No. 1126 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 1320 April Term, 1973.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., notes his dissent based on Commonwealth v. Jones,
[ 250 Pa. Super. Page 118]
Appellant Leslie Lewis Jones entered a guilty plea to robbery on June 22, 1973, and received a sentence of five years probation. In February of 1975, appellant was arrested on charges of murder, voluntary manslaughter, aggravated assault and conspiracy. He was convicted, on July 12, 1975, of aggravated assault and conspiracy and, immediately after disposition of post-trial motions on November 21, 1975, was sentenced to three to twenty-three months imprisonment, with a one month credit for time served plus a consecutive five year term of probation.
[ 250 Pa. Super. Page 119]
Probation on the 1973 robbery conviction was revoked after a hearing held on January 27, 1976, and appellant was subsequently sentenced to serve six months to five years imprisonment. Appellant now contends that probation should not have been revoked because he was denied a speedy revocation hearing in violation of due process and Pa.R.Crim.P. 1409. We disagree and affirm the judgment of sentence of the lower court.
Pa.R.Crim.P. 1409 provides that,
"[w]henever 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." (emphasis added).
"The requirement of a speedy revocation hearing embodied in the Rule is nothing more than a restatement of the doctrine developed by our courts that a revocation hearing must be held with 'reasonable promptness' after probation officials know or reasonably should have known of the violation." Commonwealth v. Lipton, 238 Pa. Super. 124, 135-36, 352 A.2d 521, 526 (1975) (dissenting opinion by Hoffman, J.); see also Commonwealth v. Parker, 244 Pa. Super. 113, 366 A.2d 941 (1976). An exception to the above rule exists where the alleged violation consists of the commission of a crime during the probationary period. In such a case, "[i]t is sufficient that the court which imposed the probation should act promptly after the [conviction for the probation violating offense] . . . ." Commonwealth v. Duff, 201 Pa. Super. 387, 395, 192 A.2d 258, 262 (1964).
The sole question which arises in every case of this type is whether the delay from the date of conviction*fn1 to the
[ 250 Pa. Super. Page 120]
date of probation revocation was reasonable. Commonwealth v. Lipton, supra; Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 768 (1971). In assessing reasonableness, it is obvious that we must consider the length of and reasons for the delay as well as any prejudice inuring to the defendant. Rule 1409 did not establish a presumptive time period within which the Commonwealth must revoke probation. Compare Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977); Pa.R.Crim.P. 1100 & 6013; with Pa.R.Crim.P. 1409. It would be manifest error for this court ...