, and did not have counsel.” Motion, 11/10/15.

          On November 19, 2015, an order was issued by the
     Honorable Wallace H. Bateman, Jr., granting the motion for
     appointment of private counsel.



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            On December 1, 2015, an order was issued which
      scheduled a hearing on [Appellant’s] motions for December 15,
      2015.

            On December 2, 2015, [Appellant’s] court-appointed
      private counsel filed a notice of appeal from the judgment of
      sentences issued on November 2, 2015, and the hearing
      scheduled for December 15, 2015 was cancelled.

Revocation Court Opinion, 3/31/2016, at 1-3 (footnotes and unnecessary

capitalization omitted). Both Appellant and the trial court complied with the

mandates of Pa.R.A.P. 1925.1

      Appellant asks this Court to consider the following.

      1. Did the [revocation court] err in finding that [Appellant’s]
      waiver of his right to revocation hearings and/or his admission to
      the violations alleged in support of the request to violate his
      probation and parole was knowingly, intelligently and voluntarily
      made?

      2. Did the [revocation court] err in finding that [Appellant’s]
      waiver of his right to revocation hearings before the judge who
      received [Appellant’s] pleas of guilty at the time of the initial
      disposition of the underlying cases and his right to have
      sentence imposed after such revocation by the judge who


1
  On September 21, 2016, we issued a memorandum quashing Appellant’s
appeal as premature and remanding the matter to the trial court for
consideration of Appellant’s outstanding post-sentence motion on the basis
that Rule of Criminal Procedure 720(B)(3)(a) and Commonwealth v.
Borrero, 692 A.2d 158 (Pa. Super. 1997), controlled. Commonwealth v.
Pilawski, 3606 EDA 2016 (Pa. Super. filed Sept. 21, 2016) (unpublished
memorandum). On November 11, 2016, the Commonwealth filed a petition
for panel reconsideration, which this Court granted on November 21, 2016,
because this case is governed by Rule 708, which provides, inter alia, that
the “the filing of a motion to modify sentence [after a revocation proceeding]
will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E). Because
Appellant timely filed his notice of appeal within thirty days of the imposition
of sentence as required by Rule 708, the issues raised herein are ripe for our
review.
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J-S60036-16


      received [Appellant’s] pleas of guilty was knowingly, intelligently
      and voluntarily made?

Appellant’s Brief at 3.

      “[I]n an appeal from a sentence imposed after the court has revoked

probation, we can review the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (quoting Commonwealth v.

Cartrette, 83 A.3d 1030, 1033 (Pa. Super. 2013) (en banc )). “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 disturbed on appeal in the

absence of an error of law or an abuse of discretion.” Commonwealth v.

McNeal, 120 A.3d 313, 322 (Pa. Super. 2015) (citations and quotation

marks omitted).

      Appellant first contends that he did not knowingly, intelligently, or

voluntarily admit to the underlying probation and parole violations nor did he

waive properly his right to a violation hearing. Appellant’s Brief at 9-12.

             In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
      L.Ed.2d 656 (1973), 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.

            When a parolee or probationer is detained pending a
            revocation hearing, due process requires a
            determination at a pre-revocation hearing, a
            Gagnon I hearing, that probable cause exists to
            believe that a violation has been committed. Where

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            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.

      Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
      2001). 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, supra at 784, 93 S.Ct. 1756).

Commonwealth v. Heilman, 876 A.2d 1021, 1026–27 (Pa. Super. 2005).

However, it is well-settled that “there are articulable differences between

probation revocation hearings and criminal trials. Probation, like parole, is

not part of the criminal prosecution, and thus the full panoply of rights due a

defendant in a criminal trial does not apply to probation revocation.”

Gagnon, 411 U.S. at 781.

      Relying on cases decided by our Commonwealth Court, McKenzie v.

Pennsylvania Board of Probation and Parole, 963 A.2d 616 (Pa.

