J-S32010-22

J-S32011-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LANCE GREEN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1337 MDA 2021

Appeal from the Judgment of Sentence Entered September 14, 2021

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No(s): CP-35-CR-0001989-2011

COMMONWEALTH OF PENNSYLVANIA

v.

LANCE GREEN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1338 MDA 2021

Appeal from the Judgment of Sentence Entered September 14, 2021

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No(s): CP-35-CR-0002049-2011

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 06, 2023

Lance Green appeals from the judgments of sentence1imposed 

following the revocation of his probation. On appeal, we must determine 

____________________________________________

1 Because these appeals have a substantially similar procedural history and 

raise the same legal question, we consolidate them sua sponte and will 

consider them together.
J-S32010-22

- 2 -

whether Green was denied his right to a speedy revocation of probation 

hearing pursuant to Pa.R.Crim.P. 708. We conclude that Green was not 

afforded a speedy revocation of probation hearing and was prejudiced as a 

result. Accordingly, we vacate the judgments of sentence.

In March 2012, Green entered a guilty plea to one count of possession 

with intent to deliver a controlled substance at trial court docket No. 1989-

2011 (“PWID conviction”). The trial court imposed a sentence of 27 to 60 

months in prison, followed by two years’ special probation. At trial court docket 

No. 2049-2011, Green entered a guilty plea to one count of criminal use of a 

communication facility (“CUCF conviction”). The trial court sentenced Green 

to 18 to 36 months in prison, followed by two years’ special probation, to be 

served consecutive to the sentence imposed for the PWID conviction. This 

Court affirmed Green’s judgments of sentence. See Commonwealth v. 

Green, 105 A.3d 36, 1353 MDA 2012 (Pa. Super. filed June 18, 2014) 

(unpublished memorandum).

In August 2014, Green filed a pro se petition for relief pursuant to the 

Post Conviction Relief Act (“PCRA”)2 challenging the effectiveness of trial 

counsel’s representation. The PCRA court granted Green’s petition in part, 

vacating the sentence imposed for the CUCF conviction and resentencing 

____________________________________________

2 See 42 Pa.C.S.A. §§ 9541-9546.
J-S32010-22

- 3 -

Green to 3 years’ special probation, to be served consecutive to his sentence 

for the PWID conviction.

The ensuing procedural history is tortuous and, at times, contradictory.

Similarly, the certified record before us is not a model of clarity. On March 21, 

2016, Green was released on parole for the PWID conviction. The maximum 

sentence date for the PWID conviction was July 21, 2016, and Green’s 

probationary term was to start immediately upon his completion of parole. 

See Order to Release on Parole, 3/15/16. Green violated his parole in June 

2016 by failing to report. The Pennsylvania Board of Probation and Parole (“the 

Board”) declared Green delinquent and notified the Lackawanna County

Probation Department (“the Department”). From the record, it is unclear 

whether the Board issued a warrant for the parole violation.

County Probation Officer Al Munley testified that, after receiving notice 

from the Board that Green had absconded, the Department issued a capias

and bench warrant in July 2016. See N.T., 2/1/21, at 7. However, no capias

or bench warrant appears in the trial court dockets in July 2016. When asked 

about this discrepancy, PO Munley represented that he had a copy of a 2016 

bench warrant in his own case file, and it included the judge’s signature. See 
J-S32010-22

- 4 -

id. at 12-13.3 PO Munley vaguely attributed the lack of filing to a mistake in 

the Clerk of Courts office. See id. at 13.

Green remained at large. Then, in October 2016, Green was 

apprehended in Snyder County. PO Munley stated,

And I believe [Green] was picked up in Snyder County, I believe, 

he was at the Snyder County Prison in October of 2016. Due to a 

technical error, he was inadvertently released from there when 

the Parole Board took it upon themselves to get a lift order 

because they believed that the 60[-]month parole term had 

expired. Which it had, however, there was also our bench warrant 

had indicated that there was -- he was under supervision with our 

jurisdiction for the 5[-]year [s]pecial [p]robation portion of the 

sentence.

Id. at 7-8; see id. at 16 (wherein PO Munley testified that officials in Snyder 

County contacted the Board’s parole agent). PO Munley maintains the Snyder 

County Prison should have contacted the Department instead. See id. at 8.4

In February 2018, Green was arrested by the United States Marshals 

Service for unrelated federal firearms offenses. Green was held in the 

____________________________________________

3 PO Munley’s copy of the purported July 2016 warrant is not included in the 

certified record.

