J-S80029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAFAYETTE BRANCH :
:
Appellant : No. 2406 EDA 2017
Appeal from the Judgment of Sentence June 22, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006189-2010
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 22, 2018
Appellant, Lafayette Branch, appeals from the judgment of sentence
entered following the revocation of his probation. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
FACTUAL HISTORY
The following facts are contained in the Affidavit of
Probable Cause, to which [Appellant] stipulated when he entered
his Negotiated Guilty Plea on December 8, 2010.
On July 10, 2010, officers of the Darby Township Police
Department responded to an incident involving a shoplifter
engaged in a physical altercation with four (4) employees of the
Pathmark Store, located at 140 N. MacDade Boulevard,
Glenolden, Delaware County, Pennsylvania.
The manager of the store, hereinafter “Witness,” informed
Officer Lance Csanady and Officer Michael Sousa that another
store manager observed [Appellant] taking several items from
the shelf, placing them into a bag, and trying to exit the store
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after bypassing all points of sale. The total value of the items
was determined to be $148.43. The Witness also informed the
officers that a physical altercation ensued after the Witness and
several other store employees attempted to detain [Appellant]
before police officers arrived. The Witness and another store
manager suffered bruises as a result of [Appellant’s] assaultive
behavior. The Officers subsequently placed [Appellant] under
arrest.
PROCEDURAL HISTORY
[Appellant] was arrested and charged in Delaware County
on July 10, 2010, with one (1) count of Robbery;1 four (4)
counts of Simple Assault;2 four (4) counts of Recklessly
Endangering Another Person;3 one (1) count of Theft;4 one (1)
count of Receiving Stolen Property;5 one (1) count of Retail
Theft;6 and four (4) counts of Harassment.7
1 18 Pa.C.S.A. § 3701(a)(1)(iv)
2 18 Pa.C.S.A. § 2701(a)(1)
3 18 Pa.C.S.A. § 2705
4 18 Pa.C.S.A. § 3921(a)
5 18 Pa.C.S.A. § 3925(a)
6 18 Pa.C.S.A. § 3929(a)(1)
7 18 Pa.C.S.A. § 2709(3)
On September 21, 2010, Magisterial District Judge Steven
A. Sandone, Esquire, of the Darby Township District Court bound
[Appellant] for court on the following charges: one (1) count of
Robbery; four (4) counts of Simple Assault; one (1) count of
Theft; two (2) counts of Receiving Stolen Property; one (1)
count of Retail Theft; and four (4) counts of Harassment.
On December 8, 2010, [Appellant] entered a Negotiated
Guilty Plea on Information A, Robbery, a Felony of the Third
Degree. Following the Sentencing Hearing, the court sentenced
[Appellant] as follows: on Information A, Robbery, a Felony of
the Third Degree, to serve a sentence of eighteen (18) months
to thirty-six (36) months in a State Correctional Institution
without eligibility for Recidivism Risk Reduction Incentive
(“RRRI”); to serve a term of three (3) years consecutive state
probation; to refrain from having contact with Pathmark located
in Glenolden, PA; and to comply with general rules and
regulations governing Probation and Parole.
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On February 23, 2016, the [trial] court issued a Bench
Warrant for [Appellant] for violating the terms of his probation.
On April 1, 2016, [Appellant] was arrested again for
criminal offenses committed in Delaware County, in the context
of Case Record No. 2090-2016. In that case, [Appellant] was
charged with one (1) count of Retail Theft;8 and one (1) count of
False Identification To Law Enforcement Authorities.9 [On April
21, 2016, Appellant] entered a Negotiated Guilty Plea on the
charge of Retail Theft, a Felony of the Third Degree [in Delaware
County]. On April 21, 2016, following the Sentencing Hearing,
the court sentenced [Appellant] as follows: on Count One (1),
Retail Theft, a Felony of the Third Degree, to serve a sentence of
twelve (12) months to twenty-four (24) months at a State
Correctional Institution without eligibility for Recidivism Risk
Reduction Incentive (“RRRI”); to refrain from having contact
with the CVS in Glenolden, PA; to submit to a DNA test; and to
comply with general rules and regulations of Probation and
Parole.
