Commonwealth v. Davis

586 A.2d 914, 526 Pa. 428, 1991 Pa. LEXIS 32

Opinions

OPINION IN SUPPORT OF AFFIRMANCE

FLAHERTY

Footnotes

•

*, Justice.

In this appeal we reconsider the due process requirements pertaining to juvenile proceedings.

On May 6, 1985, the appellee, Harvey Davis, a juvenile, was adjudicated a delinquent by the late Honorable Wilhelm F. Knauer, Jr., on a charge of behavior constituting simple assault. Judge Knauer placed Davis on probation with the condition that he return to school without absences, lateness, or suspensions, and directed his probation officer to file a motion for unsatisfactory probation should Davis have more than two unexcused absences from school.

On September 16, 1985, Davis was brought before Judge Knauer on a motion for amendment or review of probation. Davis’s probation officer, Patricia Simon, did not appear at the hearing. Instead, Frank Davis, a supervisor in the juvenile division of the family court, appeared and testified as follows:

THE COURT: You have been supervising this young man?

MR. DAVIS: Miss Patricia Simon is the probation officer, but I got involved with the case because of his 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—

MR. MILLER: Objection, respectfully.

THE COURT: Overruled.

MR. DAVIS: 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 the best thing to bring the case back to Court, and, perhaps, commit him somewhere to find out just what was going on, because, also, the school report wasn’t good.

On the sole basis of this hearsay testimony, Judge Knauer revoked Davis’s probation and committed him to the Glen Mills Diagnostic Center.

Davis appealed to the Superior Court, which, sitting en banc, reversed the juvenile court order revoking his probation. 377 Pa.Super. 46, 546 A.2d 1149. We granted allocatur to determine whether the hearsay evidence quoted above was admissible in the juvenile hearing.

Any difficulty in answering this question springs primarily from two factors. First is the hybrid nature of a probation revocation hearing, which has elements approximating the adjudicatory stage of a juvenile proceeding as well as elements partaking of the dispositional phase of the juvenile process. Determining whether to treat the probation revocation as adjudicatory or dispositional is tantamount to determining the ultimate issue in the case, viz., whether traditionally inadmissible hearsay testimony can be the sole basis for a deprivation of liberty. Second, the guidance of precedent is almost entirely limited to analyses under the federal Constitution. That is, most cases which shed light on the question¹ are analyses of the strictures imposed by the due process clause of the Fourteenth Amendment of the United States Constitution. Although binding, the federal due process clause may not be controlling if the due process clause of the Pennsylvania Constitution sets a higher standard.

The Pennsylvania Constitution was adopted prior to the federal Constitution, and using the language of the Magna Charta (“Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur ... nisi per legale judicium parium suorum, vel per legem terrae”) which has been incorporated virtually word for word in Article I, Section 9, states that an accused cannot “be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.” The phrase “law of the land” is equivalent to the due process language in the federal Constitution, and has been referred to as “the due process clause of our state constitution.” Commonwealth v. Heck, 517 Pa. 192, 194-95, 535 A.2d 575, 576 (1987).

If it were clear that juvenile probation revocation is adjudicatory in nature, our task would be easy; it would be equally simple if the proceeding is clearly dispositional. In adjudicatory proceedings, hearsay evidence is prohibited by state statute, 42 Pa.C.S. § 6338(b), and the due process clause of the United States Constitution, In re Gault, 387 U.S. 1, 57, 87 S.Ct. 1428, 1459, 18 L.Ed.2d 527, 562-63 (1967). In dispositional proceedings, the state statute permits the use of hearsay evidence, 42 Pa.C.S. § 6341(d), and the United States Supreme Court has not interpreted the federal Constitution to prohibit its use, In re Gault, 387 U.S. at 13, 87 S.Ct. at 1436, 18 L.Ed.2d at 538.

Nomenclature, however, does not determine the nature of the proceeding. Merely calling it adjudicatory, for instance, does not make it so. In reality, juvenile probation revocation is neither adjudicatory nor dispositional, strictly speaking, but has elements in common with both. Analogizing to adult criminal proceedings, we recognize that due process requires in probation and parole revocation proceedings some but not all of the safeguards necessarily afforded criminal defendants at trial, due to the unique character and purpose of the revocation proceeding. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thus it is fruitless to attempt to categorize the revocation proceeding as adjudicatory or dispositional, when it is neither; it is necessary, instead, to isolate the elemental, bedrock constituents of the proceeding in order to identify and specify the safeguards required by due process.

What is critical to our decision is that Davis’s probation revocation required the proof of new facts constituting misbehavior and resulted in the forfeiture of a substantial liberty interest. We have stated before: “Fundamental due process requires that no adjudication be based solely upon hearsay evidence. This tenet of our law is not a ‘technicality,’ but rather lies at the root of the truth determining process.” Commonwealth, Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 619, 427 A.2d 631, 647 (1981) (Flaherty, J., concurring) (emphasis added). The deprivation of life, liberty, or property solely upon hearsay evidence offends our sense of justice and our concept of due process.

The suspect nature of hearsay evidence has been a consistent concern of this Court. For example, in Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981), we reversed a first-degree murder conviction due to admission of hearsay evidence. We stated: “The statement in question here is precisely the type of unreliable out-of-court declaration the hearsay rule was designed to exclude.” Id. at 396, 431 A.2d at 913. In Johnson v. Peoples Cab Co., 386 Pa. 513, 515, 126 A.2d 720, 721 (1956), the late Justice Musmanno wrote for a unanimous court that “nothing is more adamantly established in our trial procedure than that no one may testify to what somebody else told him. He may only relate what is within the sphere of his own memory brought to him by the couriers of his own senses.” See also Black’s Law Dictionary (4th ed.) (“The very nature of [hearsay] evidence shows its weakness, and it is admitted only in specified cases from necessity.”).

Whenever the liberty of an individual, juvenile or adult, is at risk, fundamental due process is essential. If there is doubt that the due process clause of the Fourteenth Amendment of the United States Constitution forbids the use of hearsay in a juvenile probation revocation hearing,² there is no doubt that the due process clause of the Pennsylvania Constitution prohibits the deprivation of liberty solely on the basis of hearsay evidence.

The Court being equally divided, the judgment of the Superior Court is affirmed.

LARSEN, J., files a concurring opinion. NIX, C.J., files a dissenting opinion, joined by McDermott and papadakos, jj. McDERMOTT, J., files a dissenting opinion. CAPPY, J., did not participate in the consideration or disposition of this case.

This opinion was reassigned to this author.

1

. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

2

. See cases cited in note 1 supra.