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COMMONWEALTH PENNSYLVANIA v. ROWMAINE MARLOWE (07/23/82)

SUPERIOR COURT OF PENNSYLVANIA


July 23, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
ROWMAINE MARLOWE, APPELLANT

No. 1485 PHILADELPHIA, 1980, Appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 290 September Term. 1973.

Before Hester, Cavanaugh and Beck, JJ. Cavanaugh, J., files a Dissenting Statement.

Per Curiam:

CAVANAUGH, J., files a Dissenting Statement.

CAVANAUGH, J.:

Pa. R. Crim. P. 1409 requires that a probation revocation hearing be held "as speedily as possible." In the instant case the probation revocation hearing was held slightly more than sixteen months after appellant was convicted of murder, the offense which constituted his violation of probation. The Commonwealth offered no reason for the delay and none appears in the record. The majority states at page 3: "The reason for the delay falls into a 'neutral' area and offers little assistance in determining reasonableness under Rule 1409."

When the alleged probation violation is the commission of another crime during the probationary period, the relevant period is the delay between the date of conviction for such crime and the date of the revocation hearing. Commonwealth v. Waters, 252 Pa. 357, 381 A.2d 957 (1977). In evaluating the reasonableness of such period, we use a tripartite test focusing upon these factors: The length of the delay; the reasons for the delay and the prejudice to the defendant resulting from the delay. Commonwealth v. Young, 262 Pa. Super. 253, 396 A.2d 741 (1978). In the instant case the appellant's probation expired twenty months prior to the revocation hearing. In Commonwealth v. Smith, 266 Pa. Super. 234, 403 A.2d 1326 (1979) this court held that the fact that the hearing took place eleven months after the expiration of the probationary period demonstrated that the appellant was prejudiced by the delay. The court in Smith, supra, determined that the long delay, the lack of adequate explanation by the Commonwealth and the prejudice to the defendant resulted in the denial to the defendant of the right to a speedy hearing.

In Commonwealth v. Young, supra, this court ruled that the absence of an explanation for the delay must be weighed in the defendant's favor. In Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 768 (1971) we held that a five month delay was improper when the Commonwealth offered no excuse for the delay and the hearing took place five weeks after the probationary term had expired. See also the dissenting opinion by Spaeth, J., in Commonwealth v. Ruff, 272 Pa. Super. 50, 414 A.2d 663 (1979).

The result reached by the majority indicates that this court gives no serious meaning to the rule that requires a probation revocation hearing to be held as speedily as possible. Accordingly, I dissent.

19820723

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