J-A27017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    DANIEL NEIL WEINER                          :
                                                :
                       Appellant                :   No. 441 EDA 2019

        Appeal from the Judgment of Sentence Entered January 10, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009257-2015


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                              FILED JANUARY 07, 2020

        Appellant, Daniel Neil Weiner, appeals from the judgment of sentence

entered on January 10, 2019, in the Philadelphia County Court of Common

Pleas, following the revocation of his probation.         After review, we vacate

Appellant’s judgment of sentence, reverse the order revoking Appellant’s

probation,    and    remand     for   further   proceedings   consistent   with   this

Memorandum.

        The trial court set forth the relevant facts and procedural history of this

matter as follows:

               On March 31, 2016, Appellant entered into a negotiated
        guilty plea for retail theft as a felony of the third degree and [was]
        sentenced to 3 to 23 months of incarceration with immediate
        parole at the minimum, and a concurrent 3 years of reporting
        probation (March 31, 2016 N.T., p. 24). After receiving this
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A27017-19


     sentence, Appellant was incarcerated at SCI Laurel Highlands and
     thereafter released on July 22, 2016 (July 18, 2018 N.T., p. 6).
     Subsequently, the Appellant incurred yet another new arrest for
     an additional theft charge on October 28, 2017 (January 2019
     N.T., p. 12). Unrelated to the October 28, 2017 arrest, a
     probation warrant for the Appellant was issued on December 7,
     2017, and a violation of probation hearing was scheduled for
     January 18, 2018.

           At said hearing, [Appellant] claimed that he “didn’t
     understand that he was required to report to probation” (January
     18, 2018 N.T., p. 7). Further, Appellant went on to testify as
     follows:

           When I came home in the past, any time that I had to
           be supervised ... in the past, I was under Bucks
           County supervision ... Montgomery County did the
           supervision for Bucks. I was under the impression that
           Montgomery County would be doing the supervision
           for Philadelphia. I called Philadelphia, and I gave them
           my name and said to them ‘I’m not sure what my
           status is.’ ... They put me on hold ... When they came
           back on they said, ‘We don’t have anything. We don’t
           see anything here. We’ll forward the information to
           someone and they’ll get back to you.’

     (January 2018 N.T., p. 18). In response, the Commonwealth
     simply relied on the written representation of Probation Officer
     Jadine Brandon alleging no contact by the Appellant (January 18,
     2018 N.T., p. 6), coupled with a credibility argument. Specifically,
     the Commonwealth argued that the Appellant[’]s testimony
     should be discounted because his criminal record suggested that
     he was not a credible witness noting a conviction for theft by
     deception in 1994, theft in 1998, forgery in 1999, multiple thefts
     in 2002, forgery in 2005, fraud offense in 2007, theft by deception
     in 2010 and retail theft(s) in 2013 (January 18, 2018 N.T., p. 25-
     26). The Appellant was ultimately found in technical violation of
     his probation and resentenced to a period of 3 to 23 months of
     incarceration with immediate parole, followed by 3 years of
     reporting probation (January 2018 N.T., p. 29). Thereafter, on
     February 16, 2018, the Appellant filed an appeal alleging that said
     record did not support the revocation and resentencing.




                                    -2-
J-A27017-19


            Subsequently, the Appellant attended three (3) additional
     violation of probation hearings before this [c]ourt on May 21,
     2018, July 23, 2018 and September 24, 2018. At each listing, the
     Appellant was specifically advised that compliance with
     probation’s rules and regulations was part of his obligation to stay
     in good standing with this [c]ourt. (September 24, 2018 N.T., p.
     6).
     Additionally, at the conclusion of the September 24, 2018 hearing,
     the Appellant signed a subpoena providing him notice of the
     probation status hearing then set for January 10, 2019 (Docket
     0009257-2015, p. 17).

