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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN DOMENICO MARTONE, III,
Appellant No. 1636 MDA 2014
Appeal from the Judgment of Sentence August 28, 2014
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000828-2013
BEFORE: BOWES, WECHT, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J: FILED OCTOBER 16, 2015
John Domenico Martone, III appeals from the judgment of sentence of
two to five years imprisonment imposed by the court following revocation of
the probation levied after he was convicted of receiving stolen property. For
the reasons set forth herein, we affirm.
The facts giving rise to this appeal were summarized as follows by the
trial court:
On December 2, 2013, the Appellant, John Domenico
Martone, III entered a counseled plea of guilty to receiving
stolen property as a felony of the third degree. Appellant was
sentenced pursuant to a negotiated agreement to two years of
probation imposed consecutive to another sentence which the
Appellant was serving at the time of his plea. On May 28, 2014,
the Adams County Department of Probation Services filed a
motion for revocation of Appellant’s probation alleging the
Appellant violated prison and re-entry program rules while
incarcerated on the prior sentence. Appellant was provided
*
Former Justice specially assigned to the Superior Court.
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written notice of the alleged violations and his rights immediately
prior to the filling of the revocation motion. On June 10, 2014, a
Gagnon I hearing was conducted at which Appellant was
represented by counsel. At the Gagnon I hearing, over
objection of the Appellant, the institutional parole officer
introduced the administrative findings of the Adams County
Adult Correctional Complex that Appellant had violated prison
rules. Thereafter, the Gagnon I hearing officer determined that
probable cause for finding the Appellant committed a violation of
his probation existed and a Gagnon II hearing was scheduled.
Prior to the Gagnon II hearing, Appellant filed a petition
seeking the issuance of a writ of habeas corpus. Hearing and
argument on the petition was scheduled to be held concurrent
with the Gagnon II hearing. This Court denied Appellant’s
petition for writ of habeas corpus and, following hearing, found
Appellant to be in violation of his probation. The Appellant was
subsequently re-sentenced to serve no less than two years nor
more than five years in a state correctional institution.
Trial Court Opinion, 12/23/14, at 1-2 (footnotes omitted).1
At Appellant’s Gagnon I hearing, the Commonwealth presented Mr.
Timothy Breighner, an institutional parole officer who testified about
Appellant’s prison misconduct. At his Gagnon II hearing, the
Commonwealth presented Captain Kevin Crawfoot, who presided over
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1
Before Appellant began serving his probation sentence, it was revoked for
conduct occurring while incarcerated for a separate offense. We recognize
that such revocation is proper. See Commonwealth v. Allshouse, 33
A.3d 31, 39 (Pa.Super. 2011) (“If, at any time before the defendant has
completed the maximum period of probation, or before he has begun
service of his probation, he should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation and that granting
of the same would not be in subservience to the ends of justice and the best
interests of the public, or the defendant, the court could revoke or change
the order of probation.”) (citation omitted) (emphasis in original).
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Appellant’s prison misconduct hearing for fighting with another inmate, and
Correctional Officer Vincent Bashore, who witnessed one of Appellant’s
several violations, to testify about Appellant’s prison misconduct citations.
Captain Crawfoot’s testimony included the following exchange with the
Commonwealth, which went without objection by Appellant:
Commonwealth: And did you actually have a hearing at that
time?
Crawfoot: Yes, I did.
Commonwealth: And how did you find Mr. Martone as a result
of the hearing?
Crawfoot: Mr. Martone was found guilty.
Commonwealth: Of specifically what infraction, if you recall?
Crawfoot: Engaged in a fight.
Commonwealth: Okay. And that violated prison rules out
there?
Crawfoot: Yes, it does.
On August 28, 2014, Appellant was resentenced; he filed a timely
post-sentence motion, which the court denied. This timely appeal ensued.
Pursuant to the trial court’s direction, Appellant filed and served a 1925(b)
statement of errors complained of on appeal, and the trial court filed its
responsive 1925(a) opinion. The matter is now ready for our review.
Appellant presents five questions for our consideration:
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1. Did the Court err in denying [Appellant’s] habeas corpus
motion seeking to preserve his 5th Amendment right to confront
adverse witnesses at a [Gagnon I] hearing?
2. Did the Court err in finding that the evidence presented at
the [Gagnon I] hearing was sufficient to establish probable
cause?
3. Did the Court err in denying Appellant’s confrontation
guarantees when it permitted, over objection, introduction of
out-of-court testimonial statements made by adverse witnesses
who were not made available for cross-examination in the
[Gagnon II] proceeding?
4. Did the Court err in finding the evidence presented at the
[Gagnon II] hearing was sufficient to uphold a finding of guilt
by a preponderance of the evidence?
5. Did the Court abuse its discretion when it imposed a
sentence of 2-5 years?
Appellant’s brief at 4.
