Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1973, No. 625, in case of Commonwealth of Pennsylvania v. William Wayne Kile.
Calvin S. Drayer, Jr., Assistant Public Defender, 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, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Cercone, J. Jacobs and Van der Voort, JJ., join in this dissenting opinion.
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Appellant contends, inter alia, that his parole was improperly revoked because he did not receive written notice of his alleged parole violations. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that written notice of the claimed violations of parole is one of the minimum due process safeguards which must be afforded to a claimed parole violator. See also Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). Although this issue was not raised in the court below, we are not precluded from addressing the merits of appellant's contention: "The probation revocation hearing . . . was not intended as the forum in which the strictures of the rules of evidence are to be tested, but rather as the forum in which the probative value of evidence produced warrants the continuation of probationary status, or the revocation thereof. Whereas we agree that raising the issue at this early stage would facilitate the legal process, it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so." Commonwealth v. Alexander, 232 Pa. Superior Ct. 57, 62, 331 A.2d 836, 838-839 (1974).
It should also be noted that appellant did not receive the two hearings required by Gagnon v. Scarpelli, 411 U.S. 778
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(1973), and Morrissey v. Brewer, supra. The one hearing appellant did receive did constitute a Gagnon I hearing, in that probable cause to believe that a violation of parole had occurred was shown, but the case should be remanded for a Gagnon II hearing to determine whether parole should be revoked. See Commonwealth v. Henderson, 234 Pa. Superior Ct. 498, 340 A.2d 483 (1975); Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975).
Judgment of sentence is reversed, and the case remanded to the lower court for further proceedings consistent with this opinion.
Judgment of sentence reversed and ...