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COMMONWEALTH v. SPINOZZI (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
SPINOZZI, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1972, No. 183, and Nos. 3437 and 3438 of 1972, in case of Commonwealth of Pennsylvania v. Richard J. Spinozzi.

COUNSEL

William J. Moran, III, for appellant.

Stewart J. Greenleaf and J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, submitted a brief for Commonwealth, appellee.

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

Author: Hoffman

[ 236 Pa. Super. Page 33]

Appellant contends that the cumulative effect of various errors allegedly committed during the course of his probation revocation hearing requires that the order revoking probation and imposing sentence be reversed and appellant discharged.*fn1 We disagree and will therefore affirm the judgment of sentence.

[ 236 Pa. Super. Page 34]

On May 2, 1974, appellant pleaded guilty to charges of burglary, larceny, and conspiracy, and was placed on eight years probation, conditioned on the payment of $1,125.00 restitution. On November 14, 1974, appellant was arrested and charged with the possession of heroin with intent to deliver. A preliminary hearing was held on November 22, 1974, and appellant was bound over for trial.

At the probation revocation hearing, held on December 27, 1974, the Commonwealth presented two witnesses. Randolph Bordeleau, a narcotics agent employed by the Pennsylvania Department of Justice, testified that on August 4, 1974, he was with appellant and Peggy Leming. He stated that Ms. Leming asked if he would like to purchase some heroin. He agreed and paid her $100 in cash, which she handed to appellant, who counted the money and placed it in his pocket. He then stated that minutes later he was solicited by appellant to purchase more heroin, and the identical scenario ensued: Ms. Leming took the heroin from her pocketbook and gave it to the agent; the agent paid Ms. Leming and she gave the money to appellant. The second Commonwealth witness was appellant's probation officer, who testified concerning restitution.

In assessing appellant's arguments, it is important to reiterate the purpose of a hearing on whether probation should be revoked: "The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of a probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent

[ 236 Pa. Super. Page 35]

    against future antisocial conduct." Commonwealth v. Kates, 452 Pa. 102, 114-115, 305 A.2d 701, 708 (1973). See also Commonwealth v. Davis, supra. It must be emphasized that a probation revocation hearing is not a trial: "The court's purpose is not to determine whether the probationer has committed a crime. . . . It follows that probation revocation hearings are flexible, and material not admissible at trial may be considered by the court. Morrissey v. Brewer, supra at 489. '[T]he degree of proof necessary for probation revocation is less than that required to sustain a criminal conviction.' United States v. D'Amato, 429 F. 2d 1284 (3d Cir. 1970). '[P]robation may be revoked on the basis of conduct which falls short of criminal conduct.' United States v. Chambers, 429 F. 2d 410 (3d Cir. 1970)." Commonwealth v. Davis, supra at 41, 336 A.2d at 621-622.

It should also be noted that appellant does not contend that the order revoking probation was based on insufficient evidence. See Commonwealth v. Newman, 225 Pa. Superior Ct. 327, 310 A.2d 380 (1973). The decision to revoke probation must be based on evidence of "probative value," and a mere arrest, without a conviction, is lacking in probative value. Thus, before a court may revoke probation, factual evidence, in addition to the fact of arrest, must be presented. Commonwealth v. Davis, ...


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