J-S45002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JOHN DOMENICO MARTONE, III,

                          Appellant                  No. 1636 MDA 2014


            Appeal from the Judgment of Sentence August 28, 2014
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000828-2013

BEFORE: BOWES, WECHT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J:                           FILED OCTOBER 16, 2015

       John Domenico Martone, III appeals from the judgment of sentence of

two to five years imprisonment imposed by the court following revocation of

the probation levied after he was convicted of receiving stolen property. For

the reasons set forth herein, we affirm.

       The facts giving rise to this appeal were summarized as follows by the

trial court:

             On December 2, 2013, the Appellant, John Domenico
       Martone, III entered a counseled plea of guilty to receiving
       stolen property as a felony of the third degree. Appellant was
       sentenced pursuant to a negotiated agreement to two years of
       probation imposed consecutive to another sentence which the
       Appellant was serving at the time of his plea. On May 28, 2014,
       the Adams County Department of Probation Services filed a
       motion for revocation of Appellant’s probation alleging the
       Appellant violated prison and re-entry program rules while
       incarcerated on the prior sentence. Appellant was provided
*
    Former Justice specially assigned to the Superior Court.
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       written notice of the alleged violations and his rights immediately
       prior to the filling of the revocation motion. On June 10, 2014, a
       Gagnon I hearing was conducted at which Appellant was
       represented by counsel.         At the Gagnon I hearing, over
       objection of the Appellant, the institutional parole officer
       introduced the administrative findings of the Adams County
       Adult Correctional Complex that Appellant had violated prison
       rules. Thereafter, the Gagnon I hearing officer determined that
       probable cause for finding the Appellant committed a violation of
       his probation existed and a Gagnon II hearing was scheduled.

              Prior to the Gagnon II hearing, Appellant filed a petition
       seeking the issuance of a writ of habeas corpus. Hearing and
       argument on the petition was scheduled to be held concurrent
       with the Gagnon II hearing. This Court denied Appellant’s
       petition for writ of habeas corpus and, following hearing, found
       Appellant to be in violation of his probation. The Appellant was
       subsequently re-sentenced to serve no less than two years nor
       more than five years in a state correctional institution.

Trial Court Opinion, 12/23/14, at 1-2 (footnotes omitted).1

       At Appellant’s Gagnon I hearing, the Commonwealth presented Mr.

Timothy Breighner, an institutional parole officer who testified about

Appellant’s    prison    misconduct.           At   his   Gagnon   II   hearing,   the

Commonwealth presented Captain Kevin Crawfoot, who presided over

____________________________________________


1
  Before Appellant began serving his probation sentence, it was revoked for
conduct occurring while incarcerated for a separate offense. We recognize
that such revocation is proper. See Commonwealth v. Allshouse, 33
A.3d 31, 39 (Pa.Super. 2011) (“If, at any time before the defendant has
completed the maximum period of probation, or before he has begun
service of his probation, he should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation and that granting
of the same would not be in subservience to the ends of justice and the best
interests of the public, or the defendant, the court could revoke or change
the order of probation.”) (citation omitted) (emphasis in original).



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Appellant’s prison misconduct hearing for fighting with another inmate, and

Correctional Officer Vincent Bashore, who witnessed one of Appellant’s

several violations, to testify about Appellant’s prison misconduct citations.

Captain Crawfoot’s testimony included the following exchange with the

Commonwealth, which went without objection by Appellant:

      Commonwealth: And did you actually have a hearing at that
                    time?

      Crawfoot:         Yes, I did.

      Commonwealth: And how did you find Mr. Martone as a result
                    of the hearing?

      Crawfoot:         Mr. Martone was found guilty.

      Commonwealth: Of specifically what infraction, if you recall?

      Crawfoot:         Engaged in a fight.

      Commonwealth: Okay. And that violated prison rules out
                    there?

      Crawfoot:         Yes, it does.

      On August 28, 2014, Appellant was resentenced; he filed a timely

post-sentence motion, which the court denied. This timely appeal ensued.

Pursuant to the trial court’s direction, Appellant filed and served a 1925(b)

statement of errors complained of on appeal, and the trial court filed its

responsive 1925(a) opinion.      The matter is now ready for our review.

Appellant presents five questions for our consideration:




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        1. Did the Court err in denying [Appellant’s] habeas corpus
      motion seeking to preserve his 5th Amendment right to confront
      adverse witnesses at a [Gagnon I] hearing?

         2. Did the Court err in finding that the evidence presented at
      the [Gagnon I] hearing was sufficient to establish probable
      cause?

         3. Did the Court err in denying Appellant’s confrontation
      guarantees when it permitted, over objection, introduction of
      out-of-court testimonial statements made by adverse witnesses
      who were not made available for cross-examination in the
      [Gagnon II] proceeding?

         4. Did the Court err in finding the evidence presented at the
      [Gagnon II] hearing was sufficient to uphold a finding of guilt
      by a preponderance of the evidence?

