J. S84044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ROBERT JONES,                             :         No. 2290 EDA 2018
                                          :
                           Appellant      :


         Appeal from the Judgment of Sentence Entered June 25, 2018,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0000767-2010


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 08, 2019

        Robert Jones appeals from the June 25, 2018 judgment of sentence of

285 days’ imprisonment imposed by the Court of Common Pleas of Delaware

County following the revocation of his parole. After careful review, we affirm

the judgment of sentence.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

             On July 29, 2010 [appellant] entered a negotiated
             guilty plea to Resisting Arrest[1] and was sentenced
             to a maximum of 12 months[’] incarceration. On




1   18 Pa.C.S.A. § 5104.
J. S84044/18


             April 27, 2012 [appellant] had a Gagnon II[2]
             hearing as the result of a new arrest. For that
             violation, he was sentenced to the maximum of his
             remaining original sentence of 330 days. [Appellant]
             was released again on parole. [Appellant] thereafter
             had a warrant issued on October 24, 2012 for
             non-reporting.        During   the   time   he    was
             non-reporting,     [appellant]   was    arrested    in
             Philadelphia on new charges. A Gagnon I hearing
             was held on October 8, 2013 as a result of the new
             charges.    [Appellant] was found in violation and
             released to deal with the new Philadelphia cases. A
             Gagnon II hearing was to be scheduled upon
             disposition of [appellant’s] Philadelphia cases.
             Again, [appellant] stopped reporting and another
             warrant was issued on November 20, 2013. On
             May 30, 2018, [appellant] notified Delaware County
             Probation and Parole that he was serving a sentence
             for Rape[3] at SCI Huntingdon. Prior to receiving the
             May 30, 2018 letter from [appellant], Delaware
             County Probation and Parole had no knowledge of
             [appellant’s] location. They believed [appellant] was
             a fugitive.        [Appellant] is incarcerated in
             SCI Huntingdon under the name Robert Miller, not
             Robert Jones.




2In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Unites States Supreme
Court determined a two-step procedure was required before parole or
probation may be revoked:

             [A] parolee [or probationer] is entitled to two
             hearings, one a preliminary hearing [Gagnon I] at
             the time of his arrest and detention to determine
             whether there is probable cause to believe that he
             has committed a violation of his parole [or
             probation], and the other a somewhat more
             comprehensive hearing [Gagnon II] prior to the
             making of a final revocation decision.

Id. at 781-782.

3   18 Pa.C.S.A. § 3121(a)(1).


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Trial court opinion, 9/6/18 at 1-2 (emphasis added).

        On June 25, 2018, the trial court conducted a Gagnon II hearing.

During said hearing, appellant appeared via video conference because of his

incarceration at SCI Huntingdon and informed the trial court that he has

been in prison since December 7, 2013, and objected to the delay in

conducting the hearing.        (Notes of testimony, 6/25/18 at 6-8, 14.)

Appellant’s counsel informed the trial court that appellant claimed to have

previously sent letters to the Delaware County Probation and Parole Office

indicating that he was incarcerated since December 2013, but these letters

do not appear in the certified record and appellant did not provide copies in

his brief. (Id. at 6.) At the conclusion of the hearing, appellant was found

in violation of his parole and sentenced to his remaining back time of

285 days’ imprisonment, concurrent with the sentence he is currently

serving on the rape charge. (Id. at 16.) Appellant also received credit for

time-served from May 30, 2018, the date he notified the Delaware County

Probation and Parole Office of his whereabouts. This timely appeal followed

on July 23, 2018.4

        Appellant contends that his judgment of sentence of 285 days’

imprisonment should be vacated because the Commonwealth violated his

right to a speedy revocation hearing, pursuant to Pennsylvania Rule of




4   Appellant and the trial court have complied with Pa.R.A.P. 1925.


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Criminal Procedure 708.      (Appellant’s brief at 5, 9-10.)   For the following

reasons, we disagree.

      In an appeal from a sentence imposed following the revocation of

probation, we 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) (citation omitted). Rule 708

governs challenges to less-than-speedy revocation hearings and provides, in

relevant part, as follows:

            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[.]

Pa.R.Crim.P. 708(B)(1).

            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


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           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: the length of      the
           delay; the reasons for the delay; and            the
           prejudice resulting to the defendant from        the
           delay.

Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009)

(emphasis added), citing Commonwealth v. Clark, 847 A.2d 122, 123-124

(Pa.Super. 2004).

