J-S56029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CLARENCE WILLIAM ROSSMAN                 :
                                          :
                    Appellant             :   No. 45 MDA 2018


          Appeal from the Judgment of Sentence, December 7, 2017,
           in the Court of Common Pleas of Northumberland County,
             Criminal Division at No(s): CP-49-CR-0000155-2017.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED JANUARY 16, 2019

      Clarence William Rossman appeals from the judgment of sentence

imposed following the revocation of his probation. Rossman argues that the

trial court failed to conduct his hearing “as speedily as possible” as required

under Pennsylvania Rule of Criminal Procedure 708. After careful review, we

affirm.

      The facts and complex procedural history are as follows. On January 3,

2017, Rossman was charged in Northumberland County with simple assault,

harassment, and endangering the welfare of children for hitting his fiancée in

the face multiple times while she was holding their seven (7) month old son.

On January 13, 2017, Rossman was arrested on those charges. Bail was set

at $10,000 monetary, which he was unable to post. He was committed to the

Northumberland County Prison.        Subsequently, on January 16, 2017,
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Rossman’s fiancée obtained a protection from abuse order against him in

Union County.

        On February 23, 2017, Rossman pled guilty to simple assault.1         On

February 27, 2017, the trial court sentenced him to 12 months of probation,

with 46 days of credit time for the time he was confined due his inability to

post bail. He was released from prison.

        The next day, February 28, 2017, a complaint for indirect criminal

contempt was filed in Union County against Rossman for repeatedly contacting

his fiancée that day via social media, allegedly in violation of the PFA she had

against him. As a result, a warrant to commit and detain (probation detainer)

Rossman was issued by Northumberland County Adult Probation on March 4,

2017. The Pennsylvania State Police (PSP) apprehended him that same day.

        While at the PSP barracks, Rossman became very uncooperative; he

verbally demeaned the troopers, held onto a bench, and wrapped his legs

around it to avoid being shackled and taken to jail. At one point, a trooper

pulled out his taser, but did not use it. Three troopers were needed to restrain

him. He was physically carried out of the barracks and ultimately transported

to Snyder County Prison per contract with Northumberland County.

        On March 5, 2017, another complaint for indirect criminal contempt was

filed in Union County against Rossman for again repeatedly contacting his

fiancée via social media the day before, allegedly in violation of the PFA.

____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1).

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      As a result of his behavior with the PSP, Rossman was charged with

resisting arrest, disorderly conduct and criminal mischief on April 20, 2017.

Monetary bail in the amount of $15,000 was set, which Rossman was unable

to post.

      Eventually, this bail was reduced to unsecured bail on August 21, 2017,

one-hundred and twenty-four days (124) later. However, due to the probation

detainer, Rossman remained incarcerated. Additionally, on August 25, 2017,

the two indirect criminal contempt charges for Rossman’s alleged violation of

the Union County PFA were dismissed on the basis that he had not been

properly served with the paperwork.

      Shortly thereafter, on August 30, 2017, the Commonwealth filed a

petition to revoke Rossman’s probation on his original simple assault charge.

Rossman was charged with failing to abide by several conditions of his

probation including violating a local, state, or federal law and failing to refrain

from behavior that threatens or presents clear and present danger to himself

or others. These allegations stemmed from Rossman’s criminal charges and

conduct involving the state police. Additionally, he was charged with violating

the condition that he may not consume, possess or have alcohol.             When

Rossman was committed to Snyder County prison, he had alcohol in his

system. Due to the court’s calendar, a probation revocation hearing could not

be held until October 5, 2017. Consequently, on September 5, 2017, Rossman

filed a motion to lift his detainer contending that he had been acquitted on the

PFA contempt charges. Because all that remained were the charges relating

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to the PSP, on which the court already had granted him unsecured bail, and

the alleged violation for using alcohol, Rossman claimed the detainer should

be lifted. The trial court scheduled a hearing on this motion for the same date

and time as the probation revocation hearing.

