J-A21037-15

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

WARREN ALSTON,

Appellant No. 1733 EDA 2014

Appeal from the Judgment of Sentence entered May 9, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-1205041-2001

BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 17, 2015

Warren Alston (“Appellant”) appeals from the judgment of sentence 

imposed by the trial court after it determined that Appellant had violated his 

probation. We affirm.

The trial court summarized the procedural background of this case as 

follows:

On April 15, 2002, [Appellant] appeared before [the trial] 

court and entered into a negotiated guilty plea to one count of 

unlawful restraint and one count of criminal trespass. 

Thereafter, the negotiated sentence of time served (11.5 

months) to 23 months confinement, followed by 3 years 

consecutive reporting probation was imposed. On April 24, 

2002, [Appellant] was paroled from Philadelphia County to 

authorities from New Jersey on an arrest warrant and 

transported to Middlesex County Correctional Institution to serve 

a New Jersey sentence for failing to pay imposed violation of 

probation fines. [Appellant] was subsequently released to the 

streets of New Jersey approximately six to eight weeks later. 

[FN1 [Appellant] remained free from physical incarceration for 

approximately two months, since on or about July 2002.] On 
J-A21037-15

- 2 -

September 22, 2002, [Appellant] was arrested in Middlesex 

County, New Jersey and charged with several violent offenses. 

[FN2 [Appellant] was charged with two counts of burglary, one 

count of terroristic threats, one count of possession with a 

deadly weapon unlawful purpose, two counts of aggravated 

sexual assault, one count of aggravated assault, one count of 

robbery, and one count of criminal restraint.] Subsequently, on 

February 9, 2004, [Appellant] pled guilty as charged to all 

counts, and on May 14, 2004 was sentenced to 20 years 

confinement, parole ineligible for 17 years and given credit for 

time served. This court, unaware of [Appellant’s] New Jersey 

conviction, scheduled a listing for July 17, 2002. When 

[Appellant] failed to appear or inform the court of his 

whereabouts, a bench warrant was issued for his arrest on July 

24, 2002.

On May 9, 2014, a probation revocation hearing was held 

via two-way simultaneous audio and video media with 

[Appellant] from the East Jersey State Prison in Rahway, New 

Jersey. This court found [Appellant] in violation of the 

probationary sentence imposed on April 15, 2002, and sentenced 

him to 2.5-5 years state confinement on the charge of unlawful 

restraint and a consecutive 3.5-7 years on the charge of criminal 

trespass, both to run consecutive to the term [Appellant] is 

currently serving in New Jersey, with credit for time served.

[Appellant] filed a Notice of Appeal, on June 9, 2014. On 

June 10, 2014, this court ordered [Appellant] to file a Statement 

of Matters Complained of on Appeal in accordance with 

PA.R.APP.PROC. 1925(b). On June 30, 2014, said statement 

was filed by [Appellant] along with a Motion for an Extension of 

Time to File a Supplemental Statement of Errors Complained of 

on Appeal pending receipt of the notes of testimony. The 

extension was granted on July 21, 2014 and the supplemental 

statement was filed on July 22, 2014.

Trial Court Opinion, 11/17/14, at 1-2.

On appeal, Appellant presents two issues for our review:

1. Did not the trial court violate the mandate of Pa.R.Crim.P. 

708, that a probation revocation hearing be held “as speedily as 

possible,” inasmuch as [A]ppellant’s revocation hearing was not 

listed or held until 10 years after [A]ppellant’s direct violation 
J-A21037-15

- 3 -

guilty plea in New Jersey, and this substantial delay was 

unreasonable and prejudicial to [A]ppellant?

2. Was not the probation revocation sentence of six to twelve 

years incarceration to be served at the conclusion of a sentence 

of twenty years incarceration that [A]ppellant was already 

serving in New Jersey excessive and unreasonable, where the 

sentence far surpassed what was necessary to foster 

[A]ppellant’s rehabilitative needs insomuch as the sentence was 

imposed 10 years after the direct violation occurred and 

[A]ppellant had already served the length of the entire 

revocation sentence since he had been incarcerated for 12 years 

in New Jersey?

