No. 517 Pittsburgh, 1980, Appeal from the sentence and order of the Court of Common Pleas of Butler County, Criminal Division, at C.A. Nos. 166, 168 of 1977
James E. McLaughlin, Pittsburgh, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Price, Brosky and Montemuro, JJ. Montemuro, J., concurs in the result. Price, J., did not participate in the consideration or decision of this case.
[ 292 Pa. Super. Page 312]
On June 15, 1979, appellant pleaded guilty to two counts of robbery in the Common Pleas Court of Butler County. Two concurrent sentences of 11 1/2 months to 23 months imprisonment were imposed, followed by a term of three years probation. Fleeger was given credit for time spent during pre-conviction detention and was released from prison and placed on probation on November 16, 1979 after a decision granting him parole was rendered.
On March 10, 1980, the appellant was arrested on various charges in Allegheny County. On April 30, 1980, a hearing was held in Butler County to determine whether appellant had violated his probation. The trial court held probation had been violated because appellant was held for trial in Allegheny County. Fleeger was sentenced to serve 18 months to 36 months imprisonment. A motion to vacate sentence was filed and denied. This appeal followed.
Appellant was subsequently acquitted on all charges in the Allegheny County court on August 6, 1980. On August 8, 1980, the trial court refused to entertain any motion to vacate or modify appellant's sentence. Fleeger then filed a motion for supersedeas with this court which was granted per Brosky, J. on August 28, 1980. We reverse the decision of the trial court.
Appellant asserts that the trial court erred in imposing a sentence upon the appellant which was in excess of the sentence already imposed. Essentially, he contends he should not have been forced to serve anymore of a sentence than the remainder of his original term of imprisonment.
[ 292 Pa. Super. Page 313]
Furthermore, the appellant contends that the trial court's revocation of his probation requires reversal because no Gagnon II hearing was held.
First, we note that the focus of a probation revocation hearing is clear.
The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of a probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future anti-social conduct.
Commonwealth v. Kates, 452 Pa. 102, 114-115, 305 A.2d 701, 708 (1973). The probation revocation hearing also differs from a trial in that the Commonwealth need prove only a probation violation by a preponderance of the evidence. Commonwealth v. Brown, 281 Pa. Super. 348, 350, 422 A.2d 203, 204 (1980), and evidence which is inadmissible at trial may be admitted at the probation revocation hearing. Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975). Thus, it is quite possible for a person to be acquitted of charges brought against him and yet have his probation revoked based upon the existence of those charges being brought against him. Commonwealth v. Brown, supra. However, we hasten to add that a bare assertion of an arrest, "without a conviction, is lacking in probative ...