Commonwealth v. Gochenaur , 331 Pa. Super. 187 ( 1984 )

HESTER, Judge:

On November 9, 1981, appellant, Edward L. Gochenaur, Jr., pled nolo contendere to terroristic threats and to two unrelated charges of theft in the Court of Common Pleas of Lancaster County, Pennsylvania. Appellant was sentenced to concurrent terms of imprisonment of not less than time served nor more than twenty-three months on the terroristic threats bill and one theft bill. A one-year period of probation was imposed on the remaining theft bill. With credit given for time served, appellant was released on parole at the imposition of sentence. As a condition of parole, the court instructed appellant to avoid contact with the victim, Doris Glouner.

On December 8, 1981, appellant was charged with simple assault. A prima facie case on this charge was established against him on December 22, 1981. Also, on November 10, 16 and 17, 1981, appellant telephoned Doris Glouner, a further act in violation of his parole. Due to the pending simple assault charges and the telephone calls to Ms. Glouner, a capias was issued on December 9, 1981 to commit appellant to Lancaster County Prison as parole revocation proceedings were instituted.

Following a Gagnon I hearing on March 15, 1982, appellant was detained for a parole revocation hearing on April 2, 1982. Appellant was there found to be in violation of his parole; consequently, parole was revoked and appellant was sentenced to serve the unexpired balance of each sentence imposed on November 9, 1981.

Appellant’s motion to modify the sentence was denied April 21, 1982. This appeal was taken from that Order.

Appellant first contends that the Commonwealth did not prove a violation of the conditions of his parole by a preponderance of the evidence. Doris Glouner testified at the parole revocation hearing that she knew appellant for two years prior to November, 1981, and spoke to him over the telephone every week for one year prior to that time. She further testified that on November 10, 1981, her telephone rang on approximately eight occasions. Following her answer, the caller did not speak; Ms. Glouner heard breathing only. On the final call of that date, the caller uttered, “You’re dead.” Ms. Glouner identified the voice as appellant’s. On November 16 and 17, 1981, her phone rang incessantly. Each time Ms. Glouner answered she received no intelligible response; only the caller’s breathing was audible. Appellant is of the opinion that the two words uttered by the caller on November 10, 1981 and the numerous calls when only breathing was heard are not sufficient to support Ms. Glouner’s identification.

Appellant also claims that a violation of his parole was not proven by a preponderance of the evidence inasmuch as the victim of the simple assault did not testify at the revocation hearing. According to appellant, no reason was given for the victim’s failure to appear. The victim’s absence allegedly deprived appellant of the opportunity to examine the victim concerning a letter which she wrote to appellant’s mother. Appellant contends that this letter damaged the testimony given by the victim at the preliminary hearing.

The Commonwealth’s burden at a parole revocation hearing is less onerous than that which it assumes at trial. A parole violation is proven by a preponderance of the evidence. Commonwealth v. Del Conte, 277 Pa. Super. 296, 419 A.2d 780 (1980); Commonwealth v. Lipton, 238 Pa.Super. 124, 352 A.2d 521 (1975). This lighter burden of proof reflects the policy of a parole revocation hearing whereby the emphasis is whether parole is an effective tool to promote rehabilitation and deter “future antisocial conduct.” Commonwealth v. Kates, 452 Pa. 102, 115: 305 A.2d 701, 708 (1973). In Kates, our Pennsylvania Supreme Court applied statutory law, constitutional law and policy considerations to conclude that the revocation of parole is proper prior to trial on those charges constituting the parole violation. Here, the arresting officer in the simple assault proceedings testified at the revocation hearing that appellant was bound for court on the simple assault charge on December 22, 1981. Appellant corroborated this. In light of Kates, the prima facie evidence of simple assault proved a violation by a preponderance of the evidence. The absence of the simple assault victim from the revocation hearing affected the weight of the Commonwealth’s evidence. It did not, however, require a reversal of the order revoking parole.

Appellant’s interpretation of Commonwealth v. Maye, 270 Pa. Super. 406, 411 A.2d 783 (1979), is incorrect. The Maye court did not create for appellant the absolute right to confront the simple assault victim at the revocation hearing. Instead, it espouses his right to confront adverse witnesses excluded from the hearing, yet whose statements are introduced as hearsay evidence. Here, where a prima facie case of simple assault is incontrovertible, we do not believe that Maye can be extended to guarantee appellant an opportunity to cross-examine the simple assault victim.

