No. 138 January Term, 1978, Appeal from the Order of the Superior Court at No. 588, October Term, 1976, Affirming the Judgment of Sentence of Smillie, J., dated November 13, 1975, In the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 759, January Term, 1974.
Arthur J. King, Joseph A. Ciccitto, Asst. Public Defenders, for appellant.
Ronald T. Williamson, Mary M. Killinger, Asst. Dist. Attys., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed a dissenting opinion.
On October 18, 1974, appellant Thomas William Quinlan pleaded guilty to burglary, theft, receiving stolen property,
possessing instruments of a crime, and criminal conspiracy. After being committed to a state hospital for evaluation and treatment, and after an extension of that commitment order, appellant was, in lieu of a sentence of incarceration, ordered to undergo two consecutive terms of probation totaling 19 years and to be recommitted to the state hospital and detained there until cured of alcoholism. At the sentencing hearing, the court specifically cautioned appellant against continuing to consume alcohol and further warned appellant that a substantial term of imprisonment could result from his failure to comply with said prohibition against the use of alcohol.*fn1
Not long thereafter, on August 12, 1975, appellant was arrested for his involvement in the pistol-whipping and rape of a woman in Delaware County. Appellant was charged with rape, simple assault, aggravated assault, terroristic threats, and recklessly endangering another person. Following a preliminary hearing on these charges, appellant was bound over for grand jury action, and a probation violation hearing was held. At that hearing, appellant admitted that he had not followed the alcohol treatment program arranged for him by his probation officer, that he had resumed his drinking habits, that he had spent the twelve hours which preceded the rape drinking alcoholic beverages with the man who committed the rape and who appellant knew was wanted on murder charges, and that he was present throughout the commission of the rape. Appellant, however, claimed that he was too intoxicated to prevent the crimes, and that he only simulated intercourse with the victim because he feared for his own safety. The court found that probation had not been effective in accomplishing rehabilitation, revoked the probation and sentenced appellant to consecutive
terms of incarceration of five to fifteen years and two to four years.
Appellant appealed this order to the Superior Court alleging, inter alia, that he "was denied due process of law because the record is silent concerning his receipt of written notice of the claimed violations." The Commonwealth responded by appending to its brief a copy of a written notice, the receipt of which was acknowledged by appellant's signature some two and one-half months prior to the probation revocation hearing. The Superior Court at 251 Pa. Super. 428, 380 A.2d 854 (1977), affirmed the order of the lower court, in a four-three decision, with the majority holding that the appended letter obviated appellant's claim and supported a finding that due process had been satisfied. While we agree with the dissenter's condemnation of the majority's ...