J-A09005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EMMANUEL CASSIS,

Appellant No. 456 EDA 2014

Appeal from the Judgment of Sentence June 20, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): 

CP-51-CR-0003389-2011

CP-51-CR-0003396-2011

CP-51-CR-0003397-2011

CP-51-CR-0003398-2011

CP-51-CR-0003399-2011

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 28, 2015

Emmanuel Cassis appeals from the judgment of sentence of sixty-nine 

and one-half to 139 years imprisonment that the trial court imposed after it 

found him in technical violation of his probation. We reverse the trial court’s 

order finding Appellant in violation of probation, vacate the judgment of 

sentence, and remand for violation of probation (“VOP”) proceedings. 

Appellant entered a negotiated guilty plea on April 25, 2011. As part 

of the plea deal, Appellant agreed to plead guilty to seventeen counts of 

robbery, eleven counts of theft, and multiple firearms violations. The 

Commonwealth agreed to recommend a sentence of seven and one-half to 
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fifteen years incarceration to be followed by twenty years of probation. 

Judge Chris R. Wogan accepted the plea and imposed the aforementioned 

sentence. In addition, Judge Wogan agreed to defer the date Appellant was 

required to begin his sentence until June 20, 2011, and directed Appellant to 

appear before him that day. Appellant failed to arrive at the courtroom to 

relinquish himself to authorities; his counsel did appear. 

On that date, June 20, 2011, the court, without complying with any of 

the notice or procedural requirements necessary to conduct a VOP hearing, 

determined that Appellant violated his probation. Trial counsel objected to 

the proceeding going forward in Appellant’s absence. The court overruled 

that objection and sentenced Appellant to sixty-two to 124 years 

imprisonment to run consecutively to his earlier seven and one-half to 

fifteen year sentence of incarceration. The court did not have the benefit of 

a pre-sentence report, since at the original sentencing, Appellant waived 

that requirement.1 

The Commonwealth apprehended Appellant on June 27, 2011. 

Appellant was not informed of his new sentence at that time, nor did he 

contact his attorney. Accordingly, unaware of the new sentence, Appellant

did not file a timely post-sentence motion or a direct appeal. Appellant 

subsequently filed a timely pro se petition for relief under the Post-

____________________________________________

1 Appellant was twenty-years old and had no prior criminal background. 
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Conviction Relief Act (“PCRA”), on June 15, 2012. Appellant retained private 

counsel, and counsel filed an amended petition on September 23, 2013. 

Therein, counsel asked that Appellant’s direct appeal rights be reinstated 

and also sought Judge Wogan’s recusal. Judge Wogan did not initially 

recuse himself, and Appellant filed two supplemental motions for recusal.2 

In one of those motions, Appellant averred that a sign was posted in Judge 

Wogan’s courtroom which read, “69 1⁄2 to 139 years—Beat that.” Judge 

Wogan acknowledged that such a sign did exist, but he represented that he 

did not post it himself and, after seeing it a second time, had it removed.3

Ultimately, Judge Wogan elected to recuse himself. Judge Jeffrey 

Minehart then conducted a PCRA evidentiary hearing regarding trial 

counsel’s failure to preserve Appellant’s appellate rights and sentencing 

____________________________________________

2

Judge Wogan conducted hearings on these motions. At a contentious 

December 16, 2013 hearing, Judge Wogan inappropriately vigorously crossexamined Appellant regarding matters that were based on his own ex parte

and sua sponte investigation and questioning of warrant officers. Judge 

Wogan then held PCRA counsel in contempt because counsel refused to 

undergo a previously ordered mental health examination. He initially 

sentenced counsel to jail and a fine over counsel’s objection that he was 

entitled to an attorney and a hearing. The assistant district attorney, 

however, also objected to the court’s actions and the court agreed not to 

sentence PCRA counsel.

3 An attorney present at a November 22, 2013 PCRA hearing in this case 

filed a declaration that referenced the sign and maintained that it was 

“displayed prominently near where attorneys are required to check in with 

the court staff and was easily read.” Declaration of Attorney James A. Funt, 

at ¶ 12. 
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issues after the June 20, 2011 sentencing. Trial counsel acknowledged that 

he did not inform Appellant or his family of the new sentence. The PCRA 

court reinstated Appellant’s direct appeal rights. This appeal ensued. The 

court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Appellant complied, and the 

trial court authored its Rule 1925(a) decision. Therein, the court concluded 

that the underlying sentencing issues Appellant had alleged in his PCRA 

petition were waived because Appellant had not sought reinstatement of his 

right to file a post-sentence motion. 

Appellant now raises three issues for this Court’s review. 

1. Did not the trial court err as a matter of law, abuse its 

discretion, and violate general sentencing principles when, 

following appellant’s failure to turn himself in to begin serving 

a negotiated sentence of 7 1⁄2 to 15 years, the court in 

absentia, conducted a cursory “violation of probation” 

hearing, and imposed a manifestly excessive and 

unreasonable sentence of 69 1⁄2 to 139 years incarceration, 

which far surpassed what was required to protect the public, 

went well beyond what was necessary to foster appellant’s 

rehabilitation, was not necessary to vindicate the authority of 

the court, was grossly disproportionate to the crimes, and 

was imposed without reference to any pre-sentence report or 

sufficient information to make an individualized sentencing 

decision?