4 We observe that the record is somewhat ambiguous as to whether Green 

was apprehended in Snyder County based on a parole warrant or a probation 

warrant. Though the record does not reflect the filing of a bench warrant by 

the Board, the trial court’s opinion states that Green was apprehended on a 

Board retainer. See Trial Court Opinion, 3/21/22, at 4. By contrast, PO 

Munley’s testimony suggests that he believed Green was apprehended based 

on a bench warrant issued by the Department. See N.T., 2/1/21, at 14 (“I 

believe he was picked up on it [the 2016 warrant].”), 16 (stating that the 

Department initially issued the bench warrant).
J-S32010-22

- 5 -

Lackawanna County Prison from February 2018 to June 2020.5 The 

Department was unaware of Green’s incarceration at that time. See id. at 9.

PO Munley testified that in July 2020, he received a “random phone call” 

from a Pennsylvania State Police trooper who indicated that Green had arrived 

at Snyder County Prison to retrieve personal property. See id. “And the 

trooper had thought that maybe [Green] should have still been under 

supervision, so he reached out to us.” Id. According to PO Munley, he asked 

the trooper to direct Green to report to the Department. See id. Green did 

not report. See id.

On July 27, 2020, the Department issued a capias for Green’s arrest, 

alleging that Green violated the probation condition requiring him to “comply 

with Municipal, State and Federal criminal laws, as well as the provisions of 

the Vehicle, Liquor and Welfare codes.” Capias, 7/27/20; see also N.T., 

2/1/21, at 10. The capias was docketed only under the CUCF conviction. Our 

review of this document reveals that the docket number was correctly 

identified for the CUCF conviction, No. 2049-2011, but the second trial court 

docket number was misidentified as No. 1189-2011. The capias was re-issued 

on August 7, 2020.

____________________________________________

5 Green was released from prison in June 2020 after the federal firearms 

charges were withdrawn. The charges were later refiled, but Green was 

released on his own recognizance. See Trial Court Opinion, 3/21/22, at 5.
J-S32010-22

- 6 -

The Department issued a bench warrant against Green for violation of 

his probation. See Bench Warrant, 8/6/20; see also N.T., 2/1/21, at 10. The 

bench warrant is docketed only at the PWID conviction, and the warrant itself

solely identifies the PWID conviction. Green was apprehended shortly 

thereafter.6, 7

Subsequently, on September 24, 2020, the Department filed a petition 

charging Green with violations of his probation, alleging that Green violated 

the conditions requiring him to comply with criminal laws and to report to his 

probation officer. See Violation Petition, 9/24/20. The violation petition is 

docketed only at the CUCF conviction, and again, misidentifies the second 

docket as No. 1189-2011. See id. But see N.T., 2/1/21, at 10-11 (wherein 

PO Munley testified that he intended to file the violation petition at both trial 

court dockets).8

____________________________________________

6 While Green was being processed for intake at the Lackawanna County 

Prison, corrections officers recovered marijuana, cocaine, and heroin on 

Green’s person. As a result, Green was charged with several drug offenses at 

trial court docket No. 1639-2020. Green’s appeal relating to these drug 

offenses is docketed in this Court at 1339 MDA 2021.

7

In its opinion, the trial court states that it held a Gagnon I hearing on August 

31, 2020. See Gagnon v. Scarpelli, 411 U.S. 778 (1973). Neither docket 

contains an indication that Green was notified of this hearing or a notation 

that the hearing took place. However, Green does not contest this, except to 

note that the Gagnon I hearing notice only identified No. the PWID conviction.

8 We observe that the capias, bench warrant, and violation petition were 

absent from the certified record. Despite the fact that it was Green’s duty to 

provide this Court with a complete record, our Prothonotary made efforts to 

(Footnote Continued Next Page)
J-S32010-22

- 7 -

The trial court conducted a hearing on February 1, 2021. The transcripts 

from the hearing, titled Omnibus Hearing, identifies the probation revocation 

docket numbers, as well as No. 1639-2020.

9 At the start of the hearing, the 

assistant district attorney stated the parties were to discuss the omnibus 

pretrial motions Green had filed at No. 1639-2020. See N.T., 2/1/21, at 3. 

However, we observe that the arguments Green advanced in his motion to 

suppress in No. 1639-2020 are based on the arguments he presents herein.

Further, the trial court addressed Green’s pretrial motion and found him in 

violation of his probation in the same order. See Order, 6/8/21.

On September 14, 2021, the trial court revoked Green’s probation at 

both underlying trial court dockets. Under the CUCF conviction, the trial court 

sentenced Green to 18 to 36 months in prison, followed by 2 years’ probation.

Additionally, under the PWID conviction, the trial court sentenced Green to a 

consecutive term of 2 years’ probation. The trial court directed both revocation 

sentences to be served consecutive to the new sentence imposed at No. 1639-

2020.

____________________________________________

locate the missing materials. See Commonwealth v. Bongiorno, 905 A.2d 

998, 1001 (Pa. Super. 2006) (stating that “the ultimate responsibility of 

ensuring that the transmitted record is complete rests squarely upon the 

appellant and not upon the appellate courts.”). Following our Prothonotary’s 

inquiry, the trial court supplemented the record and amended the dockets.

