J-S69014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALIL BOSWELL,                            :
                                               :
                       Appellant               :   No. 2402 EDA 2018

          Appeal from the Judgment of Sentence Entered July 12, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0807881-2004


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 24, 2020

       Appellant, Khalil Boswell, appeals from the judgment of sentence

entered on July 12, 2018, in the Philadelphia County Court of Common Pleas

following the revocation of his probation. After review, we affirm.

       In its opinion, the trial court provided the relevant facts and procedural

history of this matter as follows:

              On October 21, 2004, [Appellant] entered into a negotiated
       guilty plea before this [c]ourt on the charges of possession with
       intent to deliver a controlled substance (“PWID”), and conspiracy
       to deliver narcotics. This [c]ourt sentenced [Appellant] to 6 to 12
       months incarceration plus 2 years reporting probation.
       [Appellant] was allowed to work after in-patient treatment and
       was released on house arrest after three months.

              On July 25, 2008, [Appellant] appeared before this [c]ourt
       for a Violation of Probation hearing. This [c]ourt found [Appellant]
       in direct violation for obtaining a new conviction for escape. This
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [c]ourt resentenced [Appellant] to 2½ to 5 years incarceration
     followed by 5 years reporting probation.

           On February 5, 2013, [Appellant] was arrested for PWID,
     knowing and intentional possession of a controlled substance … ,
     and conspiracy to commit PWID [at CP-51-CR-2946-2013]. On
     March 14, 2014, [Appellant] was found guilty in a bench trial
     before the Honorable Timika Lane … .

           [Appellant] subsequently absconded and was on wanted
     cards. [Appellant] last reported to the Probation Department on
     March 4, 2014 and missed his next office visit on March 12, 2014.
     [Appellant] was not taken into custody until March 19, 2015. …
     On February 1, 2016, [Appellant] was sentenced by Judge Lane
     pursuant to the charges [at CP-51-CR-2946-2013].

           On May 15, 2018, [Appellant] filed a Motion to Bar Probation
     Revocation of Probation, which this [c]ourt denied on June 12,
     2018. [Appellant] claimed that he was on parole at the time that
     he incurred a new arrest for PWID in 2013, and his probation had
     not yet begun to run.

           On July 12, 2018, a Violation of Probation Hearing was held
     by this [c]ourt. [Appellant] was represented by Elisa Downey-
     Zayas, Esquire and the Commonwealth was represented by Martin
     Howley, Esquire. The parties agreed that [Appellant] served 8
     years, 7 months, and 13 days on this case. N.T. 7/12/2018, p. 8.
     There was no dispute that [Appellant] was in direct violation of
     probation.   Id. at 8-9.    Defense Counsel also agreed that
     [Appellant] was in technical violation of probation for being in
     absconding status from March 4, 2014 until he was arrested on
     March 19, 2015. Id. at 11.

           Next, the parties made their sentencing recommendations
     to this [c]ourt. Defense Counsel recommended the [c]ourt
     sentence [Appellant] to 6 to 12 months incarceration to run
     concurrent with [the] sentence [imposed by] Judge Lane. Id. at
     12. The Commonwealth recommended the [c]ourt sentence
     [Appellant] to incarceration to run consecutive to Judge Lane’s
     sentence. He stated that a probationary sentence would be
     inappropriate given the escape conviction on [Appellant’s] record
     and poor history on probation. “[N]othing the [c]ourt has done at
     this point has proved to sort of get [Appellant] back on the right
     track.” Id. at 13. [Appellant] declined his right to allocution when

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       asked if he wanted to address the [c]ourt by stating, “No. It’s all
       right.” Id.

              This [c]ourt found [Appellant] in direct and technical
       violation of probation, revoked probation, and resentenced
       [Appellant] to 18 to 36 months total, with each charge consecutive
       to each other and to run consecutive to Judge Lane’s sentence.
       Id. at 13-14. This [c]ourt explained that this sentence was
       absolutely necessary to vindicate the authority of the [c]ourt. This
       [c]ourt explained the following:

              First of all, [Appellant is] in direct violation. Second,
              [Appellant] apparently absconded for an extended
              period of time, which results in a technical violation as
              well.    This [c]ourt has attempted since 2004 to
              provide [Appellant] with the tools necessary to remain
              crime free, but actually, nothing has worked. Not
              even a prior state sentence worked.

       Id. at 14.

