J-S32001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GLENN CHRISTOPHER VENNERO,

Appellant No. 1446 WDA 2013

Appeal from the Judgment of Sentence August 5, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0005761-2011, 

CP-02-CR-0012866-2009

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 13, 2015

Appellant, Glenn Christopher Vennero, appeals from the judgment of 

sentence entered August 5, 2013, following the revocation of his probation. 

After careful review, we vacate the judgment of sentence and remand for 

further proceedings.

On April 14, 2010, at trial court docket number CP-02-CR-0012866-

2009, Appellant entered a guilty plea to one count each of burglary, criminal 

trespass, and theft by unlawful taking. The trial court sentenced Appellant 

to three years of probation on the burglary charge and no further penalty on 

the other counts. N.T., 4/14/10, at 7. On May 21, 2012, at trial court 

docket number CP-02-CR-0005761-2011, Appellant pled guilty to one count 

each of burglary, criminal trespass, theft by unlawful taking, possessing an 
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instrument of crime, and possession of drug paraphernalia. The trial court 

sentenced Appellant to a term of eleven and one-half to twenty-three 

months of incarceration followed by three years of probation on the burglary 

charge and no further penalty on the other counts. N.T., 5/21/12, at 13. As 

part of his probation at both CP-02-CR-0012866-2009 and CP-02-CR0005761-2011, Appellant was required to continue with his drug, alcohol, 

and mental health treatment, and abstain from using drugs and alcohol. Id. 

at 13-16. 

While Appellant was serving his terms of probation, the trial court held 

regular review hearings. During a review hearing on January 14, 2013, the 

trial court informed Appellant that if he failed to comply with the conditions 

of probation at both CP-02-CR-0012866-2009 and CP-02-CR-0005761-2011, 

he may face incarceration in a state correctional institution. N.T., 1/14/13, 

at 3. Appellant subsequently failed to comply with the terms of his 

probation, and following a hearing on April 15, 2013, Appellant’s probation 

at CP-02-CR-0012866-2009 was revoked, and he was resentenced to a new 

term of three years of probation. N.T., 4/15/13, at 11. Thereafter, 

Appellant started serving his new term of probation at CP-02-CR-0012866-

2009, continued his probation at CP-02-CR-0005761-2011, and started a 

mental health and substance abuse treatment program at Alpha House. Id. 

at 6-11. 
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On August 5, 2013, the trial court held a hearing regarding allegations 

that Appellant had violated his probation at both CP-02-CR-0012866-2009 

and CP-02-CR-0005761-2011 based upon his behavior at Alpha House. At 

the conclusion of the hearing, the trial court revoked Appellant’s probation at 

CP-02-CR-0012866-2009 and sentenced him to a term of one to two years 

of incarceration followed by five years of probation. N.T., 8/5/13, at 29. 

The trial court also revoked Appellant’s probation at CP-02-CR-0005761-

2011 and sentenced Appellant to a term of three and one-half to seven 

years of incarceration followed by five years of probation. Id. at 30. Postsentence motions were filed and denied, and Appellant filed a timely appeal.

On appeal, Appellant raises the following issues for this Court’s 

consideration:

1. Did the Probation Court act improperly, and violate 

Appellant’s state and federal due process rights, when it held 

that Appellant had violated the conditions of his probationary 

sentences imposed on Allegheny County Criminal Complaint (CC) 

Nos. 2009-12866 and 2011-05761 without either (A) holding a 

Gagnon II evidentiary hearing into the allegations that he had 

violated one or more of those conditions, or, alternatively, (B) 

requiring the Commonwealth to bear the burden of proving, at 

the Gagnon II hearing, that Appellant had violated the 

conditions of those probationary sentences, and instead put the 

burden upon Appellant to prove that he had complied with those 

conditions?

2. Did the Probation Court act improperly, and violate 

Appellant’s state and federal due process rights, when it held 

that Appellant had violated the conditions of his probationary 

sentences imposed on CC Nos. 2009-12866 and 2011-05761 

based upon unsubstantiated averments made by an Allegheny 

County Probation Department Agent at the Gagnon II hearing 

(thereby foregoing Appellant’s due process-based confrontation 
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and cross-examination rights) without either (A) an express 

finding that “good cause” existed to do so, or, alternatively, (B) 

without the actual existence of the requisite “good cause” for 

doing so?

Appellant’s Brief at 4.

When we consider an appeal from a sentence imposed following the 

revocation of probation, our standard of review is well settled: 

Our review is limited to determining the validity of the probation 

revocation proceedings and the authority of the sentencing court 

to consider the same sentencing alternatives that it had at the 

time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also 

Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d 

1206, 1207 (1997) (the scope of review in an appeal following a 

sentence imposed after probation revocation is limited to the 

validity of the revocation proceedings and the legality of the 

judgment of sentence). Also, upon sentencing following a 

revocation of probation, the trial court is limited only by the 

maximum sentence that it could have imposed originally at the 

time of the probationary sentence. Id., 688 A.2d at 1207-1208. 

Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa. 

Super. 1999).

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) 

(citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). It 

is also well settled that the revocation of a probationary sentence is a matter 

committed to the sound discretion of the trial court and that court’s decision 

will not be disturbed on appeal in the absence of an error of law or an abuse 

of discretion. MacGregor, 912 A.2d at 317. “[A]n abuse of discretion is 

more than a mere error of judgment; thus, a sentencing court will not have 

abused its discretion unless the record discloses that the judgment exercised 

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
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will.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal 

quotation marks omitted).

