Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1972, No. 5178, in case of Commonwealth of Pennsylvania v. William "Bubba" Henderson.
Vincent C. Murovich, Jr., with him Murovich, Reale & Fossee, for appellant.
Geoffrey Paul Wozman, Assistant Attorney General, with him Israel Packel, Attorney General, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Van der Voort, J., concurs in the result. Watkins, P.j., and Jacobs, J., dissent.
[ 234 Pa. Super. Page 499]
Appellant contends that the revocation of his probation did not comport with the due process requirements set forth by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972).
A probation revocation hearing was held on July 3, 1974, to determine whether appellant had violated two conditions of his probation: appellant allegedly changed his address without receiving prior written permission of his probation agent and allegedly travelled outside the Commonwealth without written permission. The Commonwealth's
[ 234 Pa. Super. Page 500]
evidence was supplied by Leo Lubowy, Jr., a Commonwealth parole officer. Mr. Lubowy's testimony may be summarized as follows: On August 22, 1973, pursuant to a plea bargain, appellant pleaded guilty to possession of narcotics and to a violation of the Uniform Firearms Act. Sentence was suspended on the narcotics charge, but a probation term of two and one-half years was imposed on the firearms violation. On February 28, 1974, appellant requested permission to stay in Passaic, New Jersey, from March 2, 1974, until March 16, 1974. Permission was granted with the specific instruction that appellant notify his probation agent immediately upon his return. When appellant failed to do so, a search was begun.
Appellant's probation agent attempted to contact appellant at his approved residence on three occasions, but each time he observed that the apartment was vacant. The agent did not hear from appellant until his monthly report was received on May 10, 1974. This report listed appellant's residence at a new address in Elizabeth Township. The agent attempted to contact appellant at this address, but was unable to locate the residence. The Chief of Police of Elizabeth Township advised the agent that the address did not exist.
On June 11, 1974, a parole agent was informed by the Elizabeth, New Jersey police that appellant was in their custody. Appellant's probation agent was notified, and on June 12, 1974, he contacted the sentencing judge and a bench warrant was issued. Appellant waived extradition and was returned to Pennsylvania on June 26, 1974, where he was confined to the Allegheny County Jail.
Appellant presented evidence in an attempt to prove that his technical violations were justified. In regard to the charge of changing address without prior permission, appellant testified that he could no longer pay the rent on ...