Com. v. Wynn, F.

J-S43011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

FLOYD WYNN,

Appellant No. 1805 EDA 2014

Appeal from the Judgment of Sentence of May 30, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000672-2012

BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 15, 2015

Appellant, Floyd Winn, appeals pro se from the judgment of sentence

entered on May 30, 2014, following his revocation of probation. Upon

review, we affirm.

On direct appeal, we summarized the facts of this case as follows:

Appellant and the victim were married and living together in
New Mexico. In December 2011, the victim ended the
relationship after Appellant took money from the victim’s
bank account to gamble. The victim’s employer transferred
her to Delaware County, Pennsylvania. Before leaving New
Mexico, the victim obtained a Protection from Abuse (PFA)
order prohibiting Appellant from any contact with her.
Appellant continued calling and texting the victim,
attempted to contact her on Facebook, confronted her while
she was cleaning out her house in New Mexico and took her
car keys. Police eventually intervened. In January 2012,
the victim drove cross-country and checked into a hotel in
Concordville, Pennsylvania. She received a message from
Appellant asking her to send him money, because he was in
Virginia with a flat tire. Believing Appellant was following
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her, the victim directed hotel staff to deny that she was
staying there. Subsequently, Appellant called the hotel,
asked if the victim were staying there, came to the hotel
despite being told no, and then waited for the victim near
her car in the hotel parking lot. When Appellant confronted
the victim, she ran back into the hotel and called the police.
Police arrested Appellant on January 11, 2012.

On October 24, 2012, the trial court held a bench trial
wherein it convicted Appellant of [stalking and harassment.
18 Pa.C.S.A. §§ 2709.1 and 2709, respectively]. On
December 19, 2012, the trial court sentenced Appellant to
one to two years of incarceration, followed by three years of
probation. [This Court affirmed Appellant’s judgment of
sentence on October 11, 2013.]

Commonwealth v. Wynn, 232 EDA 2013 (Pa. Super. 2013) (unpublished

memorandum) at 1-2.

On January 13, 2014, Appellant completed the terms of his

incarceration and was released on probation. Upon his release, Appellant

was required to, inter alia: (1) report to the probation department; (2) give

the probation department a valid address, and; (3) have no contact with the

victim, either directly or indirectly. Appellant did not report to the probation

department, as required, and purportedly reported a false address. The trial

court entered a bench warrant for Appellant’s arrest on January 23, 2014.

On January 28, 2014, police arrested Appellant in Allegheny County and the

Commonwealth charged him with resisting arrest. On February 20, 2014,

the Commonwealth withdrew the resisting arrest charge and Appellant

entered a guilty plea to disorderly conduct in Allegheny County. Appellant

was extradited to Delaware County. On April 22, 2014, the trial court held a

video hearing pursuant to Gagnon v. Scarpelli, 411 U.S. 778 (1973)

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(Gagnon I hearing) to determine if there were probable cause to hold a

revocation of probation hearing. The trial court determined that Appellant’s

guilty plea to disorderly conduct was prima facie evidence of a probation

violation. On May 21, 2014, Appellant filed a writ of habeas corpus arguing

that the trial court denied him due process and his detention was illegal

because the court failed to hold a Gagnon I hearing. On May 28, 2014, the

trial court held a second hearing regarding revocation of probation pursuant

to Gagnon v. Scarpelli, 411 U.S. 778 (1973) (Gagnon II hearing).

Therein, the trial court heard Appellant’s objections and rescheduled the

Gagnon II hearing for May 30, 2014.

On May 30, 2014, the trial court reconvened a Gagnon II hearing

wherein the Commonwealth presented evidence that Appellant absconded

from supervision and sent e-mails to the victim directly and through third

parties. The trial court found Appellant was in direct violation of the terms

of his probation and sentenced him to one to three years of incarceration.

This timely appeal resulted.

