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COMMONWEALTH PENNSYLVANIA v. CHARLES DICKENS (04/27/84)

filed: April 27, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES DICKENS, APPELLANT



No. 1969 Philadelphia, 1982, No. 1970 Philadelphia, 1982, Appeal from Orders and Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 411, 413, September, 1978.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Montemuro, JJ. Spaeth, President Judge, concurs in the result.

Author: Wieand

[ 327 Pa. Super. Page 149]

On April 18, 1979, Charles Dickens was sentenced to serve 11 1/2 to 23 months in prison for voluntary manslaughter and was placed on probation for a consecutive period of five years for possession of an instrument of crime. He was granted early parole on November 14, 1979. On March 19, 1980, while still on parole, Dickens was arrested and charged with assault, recklessly endangering another person and endangering the welfare of a child arising out of an incident of child abuse. He was convicted following trial on October 27, 1981. Post-trial motions were denied, and sentence was imposed on May 3, 1982. A detainer for violating parole and probation was heard on June 22, 1982. As a result, Dickens' parole on the voluntary manslaughter conviction was revoked; his probation on the conviction for possessing an instrument of crime was also revoked, and Dickens was sentenced to prison for not less than two and one-half years nor more than five years, to be served after the sentence imposed for the new offenses and consecutive to his backtime for violation of parole.

On direct appeal from the order revoking parole and probation, Dickens contends (1) that his revocation hearing was not held as speedily as possible, and (2) that the new offenses had occurred before he began serving his probation and, therefore, did not constitute a violation of probation. We find no merit in these contentions and, therefore, affirm the order of the trial court.

Pa.R.Crim.P. 1409 requires that a hearing to revoke probation or parole shall be held "as speedily as possible." This rule "does not establish a presumptive period within which the Commonwealth must revoke probation or parole and the Superior Court has refused to establish such a prophylactic rule. Rather, this Court has held that the time period referred to in Rule 1409 is a 'reasonable time.'" Commonwealth v. Kane, 315 Pa. Super. 212, 217-18, 461

[ 327 Pa. Super. Page 150]

A.2d 1246, 1249 (1983) (citations omitted). See also: Commonwealth v. Sanders, 303 Pa. Super. 139, 141, 449 A.2d 617, 618 (1982); Commonwealth v. Nance, 290 Pa. Super. 312, 319, 4 34 A.2d 769, 772 (1981); Commonwealth v. Johnson, 277 Pa. Super. 88, 91, 419 A.2d 674, 675-676 (1980); Commonwealth v. Ruff, 272 Pa. Super. 50, 55, 414 A.2d 663, 665 (1979). "Where, as here, a probation [or parole] revocation hearing is deferred pending a determination of the underlying criminal charge, . . . the revocation hearing must be held with reasonable promptness following [such] determination." Commonwealth v. Burrell, 497 Pa. 367, 371, 441 A.2d 744, 746 (1982). See also: Commonwealth v. Sanders, supra, 303 Pa. Super. at 141, 449 A.2d at 618; Commonwealth v. Reed, 277 Pa. Super. 94, 100-101, 419 A.2d 677, 680 (1980); Commonwealth v. Young, 262 Pa. Super. 253, 256, 396 A.2d 741, 742 (1978); Commonwealth v. Waters, 252 Pa. Super. 357, 360, 381 A.2d 957, 959 (1977). "To determine the reasonableness of the delay, the court examines three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay." Commonwealth v. Kane, supra, 315 Pa. Super. at 217-18, 461 A.2d at 1249, quoting Commonwealth v. Nance, supra 290 Pa. Super. at 319, 434 A.2d at 772. See also: Commonwealth v. Dubuisson, 303 Pa. Super. 145, 147, 449 A.2d 620, 621 (1982); Commonwealth v. Gaus, 300 Pa. Super. 372, 375-376, 446 A.2d 661, 663 (1982); Commonwealth v. Ballard, 292 Pa. Super. 129, 134, 436 A.2d 1039, 1041 (1981); Commonwealth v. Honeyblue, 276 Pa. Super. 107, 110-111, 419 A.2d 118, 119-120 (1980); Commonwealth v. Smith, 266 Pa. Super. 234, 237, 403 A.2d 1326, 1328 (1979).

The revocation hearing in the instant case was held almost eight months after appellant had been convicted of new offenses and seven weeks after post-trial motions had been denied and sentence imposed. The delay did not represent a deliberate attempt by the Commonwealth to hamper the defense or prejudice appellant. It resulted from the time required to dispose of post-trial motions filed

[ 327 Pa. Super. Page 151]

    by appellant following the convictions on new charges. In addition, a revocation hearing set for May 11, 1982 was continued when it was learned that appellant had been transferred to the State Correctional Institution at Graterford and ...


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