J-S05029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DOMINIC RAYMOND ZIZZO, III 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1062 MDA 2021

Appeal from the Judgment of Sentence Entered July 30, 2019

In the Court of Common Pleas of Luzerne County 

Criminal Division at No: CP-40-CR-0001792-2017

BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 19, 2022

Appellant, Dominic Raymond Zizzo, III, appeals from the judgment of 

sentence imposed in the Court of Common Pleas of Luzerne County on July 

30, 2019, following the revocation of Appellant’s probation. Upon review, we 

affirm.1

The factual and procedural background of the instant appeal is not at 

issue. The trial court summarized the relevant background as follows:

On November 21, 2017, [Appellant] pled guilty to one count of 

statutory sexual and indecent assault. Sentencing occurred on 

April 13, 2018. [Appellant] received 11 to 23 months on the 

statutory sexual assault charge and 36 months of consecutive 

____________________________________________

1 We note that counsel for Appellant previously filed a petition to withdraw

under Anders v. California, 386 U.S. 738, 744 (1967) and Commonwealth 

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we denied 

counsel’s petition and remanded to allow counsel to file either a proper 

Anders brief or an advocate brief. Counsel complied, filing an advocate brief. 

The matter is now ripe for our decision.
J-S05029-22

- 2 -

probation on the indecent assault charge. He was given credit for 

359 days of incarceration served prior to sentencing.

On July 29, 2019, a probation revocation hearing was held as a 

result of a violation report which was dated March 26, 2019. The 

report alleged that [Appellant] violated the terms of his probation 

by engaging in unsupervised contact with minors, consuming 

alcohol and failing to complete sex offender treatment. At the 

conclusion of the hearing[,] [Appellant]’s probation was revoked. 

He was then resentenced to 24 to 84 months on the indecent 

assault charge[,] which was graded as a felony of the third degree.

No direct appeal was filed following the revocation hearing. On 

December 11, 2019, [Appellant] filed a motion for post conviction 

collateral relief. As a result of the PCRA motion, [Appellant]’s 

appellate rights were reinstated regarding the revocation of his 

probation. A notice of appeal was filed on his behalf on August 4, 

2021. 

An order was then issued by [the trial court] which required a 

concise statement of errors complained of on appeal pursuant to 

[Pa.R.A.P.] 1925(b) be filed by [Appellant] within twenty-one 

days. Counsel filed a concise statement on August 31, 2021. The 

statement alleges error in connection with the finding that 

[Appellant] violated his probation by having inappropriate contact 

with minors and being discharged from the sexual offender 

program. Error is also alleged in permitting testimony by the 

Commonwealth’s witness in violation of [Appellant]’s Fifth 

Amendment Rights.

Trial Court Opinion, 9/22/21, at 1-2 (unnumbered).

Appellant raises the following issues for our review:

I. Whether the [trial] court erred or abused its discretion 

in finding that [Appellant] violated his probation by:

a. having inappropriate contact with minors;
J-S05029-22

- 3 -

b. being discharged from the sexual offender 

program.2

II. Whether the [trial] court erred in permitting testimony 

by the Commonwealth’s witness in violation of 

[Appellant]’s Fifth Amendments rights.

Appellant’s Brief at 1.

As noted above, on April 13, 2018, Appellant was sentenced to 11 to 23 

months on the statutory sexual assault charge and 36 months of consecutive 

probation on the indecent assault charge. In connection with the probation

term, the trial court imposed, among others, the following conditions:

• Must attend and complete sexual offender treatment.

• No contact with victim.

• No contact with minors/or places where minors frequent/schools, 

school zones, school activities, public pools, parks, or 

playgrounds.

Sentencing Order, 4/13/18.

On March 26, 2019, the Luzerne County Probation Department issued a 

Parole Violation Report, which was filed on April 24, 2019, after Appellant 

waived his right to a Gagnon I hearing.3 In the report, the Probation 

____________________________________________

2 Sub-issue I(b), while listed as a claim, was not addressed in the argument 

section of the brief. Similarly, while the issue was raised in Appellant’s Rule 

1925(b) statement, it was not addressed by the trial court in its Rule 1925(a) 

opinion. 

3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). When a probationer is 

detained pending a revocation hearing, due process requires a determination 

at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists 

(Footnote Continued Next Page)
J-S05029-22

- 4 -

Department alleged that Appellant committed, inter alia, a technical violation 

of the rules of probation and parole, as well as the trial court sentencing order. 

The Probation Department identified the violated condition as a court ordered 

condition, specifically the “No Unsupervised Contact With Minors” condition. 

