No. 1433 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at No. 714 August Sessions, 1974.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, filed a dissenting opinion in which Spaeth, J., joined. Spaeth, J., filed a dissenting opinion. This case was decided prior to the retirement of Jacobs, former President Judge. Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 467]
The appellant, Wendell Long, was convicted of one count of terroristic threats, and four counts of aggravated assault, and was sentenced, on November 14, 1974, to five to twenty-three months imprisonment for terroristic threats, and two concurrent terms of probation for assault. Approximately one month later, on December 20, 1974, he was paroled, after receiving credit for time previously served. On July 30, 1975, appellant was arrested and charged with simple assault. He was convicted on this charge and on October 1, 1975, sentenced to eleven and one half to twenty three months in prison. A parole violation hearing was thereafter held on December 4, 1975, but the parole was continued, as the lower court concluded that the sentence imposed on the then latest charge was sufficient and the circumstances did not then warrant a revocation of parole. On June 5, 1976, appellant was arrested on charges of rape and simple assault. He was convicted on these latter charges on October 25, 1976, but sentencing was deferred until after February 23, 1977, when appellant was sentenced to two to four years imprisonment on the rape charge and one to two years on the assault charge, sentences to run concurrently. A parole revocation hearing was held on April 5, 1977, which resulted in a revocation order by the lower court. It is from the order revoking parole that this appeal arises. Appellant's sole claim is that the delay between his latest conviction and the parole revocation hearing was violative of his right to a speedy hearing.
Appellant, citing Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 768 (1971), argues that the five month delay was too lengthy and constituted a denial of due process. While White also featured a delay of five months between a later conviction and the parole revocation, we have held that neither the holding in that case, nor the requirements of Rule 1409 of the Pennsylvania Rules of Criminal Procedure,*fn1
[ 264 Pa. Super. Page 468]
establish a prophylactic five-month rule. Commonwealth v. Waters, 252 Pa. Super. 357, 381 A.2d 957 (1977). In Waters, which featured a delay of four months and twenty-six days between the date of a conviction and a parole revocation hearing, we held that the sole question in these situations is whether the delay was reasonable. In assessing reasonableness, we noted that we had to consider not only the length of the delay, but also the reasons for the delay and whether there was any prejudice to the defendant. Waters, supra, 252 Pa. Super. at 361, 381 A.2d at 959. See also Commonwealth v. Holmes, 248 Pa. Super. 552, 375 A.2d 379 (1977); Commonwealth v. Lipton, 238 Pa. Super. 124, 352 A.2d 521 (1975).
In the instant case, the lower court noted that it was promptly informed of the appellant's October 25, 1976 conviction. However, the following explanation is offered in the lower court's Opinion, to justify the delay:
The Court was aware that the defendant had been found guilty of rape and was being held in lieu of bail as well as on detainers. It was apparent to the Court in light of the defendant's record and seriousness of the new conviction, that a substantial prison term might be imposed. The parole officer recommended that no hearing be held until sentencing on the new charge. In view of all the circumstances, the Court deemed it proper to await the results of sentencing before imposing its own sentence based on the direct violation.
While it might be argued that a trial court possesses all of the facts necessary for a revocation hearing when it learns of the conviction of a later crime during a period of parole, we cannot find that it was unreasonable for the lower court in this case to delay the revocation hearing until the appellant was sentenced on the other ...