Appellant’s Brief at 4. 

Appellant asserts that his sentence is “excessive ... unreasonable and 

prejudicial,” and complains that he is “essentially serving a life sentence.” 

Appellant’s Brief at 16-17.

The Commonwealth counters that it is not chargeable with the delay in

Appellant’s sentencing, i.e., knowledge that Appellant left Pennsylvania 

without approval when he was paroled in 2002, and that Appellant was 

responsible “for the delay occasioned by his absconding and committing new 

crimes.” Commonwealth Brief at 7. The Commonwealth maintains that 

Appellant “was in no way prejudiced by the delay,” and additionally asserts 

that Appellant has failed to present a substantial question regarding his 

sentencing. Id. 

We initially note that when we review the results of a probation 

revocation hearing, we are limited to determining the validity of the 

proceedings, and the legality of the judgment of sentence imposed. 

Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005). 
J-A21037-15

- 4 -

Instantly, we have read the notes of testimony from Appellant’s May 9, 2014 

probation violation hearing, and conclude that the proceedings were valid 

and the sentence was legal. The assistant district attorney asserted:

[U]ltimately the reason for the delay falls on [Appellant’s] 

shoulders. He was on the street at some point after July, and 

he’s the one who got arrested in September. [Appellant’s 

counsel] seems to be implying ... that somehow because the new 

arrest – I think [Appellant’s counsel] is asking this Court to make 

a connection between the fact that [Appellant] was released by 

the Philadelphia prison to Middlesex County and then was 

arrested in Middlesex County, that somehow the Philadelphia 

prison system is responsible for keeping track of him. What if he 

had been arrested in New York or Vermont or Arizona?

He got arrested in September. I don’t see how under 

normal circumstances the Philadelphia Probation Department is 

necessarily supposed to be made aware of that.

N.T., 5/9/14, at 30.

In agreement, the trial court reasoned:

This case is extremely troubling to me. [Appellant] 

negotiated a plea most favorable to him under circumstances 

which play out in a more violent fashion across the river in New 

Jersey. If we remember, [Appellant] pled guilty to unlawful 

restraint and criminal trespass in the Philadelphia case, and the 

facts were that he unlawfully entered the home of his estranged 

wife, and despite her pleadings he held her hostage for a period 

of time until he was arrested.

He is essentially asking this court to give him the benefit of 

having been arrested obviously on a warrant from New Jersey, 

and when he got back to New Jersey, despite the fact that he left 

the jurisdiction without any approval, while he was free he did 

not return to Philadelphia. Instead he remained in New Jersey, 

committed a crime, a vicious crime, was sent to jail, and now he 

maintains that while he was in jail he had done everything in his 

power to bring his location to the attention of the Philadelphia 

authorities. I reject that uncorroborated statement or

statements of his out of hand.
J-A21037-15

- 5 -

He then goes on to say that because of the long period of 

delay for which he is at fault that the citizens of the 

Commonwealth of Pennsylvania should be blamed because his 

having not been brought before this court to have the detainer 

resolved has worked a prejudice against him, and I am to 

believe – he has asked me to believe that this prejudices a man 

who entered someone else’s home and sexually assaulted them, 

the prejudice that precludes his being given a favorable 

classification is not the heinousness of the crime I just outlined, 

but the fact that he has a detainer back here in Philadelphia. I 

find that there is no prejudice. 

Id. at 52-53.

Consistent with the foregoing, the Honorable Sandy L.V. Byrd, sitting 

as the trial court, has authored a thorough and comprehensive opinion 

further explaining the propriety of Appellant’s sentence given the specific 

factual background and applicable legal authority. Accordingly, we adopt 

Judge Byrd’s November 17, 2014 opinion as our own in affirming Appellant’s 

judgment of sentence.

Judgment of sentence affirmed.