On appeal, Appellant presents, pro se, the following issues for our

consideration:

A. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County illegally
[e]xtradite[d] Appellant in not abiding to [the] Uniform
Extradition Act (42 Pa.C.S. §§ 9161-9165) as a matter of
law?

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B. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County err[ed] by not
applying Pa.R.C[rim].P. 708(A) as a matter of law?

C. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County [denied Appellant his
right to due process of law by failing to conduct a
probable cause or Gagnon I hearing]?

D. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County err[ed] by placing
Appellant on special [s]tate supervised probation?

E. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County had the right to
violate Appellant’s probation without acquainting [him]
with terms and conditions of probation as a matter of
law?

F. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County satisfied minimal due
process require[ments set] by the U.S. Supreme Court []
in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593,
33 L. Ed. 484 (1972) [with respect to Appellant’s]
revocation [or] “Gagnon II” [hearing]?

G. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County err[ed] in failing to
give [] Appellant proper timely notice and [a] prompt
Gagnon II hearing as a matter of law?

H. Whether the Commonwealth and/or the Court of
Common Pleas of Delaware County err[ed] by not stating
on the record the reasons for [the] sentence imposed as
a matter of law?

I. Whether the Court of Common Pleas of Delaware County
abuse[d] [its] discretion in [imposing Appellant’s
revocation sentence]?

Appellant’s Brief at 4-5.

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Initially, we note that Appellant’s issues C, H and I are meritless. At

issue C, in his appellate brief, Appellant claims that the trial court did not

conduct a Gagnon I hearing. “When 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.” Commonwealth v.

Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted;

emphasis in original). However, in his habeas petition, Appellant admits he

attended a Gagnon I hearing by video conference on April 22, 2014.

Moreover, he concedes the point in his appellate brief. Appellant’s Brief at

15. Hence, Appellant has conceded the issue and there is nothing to review

on appeal.

Regarding issues H and I, Appellant challenges the discretionary

aspects of his revocation sentence. “[W]hen a court revokes probation and

imposes a new sentence, a criminal defendant needs to preserve challenges

to the discretionary aspects of that new sentence either by objecting during

the revocation sentencing or by filing a post-sentence motion.”

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008)(citation

omitted). Here, Appellant did not object to his sentence at the revocation

hearing or file a post-sentence motion thereafter. Hence, his discretionary

aspect of sentencing claims are waived.

Our standard of review, with regard to Appellant’s remaining

contentions, is well-settled:

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When we consider an appeal from a sentence imposed
following the revocation of probation, 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. Revocation of a probation
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.

Commonwealth v. McNeal, 2015 PA Super 150, at *6 (internal citations,

quotations and brackets omitted).

We reviewed the certified record, the parties’ briefs, the relevant law,

and the trial court’s opinion filed on August 5, 2014. The trial court first

noted that a probation officer read the terms of probation to Appellant

before his release from prison and that he refused to sign an

acknowledgment of this occurrence. Trial Court Opinion, 8/5/2014, at 4.

Similarly, Appellant was advised orally of the alleged violations of his

probation, but again he refused to sign an acknowledgment that he received

notice. Id. at 5. The trial court determined that Appellant’s due process

rights were not violated and that the court properly complied with the

procedures mandated by Gagnon. Id. More specifically, a video

conference, or Gagnon I hearing, held on April 22, 2014 established that

Appellant’s conviction for disorderly conduct was prima facie evidence of a

violation of probation. Id. On May 30, 2014, the trial court held a Gagnon

II hearing wherein Appellant was permitted to cross-examine his probation

officer and the victim. Id. at 6. Finally, the trial court noted that the

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original sentence of special probation, supervised by the Board of Probation

and Parole, was proper under 61 Pa.C.S.A. § 6133.1 Id. at 7. Based upon

all of the foregoing, we conclude there has been no error of law or abuse of

discretion in this case and that the trial court’s August 5, 2014 opinion

meticulously, thoroughly, and accurately disposes of Appellant’s issues on

appeal. Therefore, we affirm on the basis of the trial court’s opinion and

adopt it as our own. Because we have adopted the trial court’s opinion, we

direct the parties to include the trial court’s opinion in all future filings

relating to our examination of the merits of this appeal, as expressed herein.

