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COMMONWEALTH PENNSYLVANIA v. VINCENT A. DEL CONTE (05/16/80)

filed: May 16, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
VINCENT A. DEL CONTE, APPELLANT



No. 2668 October Term 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division at No. 3380-77.

COUNSEL

John A. DiCicco, Assistant Public Defender, Norristown, for appellant.

William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Spaeth

[ 277 Pa. Super. Page 298]

This is an appeal from an order revoking parole.

In February 1978, appellant pleaded guilty to corruption of minors.*fn1 He was sentenced to imprisonment for not less than time served nor more than one year, and was immediately paroled. One condition of his parole was that within eight months he pay the costs of his prosecution.

While on parole, appellant was charged with burglary, attempted theft, criminal trespass, and conspiracy. At a preliminary hearing on these charges, the Commonwealth established a prima facie case. On October 17, 1978, at a Gagnon II hearing,*fn2 appellant was found in violation of his

[ 277 Pa. Super. Page 299]

    parole, parole was revoked, and he was remanded to the county prison to serve the remainder of his maximum sentence for corruption of minors.

1

In a revocation hearing the standard of proof is a preponderance of the evidence, United States v. Iannece, 405 F.Supp. 599 (E.D.Pa.1975); Commonwealth v. Lipton, 238 Pa. Super. 124, 352 A.2d 521 (1975), or in other words, such proof as leads the trier of fact to find that the existence of a contested fact is more probable than its non-existence. Here, the contested fact is whether appellant, while on parole, participated in a burglary, attempted theft, criminal trespass, and conspiracy.

The Commonwealth's evidence consisted entirely of the testimony of Betty Lou Medunic. She testified that appellant entered her father's house without her consent and took her pocketbook. (N.T. 12) However, she further testified that John Sweeney had also entered the house that evening, and that it was Sweeney rather than appellant who she later ...


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