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COMMONWEALTH v. NEWMAN (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
NEWMAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, No. 1775, in case of Commonwealth of Pennsylvania v. William Newman.

COUNSEL

Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J. Concurring Opinion by Spaeth, J. Hoffman and Spaulding, JJ., join in this concurring opinion.

Author: Watkins

[ 225 Pa. Super. Page 328]

This is an appeal from the judgment of sentence following a revocation of probation hearing in the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, William Newman.

[ 225 Pa. Super. Page 329]

The appellant, William Newman, was arrested on August 13, 1969, and charged with the theft of a quantity of cigarettes. On September 23, 1970, he entered a plea of guilty to a charge of receiving stolen goods. The court below sentenced him to imprisonment for from one to three years. The sentence was immediately suspended and the appellant placed on probation for a period of three years.

On February 13, 1973, a violation of probation hearing was held. At its conclusion, the appellant's probation was revoked and he was sentenced to imprisonment for one to three years. This appeal followed.

In the opinion of the court below dated May 18, 1973, written by the sentencing judge, it was indicated that the appellant's probation was being revoked for two reasons: the first reason being, that it was shown at the hearing that the appellant had been arrested for aggravated robbery during the period of his probation; and the second reason was that the revocation was the result of technical violations, to wit: that the appellant failed to report to his probation officer under the terms of the original probation.

The appellant contends that the revocation was in error because at the hearing no evidence was presented to substantiate in any way the charge of aggravated robbery and because the charge was cited as one of the reasons for revocation.

The record reveals that the appellant's arrest on the charge was not supported at the revocation hearing by probative evidence to substantiate the charge. Although it is not necessary to apply the same strict rules of evidence at a revocation hearing as is necessary at trial nevertheless some probative evidence must be entered to substantiate the naked charge of aggravated robbery. ...


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