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COMMONWEALTH v. KATES (05/08/73)

decided: May 8, 1973.

COMMONWEALTH
v.
KATES, APPELLANT. COMMONWEALTH V. MCCLELLAN, APPELLANT. ALLEN, PETITIONER, V. REED



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1969, Nos. 213 and 214, in case of Commonwealth of Pennsylvania v. Daisey Kates.

COUNSEL

John W. Packel, Assistant Defender, with him Francis S. Wright, Assistant Defender, and Vincent J. Ziccardi, Defender, for petitioner and appellants.

Judith Dean, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for respondent.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Concurring and Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.

Author: Nix

[ 452 Pa. Page 104]

The principal issue presented in this consolidated appeal is whether a probation violation hearing may

[ 452 Pa. Page 105]

    be held prior to the trial for criminal charges which are based on the same activities which gave rise to the alleged probation violation. In each of these cases the hearing judge held, or attempted to hold, the violation of probation hearing prior to the probationer's trial on the substantive offense. Commonwealth v. Kates and Commonwealth v. McClellan are appeals from probation revocations and judgments of sentence imposed; Allen v. Reed is a petition for writ of prohibition which seeks to prevent a revocation hearing on James Allen's alleged probation violation from being held prior to his trial on the substantive criminal charge. A separate factual summary for each of the appeals follows.

Commonwealth v. Kates

In October of 1969, the appellant, Daisey Kates, was tried, in a non-jury trial, on charges of wantonly pointing a firearm and aggravated assault and battery. Following an adjudication of guilt, she was placed on three years probation on the charge of aggravated assault and battery, and sentence was suspended on the charge of wantonly pointing a firearm. In June of 1970, Miss Kates was again arrested, this time for homicide, and on July 16, 1970, a revocation of probation hearing was conducted. Primarily on the basis of an incriminating statement attributed to the appellant, the hearing judge found that she had shot and killed Frank Jordan. Her three year probation was revoked and she was sentenced to three years in the State Correctional Institution at Muncy, which was subsequently reduced to twenty-three and one-half months. Appellant did not testify at this hearing.

After imposition of this sentence, post-trial motions on the aggravated assault and battery charge were allowed to be filed nunc pro tunc. Following argument, these motions were denied and an appeal was filed in

[ 452 Pa. Page 106]

Superior Court. This appeal was certified to us to be heard with the two companion cases which raised the issue of the propriety of holding the violation hearing prior to the trial.

Subsequent to the revocation of probation, a motion to suppress the statement made by appellant was granted. No appeal was taken from that ruling and appellant was eventually found not guilty of the slaying of Frank Jordan.

Commonwealth v. McClellan

Cleo McClellan entered a plea of guilty to the charge of burglary and on November 18, 1969, was placed on eight years probation. On December 1, 1969, appellant was arrested and charged with assault with intent to ravish. On April 8, 1970, prior to trial on the new offense, a violation of probation hearing was conducted*fn1 and the hearing judge revoked probation and sentenced appellant to a term of three to ten years. At the hearing, a police officer testified that he saw the appellant struggling with a young lady, pulling her in one direction while she was pulling away from him, and that as soon as the police car approached the girl came over to it and appellant quickly walked away. Appellant was advised by counsel not to testify at the hearing since his testimony there might prejudice him at his subsequent trial on the criminal charges.

Following the revocation of his probation, appellant was tried on the criminal charges, which were the basis for the probation revocation. He was found

[ 452 Pa. Page 107]

    guilty of assault and battery, and not guilty of assault with intent to ravish.

An appeal was taken from the sentence imposed at the revocation hearing. The Superior Court affirmed the judgment of sentence. This appeal followed.

Allen v. Reed

On May 7, 1971, James Allen entered a plea of guilty to charges of riot and conspiracy and was sentenced to concurrent probationary terms of five and two years. On May 23, 1971, police stopped an automobile in which the appellant was a passenger and found in it a single packet of narcotics. Allen was then arrested and charged with possession and use of narcotics. Appellant's request that the revocation hearing be continued until after the trial that would determine whether appellant was in fact guilty of possession of narcotics was denied.

