J-S82014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TWAIN D. PEARSON

                            Appellant                 No. 504 MDA 2016


           Appeal from the Judgment of Sentence February 22, 2016
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003881-2010


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                               FILED MARCH 28, 2017

        Twain D. Pearson appeals from the judgment of sentence entered

February 22, 2016, in the Luzerne County Court of Common Pleas, following

the revocation of his probation, and made final by the denial of post-

sentence motions on March 9, 2016. The trial court sentenced Pearson to a

term of six to 12 months’ imprisonment in a county prison. The sole issue

on appeal is whether the Commonwealth met its burden in conducting a

revocation hearing “as speedily as possible” pursuant to Pennsylvania Rule

of Criminal Procedure 708. Pa.R.Crim.P. 708(B)(1). After a thorough review

of the submissions by the parties, the certified record, and relevant law, we

affirm the judgment of sentence.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     The trial court set forth the factual and procedural history as follows:

     On December 10, 2010, a Preliminary Arraignment was held and
     on December 15, 2010, [Pearson]’s bail was modified to five
     thousand ($5000.00) dollars unsecured. [Pearson] was provided
     an arraignment date of February 25, 2011 at 9:00 a.m. On April
     1, 2011, a Status Conference was conducted and [Pearson]
     failed to appear. On May 10, 2011, a Pre-Trial Conference was
     held and [Pearson] again failed to appear. The Court did not
     issue a capias despite the failure to appear. The matter was
     rescheduled to June 20, 2011. On June 20, 2011, [Pearson]
     again failed to appear for the Pre-Trial Conference and a capias
     was issued.

           [Pearson] was picked up on the capias, and on July 5,
     2011, [his] bail was reinstated and the capias was lifted. He was
     provided personal notice by the Honorable Joseph Cosgrove as
     to the next tr[ia]l date – July 6, 2011 at 9:00 a.m. The case
     was continued thereafter to September 16, 2011 at 9:30 a.m.
     with personal notice to [Pearson].

           Again, on September 16, 2011, [Pearson] failed to appear
     and a capias was issued. [Pearson] was arrested on the warrant
     in October 2011, and a hearing was conducted on October 11,
     2011 wherein the Honorable Joseph Van Jura lifted the capias
     and reinstated the unsecured bail. The Court issued an Order
     dated October 31, 2011 scheduling a Pre-trial Conference for
     November 18, 2011.

           At the hearing on November 18, 2011, [Pearson] failed to
     appear and another capias was entered. [Pearson] remained at
     large until January 3, 2012, when the court denied the lift capias
     request and a hearing was scheduled for January 6, 2012. On
     January 6, 2012, [Pearson] plead guilty and sentencing was
     scheduled for March 20, 2012. The capias was again lifted
     [when Pearson was] provided personal notice of the court date.
     Sentencing was continued on March 20, 2012, upon request of
     [Pearson] to make application for the Luzerne County
     Intermediate Punishment program (IPP). The new sentencing
     date of June 1, 2012 was personally provided to [Pearson].

          On June 1, 2012, [Pearson] failed to appear at the
     sentencing and another capias was entered.


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           [Pearson]’s whereabouts remained unknown until he was
     arrested on the warrant in September of 2012. On September
     28, 2012, the request to lift capias was denied and the
     sentencing date was scheduled for October 10, 2012.

          On October 10, 2012, [Pearson] was sentenced to one (1)
     year probation, the capias was lifted and [he] was released
     pending other detainers.     [Pearson] also had new charges
     pending in Luzerne County filed to number 723 of 2012.

            In May of 2013, a warrant was issued for [Pearson]
     alleging he absconded supervision and failed to report for the
     month of April 2013; his address change was not approved; he
     was charged with new crimes; was in arrears and did not do
     court ordered community service or drug and alcohol
     evaluations.

           [Pearson] was not apprehended until January 5, 2016, two
     (2) years and (8) eight months after the issuance of the capias.

           On January 12, 2016, a hearing on the Probation Violation
     was scheduled for January 25, 2016. On February 22, 2016, the
     Probation was revoked and [Pearson] was resentenced to as
     follows:

       Count 1 – Simple Assault (M2) – a period of incarceration
       not less than six (6) months nor more than twelve (12)
       months at the Luzerne County Correctional Fac[ili]ty.

