J-S80029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
LAFAYETTE BRANCH                        :
                                        :
                   Appellant            :   No. 2406 EDA 2017

           Appeal from the Judgment of Sentence June 22, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006189-2010


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                          FILED MARCH 22, 2018

      Appellant, Lafayette Branch, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

                               FACTUAL HISTORY

            The following facts are contained in the Affidavit of
      Probable Cause, to which [Appellant] stipulated when he entered
      his Negotiated Guilty Plea on December 8, 2010.

           On July 10, 2010, officers of the Darby Township Police
      Department responded to an incident involving a shoplifter
      engaged in a physical altercation with four (4) employees of the
      Pathmark Store, located at 140 N. MacDade Boulevard,
      Glenolden, Delaware County, Pennsylvania.

            The manager of the store, hereinafter “Witness,” informed
      Officer Lance Csanady and Officer Michael Sousa that another
      store manager observed [Appellant] taking several items from
      the shelf, placing them into a bag, and trying to exit the store
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     after bypassing all points of sale. The total value of the items
     was determined to be $148.43. The Witness also informed the
     officers that a physical altercation ensued after the Witness and
     several other store employees attempted to detain [Appellant]
     before police officers arrived. The Witness and another store
     manager suffered bruises as a result of [Appellant’s] assaultive
     behavior. The Officers subsequently placed [Appellant] under
     arrest.

                               PROCEDURAL HISTORY

           [Appellant] was arrested and charged in Delaware County
     on July 10, 2010, with one (1) count of Robbery;1 four (4)
     counts of Simple Assault;2 four (4) counts of Recklessly
     Endangering Another Person;3 one (1) count of Theft;4 one (1)
     count of Receiving Stolen Property;5 one (1) count of Retail
     Theft;6 and four (4) counts of Harassment.7

          1   18   Pa.C.S.A.   §   3701(a)(1)(iv)
          2   18   Pa.C.S.A.   §   2701(a)(1)
          3   18   Pa.C.S.A.   §   2705
          4   18   Pa.C.S.A.   §   3921(a)
          5   18   Pa.C.S.A.   §   3925(a)
          6   18   Pa.C.S.A.   §   3929(a)(1)
          7   18   Pa.C.S.A.   §   2709(3)

           On September 21, 2010, Magisterial District Judge Steven
     A. Sandone, Esquire, of the Darby Township District Court bound
     [Appellant] for court on the following charges: one (1) count of
     Robbery; four (4) counts of Simple Assault; one (1) count of
     Theft; two (2) counts of Receiving Stolen Property; one (1)
     count of Retail Theft; and four (4) counts of Harassment.

           On December 8, 2010, [Appellant] entered a Negotiated
     Guilty Plea on Information A, Robbery, a Felony of the Third
     Degree. Following the Sentencing Hearing, the court sentenced
     [Appellant] as follows: on Information A, Robbery, a Felony of
     the Third Degree, to serve a sentence of eighteen (18) months
     to thirty-six (36) months in a State Correctional Institution
     without eligibility for Recidivism Risk Reduction Incentive
     (“RRRI”); to serve a term of three (3) years consecutive state
     probation; to refrain from having contact with Pathmark located
     in Glenolden, PA; and to comply with general rules and
     regulations governing Probation and Parole.

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          On February 23, 2016, the [trial] court issued a Bench
     Warrant for [Appellant] for violating the terms of his probation.

           On April 1, 2016, [Appellant] was arrested again for
     criminal offenses committed in Delaware County, in the context
     of Case Record No. 2090-2016. In that case, [Appellant] was
     charged with one (1) count of Retail Theft;8 and one (1) count of
     False Identification To Law Enforcement Authorities.9 [On April
     21, 2016, Appellant] entered a Negotiated Guilty Plea on the
     charge of Retail Theft, a Felony of the Third Degree [in Delaware
     County]. On April 21, 2016, following the Sentencing Hearing,
     the court sentenced [Appellant] as follows: on Count One (1),
     Retail Theft, a Felony of the Third Degree, to serve a sentence of
     twelve (12) months to twenty-four (24) months at a State
     Correctional Institution without eligibility for Recidivism Risk
     Reduction Incentive (“RRRI”); to refrain from having contact
     with the CVS in Glenolden, PA; to submit to a DNA test; and to
     comply with general rules and regulations of Probation and
     Parole.