Finally, on June 11, 2015, Appellant filed a petition to strike the

Commonwealth’s appellate brief as untimely filed. Upon review of the

docket, after two permitted extensions, the Commonwealth filed its brief two

days late. Although the Commonwealth did not strictly comply with the

Rules of Appellate Procedure, we deny Appellant’s request to strike the

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1
Appellant claims that the trial court initially imposed an illegal sentence of
probation on the original stalking and harassment convictions. More
specifically, Appellant argues that imposition of a three-year term of
probation on harassment was illegal because the two charges merged for
sentencing purposes. Appellant’s Brief at 49. The trial court created the
confusion by suggesting such in its opinion. See Trial Court Opinion,
8/5/2014, at 1 (“[This c]ourt sentenced [Appellant] to 12 to 24 months[‘]
imprisonment in a state correctional facility on the [s]talking charge and 3
years[‘] consecutive special probation on the [h]arassment.”). However,
upon review of the certified record, and the original sentencing order, the
trial court imposed the aforementioned probationary sentence on only the
stalking offense, noting that harassment merged with the stalking charge.

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Commonwealth’s brief, as our review was not substantially hindered by the

error. See C.L. v. Z.M.F.H., 18 A.3d 1175, 1182 (Pa. Super. 2011).

Judgment of sentence affirmed. Appellant’s petition to strike the

Commonwealth’s brief denied.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2015

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IN THE COURT OF COMMON PLEAS DELA WARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs. : NO. CP-23-CR- 000672-2012

FLOYD WYNN

Daniel Woody, Esquire, A. Sheldon Kovach, Esquire, Attorneys for the Commonwealth
Floyd Wynn, Pro Se

OPINION

Brennan, J. August 4, 2014

After a bench trial held on October 24, 2012 Defendant was found guilty of

Stalking' and Harassment.2 The Court sentenced Defendant to 12 to 24 months

imprisonment in a state correctional facility on the Stalking charge and 3 years.

consecutive special state probation on the Harassment charge. That judgment of

sentence was affirmed on direct appeal by the Superior Court at docket number 232

EDA 2013. The Defendant maxed out his jail time and was released on probation

on January 13, 2014. Upon his release, the Defendant gave a bad address to his

probation officer and was given written instructions to report in person to the Parole

Office in Norristown, Pennsylvania on January 15, 2014. The Defendant did not

report as instructed and a Bench Warrant for his arrest was issued by this Court on

118
Pa.C.S.A. § 2709.1 (a)(2).
218
Pa.C.S.A. § 2709 (a)(7).

Exhibi.t A
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January 23, 2014. On January 28, 2014 the Defendant was arrested in West Mifflin

Township, Allegheny County, Pennsylvania. On May 30, 2014 after a Gagnon II

hearing, the Court found the Defendant guilty of violating the terms of his

probation and sentenced him to one to three years in a state correctional facility.

The Defendant filed a timely appeal. In his rambling l 925(b) statement the

Defendant alleges numerous procedural defects which he asserts entitles him to

have his sentence vacated. Defendant's contentions lack merit.

At a revocation hearing for either probation or parole, the Commonwealth

need only prove by a preponderance of the evidence that the defendant committed a

violation of his probation or parole. Commonwealth v. Shimonvich, 858 A.2d 132

(Pa. Super. 2004); Commonwealth v. Scott, 850 A.2d 762 (Pa. Super. 2004);

Commonwealth v. Griggs, 3 I 4 Pa. Super. 407, 461 A.2d 221 (1983). Technical

violations are sufficient grounds for revocation. Id. The decision to revoke

probation or parole is a matter wi thin the sound discretion of the trial court, and the

court's decision will not be disturbed on appeal absent an error of law or an abuse

of discretion. Commonwealth v. MacGregor, 912 A.2d 315 (Pa. 2006). Finally, the

"scope of review on appeal from the judgment of sentence imposed following a

probation revocation [is] 'limited to the validity of the revocation proceedings and

the legality of the final judgment of sentence." Commonwealth v. Williams, 662

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A.2d 658 (1995) at 659, citing Commonwealth v. Beasley, 570 A.2d 1336 (1990).

