*1 Aрpellant. Commonwealth v. Kates, Appellant. McClellan, Commonwealth Reed. Petitioner, v. Allen, *2 1972. Argued January J., Before C. Jonhs, and Man- Nix Eagen, O’Brien, Roberts, Pomeroy, JJ. DERINO, *3 Pachel, him
John W. Assistant Defender, 8. Francis Assistant Vincent J. Wright, Defender, and for Ziccardi, and Defender, petitioner appellants. Judith Assistant with her Dean, District Attorney, Stein, M. Milton Assistant District James Attorney, D. District Richard A. Crawford, Deputy Attorney, Assistant Arlen First District and Sprague, Attorney, for Specter, appel- District Attorney, Commonwealth, lee. D. District Crawford, Deputy
James Attorney, Arlen Specter, Attorney, respondent. District Opinion May 8, 1973: Mr. Justice Nix, presented issue principal consolidated a probation violation hearing may whether appeal be held to the for criminal which prior charges trial are based activities rise to the gave on same which In cases the alleged violation. each these the violation hearing judge attеmpted hold, or held, trial on to the probation hearing prior probationer’s substantive offense. Commonwealth v. Kates proba- Commonwealth v. McClellan are appeals from tion revocations and sentence judgments imposed; Allen v. prohibition Reed is a for writ of petition seeks to on James Allen’s prevent hearing revocation his alleged probation violation from being prior held trial on the substantive criminal A charge. separate factual summary for each of the appeals follows.
Commonwealth v. Kates In October of appellant, Daisey Kates, was in a on tried, non-jury trial, charges of wantonly a firearm pointing aggravated assault and battery. Following adjudication of guilt, placed she was three years probation on the charge aggravated as- sault and and sentence battery, on the suspended charge wantоnly a firearm. In pointing June again Miss Kates arrested, this time for and on homicide, July 16, 1970, a of proba- tion was conducted. on the Primarily basis of an incriminating statement attributed the appel- lant, hearing judge found that she had shot and Her killed Frank Jordan. year three probation was she revoked and was sentenced to three years in the *4 State Correctional Institution at which Muncy, was to reduced subsequently twenty-three and one-half months. not Appellant did at testify this hearing. imposition
After of sentence, post-trial motions on the assault and aggravated battery charge al- were pro be filed tunc. lowed to nunc Following argument, were denied and an appeal motions these was filed in certified us to Superior appeal Court. This was to the heard raised companion with the two cases which hearing holding issue of the of the violation propriety to the trial. prior motion
Subsequent to the revocation of a probation, by appellant to the statement made was suppress taken from that granted. appeal ruling No was found appellant guilty slay- eventually was Frank Jordan. ing v. McClellan
Commonwealth the Cleo guilty McClellan entered plea was on November charge burglary 18, 1969, 1969, on On December placed eight years probation. assault with appellant charged was arrested trial intent On April 8, prior ravish. hearing the new violation offense, hearing conducted1 and the revoked judge term three ten years. and sentenced to a appellant officer testified he saw hearing, police At pulling with a appellant young lady, struggling in one she her direction while was pulling away car approached and that as soon as him, police and appellant came over to it walked girl quickly counsel to tes wаs advised away. Appellant his hearing testimony might since there tify subsequent him at his trial on criminal prejudice charges. appel- the revocation his
Following probation, charges, tried on lant was were revocation. He found basis probation hearing. prior the second violation This was A February 9, hearing judge held on but had been appellant had not been constitu- afforded Ms determined right accusers. confront his tional *5 of assault guilty battery, and and not assault guilty of with intent to ravish.
An was taken the appeal imposed sentence Superior The Court hearing. affirmed of sentence. This judgment followed. appeal
Allen v. Eeed On plea Allen of May 7, 1971, James entered guilty charges of liot and and was sen- conspiracy tenced to probationary concurrent terms five two years. May 1971, police stopped On auto- mobile in which the appellant passеnger was a found in it a Allen single packet narcotics. then arrested and charged and use of possession Appellant’s narcotics. the revocation request hearing be after continued until the trial that would determine appellant whether guilty pos- fact session of narcotics was denied.