Justice Fitzgerald joins the Memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015
probation fines. Defendant was subsequently released to the streets ofNew Jersey approximately six 

Correctional Institution to serve a New Jersey sentence for failing to pay imposed violation of 

County to authorities from New Jersey on an arrest warrant and transported to Middlesex County 

reporting probation was imposed. On April 24, 2002, defendant was paroled from Philadelphia 

sentence of time served (11.5 months) to 23 months confinement, followed by 3 years consecutive 

to one count of unlawful restraint and one count of criminal trespass. Thereafter, the negotiated 

On April 15, 2002 defendant appeared before this court and entered into a negotiated guilty plea 

I. PROCEDURAL HISTORY 

R..APP. PROC. 1925, this court submits the following Opinion. 

sentence following a violation of probation hearing. In accordance with the requirements of PA. 

Defendant, Warren Alston, filed a direct appeal from this court's May 9, 2014 judgment of 

Byr NoveD1ber17,2014 d, J. 

OPINION 

Criminal Appeals (mil 

-First JL1dictal Distnc1 ot PA 

NOV 17 2014 1733 EDA 2014 

WARREN FILED ALSTON 

SUPERIOR COURT 

v. 

COMMONWEAL TH OF PENNSYLVAN CP-51-CR-1205041-2001 IA 

IN THE COURT OF COMMON PLEAS PHILADELPffiA COUNTY 

CRIMINAL TRIAL DIVISION 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

2 

I Defendant remained free from physical incarceration for approximately two months, since on or about July 2002. 

:!Defendant was charged with two counts of burglary (N.J. STAT. ANN.§ 2C: 18-2 (a)(l )), one count of terroristic threats(§ 

2C: 12-3(b )), one count of possession of a weapon unlawful purpose(§ 2C:39-4(d)), two counts of aggravated sexual · 

assault (§ 2C:14-2(a)(3)), one count of aggravated assault (§ 2C: 13-2(a)), one count of robbery 

In accordance with PA. RAPP. PROC.1925 (b), defendant raised the following issues in his 

II. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL 

statement was filed on July 22, 2014. 

receipt of the notes of testimony. The extension was granted on July 21, 2014 and the supplemental 

Extension of Time to File a Supplemental Statement of Errors Complained of on Appeal pending 

PROC. 1925 (b). On June 30, 2014, said statement was filed by defendant along with a Motion for an 

defendant to file a Statement of Matters Complained of on Appeal in accordance with PA. RAPP. 

Defendant filed a Notice of Appeal, on June 9, 2014. On June 10, 2014, this court ordered 

serving in New Jersey, with credit given for time served. 

years on the charge of criminal trespass, both to run consecutive to the term defendant is currently 

him to 2.5 -5 years state confinement on the charge of unlawful restraint and a consecutive to 3.5 -7 

found defendant in violation of the probationary sentence imposed on April 15, 2002, and sentenced 

video media with defendant from the East Jersey State Prison in Rahway, New Jersey. This court 

On May 9, 2014, a probation revocation hearing was held via two-way simultaneous audio.and 

the court of his whereabouts, a bench warrant was issued for his arrest on July 24, 2002. 

Jersey conviction, scheduled a listing for July, 17, 2002. When defendant failed to appear or inform 

ineligible for 17 years and given credit for time served. This court, unaware of defendant's New 

guilty as charged to all counts, and on May 14, 2004 was sentenced to 20 years confinement, parole 

to eight weeks later.1 On September 22, 2002, defendant was arrested in Middlesex County, New. 

Jersey and charged with several violent offenses. 

2 Subsequently, on February 9, 2004, defendant pled 

l -r-: ·-.~·:···- 

. 

j .. 

.. 

