No. 111 March Term 1977, Appeal from Sentence of the Court of Common Pleas of Dauphin County, Criminal Division at No. 2403, 1973.
Frederic G. Antoun, Jr., Assistant Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The instant appeal arises from the revocation of appellant's probation. Appellant raises several arguments to bolster his contentions that the hearing court lacked the power to revoke his probation and impose a prison sentence and that the court, even if it had such power, abused it by relying extensively upon hearsay evidence proffered by appellant's probation officer. While we agree with the Commonwealth that the hearing court could validly revoke appellant's probation, we agree with appellant that the court erred in relying upon hearsay evidence in exercising its power in this case. Hence, we will reverse and remand for a new hearing.
On October 25, 1973 appellant and his wife were caught by the police inside a beer distributor's store after its closing. The door to the store had been pried open and the office had been ransacked prior to the arrival of the police. Since the day's business receipts had been removed before closing, no money was stolen. However, appellant forced entry into the building and his futile search for money caused approximately $198 worth of damage.
After making restitution to the proprietor of the business,*fn1 appellant eventually pleaded guilty to burglary. Thereafter, on April 3, 1975, the court imposed the following punishment:
"The sentence of the court is that the defendant pay a fine of $300, the cost of prosecution and that he be placed on a period of state probation under the supervision of the
[ 253 Pa. Super. Page 263]
Pennsylvania Board of Probation and Parole for a period of three years. One of the conditions of probation is that the fine and costs that have been imposed upon him be paid within ninety days from the date hereof."
With respect to appellant's argument that the court lacked the power to revoke his probation, the critical aspects of the foregoing order are its imposition of a "fine" plus the establishment of probation. The difficulty arises because of the construction the courts have given two complementary statutes empowering the courts to grant probation to persons convicted of crimes against the Commonwealth, both of which were in effect when appellant committed the burglary in 1973. The older of the two statutes is the Act of June 19, 1911, P.L. 1055, § 1, 19 P.S. § 1051 (1964). In pertinent part that act granted the courts the power to order probation and set terms and conditions which may include "the payment of money for the use of the county, not exceeding, however, the fine fixed by law for conviction of [an] offense, as it may deem right and proper . . . ." [Emphasis added.] Moreover, the act concludes: "No such condition for the payment of money shall be considered a fine or a sentence nor prevent the court from thereafter sentencing any defendant under the act under which he or she was convicted, upon violation of his or her parole." The power of the courts to set probation was expanded somewhat by the Act of August 6, 1941, P.L. 861, 61 P.S. § 331.25 (1964) which eliminated the probationary bar posed by some offenses in the 1911 Act,*fn2 but re-emphasized that probation may only be imposed "instead of imposing . . . sentence."
The problem in construction is that a fine is a sentence which, when imposed as such, the language of the Act of 1911 notwithstanding, precludes the further imposition of probation. Commonwealth v. Peterson, 172 Pa. Super. 341, 94 A.2d 582 (1953). Cf. Commonwealth v. Denson, 157 Pa. Super. 257, 40 A.2d 895 (1945); ...