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. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 50]
On January 7, 1976, after a " Gagnon II" hearing, the lower court revoked appellant's parole and probation. On this appeal appellant offers two arguments in support of his claim that he is entitled to a new hearing: first, that there was testimony about violations that were not specified in the written notice given him; and second, that the record does not show that he was given a " Gagnon I" hearing or its equivalent.
Appellant's first argument is insubstantial. It is clear from the lower court's opinion that it found appellant in violation of the terms of his parole and probation only on the basis of the violations alleged in the written notice,
[ 254 Pa. Super. Page 51]
namely, arrests on three counts of sale of narcotics. The court stated:
At the conclusion of the hearing, the undersigned judge found, by the preponderance of the evidence, that defendant had violated his parole and probations by participating in three illicit sales of heroin.
Lower Court Opinion at 3.
Under these circumstances, as in Commonwealth v. Parker, 250 Pa. Super. 346, 378 A.2d 970 (1977), the fact that there was testimony about certain "technical" violations not specified in the written notice does not affect the validity of the hearing.
Appellant's second argument is more substantial; it may be stated as follows. One of the minimum due process requirements of parole or probation revocation is a preliminary hearing to determine whether there is probable cause to believe that the parolee or probationer has committed a violation. 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). When the alleged violation is the commission of a crime, this requirement may be satisfied by a preliminary hearing at which the prosecutor has proved a prima facie case. Commonwealth v. Davis, 234 Pa. Super. 31, 43, 336 A.2d 616, 622-23 (1975). Here, however, the record contains nothing to show that such a preliminary hearing was held.
In considering this argument, one should first note that appellant does not allege that he never had a preliminary hearing, but only that the record contains nothing to show that he had. It seems very likely that in fact appellant did have a preliminary hearing, for it appears that he was brought to the Gagnon II hearing from the place where he was being detained on the criminal charges. Even if we look at the record as strictly as appellant argues we must, however, appellant's argument fails. The reason the record contains nothing to show that ...