          8   18 Pa.C.S.A. § 3929(a)(1)
          9   18 Pa.C.S.A. § 4914(a)

           With regard to this case, Case Record No. 6189-2010, on
     June 22, 2017, following a Gagnon II Hearing, the court found
     [Appellant] in violation of his probation, and sentenced
     [Appellant] as follows: on Count A, Robbery, a Felony of the
     Third Degree, to serve a sentence of six (6) months to twenty-
     four (24) months at a State Correctional Institution; to serve a
     sentence of two (2) years state probation to run consecutive to
     the parole sentence; the sentence in this case to run consecutive
     to the sentence in Case Record No. 2090-2016; to comply with
     general rules and regulations of Probation and Parole. The court
     rescinded the Bench Warrant issued for [Appellant].

           On July 17, 2017, [Appellant] filed a Pro Se Notice of
     Appeal. On July 20, 2017, the Court directed [Appellant] to file
     a Concise Statement Of Matters Complained Of On Appeal. On
     July 21, 2017, [Appellant’s] counsel filed a Notice of Appeal, on
     [Appellant’s] behalf. On August 3, 2017, [Appellant] filed a Pro
     Se Concise Statement Of Matters Complained Of On Appeal in
     compliance with the provisions of Pa.R.A.P. 1925(b). On August
     8, 2017, [Appellant’s] counsel filed a Concise Statement Of

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      Matters Complained Of On Appeal in compliance with the
      provisions of Pa.[R.].A.P. 1925(b), on [Appellant’s] behalf.

Trial Court Opinion, 8/22/17, at 1-4. The trial court has authored an opinion

in compliance with Pa.R.A.P. 1925(a).

      Appellant presents the following issue for our review:

            Whether the Trial Court abused its discretion when it failed
      to dismiss the probation violation proceeding after the
      Commonwealth’s evidence neglected to address the length of the
      delay and the reasons for the delay of the probation violation
      hearing?

Appellant’s Brief at 8.

      In his sole issue on appeal, Appellant argues that the trial court

violated Pa.R.Crim.P. 708 by failing to hold a revocation hearing as speedily

as possible. Appellant’s Brief at 11-14. Appellant contends that, because of

the delay, his sentence should be vacated.

      In an appeal from a sentence imposed after the court has revoked

probation, we can 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).          In Commonwealth v.

Woods, 965 A.2d 1225 (Pa. Super. 2009), we set forth the following

standard when considering the merits of a challenge to a less-than-speedy

probation violation hearing:

      Pa.R.Crim.P. 708 provides, in relevant part, that,




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          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; and

                (2) a finding of record that the defendant
          violated a condition of probation, intermediate
          punishment, or parole.

     Pa.R.Crim.P. 708(B)(1), (2).

                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
          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: [1] the length of
          the delay; [2] the reasons for the delay; and [3] the
          prejudice resulting to the defendant from the delay.
          The court must analyze the             circumstances
          surrounding the delay to determine if the
          Commonwealth acted with diligence in scheduling
          the revocation hearing. Prejudice in this context
          compromises the loss of essential witnesses or
          evidence, the absence of which would obfuscate the


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            determination of whether probation was violated, or
            unnecessary restraint of personal liberty.

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

Woods, 965 A.2d at 1227-1228 (emphasis added).

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

reflects that on December 8, 2010, after having pled guilty to robbery,

Appellant was sentenced to a term of incarceration of one and one-half to

three years, followed by three years of probation.         On April 1, 2016,

Appellant was arrested for additional criminal activity, and he pled guilty to

the new charges on April 21, 2016.         On June 22, 2017, the trial court

ultimately conducted a revocation hearing in the instant matter and found

Appellant to be in violation of his probation. Hence, the delay from the date

of the entry of his guilty plea on the new charges to the date of the violation

hearing involved a period of approximately one year and two months. We

recognize that we have held delays of shorter duration to be reasonable.

