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decided: December 29, 1978.


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


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 hearing begun August 17, 1976 violated Pa.R.Crim.P. 1409.*fn3 We do not agree.

[ 262 Pa. Super. Page 118]

Our inquiry in these cases has typically been whether, upon discovering probationer's apparent violation of the terms of his probation the Court has acted with "reasonable promptness" to hold a probation revocation hearing. E. g., Commonwealth v. Call, 249 Pa. Super. 511, 519, 378 A.2d 412, 417 (1977). Where the alleged violation consists of crime committed during the probationary period, our focus has been upon the delay following the date of conviction. Commonwealth v. Jones, 250 Pa. Super. 116, 118, 378 A.2d 481, 482 (1977). However, in this case the revocation hearing at issue was the second conducted, being the result of an appeal to this Court from an earlier revocation order, coupled with a remand of the record with a procedendo to Judge WALSH. Therefore, our focus is upon the period following remand, and the precise issue for our determination is whether upon remand Judge WALSH conducted the probation revocation hearing with reasonable promptness.*fn4

The second probation revocation hearing began on August 17, 1976, fifty days after our remand order. Even with the two week continuance, the total delay was barely more than two months and if we deduct the thirty (30) days after our order during which the record must remain in our court awaiting possible petition for allocatur, the delay was approximately one month. See Pa.R.A.P. 2572. Consequently, because we find nothing which indicates that this specific delay was unreasonable, we surely do not require that a probation revocation hearing be held more promptly following vacation of an erroneous revocation order than we require in the first instance. Cf. Commonwealth v. Williams,

[ 262 Pa. Super. Page 119254]

Pa. Super. 202, 208-209, 385 A.2d 979, 983 (1978) (five and one-half month delay between conviction for crime committed during probationary period and probation revocation hearing not unreasonable absent showing of deliberate attempt to impede probationer's case or any resulting prejudice).*fn5 We hold therefore that the second probation revocation hearing satisfied the requirements of Rule 1409.

Appellant next argues that because the conditions of his probation were specifically set by the Probation Officer and not by sentencing Judge WALSH, Judge WALSH's revocation of probation was improper. We do not agree.

After Judge WALSH imposed the sentence of probation, appellant was taken immediately to the Probation Office, as is the usual procedure with Lackawanna County Courts, and informed of the specific terms of his probation, one being that he commit no crime during its duration.*fn6 In light of our prior recognition of the fact that county courts have been left to fashion their own systems of probation, Commonwealth v. Duff, 201 Pa. Super. 387, 391, 192 A.2d 258, 260, rev'd on other grounds, 414 Pa. 471, 200 A.2d 773 (1963), we find no error in Judge WALSH's failure to spell out the terms when the custom in that county is to leave specific details to the Probation Officer.*fn7

[ 262 Pa. Super. Page 120]

Appellant further claims that the inflammatory comments made by the district attorney at sentencing prevented a fair decision. We find this issue to be without merit.

At the February 25, 1977 sentencing, Judge Walsh allowed appellant to say whatever he wished in his own behalf. When asked if he had any thing to add to appellant's lengthy soliloquy, the district attorney stated that

[appellant] continues to make accusations against police officers and officers of this Court and which I take extreme exception to. I think that the record will reflect that Mr. Martin never once had taken the oath and stood in the witness chair and said under oath any of these particular things . . . and he made a remark to me that he's too smart to swear because he knows he can get caught for perjury . . . . [Furthermore, he has] made personal threats against me . . . [and] threatened witnesses at trial. N.T. Sentencing, at 7, 8, 9.

Appellant's counsel took exception to these remarks, and urged Judge WALSH not to consider them. We will not presume, as appellant insists, that the judge was improperly influenced, particularly where he specifically indicated that "the court has taken note of everything that the defendant has said . . . and we'll instruct ourselves

[ 262 Pa. Super. Page 121]

    to disregard any [of the district attorney's] remarks concerning threats . . . ." Id. at 12. Assuming arguendo the impropriety of such remarks, we will not interfere with the lower court's discretion with respect to sentencing where "no information of a constitutional magnitude is given specific consideration by the sentencing judge." Commonwealth v. Conner, 462 Pa. 282, 288-89, 341 A.2d 81, 84 (1975).*fn8

Order revoking probation and imposing sentence affirmed.

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