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Commonwealth v. Allshouse

March 19, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
TODD R. ALLSHOUSE, APPELLANT



Appeal from the Judgment of Sentence January 16, 2008, In the Court of Common Pleas of ALLEGHENY County, Criminal at No(s) CC No. 200605517.

The opinion of the court was delivered by: Freedberg, J.

BEFORE: BOWES, FREEDBERG, and FITZGERALD*fn1, JJ.

OPINION

¶ 1 Appellant, Todd Allshouse, appeals from the judgment of sentence entered on January 16, 2008. For the reasons discussed below, we vacate and remand.

¶ 2 On March 7, 2007, Appellant pleaded guilty to one count of statutory sexual assault.*fn2 The charges arose out of Appellant's sexual relationship with a fourteen-year-old girl who ultimately became pregnant. Appellant was sentenced to a term of six to twelve months of incarceration but was immediately paroled due to the amount of time already served. Appellant was also sentenced to three years of probation. As part of the sentence, the trial court imposed the following no-contact order:

Okay. Okay, Mr. Allshouse, you're to have no contact directly or indirectly with the victim in this case, nor are you to ask anyone to do so on your behalf. Unfortunately if your family tries to contact the victim it's going to fall on your shoulders and you'll be back in jail.*fn3 If you wish to see the child you have to go to Family Court and get a court order from them for visitations. But you are not to call the victim concerning visitations or anybody in her family.

N.T. 3/07/2007 at 6.*fn4

¶ 3 On July 12, 2007, a Gagnon I hearing took place. Appellant was charged with three technical violations of probation: (1) violating the no-contact order; (2) failing to pay court costs; (3) failure to be of good behavior and comply with laws.

¶ 4 On January 16, 2008, a Gagnon II hearing was held. Appellant was represented by Attorney Steve McClintock of the Allegheny County Public Defender's Office. Robert O'Brien of the Allegheny County Probation Office,*fn5 who was not sworn,*fn6 summarized the statements contained in a variety of documents, which were not offered into evidence, to demonstrate that Appellant and his family had entered into a course of harassment of the victim, her family, her new boyfriend, and her new boyfriend's family. N.T. 1/16/08 at 2-24. The parties agreed that Appellant had not paid court costs. N.T. 1/16/08 at 17-18. O'Brien also reported that Appellant had been present during an incident when some juveniles were shooting an AK-47 in the woods and that a bench warrant had been issued in Erie County for Appellant. O'Brien did not present the testimony of any witnesses. Appellant objected repeatedly throughout the hearing to the use of the hearsay evidence. N.T. 1/16/08 at 3, 6, 13, 15, 19.

¶ 5 Appellant testified denying all the charges with the exception of the failure to pay court costs. Various members of Appellant's family were also allowed to speak, without being sworn, at the hearing.

¶ 6 At the conclusion of the hearing, the court found that Appellant had violated his probation and sentenced him to a term of two to ten years of incarceration. Appellant filed a timely appeal and was ordered to file a concise statement of errors raised on appeal. Appellant filed a 1925 statement and, thereafter, the trial court issued an opinion.

¶ 7 On appeal, Appellant raises only one issue for review:

Did the hearing court abuse its discretion when it violated Mr. Allshouse's state and federal constitutional right to confront his accusers and to due process of law when it revoked Mr. Allshouse's probation based on inadmissible ...


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