Cmwlth. 2009) and Prebella v. Pennsylvania Board of Probation and

Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), Appellant contends that the

language of the Order Probation/Parole Violation Agreement forms he signed

at all three above-captioned cases on November 2, 2015, was insufficient to

“ensure a knowing and voluntary waiver of one’s rights.” Appellant’s Brief at

12. However, as the Commonwealth correctly points out, those cases deal

with waiver documents subject to the regulations of parole revocation

hearings before the state Board of Probation and Parole. See 37 Pa. Code

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§ 71.2. As a Bucks County probation and parole matter, Appellant’s cases

fell under the procedures outlined in Pa.R.Crim.P. 708, which states as

follows.

      (A) A written request for revocation shall be filed with the clerk
      of courts.

      (B) Whenever a defendant has been sentenced to probation or
      intermediate punishment, or placed on parole, the judge shall
      not revoke such probation, intermediate punishment, or parole
      as allowed by law unless there has been:

            (1) a hearing held as speedily as possible at which
            the defendant is present and represented by
            counsel; and

            (2) a finding of record that the defendant violated a
            condition of probation, intermediate punishment, or
            parole.

      (C) Before the imposition of sentence,

            (1) the defendant may plead guilty to other offenses
            that the defendant committed within the jurisdiction
            of the sentencing court.

            (2) When such pleas are accepted, the court shall
            sentence the defendant for all the offenses.

Pa.R.Crim.P. 708.

      Our Court has held that,

      at a [county-level] probation or parole revocation hearing, the
      following procedural safeguards apply:

            (a) written notice of the claimed violations of
            [probation or] parole; (b) disclosure to the
            [probationer or] parolee of evidence against him; (c)
            opportunity to be heard in person and to present
            witnesses and documentary evidence; (d) the right
            to confront and cross-examine adverse witnesses

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            (unless the hearing officer specifically finds good
            cause for not allowing confrontation); (e) a “neutral
            and detached” hearing body such as a traditional
            parole board, members of which need not be judicial
            officers or lawyers; and (f) a written statement by
            the factfinders as to the evidence relied on and
            reasons for revoking [probation or] parole.

Commonwealth v. Ferguson, 761 A.2d 613, 617–18 (Pa. Super. 2000)

(citation omitted).

            We acknowledge that one violation hearing may satisfy the
      requirements of both a Gagnon I and Gagnon II hearing. In
      addition, a defendant always has the right to waive his Gagnon
      II hearing. However, for this Court to uphold such a waiver
      [of a constitutional right], the record must clearly
      demonstrate an informed relinquishment of a known
      right.

Heilman, 876 A.2d at 1027 (emphasis added; citations omitted).

      In Heilman, the appellant appealed from the judgment of sentence

entered following the revocation of his Clinton County probation, alleging,

inter alia, that the revocation court erred in revoking his probation without

providing him with a Gagnon II hearing. Heilman, 876 A.2d at 1026. The

record revealed that

      after [Heilman’s] counsel informed the court that [Heilman] had
      a different explanation for his termination [from a court-ordered
      program], the court stated ‘You’re entitled to a Gagnon I or
      Gagnon II. What do you want to do?’ Rather than responding to
      the court’s question, counsel began questioning [Heilman]
      regarding the circumstances surrounding his termination.

Heilman, 876 A.2d at 1024 (citation omitted).         Rather than clarifying

Heilman’s position regarding a hearing, the revocation court unilaterally

revoked probation. Id. This Court reversed judgment of sentence and

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remanded for a proper hearing, holding that the revocation court’s

determination that Heilman’s failure to request a hearing was tantamount to

a waiver of his right to one was in error and failed to meet the standard of a

fully informed wavier. Id. at 1027.

      The situation presented in Heilman is markedly different from the

case at bar. Here, according to the three written agreement forms and the

notes of testimony, Appellant appeared at the bench warrant hearing ready

to enter into a negotiated agreement on each of his three cases. The top of

the Order Probation/Parole Violation Agreement forms at issue includes,

inter alia, the names of the probation officer, district attorney, and defense

counsel who appeared at the November 2, 2015 hearing.          In addition to

stating the negotiated sentence, each form signed by Appellant contains an

“Admission/Statement of Understanding,” which provides as follows.

      By entering into the above agreement, I acknowledge that I am
      in … Violation of Probation/Parole. I understand that I have the
      right to a formal Probation/Parole Hearing. I further agree to
      abide by the terms and conditions of this agreement, in addition
      to the general rules of regulations of Probation/Parole. I
      understand that failure to abide by the above agreement may
      result in my arrest and detention, pending a formal
      Probation/Parole Violation Hearing.

