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COMMONWEALTH EX REL. JOHNSON v. BOOKBINDER (11/14/68)

decided: November 14, 1968.

COMMONWEALTH EX REL. JOHNSON, APPELLANT,
v.
BOOKBINDER



Appeal from order of Court of Quarter Sessions of Philadelphia County, May T., 1968, No. 46, in case of Commonwealth ex rel. Nelson Johnson, Jr. v. Saul Bookbinder, Warden.

COUNSEL

Joseph M. Smith, with him F. Emmett Fitzpatrick, Jr., for appellant.

James D. Crawford, Assistant District Attorney, with him Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 213 Pa. Super. Page 336]

Relator, Nelson Johnson, Jr. (appellant), was convicted of a crime in Philadelphia County in 1964 and sentenced to the State Correctional Institution at Camp Hill. In January, 1966 he was paroled, with three years then remaining on his sentence. Thereafter, on January 26, 1968, while on that parole, he was arrested by the Philadelphia police for another alleged crime, given a preliminary hearing before a committing magistrate, held for court, and released on $800 bail. On February 6, 1968, while free on bail, he was arrested by agents of the Pennsylvania Board of Parole as a parole violator and returned to prison where he was being held on that parole violation detainer when he filed his petition for a writ of habeas corpus. He contends that his confinement is unlawful because the Parole Board had no authority to file a detainer without first affording him a hearing on his alleged violation.

[ 213 Pa. Super. Page 337]

The lower court, acting through Hon. Charles L. Guerin, President Judge, dismissed his petition for lack of jurisdiction over the Parole Board.

Section 331.21a of the Act of August 6, 1941, P. L. 861, as amended, 61 P.S. ยง 331.21a, provides: "(b) Technical Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution in the Commonwealth who, during the period of parole, violates the terms and conditions of his parole . . . may be recommitted after hearing before the board. . . ."

In Commonwealth ex rel. Hendrickson v. Hendrick, 193 Pa. Superior Ct. 559, 165 A.2d 261 (1960), the relator also contended that he was falsely imprisoned on a charge of technical parole violation. We held therein that such questions may not be raised by habeas corpus and said at page 563, "Since appellant is in legal custody under a valid sentence, we cannot review the fairness and impartiality of the hearing before the Parole Board and the propriety of its action in recommitting appellant to prison: . . ." The only distinction between that case and the present one is that in Hendrickson the recommittance was after a hearing, whereas in the present case it is alleged in relator's petition that he was incarcerated as a technical violator without a hearing where he could be present with counsel.

In Pennsylvania one charged with being a technical parole violator is entitled to a hearing at which he may explain away the alleged violation, but such hearing is not a formal hearing with proceedings quasi-judicial in character. It (the hearing) need only be summary in character, Commonwealth ex rel. Hendrickson v. Pennsylvania State Board of Parole, 409 Pa. 204, 185 A.2d 581 (1962); and is not constitutionally required. Commonwealth v. Vladyka, 425 Pa. 603,

[ 213 Pa. Super. Page 338229]

A.2d 920 (1967); Commonwealth ex rel. Thomas v. Myers, 419 Pa. 577, 215 A.2d 617 (1966); Hutchison v. Patterson, 267 F. ...


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