           On October 7, 2018 an Order and an Opinion was issued by
     the Superior Court addressing the Appellant’s February 16, 2018
     appeal relating to the revocation and resentencing on January 18,
     2018. [Commonwealth v. Weiner, 200 A.3d 575, 547 EDA
     2018 (Pa. Super., filed October 17, 2018) (unpublished
     memorandum) (“Weiner I”).] In pertinent part[,] the Superior
     Court found and ordered the following:

           We reverse the trial court’s order finding a probation
           violation, vacate [Appellant’s] judgment of sentence,
           and reinstate the original probation order.
           Judgment of sentence vacated. Order of probation
           reinstated.
           Jurisdiction relinquished.
           Judgment Entered.

     (October 17, 2018 Superior Court Order and Opinion, p. 6).

           On January 10, 2019, the previously scheduled violation of
     probation hearing was conducted wherein the Commonwealth
     presented uncontested evidence that the Appellant was arrested
     on October 28, 2017, in Montgomery County and charged with
     theft from a motor vehicle. Further, uncontested evidence was
     presented that on July 18, 2018, the Appellant entered into a
     guilty plea on said charge (January 10[,] 2019 N.T., p. 7).
     Appellant was found to be in direct violation of his probation and
     resentenced to back time with immediate parole, followed by four
     (4) years of reporting probation. (January 10, 2019 N.T., p. 19).

          Appellant filed a motion to vacate this sentence on January
     14, 2019; however, this motion was heard and denied [on]


                                    -3-
J-A27017-19


        February 6, 2019. It was after the denial of said motion that
        Appellant filed the instant appeal on February 7, 2019.

Trial Court Opinion, 5/10/19, at 1-4 (footnotes omitted). Both the trial court

and Appellant complied with Pa.R.A.P. 1925.

        On appeal, Appellant raises the following issues for this Court’s

consideration:

        1. Did not the lower court violate Rule 708(B) of the Pennsylvania
        Rules of Criminal Procedure where the lower court’s sua sponte
        revocation hearing was untimely?

        2. Did not the lower court’s sua sponte revocation hearing and
        resultant sentence violate [A]ppellant’s state and federal
        constitutional right to due process as he was not provided
        adequate notice of a revocation hearing, nor with written notice
        of the alleged violation, as required by Gagnon v. Scarpelli, 411
        U.S. 778 (1973), and Morrisey v. Brewer, 408 U.S. 471 (1972)?

        3. Did not the lower court err as a matter of law and violate the
        principles governing the discretionary aspects of sentencing when
        it imposed a manifestly excessive and unreasonable sentence,
        inasmuch as the lower court did not state adequate grounds for
        imposing such a sentence, such a sentence lacked sufficient
        support in the record and such sentence failed to give
        individualized consideration to [A]ppellant’s personal history and
        background, and was in excess of what was necessary to address
        the gravity of the offense, the protection of the community, and
        [A]ppellant’s rehabilitative needs?

Appellant’s Brief at 4-5.1

        In an appeal from a sentence imposed following the revocation of

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

the sentence imposed following revocation, and any challenge to the


____________________________________________


1   For ease of discussion, we have renumbered Appellant’s issues on appeal.

                                           -4-
J-A27017-19


discretionary aspects of the sentence imposed. Commonwealth v. Wright,

116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). Additionally:

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on appeal.
      An abuse of discretion is more than an error in judgment—a
      sentencing court has not abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).

      In his first issue, Appellant assails the validity of the revocation

proceedings. Specifically, Appellant avers that the trial court failed to hold a

timely probation revocation hearing in violation of Pa.R.Crim.P. 708. After

review, we conclude that Appellant is entitled to no relief on this claim.

      Rule 708 provides, in relevant part, as follows:

      (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;

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

Pa.R.Crim.P. 708(B) (emphasis added).

