# Commonwealth v. Kates > Supreme Court of Pennsylvania · May 8, 1973 · 452 Pa. 102 URL: https://www.frixlaw.com/law-library/cases/9764224 ## Case - **Full name:** Commonwealth v. Kates, Appellant; Commonwealth v. McClellan, Appellant; Allen, Petitioner, v. Reed - **Court:** Supreme Court of Pennsylvania - **Decided:** May 8, 1973 - **Citations:** 452 Pa. 102; 305 A.2d 701 - **Precedential status:** Published - **Opinion:** Dissent by Mandebino - **Judges:** Mandebino, Jonhs, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 189 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764224 ## How later opinions describe it (automated extraction) - holding that it is constitutionally permissible to hold a probation revocation hearing after arrest, but prior to trial, on a charge that constitutes ____________________________________________ 1 35 P.S. §§ 780-113(a)(30), (16), and 18 Pa.C.S. § 903(c), respectively. 235 P.S.… - holding that, because there is no statutory or constitutional bar, a court may conduct a VOP hearing prior to trial on the criminal charges which form the basis for the alleged probation violation - holding that there is no constitutional or statutory restriction preventing the trial court from conducting a probation violation hearing prior to the trial for a subsequent criminal offense - holding that it is permissible for courts to conduct revocation hearings for direct violations, known as a Daisy Kates hearing, prior to trial on the underlying charges - holding that it is constitutionally permissible to hold a revocation hearing following the arrest on new charges but prior to the resolution of the new charges ## Opinion text Dissenting Opinion by Mb. Justice Mandebino: I dissent. Constitutional protections apply to all persons at all times. There is no exception. The majority, however, holds that an individual who is at liberty in our society with the status of probationer has less constitutional rights than a member of our society who is not a probationer. I can find no basis for two classes of citizens in our scheme of constitutional protections. A person who has been convicted of a crime and placed on probation cannot, because of such status, be deprived of his constitutional rights. Regardless of his status, he is entitled to all of the normal constitutional protections when he is accused of committing a crime. In view of the silence of the probation statutes concerning the rights of a person on probation who is accused of criminal conduct, we should look not only to *127 tlie constitutional protections which admit of no exceptions but also to other relevant expressions of legislative policy. Although the probation statutes are silent, we have very specific guidance in the Pennsylvania law concerning persons on parole, who are not in any significant manner different from persons on probation. The legislature has provided that a person’s parole cannot be revoked for the alleged commission of a crime unless and until the parolee is convicted of the alleged crime or pleads guilty or nollo contendere in a court of record. Act of August 6, 1941, P. L. 861, §21.1, added 1951, August 24, P. L. 1401, §5, as amended, Act of June 28, 1957, P. L. 429, §1, 61 P.S. 331.21a. The parole can only be revoked after the conclusion of the criminal trial for the alleged crime with all the attendant constitutional protections. Thus, a person on parole accused of crime is treated as any other citizen so far as constitutional protections are concerned. The legislature, in the case of persons on parole, has recognized that there is no caste system where constitutional guarantees are concerned. The majority, in effect, deprives a person on probation of constitutional protections which are not taken away from any person by the Pennsylvania Constitution or the federal Constitution and which have not been taken away by the legislature from persons on parole. The majority’s attempt to take away the normal constitutional protections from persons on probation has no support except “silent statutes.” In all three of the cases before us, a person is accused of crime and no penalty of any kind can be imposed upon such person until the completion of the criminal trial. A person is presumed innocent of criminal conduct until proven guilty in a criminal trial. The presumption of innocence even applies to a prisoner *128 accused of a crime while serving his term. An incarcerated person cannot be given any additional imprisonment time because he is accused of crime. No penalty of any kind can be imposed on such incarcerated person until a criminal trial is held. A person who is convicted of a crime and has not been incarcerated should not have less rights. The majority relies heavily on Morrisey v. Brewer, 408 U.S. 471 , 33 L. Ed. 2d 484 , 92 S. Ct. 2593 (1972). That case, however, concerned parole violations other than the commission of a crime. Such violations are commonly known as technical violations. The three cases before us do not involve technical violations. The unfairness in the holding of the majority is seen in two of the three cases before us. The majority concludes that persons acquitted of a crime can nonetheless suffer a penalty because of the very crime of which they have been acquitted. Such a result is illogical and unconstitutional. In the criminal trial, the defendant is acquitted but in the probation revocation trial, the defendant is guilty. I cannot condone such double jeopardy of the defendant’s liberty. In the appeal of Daisey Kates, the majority compounds its error by holding that a statement obtained in violation of the appellant’s constitutional rights is admissible in a probation hearing. A statement obtained in violation of a person’s constitutional rights under the Fifth and Sixth Amendments and under Article I, Section 9 of the Pennsylvania Constitution cannot be used for any affirmative purpose by the government. Harris v. New York, 401 U.S. 222 , 28 L. Ed. 2d 1 , 91 S. Ct. 643 (1971). In this case the unconstitutionally obtained statement was used in a positive way by the government. Even in Harris , which permitted the government to use such a statement as a shield, the court was emphatic that the affirmative use of such a *129 statement is prohibited. In Verdugo v. United States, 402 F. 2d 599 (9th Cir. 1968), evidence, obtained in violation of the Fourth Amendment, which was inadmissible on the issue of guilt was also inadmissible for sentencing purposes. In Michaud v. State, 505 P. 2d 1399 (Okl. Cr. 1973), the Oklahoma Supreme Court held that eridence obtained in violation of the Fourth Amendment could not be used in a probation revocation. The Court stated that the evidence was not admissible no matter what kind of proceeding is involved. In the Kates appeal the Order of the lower court revoking probation should be reversed. In the appeal of Oleo McClellan, another unfairness, of the practice condoned by the majority, becomes apparent. The defendant while on probation for an eight-year period, allegedly committed the crime of assault and battery and the crime of assault and battery with intent to rape. After a probation hearing and while the defendant was still presumed innocent, his probation was revoked and a sentence imposed of three to ten years’ imprisonment. Subsequently in the criminal trial, the defendant Avas acquitted of the higher offense of assault with intent to rape, although he was convicted of the lesser crime of assault and battery. Can it be said that the imposition of the prison term of three to ten years was not imposed in part because of a finding of guilt at the probation trial even though the defendant was subsequently acquitted, of the crime of assault and battery with intent to rape? The unfairness is obvious. In the McClellan appeal the order revoking probation should be reversed and the matter remanded for reconsideration in light of the appellant’s acquittal of the more serious charge. In the appeal of James E. Allen, the writ of prohibition should be granted. The court should be pro *130 Mbited from conducting a probation revocation bearing, based on tbe appellants alleged commission of a crime, until tbe appellant’s criminal proceeding is completed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764224. Public record. Not legal advice.