Commonwealth v. Jones

364 A.2d 414, 242 Pa. Super. 558, 1976 Pa. Super. LEXIS 2066

Opinions

VAN der VOORT, Judge:

Appeal is taken to our Court from judgment of sentence rendered on February 3, 1975, at probation revocation hearing held that day. The record shows that following trial and adjudication of guilt to a charge of receiving stolen property on August 29, 1973, appellant was sentenced to three years’ probation. Testimony, unchallenged, at the hearing on probation violation shows that appellant had been adjudicated guilty of certain other offenses at Philadelphia County No. 1809 November Term, 1973, trial on April 25, 1974. It was this adjudication which was the gravamen of the probation violation hearing. Further, the record in the instant case shows that on November 18, 1974, the violation of probation hearing was originally sought, but was postponed first to January 29, 1975 and then to February 3, 1975, the eventual date of hearing, with detainers on appellant, and with him in custody, presumably while other matters not questioned herein were pending.

Appellant challenges the February 3, 1975, imposition of sentence, arguing that an impermissibly long and therefore prejudicial period of time passed between the determination of guilt as to other charges, which determination was ultimately the issue in the revocation hearing, and the date of said hearing. It is clear that the operative period of inaction on the part of the Commonwealth is from April 25, 1974, to February 3, 1975, approximately nine and one-half months. Because the record is silent as to the reasons for the aforementioned postponements of this hearing, we are not inclined to give the Commonwealth credit for the period which elapsed from November 18, 1974, to February 3, 1975. Were we to hold that the violation of probation charge was perfected on November 18, 1974, and any delay thereafter chargeable to appellant, even then the Commonwealth took no action for almost seven months — i. e., from April 25, 1974 to November 18, 1974.

Rule 1409 of the Pennsylvania Rules of Criminal Procedure is dispositive of the question raised herein.¹ The Rule provides that in the proper case, probation shall not be revoked “unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole”. (Emphasis ours). The transcript of testimony taken at the hearing makes clear that appellant and counsel, as well as a probation officer, were present and that a finding was made of probation violation. However, we held in Commonwealth v. White, 218 Pa.Super. 188, 279 A,2d 768 (1971), that the lapse of five months time between the adjudication of the parole-violating offense and the hearing was prejudicial under those circumstances. We find no facts in the present case to give us cause to deviate from White’s delineation that five months may not be “as speedily as possible”. We need not herein reiterate that minimal due process standards must be observed in probation revocation hearings. See Morrissey v. Brewer, 408 U.S. 471, 93 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). Our Rules of Criminal Procedure mandate that a part of due process in such cases as the instant one is the right to a speedy hearing. Appellant was denied this right.

Because of the disposition herein, we need not meet appellant’s second issue, which is that the case must be remanded for -failure on the part of the lower court stenographer to file a transcript of the February 3, 1975, hearing, pursuant to our Rule 46. This appeal was filed on February 14, 1975, and continued by our Orders of June 16, 1975, September 12, 1975, and December 19, 1975. The stenographer’s transcript was finally filed on May 10, 1976. It is the regrettable but all to common practice that dilatoriness is perpetrated in the preparation and filing of notes of testimony. Such tardiness is condemned.

Judgment of sentence is vacated, and the sentence of probation is reinstated,

SPAETH, J., concurs in the result. PRICE, J., files a dissenting opinion.

1 . This Rule of procedure became effective on October 23, 1973, and therefore applied to the procedures applicable in this case from and after that date.