No. 86 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Lehigh County at No. 1457 of 1974 dated September 7, 1976 revoking Appellant's parole, Criminal.
James T. Huber and Victor F. Cavacini, Assistant Public Defenders, Allentown, for appellant.
Thomas J. Calnan, Jr., First Assistant District Attorney, Allentown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 526]
This is an appeal from a revocation of parole and subsequent imposition of a prison sentence. On appeal appellant, Peter Rossetti, challenges the sufficiency of evidence. Specifically, appellant contends that the revocation of his parole was error in that the only evidence of his complicity, during the course of his parole, in a conspiracy to and attempt to commit burglary was by way of wrongfully admitted hearsay testimony identifying him as a co-conspirator and participant in a thwarted breaking and entering of an apartment.
The record reveals that the events leading up to appellant's arrest for this attempted theft occurred as follows. Prior to appellant's arrest by a third officer, two police officers had observed two men at the rear of an apartment building for approximately five minutes from a distance of about 40 yards. While the first suspect was on a second floor balcony prying at a door lock, the second suspect was on the ground scanning the surrounding area, and at the same time observing the progress of the man on the balcony. When the first suspect jumped to the ground, the two police officers rapidly approached the building, and ordered the two men to stop. While the first suspect stood fast in compliance with the officers' order, the second quickly fled. At this point, one of the officers immediately radioed a description of the fleeing suspect to dispatch units in the vicinity. Within five minutes of the radio dispatch a third officer in the vicinity of the crime apprehended the appellant
[ 255 Pa. Super. Page 527]
and brought him back to the scene of the attempted burglary. Appellant, in terms of his height, weight, hairstyle and dress, perfectly matched the detailed description given of the second suspect who had previously fled the scene. Moreover, when appellant was returned to the scene of the crime, the officers noticed that appellant was sweating and his heart was beating very quickly indicating that appellant had been running. When interrogated by the police, the first suspect identified appellant as the lookout who had fled a few moments earlier.
At the Gagnon II hearing, one of the two arresting officers testified, over the objection of appellant's counsel, that the first suspect had positively identified appellant as the second suspect who had served as a lookout during the attempted crime. It is this hearsay identification which appellant now contends was wrongfully admitted by the hearing judge, and, without which, the revocation of his parole would not have been warranted in view of the remaining evidence adduced at the hearing.
It is appellant's position that in order to comport with the minimum standards of procedural due process, as set out by the United States Supreme Court in Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the hearing judge, before admitting hearsay testimony, must make specific findings of good cause for not permitting the parolee to confront and cross-examine an out-of-court declarant whose statement is sought to be introduced as evidence. Since the hearing judge in the present case failed to make any such findings, appellant contends that such testimony cannot properly be considered in determining whether the evidence, in the aggregate, justifies the revocation of his parole.
Although a parole revocation hearing is not such a highly formal procedure that it must be conducted in strict accordance with the entire gamut of evidentiary and procedural rules employed in a criminal trial; Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Lipton, 238 Pa. Super. 124, 352 A.2d 521 (1975); Commonwealth v. Clark, 225 ...