            On July 26, 2018, [Appellant] filed a Motion for
       Reconsideration of VOP Sentence. On August 8, 2018, without
       the [c]ourt issuing a decision on [Appellant’s] Motion for
       Reconsideration, [Appellant] filed an appeal.[1] On January 11,
       2019, upon notes of testimony being transcribed and posted to
       the [c]ourt Reporting System, this [c]ourt ordered that
       [Appellant] file a Concise Statement of Errors Complained of on
       Appeal Pursuant to Pa.R.A.P. 1925(b). [Appellant], through
       counsel, did so on January 28, 2019.

Trial Court Opinion, 3/4/19, at 2-4.




____________________________________________


1   Appellant’s July 26, 2018 motion for reconsideration was untimely; it was
filed fourteen days after the judgment of sentence was entered. See
Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation [of probation] shall be filed within 10 days of the date of imposition.
The filing of a motion to modify sentence will not toll the 30-day appeal
period.”). Despite the untimely filing of the post-sentence motion, Appellant
filed a timely notice of appeal.

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      Before we reach the merits of Appellant’s appeal, we note that there is

a discrepancy between the sentence recorded in the notes of testimony and

the written sentencing order.    The trial court stated on the record, and

reiterated in its opinion, that it imposed three sentences with an aggregate

term of eighteen to thirty-six months of incarceration, N.T., 7/12/18, at 13-

14; Trial Court Opinion, 3/4/19, at 3. However, the written sentencing order

reflects that the trial court imposed only two sentences at the relevant trial

court docket, Philadelphia County Court of Common Pleas Docket Number

807881-2004: first, a sentence for PWID, with a term of six to twelve months

of incarceration; and a second sentence for conspiracy, with a sentence of six

to twelve months of incarceration to be served consecutively to the sentence

imposed for PWID. Order, 7/12/18. “It is axiomatic that if there is a conflict

between the sentence imposed in open court versus that contained in the trial

court’s written order, the sentence in the written sentencing order controls.”

Commonwealth v. Brooker, 103 A.3d 325, 329 n.4 (Pa. Super. 2014)

(citation omitted).

      The confusion surrounding Appellant’s aggregate sentence stems from

the fact that when the trial court revoked probation and resentenced Appellant

in the instant case, it also revoked probation and resentenced Appellant in a

separate matter. N.T., 7/12/18, at 13-14. Specifically, at Philadelphia County

Court of Common Pleas Docket Number 807881-2004, which underlies the

instant appeal, the trial court imposed two aforementioned consecutive


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sentences of six to twelve months of incarceration. Id. However, the trial

court also imposed a consecutive term of six to twelve months of incarceration

at Philadelphia Municipal Court Docket Number 437581-2002 for a separate

charge of PWID. Id.

      This discrepancy does not impact our analysis.     For purposes of our

discussion, we are concerned only with the two consecutive sentences of six

to twelve months of incarceration imposed at Philadelphia County Court of

Common Pleas Docket Number 807881-2004 for PWID and conspiracy. The

sentence imposed for PWID at Philadelphia Municipal Court Docket Number

437581-2002, was appealed at a separate Superior Court Docket Number,

3530 EDA 2018, and it is not relevant to this appeal.

      On appeal, Appellant presents the following issue for this Court’s

consideration:

      Was not [Appellant] denied his right to a speedy probation
      revocation hearing in violation of Pa.R.Crim.P. 708, when his
      hearing was unreasonably delayed for more than 2 years and 5
      months after a direct violation of his probation and he was
      substantially prejudiced by the delay?

Appellant’s Brief at 3.

      Rule 708 provides, inter alia, that a probation revocation hearing must

be “held as speedily as possible.” Pa.R.Crim.P. 708(B)(1). “The language

‘speedily as possible’ has been interpreted to require a hearing within a

reasonable time.” Commonwealth v. Clark, 847 A.2d 122, 123 (Pa. Super.

2004) (citation omitted).    Nevertheless, Rule 708 does not establish a


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presumptive period in which the Commonwealth must revoke probation. Id.

at 123-124. This Court has held that protracted delays of fifteen months, two

years, or four years are not “intrinsically reasonable.” Commonwealth v.

Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010) (citations omitted).

However, the issue is ultimately whether the delay was reasonable under the

circumstances of the specific case and whether the defendant was prejudiced

by the delay. Clark, 847 A.2d at 123-124 (citation omitted). “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.” Id. at 125.

      “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.” Clark, 847 A.2d at 124 (citation

omitted). Additionally, “the court looks at the circumstances surrounding the

delay to determine whether the Commonwealth acted with due diligence in

scheduling the revocation hearing.”    Christmas, 995 A.2d at 1263 (citing

Clark, 847 A.2d at 124).     “If a defendant is already incarcerated on the

charges that triggered the probation revocation, he cannot claim the delay in

holding his revocation hearing caused him any loss of personal liberty.” Id.

