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COMMONWEALTH PENNSYLVANIA v. DAVID KAVANAUGH (10/12/84)

filed: October 12, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID KAVANAUGH, A/K/A LARRY PAINE, APPELLANT



No. 1218 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, at No. 1637-80.

COUNSEL

Douglas H. Johnson, Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Montemuro, JJ.

Author: Montemuro

[ 334 Pa. Super. Page 153]

This is an appeal from an order of the Court of Common Pleas of Montgomery County revoking the order placing the appellant on probation and reimposing sentence.

On January 26, 1981, the appellant pled guilty to charges of theft of movable property,*fn1 theft by receiving stolen property,*fn2 and criminal attempt.*fn3 He was sentenced to pay a fine of twenty-five hundred dollars ($2,500.00), pay one-fifth of the cost of prosecution, and undergo state imprisonment on the theft charges for not less than two and one-half (2 1/2) years nor more than five (5) years; on the attempt charge, he was sentenced to state imprisonment for not less than two and one-half (2 1/2) years nor more than five (5) years. However, the court suspended both sentences and, in lieu thereof, placed the appellant on two (2) consecutive five (5) year periods of probation subject to the condition that he pay the aforementioned costs of prosecution and fine as well as proportional restitution.

[ 334 Pa. Super. Page 154]

On November 29, 1981, the appellant was arrested by the Philadelphia Police and charged with violating the Controlled Substance, Drug, Device and Cosmetics Act.*fn4 Thereafter, on December 8, 1981, the appellant reported to his probation officer, at which time he was placed under arrest for violating his probation and was given a copy of the violations of probation charged against him by his probation officer.

On January 19, 1982, the appellant appeared in court for a Gagnon I hearing to determine whether there was probable cause to believe that he committed a violation of his probation. The lower court, after hearing the testimony of state probation officer, Earl M. Pinkett, found that the Commonwealth had made out a case for Gagnon I purposes and scheduled a Gagnon II hearing. On March 15, 1982, a Gagnon II hearing was held to determine whether the appellant substantially violated the conditions of his probation and also whether or not his probation should be revoked. After hearing the testimony of Mr. Pinkett, and of the appellant, the lower court found the appellant "in violation of [his] probationary sentence," revoked his probation and sentenced him to one and one half (1 1/2) years to five (5) years state imprisonment to date from December 8, 1981. The lower court subsequently denied, without a hearing, appellant's timely motion to modify sentence. This appeal followed.

The appellant raises the following issues:

(I) Did the lower court err in admitting, over objection, hearsay evidence at appellant's Gagnon hearings?

(II) Did the lower court err by failing to articulate on the record the reasons for appellant's sentence?

(III) Was the sentence imposed by the lower harsh and manifestly excessive under the circumstances?

Inspection of the record in this case discloses that only the first issue has merit. Consequently, we shall limit our

[ 334 Pa. Super. Page 155]

    discussion to that issue. The lower court's disposition of the remaining issues is sufficient.

The appellant contends that before any hearsay evidence may be admitted at any Gagnon type hearing, the presiding judge must make a specific finding that there is good cause for depriving the defendant of his due process right to confront and cross-examine witnesses. Appellant's brief at 5. The appellant further contends that at both Gagnon hearings the lower court improperly admitted over objection certain hearsay evidence without making a specific finding of good cause for not allowing confrontation. Appellant's brief at 5-6. Appellant concludes that if all hearsay evidence so admitted is not considered, the only evidence remaining is the appellant's alleged admission, which appellant contends may not by itself establish the corpus delicti, and therefore appellant's probation cannot be revoked. Appellant's brief at 7.

The United States Supreme Court recognized in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) that although revocation of probation like revocation of parole is not a stage of criminal prosecution, it does entail a loss of liberty which requires that a probationer be afforded certain minimal due process safeguards. The probationer is entitled to two hearings: (1) a preliminary hearing to determine whether there is probable cause to believe that he has committed a violation of his probation, and (2) a more comprehensive hearing prior to making the final revocation decision. Gagnon v. Scarpelli, supra; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975). These hearings are to comport with the following requirements:

[ 334 Pa. Super. Page 156]

At the preliminary hearing [Gagnon I], a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing. Morrissey v. Brewer, Page 156} supra, at 487 [92 S.Ct. at 2603], 33 L.Ed.2d 484. The final hearing [Gagnon II] is a less summary one . . . but the "minimum requirements of due process" include very similar elements:

"(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole." Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d 484.

Gagnon v. Scarpelli, supra, 411 U.S. at 786, 93 S.Ct. at 1761.

The conditional right to confront adverse witnesses, afforded in a Gagnon I hearing is not the same as the right to confront adverse witnesses afforded in a Gagnon II hearing. In the former, the hearing officer need not specifically find good cause for not allowing confrontation. In the latter, although it is not such a highly formal procedure that it must be conducted in accordance with the entire gamut of evidentiary and procedural rules employed in a criminal trial, Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Holmes, 268 Pa. Super. 396, 408 A.2d 846 (1979); Commonwealth v. Rossetti, 255 Pa. Super. 524, 388 A.2d 1090 (1978); the hearing officer is required to make a finding that ...


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