; 

i. 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

3 

(§ 2C:15-l(a)(l)), and one count of criminal restraint(§ 2C:13-2(a)). 

parole release date and issuance of the warrant on July 24, 2002. Id. at 21-22. However, after the 

hearing revealed that defendant had not been assigned a probation officer between his April 24, 2002 

Subsequently, a bench warrant was issued on July 24, 2002, after defendant failed to appear. The 

incarceration in Middlesex County, this court scheduled a hearing for July 17, 2002. Id at 20. 

open probation detainer. N.T. 5/9/2014 at 19, 20-21. Unaware of defendant's release and bis 

guilty plea, defendant was released to Middlesex County, New Jersey sheriff's department on an 

On April 24, 2002 after being sentenced by this court on April 15, 2002, pursuant to a negotiated 

defendant testified on his own behalf. TI1e facts supporting revocation of probation are as follows. 

summary. The Commonwealth presented the testimony of Probation Officer Rosa Ramos and 

Parole and Probation Department Supervisor Duane Archie and defendant's Gagnon II hearing 

At the violation of probation hearing, this court first proffered an email from Philadelphia Adult 

IlLFACTUALBACKGROUND 

a Appellant's right to due process oflaw and bis right to a speedy hearing under 

Pa. R. Crim, P. 708 (B) were violated by the ten (10) year delay between his 

new conviction and his probation violation hearing, said delay being not 

intrinsically reasonable. Furthermore, the Commonwealth failed to exercise 

due diligence in scheduling the revocation hearing and appellant was 

prejudiced by the delay by being denied access to a modified custody status 

and various programs in prison, which unnecessarily restrained his personal 

liberty. 

b. The sentence imposed on the charge of unlawful restraint, 18 Pa. C.S.A. § 

2902, is illegal because the original term of incarceration of time-served to 

twenty [sic] (23) months combined with the new term of incarceration of 

two-and-one-half (2 1/2) to five (5) years results in an aggregate period of 

imprisonment that exceeds the statutory maximum. 

c. The sentence imposed on appellant violated the requirements of 42 Pa 

C.S.A. § 9721 (b ), in that it was unreasonable, manifestly excessive, and far 

surpassed what was necessary to foster appellant's rehabilitative needs. 

Statement of Matters Complained of on Appeal': 

s .• -, 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

3 The previous statement was taken verbatim from defendant's filed Statement of Errors. 

4 

Jersey incarceration through an interstate detainer. Id. at 35. Defendant further claimed that he filed 

occasion between 2008 and 2010, he made an effort to notify Pennsylvania authorities of his New 

incarceration status in New Jersey. N. T. 5/9/2014 at 27, 42. Defendant however alleged that on one 

July 2002 and July 2013, defendant made no attempts to inform this court directly of his 

felony charges. Id. at 29-3 0, 34, 4 2. During the revocation hearing it was also revealed that between 

verifiable attempt during his two months of freedom, or after he was arrested in New Jersey on the 

release from New Jersey custody in July 2002. Id. at 29. Defendant, however, made no such 

release from Philadelphia prison to Middlesex County Correctional Institution and of his subsequent 

At the hearing, defense counsel emphasized defendant's duty to inform the Commonwealth ofhis 

simultaneous audio and video media. Id 

The hearing, however, was continued to May 9, 2014 pending the availability of necessary two-way 

Id. at 14, 16. Thefollowingday,April 8, 2014, a hearing was scheduled for April 11, 2014. Id. at 16. 

24, 2002. On April 7, 2014 Mr. Archie emailed this court and requested that a hearing be scheduled. 

The APPD had not sched u1ed a hearing due to the outstanding active bench warrant issued on July 

defendant was incarcerated in New Jersey following a September 22, 2002 arrest. Id at 11-12, 15. 

12, 16. His probationary term was scheduled to expire on October 17, 2006, however at that time 

convictions, which placed him in direct violation of this court's April 1 S, 2002 sentence. Id. at 11- 

Mr. Archie stated that on July 24, 2013 the APPD was notified of defendant's New Jersey 

out of state and was serving a 20 year incarceration sentence in East Jersey State Prison. Id at 11-12. 