         5. Did the Court abuse its discretion when it imposed a
      sentence of 2-5 years?

Appellant’s brief at 4.

      As detailed in Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the

purpose of a Gagnon I hearing is to determine whether there is probable

cause to believe a parole or probation violation has occurred.      When a

finding of probable cause is made, a second, more comprehensive Gagnon

II hearing is required to render a final revocation decision.    Id. at 784.

Thus, the Gagnon II hearing is more complete than the Gagnon I hearing

in affording the probationer additional due process safeguards. Id. at 786.

Herein, Appellant’s first two issues relate to his Gagnon I hearing, and his

second two issues relate to his Gagnon II hearing.




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      We address Appellant’s first two issues together. Appellant argues at

his first issue that he was denied his right to confront witnesses against him,

as the Commonwealth did not present at his Gagnon I hearing the officers

who initially reported his prison misconduct. At his second issue, Appellant

argues that the evidence of his prison misconduct presented by Officer

Breighner, which he labels hearsay, was insufficient to establish probable

cause that he violated the terms of his probation.

      The Commonwealth initially objects to the discussion of Appellant’s

Gagnon I hearing, as the transcript is not included in the certified record.

Even if this Court is not precluded from considering Appellant’s substantive

arguments,    the   Commonwealth     argues   that   any   error   occurring    at

Appellant’s Gagnon I hearing was cured by his Gagnon II hearing.               We

agree with the Commonwealth that any potential defects that occurred in

Appellant’s first hearing were remedied by the Gagnon II hearing.              See

Commonwealth v. Perry, 385 A.2d 518 (Pa.Super. 1978).               Accordingly,

Appellant is entitled to no relief on his first or second issue, and we thus

address his third and fourth claims, which call for us to examine his Gagnon

II hearing.

      At his third issue, Appellant argues that he was denied his due process

right to confront witnesses against him as the Commonwealth did not

present the officers who initially reported his most severe prison misconduct.

The reports, which were introduced by Captain Crawfoot and Officer

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Bashore, were therefore hearsay and should not have been admissible

against Appellant.

      The Commonwealth responds by arguing that “[t]he issue before the

trial court at [Appellant’s] Gagnon II hearing was whether [Appellant]

committed prison violations, not whether the prison correctly adjudicated

[Appellant] guilty of the prison misconducts.”       Commonwealth brief at 28.

Because Appellant was only entitled to           – and did – confront the

Commonwealth’s two witnesses, his confrontation rights were not impeded.

Accordingly, the Commonwealth maintains that no relief is due. We agree

with the Commonwealth.

      This Court has consistently recognized that among the rights afforded

to a defendant at a probation or parole revocation hearing is “the right to

confront and cross-examine adverse witnesses (unless the hearing officer

specifically   finds    good    cause    for   not    allowing   confrontation).”

Commonwealth v. Colon, 102 A.3d 1033, 1040 (Pa.Super. 2014)

(citations omitted).     Citing this rule, Appellant bases his arguments on a

mistaken belief that he is entitled to cross-examine the reporting officers at

his Gagnon I and II hearings.

      At Appellant’s Gagnon II hearing, the Commonwealth was required to

show, by a preponderance of the evidence, that Appellant violated the terms

of his probation.      The Commonwealth alleged that Appellant violated the

following condition: “3(h). You must obey all prison and house arrest rules,

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including those imposed while participating in the work release program.”

Preliminary Notice of Violation and Rights, 5/27/14.

      The fact that Appellant violated prison rules was adjudicated in an

administrative proceeding in accordance with prison policy.      Thus, at the

Gagnon II hearing, the Commonwealth only needed to present sufficient

evidence to show that Appellant did not obey all prison rules, which it did by

offering the testimonies of several officers.   It did not have to relitigate

whether Appellant committed any of the specific acts for which he was cited.

Stated differently, the Commonwealth was required to prove that Appellant

was adjudicated as violating prison rules; it was not required to prove for a

second time that Appellant committed the specific underlying acts.         The

latter had already been accomplished in his prior administrative hearing.

Appellant, therefore, was entitled to confront the witnesses who testified

against him for the proposition that he disobeyed prison rules and not those

who would have testified about the acts that constituted disobedience.

      Appellant does not dispute that, at that Gagnon II hearing, he was

given the opportunity to confront Captain Crawfoot and Officer Bashore.

Based on their testimony, the trial court found by a preponderance of the

evidence that Appellant violated the conditions governing the terms of his

probation by failing to obey prison rules. Accordingly, the trial court did not

deny Appellant his right to confrontation and did not err in denying




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Appellant’s petition for habeas corpus.    We therefore affirm the trial court

with regard to Appellant’s third issue.

      At his fourth issue, Appellant argues that the Commonwealth’s

evidence at his Gagnon II hearing was insufficient to satisfy its burden

because the reports that were presented “consisted primarily of double

hearsay statements” with little indicia of reliability. Appellant’s brief at 31.

He further alleges that double hearsay statements, such as those contained

in the reports, are inadmissible against Appellant. Id.

