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COMMONWEALTH PENNSYLVANIA v. ROBERT BURRELL (03/10/82)

decided: March 10, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BURRELL, APPELLANT



No. 308 January Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Section, revoking appellant's probation and imposing judgment of sentence, No. 414 June Session, 1967.

COUNSEL

Joseph L. DiTomo, Jr., Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Roberts

[ 497 Pa. Page 369]

OPINION OF THE COURT

Appellant Robert Burrell appeals from an order of the Court of Common Pleas of Philadelphia revoking a sentence of ten years' probation and imposing a sentence of two to twenty years' imprisonment because of appellant's conviction for a firearms offense committed two months prior to the completion of his probation. Appellant alleges that the revocation of his probation was improper because the revocation hearing was not held within a reasonable time, the hearing judge was not impartial, and appellant was denied the right to cross-examine the investigator who prepared the pre-sentence report. Having determined that none of appellant's claims of error merits relief, we affirm.

On April 10, 1968, after pleading guilty to murder generally for his involvement in a robbery which resulted in the shooting-death of the victim, appellant was found guilty of

[ 497 Pa. Page 370]

    murder of the second degree and sentenced to ten years' probation. The term of probation was due to expire on April 10, 1978.

On February 1, 1978, more than two months prior to the scheduled expiration of his probation, appellant was arrested for unlawful possession of a firearm. He was found guilty by the Municipal Court of Philadelphia on June 27, 1978. On appeal to the Court of Common Pleas of Philadelphia, after a trial de novo, appellant was again found guilty on April 25, 1979.

The hearing on appellant's violation of probation was originally scheduled for July 25, 1978, one month after his municipal court conviction. However, at defense request, the hearing was continued because of appellant's pending appeal to the court of common pleas. The hearing was relisted on six subsequent occasions prior to the court of common pleas' adjudication, and on each occasion a continuance was granted at appellant's request. After appellant was found guilty of the underlying firearms offense by the court of common pleas, the probation hearing was scheduled for May 15, 1979, twenty days later. On that date appellant was served with written notice of the probation violation, and the hearing was continued for one week. When the hearing resumed, appellant requested and was granted a continuance. The hearing was ultimately held on June 18, 1979, less than two months after appellant had been found guilty by the court of common pleas and fourteen months after his probation would otherwise have expired.

Appellant claims that the holding of his probation revocation hearing after his sentence of probation had expired, constituted unreasonable delay in ...


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