On April 7, 2014 Mr. Archie brought to this court's attention that defendant had been convicted 

unit. Id at 24. 

bench warrant was issued, defendant's file was transferred out of the probation unit to the violation 

Circulated 06/26/2015 12:22 PM
Commonwealth v, Warren Alston 

5 

The Pennsylvania Constitution affords due process rights, which include the right to "a 

conviction and his probation violation hearing." Statement of Errors 1 a. 

under PA. R.CRIM. PROC. 708 (B) were violated by the ten (10) year delay between his new 

Defendant first asserts that his "right to due process of law and his right to a speedy hearing 

A. Defendant's Due Process and Speedy Trial Claim Lacks Merit 

IV. DISCUSSION 

denied his motion to terminate probation. Id. at 53. 

accessibility. Id at 43-45. This court explicitly rejected defendant's ''uncorroborated claim," and 

was imprisoned, he insisted that it was his detainer that prejudiced his custody status and program 

incarcerated. Id at 27, 37. Despite the self- identified ''very serious charges," for which defendant 

custody status and precluded him from befog eligible for certain jobs and programs while 

prejudicial because it prevented modification and reduction of his medium/maximum security 

contention for having this court terminate its probationary sentence was that the detainer was 

remain under New Jersey supervision for the remainder of his life. Id at 25. Defendant's sole 

the East Jersey State Prison in Rahway, NJ until 2019, at the age of 63, following which he will 

Furthermore, the Gagnon II hearing revealed that defendant will not be eligible for parole from 

terminated his case. Id 

account, that court did not conduct a revocation hearing after his New Jersey convictions, but 

the supervision of the Court of Common Pleas, Northampton County, Pennsylvania. By defendant's 

evidence presented. Id In 2002, defendant was apparently also serving a probationary sentence under 

same at the revocation hearing. Id. Thus defendant's allegation was based on facts not proven by the 

confirmation. Id at 25-26. However, he failed to present any correspondence or documentation of 

the pleadings with the Philadelphia Clerk of Courts and the District Attorney's office, and received 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

6 

jurisdiction, such that his presence could not be discovered despite the Commonwealth's due 

defendant's unavailability. Defendant, while on probation in 2002, was incarcerated in another 

two-way simultaneous audio and video media. Thus, the ten (10) year delay is directly attributable to 

following day. However, the hearing was not held until May 9, 2014, in order to obtain the necessary 

informed of defendant's New Jersey conviction on April 7, 2014, a hearing was scheduled the 

authorities did not become aware of defendant's conviction until July 24, 2013. After this court was 

Jersey, to May 9, 2014, the date of defendant's probation violation hearing. However, Philadelphia 

the length of the delay was from February 9, 2004, the date defendant pled guilty as charged in New 

hearing." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa. Super. 2009) (citation omitted). Here, 

of delay is calculated from the date of conviction or entry of guilty plea to the date of the violation 

Under the first prong of the reasonableness test, the length of the delay, "[t]he relevant period 

prejudice. 

although lengthy was reasonable under circumstances of'this specific case and defendant suffered no 

the delay; and (3) the prejudice resulting to the defendant. Jd. Applying the factors here , the delay, 

reasonableness of the delay by examining three factors: (1) the length of the delay; (2) the reasons for 

Super. 1990)( emphasis added). When a revocation hearing is delayed, the court must evaluate the 

hearing be held within a reasonable time. Commonwealth v. Saunders, 575 A.2d 936, 938 (Pa. 

708 (B)(l )( emphasis added). The Superior Court has interpreted the rule to require that a revocation 

finding of record that the defendant violated a condition of probation ... or parole. PA. R CRIM. PRO. 

as speedily as possible at which the defendant is present and represented by counsel [and there is] a 

that a trial "judge [ can]not revoke[] probation ... or parole ... unless there has been: a hearing held 

ART. I, § 9. Pertaining to violation of probation and parole hearings, Pennsylvania law establishes 

speedy public trial by an impartial jury of the vicinagc ... in all criminal prosecutions." PA. CONST. 

