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COMMONWEALTH PENNSYLVANIA v. KENNETH A. WALKER (01/23/81)

filed: January 23, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH A. WALKER, APPELLANT



No. 940 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7501896A.

COUNSEL

Paul Bogdon, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 283 Pa. Super. Page 580]

This is a direct appeal from a parole revocation order by the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Appellant, Kenneth Walker, raises claims of ineffectiveness of both his hearing and post-hearing counsel. Since one of the claims not raised by counsel was of arguable merit, we remand the case to the court below for an evidentiary hearing to determine whether Walker's counsel had any reasonable basis for his actions.

On June 30, 1976, Mr. Walker pleaded guilty to simple assault and resisting arrest. He was sentenced to prison for six to twenty-three months and was paroled after serving six months. Due to a violation, his parole was revoked on August 23, 1977, and he was committed to jail for the remainder of his sentence, with automatic parole becoming effective after one month in order to enable him to undergo drug rehabilitation treatment at the Alpha House.

The instant case arises from Mr. Walker's alleged failure to report to his parole officer and to Alpha House after his September 23, 1977 automatic release on parole. On April 17, 1978, the lower court held a hearing on these allegations, vacated Mr. Walker's parole, and sentenced him to serve the remainder of his original sentence. This appeal follows.

Mr. Walker alleges, inter alia, the ineffectiveness of his parole revocation hearing counsel, the Public Defender, for his failure to object at the hearing so as to preserve several important issues for appeal. More particularly, Walker claims counsel's ineffectiveness includes: (1) his failure to object to the absence of witnesses without a specific finding of good cause by the court, which resulted in the revocation of Walker's parole based solely on hearsay evidence; (2) his failure to preserve the issue that appellant was not notified of his being charged with violations of his parole based on mere arrests; (3) his failure to object to the inclusion of these arrests as grounds for revoking parole; (4) his failure to object to the court's substitution of only one Gagnon

[ 283 Pa. Super. Page 581]

    hearing for the requisite two.*fn1 Our discussion of the first of these specific allegations renders consideration of the others unnecessary.

It is now well-settled law that in order for counsel to be proven ineffective, there must be a showing, first, that the claim foregone was of arguable merit and, second, that the counsel's actions had no reasonable basis designed to effectuate his client's interests. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In the context of the case at bar, the Commonwealth concedes that the claim concerning the denial of appellant's due process rights was of arguable merit.

The essence of Mr. Walker's first specific allegation of ineffectiveness is that his due process rights were violated because he was not afforded his right to confront and cross-examine witnesses against him, which resulted in his parole having been revoked entirely on hearsay evidence. At the hearing no witnesses testified against Mr. Walker: no one from the Alpha House appeared, nor did Mr. Walker's parole officer appear to provide supporting testimony for the alleged violations contained in the hearing notice, i. e., failure to report to his parole officer and failure to participate in a drug rehabilitation program. Had there been a timely objection to this hearsay evidence, the ...


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