      The language “speedily as possible” has been interpreted to
      require a hearing within a reasonable time. Rule 708 does not
      establish a presumptive period in which the Commonwealth must
      revoke probation; but instead, the question is whether the delay
      was reasonable under the circumstances of the specific case and
      whether the appellant was prejudiced by the delay. The relevant


                                       -5-
J-A27017-19


      period of delay is calculated from the date of conviction or entry
      of guilty plea to the date of the violation hearing.

      In evaluating the reasonableness of a delay, the court examines
      three factors: the length of the delay; the reasons for the delay;
      and the prejudice resulting to the defendant from the delay. The
      court must analyze the circumstances surrounding the delay to
      determine if the Commonwealth acted with diligence in scheduling
      the revocation hearing. Prejudice in this context compromises the
      loss of essential witnesses or evidence, the absence of which
      would obfuscate the determination of whether probation was
      violated, or unnecessary restraint of personal liberty.

Commonwealth v. Woods, 965 A.2d 1225, 1227-1228 (Pa. Super. 2009)

(quoting Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.

2004)).

      The record reveals that Appellant pled guilty to a new crime in

Montgomery County on June 18, 2018, and his violation of probation hearing

in Philadelphia County, which underlies the instant appeal, was held on

January 10, 2019. This resulted in a 206-day delay. See Clark, 847 A.2d at

124 (calculating the delay from the date of the new conviction to the date of

the probation violation hearing).

      Next, we examine the reasons for the delay to determine whether the

Commonwealth acted with diligence in scheduling the revocation hearing, and

whether Appellant was prejudiced by the delay. Woods, 965 A.2d at 1228.

Here, the delay in holding the hearing was due solely to Appellant’s failure to

inform his Philadelphia County Probation Officer of his new conviction in

Montgomery County. As noted, Appellant was on probation in the underlying




                                     -6-
J-A27017-19


Philadelphia County case when he pled guilty to theft from a motor vehicle in

Montgomery County.

      After review, we point out that Appellant has not directed this Court’s

attention to any authority that places the burden on a Pennsylvania county to

scour arrest records in other counties or contact other state or federal

agencies to determine if a probationer has committed a new crime. Rather,

the record reveals that Appellant was responsible for informing his probation

officer of any new arrests or convictions. See N.T., 2/6/19, at 5 (Appellant

agreed with the trial court’s assertion that Appellant was on notice of his

responsibility to inform his probation officer within seventy-two hours of any

new arrest).

      Thus, we conclude that Appellant had notice of his duty to disclose the

Montgomery County arrest and guilty plea to his probation officer, yet he failed

to do so.      We cannot conclude that a probationer who conceals a new

conviction, in direct violation of his probation, may later assert that the delay

he caused counts against the Commonwealth in a Rule 708(B)(1) “speedily as

possible” analysis. Simply stated, it was Appellant’s concealment of the new

conviction that caused the delay, not a lack of due diligence on the part of the

Commonwealth. Woods, 965 A.2d at 1228; cf. Commonwealth v. Gaus,

446 A.2d 661 (Pa. Super. 1982) (holding that revocation of probation was

proper despite a four-year and eight-month delay in holding a revocation




                                      -7-
J-A27017-19


hearing because four years and six months of that delay was caused by the

probationer concealing his whereabouts).

      Additionally, we discern no merit to Appellant’s related argument

concerning prejudice. In his brief, Appellant avers that he was prejudiced

because, if the trial court had simply reinstated the original sentence pursuant

to Weiner I, Appellant would have completed that sentence and not suffered

“an unnecessary restraint of his personal liberty.” Appellant’s Brief at 39-40.

      After review, we conclude that the delay in holding the revocation

hearing did not restrain Appellant’s personal liberty. In fact, Appellant’s liberty

was not restrained between the time of the Montgomery County guilty plea

and the revocation of his Philadelphia County probation.

