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COMMONWEALTH PENNSYLVANIA v. OLIVER RUFF (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
OLIVER RUFF, APPELLANT



No. 999 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 1132 April Term, 1974.

COUNSEL

David Zwanetz, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for the Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Price

[ 272 Pa. Super. Page 53]

On July 10, 1974, appellant pleaded guilty to possessing a prohibited offensive weapon*fn1 and was sentenced to a probationary term of three years. Two years later, on August 14, 1976, appellant was arrested and charged with murder,*fn2 possession of an instrument of crime,*fn3 and possession of a prohibited offensive weapon. He was found guilty of murder on March 30, 1977, and sentenced to a term of imprisonment of from five (5) to twenty (20) years. On October 5, 1977, a hearing was held at the conclusion of which the Honorable Edward B. Rosenburg found that the murder conviction constituted a violation of appellant's probation. That probation was consequently revoked, and a

[ 272 Pa. Super. Page 54]

    prison term of from one (1) to three (3) years imposed; such sentence to run consecutively to the sentence being served for murder. Appellant now contends that: (1) the Gagnon II hearing was fatally defective because the record does not verify his reception of written notice of the claimed violation; and (2) he was not afforded a prompt hearing as mandated by Pa.R.Crim.P. 1409.*fn4

Addressing ourselves initially to appellant's second argument, Pa.R.Crim.P. 1409 provides:

"Whenever 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).

[ 272 Pa. Super. Page 55]

In determining whether the hearing has indeed been held with reasonable promptness, the length of time between the conviction and the hearing is not the sole determinative factor. Commonwealth v. Young, 262 Pa. Super. 253, 396 A.2d 741 (1978); Commonwealth v. Diaz, 258 Pa. Super. 346, 392 A.2d 827 (1978); Commonwealth v. Waters, 252 Pa. Super. 357, 381 A.2d 957 (1977); Commonwealth v. Jones, 250 Pa. Super. 116, 378 A.2d 481 (1977). Rather, the critical issue is whether the delay was reasonable under the circumstances of the specific case, with such reasonableness being evaluated in the light of three factors: the length of the delay, the reasons for the delay, and the prejudice suffered by the defendant as a result of the delay. Commonwealth v. Young, supra; Commonwealth v. Waters, supra. Weighing these considerations in the instant matter, we find little to command appellant's argument.

The delay in this case involved a period of approximately six months, i. e., from March 30, 1977, to October 5, 1977.*fn5 This is not as protracted as others we have found repugnant to Pa.R.Crim.P. 1409, see, e. g., Commonwealth v. Holmes, 248 Pa. Super. 552, 375 A.2d 379 (1977) (22 1/2 month delay); Commonwealth v. ...


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