In his first issue on appeal, Appellant asserts that the trial court erred 

when it failed to hold a proper Gagnon II hearing concerning allegations 

that he violated his probation and that the trial court erred by shifting the 

burden of proof to Appellant. Appellant’s Brief at 4.

Initially, we note that the United States Supreme Court has held that 

due process requires probationers be given two separate hearings prior to 

revoking probation. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). 

The purpose of having two hearings, a Gagnon I and a Gagnon 

II, is to allow for a factual determination of whether a violation 

occurred and to give each side the opportunity to present 

evidence in support of its case. Morrissey [v. Brewer, 408 

U.S. 471, 484 (1972)]. Notably, the purpose of having a 

Gagnon II hearing is to provide appellant additional due 

process safeguards. Gagnon, supra. Accordingly, the 

Commonwealth is required to meet a higher standard of proof at 

the Gagnon II hearing. Those additional due process 

safeguards, particularly with regard to the higher standard of 

proof required in establishing a violation, would be rendered 

meaningless if we found that by waiving the Gagnon I hearing, 

that appellant conceded his guilt with regard to having 

committed a probation violation. Similarly, a defendant who 

waives his preliminary hearing does not concede that he is guilty 

of the charges against him. Rather, he agrees to be bound over 

for trial where evidence is presented before a finding of guilt is 

rendered. We do not allow for the defendant to be found guilty 

by waiver of his preliminary hearing. Likewise, in this case, we 

cannot allow appellant’s probation to be permanently revoked 

simply because he waived his Gagnon I hearing.

Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001). 
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The Sims Court explained that “[w]hen a parolee or 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 

to believe that a violation has been committed.” Sims, 770 A.2d at 349 

(citations omitted). “Where a finding of probable cause is made, a second, 

more comprehensive hearing, a Gagnon II hearing, is required before a 

final revocation decision can be made. Id. (citation omitted). At a Gagnon 

II hearing, the trial court must first determine whether the facts warrant 

revocation. Id. (citation omitted). “The first step in a Gagnon II

revocation decision . . . involves a wholly retrospective factual question: 

whether the parolee or probationer has in fact acted in violation of one or 

more conditions of his parole or probation.” Id. (citations omitted). If the 

trial court determines that the parolee or probationer violated the conditions 

of his parole or probation, then the trial court must decide whether the 

parolee or probationer should be recommitted to prison or whether other 

steps should be taken to protect society and improve chances of 

rehabilitation. Id. 

Thus, the Gagnon II hearing is more complete than the 

Gagnon I hearing in affording the probationer additional due 

process safeguards, specifically: (a) written notice of the claimed 

violations of probation or parole; (b) disclosure to the 

[probationer or] parolee of evidence against him; (c) opportunity 

to be heard in person and to present witnesses and documentary 

evidence; (d) the right to confront and cross-examine adverse 

witnesses (unless the hearing officer specifically finds good 

cause for not allowing confrontation); (e) a neutral and detached 

hearing body such as a traditional parole board, members of 
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which need not be judicial officers or lawyers; and (f) a written 

statement by the factfinders as to the evidence relied on and 

reasons for revoking probation or parole. 

Sims, 770 A.2d at 349-350 (internal quotation marks omitted). 

Here, the record reflects that the trial court dutifully held review 

hearings concerning Appellant’s progress, or lack thereof, while on 

probation. However, we are constrained to agree with Appellant that in this 

instance, there was not a proper Gagnon II hearing. As noted above, at 

the April 15, 2013 hearing, Appellant’s probation was revoked and he was 

resentenced. N.T., 4/15/13, at 11. Then, on August 5, 2013, Appellant was 

informed of the allegations against him concerning technical violations of his 

probation, his probation was revoked, and he was re-sentenced all at one 

hearing. N.T., 8/5/13, at 29-30. This combining of Gagnon I and Gagnon 

II hearings is not permitted. See Commonwealth v. Homoki, 605 A.2d 

829, 831 (Pa. Super. 1992) (stating that case law “clearly requires two 

independent hearings. Running them together or holding them on the same 

day does not meet the constitutional due process requirements set forth in 

Gagnon. ... We cannot accept that “two parts” to “one hearing” constitute 

two separate hearings.”). For this reason, we vacate Appellant’s judgment 

of sentence and remand for a proper Gagnon II hearing.1

____________________________________________

1

 In light of our disposition, we need not reach Appellant’s remaining claims 

of error. However, we note with concern Appellant’s challenges to the 

admission of hearsay and allegation of burden shifting that occurred at the 

(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for a Gagnon II

hearing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2015

(Footnote Continued) _______________________

August 5, 2013 hearing. Appellant’s Brief at 34; N.T., 8/5/13, at 18; Trial 

Court Opinion, 12/2/14, at 6. It is not the responsibility of the probationer 

to prove that he did not violate probation; rather, the Commonwealth bears 

the burden of proving the probationer violated his probation. See 

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009) 

(stating that the Commonwealth bears the burden of proving a violation of 

probation by a preponderance of the evidence and that hearsay is not 

admissible at a Gagnon II hearing absent a finding of good cause for not 

allowing confrontation).