Commonwealth v. Gochenaur

480 A.2d 307, 331 Pa. Super. 187, 1984 Pa. Super. LEXIS 5681
CourtSupreme Court of Pennsylvania
DecidedAugust 10, 1984
Docket1297
StatusPublished
Cited by16 cases

This text of 480 A.2d 307 (Commonwealth v. Gochenaur) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gochenaur, 480 A.2d 307, 331 Pa. Super. 187, 1984 Pa. Super. LEXIS 5681 (Pa. 1984).

Opinions

HESTER, Judge:

On November 9, 1981, appellant, Edward L. Gochenaur, Jr., pled nolo contendere to terroristic threats and to two unrelated charges of theft in the Court of Common Pleas of [190]*190Lancaster County, Pennsylvania. Appellant was sentenced to concurrent terms of imprisonment of not less than time served nor more than twenty-three months on the terroristic threats bill and one theft bill. A one-year period of probation was imposed on the remaining theft bill. With credit given for time served, appellant was released on parole at the imposition of sentence. As a condition of parole, the court instructed appellant to avoid contact with the victim, Doris Glouner.

On December 8, 1981, appellant was charged with simple assault. A prima facie case on this charge was established against him on December 22, 1981. Also, on November 10, 16 and 17, 1981, appellant telephoned Doris Glouner, a further act in violation of his parole. Due to the pending simple assault charges and the telephone calls to Ms. Glouner, a capias was issued on December 9, 1981 to commit appellant to Lancaster County Prison as parole revocation proceedings were instituted.

Following a Gagnon I hearing on March 15, 1982, appellant was detained for a parole revocation hearing on April 2, 1982. Appellant was there found to be in violation of his parole; consequently, parole was revoked and appellant was sentenced to serve the unexpired balance of each sentence imposed on November 9, 1981.

Appellant’s motion to modify the sentence was denied April 21, 1982. This appeal was taken from that Order.

Appellant first contends that the Commonwealth did not prove a violation of the conditions of his parole by a preponderance of the evidence. Doris Glouner testified at the parole revocation hearing that she knew appellant for two years prior to November, 1981, and spoke to him over the telephone every week for one year prior to that time. She further testified that on November 10, 1981, her telephone rang on approximately eight occasions. Following her answer, the caller did not speak; Ms. Glouner heard breathing only. On the final call of that date, the caller uttered, “You’re dead.” Ms. Glouner identified the voice as appellant’s. On November 16 and 17, 1981, her phone rang [191]*191incessantly. Each time Ms. Glouner answered she received no intelligible response; only the caller’s breathing was audible. Appellant is of the opinion that the two words uttered by the caller on November 10, 1981 and the numerous calls when only breathing was heard are not sufficient to support Ms. Glouner’s identification.

Appellant also claims that a violation of his parole was not proven by a preponderance of the evidence inasmuch as the victim of the simple assault did not testify at the revocation hearing. According to appellant, no reason was given for the victim’s failure to appear. The victim’s absence allegedly deprived appellant of the opportunity to examine the victim concerning a letter which she wrote to appellant’s mother. Appellant contends that this letter damaged the testimony given by the victim at the preliminary hearing.

The Commonwealth’s burden at a parole revocation hearing is less onerous than that which it assumes at trial. A parole violation is proven by a preponderance of the evidence. Commonwealth v. Del Conte, 277 Pa. Super. 296, 419 A.2d 780 (1980); Commonwealth v. Lipton, 238 Pa.Super. 124, 352 A.2d 521 (1975). This lighter burden of proof reflects the policy of a parole revocation hearing whereby the emphasis is whether parole is an effective tool to promote rehabilitation and deter “future antisocial conduct.” Commonwealth v. Kates, 452 Pa. 102, 115: 305 A.2d 701, 708 (1973). In Kates, our Pennsylvania Supreme Court applied statutory law, constitutional law and policy considerations to conclude that the revocation of parole is proper prior to trial on those charges constituting the parole violation. Here, the arresting officer in the simple assault proceedings testified at the revocation hearing that appellant was bound for court on the simple assault charge on December 22, 1981. Appellant corroborated this. In light of Kates, the prima facie evidence of simple assault proved a violation by a preponderance of the evidence. The absence of the simple assault victim from the revocation hearing affected the weight of the Commonwealth’s evi[192]*192dence. It did not, however, require a reversal of the order revoking parole.

Appellant’s interpretation of Commonwealth v. Maye, 270 Pa. Super. 406, 411 A.2d 783 (1979), is incorrect. The Maye court did not create for appellant the absolute right to confront the simple assault victim at the revocation hearing. Instead, it espouses his right to confront adverse witnesses excluded from the hearing, yet whose statements are introduced as hearsay evidence. Here, where a prima facie case of simple assault is incontrovertible, we do not believe that Maye can be extended to guarantee appellant an opportunity to cross-examine the simple assault victim.

Moreover, despite the few words spoken by appellant, Ms. Glouner identified appellant’s voice without reservation. In light of our limited scope of review and the Commonwealth’s light burden of proof in revocation proceedings, we will not question the lower court’s assessment of Ms. Glouner’s credibility. Violation of parole conditions, then, was found in two instances: 1) the prima facie finding of simple assault, and 2) appellant’s contacting Ms. Glouner. Either justified the revocation of parole.

Next, appellant argues that the parole revocation hearing was not promptly held as required by Pa.R.Crim.P. 1409. Rule 1409 provides, in pertinent part, as follows:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.

This requirement of a speedy revocation hearing is a codification of our courts’ pronouncements that revocation hearings must be held with “reasonable promptness” after a probation officer is chargeable with knowing that probation has been violated. Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978); Commonwealth v. Holmes, [193]*193248 Pa.Super. 552, 375 A.2d 379 (1977). Whether the revocation hearing is held with “reasonable promptness” is determined by the facts and circumstances of the matter at hand. A three-part analysis is institutued: the length of the delay, the reasons for the delay and the prejudice imposed by the delay on the defendant. Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979): Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Waters,

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Commonwealth v. Gochenaur
480 A.2d 307 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
480 A.2d 307, 331 Pa. Super. 187, 1984 Pa. Super. LEXIS 5681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gochenaur-pa-1984.