No. 01297 PHILADELPHIA, 1982, Appeal from an Order in the Court of Common Pleas, Criminal Division, of Lancaster County, Nos. 1487, 1488, 1981.
Penn B. Glazier, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Brosky, Wieand and Hester, JJ. Wieand, J., filed a dissenting opinion.
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On November 9, 1981, appellant, Edward L. Gochenaur, Jr., pled nolo contendere to terroristic threats and to two unrelated charges of theft in the Court of Common Pleas of
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Lancaster County, Pennsylvania. Appellant was sentenced to concurrent terms of imprisonment of not less than time served nor more than twenty-three months on the terroristic threats bill and one theft bill. A one-year period of probation was imposed on the remaining theft bill. With credit given for time served, appellant was released on parole at the imposition of sentence. As a condition of parole, the court instructed appellant to avoid contact with the victim, Doris Glouner.
On December 8, 1981, appellant was charged with simple assault. A prima facie case on this charge was established against him on December 22, 1981. Also, on November 10, 16 and 17, 1981, appellant telephoned Doris Glouner, a further act in violation of his parole. Due to the pending simple assault charges and the telephone calls to Ms. Glouner, a capias was issued on December 9, 1981 to commit appellant to Lancaster County Prison as parole revocation proceedings were instituted.
Following a Gagnon I hearing on March 15, 1982, appellant was detained for a parole revocation hearing on April 2, 1982. Appellant was there found to be in violation of his parole; consequently, parole was revoked and appellant was sentenced to serve the unexpired balance of each sentence imposed on November 9, 1981.
Appellant's motion to modify the sentence was denied April 21, 1982. This appeal was taken from that Order.
Appellant first contends that the Commonwealth did not prove a violation of the conditions of his parole by a preponderance of the evidence. Doris Glouner testified at the parole revocation hearing that she knew appellant for two years prior to November, 1981, and spoke to him over the telephone every week for one year prior to that time. She further testified that on November 10, 1981, her telephone rang on approximately eight occasions. Following her answer, the caller did not speak; Ms. Glouner heard breathing only. On the final call of that date, the caller uttered, "You're dead." Ms. Glouner identified the voice as appellant's. On November 16 and 17, 1981, her phone rang
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incessantly. Each time Ms. Glouner answered she received no intelligible response; only the caller's breathing was audible. Appellant is of the opinion that the two words uttered by the caller on November 10, 1981 and the numerous calls when only breathing was heard are not sufficient to support Ms. Glouner's identification.
Appellant also claims that a violation of his parole was not proven by a preponderance of the evidence inasmuch as the victim of the simple assault did not testify at the revocation hearing. According to appellant, no reason was given for the victim's failure to appear. The victim's absence allegedly deprived appellant of the opportunity to examine the victim concerning a letter which she wrote to appellant's mother. Appellant contends that this letter damaged the testimony given by the victim at the preliminary hearing.
The Commonwealth's burden at a parole revocation hearing is less onerous than that which it assumes at trial. A parole violation is proven by a preponderance of the evidence. Commonwealth v. Del Conte, 277 Pa. Super. 296, 419 A.2d 780 (1980); Commonwealth v. Lipton, 238 Pa. Super. 124, 352 A.2d 521 (1975). This lighter burden of proof reflects the policy of a parole revocation hearing whereby the emphasis is whether parole is an effective tool to promote rehabilitation and deter "future antisocial conduct." Commonwealth v. Kates, 452 Pa. 102, 115: 305 A.2d 701, 708 (1973). In Kates, our Pennsylvania Supreme Court applied statutory law, constitutional law and policy considerations to conclude that the revocation of parole is proper prior to trial on those charges constituting the parole violation. Here, the arresting officer in the simple assault proceedings testified at the revocation hearing that appellant was bound for court on the simple assault charge on December 22, 1981. Appellant corroborated this. In light of Kates, the prima facie evidence of simple assault proved a violation by a preponderance of the evidence. The absence of the simple assault victim from the revocation hearing affected the weight of the Commonwealth's evidence.
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It did not, however, require a reversal of the order ...