No. 2925 October Term, 1978, Appeal from the Judgment of Sentence of Moss, J., dated November 2, 1978, IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA, CRIMINAL DIVISION, at No. 2764--78.
Ronald F. O'Driscoll, Assistant Public Defender, Norristown, for appellant.
John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 292 Pa. Super. Page 151]
Appellant appeals from a judgment of sentence of total confinement imposed by the court below following revocation of probation theretofore granted Appellant.
The facts are not in dispute and it appears that on August 23, 1978, Appellant pleaded guilty to a charge of Retail Theft, Second Offense,*fn1 and on the same day, was sentenced
[ 292 Pa. Super. Page 152]
to pay the costs of prosecution and a fine in the sum of $200.00, and was placed on probation for a term of one year. In addition to complying with the usual terms and conditions required of probationers in Montgomery County, the court directed Appellant to pay the fine and costs not later than September 1, 1978.
On October 19, 1978, the Adult Probation Department of Montgomery County charged Appellant with violating four conditions of probation in that she (1) failed to pay the fine and costs, in the sum of $265.65; (2) failed to appear at the office of the Probation Department, as directed; (3) submitted a urine sample which upon testing reflected the presence of methadone, a controlled substance,*fn2 and quinine, a commonly-used drug "cutting" agent; and (4) was found in possession of two Talwin tablets which were not the subject of a valid prescription.*fn3
On October 10, 1978, Appellant admitted the four violations, waived her right to a Gagnon I*fn4 hearing and on November 2, 1978, appeared with counsel before the lower court for a Gagnon II hearing. At the latter hearing, Appellant testified at length. In addition, the record made at the hearing reflects an earlier discussion among the court, Appellant's counsel, a probation officer, an assistant District Attorney and a representative of "Cluster House", a drug rehabilitation center located in Montgomery County. Although the details of the discussion do not appear, the record of the hearing does indicate that Cluster House was willing to accept Appellant in its drug rehabilitation program as an
[ 292 Pa. Super. Page 153]
alternative to incarceration, and that Appellant was willing to participate in the program.
At the conclusion of the hearing, the Court stated:
"THE COURT: All right, I am satisfied in my own heart and mind that you are not a good prospect for rehabilitative benefits of Cluster House. I feel that that which you've said here under oath is honest and straight-forward.
I see an individual twenty-three years old who has been away from her family for five years and hanging around the Norristown area, always involved with drug-related individuals, and probably went for detox at a time when you were down and out, when you needed it. As a result of recommendations made by them you went to Clearbrook, and in essence you busted out of there.
Your activities upon your return indicated that you were right back into the same drug-related individuals that you probably left. The only reason you're talking about Cluster House is because it's probably in Norristown. I ...