J-S39006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ERIK ANTHONY STILES

                            Appellant                   No. 1648 MDA 2015


      Appeal from the Judgment of Sentence Entered September 16, 2015
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0001212-2011


BEFORE:       STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED JULY 21, 2016

        Erik Anthony Stiles (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

the revocation of his probation. For the reasons that follow, we affirm.

        On July 13, 2011, Appellant pled guilty to one count of theft by

unlawful taking under Section 3921(a) of the Crimes Code, 18 Pa.C.S.A.

§ 3921(a).      The trial court sentenced Appellant to six months’ county

probation. Appellant violated the terms of his probation, which resulted in

the revocation of his probation and the imposition of a one-year term of

probation on March 13, 2012.            On March 27, 2013, after Appellant again

violated his probation, the trial court revoked his probation and sentenced
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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him to a new one-year term probation and ordered it to run consecutive to a

five to twenty-three months’ imprisonment sentence Appellant received at

docket number 4413-CR-2011.

       While on probation sub judice, Appellant received new charges for

possession of drug paraphernalia on November 20, 2014.            Trial Court

Opinion, 10/22/15, at 1.      Appellant was detained as a result.        N.T.,

Revocation Hearing, 9/16/15, at 4.      Dauphin County Drugs and Alcohol

thereafter evaluated Appellant and recommended that he receive inpatient

treatment at Conewago Place.      Trial Court Opinion, 10/22/15, at 1.    The

detainer was lifted on January 27, 2015 to allow Appellant to complete this

program. Id.

       After finishing his inpatient treatment on February 26, 2015, Appellant

went to Genesis House for follow-up care.         N.T., Revocation Hearing,

9/16/15, at 8, 4. However, the outpatient treatment at Genesis House went

awry around April of 2015 due to Appellant’s sporadic attendance. Id. at 4,

8-9.   In response, Appellant’s probation officer submitted a request for a

violation of probation (“VOP”) hearing, which was scheduled for July 22,

2015. Id. at 7. Appellant, however, failed to show up to the VOP hearing,

causing the trial court to issue a bench warrant.        Trial Court Opinion,

10/22/15, at 1. After being detained pursuant to the warrant on August 3,

2015, Appellant was present for the revocation hearing held on September

16, 2015. Id. At the hearing, the trial court revoked Appellant’s probation

and sentenced him to twenty-four months’ intermediate punishment. N.T.,

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Revocation Hearing, 9/16/15, at 19.                  The court further conditioned

Appellant’s eligibility for parole upon his acceptance into a thirty-day,

inpatient treatment program. Id.

      The single issue on appeal is whether the trial court held Appellant’s

revocation hearing “as speedily as possible.” See Appellant’s Brief at 4. As

indicated above, several months elapsed between Appellant’s most recent

violation of his probation and the revocation hearing.           Appellant maintains

that this delay was unreasonable and prejudicial to him. Appellant’s Brief at

8.       The    timeliness    of   Appellant’s    revocation   proceeding    implicates

Pa.R.Crim.P. 708, which provides, in pertinent part, as follows:

      (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).

      Although Rule 708(B) requires that courts hold VOP hearings “as

speedily as possible,” it is otherwise silent as to what satisfies this mandate.

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

(“Rule    708    does   not    establish   a     presumptive   period   in   which   the

Commonwealth must revoke probation.”). Filling the interpretive void, this

Court has stated that the Rule requires a hearing within a reasonable time.

Id. The mere fact of a gap between a probationer’s offending conduct and

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later VOP proceedings does not automatically violate Rule 708.         Rather,

courts must consider whether the delay was reasonable under the

circumstances of the specific case and whether it prejudiced the defendant.

Id. To determine the reasonableness of a delay, we consider the following

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.         Id.   Our

analysis of the speediness of a revocation hearing entails a weighing of the

three factors.     See Commonwealth v. McCain, 467 A.2d 382, 384 (Pa.

Super. 1983) (stating that prejudice “must be weighed along with the other

two factors.”).

       We first address the length of the delay factor. In this case, there was

a delay of approximately eight months between Appellant’s possession

charge and his VOP hearing.1 Nonetheless, timeliness cannot be determined

by merely referencing the length of delay.2 See Commonwealth v. Clark,
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1
  In its opinion, the trial court measured the “applicable delay” as the time
between November 20, 2014 and July 22, 2015, the date on which Appellant
was to have had a VOP hearing. Trial Court Opinion, 10/22/15, at 1. We
accept the trial court’s appraisal and find that it has ample support in the
record.
2
  We are aware that in prior cases there has been a tendency to declare,
without much elaboration, varying degrees of delay as not being
“intrinsically reasonable.” See, e.g., Commonwealth v. Christmas, 995
A.2d 1259, 1264 (Pa. Super. 2010) (twenty months); Woods, 965 A.2d at
1228 (fifteen months); Commonwealth v. Dugan, 483 A.2d 965, 967-68
(Pa. Super. 1984) (nine and one-half months); Commonwealth v. Jones,
378 A.2d at 483 (six and one-half months). The rationale in each instance
was presumably that the delay exceeded five months, a timespan which this
(Footnote Continued Next Page)


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847 A.2d 122, 124 (Pa. Super. 2004).              Rather, “[w]e must examine the

circumstances surrounding the delay to determine if the Commonwealth

acted with diligence in scheduling the revocation hearing.” Id.

