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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 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remaining Aggravated Assault charge was withdrawn by the 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 PostSentence 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 
J-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 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.