No. 588 October Term, 1976, Appeal From Judgment of Sentence imposed November 13, 1975 in the Court of Common Pleas, Criminal, County of Montgomery, Pennsylvania at No. 759, January Term, 1974.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins. Price, J., files a dissenting opinion.
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In this appeal appellant contends that in several instances he was not afforded due process in connection with the revocation of his probation. We conclude otherwise and affirm the lower court's order.
On November 26, 1974, following guilty pleas to the crimes of burglary, theft, receiving stolen property, possession of instruments of crime, and conspiracy, appellant was placed on probation for a total of nineteen years with the condition that he refrain from consuming alcohol during this period. In addition, appellant was committed to Haverford State Hospital until cured of alcoholism. Less than ten months later, on August 12, 1975, appellant was arrested in Delaware County and charged with rape and other offenses. As a result of this arrest, the Montgomery County Probation Office filed a notice of probation violation. Shortly thereafter, a preliminary hearing was held on the Delaware County charges and a prima facie case was established. Following a Gagnon II hearing on November 13, 1975, appellant's probation was revoked and he was sentenced to a prison term of five to fifteen years on the original charges
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of burglary, theft, and receiving stolen property. A consecutive term of imprisonment of two to four years was imposed on the criminal conspiracy charge. This appeal followed.
In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) the United States Supreme Court held that an alleged probation violator is entitled to certain due process safeguards before probation may be revoked. Included among these several protections are: (1) written notice of the claimed violations of probation: (2) disclosure to the probationer of the evidence against him; and, (3) the right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation). Id. at 786, 93 S.Ct. 1756. See also Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975). In the case at bar, appellant contends he was not afforded the above three due process safeguards.
Initially, appellant argues he is entitled to a new Gagnon II hearing because the record does not reflect his having received written notice of the alleged probation violations. See 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). It is important to note, however, that appellant does not contend he never in fact received written notice, but only that the record does not verify receipt.*fn1 In our opinion such a distinction is too fine. We hold that the dispositive consideration is whether notice was in fact received. In this connection, the Commonwealth
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has submitted as an appendix to its brief a letter from the Montgomery County Adult Probation-Parole Department to appellant charging him with violating probation, because (1) he was arrested and charged with rape and various other crimes arising from that criminal episode; and (2) he consumed alcoholic beverages. Moreover, appellant acknowledged receipt of this violation letter with his signature. Accordingly, we find that the requirement of written notice of the charges has been satisfied.
Appellant next contends he was denied due process of law by the Commonwealth's failure to disclose the evidence against him. This contention is equally without merit. At the Gagnon II hearing the Commonwealth presented the testimony of appellant's probation officer and that of the two police officers who investigated the alleged rape in Delaware County. Their testimony comprised the entire case against appellant, who was present when these witnesses testified and was given full opportunity to cross-examine. Apparently, appellant feels he was entitled to have the evidence against him disclosed in advance of the revocation hearing, but no authority is cited to support this proposition nor has our research disclosed any. To accept appellant's contention would give a greater right of discovery to an alleged probation violator than is currently accorded defendants in criminal prosecutions. See Pa.R.Crim.P., Rule 310. In short, we are of the view that this rule relating to disclosure is simply intended to assure that at the revocation hearing the probationer is confronted with all of the evidence upon which any decision to revoke could be based. Instantly, the decision to revoke was predicated upon the Commonwealth's evidence relative to the new charges and appellant's consumption of alcohol. Since appellant was provided with written notice of these alleged violations and was present when the evidence relating to the violations was adduced, he was not denied due process.
Appellant's final contention is that he was denied the right to confront and cross-examine adverse witnesses. This contention is grounded ...