Order Probation/Parole Violation Agreement, 11/2/2015.

      Further, prior to accepting Appellant’s agreements, the following was

placed on the record.

      THE COURT: How many agreements do you have?



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     [ASSISTANT DISTRICT ATTORNEY (ADA)]: I believe there
          are five.

     THE COURT: We’ll do them all at one time.

     [ADA]: [Names five individuals entering into probation/parole
         violation agreements, including Appellant and asks those
         assembled if there are any other agreements to be
         entered].

     THE COURT: So for each of you who have reached agreements,
          be they by way of dispositions or continuances or whatever
          other matters constitute the Agreement between you and
          the Commonwealth, it is not necessary for me to go into
          the terms or conditions or whatever it was that you all
          have agreed to because you’ve discussed the matter and
          that you fully understand the terms of the Agreement.

               You should know that once that Agreement is
          accepted, it will constitute an Order of Court. So before
          accepting those agreements, I ask each of you individually
          and as a group is there anyone who has any question
          about the terms of the agreement, if so, raise your hand
          and we can discuss it now.

                All right. No hands have been raised.

                You do understand that once the Agreement is
          accepted, if there is a disposition that involves the
          adjudication of your violation, be in probation or parole,
          that you will have ten days to appeal or to file post
          disposition motions. Ten days for the motions, 30 days to
          appeal to the Superior Court. You have a right to be
          represented by an attorney. The Bucks County Public
          Defender’s Office is available to represent you if you
          qualify for their services. There is a panel of attorneys
          provided by the Bucks County Bar Association who will
          take criminal cases on below market rate. You, of course,
          have the right to proceed without counsel.

                Anybody have any questions?




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                  All right. The agreements that you have reached
            with the Commonwealth [are] accepted and made [Orders]
            of Court and you can take your seats at this point.

N.T., 11/2/2015, at 2-4.

      Accordingly, the record demonstrates that Appellant freely and

voluntarily relinquished his known right to a formal hearing by signing three

written order forms to that effect. Further, unlike the appellant in Heilman,

Appellant was given the chance to inform the trial court that he did not

understand the document or the terms of his admission. He failed to do so.

As both parties point out, this was not Appellant’s first foray into the world

of violation hearings, and he was provided with counsel during the

negotiation. Thus, we find no error in the revocation court’s determination

that Appellant’s waiver and admission were valid.

      Appellant next argues that the revocation court erred in finding that

the waiver of his right to a formal hearing and imposition of sentence by the

Honorable Clyde W. Waite occurred in violation of Rule of Criminal Procedure

7002, and Bucks County Local Rule 1401(b)*(1),3 both of which require


2
  “Except as provided in paragraph (B), the judge who presided at the trial
or who received the plea of guilty or nolo contendere shall impose sentence
unless there are extraordinary circumstances which preclude the judge’s
presence. In such event, another judge shall be assigned to impose
sentence.” Pa.R.Crim.P. 700(A).
3
  “The sentence on a plea of guilty or nolo contendere may be imposed by a
judge other than the judge who received the plea of guilty or nolo
contendere. In such event, the defendant must have been so notified at the
time of entering the plea.” Bucks County R.CR.P. 1401(b)*(1).


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imposition of sentence by the judge who presided over the original

disposition, unless special circumstances dictate otherwise. Appellant’s Brief

at 13-15. Specifically with respect to the local rule, Appellant contends that

he did not affirmatively waive his right to be sentenced by his original judge.

Id.

      Before we may reach the merits of Appellant’s claim, we must

determine whether it has been preserved properly for our review.        As the

above-quoted notes of testimony make clear, Appellant failed to object to

Judge Waite’s presiding over the November 2, 2015 hearing. As this Court

has held, “[w]here, […] there is no objection to the substitution of judges at

sentencing, the issue is deemed to be waived for purposes of appellate

review.” See Commonwealth v. Rhoads, 323 A.2d 249, 250 (Pa. Super.

1974). Accordingly, we find Appellant’s claim waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2017




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