       At the hearing on October 5, 2017, the trial court denied Rossman’s

motion to lift his detainer. Further, at the request of the Commonwealth, the

trial court continued the hearing on Rossman’s probation revocation so that

the Commonwealth could amend its petition. Although Rossman objected, the

trial court rescheduled the hearing for October 23, 2017.2       However, for

reasons unclear from the record, Rossman’s probation revocation hearing was

not held on that date.3

       On November 9, 2017, the Commonwealth filed its amended petition to

revoke supervision. In addition to the prior allegations, the amended petition

alleged that Rossman had violated his probation by failing to refrain from

behavior that threatens or presents clear and present danger to others by

continually trying to contact his fiancée. The trial court scheduled a hearing

on this amended petition for December 7, 2017.



____________________________________________


2 We note that the record indicates that the hearing was rescheduled for
October 23, 2017. However, Rossman’s motion to dismiss avers that it was
scheduled for November 2, 2017.

3Rossman claims that it was rescheduled at the request of the Commonwealth
or the Northumberland Adult Probation Department, but the record contains
nothing to confirm this.

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        On November 17, 2017, Rossman filed a motion to dismiss the

Commonwealth’s amended petition to revoke supervision, claiming that the

approximately eight-and-a-half month delay in conducting Rossman’s hearing

was unreasonable and had prejudiced him. The trial court scheduled a hearing

on   Rossman’s     motion   for   the   same   time   as   the   hearing   on   the

Commonwealth’s revocation petition.

        At the hearing on December 7, 2017, the trial court denied Rossman’s

motion to dismiss and found that Rossman had violated his probation. The

trial court sentenced him to 108 days (time served) to 18 months of

incarceration. The trial court informed Rossman that he had to reapply for

parole. He was further directed not to have any contact with his fiancée, and

any visitation with his child was to be through Children and Youth Services.

        On December 27, 2017, the trial court granted Rossman’s petition for

parole, and Rossman was granted immediate parole. The next day, Rossman

pled nolo contendere to disorderly conduct for his actions relating to the PSP

and was sentenced to twelve (12) months of probation. The other two charges

were nolle prossed.    Rossman was released from prison on December 29,

2017.

        Rossman filed a timely notice of appeal on January 5, 2018, from the

December 7, 2017 judgment of sentence revoking his probation.

        On January 8, 2018, the trial court entered an amended order crediting

Rossman with an additional 45 days for time served from March 4, 2017,

through April 19, 2017, the time when Rossman was held solely on the original

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probation detainer.   This time had not been credited toward any other

sentence. Additionally, by order this date, the trial court directed Rossman to

file his Pa.R.A.P. 1925(b) statement, with which he complied.

      Rossman presents one issue for our review:

      1. Did the trial court improperly deny Rossman’s motion to
         dismiss, violating the mandate of Pa.R.Crim.P. 708?

Rossman’s Brief at 4.     Specifically, Rossman asserts that the trial court

violated his right to a speedy revocation hearing as required under Rule of

Criminal Procedure 708, and asks us to remand to the trial court for dismissal

of the petition to revoke supervision. Rossman’s Brief at 10, 17. We note

that if we agreed with Rossman, the proper procedure would be for this Court

to vacate the revocation of probation, however, we do not.

      Rule 708 provides, in part, that a revocation hearing must be “held as

speedily as possible” at which the defendant is present and represented by

counsel.   Pa.R.Crim.P. 708(b)(1) (emphasis added). “Rule 708 does not

establish a presumptive period in which the Commonwealth must revoke

probation. 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.” Commonwealth v. Clark, 847 A.2d 122, 124 (Pa.

Super. 2004).

      “In evaluating the reasonableness of a delay, the court examines three

factors: the length of the delay; the reasons for the delay; and the prejudice

resulting to the defendant from the delay.” Id. “When examining the reason


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for the delay, the court looks at the circumstances surrounding the delay to

determine whether the Commonwealth acted with due diligence in scheduling

the revocation hearing.”     Commonwealth v. Christmas, 995 A.2d 1259,

1263 (Pa. Super 2010) (citing Clark, 847 A.2d at 124). “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.” Clark, 847 A.2d at

125.

