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filed: August 16, 1988.


Appeal from Order of the Court of Common Pleas, Juvenile Division, of Philadelphia County, No. 5950-84-8.


Karl Baker, Assistant Public Defender, Philadelphia, for appellant.

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Popovich, JJ. Cirillo, President Judge, files a dissenting opinion, in which Olszewski, Tamilia and Popovich, JJ., join.

Author: Wieand

[ 377 Pa. Super. Page 48]

In this proceeding to review the probationary status of a juvenile because of "problems in the home," the court revoked probation and ordered the juvenile committed based on his probation officer's testimony, over objection,*fn1 that "[the juvenile's] father advised me that [the juvenile] pulled a knife on him." On appeal, the juvenile contends that his probation was revoked improperly and he was deprived of his liberty on the basis of hearsay testimony without an opportunity to confront his accuser.

Harvey Davis had been adjudicated delinquent on May 6, 1985 on a charge of simple assault. At the dispositional hearing, he had been placed on probation upon the condition that he attend school, with no absences, lateness, or suspensions.

[ 377 Pa. Super. Page 49]

On August 28, 1985, Davis's probation officer filed a motion to review the order of probation, with a request that Davis be committed to Glen Mills Diagnostic Center, because of "problems in the home and [Davis] appears to be in need of an extensive diagnostic study."

At the revocation hearing, the following occurred:

PROBATION OFFICER: . . . I got involved with the case because of [Harvey's] father some time ago, and there was quite a bit of disturbance in the home between Harvey and his father and Harvey's father advised me that Harvey pulled a knife on him --

DEFENSE ATTORNEY: Objection, respectfully.

THE COURT: Overruled.

PROBATION OFFICER: And he protected himself, and that there were threats against Harvey and Harvey didn't want to stay home, and as a result of that, I felt it was the best thing to bring the case back to court . . .

At the conclusion of the hearing, Davis's counsel renewed his objection to the hearsay testimony of the probation officer and argued that no basis for revocation had been presented. The court revoked probation and committed appellant to the Glen Mills Diagnostic Center.

On appeal, Davis argues that his right to confrontation under the state and federal constitutions was violated when the trial court based its decision to revoke probation solely on the hearsay testimony of the probation officer.*fn2 We agree and reverse.

The Juvenile Act in Pennsylvania, 42 Pa.C.S. § 6301 et seq., provides specifically that in adjudicatory proceedings,

[ 377 Pa. Super. Page 50]

    extra-judicial statements which would be constitutionally inadmissible in a criminal proceeding shall not be used against a juvenile. See: 42 Pa.C.S. § 6338(b). In dispositional hearings, however, the statute provides that "all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition." 42 Pa.C.S. § 6341(d). With respect to probation revocation hearings, the Act is silent. See: 42 Pa.C.S. § 6324(5). For constitutional reasons hereinafter stated, however, we hold that a juvenile's probation cannot be revoked solely on the basis of extra-judicial statements made by an accuser whom the juvenile has not been permitted to confront.

The leading decision regarding the constitutional safeguards which are applicable to juveniles is Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Supreme Court there observed:

Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: "The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts . . . . The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure but in arbitrariness.

Id. at 18-19, 87 S.Ct. at 1438-1439, 18 L.Ed.2d at 541. Therefore, the Court determined that certain fundamental due process rights which had been recognized in adult criminal proceedings were applicable also in juvenile proceedings. The Court reasoned that a balance had to be struck between fundamental procedural protections and the

[ 377 Pa. Super. Page 51]

    goals of the juvenile court system to ensure that juvenile proceedings "measure[d] up to the essentials of due process and fair treatment." Id. at 30, 87 S.Ct. at 1445, 18 L.Ed.2d at 548. With respect to the adjudicatory phase of a juvenile proceeding, the Court held, an alleged juvenile offender is entitled to receive notice of the charges, to be represented by counsel, to confront his accuser, to cross-examine witnesses, and to be free of the constraints of self-incrimination. In addition, proof beyond a reasonable doubt has been held necessary in order to adjudicate a juvenile delinquent. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Double jeopardy principles are also applicable to juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). However, the Constitution does not guarantee the right to trial by jury in juvenile proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

Because a juvenile is entitled to confront his accuser, an adjudication of delinquency which is based solely on hearsay evidence will be reversed. In Interest of LaMore, 356 Pa. Super. 322, 514 A.2d 633 (1986); Commonwealth v. McNaughton, 252 Pa. Super. 302, 381 A.2d 929 (1977).

