J-S71004-16

* Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 
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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 nonfatal 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.1Id. 

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