decided: February 18, 1977.
COMMONWEALTH OF PENNSYLVANIA
CHARLES GAMBLE, APPELLANT
Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Crim. No. 1025 Jan. Term, 1973 and 680 April Term, 1973. No. 889 October Term 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
J. David Bean and Stewart J. Greenleaf, Assistant District Attorneys, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., dissents on the basis of Commonwealth v. Kile,
Author: Per Curiam
[ 246 Pa. Super. Page 223]
Appellant claims that he was denied due process in probation revocation proceedings because he was not given written notice of the alleged probation violations. See Commonwealth v. Stratton, 235 Pa. Super. 566, 344 A.2d 636 (1975).
The Commonwealth argues that appellant waived this claim by his failure to object to the lack of notice at the time of the hearing. We have held that such failure does not constitute waiver. Commonwealth v. Stratton, supra; Commonwealth v. Henderson, 234 Pa. Super. 498, 340 A.2d 483 (1975); Commonwealth v. Alexander, 232 Pa. Super. 57, 331 A.2d 836 (1974). The Commonwealth also argues that appellant was not prejudiced by the lack of written notice because he heard all of the charges against him at his Gagnon I hearing, which was held "just minutes before the Gagnon II hearing commenced."*fn1 We held in Commonwealth v. Stratton, supra, that lack of written notice vitiates a Gagnon II hearing even when a defendant has been afforded a separate and
[ 246 Pa. Super. Page 224]
correct Gagnon I hearing. The defendant in Stratton received better notice of the charges against him than did appellant in the present case.
The judgment of sentence is reversed and the case remanded with instructions to hold a new probation revocation hearing consistent with this opinion.*fn2