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decided: December 2, 1977.


No. 334 OCTOBER TERM 1976, Judgment of Sentence Appeal from the of the Court of Common Pleas, Trial Division, Criminal Section of Phila. County, Revoking Probation, as of November Term 1972, No. 796.


Barnett S. Lotstein, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Spaeth

[ 251 Pa. Super. Page 250]

This is an appeal from the revocation of probation. Appellant contends that the revocation hearing violated due process because he was not given written notice of his alleged probation violations as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975).

On February 8, 1973, appellant pleaded guilty to aggravated robbery and received a sentence of eight years probation with the requirement that he participate in a drug rehabilitation program. Appellant entered the program but after awhile he ran away. On January 30, 1975, he was arrested on charges of simple assault, aggravated assault, and weapons offenses. On March 18, 1975, a probation revocation hearing was held. At appellant's request, the hearing was continued pending disposition of the new charges. Appellant was convicted of the new charges, and on September 29, 1975, the continued probation revocation hearing was held and probation was revoked.

This court has held that one requirement of due process is that the probationer be given written notice of the alleged probation violations before his revocation (Gagnon II) hearing. Commonwealth v. Davis, supra. Here, so far as the record discloses, appellant was not given such written notice, either before the first hearing on March 18, 1975, or before the continued hearing on September 29, 1975. In Commonwealth v. Stratton, 235 Pa. Super. 566, 344 A.2d 636 (1975), (JACOBS, J., filed a dissenting opinion in which WATKINS, P. J., joined), the appellant was granted a new probation revocation hearing because there was "no evidence in the record to show that the appellant received written notice." Id. 235 Pa. Super. at 569, 344 A.2d at 638. This court has also insisted upon written notice in Commonwealth v. Henderson, 234 Pa. Super. 498, 340 A.2d 483 (1975), and

[ 251 Pa. Super. Page 251]

    testimony whatsoever. The magistrate, while acknowledging the existence of the sworn oral testimony, admitted that his memory was dimmed . . ." . . . During a four month period a policeman normally makes numerous search warrant requests to a magistrate who must, in every case, make an independent review of the sworn facts . . . To expect officer and magistrate to recall with accuracy at some later time what transpired on each such occasion is to place an impossible burden on the individual officials and an onerous burden on the efficient administration of justice.

These observations are equally pertinent here. The Commonwealth argues that oral notice to appellant served the same function as written notice. Let us assume for the sake of argument that here it did. The point is that in other cases, which will present other facts, uncertainty will arise, with the result that the accuracy of our determination will be questionable. There will be disputes about what was said, who said it, when and where it was said, whether the probationer heard it -- the very sort of disputes that used to arise in the warrant cases. It is entirely unnecessary that this should be so. The Commonwealth need only abide by our rule that the record must contain written notice of the hearing. Commonwealth v. Ballard, 250 Pa. Super. 49, 378 A.2d 445 (1976). See Commonwealth v. Quinlan, 251 Pa. Super. 428, 380 A.2d 854 (dissenting opinion HOFFMAN, J. filed).

The judgment of sentence is reversed with instructions to conduct another probation hearing, after written notice to appellant of the alleged probation violations.

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