NO. 2888 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of December 1, 1980, In the Court of Common Pleas of Philadelphia County, Criminal Division at No. 1490 January Term, 1976.
Stanton M. Lacks, Philadelphia, for appellant.
Francis Gralnek Gerson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Beck and Johnson, JJ. Spaeth, J., concurs in result.
[ 314 Pa. Super. Page 408]
Appellant, Anthony Griggs, pleaded guilty on June 15, 1976, when he was a fifteen-year-old juvenile, to murder in the third degree, robbery and criminal conspiracy. He was
[ 314 Pa. Super. Page 409]
sentenced to eleven and one-half to twenty-three months on the murder charge, eleven and one-half to twenty-three months on the criminal conspiracy charge (to run concurrently), and two to ten years on the robbery charge, which sentence was suspended; a ten year probation period was to run from the end of the sentences on the murder and criminal conspiracy charges.
Appellant's probation began when he was released from the State Forrestry Camp on November 15, 1977. On October 2, 1979, appellant was arrested and charged with robbery, criminal conspiracy, simple assault and recklessly endangering another person. On July 11, 1980, appellant was found not guilty on those charges in a non-jury trial after which a Gagnon II hearing*fn1 was held on September 22, 1980. The hearing judge found appellant to have violated his probation based upon his participation in the October 2, 1979 incident and therefore revoked his probation. A sentencing hearing was held on December 1, 1980 and appellant was sentenced to incarceration of from two to twenty years on the original robbery conviction; appellant appeals from that judgment of sentence.
Appellant claims that the trial court erred in finding him in violation of probation. We note preliminarily that the burden of proof is different in Gagnon II hearings and criminal trials. This Court summarized that difference in Commonwealth v. Brown, 281 Pa. Super. 348, 350-351, 422 A.2d 203, 204 (1980):
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 ...