8 18 Pa.C.S.A. § 3929(a)(1)
9 18 Pa.C.S.A. § 4914(a)
With regard to this case, Case Record No. 6189-2010, on
June 22, 2017, following a Gagnon II Hearing, the court found
[Appellant] in violation of his probation, and sentenced
[Appellant] as follows: on Count A, Robbery, a Felony of the
Third Degree, to serve a sentence of six (6) months to twenty-
four (24) months at a State Correctional Institution; to serve a
sentence of two (2) years state probation to run consecutive to
the parole sentence; the sentence in this case to run consecutive
to the sentence in Case Record No. 2090-2016; to comply with
general rules and regulations of Probation and Parole. The court
rescinded the Bench Warrant issued for [Appellant].
On July 17, 2017, [Appellant] filed a Pro Se Notice of
Appeal. On July 20, 2017, the Court directed [Appellant] to file
a Concise Statement Of Matters Complained Of On Appeal. On
July 21, 2017, [Appellant’s] counsel filed a Notice of Appeal, on
[Appellant’s] behalf. On August 3, 2017, [Appellant] filed a Pro
Se Concise Statement Of Matters Complained Of On Appeal in
compliance with the provisions of Pa.R.A.P. 1925(b). On August
8, 2017, [Appellant’s] counsel filed a Concise Statement Of
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Matters Complained Of On Appeal in compliance with the
provisions of Pa.[R.].A.P. 1925(b), on [Appellant’s] behalf.
Trial Court Opinion, 8/22/17, at 1-4. The trial court has authored an opinion
in compliance with Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review:
Whether the Trial Court abused its discretion when it failed
to dismiss the probation violation proceeding after the
Commonwealth’s evidence neglected to address the length of the
delay and the reasons for the delay of the probation violation
hearing?
Appellant’s Brief at 8.
In his sole issue on appeal, Appellant argues that the trial court
violated Pa.R.Crim.P. 708 by failing to hold a revocation hearing as speedily
as possible. Appellant’s Brief at 11-14. Appellant contends that, because of
the delay, his sentence should be vacated.
In an appeal from a sentence imposed after the court has revoked
probation, we can review “the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015). In Commonwealth v.
Woods, 965 A.2d 1225 (Pa. Super. 2009), we set forth the following
standard when considering the merits of a challenge to a less-than-speedy
probation violation hearing:
Pa.R.Crim.P. 708 provides, in relevant part, that,
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Rule 708. Violation of Probation, Intermediate
Punishment, or Parole: Hearing and Disposition
***
(B) Whenever a defendant has been sentenced to
probation or intermediate punishment, or placed on
parole, the judge shall not revoke such probation,
intermediate punishment, or parole as allowed by
law unless there has been:
(1) a hearing held as speedily as possible at
which the defendant is present and represented by
counsel; and
(2) a finding of record that the defendant
violated a condition of probation, intermediate
punishment, or parole.
Pa.R.Crim.P. 708(B)(1), (2).
The language “speedily as possible” has been
interpreted to require a hearing within a reasonable
time. Rule 708 does not establish a presumptive
period in which the Commonwealth must revoke
probation; but instead, the question is whether the
delay was reasonable under the circumstances of the
specific case and whether the appellant was
prejudiced by the delay. The relevant period of
delay is calculated from the date of conviction
or entry of guilty plea to the date of the
violation hearing.
In evaluating the reasonableness of a delay,
the court examines three factors: [1] the length of
the delay; [2] the reasons for the delay; and [3] the
prejudice resulting to the defendant from the delay.
The court must analyze the circumstances
surrounding the delay to determine if the
Commonwealth acted with diligence in scheduling
the revocation hearing. Prejudice in this context
compromises the loss of essential witnesses or
evidence, the absence of which would obfuscate the
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determination of whether probation was violated, or
unnecessary restraint of personal liberty.
Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.
2004) (citations omitted).
Woods, 965 A.2d at 1227-1228 (emphasis added).
We first consider the length of the delay. Our review of the record
reflects that on December 8, 2010, after having pled guilty to robbery,
Appellant was sentenced to a term of incarceration of one and one-half to
three years, followed by three years of probation. On April 1, 2016,
Appellant was arrested for additional criminal activity, and he pled guilty to
the new charges on April 21, 2016. On June 22, 2017, the trial court
ultimately conducted a revocation hearing in the instant matter and found
Appellant to be in violation of his probation. Hence, the delay from the date
of the entry of his guilty plea on the new charges to the date of the violation
hearing involved a period of approximately one year and two months. We
recognize that we have held delays of shorter duration to be reasonable.
