Commonwealth v. Quinlan , 251 Pa. Super. 428 ( 1977 )

CERCONE, Judge:

In this appeal appellant contends that in several instances he was not afforded due process in connection with the revocation of his probation. We conclude otherwise and affirm the lower court’s order.

On November 26, 1974, following guilty pleas to the crimes of burglary, theft, receiving stolen property, possession of instruments of crime, and conspiracy, appellant was placed on probation for a total of nineteen years with the condition that he refrain from consuming alcohol during this period. In addition, appellant was committed to Haverford State Hospital until cured of alcoholism. Less than ten months later, on August 12, 1975, appellant was arrested in Delaware County and charged with rape and other offenses. As a result of this arrest, the Montgomery County Probation Office filed a notice of probation violation. Shortly thereafter, a preliminary hearing was held on the Delaware County charges and a prima facie case was established. Following a Gagnon II hearing on November 13, 1975, appellant’s probation was revoked and he was sentenced to a prison term of five to fifteen years on the original charges of burglary, theft, and receiving stolen property. A consecutive term of imprisonment of two to four years was imposed on the criminal conspiracy charge. This appeal followed.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) the United States Supreme Court held that an alleged probation violator is entitled to certain due process safeguards before probation may be revoked. Included among these several protections are: (1) written notice of the claimed violations of probation: (2) disclosure to the probationer of the evidence against him; and, (3) the right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation). Id. at 786, 93 S.Ct. 1756. See also Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975). In the case at bar, appellant contends he was not afforded the above three due process safeguards.

Initially, appellant argues he is entitled to a new Gagnon II hearing because the record does not reflect his having received written notice of the alleged probation violations. See Commonwealth v. Kile, 237 Pa.Super. 72, 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566, 344 A.2d 636 (1975); Commonwealth v. Henderson, 234 Pa.Super. 498, 340 A.2d 483 (1975); Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1975). It is important to note, however, that appellant does not contend he never in fact received written notice, but only that the record does not verify receipt.¹ In our opinion such a distinction is too fine. We hold that the dispositive consideration is whether notice was in fact received. In this connection, the Commonwealth has submitted as an appendix to its brief a letter from the Montgomery County Adult Probation-Parole Department to appellant charging him with violating probation, because (1) he was arrested and charged with rape and various other crimes arising from that criminal episode; and (2) he consumed alcoholic beverages. Moreover, appellant acknowledged receipt of this violation letter with his signature. Accordingly, we find that the requirement of written notice of the charges has been satisfied.

Appellant next contends he was denied due process of law by the Commonwealth’s failure to disclose the evidence against him. This contention is equally without merit. At the Gagnon II hearing the Commonwealth presented the testimony of appellant’s probation officer and that of the two police officers who investigated the alleged rape in Delaware County. Their testimony comprised the entire case against appellant, who was present when these witnesses testified and was given full opportunity to cross-examine. Apparently, appellant feels he was entitled to have the evidence against him disclosed in advance of the revocation hearing, but no authority is cited to support this proposition nor has our research disclosed any. To accept appellant’s contention would give a greater right of discovery to an alleged probation violator than is currently accorded defendants in criminal prosecutions. See Pa.R.Crim.P., Rule 310. In short, we are of the view that this rule relating to disclosure is simply intended to assure that at the revocation hearing the probationer is confronted with all of the evidence upon which any decision to revoke could be based. Instantly, the decision to revoke was predicated upon the Commonwealth’s evidence relative to the new charges and appellant’s consumption of alcohol. Since appellant was provided with written notice of these alleged violations and was present when the evidence relating to the violations was adduced, he was not denied due process.

Appellant’s final contention is that he was denied the right to confront and cross-examine adverse witnesses. This contention is grounded upon the fact that the victim of the alleged rape did not testify. All of the Commonwealth’s evidence concerning the circumstances surrounding the rape and appellant’s subsequent arrest was presented through the testimony of the arresting and investigating officers. While a large portion of the officers’ testimony was undoubtedly hearsay, the hearing judge, in accordance with Gagnon v. Scarpelli, supra, found good cause for not allowing confrontation.² Specifically, the hearing judge found that to compel the victim to testify would subject her to unnecessary embarrassment and harassment. In his written opinion the judge further notes that the victim was cross-examined at great length by appellant’s counsel at the preliminary hearing. In addition, as both the hearing judge and the Commonwealth point out, there is no allegation that the victim was not equally available to appellant had he wished to subpoena her. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).

Furthermore, the best evidence that appellant had violated probation was his own testimony. Appellant candidly admitted that, although he realized his probation was conditioned upon his refraining from alcohol, he nevertheless resumed drinking not long after being placed on probation. In fact, appellant admitted to drinking virtually the entire day prior to the rape, which occurred in the early morning hours of the following day. With respect to the rape, appellant testified he only simulated intercourse and wanted to help the victim but was fearful of his companion, William Caley, who, according to appellant, was the principal in the crime and forced appellant to participate.³ Appellant further testified that because of his fear of Caley and his own inebriated condition, he was precluded from rendering any assistance while Caley raped and beat the victim.

In light of appellant’s testimony, we are of the opinion that, apart from any evidence which might have been deemed inadmissible if the rules of evidence were given rigid application in revocation hearings, there existed sufficient competent and probative evidence to warrant revocation.⁴

Judgment affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins. PRICE, J., files a dissenting opinion.

1 . The record neither contradicts nor confirms receipt, it is simply silent on the matter. The reason for this void is that the issue of notice was never raised below. In Commonwealth v. Alexander, supra, we held that the issue of notice is not waived even where the probationer fails to object to this defect at the revocation hearing. Thus, the probationer’s attorney is acting in his client’s best interests by remaining silent and preserving an issue for appeal. While this does not excuse the Commonwealth’s failure to independently assure that the record evidences appellant’s receipt of written notice, it does shed light on the recurring nature of this problem.

2 . See also Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675 (1975); Commonwealth v. Davis, supra.

3 . Appellant’s companion, William Caley, was an escaped murderer from Berks County Prison. Appellant admitted to voluntarily drinking with Caley the entire day and bringing him back to his apartment where the rape took place. Appellant could not clearly state when he first learned Caley was an escaped felon.

4 . Appellant also argues his right of confrontation was further abridged when he was denied access to a statement he gave to the officers investigating the rape. We need not reach this question in view of our conclusion that appellant’s own testimony supplied ample justification for revoking probation.