Circulated 06/26/2015 12:22 PM
Commonwealth v, Warren Alston 

7 

diligence. Therefore, defendant is not entitled to relief: 

Moreover, as for the second prong of the reasonableness test, the reasons for the delay, the 

delay was caused by defendant's conduct. In Commonwealth v. Short, although defendant's 

revocation hearing was initially timely scheduled, there was a 29-month delay between its original 

and actual date. Commonwealth v. Short, No. CP-01-CR-0000745-2003, 2007 WL 5004096, (Adams 

Cnty, Ct. C.P. Mar. 13, 2007). After defendantdidnotappearfor his original hearing, the trial court 

issued a warrant for his arrest. Id Unknown to the trial court, defendant had been convicted and 

sentenced to 2.5 years' incarceration in another county and there was no evidence that the 

Commonwealth or the court had any knowledge of his whereabouts. Id. Within a month of being 

made aware of defendant's whereabouts, a hearing was scheduled Id Noting that the record 

presented no indication that defendant was made available prior to the hearing date, the court denied 

defendant relief, and held that because "[ q]uick action was taken, and a hearing was completed 

within a month, the delay was caused by defendant's failure to appear, his unknown whereabouts, 

and his criminal conduct which resulted in a state sentence." Id 

Similarly, this court issued a bench warrant for defendant's arrest after he failed to appear for 

bis July 17, 2002 hearing. Unknown to this court and the Commonwealth, defendant was free in 

Middlesex County, New Jersey until his September 22, 2002 arrests which was followed by a 

sentence of 20 years' incarceration in New Jersey. However, after being notified on July 24, 2013 

that defendant was serving-a 20 year incarceration sentence at East Jersey State Prison, a hearing was 

scheduled. Thus, the Commonwealth's actions constitutes due diligence in light of defendant's New 

Jersey incarceration and his failure to maintain contact with the APPD. Even so, the most compelling 

evidence is, however, defendant's own complete acceptance of responsibility for the delay. At the 

revocation hearing defendant stated "I also take full responsibility for any lapse there may have been 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

between the time I was released and contacted the authorities. In essence I would just like to say that 

I take full responsibility for my actions." NT. 5/9/2014 at 57-58. The foregoing notwithstanding, 

. defendant asserts that the "Commonwealth failed to exercise due diligence in scheduling the 

revocation hearing ... " Defendant's claim lacks merit. 

Finally, under the third prong of the reasonableness test, the prejudice resulting to defendant, 

"[t]hequestionis whether ... the appellant was prejudiced by the delay." Woods, 965 A.2dat 1227. 

"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 1227-28 (citing Commonwealth v. Clark, 847 A.2d 122, 124 

(Pa.Super.2004)). As set forth above the delay was reasonable under the circumstances of this 

specific case. Defendant contends that he "was prejudiced by the delay by being denied access to a 

modified custody status and various programs in prison, which unnecessarily restrained his personal 

liberty." This court however fully rejects this uncorroborated assertion. 

As this court eluded to at defendant's revocation hearing, it is more likely that the nature of 

defendant's crimes determined bis custody status, and limited access to the various programs in 

prison, rather than a remote decade old Pennsylvania detainer. Here, there was no loss of essential 

witnesses or evidence, the determination of whether probation was violated was clearly based on a 

subsequent conviction, and any unnecessary restraint of personal liberty was due only to the fault of 

defendant.Therefore, .tbis .. court correctly rejected defendant's contention that the delay prejudiced 

him by denying him access to various prison programs. This court properly concluded that the delay 

was reasonable under the circumstances of this case and that defendant suffered no prejudice. 

Furthermore, defendant's argument that bis "right to due process oflaw and his right to a 

speedy hearing ... were violated by the ten (10) year delay [which] .[was] not intrinsically 

8 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

9 

"The [ standard of] review in an appeal from [ a] judgment of sentence which has been 

claim must fail. 

(5) years results in an aggregate period of imprisonment that. exceeds the statutory maximum." This 

twenty (23) months combined with the new term of incarceration of two-and-one-half (2.5) to five 

----CONS. STAT.-ANN. § 2902,.is-illegal because-the-original term-of-incarceration of time-served to 

Next, defendant claims that "the sentence imposed on the charge of unlawful restraint, 18 PA. 