9 The hearing transcripts were also not made part of the original certified 

record. The trial court supplemented the record based on our Prothonotary’s 

inquiry.
J-S32010-22

- 8 -

Green filed an untimely “nunc pro tunc” post-sentence motion listing all 

three docket numbers. Green did not seek permission to file a nunc pro tunc

post-sentence motion, nor did the trial court expressly grant reconsideration.

Notwithstanding, Green filed timely notices of appeal from the court’s 

imposition of his revocation sentences.

In both appeals, Green claims the trial court failed to conduct a speedy 

revocation hearing, in violation of Pa.R.Crim.P. 708. Green points to the fact 

that the Department did not file the violation petition until approximately 4 

years after the violations occurred, and approximately 2 years after his 

supervision expired pursuant to his PWID conviction.

10

 

Our review of a judgment of sentence imposed following a probation 

revocation is limited to the validity of the proceedings, the legality of the 

sentence, and the discretionary aspects of the sentence. See 

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015).

Green’s claim requires us to consider the timeliness of his revocation 

hearing. The pertinent part of Rule 708, governing hearings for violations of 

probation, provides as follows:

Rule 708. Violation of Probation, Intermediate Punishment, 

or Parole: Hearing and Disposition

* * *

____________________________________________

10 In his appellate brief for the appeal from the revocation under his PWID 

conviction, Green also raises a due process claim arising from the delayed 

revocation hearing. Based on our disposition of the Rule 708 claims, we need 

not reach this issue.
J-S32010-22

- 9 -

(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).

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. ...

In evaluating the reasonableness of a delay, the court 

examines three factors: the length of the delay; the reasons for 

the delay; and the prejudice resulting 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 determination of whether probation was 

violated, or unnecessary restraint of personal liberty.

Commonwealth v. Woods, 965 A.2d 1225, 1227-28 (Pa. Super. 2009) 

(citation omitted).

Even in cases where, as here, the revocation proceedings take place 

after the natural expiration of the probationary period,11 a defendant may be 

____________________________________________

11 We note that if Green had been found delinquent on his parole and probation 

sentences after a reasonably speedy hearing, he would have received no credit 

(Footnote Continued Next Page)
J-S32010-22

- 10 -

sentenced “if the revocation is based on a violation which occurred within the 

probationary period.” Wright, 116 A.3d at 137. Nevertheless, “the probation 

must be revoked and the sentence must be imposed within a reasonable time 

after the expiration of the probationary period.” Id.

Instantly, Green entered guilty pleas for the underlying cases in March 

2012. On March 21, 2016, Green was released on parole for the PWID 

conviction, with a maximum parole sentence date of July 21, 2016. The 

probationary terms were to start immediately upon completion of parole.

Therefore, the probation term imposed for the PWID conviction expired in July 

2018. See N.T., 2/1/21, at 16-17.

Because Green absconded from parole supervision and failed to report 

at the start of his probationary term, the failure to report violation occurred in 

July 2016. PO Munley was aware that Green had absconded from parole in 

June 2016 and was immediately aware that Green did not report for the start 

of probation. See Commonwealth v. Stancil, 524 A.2d 505, 506-07 (Pa. 

Super. 1987) (explaining that “revocation hearings must be held with 

reasonable promptness after a probation officer is chargeable with knowing 

that probation has been violated”).

____________________________________________

for the time he was delinquent. See Commonwealth v. Ortega, 995 A.2d 

879, 885 (Pa. Super. 2010), disapproved of on other grounds, 

Commonwealth v. Foster, 214 A.3d 1240, 1251 (Pa. 2019). However, in 

the absence of a court finding of a violation rendered after a reasonably 

speedy hearing, there are only allegations of delinquency. We cannot accept

the Commonwealth’s allegations as fact in the absence of such a hearing.
J-S32010-22

- 11 -

Green was apprehended and arrested on August 17, 2020, and the 

Department filed the violation of probation petition the following day. The trial 

court held a violation of probation hearing on February 1, 2021. Accordingly, 

the trial court conducted the revocation hearing more than 4 years after the 

initial violation and more than 2 years after Green’s probationary term at No. 

1989-2011 had expired. We conclude that such a lengthy delay is not 

intrinsically reasonable. See Commonwealth v. Christmas, 995 A.2d 1259, 

1263 (Pa. Super. 2010) (reviewing cases and noting that “[t]his Court has 

previously held delays of fifteen months, two years, and four years are not 

‘intrinsically reasonable.’” (citations omitted)).

