February 5, 1982
COMMONWEALTH OF PENNSYLVANIA
STEPHEN BASS, APPELLANT
No. 504 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania Imposed on Bill of Indictment No. 918, January Session, 1971
Before Hester, Shertz and Wieand, JJ.
This is an appeal from a judgment of sentence imposed following revocation of Appellant's probation. Appellant argues that the probation violation occurred after his probationary term had expired. This issue was adequately addressed by the lower court and its opinion is attached for allocatur purposes.
THE CASE WAS DECIDED PRIOR TO THE EXPIRATION OF SHERTZ'S COMMISSION OF OFFICE.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION
COMMONWEALTH vs STEPHEN BASS
C.P. NO. 7101-0918
CHARLES P. MIRARCHI, JR., A. J. - November 8, 1978
Defendant, STEPHEN BASS, appeared before Judge MC LAUGHLIN on May 24, 1971, having been indicted in January, 1971 on the following bill: No. 918 - Burglary of an automobile. On that date the defendant pled guilty and was sentenced to be placed on five years probation to begin at expiration of sentence then serving.
This Court is hearing Judge MC LAUGHLIN's violations of probation.
The defendant appeared before this Court on November 28, 1977 for a violation of probation hearing. The defendant had appeared before this Court on July 21, 1977 and the case was continued at the request of defense counsel pending disposition of the open case. On September 7, 1977, this case was continued at defense counsel's request pending disposition of the open case. On October 3, 1977, the case was continued to October 20, 1977 pending disposition of the open case. On October 20, 1977, this Court determined that prior case histories were needed to determine status of defendant's probation and requested that the Quarter Sessions files be sent down for further investigation. On November 10, 1977, upon receipt of the aforementioned files, this case was continued to November 28, 1977 to allow this Court time to review the files.
On November 28, 1977, this Court reviewed the prior sentences. The defendant first argued that his original probation should have been reduced to a misdemeanor of the third degree, since the criminal code was amended in 1973. However, the defendant pled guilty to the crime of receiving stolen goods involving § 450.00 worth of goods which under the new code is a misdemeanor of the first degree.
The defendant then argued that his probation had expired before April 30, 1977, the date of the criminal act which brings the defendant before this Court on a violation of probation. The Court examined three previous convictions, including the effective date of each sentence as follows:
1. C.P. 7002-152, Larceny, Rosenburg, S.H. J., 3 months to one year effective 4-16-70
2. M.C. 7005-1482 - Interference with Police Officer and Breach of Peace - Simmons, Jr., J., 15 days to six months effective 1-7-71.
3. C.P. 6912-390 - Poss. Narc. Drugs - Cain, Jr., J. six months to twenty-three months, effective 2-5-71.
This defendant at the time of sentencing by Judge MC LAUGHLIN was on parole as a result of the sentence by Judge CAIN. The defendant's probation, therefore, commenced January 5, 1973 and would have expired on January 5, 1978. This Court thus concluded that defendant was on probation at the time of this incident and proceeded with the violation of probation hearing.
Mr. BASS had been arrested on April 30, 1977 and charged with knowing and intentional possession of a controlled substance. On September 30, 1977, the defendant was tried on the above charge and adjudged guilty. The sentence was deferred pending a presentence and psychiatric evaluation. On November 28, 1977, the defendant was sentenced on the charge of knowing and intentional possession of a controlled substance. The defendant violated his probation by this new conviction. Consequently, this Court revoked the defendant's probation and sentenced him to be committed to the State Correctional Institute at Graterford for a period of not less than two and a half years nor more than five years on Bill of Indictment Number 918, January Term, 1971, such sentence to run consecutive to the sentence that Mr. BASS was then serving.
The defendant has violated his probation by the commission and conviction of another crime. Therefore, it is within the discretion of the Court to revoke his probation. See COMMONWEALTH v. PREININGER, 230 Pa. Super. 39 (1974). The defendant received notice of the violation hearing in accordance with the requirements of GAGNON v. SCARPELLI, 411 U.S. 778, 36 L. Ed. 2d 656, 93 Sup. Ct. 1756 (1973).
The violation hearing was held on November 28, 1977 which was less than two months after the conviction which placed the defendant in violation. Consequently, the hearing was timely. See COMMONWEALTH v. STANLEY WHITE, 218 Pa. Sup. Ct. 188, 279 A.2d 768 (1971); also COMMONWEALTH v. LESLIE JONES, 378 A.2d 481 (1977).
In regard to sentencing, this Court took into account many considerations including the many arrests and convictions this twenty-seven year old defendant has had since his life as an adult offender started on November 25, 1969 at the age of 18 years. Since that time the defendant has had ten arrests and convictions including possession of drugs: receiving stolen goods, interference with police officers, receiving stolen goods, disorderly conduct, breach of the peace, unlawful taking and disposition, burglary, knowingly possessing a controlled substance with intent to deliver, theft and again knowingly possessing a controlled substance.
Mr. BASS has been given the privilege of probation in the past and he has abused this privilege by his continued criminal activity. It is the opinion of this Court that the sentence of incarceration is necessary and appropriate.
In summary, this Court after a careful review of the entire record of this case finds no harmful, prejudicial or reversible error and nothing to justify the granting of defendant's motion.
CHARLES P. MIRARCHI, JR., A. J.
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