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COMMONWEALTH v. DAVIS (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
DAVIS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, No. 2452, in case of Commonwealth of Pennsylvania v. Carl J. Davis.

COUNSEL

Elaine DeMasse and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

John Cooper, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Jacobs and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 234 Pa. Super. Page 35]

This is an appeal from revocation of probation and subsequent imposition of prison sentence. Appellant contends that the revocation was error because it was based solely on the fact that he was arrested during his probationary period. We have concluded that we must remand for a further hearing because the two-step revocation procedure required by Gagnon v. Scarpelli, 411 U.S. 778 (1973), Morrissey v. Brewer, 408 U.S. 471 (1972), and Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), was not followed.

On May 4, 1972, appellant pleaded guilty to burglary of a motor vehicle and carrying a concealed deadly weapon, and was placed on probation.*fn1 When he failed to comply with the rules of his probation in not reporting to his probation officer, the Probation Department, in May, 1973, placed him in a "non-reporting status." In the meantime, in February, appellant had joined the United States Army and had left the Commonwealth, which was

[ 234 Pa. Super. Page 36]

    also contrary to the rules of his probation. On October 16, 1973, after a hearing, appellant's probation was revoked and he was placed on a longer probation (a three year period followed by a one year period), and was warned that any further probation violations would result in imprisonment.

On January 24, 1974, appellant, while absent without leave from the Army, was arrested and charged with burglary, theft, and receiving stolen property. These charges arose from the theft of a television set from Our Lady of Sorrows Church at 48th Street and Wyalusing Avenue in Philadelphia. On March 7, 1974, the charges were dismissed because the pastor of the church declined to prosecute and the mother of the only eyewitness, a child, would not permit him to testify. There was no preliminary hearing.

On March 28, 1974, the violation of probation hearing presently at issue was held.*fn2 Appellant's probation was revoked, and he was sentenced to six months to five years imprisonment.

I

In approaching the problem presented by this case, it is important to bear in mind the purpose of an order placing a defendant on probation. This purpose has been described in the ABA Project on Standards for Criminal Justice, Standards Relating to Probation (Approved Draft, 1970), p. 1, as follows:

"The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned

[ 234 Pa. Super. Page 37]

    with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement. Banishment from society, in a word, is not the way to integrate someone into society. Yet imprisonment involves just such banishment -- albeit for a temporary sojourn in most cases."

In the ABA Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, ยง 2.3(c) (Approved Draft, 1968), it is said that a sentence not involving confinement is to be preferred to "[a] sentence involving partial or total confinement in the absence of affirmative reasons to the contrary."*fn3 See also National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Corrections, p. 311 et seq. (1973).

The rehabilitative purposes of an order of probation determine the nature of the hearing on whether the order should be revoked. Thus in Commonwealth v. Kates, 452 Pa. 102, ...


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