See Commonwealth v. Pelzer, 466 A.2d 159 (Pa. Super. 1993) (holding

that a ten-month delay was reasonable and not violative of former Rule

1409); Commonwealth v. Woods, 965 A.2d 1225 (Pa. Super. 2009)

(holding that a delay of approximately nine months was not a violation of

probationer’s right to speedy violation-of-probation hearing). We have also

held protracted delays to be unreasonable.         See Commonwealth v.

McCain, 467 A.2d 382 (Pa. Super. 1983) (concluding that a twelve-month


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delay cannot be dismissed as “intrinsically reasonable”).            Although we

conclude that the length of the delay in this case was not intrinsically

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

        We must also examine “the reasons for the delay to determine

whether the Commonwealth acted with due diligence in scheduling the

revocation hearing.”     Woods, 965 A.2d at 1228.        Specifically, this second

factor in the reasonableness analysis requires scrutiny of the reasons for the

delay    and   the   surrounding    circumstances   to   evaluate    whether    the

Commonwealth was diligent in scheduling the hearing. Commonwealth v.

Mines, 797 A.2d 963, 965 (Pa. Super. 2002).

        In discussing the delay at issue, the trial court did not address whether

the   delay    was   attributable   to   the   Commonwealth.        Moreover,   the

Commonwealth has not alleged that it was not responsible for the delay.

Hence, we cannot conclude that the Commonwealth was diligent in

scheduling a revocation hearing.

        Nevertheless, we must examine the final factor of the three-part test:

“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.” Commonwealth v.

Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010) (citation omitted). “To

demonstrate a violation of his right to a speedy probation revocation




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hearing, a defendant must allege and prove the delay in holding the

revocation hearing prejudiced him.” Id.

      The meaning of prejudice in the context of providing a prompt

revocation hearing “has been interpreted as being something which would

detract from the probative value and reliability of the facts considered,

vitiating the reliability of the outcome itself.”      Commonwealth v.

Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). “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.”   Woods, 965 A.2d at 1227-

1228 (citation omitted).

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

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

[probation-revocation] hearing prejudiced him because he lost favorable

witnesses and evidence.” Christmas, 995 A.2d at 1263-1264. Moreover, 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. at 1263.

      In addressing whether Appellant suffered prejudice from the delay, the

trial court offered the following analysis:

      [Appellant] was partially responsible for the delay by absconding
      and by being arrested on new criminal charges.              Since
      [Appellant] entered a Negotiated Guilty Plea in his new criminal
      case, there was no loss of potential or essential witnesses, or

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      evidence which could have had an adverse effect on the outcome
      of the Gagnon II Hearing. The Commonwealth had met its
      burden in proving that [Appellant] had violated the terms of his
      probation.     Moreover, no undue burden was placed on
      [Appellant’s] personal liberty as a result of any delay in holding
      the Gagnon II Hearing, as he was already incarcerated in the
      context of his new criminal case. In addition, [Appellant] did not
      proffer any evidence that he was impaired in his ability to
      prepare and develop an adequate defense.

Trial Court Opinion, 8/22/17, at 7.        Our review similarly reflects that

Appellant did not suffer prejudice in this regard.

      The record indicates that, at the time of the revocation hearing,

Appellant was serving a term of incarceration of one to two years for

additional charges of retail theft, which took place in Delaware County. N.T.,

6/22/17, at 5.     Upon revocation of his probation, the court sentenced

Appellant to serve a term of incarceration of six to twenty-four months,

followed by two years of probation, to run consecutively to the sentence

imposed in Delaware County.       Id. at 19-20.      Hence, Appellant was not

unnecessarily deprived of personal liberty by the delay because he was not

incarcerated for additional time. Christmas, 995 A.2d at 1263. See also

Clark, 847 A.2d at 125 (no prejudice as defendant was not incarcerated for

additional time). Accordingly, we conclude that Appellant’s claim that he is

entitled to relief based upon a claimed violation of his right to a speedy

revocation hearing lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/18




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