Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1971, Nos. 60 and 61, in case of Commonwealth of Pennsylvania v. Henry L. Alexander.
R. Barclay Surrick. Assistant Public Defender, for appellant.
John G. Siegle, Anna Iwachiw Vadino, and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Van der Voort, J. Cercone, J., joins.
[ 232 Pa. Super. Page 58]
The appellant, Henry L. Alexander, raises this appeal from the judgment of sentence in which his probationary status was revoked and he was sentenced to two consecutive terms of two and one-half to five years
[ 232 Pa. Super. Page 59]
on two counts of burglary. Appellant's probation violations were alleged to be his failure to report an arrest which occurred during his probation, and the arrest itself, which was allegedly based on probable cause.
Appellant contends that his rights to due process of law were violated when a jail sentence was imposed without appellant's first having been notified in writing of the charges which constituted the probation violation. We agree, and will reverse the judgment of sentence.
The facts are as follows: Appellant entered guilty pleas to two charges of burglary on December 6, 1971. After a pre-sentence investigation, appellant was sentenced to three years probation on each count, the probations to run consecutively. He was also ordered to pay $50.00 on each count, plus costs.
In January of 1974, appellant was arrested on charges of burglary, theft, and receiving stolen goods. On January 18, 1974, his parole agent discovered that appellant was incarcerated due to these charges and immediately lodged a detainer with the Delaware County Prison for probation violation. The agent visited appellant at the prison on January 26, 1974, and orally advised appellant that he had violated probation because of the arrest.*fn1
At the Probation Violation Hearing, the lower court refused to permit the agent to state whether he had provided appellant with written notice of the charges against him ...