B. Defendant's IJlegal Sentence Claim Lacks Merit 

deprivation of due process rights. 

direct result of defendant's conduct and where he has not been prejudiced by said delay, there is no 

Daggett, 429 U.S. 78, 97 (1976)). Clearly, where a probation revocation hearing is delayed as a 

due process." Commonwealth v. Waters, 252 Pa. Super. 357, 359-60 (1977) (quoting Moody v. 

sentence for the conviction which constituted the parole violation does not offend the principles of 

that even instances where a revocation hearing is delayed "until after the parolee has completed the 

Commonwealth v. Ruff, 272 Pa. Super. 50, 57 (1979). Significantly, the Supreme Court has noted 

( a) written notice of the claimed violations of (probation or) parole; (b) disclosure· 

to (probationer or) parolee of evidence against him; (c) opportunity to be heard in 

person and to present witnesses and documentary evidence; ( d) the right to confront 

and cross-examine adverse witnesses (unless the hearing officer specifically finds 

good cause for not allowing confrontation); ( e) a "neutral and detached" hearing 

body ... and (f) a ·written statement by the factfinder[] as to the evidence relied on 

and reasons for revoking (probation or) parole. 

Supreme Court has identified those due process rights as encompassing: 

hearing are less than those afforded a defendant in a criminal trial." Id. at 113. Specifically, the 

(1980). The Court has held that the "due process rights of a defendant in a probation revocation 

reasonable" is unfounded. The U.S. Supreme Court has set forth the due process rights of a 

defendant in a parole revocation hearing. Commonwealth v. Honeyblue, 276 Pa. Super. 107, 113 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

10 

imposed following revocation of probation is limited to the validity of the revocation proceedings 

and the legality of the :final judgment of sentence. Commonwealth v. Sylvanus, 369 A.2d 826, 

828 (Pa. Super. 1976) (citing Commonwealth v. Gilmore, 348 A.2d 425, 427 (Pa. 1975)). 

Therefore, "it is well settled that the revocation of a probation sentence is a matter comrn.itted to 

the sound discretion of the trial court and that court's decision will not be disturbed on appeal in . 

the absence of an error of law or an abuse of discretion." Id. at 322 ( citing Commonwealth v. 

Smith, 669 A.2d 1008, 1011 (Pa. Super. 1996); Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa 

Super. 2000)). The Superior Court's examination is thus "limited to determining the validity ... 

and the authority of the sentencing court to consider the same sentencing alternatives that it had 

at the time of the initial sentencing." Commonwealth v. Hoover, 909 A.2d 321, 322-23 (Pa. 

Super. 2006). 

In Commonwealth v. Williams, defendant was originally sentenced to 11.5 to 23 months 

imprisonment and a consecutive 3 year probation term, after pleading guilty to attempted theft by 

unlawful taking, a felony of the third degree, with a statutory maximum of 3.5 -7 years. 662 A.2d 

658, 658 (Pa. Super. 1995). After serving the minimum sentence, defendant was released on parole. 

id. Sometime later, however, defendant's parole was revoked as a result of a conviction for new 

crimes, so he served the remainder of the 23 months under the original sentence and his probation 

was continued. Id. After being convicted while on parole a second time, defendant's probation was 

______ ·-- .revoked and.he.was.then sentenced to.3 . .5 .... '.7-years' imprisomnent,-the statutory maximum sentence .. - 

allowed for his original attempted theft by unlawful taking plea of guilty. Id at 658-659. There, the 

trial court however only credited defendant with time served while on the violation of probation 

detainer and not with the cumulative 23 months already served imprisoned on the original offense. 

Id. at 659. On appeal, the Superior Court found validity in the basis of defendant's claim which was 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

11 

C. Defendant's Manifestly Excessive Sentence Claim Lacks Merit 

Finally, defendant alleges that "[t]he sentence imposed ... violated the requirements of 42 PA. 