2. Did not the trial court err as a matter of law, abuse its 

discretion and violate appellant’s due process rights when it 

imposed a 69 1⁄2 to 139 year sentence for an alleged technical 

violation of probation, where the court conducted the 

“violation hearing” without any of the required constitutional 

safeguards?
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3. Did not appellant properly preserve and perfect these 

challenges for direct appeal, or if he did not, wasn’t such a 

failure per se ineffective assistance of counsel, such that this 

Court should address the matters on direct appeal?

Appellant’s brief at 3. 

As we find Appellant’s second issue dispositive, we need only address 

that issue. Appellant argues that the court erred by conducting “an 

apparent in absentia violation of probation hearing” without providing notice 

to Appellant of such a hearing and without hearing from any witnesses. He 

notes that under Morrisey v. Brewer, 408 U.S. 471 (1972), a parolee has 

certain Fourteenth Amendment due process rights before the court can 

recommit that person. These protections have been extended into the 

violation of probation arena. See Commonwealth v. Stafford, 29 A.3d 

800, 802 n.1 (Pa.Super. 2011) (citing Morrissey, Gagnon v. Scarpelli,

411 U.S. 778 (1973); Commonwealth ex rel. Rambeau v. Rundle, 314 

A.2d 842 (1973); and Commonwealth v. Davis, 336 A.2d 616 (Pa.Super. 

1975)). 

Appellant asserts that an individual alleged to have violated his 

probation is entitled to two separate hearings. See Gagnon, supra. The 

initial hearing, commonly known as a Gagnon I hearing, “is a prerevocation hearing to determine if probable cause exists that a violation was 

committed.” Thereafter, “a Gagnon II hearing is conducted where the 

Commonwealth is required to establish that the defendant did violate his 
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parole/probation. See Commonwealth v. Ferguson, 761 A.2d 613 

(Pa.Super.2000).” Stafford, supra at 802 n.1. 

In Davis and Ferguson, supra, we outlined the distinctions between 

the two hearings. At a Gagnon I hearing, a probationer “is entitled to 

notice of the alleged violations of probation or parole, an opportunity to 

appear and to present evidence in his own behalf, a conditional right to 

confront adverse witnesses, an independent decisionmaker, and a written 

report of the hearing.” Ferguson, supra at 617 (quoting Davis, supra at 

621). In contrast, a “Gagnon II hearing is more complete than the 

Gagnon I hearing in affording the probationer additional due process 

safeguards[.]” Id. First, the court determines whether the probationer did 

violate probation. Subsequently, the court considers whether the 

probationer should be committed to prison “or should other steps be taken 

to protect society and improve chances of rehabilitation[.]” Id. (Ferguson

and Davis quoting Gagnon, supra at 784). 

In performing this review, due process requires similar protections 

afforded by the Gagnon I hearing. Specifically, the defendant must be 

given written notice of his alleged probation violation, disclosure of the 

evidence against him, an opportunity to be heard in person and present 

evidence, the right to confront and cross-examine adverse witnesses unless 

good cause exists for not permitting confrontation, a neutral hearing body, 

and a written statement by the factfinder regarding the evidence relied on 
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for violating the defendant’s probation. See Morrisey, supra at 499; 

Commonwealth v. Holder, 805 A.2d 499, 504 n.7 (Pa. 2002); Ferguson, 

supra at 617-618; Davis, supra at 621. 

Appellant adds that pursuant to Pa.R.Crim.P. 708(1), a court “shall not 

revoke such probation” without a hearing “at which the defendant is present 

and represented by counsel[.]” He points out that no notice was provided 

regarding a violation of probation nor was he present to be heard or 

provided with a written statement as to his violation. Continuing, Appellant 

highlights that the court did not hear from a probation officer nor was any 

evidence introduced. Rather, the court determined that Appellant’s failure to 

appear was sufficient to warrant revoking Appellant’s probation without 

notice and in absentia. 

The Commonwealth counters that Appellant’s issue is waived because 

his objection was not specific enough. We disagree. Here, counsel objected 

to the violation hearing being conducted without his client being present. 

The essentials of procedural due process are notice and an opportunity to be 

heard. Without prior notice of a violation hearing, the absence of the 

defendant encompasses both a lack of notice and an inability to be heard. 

Thus, it is evident that objecting based on Appellant’s absence adequately 

encompasses these due process concerns. An objection need not be so 

specific and detailed as to amount to an oral briefing of the matter. Instead, 

counsel must adequately alert the court of the alleged error. See In re 
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T.P., 78 A.3d 1166, 1171 (Pa.Super. 2013) (“If an assertion raised by a 

party can fairly be said to implicate a rule of law or legal precedent known 

by a court to be applicable, it is not foreclosed from considering that legal 

precept solely because that precise case, rule, or statute was not cited.”).

Finding that Appellant adequately objected, we hold that the trial court 

erred in finding Appellant in violation of his probation without complying with 

the minimal due process protections necessary for violation of probation 

proceedings. Appellant was not given notice of a Gagnon I or II hearing or 

notice of his violation, nor was he provided an opportunity to be heard or be 

present. 

Virtually none of the procedural safeguards required by both United 

States Supreme Court and Pennsylvania case law were adhered to by Judge 

Wogan. Since the court erred in proceeding in this fashion in Appellant’s 

absence, he is entitled to new VOP proceedings. Therefore, we reverse the 

court’s order finding Appellant in violation of probation, vacate his judgment 

of sentence, and remand for proceedings consistent with this memorandum.

Judgment of sentence vacated. Case remanded for additional 

proceedings. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015