On July 12, day proba- scheduled for the tion violation counsel for hearing, appellant filed a petition prohibition writ with this Court and hearing judge agreed postpone his violation hear- ing until after our decision on the writ. Applicable Statutory Authority
T. As the issue shared noted, by each of these appeals concerns the propriety holding probation violation violation hearings alleged where consists of activi- ties which also constitute the basis for criminal charges before the trial for these subsequent offenses has been held. No has been raised question concerning of the court the first power impose instance order and the parties also agree that have the power court does to revoke a sentence when there impose prison has been viola- when dispute arises probation. tion has been a there determine whether hearing that held and nature of may violation *6 the To resolve process. with due comply to necessary the look first to we must complex presented issues the subject. on this Commonwealth law of statutory the granted been judges of state have trial and place to of sentence suspend imposition the right pro statutory an three on under individual of Au is the Act The most recent provision visions. pro §331.25, L. 61 P.S. gust §25, P. 6,1941, 861, be guilty shall found any person vides: “Whenever or other plea, offense verdict by jury, any court first in any in the wise, except degree, murder power, shall have of this thе court the Commonwealth, per if the character of the in its it believes discretion, that the case to be such son and the circumstances of in a course of criminal likely again engage he is not to demand or and that the does not public good conduct imprisonment, of a sentence require imposition place person imposing sentence, instead of such as shall period on definite the court for such imprison maximum exceeding period direct, offense such for the for which ment allowed law earlier were imposed.” The acts might sentence amended, L. 1055, §1, the Act June P. Act P. L. May 10, 1909, 19 P.S. and the §1051, act this section of the latter Since §1, P.S. §1081. will language of the former we the identical contains 1 of of the two acts.2 Section refer to the later only shall any person “Whenever provides: the Act of of this Commonwealth of any any court be convictеd repeated provisions Act are of 1909 Most of they they are inconsistent have been held to and Act of 1911 where subsequent 19, 1911, repealed by act. Act of June been have 1055, §4. P. L.
crime, except murder, administering kidnap- poison, ping, incest, sodomy, buggery, rape, assault bat- tery arson, robbery, intent or ravish, burglary, and it does not to the said court that the de- appear fendant has crime, ever before been imprisoned either in this State or elsewhere detention an (but institution for juvenile delinquents shall not be con- sidered be- imprisonment), and where said court lieves that cir- character of the defendant and the cumstances of the case such that he or she is likely again engage offensive conduct, course public does not or good demand require the defendant should suffer the penalty imposed by law, the said court shall have power suspend imposing оn sentence, place the defendant for a definite period, such terms and con- *7 ditions, including the of for the payment money use of the county, exceeding, however, fixed fine by for of law conviction as such it deem offense, may right and proper; said terms and conditions to be duly entered of record as a part of the of judgment the court in such case. such No condition for the payment shall money be considered as the imposition of a fine or a prevent sentence nor the court from thereafter sentencing defendant any under under which act he or she was convicted, upon violation of or her his parole.”
Unlike the relationship between the Act 1909 and 1 Act of section of 1911 1911, the Act and sec- tion 1941 25 of the Act of significant differ several 1 Section respects. proba- restricts the imposition of tion to one who been has conviсted of crimes than other murder, administering poison, kidnapping, incest, rape, assault and sodomy, buggery, battery with intent or robbery to ravish, arson, burglary. Section 25 only one convicted murder excludes the first provisions. of its benefits
degree receiving proba- allows also differ section The sections imprisoned before been has never tion one who only restriction. such section 25 contains no for crime and in legislative defining In construing statutes in legislature does it is axiomatic that tention unreason or contradictory a result that is absurd, tend P. L. art. IV, §52(1), May 28, 1937, able. Act of Annexation Case, See Millersville §552(1). 46 P.S. Commonwealth (1972); 447 Pa. 290 A. 2d 248 A. Constructors, Inc., 432 Pa. 2d Public are not variance. We believe these sections (1968). establishment with the The Act of 1941 concerned was al Parole. Board of Section of the Pennsylvania specially probations lowed courts to order our of the board.3 reаson supervision under the of the more serious allowing probation section 25 the supervi fender confidence in legislative the new board that by sion that would be exercised the supervi had established as opposed Act those under placed sion that would be received departments provided by county probation various the Act 1911.4 for either given authority the Board was not
Since for those determining revoking probation a violation or 25 there under section supervision their placed under no 1941 to mention reason for the Act disagree and it in fact did not. We function *8 1941 that Act of trial concluded since the who judge there was no statu- did not for revocation provide imposed revocation of a probation for provision tory before, draft- section 25. As has been stated under 3 pertain of the Act of which also See sections 17 26 1941 by supervision the bоard. 4 §3, 19, 1911, amended, P. L. as June Act of June 569, §1, §1053. 19 P.S. P. L.
