No. 3040 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 76-02-1145, 76-02-1146, 78-01177.
David L. Marshall, Norristown, for appellant.
Andrew B. Cohn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Watkins and Hoffman, JJ.
[ 281 Pa. Super. Page 349]
Appellant contends that (1) the doctrine of collateral estoppel bars revocation of his probation based upon criminal charges of which he was acquitted; and (2) the lower court erred in allowing a Commonwealth witness to identify him as the witness' assailant. We disagree and, accordingly, affirm the judgment of sentence.
In April, 1976, following his conviction of robbery and criminal conspiracy, appellant was placed on probation for a term of four years. In January, 1978, appellant was arrested and again charged with robbery and criminal conspiracy. At the trial on these latter charges the Commonwealth introduced an inculpatory statement which appellant allegedly had made and presented the testimony of the victim, who described the robbery but did not identify appellant as one of his assailants. At the close of trial the jury acquitted appellant of both charges. Shortly thereafter, the Commonwealth
[ 281 Pa. Super. Page 350]
instituted proceedings for revocation of appellant's probation based on the charges of which he had been acquitted. At the revocation hearing the victim identified appellant as one of the men who had robbed him. On the basis of this identification testimony and appellant's inculpatory statement, the lower court found that appellant had violated the terms of his probation. The court therefore revoked probation and sentenced appellant to a term of imprisonment of two-to-five years. This appeal followed.
Appellant first contends that the doctrine of collateral estoppel bars revocation of his probation based on criminal charges of which he was acquitted. Collateral estoppel "means simply that when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In Ashe the United States Supreme Court held that the Fifth Amendment guarantee against double jeopardy, which is applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), encompasses the doctrine of collateral estoppel. To evaluate appellant's claim that collateral estoppel precludes revocation of probation in this case, we shall first consider the differences between criminal trials and probation revocation proceedings.
In Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973), our Supreme Court stated:
At . . . trial the issue is whether the elements of the offense or offenses charged are present . . . . The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of the probationer indicates that the probation has proven to be an effective vehicle to ...