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held, in the context of adult proceedings, that a parolee had a substantial interest in retaining liberty until it had been determined that he had violated the conditions of his parole and that, therefore, parole could not be revoked absent due process. Although "the full panoply of rights" is not available, the Court said, a structured procedure, albeit informal, is necessary to assure that a revocation of parole will not be based on unverified facts or an inaccurate analysis of the circumstances. Thus, the Court formulated a two step procedure. The first step, similar to a preliminary hearing, is a factual inquiry to determine the existence of probable cause. The second step combines the factfinding function with the exercise of discretion to determine whether revocation of parole is necessary. In both proceedings, there exist conditional

[ 377 Pa. Super. Page 52]

    rights to confront accusers and cross-examine witnesses. In the first step, these rights must be recognized unless it is determined that disclosure of the identity of an informant will create a risk of harm to him. In the second step, the right to confront and cross-examine an accuser can be denied only upon a finding of good cause.

These rights are also accorded to an adult probationer in proceedings to revoke probation. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court said, "Probation revocation is not a stage of a criminal prosecution, but does result in a loss of liberty." Id. at 783, 93 S.Ct. at 1760, 36 L.Ed.2d at 661-662. Therefore, "a probationer can no longer be denied due process . . . [on the ground] that probation is an 'act of grace.'" Id. at 783 n. 4, 93 S.Ct. at 1760 n. 4, 36 L.Ed.2d at 662 n. 4. See also: Commonwealth v. Kavanaugh, 334 Pa. Super. 151, 482 A.2d 1128 (1984).

The appellate courts in Pennsylvania have held unequivocally that "probation revocation proceedings entail the right to confront and cross-examine accusers." Commonwealth v. Riley, 253 Pa. Super. 260, 267, 384 A.2d 1333, 1336 (1978). "[B]efore hearsay testimony may be admitted, the hearing judge must make a finding that there is good cause for not allowing confrontation." Commonwealth v. Holmes, 268 Pa. Super. 396, 399, 408 A.2d 846, 848 (1979). See also: In the Interest of Bonner, 301 Pa. Super. 431, 447 A.2d 1043 (1982); Gartner v. Comm., Penna. Bd. of Probation and Parole, 79 Pa. Commw. 141, 469 A.2d 1371 (1983).

A juvenile has the same substantial interest in retaining his liberty as an adult. See: State ex rel D.E. v. Dougherty, 298 S.E.2d 834 (W.Va.1982). Similarly, society's interests in a juvenile probationer are no different than its interests in an adult probationer or parolee. It has been said that:

[a] parolee is not the only one who has a stake in conditional liberty. Society has a stake in whatever may be the chance of restoring him to a normal and useful life within the law. Society thus has an interest in not having

[ 377 Pa. Super. Page 53]

    parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of conditions.

Morrissey v. Brewer, supra at 484, 92 S.Ct. at 2601, 33 L.Ed.2d at 496.

In view of the substantial liberty interests which exist in not having probation revoked on the basis of unverified facts or erroneous information, we conclude that due process considerations entailing the right to confront and cross-examine an accuser must extend to probation revocation proceedings for a juvenile. In Gault, the Supreme Court said:

The informality of juvenile court hearings frequently leads to the admission of hearsay and unsworn testimony. It is said that "close adherence to the strict rules of evidence might prevent the court from obtaining important facts as to the child's character and condition which could only be to the child's detriment." The assumption is that the judge will give normally inadmissible evidence only its proper weight. It is also declared in support of these evidentiary practices that the juvenile court is not a criminal court, that the importance of the hearsay rule has been overestimated, and that allowing an attorney to make "technical objections" would disrupt the desired informality of the proceedings. But to the extent that the rules of evidence are not merely technical or historical, but like the hearsay rule have a sound basis in human experience, they should not be rejected in any judicial inquiry.

Application of Gault, supra 387 U.S. at 11 n. 7, 87 S.Ct. at 1435 n. 7, 18 L.Ed.2d at 537 n. 7, quoting, Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv.L.Rev. 775, 794-795 (1966) (footnotes omitted) (emphasis added). By ignoring the hearsay exclusion, "[t]he great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an ...

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