Ill the Act 1941 ing the was concerned with legislature referred powers duties of the Board and only to provide because it wished to the court election to within the place supervision control of the Board. there However, being change no intended in the power to revoke where violation had there was no for occurred, addi need tional legislation and the power provided remained as Act of 1911. We therefore hold that section of the Act of 19115 controls revocations whether probation was entered under the of the Act authority or Act of 1941. Section “When provides: a person ever placed probation, shall aforesaid, violate the terms his or her he or she probation, shall be subject to arrest in the same as in the manner case of an escaped convict; and shall be be brought fore the court him which released or her on probation, may thereupon pronounce court such de upon fendant such sentence as may be prescribed by law, begin such time as the court direct.” may From this review of applicable statutes it is clear that there is no restriction statutory this State that prevent would the court from holding hearing where the alleged violation is the commission of an offense during probationary period prior to the trial for offense. subsequent Propriety Conducting Hearing IT. or Revocation
Prior to Trial we have found Although there is statutory no limitation which restricts a judge of this Common- 19, 1911, 1055, §4, Act of P. June L. 19 P.S. §1055. probations petitioners The record reveals that Kates petitioner Act Allen were under the 1911. The placed supervision Pennsylvania under McClellan was pursuant Board of Parole the Act of 1941. *9 violation a conducting in weаlth offense, appellants a subsequent trial of to the prior considerations and policy constitutional urge disallowed. should be practice this dictate that would an alleged based on is argument The constitutional supposedly this procedure tension” that “unjustifiable self-incrimination against right creates between the rely heavily Appellants process. of due the right which 377 (1968), 390 U.S. States, United Simmons In us. to the cases before analogous consider they in the placed Garrett, defendant, Simmons, Amendment a Fourth electing dilemma assert Fifth Amendment losing the pain claim under this stand- necessary to establish testimony right. ad- Amendment claim was an Fourth assert ing to estab- necessary crime of an element mission proven. otherwise been not have might which guilt lish “Those Court reasoned Supreme In that case, testimony the admission of allowed have courts which is have reasoned that thеre standing to establish given Fifth Amendment’s Self-Incrimina- no violation As testimony voluntary. Clause because tion well be A defend- may true. matter, this an abstract of a motion to testify support ‘compelled’ is ant if sense that he refrains only suppress forgo testimony he have benefit, will testifying as a matter of law involuntary simply always is not a benefit. to obtain given However, it is because underlies this reasoning is that which assumption choice: he refuse to may testify has defendant When this assumption applied the benefit. is up give ‘benefit’ gained to be is that a situation of the Bill of provision another Bights, afforded created.” is U.S. at 393-94 tension undeniable omitted). (footnotes
We are for two persuaded by argument reasons. are not First, we convinced that Simmons to the analogous before In appeals presently us. Sim mons, defendant did fact testify during sup *10 pression the in hearing, incrimina testimony fact and the court tory, permit did that be testimony to used him in the against subsequent trial. In the cases and Kates Commonwealth v. Mc Commonwealth Clellan, the appellants elected to Fifth rely upon their Amendment rights were permitted to do so. In the case of Allen v. Reed, proceedings interrupted were before the violation hearing was held. in the Thus, before appeals the record is barren us, incrim any inatory statements which could fact be used against these appellants at the subsequent trial. in this Also, situation it is difficult to conceive of any testimony may that have been helpful during violation hear ing that would be incriminating at the time of trial. The position of appellants the instant case is tantamount to a request that we attempt to speculate as to what may have occurred if the appellants had elected to and their testify testimony introduced them at the agаinst subsequent proceeding. We have held in that many cases we will not attempt to resolve constitutional issues the specific unless issue is before and the resolution of the issue court is absolutely necessary the decision of the case.7 we Secondly, reject also appellants’ contention that Simmons is controlling because we believe that of Simmons language is limited by the more de- recent cision of the Supreme Court McGautha v. California, 402 212-13 183, U.S. : (1971) “While we have no occa- 7 e.g., Triangle See, Publications, Binder v. Inc., 319, 442 Pa. City Piping (1971) ; Misitis v. Steel Co., A. 2d 275 53 441 Pa. (1971) ; Drug Shuman v. Bernie’s A. 272 2d 883 Concessions, (1963). A. 2d Pa.
