Commonwealth v. Ruff
414 A.2d 663
Pa. Super. Ct.
1979
Check Treatment

*3 WATKINS, JJ. PRICE, Before SPAETH PRICE, Judge: 10, 1974, pleaded guilty pos appellant July

On and was sentenced to weapon1 offensive sessing prohibited later, on Two years. years term of three probationary 14, 1976, charged was arrested and with appellant August crime,3 and murder,2 posses of an instrument of possession *4 He was found weapon. guilty of offensive prohibited sion a 30, 1977, and sentenced to a term of on March of murder (20) On (5) twenty years. of from five to imprisonment of 5, 1977, was held at the conclusion hearing October a found that the Rosenburg Edward B. which the Honorable appellant’s pro constituted a violation of murder conviction revoked, was and a probation consequently bation. That 1. 18 908. § Pa.C.S.

2. 18 Pa.C.S. 2502. §

3. 18 907. Pa.C.S. §

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prison term of from (1) (3) one to three years imposed; such sentence to run to consecutively the sentence being served for murder. now Appellant contends (1) that: the Gagnon II hearing was fatally defective because the record does not his verify reception of written notice of the claimed viola- tion; (2) he was not afforded prompt hearing as mandated by Pa.R.Crim.P. 1409.4

Addressing ourselves to initially appellant’s second argu- ment, Pa.R.Crim.P. 1409 provides:

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

4. failed to either of raise these issues at the violation of first, probation hearing. previously As to the we have held that “it derogation process rights would be in minimum due of an alleged probation require violator to him to raise lack of notice at a right less-than-formal or waive his to do so.” Common Alexander, 57, 62, Pa.Super. wealth v. Spence, Pa.Super. See 381 A.2d 949 380 A.2d 854 Quinlan, Pa.Super. Stratton, (1977); (1975). v. A.2d Commonwealth appellant does not claim that he While it is true that did not notice, merely verify receipt, record does not we receive in that the held fine, disposi Quinlan that such a distinction was too and that the tive consideration was whether notice had in fact been received. light, previ appellant’s claim in this it was not Because we review ously waived. similarly preserved. speedy hearing is As was noted in The claim Price, by J.): Spence, supra (majority opinion distinguishing speedy for between the “There is no rational basis hearing they required requirements both are notice since and written n.2, process.” at 346 381 A.2d at 951 n.2. due Id. 252 however, emphasized, that while the waiver rule is It should be abrogated respect requirements to the substance of to central with compláin hearing, probationer of a fails to when the the revocation upon proceedings, claim is waived peripheral matter to those Perry, appeal to this court. See Commonwealth Gagnon hearing (1978) (failure argue I absence 385 A.2d during raising probationer hearing precludes from issue revocation appeal). on

55 the has indeed been hearing In whether determining the of time be promptness, length with reasonable held and the is not the sole determi hearing the conviction tween Young, Commonwealth v. 253, 262 Pa.Super. native factor. Diaz, v. Commonwealth 258 (1978); Pa.Super. A.2d 741 396 Waters, v. 252 Commonwealth 346, (1978); 392 A.2d 827 Jones, Commonwealth 357, (1977); 381 A.2d 957 Pa.Super. 116, (1977). Rather, A.2d 481 the critical 250 378 Pa.Super. is whether the was reasonable under the circum delay issue case, being stances of the with such reasonableness specific evaluated in the of three factors: light length for the and the suffered delay, delay, prejudice reasons Commonwealth v. as result of the delay. the defendant Waters, Young, supra; supra. Weighing matter, these considerations in the instant we find little to command appellant’s argument.

The in this case involved a of delay period approxi e., i. months, 30, 1977, 5, six from mately March to October 1977.5 This is not as others we have protracted as found 1409, see, g., e. Commonwealth v. repugnant Pa.R.Crim.P. Holmes, 552, (1977) (221/2 248 month Pa.Super. Commonwealth v. Darby, 331, 244 delay); Pa.Super. 368 Jones, Commonwealth v. (8 month (1976) delay); » brief, appellant probation hearing 5. In his states that the violation of “nearly [appellant’s] was not held until tion.” compute three months after convic- (Brief 8). Appellant Apparently, for at he is content to delay post-trial from the resolution of motions to the Gagnon hearing. largess date II Such is unwarranted. We previously period have the date of noted that the is to be measured from conviction, post-trial not from the resolution of motions. Williams, 202, (1978); Pa.Super. 254 Jones, (1977). A.2d appellant’s complaint “[d]uring We also note that this eleven charge], month interim the arrest and conviction on the murder [between [appellant] surely given probation hearing could have been disposed (Brief 8). Appellant had the matter of.” for at While it is true, indicates, appellant permissible proba- is that it to hold the prior charge tion violation alleged after arrest but to trial on the violation, only to constitute the it is sufficient that the court promptly following charge. act the conviction on that Common- Holmes, wealth v. wealth v. A.2d Common- Duff, on rev’d. other grounds, 414 Pa. 200 A.2d *6 558, 242 Pa.Super. 364 A.2d 414 (1976) (9½ month delay), and is substantially equivalent to delays deemed reasonable in circumstances, see, similar e. g., Williams, Commonwealth v. 202, (1978) (5½ month delay); Jones, Commonwealth v. 116, 250 Pa.Super.

