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COMMONWEALTH PENNSYLVANIA v. EDWARD TURECKI (06/20/80)

filed: June 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD TURECKI, APPELLANT



No. 2561 October Term, 1978, Appeal from the Order dated September 6, 1978 in the Court of Common Pleas, Criminal Division of Montgomery County, at No. 93-78.

COUNSEL

Ronald F. O'Driscoll, Assistant Public Defender, Norristown, for appellant.

John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a concurring opinion.

Author: Cavanaugh

[ 278 Pa. Super. Page 513]

On March 23, 1978, appellant entered a guilty plea to a charge of retail theft, based on the theft of a coat valued at $275.00 from the Strawbridge & Clothier store, located at Plymouth Meeting, Pennsylvania. Appellant was placed on three years probation conditioned on the successful completion of a drug rehabilitation program. On May 18, 1978, appellant was ordered to undergo in-patient treatment at the Gaudenzia House, Philadelphia, Pennsylvania, which provides a program of treatment for persons suffering from drug related problems. Appellant entered Gaudenzia House

[ 278 Pa. Super. Page 514]

    and within two weeks, he absconded from the house and did not return. After being placed on probation, appellant was convicted in Philadelphia, Pennsylvania, of the crime of obstruction of the mail.

A probation revocation hearing was held before Smiley, J., the judge who had placed appellant on probation following his guilty plea to the charge of retail theft. At the probation revocation hearing, which Judge Smiley characterized as a Gagnon II hearing, appellant admitted that he had violated his probation. Appellant also stated at the hearing that he left Gaudenzia House without permission and that although they would have taken him back, he refused to return. Appellant gave as his reason for leaving the fact that he did not get along with the head of the department. He also felt that he was not treated the same as other people in the program. His only specific complaint was that when he had "walking privileges" he was supposed to be able to go where he wanted without anyone being with him, but the head of the department or someone else would be with him to supervise him. However, appellant did not complain to his probation officer about his alleged problems at Gaudenzia House.

Following the probation revocation hearing appellant was sentenced to imprisonment for not less than eighteen months, nor more than three years. It is from this judgment of sentence that appellant has filed an appeal to this Court.

The sole question on appeal is whether the sentence is excessive. Although the trial judge did not state his reasons for sentencing appellant when he imposed sentence, he did so in the opinion filed of record in this case.

Following the imposition of sentence on September 6, 1978, appellant filed a Petition for Reconsideration of Sentence. He listed several reasons for reconsideration, but did not raise as an issue the fact that the court below did not state at the time of sentencing the reasons for the sentence. On appeal to this court, the statement of question involved was simply "Whether ...


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