Commonwealth v. Kane

461 A.2d 1246, 315 Pa. Super. 212, 1983 Pa. Super. LEXIS 3003
CourtSupreme Court of Pennsylvania
DecidedApril 29, 1983
Docket2247
StatusPublished
Cited by23 cases

This text of 461 A.2d 1246 (Commonwealth v. Kane) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kane, 461 A.2d 1246, 315 Pa. Super. 212, 1983 Pa. Super. LEXIS 3003 (Pa. 1983).

Opinions

CIRILLO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County imposed after revocation of probation.

[216]*216On July 14, 1976 the appellant, Daniel J. Kane, appeared before the Honorable William Hart Rufe, III and pleaded guilty to charges of possession of a controlled substance (methamphetamine),1 simple assault2 and resisting arrest.3 He was placed on probation for one year.

On June 9, 1977, while still on probation, appellant was arrested by federal authorities on charges of conspiracy to manufacture, manufacture, and possession of a controlled substance. A probation violation hearing was held on July 11, 1977. The appellant was charged with four violations: 1) failure to advise the probation department of his change of address; 2) failure to report during the months of May and June; 3) failure to report his employment status; and 4) failure to report his June 9th arrest by federal authorities. The lower court found that the first three charges had been proved and extended the appellant’s probation two years. The court deferred any finding on the fourth charge until the federal prosecution of the appellant had been completed.

In October, 1977 the appellant became a fugitive. Two years later, on November 25, 1979, he was apprehended by federal authorities. On January 16, 1980 he pleaded guilty to the federal charges and on March 3, 1980 he was sentenced to four years imprisonment to be followed by two years probation. In September, 1980 a probation violation hearing was held. On the basis of his federal conviction, the lower court revoked the appellant’s probation and sentenced him to a term of imprisonment of not less than 1 year nor more than 5 years, to be served concurrently with his federal sentence. This appeal followed.

Initially, the appellant contends on appeal that he was denied his right to a speedy probation revocation hear[217]*217ing. This claim is based on a delay of over eight months in the commencement of the hearing.4 The Pennsylvania Rules of Criminal Procedure mandate the following:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law 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. In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.

Pa.R.Crim.P. 1409; 42 Pa.C.S.A.

Rule 1409 does not establish a presumptive period within which the Commonwealth must revoke probation or parole and the Superior Court has refused to establish such a prophylactic rule. Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1244 (1979); Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). Rather, this Court has held that the time period referred to in Rule 1409 is a “reasonable time.” Commonwealth v. Johnson, 277 Pa.Super. 88, 419 A.2d 674 (1980); Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). In determining “reasonableness” under Rule 1409, a panel of this Court (per Judge Johnson) stated:

The courts have held that the requirement of Rule 1409 is not to be determined solely by the length of time between the conviction and the hearing. Rather, the question is one of what constitutes a reasonable time under the circumstances. Commonwealth v. Young, 262 Pa.Super. 253, 256, 396 A.2d 741, 742 (1978). To determine the reasonableness of the delay, the court examines three [218]*218factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay. Id., 262 Pa.Superior at 257, 396 A.2d at 743.

Commonwealth v. Nance, 290 Pa.Super. 312, 319, 434 A.2d 769, 772 (1981); see also: Commonwealth v. Honeyblue, 276 Pa.Super. 107, 419 A.2d 118 (1980).

In offering a reason for the delay in scheduling the appellant’s probation violation hearing, the Commonwealth argued to the lower court that the policy of the Probation Office and the District Attorney’s Office is to await a certified copy of a conviction prior to requesting a violation hearing. This certified copy was apparently not received by the Commonwealth until June 1, 1980. The Commonwealth then filed a motion for a probation violation hearing on June 4, 1980 and the hearing was scheduled for June 20, 1980. However, by that time, the appellant was “in transit” in the federal penitentiary system and he was not brought to the Bucks County prison until July 8, 1980. A new hearing was scheduled for August 7, 1980, but because the hearing judge was involved in an extended trial, it was rescheduled for September.

Despite a period of over eight months before the appellant received his hearing, we find that the Commonwealth has presented adequate reasons to justify the delay. As the Supreme Court has held in a similar context:

“A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (footnote omitted).

quoted in: Commonwealth v. Jones, 250 Pa.Super. at 120-121, 378 A.2d at 483. Although the delay in the [219]*219present matter was due to factors within the control of the Commonwealth, it was not a malicious attempt to hamper the defense. Moreover, the policy of waiting until a certified copy of a conviction is received before scheduling a probation revocation hearing is actually beneficial to the appellant. Instead of using the preponderance of the evidence standard in determining whether the appellant violated the terms of his probation, the Commonwealth waits for a conviction, thereby using the more stringent standard of beyond a reasonable doubt in proving whether or not the appellant is guilty of a probation violation.

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Commonwealth v. Kane
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Bluebook (online)
461 A.2d 1246, 315 Pa. Super. 212, 1983 Pa. Super. LEXIS 3003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kane-pa-1983.