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COMMONWEALTH PENNSYLVANIA v. JOSEPH MALLON (06/15/79)

decided: June 15, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MALLON, APPELLANT



Nos. 1563 & 1644 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, at No. 3029 July Term, 1975, at No. 4501 October Term, 1974, Criminal Division.

COUNSEL

Arthur J. King, Assistant Public Defender, Chief, Appeals Division, Norristown, for appellant.

Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Price, J., files a dissenting opinion.

Author: Spaeth

[ 267 Pa. Super. Page 166]

Appellant appeals a sentence of imprisonment he received pursuant to revocation of his probation on two separate offenses.

On February 27, 1975, appellant was sentenced by Judge Joseph STANZIANI to a period of three years probation for conspiring to deliver narcotics. On February 9, 1976, appellant was sentenced by President Judge Richard LOWE to five years probation for another narcotics offense. As a condition of probation, appellant spent some sixteen months as a resident-participant in a drug treatment program conducted by Abraxas Foundation, Inc., a non-profit organization.

On December 16, 1977, appellant was arrested and detained on a charge of receiving stolen property, as a result of which proceedings were begun to revoke his probation. On January 13, 1978, President Judge LOWE and Judge STANZIANI, sitting together, ruled that appellant had violated the terms of his probation because they found by a preponderance of the evidence: 1) that appellant had committed the crime of receiving stolen property; and 2) that appellant had committed technical violations of his probation, by failing to submit urine samples and monthly reports, failing to make restitution, and failing to report his arrest.

On April 12, 1978, after a pre-sentence investigation, President Judge LOWE sentenced appellant to a term of imprisonment of two and one-half to seven years. On April 14, 1978, Judge STANZIANI imposed an identical sentence, and ordered it to run concurrently.

Appellant first argues that there were insufficient grounds for revoking his probation.

[ 267 Pa. Super. Page 167]

Under the Sentencing Code a court may revoke its order of probation upon finding that the defendant has violated the terms of his probation. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1371, added Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1371(b). Upon revocation, the court has available to it the same sentencing alternatives as it had at the time of the initial sentencing. Id.

Clearly, here there were grounds for revoking appellant's probation. Appellant admitted at the revocation hearing that he violated technical conditions of his probation, and he concedes on appeal that such technical violations are a sufficient basis for revocation. 18 Pa.C.S. § 1371(b). See Commonwealth v. Holm, 233 Pa. Super. 281, ...


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