(1977) (6½ month delay); Commonwealth v. Lipton, 238 (1975) (6½ months); but cf. White, 218 Pa.Super. 188, 279 A.2d 768 (1971) (5 month delay unreasonable). held

Further, appellant does not contend that he was substantially prejudiced the delay. He does not argue, for example, that the hindered his delay to raise a ability defense against revocation, the possibility or that the Commonwealth intentionally employed dilatory tactics. While does aver in appellant prejudice that the revocation hearing was held some three months subsequent to the expiration period, was, of his the probationary prejudice at most, de minimus. Although probation be re may clearly voked after the expiration see probationary period, Clark, 225 Pa.Super. (1973), Holmes, it is true that in Commonwealth v. supra, we noted that “a certain amount of prejudice fol necessarily expiration lows from the mere fact of the of the parole Id., at period.” A.2d at 382. This unreasonable, however, prejudice delay serves to render factors, when it with other such as the utter only conjoins lack of officials exhibited in Holmes. diligence by county earlier, had three expired months but Instantly, probation event, been imprisoned, any pursu would have in appellant Diaz, In conviction. ant to the murder “a his probationer awaiting probation we stated that supra, while for another offense being imprisoned violation in holding much if there is a delay does not suffer Id. 258 already imprisoned.” for he is hearing, revocation all the circum 350, 392 A.2d at 829. Under Pa.Super. at that the Com stances, therefore, any allegation and absent the six proceedings, intentionally delayed monwealth unreasonable. month was not second Appellant’s contention is based on the fact that the record is silent to whether he received written him, notice of the charges against a fact that the Common wealth concedes and which our independent review verifies. Gagnon In Scarpelli, U.S. 93 S.Ct.

L.Ed.2d (1973), the United Supreme Court deline States procedure ated a to be employed order to ensure that an order revoking probation be based on evidence containing proper probative value. Succinctly, alleged probation is violator entitled to a preliminary (Gagnon I) hearing in order to determine whether there probable is cause to be lieve a parole committed, violation has been second, and a more comprehensive (Gagnon II) hearing designed to render *7 a final 781-82, revocation decision. Id. at 93 S.Ct. at 1759. In the event that the violator alleged is arrested and convict ed prior to the revocation hearing, case, as is here the the requirement of a I Gagnon hearing is obviated. Common Davis, wealth v. 234 Pa.Super. This not, however, does in diminish any way the due process safeguards in Gagnon the II necessary hearing, namely: “ ‘(a) written notice of the claimed violations of [proba (b)

tion parole; disclosure to [probationer parolee or] or] him; of evidence against (c) opportunity to be in heard person and to present witnesses and evi documentary dence; (d) right the to confront and cross-examine ad verse (unless witnesses the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing such as a body traditional board, parole members of which need judicial not be officers or and lawyers; (f) a written statement the factfinders as to the evidence relied on and reasons for ” revoking [probation parole.’ Gagnon v. Scarpelli, or] 786, 93 supra, 1761-62, at U.S. S.Ct. at quoting Morris Brewer, 471, 489, sey 408 U.S. 2593, 2604, 92 S.Ct. L.Ed.2d 484 (1972) (emphasis added).

This court has repeatedly emphasized that the Common- wealth must strictly comply with the requirement that no- tice of alleged the See, violations be in writing. e. g, Martin,

Commonwealth v. 241 (1976); Stratton, Davis, supra. In Com- monwealth v. Spence, (1977), was revoked as appellant's probation consequence his conviction for assault and retail theft. Although not raised at the II Gagnon hearing, appellant contended on to appeal that he failed receive written notice of the alleged violations to the revocation prior hearing. The Common- wealth in its brief submitted of three copies purport- notices ing to demonstrate that the was satisfied. This requirement record, court declined to consider such “evidence” dehors the and remanded the case for the sole purpose determining caveat, whether notice had indeed been of a given. By way that, we stated remand for a hearing only limited “[t]he where the Commonwealth written applies contends that provided notice was and where record indicates that the defendant did not raise the issue of lack of notice before the Spence, supra, lower court.” Commonwealth Pa.Su- (emphasis original). A.2d at 951 per. at permitting criteria a remand for Instantly, Spence While it is true that limited are satisfied. aver that notice had been actually Commonwealth failed to a contention from its reference we infer such provided, may alternative, that the case be its in the Spence request, Nevertheless, we hearing. evidentiary remanded for an *8 Spence formulation of the standards hasten to add that our in the future we will hold haphazard, was not requirements with those compliance to strict Commonwealth type. in cases of this record, we appears no notice

