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COMMONWEALTH PENNSYLVANIA v. JOSEPH BALL (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH BALL, APPELLANT



Appeal from Judgment of Sentence Imposed November 14, 1975, Court of Common Pleas, Criminal, County of Montgomery, at No. 952, CA Nos. 3361/3363 of July Term, 1973. No. 589 October Term, 1976.

COUNSEL

Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.

Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort and Spaeth, JJ., concur in the result.

Author: Cercone

[ 242 Pa. Super. Page 380]

This is an appeal from the lower court's order revoking appellant's probationary status and imposing several terms of imprisonment. Appellant argues that his probation revocation hearing was deficient because he was not afforded the due process safeguards mandated by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Specifically, appellant contends that due process was violated because he did not receive written notice of the alleged probation violations. In addition, appellant challenges the legality of the prison sentences imposed following the revocation hearing.

On January 8, 1974, and April 26, 1974, appellant pleaded guilty to several offenses and was sentenced to four years probation on a burglary charge, two years probation

[ 242 Pa. Super. Page 381]

    for theft of moveable property, and two years probation on a charge of receiving stolen property, all three sentences to run concurrently. While serving probation, however, appellant was arrested twice on new criminal charges: On June 17, 1974, for burglary, larceny, receiving stolen property, and conspiracy; and on June 19, 1974, for criminal attempt and conspiracy. On August 23, 1974, following a preliminary hearing on the new charges, but prior to trial, a probation revocation hearing*fn1 was conducted. This hearing was continued in part until September 3, 1974, at which time appellant's probation was revoked and he was sentenced to prison for two to four years on the burglary conviction. On the other two convictions, prison sentences of one to two years -- to run concurrently with the other sentence -- were imposed.

An appeal was then taken to this court and we vacated the judgment of sentence and remanded for further probation revocation proceedings because the lower court had not specifically found good cause for not allowing appellant to confront an adverse witness at the hearing. Commonwealth v. Ball, 235 Pa. Super. 581, 344 A.2d 675 (1975). Accordingly, the lower court conducted a second Gagnon II hearing on November 14, 1975. In the meantime, however, appellant pleaded guilty to the new criminal charges which had precipitated the probation revocation proceedings, i. e., the arrests of June 17 and 19 of 1974. At the conclusion of appellant's second Gagnon II hearing, the lower court revoked probation and appellant was again sentenced to not less than two nor more than four years imprisonment on the burglary charge. Likewise a concurrent sentence of one to two years imprisonment was imposed on the charge of receiving stolen property. On the charge of theft of moveable property, however, appellant received a prison sentence of one to two

[ 242 Pa. Super. Page 382]

    years consecutive with the sentence imposed on the burglary charge. This appeal followed.

We turn first to appellant's contention that his probation was improperly revoked because he did not receive written notice of his alleged probation violations. In Morrissey v. Brewer, supra, 408 U.S. at 488-89, 92 S.Ct. at 2604, the Supreme Court held that minimum due process requires that an alleged parole violator be provided, inter alia, "written notice of the claimed violations of parole." These same due process requirements, including the right to receive written notice of the alleged violations, were subsequently extended to probation revocation proceedings. Gagon v. Scarpelli, supra. Moreover, in a series of cases this court has held that defendants are not only entitled to written notice of alleged violations, but that this issue of notice will not be deemed waived even though the defendant does not object to the lack of written notice at the probation revocation hearing. Commonwealth v. Kile, 237 Pa. Super. 72, 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa. Super. 566, 344 A.2d 636 (1975); Commonwealth v. Henderson, 234 Pa. Super. 498, 340 A.2d 483 (1975); Commonwealth v. Alexander, 232 Pa. Super. 57, 331 A.2d 836 (1975).

In the case at bar we agree with appellant that the record does not presently contain the written notices of the alleged violations. The record does reflect, however, that appellant was well aware of the charges against him and in no wise hampered in his preparation for the second Gagnon II hearing. Indeed, our examination of the record discloses several reasons why appellant's argument regarding lack of notice is frivolous.

Initially, it appears from the record that appellant was provided with notice of the alleged violations prior to his first Gagnon II hearing, but that notice was not again given before ...


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