No. 2286 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia at No. 219 October Term 1974.
Stephen F. Ritner, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 277 Pa. Super. Page 96]
On March 20, 1975, James Reed, appellant, plead guilty to a charge of theft by receiving stolen goods. He was placed on two years probation. In July of 1975, a probation revocation
[ 277 Pa. Super. Page 97]
hearing was held, but probation was continued. On November 10, 1976, as a result of Reed's conviction for possessing a controlled substance, another probation revocation hearing was held. Following the hearing, the previous probation was revoked, but a new two year probationary term was imposed.
On January 30, 1978, Reed was convicted of burglary, theft, and criminal conspiracy. As a result of these convictions, Reed's probation was revoked, and a judgment of sentence of two to seven years imprisonment was imposed. This appeal is from that judgment of sentence.
A history of the revocation proceeding is necessary to an intelligent evaluation of the issues presented. Following the January 30 convictions, a hearing was fixed for February 21, 1978 to show cause why Reed's probation should not be revoked. On the scheduled date, the hearing was continued to March 8 because no written report of the violation had been prepared. On March 8, the hearing was again continued because Reed had not been served with a copy of the report.
On March 22, 1978, the hearing ensued. Reed's counsel requested the hearing be continued because two of three witnesses who had been subpoenaed or ordered brought down from prison were not present. An affidavit from one of the witnesses, Nathanial Duckett, indicated Reed may have been innocent of the crimes for which he was convicted on January 30, 1978 and which served as the basis for the revocation proceeding. Further, defense counsel indicated the witnesses he wished to call would testify "on the issue of guilt or innocence" of the January 30 convictions.
The court explained it would not inquire into Reed's guilt or innocence on the underlying convictions because that had been finally determined by a jury. The court then took testimony from a probation officer. Essentially, that testimony established Reed's criminal record which included the January 30 convictions. At the conclusion of this testimony, a discussion ensued following which the ...