Commonwealth v. Kile

Superior Court of Pennsylvania

Commonwealth v. Kile

346 A.2d 793, 237 Pa. Super. 72, 1975 Pa. Super. LEXIS 1750

CourtSuperior Court of Pennsylvania

DecidedOctober 28, 1975

DocketAppeal, 81

StatusPublished

Cited by13 cases

This text of 346 A.2d 793 (Commonwealth v. Kile) is published on Counsel Stack Legal Research, covering Superior 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. Kile, 346 A.2d 793, 237 Pa. Super. 72, 1975 Pa. Super. LEXIS 1750 (Pa. Ct. App. 1975).

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Opinions

Opinion by

Hoffman, J.,

Appellant contends, inter alia, that his parole was improperly revoked because he did not receive written notice of his alleged parole violations. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that written notice of the claimed violations of parole is one of the minimum due process safeguards which must be afforded to a claimed parole violator. See also Commonwealth v. Kates, 452 Pa. 102, 305 A. 2d 701 (1973). Although this issue was not raised in the court below, we are not precluded from addressing the merits of appellant’s contention: “The probation revocation hearing . . . was not intended as the forum in which the strictures of the rules of evidence are to be tested, but rather as the forum in which the probative value of evidence produced warrants the continuation of probationary status, or the revocation thereof. Whereas we agree that raising the issue at this early stage would facilitate the legal process, it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Commonwealth v. Alexander, 232 Pa. Superior Ct. 57, 62, 331 A. 2d 836, 838-839 (1974).

It should also be noted that appellant did not receive the two hearings required by Gagnon v. Scarpelli, 411 [74]*74U.S. 778 (1973), and Morrissey v. Brewer, supra. The one hearing appellant did receive did constitute a Gagnon I hearing, in that probable cause to believe that a violation of parole had occurred was shown, but the case should be remanded for a Gagnon II hearing to determine whether parole should be revoked. See Commonwealth v. Henderson, 234 Pa. Superior Ct. 498, 340 A.2d 483 (1975) ; Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975).

Judgment of sentence is reversed, and the case remanded to the lower court for further proceedings consistent with this opinion.

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Opinion by

Hoffman, J.,

Appellant contends, inter alia, that his parole was improperly revoked because he did not receive written notice of his alleged parole violations. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that written notice of the claimed violations of parole is one of the minimum due process safeguards which must be afforded to a claimed parole violator. See also Commonwealth v. Kates, 452 Pa. 102, 305 A. 2d 701 (1973). Although this issue was not raised in the court below, we are not precluded from addressing the merits of appellant’s contention: “The probation revocation hearing . . . was not intended as the forum in which the strictures of the rules of evidence are to be tested, but rather as the forum in which the probative value of evidence produced warrants the continuation of probationary status, or the revocation thereof. Whereas we agree that raising the issue at this early stage would facilitate the legal process, it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Commonwealth v. Alexander, 232 Pa. Superior Ct. 57, 62, 331 A. 2d 836, 838-839 (1974).

It should also be noted that appellant did not receive the two hearings required by Gagnon v. Scarpelli, 411 [74]*74U.S. 778 (1973), and Morrissey v. Brewer, supra. The one hearing appellant did receive did constitute a Gagnon I hearing, in that probable cause to believe that a violation of parole had occurred was shown, but the case should be remanded for a Gagnon II hearing to determine whether parole should be revoked. See Commonwealth v. Henderson, 234 Pa. Superior Ct. 498, 340 A.2d 483 (1975) ; Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975).

Judgment of sentence is reversed, and the case remanded to the lower court for further proceedings consistent with this opinion.

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346 A.2d 793, 237 Pa. Super. 72, 1975 Pa. Super. LEXIS 1750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kile-pasuperct-1975.

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