Consequently, to determine hearing evidentiary for an must remand If written notice. the requisite received whether appellant fact, received, the was, notice that proper the court finds In that shall be reinstated. and sentence order applicable appeala shall be of sentence event, judgment the reinstated court pleas the common by issues resolved ble limited to the notice find that If the court should said notice. concerning received, probation was not then a revocation shall hearing held, be preceded written notice by being provided to appel- Stratton, lant. Commonwealth v. See supra; Common- Henderson, 498, wealth v. (1975); A.2d 483 Alexander, 57, 232 (1974).

The judgment sentence is reversed and the case re- manded for further consistent with proceedings opinion. this

SPAETH, J., files a dissenting opinion.

SPAETH, Judge, dissenting: The probation revocation in this case took place over six appellant’s months after conviction of murder on 30, March 1977. In evaluating reasonableness of this Pa.R.Crim.P., 1409, under delay Rule we must focus on three factors: length the reasons for the delay; delay; and the to the prejudice defendant resulting from the delay. Commonwealth v. Young, 253, 262 Pa.Super.

(1978); Holmes, 248 Pa.Super. A.2d 379 Smith, see Commonwealth v. 266 Pa.Super. 234, 403 (1979). A.2d 1326 After purporting to apply this tripartite case, test to the facts of this the majority never- theless holds that appellant’s rights under Rule 1409 were not violated. I dissent. The record in this case contains absolutely explanation no or excuse for the More- delay. over, appellant was clearly prejudiced as his delay term of probation had on expired July some three months prior to the revocation hearing on October 1977.

The presented situation in this case is indistinguishable from the situation presented in White, In White this court held the five month delay improper where the Commonwealth offered no excuse for the and the hearing took place five weeks after the term probationary had expired.

The decision in White has not been overruled and not any of this court’s decisions since White have it undercut in any significant This court’s way. decisions in Commonwealth v.

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Waters, 357, Common- Pa.Super. A.2d 957 Jones, wealth v. 116, 250 Pa.Super. (1977), 378 A.2d 481 and Parker, 366 A.2d 941 Pa.Super. of, five, where (1976), delays one-half, six respectively, and and four months were held not to violate Rule are all in White, with consistent the decision for in each of those was explanation cases there an of the and was delay there no the the prejudice caused since defendant’s delay term not the probationary expired had before revocation Long, This court’s decision in hearing. Pa.Super. (1979), likewise did not White, Long, undercut the in for in while period decision the probation held, had before the expired hearing the was held that was an of the majority adequate explanation there the decision in Common- Similarly, on the record. delay Williams, v. wealth (1978), five and one-half month was held not to be delay where a White, the in while does not undercut decision for improper, in Williams there was no was explanation delay, there also no prejudice it, from since the resulting probationary the was expired hearing Finally, term had not before held. was followed in Commonwealth decision Williams the in Diaz, Diaz, In that was not ineffective of this court held counsel majority 1409 where the claim under Rule failing for to raise a the expired had not before period probationary defendant’s was four and delay only held the revocation was the Diaz not does not only undercut one-half months. White, ma- PRICE, for the Judge speaking but decision in Diaz, White, saying: cited in jority less actual something that than have held cases Our favor. appellant’s balance in an may tip prejudice White, 188, 279 in Thus months was of five and one-half (1971), A.2d probation original period where unreasonable held not We do revocation. prior five weeks expired had case was even instant the appellant that find in White. defendant was the prejudiced technically *10 Diaz, n.3, Pa.Super. at 350 at 829 n.3.

The majority this case does try distinguish not White, it, nor could for White is indistinguishable. In apparent recognition its inability to distinguish White from this case the majority chooses to cite White with a “but cf.” prefatory at 666. I Majority cannot ignore an en banc decision with such ease. Since White cannot be distin- guished, and since (or it controls control) should a decision by a mere panel court, this I should hold that appellant’s rights under Rule 1409 were violated by the in this case.

The order of the lower court revoking probation should be reversed and the judgment of sentence vacated. Pennsylvania,

COMMONWEALTH of Raymond KLICK, Appellant.

Superior Court of Pennsylvania.

Argued March 1979.

Filed Nov. 1979.