       Rossman claims that there was a 278 day delay from the date of his

arrest for the probation violation, March 4, 2017, to the date of his probation

revocation hearing, December 7, 2017. He further claims that this entire delay

is attributable to the probation detainer originally issued on March 4, 2017.

       The Commonwealth contends that this is not accurate. To the contrary,

a substantial portion of the time Rossman was incarcerated was attributable

to other criminal charges.

       On April 20, 2017, new charges were filed against Rossman for his

uncooperative behavior with the PSP. Significantly, Rossman was unable to

post bail for those charges. On August 21, 2017, 124 days after the filing of

his new criminal charges, Rossman obtained reduced bail on these charges.

Consequently, regardless of the probation detainer, Rossman had to be

incarcerated for those 124 days.      Rossman received credit for this time

towards his sentence on the disorderly conduct charge. We, therefore, do not

count these 124 days as delay attributable to the probation detainer. This

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significantly reduces the length of delay Rossman can potentially claim to 154

days, about 5 months. However, in determining whether this 154-day delay

was unreasonable, we must consider the reasons that contributed to it.

        We first note that Rossman himself, to an extent, contributed to the

delay in having his probation detainer and revocation addressed sooner.

Rossman failed to assert his right to speedy hearing. First, he waived his

Gagnon I hearing.4 Had he not originally waived this hearing, he would have

had the opportunity to challenge his detention shortly after he was picked up

on March 4, 2017. Moreover, from the time Rossman was picked up on the

probation detainer on March 4, 2017, until the PFA contempts were resolved

on August 25, 2017, Rossman himself made no effort to lift the detainer.

Rather, he only requested that the trial court address his rights after resolution

of the PFA contempts. Where a defendant has failed to assert his rights, this

may weigh against him in arguing that delay was unreasonable.                 Cf.

Commonwealth v. Ryan, 384 A.2d 1243, 1245-46 (Pa. Super. 1978)

(concluding that where defendant’s failure to assert his rights to a speedy trial

in part contributed to delay, defendant was not deprived of a speedy trial).

        Another circumstance which contributed to the delay in this matter was

resolution of the PFA contempts. The PFA contempts, one of which triggered

the issuance of the probation detainer, were not decided until August 25,

2017. Once the PFA contempts were resolved, both sides started taking action

____________________________________________


4   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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in this case. Rossman indicated he wanted to move forward with his Gagnon

I hearing.    Within a few days of resolution of the PFA contempts, the

Commonwealth filed its petition to revoke supervision. In response, Rossman

filed his motion to lift the detainer. As explained by the trial court, it was at

this point in time that Rossman’s probation revocation became ripe for

consideration. Trial Court Opinion, 4/12/18 at 3. Consequently, the trial court

scheduled these matters for hearing on the first available date.

      Other reasons for the delay included court scheduling issues and a

request by the Commonwealth for a continuance. The scheduling issues in

this case were minor. The continuance benefitted both parties; it allowed the

Commonwealth to clarify the grounds for Rossman’s probation revocation, and

it ensured notice of those issues was clearly and properly given to Rossman.

There is nothing to suggest that the Commonwealth asked for the continuance

to intentionally delay the hearing.

      Lastly, we must determine whether Rossman was prejudiced by the

154-day delay.    Here, Rossman does not claim that his ability to defend

against the Commonwealth’s petition to revoke was somehow compromised

by the delay. However, he was incarcerated during this time. The trial court

addressed Rossman’s detention at the October 5, 2017 hearing on Rossman’s

motion to lift his probation detainer. Given Rossman’s violent tendencies, his

relentless effort to contact his fiancée, and the Commonwealth’s concern that

Rossman may not appear for future proceedings, the trial court denied his

motion.   Trial Court Opinion, 4/12/18 at 3.     Because the trial court found

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Rossman’s continued detention to be warranted, we conclude that he was not

prejudiced.

     In conclusion, given the length of the delay, all of the surrounding

circumstances in this case, and the lack of prejudice suffered by Rossman, we

find that the delay was not unreasonable, and the trial court did not violate

Rule 708(b)(1).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




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