Coxs. STAT. ANN. §9721(b), in that it WdS unreasonable, manifestly excessive, and far surpassed 

what was necessary to foster [his] rehabilitative needs." This claim is also meritless. It is first 

important to note that title 4 2, section 9721 (b) of the Pennsylvania Consolidated Statutes Annotated 

specifically refers to the imposition of a sentence based on the Pennsylvania Commission on 

Sentencing. It is however well settled that in Pennsylvania "the sentencing guidelines do not apply to 

sentences imposed as a result of [a] ... revocation of probation hearing." 204 PA. Co DE § 303 .1. 

Moreover; in Commonwealthv. Coolbaugh, defendant claimed that bis violation of probation 

sentence was excessive because it was inconsistent with the sentencing code, and that the court either 

deviated from the guidelines without providing adequate reasons, or considered improper factors . 

. 770-A.2d 788, 792 (Pa, Super. Ct. 2001) ( quoting 204 PA. CODE § 303.1 (b )}--However, the Superior----··-- --- 

Court found defendant's claim without merit after noting that "[tjhe sentencing guidelines do not 

apply to sentences imposed as a result of probation or parole revocations. . . ,, Id.; See also 

Commonwealth v. Cappellini, 690 A.2d 1220 (Pa. 1997). Where defendant "challengjes] the 

discretionary aspects of sentencing, [the Superior Court] must determine whether he has raised a 

"the [trial court's] failure to credit [him] with the 23 months already served." Williams, 662 A.2d at 

659. 

Unlike the court in Williams which erred in failing to credit defendant with the time served on his 

original sentence, here, Mr. Alston's period of time served was credited againstthe2.5-5 years' term 

imposed at the Gagnon II sentencing hearing. NT. 51912014 at 60. Thus, defendant was "given credit 

for time served" after being sentenced to 2.5-5 years state confinement on the charge of unlawful 

restraint. 

Circulated 06/26/2015 12:22 PM
Commonwealth v. Warren Alston 

12 

substantial question as to whether his sentence was appropriate under the Sentencing Code as a 

whole." See: 42 PA. CONS. STAT.ANN.§ 978l(b). In Kraft the Court however emphasized that"itis 

well established that a claim of excessiveness of sentence docs not raise a substantial question so as 

to permit appellate review where the sentence is within the statutory limits." 737 A.2d 755, 757 (Pa. 

Super. Ct. 1999) (quoting Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)). 

Thus, for reasons similar to those stated above, where the sentence imposed is within the statutory 

allowable minimum and maximum range, defendant has failed to raise a substantial question that 

would permit appellate review. 

It must not be overlooked that the purpose of a probation violation hearing remains to assess 

"whether the conduct of the probationer indicates that probation has proven to be an effective vehicle 

to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct." Kates, 305 

A.2d at 708. See also Commonwealth v. Mullins, 918 A.2d 82, 86 (2007) (noting that"[ e ]ven where 

the VOP hearing record is insufficient to sustain revocation of probation, this purpose should not be 

frustrated"). For that reason, the court must "balance the interests of society in preventing future 

criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of 

prison." Del Conte, 419 A.2d at 783. 

In balancing the interests of society in preventing future criminal conduct by the defendant 

against the possibility ·of rehabilitating defendant outside of prison, this court took into account 

def cndant' s original crime. ~d the seriousness of the crimes for which he was convicted, placing him 

in direct violation of this court's probationary sentence. N. T 51912014 at 59. In the original case, on 

November 13, 2001, defendant unlawfully entered the home of his estranged wife, and despite her 

pleadings, held her hostage until he was apprehended. Id. at 52. The record evidences that this court 

properly found that for this defendant, probation was an ineffective vehicle to accomplish 

Circulated 06/26/2015 12:22 PM
Commonwealth v, Warren Alston 

13 

/t-------J~---"--~---'-------'V--H-~,,.,,:-~~ f ANDY L.V. BYRD, 1. 

November 17. 2014 

For the aforementioned reasons, this court's judgment of sentence should be AFFIRMED. 

V. CONCLUSION 

protection outweighed defendant's need for rehabilitation. Id. at 60. 

rehabilitation and an insufficient deterrent against future antisocial conduct. Thus, society's need for 

Circulated 06/26/2015 12:22 PM