(citations omitted).    “Likewise, where a conviction on new charges

conclusively establishes the defendant’s probation violation, the defendant




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cannot claim a delay in his [violation of probation] hearing prejudiced him

because he lost favorable witnesses and evidence.” Id. (citations omitted).

     The trial court addressed this issue as follows:

     [Appellant] claims that “there was a delay of at least 15 months
     with no reasonable excuse and [he] was prejudiced by the delay.”
     [Appellant’s Pa.R.A.P.] 1925(b) [Statement, 1/28/19, at 2].
     [Appellant] is correct that there was delay in scheduling this
     hearing, however, [Appellant] does not explain how he was
     prejudiced. On February 1, 2016, [Appellant] was sentenced on
     the charges of PWID, [possession of a controlled substance], and
     conspiracy to commit PWID before Judge Lane. The Philadelphia
     Probation Department did not request a Violation of Probation
     Hearing until May of 2017. [Appellant] was incarcerated during
     this time and was scheduled to be released on probation on
     March 19, 2018. There has been no loss of essential witnesses or
     evidence because [Appellant] obtained a direct violation of
     probation proven in a court of law. Christmas, 995 A.2d at 1264.
     [Appellant] has not suffered a loss of personal liberty as he was
     serving Judge Lane’s sentence. Where no prejudice is shown, a
     defendant is not entitled to relief upon a claimed violation of his
     right to a speedy hearing even when the hearing was delayed due
     to the Commonwealth’s lack of diligence. Id. at 1263.

           Furthermore, even after the 15 month delay, Defense
     Counsel requested an additional year of continuances for further
     investigation to determine what credit for time served to which
     [Appellant] was entitled. On June 20, 2017, a video hearing was
     held in which this [c]ourt ordered Defense Counsel to make an
     accurate accounting of credit for time served for sentencing
     purposes.     Defense requested a continuance for further
     investigation on this issue on March 13, 2018 and May 15, 2018.
     On June 11, 2018, Defense Counsel filed a Motion for Credit for
     Time-Served that represented that [Appellant] served 8 years, 7
     months, and 13 days at that point for this case. On June 12,
     2018, the very next day after finally providing an accurate
     accounting of [Appellant’s] time credit, Defense Counsel made a
     motion for undue delay when [Appellant] was not brought to the
     courthouse from SCI Dallas. [Appellant] was likewise unable to
     be brought to the courthouse by the Department of Corrections
     on May 11, 2017 and February 28, 2018, which created an


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      additional delay that cannot be attributed to the Commonwealth.
      Id.

Trial Court Opinion, 3/4/19, at 5-6. We agree with the trial court’s conclusion

that Appellant suffered no prejudice.

      It is undisputed that there was a delay in holding Appellant’s violation

of probation hearing.     However, Appellant was incarcerated for the entire

period of this delay as a result of his new convictions, and Appellant’s new

convictions were direct violations of his probation on the instant case. See

Commonwealth v. Foster, 214 A.3d 1240, 1247 (Pa. 2019) (stating that a

probationer violates his probation where he violates a specific condition of his

probation or commits a new crime). Thus, Appellant was not prejudiced by

an inability to present witnesses on his behalf, and he did not incur prejudice

due to unnecessary restraint of personal liberty.     Christmas, 995 A.2d at

1263; Clark, 847 A.2d at 125.

      We note that Appellant also avers that he was prejudiced and his liberty

was restrained unnecessarily because the Department of Corrections held him

“on this case without considering his [sic] for parole, long after he should have

been eligible for parole on his direct violation.” Appellant’s Brief at 14. This

assertion is meritless.

      As noted above, Appellant was convicted of new crimes at Philadelphia

County Court of Common Pleas Docket Number 2946-2013 while he was

serving the probationary term in the underlying case at Philadelphia County

Court of Common Pleas Docket Number 807881-2004.                Appellant’s new

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convictions constituted a direct violation of his probation. Foster, 214 A.3d

at 1247. Appellant was sentenced on the new charges on February 1, 2016,

to a term of eighteen to thirty-six months of incarceration. Appellant asserts

that his liberty was restrained unnecessarily because he allegedly would have

been paroled in August of 2017, at the expiration of his minimum sentence in

the new case, were it not for the delay in holding the violation of probation

hearing. Appellant’s Brief at 14. This assertion is mere speculation because

Appellant had no right to parole at the expiration of his minimum sentence.

See Commonwealth v. Beish, 207 A.3d 964, 969 (Pa. Super. 2019)

(explaining that a parolee has no vested right to be placed on parole; parole

is an act of grace, not of right) (citations omitted). Thus, we conclude that

Appellant’s claim of prejudice is specious.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/20




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