No. 2452 Philadelphia, 1980, Appeal from the Order dated September 24, 1980, Court of Common Pleas, Luzerne County, Criminal Division, at No. 1862-A of 1976.
Joseph F. Sklarosky, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ.
While under a sentence of two years special probation, Appellant was arrested and charged with Aggravated Assault, Disorderly Conduct, Criminal Mischief, Resisting Arrest, Driving While Under the Influence of Alcohol and Leaving the Scene of an Accident. As a result of these charges, a probation revocation hearing was held, his probation was revoked, and he was sentenced to six months to two years imprisonment.
Appellant contends that the revocation was error because it was based solely on the testimony of the arresting officers who did not observe the accident or see the Appellant actually driving the suspect vehicle at the scene. Upon a review of the record of the Gagnon II proceeding, we have concluded that we must remand to permit the lower court to complete compliance with the due process requirements mandated by Morrissey v. Brown, 408 U.S. 471, 487-489, 92 S.Ct. 2593, 2603-04, 33 L.Ed.2d 484, 498-499 (1972).
The Petition for Revocation of Probation upon which the hearing was held claimed that the Appellant had violated condition No. 4 in that he had been arrested and charged with the aforementioned criminal charges, and that he had also violated condition No. 10 "in that he behaved in a manner which threatened or presented a clear or present danger to himself or others." The evidence against Appellant consisted of the testimony of two municipal police officers who presented direct testimony as to their investigation at the accident scene, their subsequent encounter with Appellant, Appellant's flight, the police officers' pursuit and the subsequent arrest.
At the conclusion of the Commonwealth's evidence, counsel for Appellant moved for dismissal of the petition on the grounds that the allegations in the Petition for Revocation
had not been established, and that criminal mischief had not been proven. Though it is far from clear in the record, counsel for Appellant appears also to have contended, at the revocation hearing, that probable cause did not exist for Appellant's arrest until after a fence was broken by Appellant during his flight.
In denying the motion for dismissal, the lower court did not state on the record the evidence upon which the lower court relied in revoking the probation, or the reasons therefore, but moved immediately to sentencing. This was contrary to the minimum requirements of due process as announced in Morrissey v. Brown, supra, restated in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656, 664 (1973) and recognized by our court in Commonwealth v. Davis, 234 Pa. Super. 31, 41, 336 A.2d 616, 621 (1975).
Included in the "minimum requirements of due process" as articulated in Gagnon v. Scarpelli, is the necessity for a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. This requirement is set forth in Rule 1409 of the ...