In the report, the Probation Department described the offending conduct as 

follows:

Offender violated said rule, in that his alleged conduct constitutes 

a failure to comply with the rules of Probation and Parole, as well 

as the Court Order. [Appellant] admitted to having contact with 

a 17-year-old minor on occasion, and admitted to “making out, 

kissing, fondling, and grabbing” her as well. His justification being 

that “she was turning eighteen in a couple [of] weeks.” Upon 

questioning in the probation office, [Appellant] admitted to the 

actions and said he “waited until her birthday” to have sexual 

contact with her. He also admitted to being alone with his friend’s 

5-year-old niece on multiple occasions. He admitted to being 

sexually aroused by the victim climbing on him, and said that the 

victim “grabbed his crotch area” and “sucked his fingers.” He 

admitted the contact to the group on March 21, 2019, and also in 

the probation office on March 25, 2019. [Appellant] said he 

“should have lied.”

[Appellant] is a Tier II Sex Offender and cannot be at such an 

event according to the rules. [Appellant] disclosed this 

information to [p]olygraph examiner and his [Sexual Offender 

Assessment Board] Counselor, Thomas Dougherty. Mr. 

Dougherty reported the two incidents to Child Line.

Parole Violation Report, 3/26/19 at 1-2. 

____________________________________________

to believe that a violation has been committed. Commonwealth v. Sims, 

770 A.2d 346, 349 (Pa. Super. 2001). Where a finding of probable cause is 

made, a second, more comprehensive hearing, a Gagnon II hearing, is 

necessary before the court can make a final revocation decision. Id.
J-S05029-22

- 5 -

At the revocation hearing, counsel for Appellant argued that the 

condition imposed by the trial court (i.e., no contact with minors) was different 

from the condition being enforced by the Probation Department (i.e., no 

unsupervised contact with minors), and that the Probation Department in 

essence modified the condition without the approval of the trial court. 

Furthermore, counsel argued that to the extent the Probation Department 

properly modified the condition initially imposed by the trial court, the 

Commonwealth failed to prove that the contact at issue here was 

unsupervised. N.T., Revocation, 7/29/19, at 22-23. 

The Probation Department acknowledged that the condition, as 

formulated by the trial court, was impossible to enforce, given the nature of 

Appellant’s employment (working at a pet store). N.T., Revocation, 7/29/19, 

at 5. Accordingly, the Probation Department authorized Appellant to work in 

an environment where children could be potentially present (pet store) and 

interpreted the condition imposed by the trial court to mean “no adverse 

contact with minors,” id., or “no unsupervised contact with minors,” id. at 6-

7; see also Parole Violation Report, supra. The Commonwealth argued that 

the initial condition (no contact with minors) was not changed by the Probation 

Department, and that, essentially, it meant no adverse contact with minors. 

Id. at 21-23. 

The trial court agreed with the Commonwealth’s position and revoked 

Appellant’s probation. This appeal followed.
J-S05029-22

- 6 -

On appeal, Appellant argues that the trial court erred or abused its 

discretion in finding that Appellant had inappropriate contact with minors. To 

this end, Appellant notes that the condition of probation imposed by the trial 

court was different from the condition as interpreted and/or enforced by the 

Probation Department, and that, under the interpretation of the condition 

advanced by the Probation Department, the Commonwealth failed to prove 

that Appellant violated the condition of probation. We disagree.

The Commonwealth must prove the probation violation by a 

preponderance of the evidence and, once it does so, the decision to revoke 

probation is a matter for the court’s discretion, and that decision will not be 

disturbed on appeal in the absence of an error of law or an abuse of discretion. 

See Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. 1996); 

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008).

A challenge to the sufficiency of the evidence supporting the revocation 

of probation is a question of law subject to plenary review. Commonwealth 

v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007). We must determine 

whether the evidence admitted at the revocation hearing and all reasonable 

inferences drawn therefrom, when viewed in the light most favorable to the 

Commonwealth, is sufficient to support the conclusion that the probationer 

violated the terms of probation. Id.

We do not need to address whether the Probation Department modified 

the condition of probation, or whether the condition, as interpreted and/or 
J-S05029-22

- 7 -

enforced by the Probation Department, is inconsistent with the original 

condition imposed by the trial court because, under either version of the 

condition, Appellant could not make out, kiss, fondle, and grab a 17-year-old 

female or have contact, on multiple occasions, with a 5 year-old female. In 

other words, whether supervised or not, Appellant violated the terms of his 

probation because, under either version of the condition, Appellant could not 

engage in the conduct at issue here. 