      The Commonwealth argues that the testimonies of Captain Crawfoot

and Officer Bashore provided the court with sufficient evidence to hold that

Appellant violated the terms of his probation, as Captain Crawfoot himself

found at Appellant’s administrative hearing that Appellant violated prison

rules and Office Bashore witnessed Appellant’s third violation.      Again, we

concur with the Commonwealth.

      At a probation-revocation hearing, the Commonwealth’s burden is to

prove a violation of probation by a preponderance of the evidence.

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007). On

review of a claim that the evidence was insufficient to support a revocation,

our standard is whether, viewing all the evidence and reasonable inferences

in the light most favorable to the Commonwealth, the revocation court could

have found by a preponderance of the evidence that the violation was

proven.    Id.     We do not weigh the evidence or make credibility

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determinations because such determinations were for the revocation court.

Id.

      At Appellant’s Gagnon II hearing, the Commonwealth presented the

testimony of two additional officers. As the credited testimony was properly

admitted and as Appellant declined to engage in any meaningful cross-

examination of those witnesses, we cannot find that the trial court

improperly revoked his probation based on the testimony of Captain

Crawfoot and Officer Bashore. Specifically, Appellant committed misconduct

by engaging in a fight in contradiction of prison rules. The trial court was

presented with sufficient evidence at the Gagnon II hearing to find that, by

a preponderance of the evidence, Appellant did, in fact, violate his probation.

Accordingly, we affirm the trial court on Appellant’s fourth issue.

      Appellant’s final issue    on appeal raises a claim involving the

discretionary aspects of sentencing. As Appellant has filed a timely notice of

appeal, preserved his challenge through post-trial motion, and offered a

Pa.R.A.P. 2119(f) statement, we must examine whether Appellant’s claim

presents a substantial question that the sentence imposed was inappropriate

under the Sentencing Code or was contrary to the fundamental norms that

underlie   the   sentencing   process.      See    42   Pa.C.S.       §   9781(b);

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).

      In his Pa.R.A.P. 2119(f) statement, Appellant asserts that his sentence

is excessive “due to the Court’s sole reliance on double hearsay testimony

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regarding an alleged ‘physical altercation’ in prison[.]” Appellant’s brief at

13.   He avers further noncompliance with fundamental norms in the trial

court’s failure to consider whether local rehabilitative efforts had been

effective.   The Commonwealth responds by arguing that Appellant has not

raised a substantial question and that, even if he had, his claim would be

meritless. We agree with the Commonwealth that Appellant is not entitled

to relief.

       In 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.

Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). Further, “[t]he

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.” Commonwealth v. Simmons,

56 A.3d 1280, 1283-84 (Pa.Super. 2012).

       We begin by noting that “a claim that the sentencing court failed to

consider or accord proper weight to a specific sentencing factor does not

raise a substantial question.” Commonwealth v. Caldwell, 117 A.3d 763,

769 (2015) (emphasis in original). Accordingly, Appellant’s argument that

the sentencing court failed to consider all relevant factors is meritless.




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          Appellant also claims that the sentence is excessive because of the

“Court’s sole reliance on double hearsay,” which should not have been

admitted against him.        In Commonwealth v. Rhodes, 990 A.2d 732

(Pa.Super. 2009), this Court found that an appellant presented a substantial

question because he alleged that the trial court, inter alia, relied upon

unsubstantiated hearsay in the imposition of sentence.          Noting that the

statements at issue in this matter are far from unsubstantiated and that the

appellant in Rhodes also alleged that the sentencing court relied on a host

of other impermissible factors in issuing its sentence, we find that Appellant

arguably raises a substantial question.        Nonetheless, he is entitled to no

relief.

          Appellant has offered no substantive or legally tenable argument that

the sentencing court abused its discretion in this matter. Indeed, that court

had access to a lengthy pre-sentence investigation that detailed the 21-

year-old Appellant’s eight years of criminal activity and court appearances.

That activity included two felony offenses, multiple juvenile matters, multiple

physical offenses, and a guilty plea to a charge of making terroristic threats,

which included armed robbery and a drive-by shooting.              Pre-sentence

investigation, 8/28/14, at 4.      At sentencing, Appellant’s probation officer

noted that the physical altercation that resulted in one of his violations at

the prison “involved some significant violence and [Appellant] was definitely

a detriment to Adams County Prison.” N.T. Sentencing, 8/28/14, at 4. The

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Court went on to remark that on “three, four, five separate occasions,”

Appellant was afforded leniency from court officials. Herein, Appellant was

“given the opportunity though once again on [his] first conviction to serve

[his] time locally and [he] responded by having a complete disrespect for

prison officials and prison rules.” Id.

      Appellant has presented no basis for us to find in his favor.       The

sentencing court did not abuse its discretion in sentencing Appellant to serve

no less than two years nor more than five years in a state institution.

Accordingly, we affirm Appellant’s sentence.

      Judgment of sentence affirmed.

      Judge Wecht joins this memorandum.

      Justice Fitzgerald notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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