Com. v. Davis

• Citation: 336 A.2d 616,234 Pa.Super. 31
• Parties: COMMONWEALTH of Pennsylvania v. Carl J. DAVIS, Appellant.
• Decision Date: 31 March 1975
• Court: Pennsylvania Superior Court

Page 616

336 A.2d 616

234 Pa.Super. 31

COMMONWEALTH of Pennsylvania v. Carl J. DAVIS, Appellant.

Superior Court of Pennsylvania.

March 31, 1975.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

This is an appeal from revocation of probation and subsequent imposition of prison sentence. Appellant contends that the revocation was error because it was based solely on the fact that he was arrested during his probationary period. We have concluded that we must remand for a further hearing because the two step revocation procedure required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), was not followed.

On May 4, 1972, appellant pleaded guilty to burglary of a motor vehicle and carrying a concealed deadly weapon, and was placed on probation. ¹ When he failed to comply with the rules of his probation in not reporting to his probation officer, the Probation Department, in May, 1973, placed him in a 'non-reporting status.' In the meantime, in February, appellant had joined the United States Army and had left the Commonwealth, which was also contrary to the rules of his probation. On October 16, 1973, after a hearing, appellant's probation was revoked and he was placed on a longer probation (a three year period followed by a one year period), and was warned that any further probation violations would result in imprisonment.

On January 24, 1974, appellant, while absent without leave from the Army, was arrested and charged with burglary, theft, and receiving stolen property. These charges arose from the theft of a television set from Our Lady of Sorrows Church at 48th Street and Wyalusing Avenue in Philadelphia. On March 7, 1974, the charges were dismissed because the pastor of the church declined to prosecute and the mother of the only eyewitness, a child, would not permit him to testify. There was no preliminary hearing.

On March 28, 1974, the violation of probation hearing presently at issue was held. ² Appellant's probation was revoked, and he was sentenced to six months to five years imprisonment.

I.

In approaching the problem presented by this case, it is important to bear in mind the purpose of an order placing a defendant on probation. This purpose has been described in the ABA Project on Standards for Criminal Justice, Standards Relating to Probation (Approved Draft, 1970), p. 1, as follows:

The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement. Banishment from society, in a word, is not the way to integrate someone into society. Yet imprisonment involves just such banishment--albeit for a temporary sojourn in most cases.

In the ABA Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, § 2.3(c) (Approved Draft, 1968), it is said that a sentence not involving confinement is to be preferred to '(a) sentence involving partial or total confinement in the absence of affirmative reasons to the contrary.' ³ See also National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Corrections, p. 311 et seq. (1973).

The rehabilitative purposes of an order of probation determines the nature of the hearing on whether the order should be revoked. Thus in Commonwealth v. Kates, 452 Pa. 102, 114--15, 305 A.2d 701, 708 (1973), the court stated:

The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of a probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct. . . . When it becomes apparent that the probationary order is not serving this desired end the court's discretion to impose a more appropriate sanction should not be fettered. . . . Certainly, society has the right to expect a prompt hearing when a probationer has allegedly engaged in a course of criminal activity.

The decision that probation will no longer be effective, and that the order placing the defendant on probation should therefore be revoked, must be based on evidence of 'probative value.' Commonwealth v. Kates, Supra at 118--119, 305 A.2d at 710. '(M)ere arrests and indictments, without convictions . . . have no value as probative matter.' Commonwealth v. Jones, 355 Pa. 594, 598, 50 A.2d 342, 344 (1947). Therefore, evidence of some facts in addition to the fact of arrest is necessary before a court may revoke probation. Commonwealth v. Newman, 225 Pa.Super. 327, 329, 310 A.2d 380, 381 (1973).

II

In Gagnon v. Scarpelli, Supra, the United States Supreme Court specified the procedure that must be followed to insure that an order revoking probation will be based on evidence containing proper probative value. Gagnon was filed six days after Commonwealth v. Kates, Supra. While the two decisions are consistent, Gagnon represents a more detailed analysis of probation revocation procedures, and Kates must be read to comport with it.

Although revocation of probation, like revocation of parole, is not part of a criminal prosecution, Gagnon v. Scarpelli, supra, 411 U.S. at 781, 93 S.Ct. 1756, it entails a loss of liberty and minimum due process must therefore be accorded the probationer. What Gagnon held was that the minimum due process requirements for probation revocation are identical to those established in Morrissey v. Brewer, supra, for parole revocation. ⁴ Specifically, a two step revocation procedure must be followed. ⁵ '(A) parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of a final revocation decision.' Gagnon v. Scarpelli, Supra at 781--82, 93 S.Ct. at 1759.

Because the term 'preliminary hearing' has a particular meaning in Pennsylvania criminal law, it will be convenient to refer to the 'preliminary hearing' to which a parolee or probationer is entitled as a 'Gagnon I hearing,' and to the second 'somewhat more comprehensive hearing' as a 'Gagnon II hearing.'

"At the preliminary (Gagnon I) hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing." Gagnon v. Scarpelli, Supra, at 786, 93 S.Ct. at 1761, citing Morrissey v. Brewer, Supra, 408 U.S. at 487, 92 S.Ct. 2593. Thus, the Gagnon I hearing is similar to the preliminary hearing afforded all offenders before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed.

The Gagnon II hearing entails, or may entail, two decisions: first, a 'consideration of whether the facts determined warrant revocation.' Morrissey v. Brewer, Supra at 488, 92 S.Ct. at 2603. 'The first step in a (Gagnon II) revocation decision . . . involves a wholly retrospective factual question: whether the parolee (or probationer) has in fact acted in violation of one or more conditions of his parole (or probation).' Gagnon v. Scarpelli, Supra, 411 U.S. at 784, 93 S.Ct. at 1761, citing Morrissey v. Brewer, Supra, 408 U.S. at 479--80, 92 S.Ct. 2593. It is this fact that must be demonstrated by evidence containing 'probative value.' Commonwealth v. Kates, Supra, 452 Pa. at 118--19, 305 A.2d at 710. 'Only if it is determined that the parolee (or probationer) did violate the conditions does the second question arise: should the parolee (or probationer) be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?' Gagnon v. Scarpelli, Supra, 411 U.S. at 784, 93 S.Ct. at 1761, citing Morrissey v. Brewer, Supra, 408 U.S. at 479--80, 92 S.Ct. 2593. Thus, the Gagnon II hearing is more complete than the Gagnon I hearing in affording the probationer additional due process safeguards, specifically:

(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.

Gagnon v. Scarpelli, Supra, 411 U.S. at 786, 93 S.Ct. at 1762; Morrissey v. Brewer, Supra, 408 U.S. at 489, 92 S.Ct. 2593; Commonwealth v. Kates, Supra, 452 Pa. at 118, n. 10, 305 A.2d 709, n. 10; ABA Project on Standards for Criminal Justice, Standards Relating to Probation, § 5.4 (Approved Draft, 1968). See also Commonwealth v. Alexander, ...