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filed: August 3, 1979.


No. 1817 October Term, 1977, Appeal from the Order and Sentence in the Court of Common Pleas of the Montgomery County, Criminal Division No. 1774-76.


Calvin S. Drayer, Jr., Assistant Public Defender, Chief, Appeals Division, Norristown, for appellant.

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

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

Author: Price

[ 268 Pa. Super. Page 318]

The instant appeal is from the order of the court below revoking appellant's probation and sentencing him to a term of imprisonment of from six (6) to twelve (12) months on his prior conviction for disorderly conduct.*fn1 For the reasons stated herein, we affirm the order of the court below.

The facts giving rise to this appeal are as follows. On April 16, 1976, appellant assaulted Kathy Brown in Bridgeport, Montgomery County. He was charged with three offenses -- simple assault,*fn2 recklessly endangering another,*fn3

[ 268 Pa. Super. Page 319]

    and disorderly conduct. On May 25, 1976, appellant was diagnosed by a physician at the Norristown State Hospital as mentally ill, schizophrenic of the paranoid type with delusions that others were "harassing" him. On June 4, 1976, a hearing was held regarding appellant's capacity to stand trial. Found incompetent, he was committed to the Norristown Hospital for a period of ninety days. Appellant was subsequently adjudged competent, and on October 28, 1976, entered a plea of guilty to the charge of disorderly conduct; the other two charges were nolle prossed as part of the plea agreement. Appellant was sentenced to a one year probation period and ordered to submit to a full- time course of therapy at the Norristown Hospital. Appellant left the hospital after two or three days claiming, "I don't believe I needed treatment in the first place." (N.T. 21, Parole Revocation Hearing). Although this was violative of the terms of his probation, proceedings to revoke the probation were not instituted at that time.

The events giving rise to appellant's subsequent arrest occurred during May of 1977. On May 14, 1977, appellant, a resident of Norristown, was charged with harassment for throwing rocks at the Bridgeport residence of Kathy Brown and her parents. A few days earlier, he had threatened a Mr. William Mashintonio in a bar in Bridgeport. Mr. Mashintonio had testified against appellant in a separate and unrelated case involving an assault upon a police officer. On May 19, 1977, appellant was arrested and, after speaking with his probation officer, was released on May 20. Despite numerous warnings from the probation officer and the chief of police of Bridgeport not to return to that town, appellant returned on May 21, 1977. He stopped Alice Brown, the sister of Kathy Brown, and requested that the Brown family clear his record. He also requested to speak to Kathy Brown and allegedly threatened to kill her. Alice Brown left, under the pretense of summoning her sister, and contacted the police. In the interim, her brother and father arrived and became embroiled in a fist fight with appellant.

[ 268 Pa. Super. Page 320]

Appellant was arrested and charged with violating the terms of his October 28, 1976 probation. On May 24, 1977, a Gagnon I hearing was held, see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), during which probable cause regarding appellant's violation of probation was established. Also on May 24, 1977, by agreement, a Gagnon II hearing was held at which appellant was found to have violated his probation, and he was sentenced as mentioned previously.

Appellant appeals from the order revoking probation and the subsequent sentence and asserts the following errors: (1) the court violated appellant's due process rights when it did not sua sponte order a psychiatric examination to determine if appellant was competent to participate in the Gagnon II hearing; (2) appellant was mentally incompetent at the time he committed the acts that constituted a violation of his probation; and (3) the court below abused its discretion when it did not order a psychiatric examination prior to imposing sentence upon appellant. None of these contentions was advanced in the court below, and appellant's counsel never ...

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