As detailed in Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the
purpose of a Gagnon I hearing is to determine whether there is probable
cause to believe a parole or probation violation has occurred. When a
finding of probable cause is made, a second, more comprehensive Gagnon
II hearing is required to render a final revocation decision. Id. at 784.
Thus, the Gagnon II hearing is more complete than the Gagnon I hearing
in affording the probationer additional due process safeguards. Id. at 786.
Herein, Appellant’s first two issues relate to his Gagnon I hearing, and his
second two issues relate to his Gagnon II hearing.
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We address Appellant’s first two issues together. Appellant argues at
his first issue that he was denied his right to confront witnesses against him,
as the Commonwealth did not present at his Gagnon I hearing the officers
who initially reported his prison misconduct. At his second issue, Appellant
argues that the evidence of his prison misconduct presented by Officer
Breighner, which he labels hearsay, was insufficient to establish probable
cause that he violated the terms of his probation.
The Commonwealth initially objects to the discussion of Appellant’s
Gagnon I hearing, as the transcript is not included in the certified record.
Even if this Court is not precluded from considering Appellant’s substantive
arguments, the Commonwealth argues that any error occurring at
Appellant’s Gagnon I hearing was cured by his Gagnon II hearing. We
agree with the Commonwealth that any potential defects that occurred in
Appellant’s first hearing were remedied by the Gagnon II hearing. See
Commonwealth v. Perry, 385 A.2d 518 (Pa.Super. 1978). Accordingly,
Appellant is entitled to no relief on his first or second issue, and we thus
address his third and fourth claims, which call for us to examine his Gagnon
II hearing.
At his third issue, Appellant argues that he was denied his due process
right to confront witnesses against him as the Commonwealth did not
present the officers who initially reported his most severe prison misconduct.
The reports, which were introduced by Captain Crawfoot and Officer
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Bashore, were therefore hearsay and should not have been admissible
against Appellant.
The Commonwealth responds by arguing that “[t]he issue before the
trial court at [Appellant’s] Gagnon II hearing was whether [Appellant]
committed prison violations, not whether the prison correctly adjudicated
[Appellant] guilty of the prison misconducts.” Commonwealth brief at 28.
Because Appellant was only entitled to – and did – confront the
Commonwealth’s two witnesses, his confrontation rights were not impeded.
Accordingly, the Commonwealth maintains that no relief is due. We agree
with the Commonwealth.
This Court has consistently recognized that among the rights afforded
to a defendant at a probation or parole revocation hearing is “the right to
confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).”
Commonwealth v. Colon, 102 A.3d 1033, 1040 (Pa.Super. 2014)
(citations omitted). Citing this rule, Appellant bases his arguments on a
mistaken belief that he is entitled to cross-examine the reporting officers at
his Gagnon I and II hearings.
At Appellant’s Gagnon II hearing, the Commonwealth was required to
show, by a preponderance of the evidence, that Appellant violated the terms
of his probation. The Commonwealth alleged that Appellant violated the
following condition: “3(h). You must obey all prison and house arrest rules,
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including those imposed while participating in the work release program.”
Preliminary Notice of Violation and Rights, 5/27/14.
The fact that Appellant violated prison rules was adjudicated in an
administrative proceeding in accordance with prison policy. Thus, at the
Gagnon II hearing, the Commonwealth only needed to present sufficient
evidence to show that Appellant did not obey all prison rules, which it did by
offering the testimonies of several officers. It did not have to relitigate
whether Appellant committed any of the specific acts for which he was cited.
Stated differently, the Commonwealth was required to prove that Appellant
was adjudicated as violating prison rules; it was not required to prove for a
second time that Appellant committed the specific underlying acts. The
latter had already been accomplished in his prior administrative hearing.
Appellant, therefore, was entitled to confront the witnesses who testified
against him for the proposition that he disobeyed prison rules and not those
who would have testified about the acts that constituted disobedience.
Appellant does not dispute that, at that Gagnon II hearing, he was
given the opportunity to confront Captain Crawfoot and Officer Bashore.
Based on their testimony, the trial court found by a preponderance of the
evidence that Appellant violated the conditions governing the terms of his
probation by failing to obey prison rules. Accordingly, the trial court did not
deny Appellant his right to confrontation and did not err in denying
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Appellant’s petition for habeas corpus. We therefore affirm the trial court
with regard to Appellant’s third issue.
At his fourth issue, Appellant argues that the Commonwealth’s
evidence at his Gagnon II hearing was insufficient to satisfy its burden
because the reports that were presented “consisted primarily of double
hearsay statements” with little indicia of reliability. Appellant’s brief at 31.
He further alleges that double hearsay statements, such as those contained
in the reports, are inadmissible against Appellant. Id.