At Defendant's Gagnon II violation hearing, the following was established.

The Defendant gave a bad address and did not report to his state probation officer

as scheduled upon his release from prison. The Defendant left the Chester District

without the written permission of the state probation supervision staff. The Chester

District is comprised of Delaware, Chester, and Montgomery Counties. The

Defendant was arrested in West Mifflin Township, Allegheny County on January

28, 2014. N.T. 5/30/2014 p.5, 6. The Defendant was given written instructions to

have no contact with his ex-wife, the victim in bis stalking and harassment

convictions. Between January 15, 2014 and the date of his arrest the Defendant

contacted the victim directly by email or through third parties. N.T. 5/30/2014 p.28,

29, 30. The communications contained veiled threats against the victim. N.T.

5/30/2014 p.6, 19, 28, 29, 30. One communication that was sent to the victim

through a third party stated "please forgive me what I'm about to do" ... "read

about it I am going out with the headline this time." N.T. 5/30/2014 p.28, 29. See

also copies of the emails included in Commonwealth's Exhibit G-1 admitted into

evidence at the Gagnon II hearing. These emails put the victim in fear of her life

and forced her to go back on anxiety medication. N.T. 5/30/2014 p.34.The

Defendant was also instructed to comply with all municipal, county, state, and

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federal criminal laws. As stated above the Defendant was arrested by the West

Mifflin Township Police and charged with resisting arrest. At his preliminary

hearing on February 20) 2014 the charge of resisting arrest was withdrawn and the

Defendant entered a guilty plea to the summary offense of disorderly conduct The

Defendant was sentenced to time served between 01/28/2014 and 02/20/2014. N.T.

5/30/2014 p.7.

It is obvious from this evidence Defendant was in clear violation of the terms

of his probation. See Zimmerman v, PA Board Probation & Parole) 476 A.2d 1016

(Pa. Cmwlth. 1984) (parole properly revoked where parolee left his approved

district without permission). The only evidence that is needed) as shown by

Defendant's conduct here) is a willful or flagrant disrespect for the terms and

conditions of his release on probation. Commonwealth v. Ballard, 814 A.2d 1242

(Pa. Super. 2003). Defendant's argument that he is not in violation of his probation

is meritless.

The Defendant next alleges a host of procedural deficiencies none of which

are supported by the record. The conditions of Defendant's special probation were

read to him in front of a witness. The Defendant refused to sign an

acknowledgement. N.T. 5/30/2014 p.12. On April 4, 2014 Defendant's probation

officer visited him in Delaware County Prison and hand delivered a written "Notice

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of Charges and Hearing" that fully detailed Defendants alleged violations. This

document also specified the supporting evidence. The document was read to the

Defendant by his Probation Officer. Again the Defendant refused to sign an

acknowledgement he received the document. Both the Notice of the Terms and

Conditions of Special Probation and the Notice of alleged Violations are contained

in Commonwealth's Exhibit G-1 which is part of the record in this case.

Defendant> s contention that he was not timely informed of the terms of his

probation or the alleged violations is meritless.

Defendant also claims he never received a Gagnon I hearing. This claim is

also untrue. 3 Defendant attended a Gagnon I hearing by video conference on April

22, 2014. The hearing officer found Defendant's new arrest and convictionprima

facie evidence of a violation and recommended a Gagnon II hearing be scheduled.

Pennsylvania's appellate courts have repeatedly stated that both Gagnon I

and Gagnon II hearings "are less formal than trials, and need not be conducted in

strict accordance with the entire gamut of evidentiary and procedural rules

employed in a criminal trial." Commonwealth v. Holmes, 408 A.2d 846, 848 (Pa.