sion to the result in Simmons question soundness the extent that its rationale was do do so, constitutional rights based on ‘tension’ between them, validity reasoning behind policies and it cer- regarded open question, must now be broad thrust which is at- given cannot tainly to it case. by Crampton present tributed is legal like the rest of the process, system, of dif- replete requiring making with situations ‘the Mc- ficult course to follow. judgments’ as at Mann v. L. Ed. Bichardson, U.S., 2d, may 772. a defendant have a even Although right, dimensions, to follow whichever course constitutional token he Constitution does not chooses, him forbid to choose. The threshold requiring always the election compelling question impairs whether *11 any extent of the behind the policies an appreciable rights involved.” it clear makes that constitution does
McG-autha of making eliminate the difficult judgments. does that an election such as say are not prepared We in case sufficiently impairs suggested one involved to the extent that rights behind the policies is raised. prohibition a constitutional next that contends since a violation Appellant by the a subsequent occasioned arrest, hearing judicial time man- to the conservation viеw against rule two conducting would power assumes that argument This the issues “trials”. are identical. We agree. do not proceedings the two trial the issue is whether ele- subsequent At or offenses are charged present the offense ments is the Commonwealth upon to estab- the burden elements requisite a beyond of the reasonable all lish probation a focus of violation hearing, doubt. a by subsequent is prompted arrest, though even probationer whether the conduct indicates proven has to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct.8 appellants argue
Nevertheless, the interest judicial economy, probation hearing a violation of prior should not be conducted to the trial of the crim- charges inal which arose out of same acts. How- possibility we bеlieve duplicating ever, that the ef- outweighed by policies fort is far other which dictate right adjudicate parole that the court’s violation prior subsequent to the trial should not be curtailed. objective This is true because the basic provide a means to achieve rehabilitation without resorting apparent to incarceration. When it becomes probationary serving that the order is not this desired impose appropri- end the court’s discretion to a more Initially, ate sanction should not be fettered. when impose only the court decides to order it is balancing society protect- after first the interest of against possible ing future criminal behavior of the with the benefit he individual would receive re- maining prison. Certainly, society free has the right expect prompt hearing probationer when a allegedly engaged activity. has a сourse of criminal respect argument policy
With to this we also note jurisdictions recently have that other considered the question to conduct a whether upheld procedure. prior trial and have For ex- *12 ample, Rhode Island case in the of Flint v. Howard, 8 grant and the right the Act of 1941 Act of Botli 1911 has reason the court to believe where that the defendant engage again likely in an offensive course is conduct and require good public or not demand does that the defendant by imposed penalty 61 §331.25; law. suffer P.S. should 19 P.S. §1051.
116
held that
it was
291 A.
625 (R.I. 1972);
2d
robbery
on a
not entitled to
tried
was
petitioner
led to
circumstances which
indictment before the
sentence
deferred
at his
could be shown
indictment
notwithstanding
so
This was
hearing.
violation
charge,
on the robbery
to trial
brought
fact that when
v.
Similarly,
Borges
acquitted.
petitioner
specifically
the court
(Fla. 1971),
249
2d 513
So.
State,
pro
criminal
subsеquent
fact that
held that “the mere
against
the proba
been
may
pending
have
ceedings
con
of itself be
grounds
not in and
tioner would
could
hearing.
probationer
revocation
tinue the
probation, notwithstanding
his
right
have lost
acquitted
subsequent
have been
may
fact he
result
249
2d at 514. This same
So.
charge.”
criminal
least
cases: Davis
following
reached
has been
1971)
2d 63
court
State,
(Ind.
(the
v.
267 N.E.
were
charges
out
that criminal
pointed
specifically
alleged
pro
to constitute the
the same acts
pending
v.
3
violation)
Patterson,
bation
State
Ore.
;
App. 480,
court
the revocation
(the
upheld
ings the acts violation amount where activity, some reason there were but where either no criminal charges probationer placed pending or the under ar- subsequent his trial likelihood of was not noted in the rest but State, App. opinion. v. Ga. See Bullock S.E. court’s Washington, App. ; (1970) Ariz. State v. P. 2d 2d 163 State, Ortega (Tex. App. 1967). (1967) ; 2d 414 S.W.