The Commonwealth argues that the testimonies of Captain Crawfoot
and Officer Bashore provided the court with sufficient evidence to hold that
Appellant violated the terms of his probation, as Captain Crawfoot himself
found at Appellant’s administrative hearing that Appellant violated prison
rules and Office Bashore witnessed Appellant’s third violation. Again, we
concur with the Commonwealth.
At a probation-revocation hearing, the Commonwealth’s burden is to
prove a violation of probation by a preponderance of the evidence.
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007). On
review of a claim that the evidence was insufficient to support a revocation,
our standard is whether, viewing all the evidence and reasonable inferences
in the light most favorable to the Commonwealth, the revocation court could
have found by a preponderance of the evidence that the violation was
proven. Id. We do not weigh the evidence or make credibility
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determinations because such determinations were for the revocation court.
Id.
At Appellant’s Gagnon II hearing, the Commonwealth presented the
testimony of two additional officers. As the credited testimony was properly
admitted and as Appellant declined to engage in any meaningful cross-
examination of those witnesses, we cannot find that the trial court
improperly revoked his probation based on the testimony of Captain
Crawfoot and Officer Bashore. Specifically, Appellant committed misconduct
by engaging in a fight in contradiction of prison rules. The trial court was
presented with sufficient evidence at the Gagnon II hearing to find that, by
a preponderance of the evidence, Appellant did, in fact, violate his probation.
Accordingly, we affirm the trial court on Appellant’s fourth issue.
Appellant’s final issue on appeal raises a claim involving the
discretionary aspects of sentencing. As Appellant has filed a timely notice of
appeal, preserved his challenge through post-trial motion, and offered a
Pa.R.A.P. 2119(f) statement, we must examine whether Appellant’s claim
presents a substantial question that the sentence imposed was inappropriate
under the Sentencing Code or was contrary to the fundamental norms that
underlie the sentencing process. See 42 Pa.C.S. § 9781(b);
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).
In his Pa.R.A.P. 2119(f) statement, Appellant asserts that his sentence
is excessive “due to the Court’s sole reliance on double hearsay testimony
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regarding an alleged ‘physical altercation’ in prison[.]” Appellant’s brief at
13. He avers further noncompliance with fundamental norms in the trial
court’s failure to consider whether local rehabilitative efforts had been
effective. The Commonwealth responds by arguing that Appellant has not
raised a substantial question and that, even if he had, his claim would be
meritless. We agree with the Commonwealth that Appellant is not entitled
to relief.
In an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed. Commonwealth v.
Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). Further, “[t]he
imposition of sentence following the revocation of probation is vested within
the sound discretion of the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal.” Commonwealth v. Simmons,
56 A.3d 1280, 1283-84 (Pa.Super. 2012).
We begin by noting that “a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing factor does not
raise a substantial question.” Commonwealth v. Caldwell, 117 A.3d 763,
769 (2015) (emphasis in original). Accordingly, Appellant’s argument that
the sentencing court failed to consider all relevant factors is meritless.
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Appellant also claims that the sentence is excessive because of the
“Court’s sole reliance on double hearsay,” which should not have been
admitted against him. In Commonwealth v. Rhodes, 990 A.2d 732
(Pa.Super. 2009), this Court found that an appellant presented a substantial
question because he alleged that the trial court, inter alia, relied upon
unsubstantiated hearsay in the imposition of sentence. Noting that the
statements at issue in this matter are far from unsubstantiated and that the
appellant in Rhodes also alleged that the sentencing court relied on a host
of other impermissible factors in issuing its sentence, we find that Appellant
arguably raises a substantial question. Nonetheless, he is entitled to no
relief.
Appellant has offered no substantive or legally tenable argument that
the sentencing court abused its discretion in this matter. Indeed, that court
had access to a lengthy pre-sentence investigation that detailed the 21-
year-old Appellant’s eight years of criminal activity and court appearances.
That activity included two felony offenses, multiple juvenile matters, multiple
physical offenses, and a guilty plea to a charge of making terroristic threats,
which included armed robbery and a drive-by shooting. Pre-sentence
investigation, 8/28/14, at 4. At sentencing, Appellant’s probation officer
noted that the physical altercation that resulted in one of his violations at
the prison “involved some significant violence and [Appellant] was definitely
a detriment to Adams County Prison.” N.T. Sentencing, 8/28/14, at 4. The
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Court went on to remark that on “three, four, five separate occasions,”
Appellant was afforded leniency from court officials. Herein, Appellant was
“given the opportunity though once again on [his] first conviction to serve
[his] time locally and [he] responded by having a complete disrespect for
prison officials and prison rules.” Id.
Appellant has presented no basis for us to find in his favor. The
sentencing court did not abuse its discretion in sentencing Appellant to serve
no less than two years nor more than five years in a state institution.
Accordingly, we affirm Appellant’s sentence.
Judgment of sentence affirmed.
Judge Wecht joins this memorandum.
Justice Fitzgerald notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2015
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