Super. 1979) (citing Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) and

Commonwealth v. Rossetti, 388 A.2d I 090 (Pa. Super. 1978)). The Gagnon I

J In paragraph 26 of Defendants pro se Petition for Writ of Habeas Corpus filed on May 21, 2014

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hearing serves to establish whether probable cause exists to believe that the

probationer has committed a violation of his or her probation. Commonwealth v.

Althouse, 969 A.2d 1236, 1240 (Pa. Super. 2009); see also Commonwealth v. Sims,

770 A.2d 346, 352 (Pa. Super. 2001) (The purpose of a Gagnon I is to establish

whether prima facie evidence exists that a probationer has committed a violation of

his or her probation.). Furthermore "[tjhe conditional right to confront adverse

witnesses, afforded in a Gagnon 1 hearing is not the same as the right to confront

adverse witnesses afforded in a Gagnon II hearing. In [ a Gagnon I hearing], the

hearing officer need not specifically find good cause for not allowing confrontation.

Commonwealth v. Kavanaugh, 482 A.2d 1128, 1130. In this case there was no need

to allow the Defendant to confront witnesses at his Gagnon I hearing because the

hearing officer found Defendant's new conviction prima facie evidence of a

violation. Therefore, Defendant received the minimum due process to which he was

entitled at his Gagnon I probation revocation hearing and his claim otherwise is

baseless.

At the Gagnon II hearing the Defendant was permitted to cross examine, to

his satisfaction, both his probation officer and the victim. Contrary to his assertion,

the Defendant was accorded every procedural right he WBS due at both his Gagnon I

the Defendant adm its he attended a Gagnon I hearing on April 22, 2014.

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and II hearings.

Next, the Defendant challenges the fact he was placed on special probation

supervised by the State Board of Probation and Parole. The Board has the authority

under Section 6133 of the Prisons and Parole Code, 61 Pa.C.S. § 6133, "to

supervise any person placed on probation by any judge of a court having criminal

jurisdiction, when the court by special order directs supervision by the board."

When a defendant violates the conditions of special probation, the Board may

detain the special probationer in a county prison and make a recommendation to the

court concerning the revocation of the defendant's probation, but the trial court

retains the power, authority, and jurisdiction to revoke special probation and

sentence the defendant, regardless of the Board's supervisory powers.

In Commonwealth v. Mitchell, 955 A.2d 433 (Pa.Super.2008),4 petition for

allowance of appeal denied, 964 A.2d 894 (Pa.2009), the Pennsylvania Superior

Court reiterated that the sentencing court retains the authority to determine whether

someone on probation violated his probation, to revoke probation, and to resentence

following revocation of probation even though the Board supervises the individual

on special probation.

461 Pa.C.S. § 6133 replaced 61 P.S. § 33 l.17a (repealed), effective October 13, 2009. See, e.g.,
Com. v. Kelly, 2007 PA Super 234, 931 A.2d 694 (2007), appeal denied, 596 Pa. 727, 945 A.2d
168 (2008); Kelly was followed in Mitchell.

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Lastly, the Defendant challenges the discretionary aspects of this Court's

sentence by claiming he should not have been sentenced to total confinement for

«technical violations." When challenging the discretionary aspects of sentencing, a

defendant is not entitled to a review as of right. Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa. Super. 2000). To reach the merits of a discretionary sentencing issue,

the defendant must demonstrate that a substantial question exists that the sentence is

inappropriate. Id. A substantial question will not be found unless the defendant sets

forth a "colorable argument" that the sentence imposed is either inconsistent with a

specific Sentencing Code provision or is contrary to the fundamental norms which

underlie the sentencing process. Id. at 913. As a matter of law, not every issue

concerning the discretionary aspects of sentencing raises a substantial question.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). A

determination of what constitutes a substantial question must be evaluated on a

case-by-case basis. Id.

In this case the Defendant was convicted of another crime. Section 9771( c)5

states: '