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COMMONWEALTH PENNSYLVANIA v. LEE SANDERS (08/06/82)

filed: August 6, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
LEE SANDERS, A/K/A LEE LAWRENCE, APPELLANT



No. 1742 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Division, at Nos. 1487 & 1488 March Term, 1974.

COUNSEL

Anthony D. Reagoso, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Montemuro and Watkins, JJ.

Author: Watkins

[ 303 Pa. Super. Page 140]

This is an appeal by the defendant-appellant from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County revoking probation and imposing a sentence of three to six (3 to 6) years to be served consecutively to a sentence imposed by Judge Porter in another matter. The defendant contends (1) ineffective assistance of counsel; (2) that he was denied a speedy revocation hearing; and (3) that he did not receive proper notice of the alleged violations of his probation prior to the revocation hearing. These contentions are without merit and we affirm the court below.

The defendant was tried on June 20, 1974 before Judge Rosenberg, non-jury. He was found guilty of possessing an instrument of crime and robbery. He was sentenced on September 18, 1974 of a prison term of eight to twenty-three (8 to 23) months on the robbery charge and to a consecutive term of probation for seven (7) years on the possession of instrument of crime charge.

[ 303 Pa. Super. Page 141]

On April 4, 1976 he was arrested and charged with burglary. He was convicted of this crime by Judge William Proter, non-jury, on September 13, 1976. He was then sentenced to a term of imprisonment of one to five (1 to 5) years.

On October 5, 1976, the defendant appeared before Judge Rosenberg for a violation of probation hearing based on the conviction. His probation was revoked and he was sentenced to a term of three to five (3 to 5) years. No direct appeal was taken. On July 5, 1979 after post conviction hearing, he was permitted to file an appeal, nunc pro tunc.

The Gagnon II hearing is to insure against detention of a parolee or probationer on allegations of violations that have no foundation of probable cause. However, when the alleged violations of the terms of probation, as here, are the commission of a crime, the preliminary hearing at which the prosecution proves a prima facie case makes a Gagnon II hearing unnecessary. Commonwealth v. Perry, 254 Pa. Superior Ct. 48, 385 A.2d 518 (1978).

A revocation hearing must be held "as speedily as possible". Pennsylvania Rule of Criminal Procedure 1409. It must be held within a reasonable time. This issue was not raised at the revocation hearing. Commonwealth v. Reggie, 264 Pa. Superior Ct. 427, 399 A.2d 1125 (1979).

Where there has been knowledge that another crime has been committed by the defendant probationer, it is sufficient that the court which imposed probation should act promptly after conviction. Commonwealth v. Williams, 254 Pa. Superior Ct. 202, 385 A.2d 979 (1978). Factors that are to be considered are: the length of delay; the reason for the delay; and the prejudice to the defendant. ...


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