On July 12, 1971, the day scheduled for the probation violation hearing, counsel for appellant filed a petition for writ of prohibition with this Court and the hearing judge agreed to postpone his violation hearing until after our decision on the writ.

I. Applicable Statutory Authority

As noted, the issue shared by each of these appeals concerns the propriety of holding probation violation hearings where the alleged violation consists of activities which also constitute the basis for criminal charges before the trial for these subsequent offenses has been held. No question has been raised concerning the power of the court in the first instance to impose the order of probation and the parties also agree that the court does have the power to revoke a probation and impose a prison sentence when there has been a violation

[ 452 Pa. Page 108]

    of the probation. The dispute arises as to when the hearing to determine whether there has been a violation may be held and the nature of that hearing necessary to comply with due process. To resolve the complex issues presented we must look first to the statutory law of this Commonwealth on the subject.

The trial judges of this state have been granted the right to suspend the imposition of sentence and place an individual on probation under three statutory provisions. The most recent provision is the Act of August 6, 1941, P. L. 861, § 25, 61 P.S. § 331.25, which provides: "Whenever any person shall be found guilty of any criminal offense by verdict of a jury, plea, or otherwise, except murder in the first degree, in any court of this Commonwealth, the court shall have the power, in its discretion, if it believes the character of the person and the circumstances of the case to be such that he is not likely again to engage in a course of criminal conduct and that the public good does not demand or require the imposition of a sentence to imprisonment, instead of imposing such sentence, to place the person on probation for such definite period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law for the offense for which such sentence might be imposed." The earlier acts were the Act of June 19, 1911, P. L. 1055, § 1, as amended, 19 P.S. § 1051, and the Act of May 10, 1909, P. L. 495, § 1, 19 P.S. § 1081. Since this section of the latter act contains the identical language of the former we will refer only to the later of the two acts.*fn2 Section 1 of the Act of 1911 provides: "Whenever any person shall be convicted in any court of this Commonwealth of any

[ 452 Pa. Page 109]

    crime, except murder, administering poison, kidnapping, incest, sodomy, buggery, rape, assault and battery with intent to ravish, arson, robbery, or burglary, and it does not appear to the said court that the defendant has ever before been imprisoned for crime, either in this State or elsewhere (but detention in an institution for juvenile delinquents shall not be considered imprisonment), and where the said court believes that the character of the defendant and the circumstances of the case such that he or she is not likely again to engage in an offensive course of conduct, and that the public good does not demand or require that the defendant should suffer the penalty imposed by law, the said court shall have power to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and conditions, including the payment of money for the use of the county, not exceeding, however, the fine fixed by law for conviction of such offense, as it may deem right and proper; said terms and conditions to be duly entered of record as a part of the judgment of the court in such case. No such condition for the payment of money shall be considered as the imposition of a fine or a sentence nor prevent the court from thereafter sentencing any defendant under the act under which he or she was convicted, upon violation of his or her parole."

Unlike the relationship between the Act of 1909 and the Act of 1911, section 1 of the Act of 1911 and section 25 of the Act of 1941 differ in several significant respects. Section 1 restricts the imposition of probation to one who has been convicted of crimes other than murder, administering poison, kidnapping, incest, sodomy, buggery, rape, assault and battery with the intent to ravish, arson, robbery or burglary. Section 25 only excludes one convicted of murder in the first

[ 452 Pa. Page 110]

    degree from receiving the benefits of its provisions. The sections also differ in that section 1 allows probation only to one who has never before been imprisoned for crime and section 25 contains no such restriction.

In construing statutes and defining legislative intention it is axiomatic that the legislature does not intend a result that is absurd, contradictory or unreasonable. Act of May 28, 1937, P. L. 1019, art. IV, § 52(1), 46 P.S. § 552(1). See Millersville Annexation Case, 447 Pa. 310, 290 A.2d 102 (1972); Commonwealth v. Public Constructors, Inc., 432 Pa. 589, 248 A.2d 29 (1968). We believe these sections are not at variance. The Act of 1941 was concerned with the establishment of the Pennsylvania Board of Parole. Section 25 allowed our courts to specially order probations to be under the supervision of the board.*fn3 The reason for section 25 allowing probation to the more serious offender was the legislative confidence in the supervision that would be exercised by the ...


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