117 rejected proposi- Several federal cases have also the impermissible that it tion to conduct revocation of probation proceedings prior the on trial the crim- charge. inal In United v. F. 2d States 429 Chambers, Appeals upheld (3rd 1970), 410 Cir. the Court of the petition probation of a federal denial to vacate a revo- hearing prior order entered after a cation but to a state receiving charges larceny, goods trial on stolen operating a motor vehicle the without the consent of Although part- owner. revocation order was based ly finding upon appellant guilty a that a was charge prose- for hit-run which he was violation, Appeals cuted the state the Court of also court, part charges the order was based on noted pending in were then which state court, and appellant acquitted. was later To the ef- same (2d United v. fect is States 348 F. Markovich, 2d 238 probation 1965), Cir. where violation of was prior conducted revoked trial Again burglary in a state court. revoca- only constituting based on tion conduct alleged activity, but also on other acts prosecution pending. for which there no Similar- ly, (8th Jianole v. United States, F. 2d Cir. 1932) Supp. v. and United States F. Feller, 1957), (D. necessary Alaska it was held that it is not probationer be tried and convicted alleged hearing before а crime revocation may held. Requirements Dub
III. Process permissible Having that it is concluded to conduct hearing before we trial, must a revocation now deter- rights constitutional mine whether the instant Initially appellants violated. were we note that Mor- rissey (1972), 408 U.S. Brewer, set out the- minimum, requirements process due specifically Supreme hearing.10 Court There deciding the mini task is limited stated: “Our They process. include requirements of mum due *14 parole; (a) violations of the claimed written notice of against parolee (b) him; evidence disclosure to person present (c) opportunity in and to heard to be (d) right documentary to evidence; and witnesses (unless adverse witnesses confront and cross-examine specifically good hearing finds cause officer (e) confrontation); allowing de- a and ‘neutral parole body hearing as traditional such tached’ judicial officers need not be members which board, lawyers; (f) the fact- statement and a written or for re- relied and reasons to the evidence finders as thought emphasize voking parole. there is no We parole stage equate a crim- revocation to second this any inquiry; prosecution in It sense. is narrow inal enough process flexible consider evi- should be including and other material letters, affidavits, dence adversary criminal not be admissible that would at 488-89. trial.” TT.S. any Morrissey, decision has nor other that
Neither required has that a attention, come to our revoca- procedural same conducted with the be tion apply evidentiary as a trial on the rules would growing charges of the out same facts. In rights probationers parolees area of this controlling not whether the factor is traditional rules procedure including or Fourth and Fifth of evidence еxclusionary strictly rules have been ob- Amendment Morrissey also note that we believe that v. should we applicable supra, Brewer, revocations as is well parole thus the Due Process Clause Four revocations requires state afford an individual Amendment teenth prior opportunity heard to a revocation order. some served, but whether rather probative of the value evidence has been affected. As discussed above, purpose revocation healing to establish simply to the satisfaction of the judge granted probation who continuing individual’s conduct warrants his probationer. as a We are now in the de- position of termining whether any ap- evidence involved these peals must be excluded its because of inherent unreli- ability.
Other courts have also been confronted with issue whether evidence obtained violation of probationer’s Fourth or Fifth Amendment rights should be admissible for purposes determining whether probation or In parole should be revoked. United ex States rel. 426 F. Sperling Fitzpatrick, 2d Cir. (2d the Court of three 1970), Appeals separate *15 carefully and opinions policy considered set down the holding behind ex- ordinary Fourth Amendment clusionary applicable rules are to revocation hear- ings. Judge Hays stated:
“The be a rule is believed to exclusionary necessary zeal restraint the adversarial of law enforcement officials. ‘As it the rule need- function, serves is a but ed, taken, medicament; no more should grudgingly be than is needed to combat the swallowed disease.’ A 2255: Com- Amsterdam, Search, Seizure, Section 112 Kev. 389 ment, (1964). U. Pa. L.
“. . . A revocation is concerned proceeding Parole im- with and most only protecting society, also, but with to useful portantly rehabilitating restoring the the Parole Board. those of placed custody lives parole revocation exclusionary rule to apply To the parole to obstruct system would tend proceedings remedial purposes. in accomplishing its application “There is need double of the ex- no it first as it was used using here clusionary rule, 120 the parolee criminal prosecution
preventing hearing. revocation de- parole time second exclusionary adequately rule is purpose terrent unlawfully seized evi- the exclusion served 426 F. 1163- 2d at prosecution.” in the dence is United the same effect 64 To (footnotes omitted). F. Supp. ex rel. Lombardino v. Heyd, States There probation. which dealt with (E.D. 1970), La. rule “Expansion exclusionary the court stated: in all likelihood hearings revocation would deterring unconstitu- purpose further its laudable good enforcement. But of law tional methods be balanced expansion must be obtained such unique to the will result due the harm which against hear- purpose nature and If rehabilitative function ing. imperative fostered, it seems
system to be and discretion the responsibility judge charged aware fully or revoke probation to grant, deny case.” particular in a all facts and circumstances United See F. at 651 (footnotes omitted). Supp. 1971). Cir. (7th 447 F. 2d Hill, States California of confessions the area Similarly, admissibil considered the recently has Court Supreme aof violation at a parole into evidence ity Mi giving required obtained without statement 83 Cal. Martinez, In re C. 3d warnings. randa the court held (1970). P. There 2d 734 Rptr. 382, *16 safeguards purposes procedural that when the of society, the interests such against were balanced for this limited purpose. should be admissible confession Cal. Rptr. 761, In re 5 C. 3d Tucker, Cf. (1971). P. 2d 657 difficult problems pre- turn to the
We
now
must
appeals.