We must next consider the reasons for the delay. “When examining the 

reasons for the delay, the court looks at the circumstances surrounding the 

delay to determine whether the Commonwealth acted with due diligence in 

scheduling the revocation hearing.” Christmas, 995 A.2d at 1263. The 

Commonwealth attributes the delay to Green’s “inadvertent” release from 

Snyder County Prison without notice to the Department, Green’s failure to 

report after a state trooper in Snyder County contacted the Department, and 

Green’s incarceration due to federal charges. The trial court accepted the 

Commonwealth’s explanation. See Trial Court Opinion, 3/2/22, at 11.

However, upon review, we conclude the Commonwealth did not 

sufficiently establish that the lengthy delay in holding the revocation hearing 

was reasonable. Through the testimony of PO Munley, the Commonwealth 
J-S32010-22

- 12 -

essentially shifts blame, in part, to Snyder County Prison officials for failing to 

notify the Department of Green’s whereabouts. However, the Commonwealth 

ignores the fact that the difficulty in locating Green when he was first held in 

Snyder County was largely an issue of their own creation. As we explained 

above, neither a capias nor a bench warrant was filed in 2016, and the

relevant dockets reflect multiple breakdowns in filing necessary documents 

throughout the course of this matter. Without a bench warrant present on the 

dockets or in the certified record, we cannot agree that Snyder County Prison 

bore the responsibility of notifying the Department.

Additionally, the Commonwealth states it was unaware that Green was 

incarcerated in the Lackawanna County Prison, less than 2 miles away from 

the Department office, for approximately two-and-a-half years for federal 

firearms charges. The Commonwealth makes no assertion that PO Munley 

actively attempted to locate Green during that time period. Indeed, the 

Department did not issue another bench warrant until August 2020. Finally, 

we note that in July 2020, Green in fact was in the presence of a state trooper 

and the Department did not have Green arrested, presumably due to the lack 

of an official warrant on the file for the trooper to rely upon. 

Under these circumstances, we find that the Commonwealth did not act 

with due diligence in scheduling the revocation hearing. See Stancil, 524 A.2d 

at 507 (evaluating a speedy revocation hearing claim under then-Rule 1409

where appellant’s probation was revoked for failing to report and failing to 
J-S32010-22

- 13 -

make restitution, and concluding that the Commonwealth offered no 

explanation for the delay beyond appellant’s incarceration during a portion of 

the relevant time); see also Christmas, 995 A.2d at 1263 (“[W]here 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.”); Woods, 965 A.2d at 1228 

(proceeding to prejudice prong where a 9-month delay was not explained). 

Finally, we consider whether Green was prejudiced by the delay. “There 

is no per se rule of prejudice for technical violations of the Rules of Criminal 

Procedure.” Christmas, 995 A.2d at 1263. Generally, our Court has 

interpreted prejudice as “something which would detract from the probative 

value and reliability of the facts considered, vitiating the reliability of the 

outcome itself.” Id. (citation omitted). Prejudice may also result from the loss 

of witnesses or evidence as a result of the delay. See id.; Woods, 965 at 

1228. However, this Court has also held that “in cases where probation 

revocation hearings are not held until after the expiration of the probationary 

term, a certain amount of prejudice necessarily follows from the fact of the 

expiration of that probation.” Stancil, 524 A.2d at 507.

We find that Green was presumptively prejudiced by this protracted 

delay, where his probationary term pursuant to the PWID conviction expired 

in July 2018, approximately two years before he was arrested on the only valid 

bench warrant issued in this case, and nearly two-and-a-half years before the 
J-S32010-22

- 14 -

revocation hearing. See Wright, 116 A.3d at 139 (concluding that appellant 

was presumptively prejudiced by a delay of 4 years following the probation 

violation, and the hearing occurred two-and-a-half years after her probation 

ended). We acknowledge that Green’s probationary term for the CUCF 

conviction did not expire prior to the revocation hearing; however, the alleged 

violation was based Green’s failure to report in 2016. Moreover, we conclude 

that prejudice resulted from the delay because at the time of the revocation 

hearing, the trial court was also able to consider the federal charges filed in 

2018. See Order, 6/8/21 (referring to the federal offenses in support of its 

reasons for finding Green in violation of probation). Had the initial bench 

warrant been properly filed in 2016, Green ostensibly could have been 

apprehended before he was detained on the federal charges. See Wright, 

116 A.2d at 139 (finding prejudice where a 4-year delay in conducting the 

revocation hearing affected the trial court’s revocation sentence because it 

considered subsequent convictions).

In sum, we conclude that the delay of more than four years following 

the violation for failure to report was unreasonable and not solely attributable 

to Green. Additionally, Green was prejudiced both because his probationary 

term for the PWID conviction had expired more than two years prior to the 

revocation hearing, and because the delay permitted the trial court to consider 

additional violations. Therefore, Green’s right to a speedy revocation hearing 
J-S32010-22

- 15 -

under Rule 708 was violated, and we must vacate the judgments of sentence 

imposed following the revocation of his probation.

Judgments of sentence vacated. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/06/2023