Commonwealth v. Zeitlen

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s decision to order appellant to supplement his brief. I would hold that the requirements of P.R.App.P. 2119(f) are procedural, not jurisdictional. Because the rule is procedural, a failure to include in appellant’s brief a separate section, stating why an appeal should be allowed, can be waived. In the instant *88case, the Commonwealth has not objected to or preserved for consideration the failure of the appellant to comply with Pa.R.App.P. 2119(f). Therefore, appellee has waived the procedural defect in appellant’s brief. It is this failure to preserve the issue which distinguishes this appeal from the decision of the Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

Because the procedural defect in appellant's brief has not been preserved, we can proceed to determine for ourselves whether “there is a substantial question that the sentence imposed is not appropriate.” Appellant raises three contentions challenging the imposition of sentence. Having reviewed the record, I would find these contentions do not raise a substantial issue regarding the proper exercise of discretion by the trial court. However, appellant raises one non-sentencing issue which I would consider. He contends that the trial court erred in admitting prejudicial hearsay testimony. Although I would find error, I would not find the error prejudicial.

A parolee is entitled to minimum due process rights in a revocation hearing. Morissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Commonwealth v. Joraskie, 360 Pa.Super. 97, 519 A.2d 1010 (1987), Commonwealth v. Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128 (1984). One of the minimal due process requirements is the right to confront and cross-examine adverse witnesses unless the trial court specifically finds good cause for not allowing confrontation. Id. Where a parolee objects to offered hearsay evidence, the evidence may only be admitted upon a specific finding on the record of good cause not to allow confrontation and cross-examination. See Jefferson v. Commonwealth, Pennsylvania Bd. of Probation, 95 Pa.Cmwlth. 560, 506 A.2d 495 (1986). In the case sub judice, the trial court admitted testimony concerning criminal complaints made by appellant’s wife against him that were later dismissed. N.T. at 19-20. Additionally, police officers were permitted to testify about various incidents involving appellant that did not ultimately result in criminal *89charges. Id. at 22-24. The trial court also admitted testimony from appellant’s neighbor regarding appellant’s behavior. Id. at 70. Appellant objected to the aforesaid hearsay. Since the trial court made no specific finding of good cause, it erred in admitting the hearsay. However, the trial court did note that it did not rely upon this hearsay in making its decision. Id. at 70, Trial Court Opinion at 2. The court specifically stated that it based its decision solely upon the testimony of the psychiatrist and of the appellant regarding appellant’s failure to comply with the health care and medication conditions of the probation. Id. I would therefore hold that the error resulted in no prejudice to appellant.

For the above-stated reasons, I would affirm the judgment of sentence.