            Again, prior to Mr. Pearson being sentenced, there were
     multiple capiases issued for [Pearson]. Even after he plead
     guilty, [Pearson] failed to appear for sentencing resulting in
     another capias. [Pearson] was sentenced to probation despite
     absconding repeatedly and having approximately five capiases
     issued.

           On March 2, 2016, [Pearson] filed a Motion to Modify
     Sentence/Reconsideration which was denied on March 9, 2016.
     Thereafter Mr. Pearson filed a timely Notice of Appeal, on March
     22, 2016.




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Trial Court Opinion, 6/28/2016, at 1-3.1

       In his sole issue on appeal, Pearson claims the Commonwealth failed

to meet it burden in conducting a revocation hearing “as speedily as

possible” pursuant to Rule 708. See Pearson’s Brief at 8.2 Specifically, he

states:

               The [Commonwealth] has the burden of proof with respect
       to a purported violation.      Not a scintilla of evidence was
       presented at the Gagnon II[3] hearing that Mr. Pearson had
       been an absconder. Although there is no presumptive period in
       which probation must be revoked, revocation hearings must be
       held with reasonable promptness after a probation officer is
       chargeable with knowledge that there has been a violation. The
       date of the alleged violation in the present case is February 27,
       2013. Subsequent to the purported date of the violation, Mr.
       Pearson had been detained at the Luzerne County Correctional
       facility, i.e. March 23 to March 26, 2013. The record reflects
       that Mr. Pearson did not appear at a Gagnon I hearing, which
       had been scheduled for June 5, 2013; however, the record is
       wholly devoid of any evidence that Mr. Pearson had been given
       notice of said Gagnon I hearing or that his non-appearance was
       a knowing and voluntary failure on his part. Moreover, Mr.
       Pearson contended that he continued to reside at the address
       designated in the Violation Report until 2014.

____________________________________________


1
    On April 1, 2016, the trial court ordered Pearson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Pearson filed a concise statement on April 21, 2016. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on June 28, 2016.
2
   It merits mention that Pearson did not raise this issue before or at the
February 22, 2016, proceeding. See generally N.T., 2/16/2016. Indeed,
he raised the issue for the first time in his motion to modify/reconsider
sentence on March 2, 2016.
3
   Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation
hearings).



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Id. at 9-10 (citations and record citation omitted).          Moreover, Pearson

claims that under the circumstances, the delay was unreasonable and he

was prejudiced by the delay. See id. at 10. Further, while he admits he

violated his probation by failing to pay and failing to report, there was no

determination made by the court regarding his ability to pay and therefore

his probation could not be revoked. See id. at 10-11.

      We begin with our well-settled standard of review:

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on
      appeal. An abuse of discretion is more than an error in judgment
      - a sentencing court has not abused its discretion unless the
      record discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000) (citations

and quotation marks omitted).

      Rule 708, which pertains to a violation of probation, provides, in

pertinent part:

      (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) (emphasis added).




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      The language “speedily as possible” has been interpreted to
      require a hearing within a reasonable time. Commonwealth v.
      Saunders, 394 Pa. Super. 347, 575 A.2d 936, 938 (Pa. Super.
      1990). 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. Commonwealth v. McCain, 320 Pa.
      Super. 394, 467 A.2d 382, 383 (Pa. Super. 1983). The relevant
      period of delay is calculated from the date of conviction or entry
      of guilty plea to the date of the violation hearing. Id.

      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.
      Saunders, supra. The court must analyze the circumstances
      surrounding the delay to determine if the Commonwealth acted
      with    diligence   in  scheduling    the    revocation   hearing.
      Commonwealth v. Bischof, 420 Pa. Super. 115, 616 A.2d 6, 8
      (Pa. Super. 1992). 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.
      Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333,
      1336 (1988).

Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super. 2004). See

also Commonwealth v. Wright, 116 A.3d 133, 137 (Pa. Super. 2015).

      In the present matter, Pearson pled guilty on January 6, 2012, and the

court sentenced him on October 10, 2012. Pearson’s first probation violation

was filed on May 1, 2013. The violation hearing was originally scheduled for

January 25, 2016, and continued by the court until February 22, 2016. The

delay involved a period of approximately two years, eight months. Both the

parties and the trial court agree the delay of this duration was unreasonable.

