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COMMONWEALTH PENNSYLVANIA v. JOSEPH WHITFIELD (08/22/80)

filed: August 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH WHITFIELD, APPELLANT



No. 1685 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment No. 2282, March Session, 1976.

COUNSEL

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

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

Wickersham, Brosky and Eagen, JJ.*fn*

Author: Wickersham

[ 281 Pa. Super. Page 52]

On Thursday, July 29, 1976 defendant, Joseph H. Whitfield, pleaded guilty to various criminal charges before the Honorable Harry M. Montgomery, Specially Presiding. The charges included robbery, unlawful possession of an instrument of crime (revolver) and lesser charges. The plea of guilty was negotiated and the defendant sentenced to the Philadelphia County Prison for not less than five months nor more than twenty-three months, with credit for time served.*fn1

The defendant was subsequently paroled and on Monday, May 15, 1978, was brought before the Honorable Charles P.

[ 281 Pa. Super. Page 53]

Mirarchi, Jr. for a violation of parole hearing. He was represented by Leonard Lieberson, Esquire, Assistant Public Defender. Thomas Costa, Adult Probation Officer, testified to the prior proceedings before Judge Montgomery, and to an incident allegedly occurring August 12, 1977 when defendant Whitfield was arrested and charged with robbery, simple assault, aggravated assault, possession of an instrument of crime, and other charges. He appeared before the Honorable Richard Klein on April 13, 1978 for sentencing and was sentenced to six to fifteen years on the robbery charge arising from the August 1977 incident.

At the conclusion of the violation of parole hearing, Judge Mirarchi found that the defendant had violated the parole which he had been serving as a result of the guilty plea before Judge Montgomery and determined that defendant's parole be revoked and that he be committed to serve the balance of his sentence under Bill of Indictment No. 2282, March Term, 1976. His appellate rights were read to him.

Thereafter, Whitfield filed a timely appeal and poses the following questions:

"1. Was not the delay of four months from when he was convicted for the new offense until his parole revocation hearing based on this offense was held violative of due process of law and the express mandate of Rule 1409 of Pa.R.Crim.P. which prohibits revocation unless a hearing has been held 'as speedily as possible,' since no explanation or reason was ever offered for the lengthy delay?

"2. Is not the appellant entitled to a new violation of parole hearing, since the violation summary contains information which court records indicate is incorrect?

"3. Is not appellant entitled to a new violation of parole hearing, since there was no imperative necessity for another judge to replace the trial judge at the violation of parole hearing?

"4. In the event this Court concludes that counsel in the lower court did not preserve any or all of the issues raised in this appeal, was not counsel's inaction ineffective assistance and is not appellant entitled to the same relief as if the issue(s) had been preserved?"

[ 281 Pa. Super. Page 54]

Statement of Questions Involved, Page 2, ...


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