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COMMONWEALTH PENNSYLVANIA v. EDWARD TOMCZAK (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD TOMCZAK, APPELLANT



No. 1712 October Term, 1976, Appeal from Judgment of Sentence Imposed May 10, 1976 in the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, at No. 1156 of December Term, 1971.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 252 Pa. Super. Page 116]

On April 7, 1972 appellant was convicted of burglary, larceny, and receiving stolen goods and was sentenced by Judge Curtis C. Carson, Jr. to five years probation. This is an appeal following revocation of that probation.

On February 20, 1976, appellant was arrested and charged with robbery, theft, receiving stolen property, and simple assault. While appellant was in custody in lieu of bail on

[ 252 Pa. Super. Page 117]

    these charges, a probation detainer by direction of Judge Carson was lodged against him. On March 16, 1976, appellant was tried on the above criminal charges in Municipal Court and found guilty of theft by unlawful taking. (The Commonwealth nol prossed the robbery charge and appellant was acquitted of the remaining charges.) Appellant's appeal de novo to Common Pleas Court on the theft conviction in Municipal Court also resulted in conviction; however, upon subsequent post-verdict motions, the Court granted a motion in arrest of judgment of the theft charge on the ground that the Commonwealth had proceeded under the wrong section of the Pennsylvania Crimes Code.

Subsequently, on April 6, 1976, appellant appeared at his scheduled violation of probation hearing before Judge Carson. At this time the Court was advised of the circumstances of appellant's conviction and dismissal, whereupon the Court continued the matter and ordered the Commonwealth to bring in the witnesses as to the February 20, 1976 incident for a full revocation hearing at a later date. A full revocation hearing was held on May 10, 1976 and, after the presentation of evidence, Judge Carson found appellant in violation of his probation and sentenced appellant to 18 months to five years at the State Correctional Institution at Graterford. This appeal followed.

Appellant does not question the sufficiency of evidence presented at his Gagnon II revocation hearing; instead, his sole contention is that the Commonwealth failed to give him a "preliminary" Gagnon I hearing as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Specifically, appellant opposes the Commonwealth's use of the municipal court trial as a substitute for a Gagnon I hearing. Appellant argues that since post-verdict motions following the trial de novo ultimately vitiated the municipal court conviction, the municipal court trial cannot serve as a substitute Gagnon I preliminary revocation hearing. We disagree. The principal difficulty with appellant's argument is that it misperceives the purpose of a Gagnon I hearing. Its purpose is not necessarily to determine whether

[ 252 Pa. Super. Page 118]

    there is probable cause to believe that the probationer committed a specific crime, but whether there is probable cause to believe that the probationer's conduct constituted a violation of his probation. In the instant case there is no dispute that appellant's conduct, which was twice established by the Commonwealth beyond a reasonable doubt, was both criminal and a violation of his probation. The Commonwealth's error occurred in charging the conduct under the wrong statute -- an error indisputably ...


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