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filed: April 3, 1980.


No. 1850 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia, at No. 250 September Session 1971


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

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

Brosky, Wickersham and Eagen, JJ.*fn*

Author: Per Curiam

[ 277 Pa. Super. Page 89]

Wendell Johnson, appellant, plead guilty to burglary in the Court of Common Pleas of Philadelphia on June 21, 1973.

[ 277 Pa. Super. Page 90]

He was placed on probation for five years conditioned on receiving inpatient drug therapy. Johnson satisfied the condition.

In October of 1976, Johnson asked permission to move to San Diego, California, to live with his sister, his brother, and his brother-in-law. The permission was granted, and Johnson moved to that state. His probation supervision was assumed by the San Diego Probation Department.

On May 19, 1977, Johnson was arrested in California and charged with two counts of rape and two counts of robbery. Bail was fixed at one hundred thousand dollars, and Johnson remained incarcerated. On June 1, 1977, the Commonwealth of Pennsylvania lodged a probation detainer against Johnson with the State of California.

On September 30, 1977, Johnson was convicted in California of the rape and robbery charges. On October 26, 1977, Johnson was sentenced to an aggregate of sixteen years to life imprisonment.*fn1

On December 13, 1977, Johnson requested a speedy violation of probation hearing in Pennsylvania. On May 5, 1978, Johnson was returned to Pennsylvania by California authorities. On May 24, 1978, the hearing was held in the Court of Common Pleas of Philadelphia.

Following the hearing, the court determined Johnson's new convictions in California constituted a violation of probation, revoked the Pennsylvania probation, and imposed a judgment of sentence of ten to twenty years imprisonment consecutive to the California judgments.

A petition to reconsider was filed, and a hearing was held on June 22, 1978. At this hearing, Johnson asserted his right to a speedy hearing under Pa.R.Crim.P. 1409 had been denied. The court disagreed and denied the petition. This appeal is from the judgment of sentence imposed in Pennsylvania after revocation of probation.

[ 277 Pa. Super. Page 91]

The sole issue presented is whether, under the circumstances, Johnson's right to a speedy hearing under Pa.R.Crim.P. 1409 was denied. Pa.R.Crim.P. 1409, in pertinent part, 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 . . . ."

In discussing this rule, this court has said:

"'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. Holmes, [248 Pa. Super. 552, 375 A.2d 379 (1977)]; Commonwealth v. Parker, 244 Pa. Super. 113, 366 A.2d 941 (1976). 'Where the alleged violation consists of the commission of another crime during the original period of probation or parole, "[i]t is sufficient that the court which imposed the probation [or parole] should act promptly after the [conviction] . . . ."' Commonwealth v. Holmes, supra, 248 Pa. Super. at 557, 375 A.2d at 381 quoting Commonwealth v. Duff, 201 Pa. Super. 387, 395, 192 A.2d 258, 262 (1964). "The sole question in every case of this type is whether the delay from the date of conviction to the date of revocation was reasonable. Commonwealth v. Parker, supra. In assessing reasonableness, we must consider the length of the delay, the reasons for the delay and the prejudice to the defendant. Commonwealth v. Holmes, supra; Commonwealth v. Lipton, supra; Commonwealth v. Duff, supra."

Commonwealth v. Waters, 252 Pa. Super. 357, 360-61, 381 A.2d 957, 958-59 (1977).

The delay involved instantly is seven months and twenty-four days. No explanation for this delay was presented to

[ 277 Pa. Super. Page 92]

    the trial court; hence, the record is devoid of any explicit reasons for the delay.*fn2 But, the record does establish that Johnson was arrested, convicted, and sentenced in California. That fact alone must be considered in determining if the delay was reasonable.

In Commonwealth v. Williams, 254 Pa. Super. 202, 385 A.2d 979 (1978), we found a five-and-one-half-month delay was not unreasonable in the absence of a deliberate attempt to impede Williams' defense and in the absence of prejudice.*fn3 Considering that Johnson was arrested and tried in California and considering that here, as in Commonwealth v. Williams, supra, there is an absence of prejudice and of any attempt to impede Johnson's defense, we conclude the period of delay is not unreasonable. See Commonwealth v. Jones, supra (six and one-half months not unreasonable).

Nothing in this record suggests any deliberate attempt to hamper Johnson's defense. Further, Johnson's term of probation had not expired when the probation revocation hearing was held; hence, prejudice of the type found in Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 768 (1971), is absent instantly.

Furthermore, the primary purposes of a prompt revocation hearing, namely to prevent the loss of essential witnesses or documentary evidence and the continuance of unnecessary incarceration or other limitations on personal liberty, Commonwealth v. Jones, supra, were not thwarted instantly.

[ 277 Pa. Super. Page 93]

    prejudice. As to the latter claim, given the criminal convictions involved, Johnson's chances for special treatment are likewise too speculative. Commonwealth v. Jones, 260 Pa. Super. 43, 393 A.2d 1003 (1978).

Second, Johnson asserts the opportunity to serve the sentence imposed following revocation of probation concurrently with the violating offense sentence is lost if the revocation hearing is not held prior to sentencing on the violating offense. As the Commonwealth points out, the claim is devoid of merit since the revocation court in the case of a probation violator may, in its discretion, order the sentence to run concurrently with the violating offense sentence. Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978).*fn6

*fn* Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania is sitting by designation.

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