See Commonwealth v. Pelzer, 466 A.2d 159 (Pa. Super. 1993) (holding
that a ten-month delay was reasonable and not violative of former Rule
1409); Commonwealth v. Woods, 965 A.2d 1225 (Pa. Super. 2009)
(holding that a delay of approximately nine months was not a violation of
probationer’s right to speedy violation-of-probation hearing). We have also
held protracted delays to be unreasonable. See Commonwealth v.
McCain, 467 A.2d 382 (Pa. Super. 1983) (concluding that a twelve-month
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delay cannot be dismissed as “intrinsically reasonable”). Although we
conclude that the length of the delay in this case was not intrinsically
reasonable, the length of the delay is not the sole factor we must review.
We must also examine “the reasons for the delay to determine
whether the Commonwealth acted with due diligence in scheduling the
revocation hearing.” Woods, 965 A.2d at 1228. Specifically, this second
factor in the reasonableness analysis requires scrutiny of the reasons for the
delay and the surrounding circumstances to evaluate whether the
Commonwealth was diligent in scheduling the hearing. Commonwealth v.
Mines, 797 A.2d 963, 965 (Pa. Super. 2002).
In discussing the delay at issue, the trial court did not address whether
the delay was attributable to the Commonwealth. Moreover, the
Commonwealth has not alleged that it was not responsible for the delay.
Hence, we cannot conclude that the Commonwealth was diligent in
scheduling a revocation hearing.
Nevertheless, we must examine the final factor of the three-part test:
“where the Commonwealth provides no explanation for the delay, the court
should not attribute the delay to the defendant; instead, the court should
analyze whether the delay prejudiced the defendant.” Commonwealth v.
Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010) (citation omitted). “To
demonstrate a violation of his right to a speedy probation revocation
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hearing, a defendant must allege and prove the delay in holding the
revocation hearing prejudiced him.” Id.
The meaning of prejudice in the context of providing a prompt
revocation hearing “has been interpreted as being something which would
detract from the probative value and reliability of the facts considered,
vitiating the reliability of the outcome itself.” Commonwealth v.
Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). “Prejudice in this context
compromises the loss of essential witnesses or evidence, the absence of
which would obfuscate the determination of whether probation was violated,
or unnecessary restraint of personal liberty.” Woods, 965 A.2d at 1227-
1228 (citation omitted).
“[W]here a conviction on new charges conclusively establishes the
defendant’s probation violation, the defendant cannot claim a delay in his
[probation-revocation] hearing prejudiced him because he lost favorable
witnesses and evidence.” Christmas, 995 A.2d at 1263-1264. Moreover, if
a defendant is already incarcerated on the charges that triggered the
probation revocation, he cannot claim the delay in holding his revocation
hearing caused him any loss of personal liberty. Id. at 1263.
In addressing whether Appellant suffered prejudice from the delay, the
trial court offered the following analysis:
[Appellant] was partially responsible for the delay by absconding
and by being arrested on new criminal charges. Since
[Appellant] entered a Negotiated Guilty Plea in his new criminal
case, there was no loss of potential or essential witnesses, or
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evidence which could have had an adverse effect on the outcome
of the Gagnon II Hearing. The Commonwealth had met its
burden in proving that [Appellant] had violated the terms of his
probation. Moreover, no undue burden was placed on
[Appellant’s] personal liberty as a result of any delay in holding
the Gagnon II Hearing, as he was already incarcerated in the
context of his new criminal case. In addition, [Appellant] did not
proffer any evidence that he was impaired in his ability to
prepare and develop an adequate defense.
Trial Court Opinion, 8/22/17, at 7. Our review similarly reflects that
Appellant did not suffer prejudice in this regard.
The record indicates that, at the time of the revocation hearing,
Appellant was serving a term of incarceration of one to two years for
additional charges of retail theft, which took place in Delaware County. N.T.,
6/22/17, at 5. Upon revocation of his probation, the court sentenced
Appellant to serve a term of incarceration of six to twenty-four months,
followed by two years of probation, to run consecutively to the sentence
imposed in Delaware County. Id. at 19-20. Hence, Appellant was not
unnecessarily deprived of personal liberty by the delay because he was not
incarcerated for additional time. Christmas, 995 A.2d at 1263. See also
Clark, 847 A.2d at 125 (no prejudice as defendant was not incarcerated for
additional time). Accordingly, we conclude that Appellant’s claim that he is
entitled to relief based upon a claimed violation of his right to a speedy
revocation hearing lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/18
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Com. v. Branch, L.
Combined Opinion