J-S05016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                         Appellee        :
                                         :
            v.                           :
                                         :
WILLIAM McKINNON,                        :
                                         :
                         Appellant       :      No. 660 WDA 2014


      Appeal from the Judgment of Sentence Entered March 27, 2014,
           In the Court of Common Pleas of Allegheny County,
            Criminal Division, at Nos. CP-02-CR-0006835-2012


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 05, 2015

      Appellant, William McKinnon, appeals from the judgment of sentence

entered March 27, 2014, in the Court of Common Pleas of Allegheny

County.1 We affirm.

      The trial court summarized the procedural and factual history of this

case, in part, as follows:

            [Appellant] was charged . . . with Aggravated Assault,
      Terroristic Threats and Recklessly Endangering Another Person


1
  Appellant’s counsel filed a motion to amend the notice of appeal because
the only judgment of sentence at issue in this appeal is that entered at
Docket No. CP-02-CR-0006835-2012. The original notice of appeal filed pro
se by Appellant erroneously included two other docket numbers. Although
the counseled notice of appeal correctly reflected the single docket number,
such correction is not reflected in the caption. Because inclusion of the other
docket numbers is a typographical error and does not affect the substance of
the appeal or our review, we grant Appellant’s motion to amend the notice of
appeal. The caption has been amended to reflect this correction.
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      (REAP) in relation to an incident which occurred when
      [Appellant] picked his then-girlfriend, Bonnie Kramer, up by the
      throat, choked her for two to three seconds and threatened to
      kill her. On March 21, 2013, [Appellant] appeared before [the
      trial court] and, pursuant to a plea agreement with the
      Commonwealth, pled guilty to Terroristic Threats and REAP. The
      remaining Aggravated Assault charge was withdrawn by the
      Commonwealth. [Appellant] was immediately sentenced to time
      served and a term of probation of two (2) years. No Post-
      Sentence Motions were filed and no direct appeal was taken.

Trial Court Opinion, 9/26/14, at 1 (internal footnotes omitted).

      On July 11, 2013, Appellant appeared for what was entitled a

“domestic violence review” hearing. N.T., 7/11/13, at 1-2. At that hearing,

the probation officer explained that Appellant had pled guilty to a summary

harassment charge.    Id. at 2.   During the course of the hearing, the trial

court explained that the hearing was going to be treated as a Gagnon I2

hearing, and the trial court lifted the detainer and continued the probation.

Id. at 5. No Gagnon II hearing was scheduled at that time. Id.

      No further action was taken in this matter until Appellant appeared for

a “review hearing” on March 27, 2014. N.T., 3/27/14, at 1. At the March

27, 2014 hearing, Appellant’s probation officer explained to the trial court

that Appellant was arrested on September 11, 2013, pled guilty to criminal


2
   Due process requires a probationer be given a preliminary (Gagnon I)
and a final (Gagnon II) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing
Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has
become the common moniker for both parole and probation revocation
proceedings. Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).

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mischief, and was sentenced to time served. Id. at 4. Appellant was not

detained at that time. Id. at 4.

      The probation officer further advised that Appellant was also arrested

on December 14, 2013, and charged with simple assault and harassment.

N.T., 3/27/14, at 4. Those charges were withdrawn, id. at 5, but Appellant

was detained until March 27, 2014, when he appeared for the review

hearing.   Id. at 1.   Following the hearing, the trial court concluded that

Appellant had violated his probation and sentenced Appellant to a term of

one to three years of imprisonment in a state correctional institution. Id. at

10.

      Appellant filed a timely post-sentence motion, which the trial court

denied on April 4, 2014. This timely appeal followed. Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Was Appellant provided the written notice of the alleged
      probation violations that due process and statutory law require
      and was Appellant fairly warned that the proceeding scheduled
      for March 27, 2014, officially labeled as a “Domestic Violence
      Review Hearing,” was in fact, or could become, a Gagnon II
      violation of probation proceeding in which his probation might be
      revoked?

      2. Was the evidence insufficient to sustain the court’s revocation
      of probation in that the record, as certified and forwarded to this
      Court, reflects that, at the March 27, 2014 proceeding, no
      witnesses were sworn, no sworn testimony was received and no
      documentary evidence was offered for admission and received
      into evidence?


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      3. In revoking Appellant’s probation did the court not rely upon
      hearsay evidence thereby depriving Appellant of his right to
      contest the evidence against him and can counsel’s failure to
      object to said use of hearsay be excused by the procedural
      irregularity of the proceedings?

Appellant’s Brief at 3.