      Equally unavailing is Appellant’s averment that he suffered prejudice

because his probation was set to expire but-for the delay in holding the

revocation hearing. It is well settled that the trial court had the authority to

revoke Appellant’s probation even if it had expired because the violation

occurred during the probationary period. See Commonwealth v. Wright,

116 A.3d 133, 137 (Pa. Super. 2015) (holding that a sentence for a violation

of the terms of probation can be imposed after the expiration of the

probationary period if the revocation is based on a violation which occurred




                                       -8-
J-A27017-19


within the probationary period).2 Thus, Appellant’s assertion of prejudice is

meritless.

       For these reasons, we conclude that Appellant’s challenge to the timing

of his revocation hearing under Rule 708 is unavailing. Accordingly, Appellant

is entitled to no relief on his first issue.

       In his next issue, Appellant avers that the trial court revoked his

probation without complying with the requirements of Gagnon v. Scarpelli,

411 U.S. 778 (1973), and he asserts he is entitled to termination of his

probation. Appellant’s Brief at 24; Appellant’s Reply Brief at 2. After review,

we conclude that there is merit to one aspect of Appellant’s claim of error.

       Initially, we reiterate that our standard of review is for an abuse of

discretion.    Colon, 102 A.3d at 1043.          “Upon revocation the sentencing

alternatives available to the court shall be the same as were available at the

time of initial sentencing....” 42 Pa.C.S. § 9771(b). Our scope of review is

limited to the validity of the revocation proceedings, the legality of the

sentence imposed following revocation, and the discretionary aspects of the

sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super.

2013) (en banc).




____________________________________________


2 In such a scenario, probation must be revoked and the new sentence
imposed “within a reasonable time after the expiration of the probationary
period.” Wright, 116 A.3d at 137.

                                           -9-
J-A27017-19


     When a violation of probation is alleged, a probationer is entitled to two

separate hearings.   Commonwealth v. Foster, 214 A.3d 1240, 1244 n.3

(Pa. 2019) (“Foster II”) (citing Gagnon, 411 U.S. at 782). The probationer

is first entitled to a hearing to discern whether the probation violation is

supported by probable cause; this hearing is referred to as a Gagnon I

hearing.   Id.   However, a Gagnon I hearing is not required when the

probationer is arrested and convicted of a new crime, where that new crime

constitutes the basis of the probation violation. Commonwealth v. Davis,

336 A.2d 616, 622 (Pa. Super. 1975). If probable cause exists to support

revocation of probation, a second, more comprehensive hearing, a Gagnon

II hearing, is required before probation may be revoked.       Foster II, 214

A.3d at 1244 n.3 (citing Gagnon, 411 U.S. at 782).         At the Gagnon II

hearing, the “minimum requirements of due process” include:

     (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 (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.

Gagnon, 411 U.S. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489

(1972)) (internal quotation marks omitted); see also Commonwealth v.

Ziegler, 428 A.2d 220, 222 (Pa. Super. 1981) (explaining the requirements

of the Gagnon I and II hearings).

                                    - 10 -
J-A27017-19


      Appellant argues that he was not afforded a Gagnon I hearing.

Appellant’s Brief at 26. However, as we noted above, when the probation

violation is the commission of a new crime, a Gagnon I hearing is not

mandated because the proceedings in the new crime establish that the

probation violation is supported by probable cause. Davis, 336 A.2d at 622.

Thus, no relief is due relative to a Gagnon I hearing.

      Appellant also avers that at the January 10, 2019 probation status

conference, the trial court, sua sponte, transformed the conference into a

probation revocation hearing or a Gagnon II hearing, and this Gagnon II

hearing was conducted without affording Appellant notice of the alleged

probation violation. Appellant’s Brief at 26. Moreover, Appellant avers that

because of this deficiency, termination of his probation is required. Id. at 30.

      The record supports Appellant’s assertion that he was not afforded

notice of his alleged probation violations.              Moreover, the Commonwealth

concedes this claim in its brief. Commonwealth’s Brief at 5.

      It is well settled that “the Commonwealth must strictly comply with the

requirement    that        notice   of   the   alleged     violations   be   in   writing.”