As Appellant admitted to the conduct described above and having found 

that the conduct was barred under the terms of Appellant’s probation, we must 

conclude that Appellant’s sufficiency of the evidence claim is without merit. 

Accordingly, the trial court did not err or abuse its discretion in rejecting 

Appellant’s sufficiency claim. 

Next, Appellant argues that the trial court erred in allowing the 

Commonwealth witness to testify as to Appellant’s admissions to the 

incriminating conduct described above because those statements were 

obtained in violation of his right against self-incrimination under the Fifth 

Amendment to the Constitution. Specifically, Appellant argues that the 
J-S05029-22

- 8 -

incriminating statements were the result of custodial interrogation without 

being provided Miranda4 warnings.

5

 We disagree.

The Fifth Amendment privilege against self-incrimination is 

generally not self-executing, and ordinarily an individual must 

assert the privilege for subsequent statements to be considered 

“compelled” within the meaning of the Fifth Amendment. 

However, the Fifth Amendment is self-executing where an 

individual is subject to custodial interrogation without being given 

Miranda warnings.

Commonwealth v. Cooley, 118 A.3d 370, 375 (Pa. 2015) (internal 

citations omitted). 

In Cooley, our Supreme Court noted:

Custodial interrogation is defined as “questioning initiated by law 

enforcement officers after a person has been taken into custody 

or otherwise deprived of his freedom of action in any significant 

way[,]” Miranda, at 444[.] 

An individual is in custody if he is “physically denied his freedom 

of action in any significant way or is placed in a situation in which 

he reasonably believes that his freedom of action or movement is 

restricted by the interrogation.” Commonwealth v. Johnson, 

[727 A.2d 1089, 1100 (Pa. 1999)] (citations omitted). Regarding 

custody, the United States Supreme Court has further held the 

“ultimate inquiry is ... whether there [was] a ‘formal arrest or 

restraint on freedom of movement’ of the degree associated with 

a formal arrest.” Stansbury v. California, 511 U.S. 318, 322, 

____________________________________________

4 Miranda v. Arizona, 384 U.S. 436 (1966).

5 Our standard of review regarding evidentiary issues is well settled. “The 

admissibility of evidence is at the discretion of the trial court and only a 

showing of an abuse of that discretion, and resulting prejudice, constitutes 

reversible error.” Commonwealth v. Sanchez, 36 A.3d 24, 48 (Pa. 2011) 

(citations omitted). “To constitute reversible error, an evidentiary ruling must 

not only be erroneous, but also harmful or prejudicial to the complaining 

party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation 

omitted).
J-S05029-22

- 9 -

114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (citation omitted). The 

standard for determining whether an encounter is custodial is an 

objective one, focusing on the totality of the circumstances with 

due consideration given to the reasonable impression conveyed to 

the individual being questioned. Commonwealth v. Gwynn, 

[723 A.2d 143, 148 (Pa. 1998)] (Opinion Announcing Judgment 

of the Court) (citation omitted).

Id. at 376.

Here, the record shows that Appellant attended a routine probation 

interview during which he made incriminatory statements. There is no 

indication that police officers were present, he was under arrest or its

functional equivalent, or he somehow was compelled to make those 

statements during the interview. As Appellant was not in custody and did not 

assert the privilege against self-incrimination, his incriminating statements 

were admissible. See Minnesota v. Murphy, 465 U.S. 420, 440 (1984).

6,7

Appellant’s second and final claim is, therefore, without merit. 

____________________________________________

6

In Murphy, probationer was obligated as part of his probation to report to 

his probation officer; during a mandatory probation meeting, the officer 

questioned the probationer about new crimes, to which he confessed. 

Murphy, 465 U.S. at 422–25. The Supreme Court found that the interaction 

between the officer and probationer during a mandatory probation meeting 

did not rise to the level of custodial interrogation, as there was no formal 

arrest or its functional equivalent. Id. at 429–30.

7 Even less compelling is the evidence supporting a “custodial interrogation”

by the counselor. There is no indication policer officers attended the 

counseling session; counseling was out-patient in nature, and Appellant 

arrived and attended the session independently. Finally, there is no 

suggestion Appellant was in some way misled by any expectation of 

confidentiality at any point, as he knew his probation officer would be privy to 

the information disclosed. Accordingly, we must conclude that the protections 

(Footnote Continued Next Page)
J-S05029-22

- 10 -

In light of the foregoing, we conclude that Appellant is entitled to no 

relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2022

____________________________________________

of the Fifth Amendment against self-incrimination were not applicable as well 

in connection with the incriminating statements made by Appellant to the 

counselor. See Commonwealth v. Knoble, 42 A.3d 976, 981-82 (Pa. 2012).