      “When reviewing the results of a revocation hearing, this Court is

limited to determining the validity of those proceedings, and the legality of

the judgment of sentence imposed.”         Commonwealth v. Heilman, 876

A.2d 1021, 1026 (Pa. Super. 2005).

      Appellant’s   claims   challenge    various   aspects    of   the   probation

revocation hearing. Appellant asserts that he did not receive written notice

of the alleged violations or the revocation hearing; that there was

insufficient evidence produced at the hearing to support the court’s

revocation of his probation; and that the trial court improperly relied on

hearsay evidence presented at the hearing in deciding that Appellant’s

probation should be revoked. Appellant’s Brief at 7-17.

      In addressing Appellant’s claims of insufficient evidence and the trial

court’s reliance upon hearsay evidence, the Commonwealth asserts that,

because these issues were not raised by Appellant before the trial court,

they are waived.     Commonwealth’s Brief at 20-21.           The Commonwealth

further contends that Appellant may obtain review by means of an action




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sounding in ineffective assistance of counsel under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. Id. at 21.

         A review of the March 27, 2014 hearing transcript reflects no objection

regarding any of the three issues Appellant now raises on appeal.             N.T.,

3/27/14, at 1-11. Additionally, while counsel filed a post-sentence motion

on Appellant’s behalf, that motion raised the single claim that the court

should reconsider its sentence and impose a county sentence that would

include mental health treatment. Motion to Reconsider Sentence, 3/31/14,

at 1-2. As such, the issues raised on appeal were not raised before the trial

court.

         In Commonwealth v. Collins, 424 A.2d 1254 (Pa. 1981), our

Supreme Court was presented with a similar scenario. Following revocation

of his probation, the appellant filed an appeal, raising several objections

related to the revocation proceeding. Id. at 1254. The Court explained:

               Appellant now raises several objections to the violation of
         probation proceeding. He contends that there was inadequate
         notice given to him; that he was denied the right to confront
         adverse witnesses; that he was denied a speedy revocation
         hearing; and that the sentencing process failed to comport with
         due process.

Id. In addressing these claims, the Court concluded:

               A review of the record of the counselled revocation
         proceeding before [the trial court] reflects that these objections
         were not raised during that proceeding. The failure to interpose
         these objections at any time in the court below precludes their




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J-S05016-15



      consideration on appeal. Commonwealth v. Clair, 458 Pa.
      418, 326 A.2d 272 (1974).

Id.

      As noted, in the case sub judice, similar to the case in Collins,

Appellant failed to raise these issues with the trial court. Appellant requests

that we decline to find waiver based on Appellant’s failure to raise these

objections with the trial court.     Appellant’s Brief at 16-17.     Appellant

maintains that counsel had no reason to believe that the hearing would be

treated as a Gagnon II hearing, and that counsel was likely surprised when

the trial court began to impose a sentence. Id. at 17. Assuming arguendo

that position could excuse counsel’s failure to raise an objection at the

hearing, we note that counsel had an opportunity to raise those objections in

the post-sentence motion, but failed to do so.          Accordingly, we find

Appellant’s argument unavailing.

      Because Appellant failed to raise these issues with the trial court, we

are constrained to conclude that they are waived.      Collins, 424 at 1254;

Commonwealth v. King, 430 A.2d 990 (Pa. Super. 1981) (citing Collins

and holding that objections not raised during a counselled revocation

proceeding will not be considered on appeal); see also Pa.R.A.P. 302(a)




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(issues not raised in lower court are waived and cannot be raised for first

time on appeal).3

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




3
   We note Appellant’s assertion that “failure to provide written notice is
deemed a non-waivable defect,” and citation to Commonwealth v.
Quinlan, 412 A.2d [4]94 (Pa. 1980), in support of that assertion.
Appellant’s Brief at 7. Indeed, “[d]ue process requires a probationer receive
written notice of the claimed probation violations prior to commencement of
the revocation hearing.” Quinlan, 412 A.2d at 496. While earlier cases
announced the position that this issue may be raised for the first time on
appeal, see, e.g., Commonwealth v. Alexander, 331 A.2d 836, 839 (Pa.
1974) (holding that the failure of an alleged probation violator to raise lack
of notice at a revocation hearing does not result in waiver of the issue), a
panel of this Court in King, 430 A.2d at 991, held that Collins overruled,
sub silentio, those cases holding that a written-notice claim could not be
waived if it was not raised at the revocation proceeding. King, 430 A.2d at
991. Thus, this claim lacks merit.

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