Commonwealth v. Lipton

Superior Court of Pennsylvania

Commonwealth v. Lipton

352 A.2d 521, 238 Pa. Super. 124, 1975 Pa. Super. LEXIS 2575

CourtSuperior Court of Pennsylvania

DecidedDecember 22, 1975

DocketAppeal, 456

StatusPublished

Cited by32 cases

This text of 352 A.2d 521 (Commonwealth v. Lipton) is published on Counsel Stack Legal Research, covering Superior 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. Lipton, 352 A.2d 521, 238 Pa. Super. 124, 1975 Pa. Super. LEXIS 2575 (Pa. Ct. App. 1975).

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Opinion by

Van der Voort, J.,

Appellant Michael J. Lipton was arrested in February, 1971, and charged with possession of a dangerous drug (LSD). After a trial before a judge sitting without a jury, appellant was found guilty and, on May 18, 1973, was placed on probation for three years. On July 11,1973, the lower court, having been made aware that the probationary period exceeded the legal maximum by two years, reduced the term to one year. Subsequently, appellant was convicted of possession of marijuana, and his probation was revoked. Appeal was taken to our Court from the Order of the Court of Common Pleas of Bucks County, revoking probation and imposing a prison sentence on appellant.

Appellant first argues that the lower court illegally reduced his period of probation, since the order was allegedly entered without advance notice to appellant, without appellant being present at the time the order was entered, and without the presence of counsel for appellant. We find this argument to be totally without merit. When an order of probation for a period in excess of the maximum permissible term of imprisonment is imposed, the lower court may at any time correct such excessive sentence of probation by reducing it. See Commonwealth v. Ferguson, 201 Pa. Superior Ct. 649, 193 A.2d 657 (1963). Furthermore, [127]*127as was stated in Ferguson, “ [e] xcept in a capital case, it need not affirmatively appear in the record that the defendant was present when the order was amended, and it will be presumed that everything was rightly done.” 201 Pa. Superior Ct. at 652. There is no prejudice alleged by appellant, nor is there any prejudice that could possibly have resulted from the reduction of the probation period without advance notice to appellant or without his presence or the presence of counsel. The lower court properly reduced the excessive period of probation.

Appellant next argues that the lower court was dilatory in revoking his probation after appellant was arrested for possession of marijuana, and that this tardiness requires us to order the sentence vacated and appellant discharged. It is true that when a sentence is imposed after the expiration of a probationary period, based upon a violation which occurred within the period [the situation in the case before us], the probation must be revoked and the sentence imposed within a reasonable time after the expiration of that period. Commonwealth v. Clark, 225 Pa. Superior Ct. 171, 310 A.2d 316 (1973). We do not believe, however, that an unreasonable amount of time passed in this case before the lower court revoked probation and imposed sentence. Appellant was originally placed on probation on May 18, 1973. Although the period of probation was reduced from three years to one year on July 11, 1973, the probationary period would have expired May 17, 1974. On March 23, 1974, approximately seven weeks before the expiration date, appellant was arrested for possession of marijuana. On May 16, 1974, the District Attorney of Bucks County petitioned for a hearing on the probation violation, and a hearing date was set for May 28, 1974. Appellant failed to show on the appointed day, allegedly because of the failure of the District Attorney to give proper notice of the hearing. On September 17, 1974, pursuant to §780-117 of The Con[128]*128trolled Substance, Drug, Device and Cosmetic Act,¹ appellant pleaded nolo contendere to the charge of possession of marijuana and was granted probation without verdict. A hearing was set for November 15, 1974 on the probation violation, but the hearing was postponed until December 5, 1974. On the latter date, a hearing was held, probation was revoked, and appellant was sentenced to three to twelve months imprisonment. In any case, the pertinent question is whether the delay in revoking probation and imposing sentence was reasonable. Commonwealth v. Duff, 201 Pa. Superior Ct. 387, 192 A.2d 258 (1963), reversed on other grounds 414 Pa. 471, 200 A.2d 773 (1964). In the case before us, action was taken by the District Attorney to have appellant’s probation revoked, seven weeks after the violation (the arrest for possession of marijuana) occurred. Final action was not taken by the lower court until 6:1/2 months after the expiration date of the probationary period (81/2 months after the probation violation); however, it was not unreasonable for the lower court to await the disposition of the charges against appellant for possession of marijuana. See Commonwealth v. Duff, supra. We find that the amount of time which elapsed before the revocation of probation and the imposition of sentence was not unreasonable.

Appellant’s final argument is that the lower court erred in permitting witnesses to testify at his probation revocation hearing concerning the marijuana offense. Appellant’s rationale is that he had a right to have his record expunged of that offense, and that the lower court therefore should not have permitted testimony concerning it. The purpose of a revocation hearing “is simply to establish to the satisfaction of the judge who granted probation that the individual’s conduct warrants his continuing as a probationer.” Commonwealth v. Kates, 452 Pa. 102, [129]*129119, 305 A.2d 701, 710 (1973). The hearing is not a highly formal procedure in which traditional rules of evidence and strict rules of procedure must be complied with, Commonwealth v. Clark, supra, nor is proof beyond a reasonable doubt a requirement, United States v. Chambers, 429 F.2d 410 (3d Cir. 1970). There is no allegation in the case before us that the witnesses or their testimony were untrustworthy in any way; the only argument is that appellant had a legal right to have the marijuana arrest not considered a probation violation. We find that the lower court properly considered the matter of appellant’s arrest, and properly allowed witnesses to testify concerning that offense.

