Com. v. Fowler

• Citation: 271 Pa.Super. 138,412 A.2d 614
• Parties: COMMONWEALTH of Pennsylvania v. Lee C. FOWLER, Appellant.
• Decision Date: 19 October 1979
• Court: Pennsylvania Superior Court

Page 614

412 A.2d 614 271 Pa.Super. 138 COMMONWEALTH of Pennsylvania
v.
Lee C. FOWLER, Appellant. Superior Court of Pennsylvania. Submitted March 23, 1979.
Filed Oct. 19, 1979.

[271 Pa.Super. 140] George B. Ditter, Asst. Public Defender, Norristown, for appellant.

Eric J. Cox, Asst. Dist. Atty., Chief, App. Div., Norristown, for Commonwealth, appellee.

Before PRICE, SPAETH and LIPEZ, JJ.

SPAETH, Judge:

This is an appeal from an order revoking parole.

Page 615

In 1975, appellant pleaded guilty to various charges and was sentenced to a term of imprisonment. On September 2, 1977, he was paroled. On either March 19 or 21, 1978 (the record is unclear), while still on parole, appellant was arrested on new charges, and a parole violation detainer was lodged against him. A preliminary hearing on the new charges was scheduled for March 29, but was continued until April 18 because appellant wished to retain private counsel. On April 18, appellant again appeared without counsel. Nevertheless, the district justice held the preliminary hearing and bound appellant over for trial.

On May 26, 1978, a parole revocation hearing was held at which appellant was represented by the public defender. The defender argued that the April 18 preliminary hearing had been a nullity because appellant had not been represented[271 Pa.Super. 141] by counsel, and therefore appellant's parole could not be revoked. When the hearing judge rejected this argument, the defender stipulated that, if presented, the Commonwealth's proof would be sufficient to establish a parole violation. The district attorney then summarized the testimony of his potential witnesses, and on the basis of the facts contained in the summary, and appellant's stipulation, the lower court revoked appellant's parole. The only argument appellant makes on appeal is the argument that was made to the hearing judge. ¹

Due process requires that parole revocation proceedings proceed in two steps: a preliminary, or Gagnon I, hearing, to determine whether there is probable cause to believe that the parolee has committed a violation; and a final, or Gagnon II, hearing, to determine whether parole should be revoked. ² Commonwealth v. Perry, 254 Pa.Super. 48, 385 A.2d 518 (1978). At the Gagnon I hearing, the parolee "is entitled to notice of the alleged violations of . . . parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing." Commonwealth v. Davis, 234 Pa.Super. 31, 39, 336 A.2d 616, 621 (1975). See also Commonwealth v. Stratton, 235 Pa.Super. 566, 344 A.2d 636 (1975); Commonwealth v. Henderson, 234 Pa.Super. 498, 340 A.2d 483 (1975). Furthermore, the parolee is entitled to effective assistance of counsel throughout the parole revocation proceedings. Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973); Commonwealth v. Vasquez, 255 Pa.Super. 545, 389 A.2d 111 (1978); Commonwealth v. Tarver,[271 Pa.Super. 142] 253 Pa.Super. 185, 384 A.2d 1292 (1978); cf. 16 P.S. § 9960.6(10) (Supp. 1978-79). ³

Given these principles, appellant's argument may be stated as follows: Appellant was entitled to counsel at the April 18 preliminary hearing. However, the district justice proceeded without counsel being present. The hearing was therefore a nullity. Since the hearing was a nullity, it could not serve as a Gagnon I hearing. Without a Gagnon I hearing, parole may not be revoked.

It will be observed that the soundness of this argument depends upon whether in fact appellant was entitled to counsel at the April 18 preliminary hearing. The...