Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1972, No. 843, in case of Commonwealth of Pennsylvania v. Nathaniel Stratton.
Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Watkins, P.j., joins in this dissenting opinion. Dissenting Opinion by Van der Voort, J.
[ 235 Pa. Super. Page 568]
This appeal is taken from an order revoking probation and imposing sentence. Appellant contends that the probation revocation hearing violated due process because he did not receive written notice of his alleged probation violations as required by Gagnon v. Scarpelli, 411 U.S. 778 (1973), and Morrissey v. Brewer, 408 U.S. 471 (1972).
On April 11, 1973, appellant entered a guilty plea in Montgomery County, to charges of forgery and fraudulent pretenses for which he received five years' probation. Just thirteen days after his release, he was arrested for assault and battery on a Philadelphia policeman. Appellant entered a guilty plea to this charge on October 25, 1973, and was placed on six months' probation. Because appellant failed to report to state probation officials after his release, state authorities were unable to locate him until March 7, 1974, when they were informed that the appellant was at the federal probation office in Philadelphia.*fn1 Soon after appellant was arrested by Philadelphia detectives for offenses predating his April 11, 1973 probation and was taken to the Philadelphia Detention Center. Montgomery County officials lodged a detainer against him as an alleged probation violator. At his probation revocation hearing on August 5, 1974, appellant's April 11, 1973 probation was revoked and a sentence of two and one-half to five years was imposed.
[ 235 Pa. Super. Page 569]
In Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975), this Court thoroughly discussed the due process requirements of a probation revocation hearing as mandated by Morrissey and Gagnon. It was noted that a defendant is entitled to receive two hearings: "'one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his probation (the Gagnon I hearing) and the other a somewhat more comprehensive hearing prior to the making of a final revocation decision.' (the Gagnon II hearing) Gagnon v. Scarpelli, supra, at 781-82." Commonwealth v. Davis, supra, at 39, 336 A.2d at 620. The necessity of the "preliminary" or Gagnon I hearing is obviated, however, if the defendant is convicted in the Court of Common Pleas before the probation revocation hearing is held, as "[t]he purpose of that hearing -- to show probable cause whether probation has been violated -- will have been served by the trial." Commonwealth v. Davis, supra, at 43, 336 A.2d 622. Because appellant was convicted of the assault and battery charge before the probation revocation hearing, the function of the Gagnon I hearing is served by this conviction.
In addition, however, Gagnon requires, inter alia, that written notice of the alleged probation violations be furnished to the defendant as part of the Gagnon II hearing. There is no evidence in the record to show that the appellant received written notice. The probation revocation hearing, therefore, did not satisfy the requirements of due process. See also Commonwealth v. Alexander, 232 Pa. Superior Ct. 57, 331 A.2d 836 (1974), and Commonwealth v. Henderson, 234 Pa. Superior Ct. 498, 340 A.2d 483 (1975). Further, both Alexander and Henderson held that a defendant does not waive this issue by failing to object at the probation revocation hearing.
The judgment of sentence is reversed and the case remanded with instructions to hold a new probation revocation hearing consistent with this opinion.
Judgment of sentence reversed and ...