      The present case is not one in which administrative inertia prevented

Appellant from having an earlier hearing. Cf. Commonwealth v. Bischof,

616 A.2d 6 (Pa. Super. 1992) (finding delay unreasonable when it resulted,

in part, from 15-month wait for certified copy of conviction). Instead, the

Commonwealth agreed to refrain from initiating VOP proceedings earlier so

that Appellant could receive treatment for his drug addiction. The decision

to allow Appellant to seek the help he needed was consistent with the

rehabilitative purpose of probation. See Commonwealth v. Mullins, 918

A.2d 82, 85 (Pa. 2007) (“The primary concern of probation . . . is the

rehabilitation and restoration of the individual to a useful life.”). Certainly,

Appellant needed ample time at Conewago Place and Genesis House to

receive the benefit of his treatment.3 Once it became clear that Appellant
                       _______________________
(Footnote Continued)

Court held was unreasonable in Commonwealth v. White, 279 A.2d 768
(Pa. Super. 1971). However, the text of Rule 708 does not support such a
rigid litmus test. See Commonwealth v. Pelzer, 466 A.2d 159, 161 (Pa.
Super. 1983) (“[A] quantitative approach, i.e. merely counting the days and
months between conviction and parole violation hearing, is not
determinative.”). The pertinent inquiry is whether a delay is reasonable
under the circumstances. The length of delay is of obvious import in such an
evaluation but only to the extent that it is without explanation or prejudice
to the defendant.
3
  At the revocation proceeding, Appellant conceded that it would not have
been appropriate to revoke his probation while in the midst of inpatient and
outpatient treatment. N.T., Revocation Hearing, 9/16/15, at 9.



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was not taking his care seriously, the Commonwealth promptly submitted a

revocation request on June 1, 2015.            The trial court then scheduled the

requested hearing for July 22, 2015. Indeed, were it not for his failure to

appear, Appellant would have had his VOP hearing at that time. Appellant’s

decision to go “on the lam” is clearly not assignable to the Commonwealth.

See Christmas, 995 A.2d at 1263 (stating that delays caused by the

defendant do not count against the Commonwealth). Accordingly, under the

circumstances of this case, especially the Commonwealth’s decision to give

Appellant an opportunity to seek in- and outpatient treatment, the eight-

month delay in holding the revocation hearing was not unreasonable. See

Commonwealth v. Dickens, 475 A.2d 141, 150-51 (Pa. Super. 1984)

(finding an eight-month delay to be reasonable).

      The final inquiry is whether the delay prejudiced Appellant.                 The

speediness requirement of Rule 708 seeks to preserve “the probative value

and   reliability   of   the   facts   considered”   at   the     revocation   hearing.

Commonwealth v. Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). “The

primary purpose for requiring a prompt revocation hearing . . . is to prevent

the loss of essential witnesses or documentary evidence and to prevent

unnecessary     incarceration     or   other   limitations   on     personal   liberty.”

Dickens, 475 A.2d at 143 (internal quotation and citation omitted).

      It is Appellant’s burden to allege and prove prejudice.             Christmas,

995 A.2d at 1263. Here, Appellant does not establish prejudice so much as

he suggests it. For instance, Appellant’s brief is bereft of any claim that he

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lost access to important witnesses or key evidence while he waited for his

VOP hearing. Appellant does claim, however, that the wait prejudiced him

because “[a] certain amount of prejudice necessarily follows from the mere

fact of the expiration of the parole period.”        Appellant’s Brief at 14.

Appellant’s argument overlooks the fact that a “mere technical violation of

the Rules of Criminal Procedure,” without more, does not amount to

prejudice. Marchesano, 544 A.2d at 1336-37. Therefore, Appellant cannot

show prejudice based solely on an allegation that the trial court held the

revocation hearing after the end of his period of probation.

      We also reject Appellant’s contention that he “clearly suffered a loss of

freedom” due to the delay. Appellant’s Brief at 15. At no point in his brief

does Appellant explain this supposed deprivation.       Appellant was not in

prison while he awaited his VOP hearing.     During the vast majority of the

delay, Appellant was not in custody so that he could receive treatment for

his drug addiction. Appellant’s liberty remained unfettered for most of the

delay. We also note that Appellant did not appear at his July 22, 2015 VOP

hearing, necessitating his subsequent month-long detention.       Because he

fails to demonstrate any undue restraint on his freedom, Appellant’s claim of

prejudice fails.

      In sum, based on the foregoing, we cannot conclude that the trial

court failed to hold Appellant’s VOP hearing as speedily as possible under

Rule 708.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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