J-S71004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JOSEPH DUNLAP

                        Appellant                   No. 2991 EDA 2015


        Appeal from the Judgment of Sentence September 9, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0903240-2006


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 18, 2016

     Joseph Dunlap appeals from the judgment of sentence of two to four

years imprisonment followed by six years of probation. The sentence was

imposed after Appellant was found in violation of probation.   We affirm.

     On February 20, 2006, Philadelphia Police officers responded to a radio

call that a man with a gun was sitting inside a brownish-gold car located on

the 1300 block of West Wishart Street, Philadelphia. When they arrived at

the noted location, the officers saw Appellant in a brownish-gold car and

detected an odor of marijuana emanating from the vehicle.          A K-9 unit

arrived at the scene, and the dog alerted to the presence of marijuana. The

officers recovered marijuana and 6.3 grams of heroin in twenty-one glassine

packages from the car and had it towed.        They then secured a search


* Former Justice specially assigned to the Superior Court.
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warrant and discovered a loaded Cobra M-11 pistol with an obliterated serial

number and evidence linking Appellant to the car.

      Appellant was charged herein with three violations of the Uniform

Firearms Act consisting of possession of a weapon by a prohibited person,

possession of an unlicensed firearm, and possession of a firearm on public

property in Philadelphia as well as possession of a controlled substance with

intent to deliver (heroin), possession of heroin, and possession of marijuana.

The drug offenses were later dropped.        On March 7, 2008, Appellant

tendered a negotiated guilty plea to the firearms offenses, and was

sentenced, in accordance with the agreement, to two and one-half to eight

years incarceration followed by two years probation with credit for time

served commencing on June 6, 2006.

      Appellant was paroled on March 11, 2010, and, on June 2, 2014, four

days before he was going to be finished with parole and start his

probationary term, Appellant was arrested.        Specifically, Appellant was

stopped by police on 1600 North Eleventh Street, Philadelphia, for violating

the Motor Vehicle Code, and 123 baggies of crack cocaine weighing over

eleven grams were discovered in his pocket. N.T. Motion, 6/23/15, at 5.

      On August 20, 2014, Appellant was charged with violating probation

by committing another crime.       The violation of probation hearing was

deferred awaiting disposition of the charges that were filed in connection

with the June 2, 2014 events. In that matter, Appellant sought suppression

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of the drugs found on his person. On May 8, 2015, the trial court in that

case   concluded    that   police   unconstitutionally   found   the    drugs   and

suppressed them. Id. at 6.

       Three days later, May 11, 2015, the Commonwealth moved to proceed

with the violation proceedings herein.        On June 23, 2015, a hearing was

held, and the Commonwealth sought revocation of the probationary term

that Appellant had not started to serve.       Id. at 5. It relied upon the fact

that, during the suppression hearing, Appellant admitted that he possessed

the crack cocaine but maintained that its seizure was illegal. Additionally,

Appellant had been arrested for an aggravated assault arising from a non-

fatal shooting, and that case was dismissed after the complaining witness

would not appear to prosecute Appellant. Id. at 14.

       Based   on   this   evidence,    the   trial   court   revoked   Appellant’s

probationary sentence, and, on September 9, 2015, imposed a term of two

to four years imprisonment with a six year probationary tail.           This appeal

followed. Appellant raises the following issues on appeal:

             Did the court violate Appellant's right to a speedy hearing
       following a delay of fourteen months where Appellant was
       prejudiced as he remained in jail and was not being held due to
       any other sentence or charge and Appellant did not receive
       written notice of the probation violation charge?

             Did the court illegally sentence Appellant to 2 to 4 years
       incarceration plus 6 years probation where [the] court only had
       authority to recommit Appellant to serve out the balance of
       terms which he had been paroled?



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Appellant’s brief at 4.

      Initially, we note that “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). Herein,

Appellant’s first challenge is to the validity of the revocation proceedings in

that he contends that his right to a speedy violation hearing was violated

due to the delay between the filing of the violation motion, August 20, 2014,

and the conduct of the hearing, June 23, 2015. See Pa.R.Crim.P. 708(B)(1)

(“Whenever a defendant has been sentenced to probation . . . or placed on

parole, the judge shall not revoke such probation . . . or parole as allowed

by law unless there has been a hearing held as speedily as possible at which

the defendant is present and represented by counsel[.]”).

      Initially, we note that this averment is waived since it was not raised

at the violation hearing, at sentencing, or in a post-sentence motion.

Pa.R.A.P. 302(a). Additionally, it is meritless. The Commonwealth deferred

proceeding with the violation hearing until the underlying charges forming

the basis of the violation were resolved. It then immediately proceeded with

the violation matter once the other criminal action was dismissed due to the

suppression order. In Commonwealth v. Infante, 888 A.2d 783, 791 (Pa.

2005) (citation omitted), our Supreme Court stated that when the basis for

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revocation arises from the defendant’s commission of another crime, the

violation hearing can be “postponed pending adjudication of criminal charges

which are the basis for the revocation.”           The delay therefore was

permissible.1 Id.

       Appellant’s second argument is somewhat misguided. He appears to

be suggesting that his parole was revoked.       When parole is revoked, the

court is allowed only to re-commit the defendant to serve the balance of the

previously-imposed prison term. Commonwealth v. Bischof, 616 A.2d 6,

10 (Pa.Super. 1992).           However, at the June 23, 2015 hearing, the

Commonwealth made clear that it was not seeking to revoke parole. N.T.

Hearing, 6/23/15, at 5. Instead, the Commonwealth sought to revoke the

probationary term that Appellant was set to begin serving four days after he

committed the underlying crime. Id. Indeed, as noted at the hearing, since

Appellant was serving parole on a state sentence, the Pennsylvania Board of

Probation and Parole (the “Board”) was the entity with jurisdiction over any

violation-of-parole proceeding. 61 Pa.C.S. § 6132 (a)(1)(i) (the Board has

exclusive power to parole and recommit for parole violations any person in a

state correctional institution).



____________________________________________


1
   We note that Appellant received credit for time served against the
sentence imposed herein. N.T. Hearing, 9/9/15, at 23.



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     However, the trial court was allowed to revoke the probationary term,

despite the fact that Appellant had not yet begun to serve it when he

committed the violation at issue. Commonwealth v. Ware, 737 A.2d 251,

253 (Pa.Super. 1999) (“the court had the authority to revoke” the

defendant’s probation even though defendant “had not yet begun to serve

the probationary portion of her split sentence and even though the offense

upon which revocation of probation was based occurred during the parole

period and not the probationary period”). Accordingly, we reject Appellant’s

second position.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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