See Pearson’s Brief at 10; Commonwealth’s Brief at 5; Trial Court Opinion,


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6/28/2016, at 6. See also Commonwealth v. McCain, 467 A.2d 382, 383

(Pa. Super. 1983) (concluding 12-month delay could not be dismissed as

“intrinsically reasonable”); Clark, supra (finding four-year delay was

unreasonable).

     Nevertheless, our review does not stop there, as we must address the

remaining two factors: the reasons for the delay and the prejudice resulting

to the defendant from the delay. In analyzing these factors, the trial court

found the following:

     In the case at bar, neither the Commonwealth nor the court was
     responsible for the delay.      Rather, it was the absence of
     [Pearson] that caused the delays. There is no merit to the
     contention that the Commonwealth was not diligent in its efforts
     to provide Mr. Pearson with a prompt hearing. [Pearson] is
     before the court with unclean hands.

           Moreover, even if it is found that the Commonwealth could
     have exercised due diligence in bringing [him] to court, Mr.
     Pearson has failed to provide any evidence which supports the
     proposition that he has been prejudiced due to the delay. See,
     e.g., [Commonwealth v. Bischof, 616 A.2d 6 (Pa. Super.
     1992)] (appellant suffered no harm in the way of favorable
     evidence or witnesses lost to him because of the delay).”

           The Court now turns its attention to the issue as to
     whether [the court erred in] failing to conduct a hearing to
     determine whether the Commonwealth met its burden pursuant
     to Rule 708. The record is clear as to the purpose of and Mr.
     Pearson’s position at the February 22, 2016, proceedings:

        THE COURT:        We are here today with regard to a
        revocation petition that was filed in this matter. What is
        the position of your client, counsel?

        [Defense Counsel]:      With regard to the first alleged
        violation, he admits. He also acknowledges the Rule 12
        violation that he owes money.

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       (Notes of Testimony, February 22, 2016, 2:10-18)[.]

             At no time during the course of the proceeding did
       [Pearson] or his counsel request [a] hearing, rather he chose to
       make admissions to the violations and made no specific request
       that the Commonwealth be required to justify the three-year
       delay between the initial alleged violation and the revocation
       hearing. Had Mr. Pearson, through his attorney, made such a
       request or objection, the Court would have immediately
       addressed the matter.

Trial Court Opinion, 6/28/2016, at 7-8.

       We note the record is somewhat unclear as to Pearson’s whereabouts

during the almost three-year delay period.       At the February 22, 2016,

hearing, the court refers on numerous occasions to Pearson as having

“absconded” or “been on the run.” See N.T., 2/22/2016, at 3, 8.4 However,

there was no further explanation as where Pearson was during this time or

what due diligence the Commonwealth used to procure his presence for the

proceeding. Indeed, Pearson’s probation officer even testified Pearson was

picked up on another case, and not the present matter.           Id. at 5-6.

Accordingly, the reasons for the delay appear to be lacking.

       Nonetheless, “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.”
____________________________________________


4
  Defense counsel stated: “I know it’s not a great argument, but he hasn’t -
- you know, there’s a reason we haven’t seen him in this amount of time.”
N.T., 2/22/2016, at 5. Nevertheless, counsel provided no further detail on
Pearson’s two year, eight month absence.



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Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010)

(citation omitted), appeal denied, 53 A.3d 756 (Pa. 2012). “To demonstrate

a violation of his right to a speedy probation revocation hearing, a defendant

must allege and prove the delay in holding the revocation hearing prejudiced

him.” Id.

      Here, as the trial court found, and we agree, Pearson did not suffer

any prejudice as a result of the delay.      Pearson, via his counsel, admitted

that he committed two probation violations, failure to report and failure to

pay costs. Id. at 2-3. Additionally, we note that in his argument on appeal,

Pearson makes no complaint of any prejudice regarding “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 124. Pearson merely states there had

been no determination made regarding his ability to pay said amounts. See

Pearson’s Brief at 11. Therefore, we conclude the trial court did not abuse

its discretion in imposing Pearson’s sentence following the revocation of his

probation. According, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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