No. 119 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 2492 November Term, 1975.
Leonard N. Sosnov, John W. Packel, Assistant Public Defenders, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ.
[ 270 Pa. Super. Page 408]
The instant appeal is before us from the decision of the Philadelphia County Court of Common Pleas revoking appellant's probation and sentencing him to a term of imprisonment of from two and one-half (2 1/2) to five (5) years. Appellant now urges that the revocation was improperly predicated on vague and inconclusive hearsay testimony presented at the hearing. We agree and consequently vacate and remand for a new hearing.
The salient facts are as follows. On January 29, 1976, appellant pleaded guilty to a charge of theft by unlawful taking or disposition (18 Pa.C.S. § 3921), and was sentenced to three years probation conditioned on his undergoing psychiatric evaluation and accepting any drug addiction therapy recommended by the Philadelphia County Probation Department. Upon appellant's February 3, 1977 conviction for simple assault in the Municipal Court of Philadelphia, he was determined to be in violation of his probation. Nonetheless, probation was continued with the proviso that appellant enter Coatesville Hospital and remain there until medically discharged. He was indeed subsequently discharged, but for disciplinary reasons, and hearings were again held to determine whether probation remained an efficacious form of rehabilitation. The court found in the affirmative, and once more continued probation on the condition that appellant re-enter Coatesville. Appellant was shortly thereafter removed from the hospital because of alleged violations of his treatment contract.
A third revocation of probation hearing, and the one instantly under scrutiny, was held on October 12, 1977. At
[ 270 Pa. Super. Page 409]
that time, Probation Officer Kevin Reynolds testified that he had telephoned Coatesville and,
"spoke with the staff . . . . It was learned that Mr. Maye had violated his treatment agreement and was forced to leave the hospital. This information was obtained through Dr. Taylor who was Mr. Maye's doctor at Coatesville and Tony Russio who is their legal advisor. At that time they informed me he had unauthorized absences twice and had violated the treatment contract. Any specifics as to the exact violation of the treatment contract would have required a Federal subpoena according to Mr. Russio.
Originally I contacted Dr. Taylor who was the assigned doctor for Mr. Maye. At that time he informed me that he was -- he had been uncooperative with treatment, and on two occasions had been granted passes and did not return within the allotted time. On both of them he was granted passes until that evening and returned either the following day or the day after. He said he was not cooperative with treatment." (N.T. 3-4, 13-14).
Officer Reynolds stated that he verified this information by a second call to Doctor Taylor, who confirmed the prior conversation and who further noted that appellant received a regular discharge. The officer admitted, however, that he was acquainted with neither Dr. Taylor nor Mr. Russio, and could not testify that the individuals he spoke with were indeed who they claimed. No staff members from Coatesville were called as witnesses at the hearing, and no ...