J-S05016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. WILLIAM McKINNON, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : 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 judg ment of sentence entered March 27, 2014, in the Court of Common Plea s of Allegheny County. 1 We affirm. The trial court summarized the procedural and fact ual history of this case, in part, as follows: [Appellant] was charged . . . with Aggravated Assa ult, Terroristic Threats and Recklessly Endangering Anot her Person

1 Appellant’s counsel filed a motion to amend the n otice of appeal because the only judgment of sentence at issue in this appe al is that entered at Docket No. CP-02-CR-0006835-2012. The original not ice 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. B ecause inclusion of the other docket numbers is a typographical error and does no t affect the substance of the appeal or our review, we grant Appellant’s moti on to amend the notice of appeal. The caption has been amended to reflect th is correction.J-S05016-15

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(REAP) in relation to an incident which occurred wh en [Appellant] picked his then-girlfriend, Bonnie Kram er, up by the throat, choked her for two to three seconds and thr eatened 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 an d REAP. The remaining Aggravated Assault charge was withdrawn b y the Commonwealth. [Appellant] was immediately sentence d to time served and a term of probation of two (2) years. N o PostSentence Motions were filed and no direct appeal wa s taken. Trial Court Opinion, 9/26/14, at 1 (internal footno tes 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 tr eated as a Gagnon I 2 hearing, and the trial court lifted the detainer an d 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 A ppellant appeared for a “review hearing” on March 27, 2014. N.T., 3/27/1 4, at 1. At the March 27, 2014 hearing, Appellant’s probation officer exp lained 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 pre liminary ( 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 proba tion revocation proceedings. Commonwealth v. Stafford , 29 A.3d 800, 801 n.1 (Pa. Super. 2011).J-S05016-15

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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 Appella nt was also arrested on December 14, 2013, and charged with simple assau lt 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 conc luded that Appellant had violated his probation and sentenced Appellant to a term of one to three years of imprisonment in a state corre ctional institution. Id. at

10. Appellant filed a timely post-sentence motion, whi ch the trial court denied on April 4, 2014. This timely appeal follow ed. Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant presents the following issues for our re view: 1. Was Appellant provided the written notice of th e 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 “Domest ic Violence Review Hearing,” was in fact, or could become, a Gagnon II violation of probation proceeding in which his prob ation might be revoked?

2. Was the evidence insufficient to sustain the co urt’s revocation of probation in that the record, as certified and f orwarded to this Court, reflects that, at the March 27, 2014 proceed ing, no witnesses were sworn, no sworn testimony was receiv ed and no documentary evidence was offered for admission and received into evidence?J-S05016-15

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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 pro cedural irregularity of the proceedings? Appellant’s Brief at 3. “When reviewing the results of a revocation hearin g, this Court is limited to determining the validity of those procee dings, 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 th e 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 su pport the court’s revocation of his probation; and that the trial cou rt improperly relied on hearsay evidence presented at the hearing in decidi ng that Appellant’s probation should be revoked. Appellant’s Brief at 7-17. In addressing Appellant’s claims of insufficient e vidence and the trial court’s reliance upon hearsay evidence, the Commonw ealth asserts that, because these issues were not raised by Appellant b efore the trial court, they are waived. Commonwealth’s Brief at 20-21. T he Commonwealth further contends that Appellant may obtain review b y means of an actionJ-S05016-15

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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 rai ses on appeal. N.T., 3/27/14, at 1-11. Additionally, while counsel file d a post-sentence motion on Appellant’s behalf, that motion raised the singl e claim that the court should reconsider its sentence and impose a county sentence that would

include mental health treatment. Motion to Reconsi der 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, ra ising several objections related to the revocation proceeding. Id. at 1254. The Court explained: Appellant now raises several objections to the vio lation of probation proceeding. He contends that there was i nadequate notice given to him; that he was denied the right t o confront adverse witnesses; that he was denied a speedy revo cation 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 revocatio n proceeding before [the trial court] reflects that t hese objections were not raised during that proceeding. The failur e to interpose these objections at any time in the court below pre cludes theirJ-S05016-15

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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 tri al 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 tha t 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 rai se 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. Acc ordingly, we find Appellant’s argument unavailing. Because Appellant failed to raise these issues wit h 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 cou nselled revocation proceeding will not be considered on appeal); see also Pa.R.A.P. 302(a)J-S05016-15

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(issues not raised in lower court are waived and ca nnot 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 pr ovide 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 ass ertion. 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 raise d 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 proba tion violator to raise lack of notice at a revocation hearing does not result i n 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 c ould not be waived if it was not raised at the revocation proce eding. King , 430 A.2d at 991. Thus, this claim lacks merit.