Moreover, despite the few words spoken by appellant, Ms. Glouner identified appellant’s voice without reservation. In light of our limited scope of review and the Commonwealth’s light burden of proof in revocation proceedings, we will not question the lower court’s assessment of Ms. Glouner’s credibility. Violation of parole conditions, then, was found in two instances: 1) the prima facie finding of simple assault, and 2) appellant’s contacting Ms. Glouner. Either justified the revocation of parole.

Next, appellant argues that the parole revocation hearing was not promptly held as required by Pa.R.Crim.P. 1409. Rule 1409 provides, in pertinent part, as follows:

Whenever a defendant has been placed on probation or 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 and there has been a finding of record that the defendant violated a condition of probation or parole.

This requirement of a speedy revocation hearing is a codification of our courts’ pronouncements that revocation hearings must be held with “reasonable promptness” after a probation officer is chargeable with knowing that probation has been violated. Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). Whether the revocation hearing is held with “reasonable promptness” is determined by the facts and circumstances of the matter at hand. A three-part analysis is institutued: the length of the delay, the reasons for the delay and the prejudice imposed by the delay on the defendant. Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979): Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977).

The delay, sub judice, roughly covered a four-month period from the filing of a simple assault charge on December 8, 1981, and a five-month period from the time Ms. Glouner received the phone calls. Our courts have found lengthier periods, commencing with conviction of the crime for which parole was revoked and terminating with a revocation hearing, to be reasonable. See Commonwealth v. Williams, supra (5½ months); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977) (6½ months).

The Commonwealth obtained a capias one day following appellant’s arrest for simple assault and one month following the first harassing phone call to Ms. Glouner. A Gagnon I hearing was held three months later while a Gagnon II hearing occurred two and one-half weeks following the Gagnon I hearing. Although the reasons for this passage of time are not of record, we do not attribute it to prosecutorial dilatoriness. First, the revocation proceedings were completed prior to trial on the simple assault charges. As discussed above, longer passages of time, commencing with conviction of the parole-revoking crime, have been held reasonable. Secondly, we are disinclined to refer to this hiatus as a delay; rather, it appears to be a normal progression of criminal proceedings.

It is appellant’s contention that the third part of the tripartite test was not satisfied insofar as the “delay” weakened the testimony of his alibi witnesses. Two witnesses testified that they were with appellant from early morning on November 10, 1981, and throughout that day and evening. They were unaware of any continual phone calls made by appellant to Ms. Glouner. Appellant’s position that their testimony was undermined by the “delay” was not developed beyond the statement that “their testimony was not as secure as it would have been if the violation would have been brought sooner or would have been brought closer to the time of the alleged calls.” Without more, we fail to see the prejudice which appellant believes he suffered.

Also, appellant seeks a reversal of the Order revoking his parole on grounds that counsel was ineffective. The following five grounds are proposed illustrations of counsel’s ineffectiveness:

1) Counsel inadequately cross-examined appellant’s probation officer on the timeliness of the capias.

2) Counsel failed to develop the testimony of appellant’s alibi witnesses.

3) Counsel failed to ask relevant questions concerning his defense.

4) Counsel failed to insist that the simple assault victim testify.

5) Counsel did not use the letter allegedly written by the simple assault victim which would have tainted her testimony.

Following a general discussion of the legal principles upon which a claim of ineffectiveness is constructed, appellant simply enumerates the aforementioned illustrations. He does not expound upon them. Therefore, his ineffectiveness claim was merely an assertion. Mere assertions of ineffectiveness have been summarily dismissed. Commonwealth v. Davis, 318 Pa.Super. 507, 465 A.2d 669 (1983).

Finally, appellant argues that the lower court erred in failing to state its reasons for the particular sentences imposed at the parole revocation hearing. We agree. Pennsylvania Rule of Criminal Procedure 1405 requires the sentencing judge to “state on the record the reasons for sentence imposed.” This requirement applies as well to sentencing proceedings following revocation of parole. Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984); Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981). Our review of the record transcribed at the Gagnon II hearing on April 2, 1982 convinces us that the trial judge inadvertently failed to set forth his reasons for the sentence on the record. Therefore, we are constrained to remand for re-sentencing.

Order reversed and remanded for re-sentencing only. Jurisdiction relinquished.

WIEAND, J., filed a dissenting opinion.