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COMMONWEALTH v. HOLM (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
HOLM, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1371 of 1971, in case of Commonwealth of Pennsylvania v. Peter Holm.

COUNSEL

Paul Laskow, Assistant Public Defender, for appellant.

Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Cercone, J. Van der Voort, J., did not participate in the consideration or decision of this case. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Cercone

[ 233 Pa. Super. Page 283]

This appeal arises from the lower court's sentencing the appellant, Peter Holm, to a term of six to twenty-three months, after a hearing at which Mr. Holm was found to have violated a condition of his probation. Appellant now contends that: (1) The court acted beyond its power in attaching conditions to appellant's probation; (2) The court must find that appellant's violation of a condition of his probation was willful; and that the evidence produced at the hearing was insufficient to establish a willful violation.

Peter Holm, although he has been domiciled in the United States since 1953, is a Danish national. Prior to December, 1971, Mr. Holm was self-employed as a travel agent providing the customary service of arranging tours for individuals or groups. His business was apparently floundering when he made the regrettable decision to turn escrow funds earmarked for a tour to his private use. When the time for expenditure of the monies for their intended purpose arrived, he was unable to replenish the fund. He subsequently was indicted for, and pleaded guilty to, the crime of cheating by fraudulent pretenses under the Penal Code.*fn1 After studying Mr. Holm's history, character, and circumstances the court determined that he should not be incarcerated provided that he agree to make restitution of the $6,400 he had "embezzled," and pay the costs of prosecution in the amount of $94.26. Mr. Holm agreed; and therefore, on December 14, 1971, the court ordered that Mr. Holm be placed on probation for three years, conditioned upon his making full restitution within two years, and his paying the costs within three months.

On March 19, 1973, the Commonwealth petitioned for an order revoking Holm's probation. The basis for the petition was Mr. Holm's failure to pay the costs of the

[ 233 Pa. Super. Page 284]

    prosecution, or make any payments toward restitution. Mr. Holm, who was then residing in Connecticut, resisted extradition so that the matter did not come to a hearing until July, 1974. After the hearing, the court revoked Mr. Holm's probation and imposed the aforementioned sentence.

I.

Appellant's first contention, that the court was without power to impose the conditions of payment of costs and restitution, is without merit. While it is true that the Act of August 6, 1941, P.L. 861, § 25, 61 P.S. § 331.25 (1964), which the court relied upon in establishing appellant's probation, does not expressly grant to the courts the power to impose such conditions,*fn2 such powers are granted elsewhere. Thus, the Acts of May 10, 1909,*fn3 and June 19, 1911,*fn4 both grant the courts of the Commonwealth the power to suspend sentence and place an individual on probation, attaching "such terms and conditions . . . as [they] may deem proper." Appellant ...


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