instаnt
in the
sented
Commonwealth v. Kates
The questioned evidence admitted
the course
during
of appellant Kates’ revocation hearing was a statement
given
her
which was
inadmissible
subsequently ruled
because it violated the mandates of Miranda v. Arizona,
Appellant Kates also that alleges she should now be afforded the opportunity of her attacking statement on the grounds With voluntariness. this contention we agree. cannot At revocation hearing no was attempt made to that prove statement was coerced in a sense that would its destroy probative value. Further, appellant does even that allege the claim aof coercеd confession raised at subsequent suppression hearing. There is nothing the record before us contradict Commonwealth’s position defense counsel confined himself at- tacking the confession on the im- solely grounds that Miranda were proper warnings given. The mere fact her appellant sustained on Miranda claim does not relieve her the responsibility all raising other objections. constitutional
Judgment affirmed.
Commonwealth v. McClellan argues McClellan that he was not allowed Appellant hearing. Spe- his at the to confront accuser his alleged he contends that victim of cifically, produced by have been the Common- assault should appellant At was confronted with wealth. who his assault on a policeman young witnessed violation it For purposes girl. *17 More- to testify. that herself girl appear necessary was not girl equally no that the allegation there is over, call her. had he wished to the probationer available may the evidence though that even note We also intent to establish have been sufficient Clear- for our controlling purposes. this is ravish, and an assault and battery established the evidence ly, proba- constitute violation this of would also course in the record to suggest, is nothing tion. There proba- the decision revoke that contends, appellant In to ravish. the intent solely by tion was influenced of the lower court indicates fact, opinion by appellant’s was occasioned sentence severity of the in involvement subsequent his and conviction prior after he weeks conduct less than two probation. placed affirmed.
Judgment
Allen v. Reed and is denied for writ of prohibition The petition violation for case remanded in with this opinion. accordance by Opinion Dissenting
Concurring Mr. Justice Roberts: majority
I in the result reached concur v. Reed. v. McClellan and Allen How Commonwealth from the majority’s to dissent compelled I am ever, Kates exclu Commonwealth holding no sionary application rule has In my view, proceedings. sentencing subsequent to the trial court Kates must be remanded the record hearing, to be sentencing a new revocation ob illegally admission of the without conducted Arizona, Miranda v. 384 U.S. confession. tained (1966). Ct. 1602 86 S. majority candidly appellant
As Kates’ concedes, year im- was revoked and three sentence posed, “[p]rimarily incriminating on the basis of *18 appellant [that statement had killed one Frank Jor- appellant.” Subsequent dan] attributed to these proceedings, appellant’s sup- statement was however, pressed by prosecution trial in court a later for the murder of Jordan. abundantly
It is clear that now a statement ob supra, may tained in violаtion of Miranda, be used “affirmatively” by prosecution case in its chief. v. Harris New 401 U.S. 91 S. Ct. York, 222, 224, 643, (1971). appellant Albeit Kates at the was not, illegally time the obtained statement was introduced, on trial for effect of murder, adverse the revocation sentencing hearing produced the same result— appellant jail was remanded to to serve a term of im prisonment. practice, probation “In revocation is fre quently prosecution used as alternative to serious probationer clearly If the convictable for offenses. prosecute the new there is little need both to offense, probation. him for it and his revoke the choice Often prosecution and between revocation is a fortuitous Sentencing, Type, one.” E. The Dawson, Decision as to Length, (1969) (em Conditions Sentence, added). phasis Accordingly, “. . . the fact that an inde pendent prosеcution and revocation under an old con interchangeable probationer sug viction are often for a gests abrogation exclusionary proba of the rule for seriously tion revocation would undermine the rule’s as a deterrent.” United States effect v. 447 F. Hill, (7th 1971) dissenting). 2d J., Cir. (Fairchild, necessity exclusionary especially for the rule, solely need not case, the facts be rationalized of its usefulness as terms deterrent to unlawful philosophy police “The conduct. that courts must not rights is: evi as constitutional sanction violations exclusionary opinion promulgated the dent pragmatic proposition that the rule rule as is the more ‘impera police activities. This from such deter the will integrity/ judicial v. it in Elkins as is termed tive of (1960), 80 Ct. 1437, 364 U.S. S. States United consistently clearly though L. Ed. 2d exclusionary support rule as enunciated theory expediency to be as a continues deterrеnt, its ruling ad recognized ‘[A] foundations. as one its * * * mitting the neces trial has in criminal evidence produced legitimizing sary the conduct which effect of ” [Terry 392 U.S. Ct. Ohio, 1, 13, S. the evidence.’ (footnotes omitted). (1968)]1 Id. 1868, 1875 Begardless purpose attributed to the exclu (the theory, rule) sionary it under either should rule, *19 pro equal vitality apply ceeding, where the ultimate aim of as here, such probationer custody. return the is to authorities Cf. Pa. Bruno, v. 435 255 A. 2d 200, Commonwealth 223, (1969) dissenting). J., 528 The 519, (Bobebts, illegal police conduct incentive for circumstances many all too clear. While of this case is courts are find- exclusionary ing necessary extend the use of the it 1 not deterrence alone that “But it is warrants the exclusion of imperative illegally judicial ‘the obtained—it is evidence in States, tegrity.’ 206, 222, [Elkins v. United 364 U.S. at S. 80 Ct. illegally procured exclusion an The confession 1437]. and of testimony deprives any in its wake obtained Government of any nothing impedi it has lawful claim and creates no which investigating legitimate prosecuting methods of ment crime. contrary, causally the exclusion evidence linked to On activity illegal more no than restores the Government’s situation prevailed obeyed if the Government have had itself that would States, 219, 10, v. United 392 U.S. Harrison 224 n. law.” S. 88 Ct. (1968). 2008, n. 10 2011
125
Court
rule to a
myriad
circumstances,2
wider
absolute
today, ignoring
constitutional mandates to
im
exception
carves out
unlimited
contrary,
of the
The ma
pugnes
integrity
judicial process.
has
su
jority
erred,
my view, by treating Miranda,
as a mere rule of
pra,
procedure.
exclusionary
rule with which we are here concerned
that.
integral
is an
the Fifth Amendment
Rather,
part
it
right against
devised not
self-incrimination,
under
of the
Court’s
aegis
Supreme
supervisory
but
power,
rather as an
interpretation
Constitution itself.
Miranda,
at
86 S. Ct.
supra
490,
Verdugo
1636,
United
F.
402
2d
States,
(9th
599
Cir.
Michaud
1968);
v. Oklahoma,
1 cannot condone the use of a confession obtained by police violation of the law, for the even purpose whether determining should be revoked. As the Supreme Court stated in Sun v. Wong United 371 83 States, 471, U.S. S. Ct. 407, (1963), constitutionally, obtained “. illegally evidence . shall . not be at all.” (Quoting used Lum- Silverthorne ber Co. v. United 251 U.S. States, 385, 392, S. Ct. See (1920)). Michaud, supra. only
Not was it error, my opinion, for the court to have considered the illegally obtained confession in Plymouth See, e.g., One 1958 Sedan v. Commonwealth Pennsylvania, (1965) (exclusionary U.S. S. Ct. 1246 applicable proceedings, rule to forfeiture “object, where the like a *20 proceeding, penalize criminal is for to the commission of an offense against law.”) ; United States ex rel. Rundle, v. Brown F. 417 (3d 1969) (exclusionary applicable 282 Cir. sentencing 2d rule to ; proceedings) States, Pizarello v. United (2d F. 408 2d 579 Cir. (exclusionary applies 1969) eases) rule to tax ; assessmеnt Powell Zuckert, (D.C. 1966) (exclusionary v. ap F. 2d Cir. rule plies discharge i>roceedings against government to employee) a ; Rogers States, (1st v. United F. 1938) 2d (exclusionary Cir. applies recovery rule actions for duties). of customs bnt it Kates’ probation, appellant revoke
deciding init have considered the court also error for is well set sentence. The law appellant’s determining not .. . procedure the “. . sentencing tled that . [does] con a confession, when due satisfy process requirements . of part . . evidence, inadmissible stitutionally [is] severity determining data used court by ex rel. Rundle, United States Brown of sentence.” Verdugo, 1969). 3d Cir. See also 417 F. 2d 284-85 ( 2d 384 F. ex Rivers v. Myers, United States rel. supra; held that it 1967). Cir. is (3d “[W]henever exclusionary rule justifies deterrent value also sur man, necessarily of a courts guilty release him upon of sentence imposing the opportunity render too regarded is —the loss opportunity . insuring observance of . . great price [constitu Ver law enforcement officers.” by restraints tional] 611-12. supra at dugo, Opinion
Dissenting Mb. Mandebino: Justice protections apply to all I Constitutional dissent. exception. times. There is no The ma- at all persons individual is holds who however, jority, probationer the status of has society in our liberty member than a of our rights society less constitutional I can find no basis for two probationer. is who scheme of pro- our constitutional of citizens classes A has been convicted a crime person who tections. cannot, because of on such status, and placed rights. constitutional Regardless of his be deprived all of the normal he is entitled constitu- status, his when he is accused protections committing tional crime. the silence con-
In view statutes of a person rights who cerning conduct, we should look not only accused *21 tlie constitutional admit of ex- protections no expressions but also to other ceptions leg- relevant islative policy.