     We first consider the length of the delay.   Our review of the record

reflects that the trial court conducted a Gagnon I hearing on October 8,

2013, following appellant’s arrest in Philadelphia on new charges while on

parole. Appellant was found in violation and released, and his Gagnon II

hearing was deferred until the disposition of his Philadelphia case.

Thereafter, on November 20, 2013, the trial court issued a bench warrant for

appellant after he failed to report.   On June 25, 2018, the trial court

ultimately conducted a revocation hearing after appellant notified the

Delaware County Probation and Parole Board on May 30, 2018 that he was

incarcerated at SCI Huntingdon under an alias, “Robert Miller.”   Thus, the

delay involved a period of over 4 years. We recognize that this court has

previously held that protracted delays of 15 months, 2 years, and 4 years

are not “intrinsically reasonable.” See Commonwealth v. Christmas, 995

A.2d 1259, 1263 (Pa.Super. 2010) (citations omitted), appeal denied, 53


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A.3d 756 (Pa. 2012). Although we conclude that the length of the delay in

holding   appellant’s   probation-violation      hearing       was    not   intrinsically

reasonable, the length of the delay is not the sole factor we must review.

On the contrary, the second factor in the reasonableness analysis requires

scrutiny of “the circumstances surrounding the delay to determine whether

the Commonwealth acted with due diligence in scheduling the revocation

hearing.” Id. (citation omitted); see also Woods, 965 A.2d at 1228.

      Here, the record reflects that although a bench warrant was issued in

November 2013, appellant could not be located, was believed to be a

fugitive, and failed to report his whereabouts to the Delaware County

Probation and Parole Department until May 30, 2018.                  Immediately upon

discovery that appellant was incarcerated at SCI Huntingdon under a false

name, the trial court promptly scheduled a violation hearing for June 2018.

It is well settled that the Commonwealth should not be faulted for delays

resulting from “the Department of Corrections’ inability to find, transport, or

house defendants in their custody.”        Christmas, 995 A.2d at 1263.               In

discussing   the   delay   at   issue,   the   trial   court    concluded     that   the

Commonwealth offered a compelling explanation for the delay:

             [Appellant] was incarcerated at SCI Huntingdon
             under the name Robert Miller, not Robert Jones.
             Until [appellant] notified Delaware County Probation
             and Parole on May 30, 2018 that he was serving a
             sentence for Rape at SCI Huntingdon, they had no
             knowledge of his location. Although [appellant] was
             in the custody of the Commonwealth, he was there
             under a different name and made no attempt to


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             inform the Delaware County Probation and Parole of
             his whereabouts. We can only conclude [appellant]
             chose to conceal his location during the time he was
             out of contact with Delaware County Probation and
             Parole.

Trial court opinion, 9/6/18 at 4-5 (citations omitted).

      Based upon the foregoing, we find the evidence adduced at the

revocation hearing revealed there were sufficient reasons for the delay, and

any allegations that the Commonwealth was not diligent in scheduling

appellant’s revocation hearing lack merit.

      Lastly, we examine whether appellant was prejudiced by the delay.

The meaning of prejudice in the context of providing a prompt revocation

hearing   was   defined   by   our   supreme   court   in   Commonwealth v.

Marchesano, 544 A.2d 1333 (Pa. 1988), as follows:

             Prejudice in this context has been interpreted as
             being something, which could detract from the
             probative value and reliability of the facts
             considered, vitiating the reliability of the outcome
             itself. One specific purpose of our rule in requiring a
             prompt revocation hearing is to avoid such prejudice
             by preventing the loss of essential witnesses or
             evidence, the absence of which would contribute
             adversely to the determination.        Another is to
             prevent unnecessary restraint on personal liberty.

Id. at 1336 (citations omitted).

      “[W]here a conviction on new charges conclusively establishes the

defendant’s probation violation, the defendant cannot claim a delay in his

[revocation] hearing prejudiced him because he lost favorable witnesses and

evidence.”   Christmas, 995 A.2d at 1263-1264 (citation omitted).      Here,


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the loss of essential witnesses and evidence was not at issue at the

revocation hearing, and we find that appellant was not prejudiced because

the delay caused no restraint on his personal liberty as he was incarcerated

at SCI Huntingdon on a rape conviction during the entire period at issue.

     Based on the foregoing, we find no error on the part of the trial court

in sentencing appellant for a county probation violation more than 4 years

after his Gagnon I hearing, where appellant was incarcerated in state prison

during the period immediately following said hearing under a false name.

Accordingly, we affirm appellant’s June 25, 2018 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/8/19




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