The Order of December 5, 1974, revoking probation and imposing a term of imprisonment of three to twelve months, is affirmed.

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Opinion by

Van der Voort, J.,

Appellant Michael J. Lipton was arrested in February, 1971, and charged with possession of a dangerous drug (LSD). After a trial before a judge sitting without a jury, appellant was found guilty and, on May 18, 1973, was placed on probation for three years. On July 11,1973, the lower court, having been made aware that the probationary period exceeded the legal maximum by two years, reduced the term to one year. Subsequently, appellant was convicted of possession of marijuana, and his probation was revoked. Appeal was taken to our Court from the Order of the Court of Common Pleas of Bucks County, revoking probation and imposing a prison sentence on appellant.

Appellant first argues that the lower court illegally reduced his period of probation, since the order was allegedly entered without advance notice to appellant, without appellant being present at the time the order was entered, and without the presence of counsel for appellant. We find this argument to be totally without merit. When an order of probation for a period in excess of the maximum permissible term of imprisonment is imposed, the lower court may at any time correct such excessive sentence of probation by reducing it. See Commonwealth v. Ferguson, 201 Pa. Superior Ct. 649, 193 A.2d 657 (1963). Furthermore, [127]*127as was stated in Ferguson, “ [e] xcept in a capital case, it need not affirmatively appear in the record that the defendant was present when the order was amended, and it will be presumed that everything was rightly done.” 201 Pa. Superior Ct. at 652. There is no prejudice alleged by appellant, nor is there any prejudice that could possibly have resulted from the reduction of the probation period without advance notice to appellant or without his presence or the presence of counsel. The lower court properly reduced the excessive period of probation.

Appellant next argues that the lower court was dilatory in revoking his probation after appellant was arrested for possession of marijuana, and that this tardiness requires us to order the sentence vacated and appellant discharged. It is true that when a sentence is imposed after the expiration of a probationary period, based upon a violation which occurred within the period [the situation in the case before us], the probation must be revoked and the sentence imposed within a reasonable time after the expiration of that period. Commonwealth v. Clark, 225 Pa. Superior Ct. 171, 310 A.2d 316 (1973). We do not believe, however, that an unreasonable amount of time passed in this case before the lower court revoked probation and imposed sentence. Appellant was originally placed on probation on May 18, 1973. Although the period of probation was reduced from three years to one year on July 11, 1973, the probationary period would have expired May 17, 1974. On March 23, 1974, approximately seven weeks before the expiration date, appellant was arrested for possession of marijuana. On May 16, 1974, the District Attorney of Bucks County petitioned for a hearing on the probation violation, and a hearing date was set for May 28, 1974. Appellant failed to show on the appointed day, allegedly because of the failure of the District Attorney to give proper notice of the hearing. On September 17, 1974, pursuant to §780-117 of The Con[128]*128trolled Substance, Drug, Device and Cosmetic Act,¹ appellant pleaded nolo contendere to the charge of possession of marijuana and was granted probation without verdict. A hearing was set for November 15, 1974 on the probation violation, but the hearing was postponed until December 5, 1974. On the latter date, a hearing was held, probation was revoked, and appellant was sentenced to three to twelve months imprisonment. In any case, the pertinent question is whether the delay in revoking probation and imposing sentence was reasonable. Commonwealth v. Duff, 201 Pa. Superior Ct. 387, 192 A.2d 258 (1963), reversed on other grounds 414 Pa. 471, 200 A.2d 773 (1964). In the case before us, action was taken by the District Attorney to have appellant’s probation revoked, seven weeks after the violation (the arrest for possession of marijuana) occurred. Final action was not taken by the lower court until 6:1/2 months after the expiration date of the probationary period (81/2 months after the probation violation); however, it was not unreasonable for the lower court to await the disposition of the charges against appellant for possession of marijuana. See Commonwealth v. Duff, supra. We find that the amount of time which elapsed before the revocation of probation and the imposition of sentence was not unreasonable.

Appellant’s final argument is that the lower court erred in permitting witnesses to testify at his probation revocation hearing concerning the marijuana offense. Appellant’s rationale is that he had a right to have his record expunged of that offense, and that the lower court therefore should not have permitted testimony concerning it. The purpose of a revocation hearing “is simply to establish to the satisfaction of the judge who granted probation that the individual’s conduct warrants his continuing as a probationer.” Commonwealth v. Kates, 452 Pa. 102, [129]*129119, 305 A.2d 701, 710 (1973). The hearing is not a highly formal procedure in which traditional rules of evidence and strict rules of procedure must be complied with, Commonwealth v. Clark, supra, nor is proof beyond a reasonable doubt a requirement, United States v. Chambers, 429 F.2d 410 (3d Cir. 1970). There is no allegation in the case before us that the witnesses or their testimony were untrustworthy in any way; the only argument is that appellant had a legal right to have the marijuana arrest not considered a probation violation. We find that the lower court properly considered the matter of appellant’s arrest, and properly allowed witnesses to testify concerning that offense.

The Order of December 5, 1974, revoking probation and imposing a term of imprisonment of three to twelve months, is affirmed.

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352 A.2d 521, 238 Pa. Super. 124, 1975 Pa. Super. LEXIS 2575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lipton-pasuperct-1975.

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