Although are we have silent, statutes specific in the con- very guidance Pennsylvania law on in cerning persons parole, any signifi- who are not cant manner different from on The persons probation. legislature parole has cannot provided person’s that a be revoked for the commission of a crime unless alleged and until is convicted of crime parolee the alleged or pleads or nollo guilty contendere a court of rec- ord. Act of August 6, L. added 1941, P. 861, §21.1, 1951, P. L. August 24, as Act §5, amended, June 28, P. L. The P.S. 331.21a. §1, parole can only revoked the conclusion after criminal trial the alleged crime all the attend- ant protections. constitutional person on Thus, pa- role accused of crime is treated any othеr citizen so far as protections constitutional are The concerned. legislature, the case of persons on has rec- parole, ognized that there is no caste where system constitu- tional guarantees are concerned.
The on majority, effect, deprives person pro- bation of protections constitutional which are not taken from away any person by Pennsylvania Con- stitution or the federal Constitution and which have been taken away by the from legislature persons on The parole. majority’s attempt to take away normal constitutional protections persons pro- bation has no “silent statutes.” support except
In all three person of the cases before aus, is ac- cused crime penalty and no kind im- any can be posed upon such person until completion criminal trial. A person is crim- presumed innocent inal conduct proven until guilty trial. presumption of innocence even to a prisoner applies serving in- An his term. crime while
accused of a given any person im- additional cannot be carcerated No prisonment crime. ishe accused time because *22 imposed penalty any incar- on such can be kind person person A a criminal trial is held. cerated until been incar- has not crime and is convicted of a who rights. cerated not have less should Morrisey majority heavily v. Brewer, The relies (1972). Ct. L. Ed. 2d 92 S. 408 U.S. parole violations other concerned That case, however, are a violations than the commission crime. Such commonly The three violations. known as technical technical violations. cases before do not involve us majority holding is seen The in of the unfairness the majority con- in before us. The two the three cases persons acquitted can of a crime nonetheless cludes that very penalty crime of which suffer of the a because illogical acquitted. they been a result is have Such In the defendant trial, unconstitutional. probation acquitted trial, is but in the guilty. I such double condone defendant is cannot liberty. jeopardy of the defendant’s majority Daisey appeal com Kates, In pounds by holding a obtained error statement its rights appellant’s is in of the constitutional violation hearing. ob A statement admissible in a person’s rights constitutional tained violation of a Ar Amendments and under under the Fifth and Sixth Pennsylvania can ticle Constitution I, Section of govern any purpose by be for used affirmative 28 L. 2d ment. Harris New 401 U.S. Ed. York, (1971). In unconstitu S. Ct. 643 this case the 1, 91 positive way tionally obtained statement was used permitted by government. which Even Harris, government use such a statement as shield, emphatic that the use of suсh court was affirmative prohibited. Verdugo In v. United States, statement is (9th 1968), 402 F. obtained 2d 599 Cir. evidence, was inad violation of the Fourth Amendment, guilt for missible on the issue of also inadmissible purposes. sentencing In P. 2d State, Michaud v. (Okl. 1973), Supreme Cr. held the Oklahoma Court that eridence Amend obtained in violation the Fourth ment The could not used in a revocation. no Court stated that evidence admissible was not proceeding matter what kind of In the Kates involved. appeal revoking probation the Order of the lower court should be reversed. appeal
In the of Oleo McClellan, unfairness, another practice ap- majority, condoned becomes parent. eight- defendant while on *23 year period, allegedly committed crime of assault battery battery and the crime of assault rape. probation hearing intent After a and while presumed proba- the defendant was innоcent, still his imposed tion was revoked and a sentence of three years’ imprisonment. Subsequently ten in the criminal acquitted higher trial, defendant Avas offense of the rape, although of assault with intent to he was con- battery. victed the lesser crime of assault and Can imposition prison be it said that the of the term of years imposed part three to ten because of finding guilt though at the trial even subsequently acquitted, the defendant of the crime battery rape? of assault and with intent to The un- appeal fairness is obvious. In the McClellan the order revoking should reversed and the matter light appellant’s remanded for reconsideration acquittal charge. of the more serious appeal
In pro- of James E. Allen, writ granted. pro- hibition should be The court should be bear- conducting Mbited alleged commission of tbe appellants based on ing, proceeding until tbe crime, appellant’s completed. Appellant. Johnson,
Commonwealth