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COMMONWEALTH PENNSYLVANIA v. RUSSELL SPENCE (12/28/77)

decided: December 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL SPENCE, MICHAEL DOHERTY, LUTHER HARPER, APPELLANTS



Appeals from the Orders revoking Probation and Sentences in the Court Common Pleas of Allegheny County, Criminal Division, at Nos. CC7403614A; 7402062A April Term, 1974; and CC7406583A December Term, 1974.

COUNSEL

John J. Dean, John R. Cook, and John H. Corbett, Jr., Assistant Public Defenders, Pittsburgh, for appellants.

Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman and Cercone, JJ., join.

Author: Price

[ 252 Pa. Super. Page 343]

On October 29, 1974, Appellant Russell Spence (Appeal No. 551 April Term, 1976) was sentenced to eight to twenty-three months imprisonment for burglary and possession of instruments of crime. He was paroled on May 29, 1975. While on parole, appellant was convicted of assault and retail theft in Washington County and receiving stolen credit cards in Allegheny County. After a Gagnon II hearing held on February 2, 1976, parole was revoked and appellant was sentenced to serve the time remaining on the burglary conviction.

Appellant Michael Doherty (Appeal No. 546 April Term, 1976) was convicted, in June of 1974, of obtaining drugs with a forged prescription, possession of a controlled substance and criminal conspiracy. He was sentenced to a two year term of probation. During the probationary period, appellant was convicted of possession of a controlled substance and disorderly conduct. A hearing was held, probation was revoked, and appellant was sentenced to a term of imprisonment of eight to sixteen months.

In February of 1975, appellant Luther Harper (Appeal No. 547 April Term, 1976) was sentenced to two years probation for theft and criminal trespass. Once again, based on an intervening criminal conviction, probation was revoked after a hearing. Appellant was sentenced to serve six to twelve months in prison.

[ 252 Pa. Super. Page 344]

These three cases were consolidated for appeal because they present the same issue. In each case appellant contends that he did not receive written notice of the alleged violations prior to the revocation hearing. It is well established that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) requires, inter alia, that written notice of the alleged probation or parole violation be furnished to the defendant prior to the revocation hearing. 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 (1974).

The Commonwealth first contends that this issue was waived because it was not raised before the lower court. Under the current state of the law, the Commonwealth's contention is without merit. We have repeatedly held that the right to written notice of alleged violations is not waived by the failure to raise the issue at the revocation hearing. Commonwealth v. Stratton, supra; Commonwealth v. Henderson, supra; Commonwealth v. Alexander, supra.

The Commonwealth also contends that written notice was given and has attached copies of the three notices, as Appendices A, B, & C, to its brief. Appellants would argue that we may not review this contention because we would be considering matters outside the record.

It is true that an appellate court may not decide an issue based on facts not presented on the record. See Wood v. Tucker, 231 Pa. Super. 461, 332 A.2d 191 (1974); Commonwealth ex rel. Oncay v. Oncay, 153 Pa. Super. 569, 34 A.2d 839 (1943). Thus, in the instant cases, we have no power to find as a ...


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