Commonwealth v. Long

JACOBS, President Judge,

dissenting:

This appeal raises the familiar issue of whether appellant’s parole was revoked within a reasonable time after conviction of new criminal charges. For the reasons that follow, I would hold that it was not, and therefore reverse the order entered below.

On November 14, 1974, appellant was convicted of one count of terroristic threats and four counts of aggravated assault, and sentenced to five to twenty-three months imprisonment for terroristic threats and two concurrent terms of probation for assault. He was paroled on December 20, 1974.

*470Then on June 5, 1976, appellant was arrested and charged with rape and simple assault. He was convicted on October 25, 1976, and sentencing was deferred until February 23, 1977. At that time, concurrent prison terms of two to four years for rape and one to two years for assault were imposed.

A parole revocation hearing was held on April 5, 1977, whereupon parole was revoked and appellant was ordered to serve the remainder of his original sentence for terroristic threats. This appeal followed.

Appellant asserts that the delay of more than five months in this case was unreasonable, and he therefore requests reinstatement of his parole. In determining reasonableness in this context, we must examine the length of the delay, reasons for the delay, and the existence of prejudice to the defendant. Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957, 959 (1977).

In this case, parole revocation occurred more than five months after conviction. We held a delay of similar duration unreasonable in Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768 (1971). Consequently, I cannot find that the delay here was intrinsically reasonable: Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). Nevertheless, we must bear in mind that neither White nor Rule 1409 intended to establish a prophylactic five-month rule. Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976).

The reason for the delay is the real point of contention in the instant case. In its opinion, the court below deemed it proper to delay the revocation hearing “pending resolution of post-trial matters and sentencing on the direct violation.” We disapproved the practice of postponing revocation proceedings pending disposition of post-trial motions in Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). I likewise disapprove of delaying revocation proceedings until sentencing for the same reason: “A verdict or plea of guilty provides ... all the information [needed] to begin the parole revocation process, for it establishes the fact of a parole violation.” United States ex rel. Burgess v. *471Lindsey, 395 F.Supp. 404, 411 (E.D.Pa.1975). Consequently, although the delay in this case was not a malicious attempt to hamper the defense, it did arise from factors within the Commonwealth’s control, and therefore supports appellant to that extent. See Commonwealth v. Jones, 250 Pa.Super. 116, 120, 378 A.2d 481, 483 (1977).

Finally we must examine the prejudice to the defendant occasioned by the delay. Appellant has not alleged that evidence was lost or that he was unable to defend against the charges because of the delay. As previously indicated, the delay was not the product of any effort by the Commonwealth to harass appellant or to gain some tactical advantage over him. Nonetheless, appellant did suffer the minimal prejudice resulting from the expiration of his parole during the period of delay. See Commonwealth v. Holmes, 248 Pa.Super. 522, 375 A.2d 379 (1977). Furthermore, the record reveals that appellant was incarcerated for the entire period of the delay. N.T. Parole Violation Hearing p. 11.

Under these circumstances, given the length of the delay and its cause by factors within the Commonwealth’s control, in addition to the existence of some prejudice to appellant as the result of the delay, I would hold that the parole revocation hearing was not held “as speedily as possible,” and accordingly reverse the order revoking parole.

SPAETH, J., joins in this dissenting opinion.