Commonwealth v. DeLuca, 418 A.2d 669, 673 (Pa. Super. 1980).

Accordingly, we are constrained to vacate Appellant’s judgment of sentence,

reverse the order finding Appellant in violation of probation, and remand for

a proper Gagnon II hearing, prior to which the Commonwealth shall provide

written   notice      to     Appellant    of    the      alleged   probation      violation.


                                           - 11 -
J-A27017-19


Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992);

DeLuca, 418 A.2d at 673.

      Finally, Appellant avers, pursuant to Foster II, that rather than

remanding for a proper Gagnon II hearing, he is entitled to the termination

of his probation. Appellant’s Brief at 24, 30; Appellant’s Reply Brief at 2. We

disagree.

      In Foster II, the defendant was on probation when the Commonwealth

alleged that he was using social media to sell drugs. Foster II, 214 A.3d at

1243. At the defendant’s Gagnon II hearing, the Commonwealth argued that

the defendant’s social media posts were a violation of probation because the

images showed the defendant holding contraband. Id.

      Other than the photographs in question, the Commonwealth
      presented no evidence at either [of two violation of probation]
      hearing[s] in support of its contentions. At no time did the
      Commonwealth mention the conditions of [the defendant’s]
      current probation, present a document, detailing the conditions,
      or suggest that his conduct violated a specific condition of his
      probation.

Id. at 1244.

      At the conclusion of the Gagnon II hearing, the trial court found the

defendant in violation of his probation, revoked his probation, and sentenced

him to eleven and one-half to twenty-three months of incarceration. Foster,

214 A.3d at 1244-1245.      The defendant filed an appeal, and this Court

affirmed the defendant’s judgment of sentence. Commonwealth v. Foster,

183 A.3d 1027, 3572 EDA 2016 (Pa. Super., filed January 3, 2018)


                                    - 12 -
J-A27017-19


(unpublished memorandum) (“Foster I”). The defendant filed a petition for

allowance of appeal that was granted on June 25, 2018. Commonwealth v.

Foster, 187 A.3d 913, 54 EAL 2018 (Pa. 2018).

      After review, our Supreme Court reversed this Court and held that a

defendant may be found in violation of probation where the trial court finds,

based on a preponderance of the evidence, that the probationer “violated a

specific condition of probation or committed a new crime to be found in

violation. Absent such evidence, a violation of probation does not occur solely

because a judge believes the probationer’s conduct indicates that probation

has been ineffective to rehabilitate or to deter against antisocial conduct.”

Foster, 214 A.3d at 1243. The Supreme Court held it was not required to

remand for a new Gagnon II hearing because the only indicia of probation

violations were images on social media that the Commonwealth alleged

implicated the defendant in criminal activity. Id. at 1253. However, these

images did not establish a violation of any specific condition of probation or a

new crime. Id.

      We conclude that Appellant’s case is readily distinguishable from

Foster II. In the case at bar, the trial court did not presuppose any facts or

findings; rather, Appellant was convicted of a new crime in direct violation of

his probation. Therefore, because Appellant directly violated his probation by

committing a new crime, Foster II is inapplicable and does not preclude a

remand for a proper Gagnon II hearing. Foster II, 214 A.3d at 1253 n.17.


                                     - 13 -
J-A27017-19


       Accordingly, we vacate Appellant’s judgment of sentence and reverse

the order revoking Appellant’s probation. We remand for the Commonwealth

to provide Appellant written notice of the alleged probation violation and for a

proper Gagnon II hearing.3 Commonwealth v. Homoki, 605 A.2d 829,

831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673.

       Judgment of sentence vacated.           Order revoking probation reversed.

Case remanded for further proceedings consistent with this Memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/20




____________________________________________


3In light of our disposition, we do not reach Appellant’s third issue in which
he challenges the discretionary aspects of his sentence.

                                          - 14 -
