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COMMONWEALTH PENNSYLVANIA v. DAVID VASQUEZ (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID VASQUEZ, APPELLANT

No. 100 October Term, 1977, Appeal from judgment of sentence of the Court of Common Pleas of Lancaster County, Criminal Division, No. 311 of 1974.

COUNSEL

Menno B. Rohrer, Lancaster, for appellant.

Henry S. Kenderdine, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 255 Pa. Super. Page 547]

Appellant David Vasquez appeals a parole revocation order entered in the Court of Common Pleas of Lancaster County. We agree with appellant that his parole was revoked without benefit of a Gagnon II hearing. Therefore, we vacate the judgment of sentence and remand the case to the lower court for further proceedings consistent with this opinion.*fn1

On July 21, 1975, appellant was sentenced after he pleaded guilty to one count of resisting arrest and one count of violating the Controlled Substance, Drug, Device and Cosmetic Act. On the former charge, he was sentenced to a 23 month period of probation and to pay a $100.00 fine and costs of prosecution. On the latter charge, appellant was sentenced to a term of imprisonment of not less than time served and not more than 12 months. He was also sentenced to pay a fine of $200.00 and costs of prosecution. Payment of the fines and costs were to be made in weekly installments of $25.00 "when [appellant] returns to work." He was paroled the same day.

On July 16, 1976, appellant was charged with parole and probation violations for failure to make the weekly payments as directed. On August 20, 1976, following a brief hearing, appellant's parole was revoked and he was ordered recommitted to complete his prison term. The probation

[ 255 Pa. Super. Page 548]

    order was continued. This appeal from the parole revocation followed.*fn2

Before parole or probation may be revoked, a parolee or probationer is entitled to two hearings. 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); Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975). The purpose of the first, or Gagnon I, hearing is to determine whether at the time of his arrest and detention there is probable cause to believe that a parolee or probationer has violated a condition of the parole or probation order. The Gagnon II hearing is more comprehensive. At the Gagnon II hearing, a two-pronged decision is required: (1) whether the probationer or parolee violated a condition of probation or parole and (2) given such a violation, whether parole or probation should be revoked and the accused committed to prison or whether other steps should be taken to protect society and rehabilitate the accused. Commonwealth v. Davis, 234 Pa. Super. at 40, 336 A.2d at 621. The Gagnon II due process requirements include

"(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation of] parole."

Gagnon v. Scarpelli, 411 U.S. at 786, 93 S.Ct. at 1761, 36 L.Ed.2d at 664, citing Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. 2593.

[ 255 Pa. Super. Page 549]

At most, appellant herein received a Gagnon I hearing.*fn3 The hearing began at 10:28 A.M. and ended at 10:33 A.M. The first "witness,"*fn4 Mrs. Hoffman, was an employee of the County Treasurer's Office. She reviewed the court's initial sentence concerning costs and fines. She then stated that appellant had paid only $35.00 to the County and that he still owed approximately $1,300.00.*fn5 N.T. 2. Appellant then told the court that he had been paroled on March 21, 1976,*fn6 and that he had a job during April of that year. He lost that job, however, due to illness and had not yet found another job. N.T. 3.

Mrs. Hoffman and appellant were the only witnesses to "testify" at appellant's hearing. Although appellant was represented by counsel, counsel said nothing during the five minute hearing.*fn7 Most important, the court made no specific finding that appellant had violated a condition of

[ 255 Pa. Super. Page 550]

    his parole and that the violation warranted appellant's recommitment to prison rather than further rehabilitative procedures. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Pa.R.Crim.P. 1409.

The judgment of sentence revoking appellant's parole is vacated, and the case is remanded for a Gagnon II hearing at which appellant is to be afforded all the due process rights guaranteed by Gagnon v. Scarpelli and Morrissey v. Brewer.

SPAETH, Judge, concurring:

I concur, but note that until Commonwealth v. Stratton, 235 Pa. Super. 566, 344 A.2d 636 (1975) (JACOBS, J., filed a dissenting opinion in which WATKINS, P. J., joined), is overruled, issues based on defects in (or, as here, the non-existence of) a Gagnon II hearing are not waived by failing to object at the probation revocation hearing. It is therefore unnecessary here to reach appellant's argument on ineffectiveness of counsel.


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