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COMMONWEALTH PENNSYLVANIA v. JAMES R. MARTIN (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES R. MARTIN, APPELLANT



No. 1166 October Term, 1977, Appeal from the Sentence of the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 1046-1973.

COUNSEL

Robert T. Gownley, Jr., Public Defender, Scranton, for appellant.

Ernest D. Preate, Jr., Assistant District Attorney, Scranton, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 262 Pa. Super. Page 116]

This appeal is from appellant's sentence following the revocation of his probation. Appellant contends that an impermissible period of time elapsed between his probation violation and the hearing on the matter of probation revocation; that he never violated the terms of his probation as delineated by the sentencing judge; and that for numerous reasons the judge's decision to revoke probation was unfair. We find these claims to be without merit, and accordingly affirm.

On March 24, 1974, appellant James R. Martin pleaded guilty before the Honorable James J. WALSH to the charge of Criminal Attempt. On August 30, he was sentenced by Judge WALSH to three years probation and ordered to pay $100 "for the use of Lackawanna County." No appeal was taken from this Judgment of Sentence.

On October 23, 1974, appellant was arrested and charged with Aggravated Assault and Recklessly Endangering Another Person in connection with a rifle shooting incident at Michael's Cafe in downtown Scranton. Following his conviction on these charges a probation revocation hearing was

[ 262 Pa. Super. Page 117]

    held before Judge WALSH on November 8, 1974. At its conclusion, he found that appellant did violate the conditions of his probation and sentenced him immediately to one and one-half to three years in jail. He appealed that sentence to this court.

On June 28, 1976 we reversed the November 8, 1974 revocation order on the basis that appellant had been denied due process, and remanded the record with a procedendo. Commonwealth v. Martin, 241 Pa. Super. 222, 360 A.2d 733 (1976).*fn1

On August 17, 1976, Judge WALSH scheduled a second probation revocation hearing. However, during the course of the hearing he granted the District Attorney's request for a continuance based on the fact that the District Attorney's office had not yet established that appellant had received proper notice of the alleged violations. On September 1 the hearing was reconvened. At its conclusion, Judge WALSH found that appellant had violated the terms of his probation and it was consequently revoked. Motions for a new hearing and in arrest of judgment were denied, and appellant was sentenced to imprisonment on February 25, 1977. This appeal followed.*fn2

We are faced initially with a novel aspect of the question of whether or not an impermissibly long period of time elapsed between a probation violation and a hearing on the matter of probation revocation. Appellant claims that the "many delays" prior to the probation revocation ...


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