David C. Harrison, for plaintiff.
Salvatore Cucinotta, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Judge Manderino dissents from this opinion.
[4 Pa. Commw. 197 Page 198]
This case is within the original jurisdiction of this Court and was instituted by the filing of a Complaint in Mandamus by Ellis Banks (Banks) against the Pennsylvania Board of Probation and Parole (Board) and Robert L. Johnson, Superintendent of the State Correctional Institution at Graterford, Pennsylvania.
Banks seeks an order of this Court to require the defendants to release him on parole based upon his allegations that the Board has not properly evaluated his case in determining whether or not he should be granted a parole. In addition, Banks argues that denial of parole by the Board constitutes double jeopardy and thus is in violation of constitutional strictures.
This matter had its beginning on December 31, 1964, with the commission of a murder in the City of Philadelphia. Banks was arrested in connection with this homicide on January 4, 1965, and after a full trial and appeal (in which Banks was granted a new trial), at a second trial, he plead guilty to second degree murder and was given by the trial judge, a sentence of from five to twenty years in a State penal institution. This plea and sentencing occurred more than three and one-half years after Banks' incarceration in connection with the homicide. Banks alleges that his plea of guilty to the crime of murder in the second degree was based upon an understanding that the trial judge would recommend early parole.*fn* The trial judge did write a letter
[4 Pa. Commw. 197 Page 199]
to the Board recommending Banks for a parole after his minimum sentence "provided that he behaved himself well while in confinement." Banks also alleges that his part in the homicide was that of a "lookout" rather than an actual participant in the act of killing the victim. The Commonwealth does not deny the fact that Banks stayed with the victim of the homicide at the scene, to administer to him, before the arrival of the ambulance and that the police found Banks in this position. Banks offers these circumstances surrounding the homicide as part of the basis upon which he should be given a parole after his serving the minimum five-year term.
Taking into consideration the time spent in prison, from January 4, 1965, Banks became eligible for a parole on January 4, 1970. On or about November 26, 1969, after considering Banks' application for parole, the Board refused to grant parole to Banks. On March 12, 1971, the Board again refused to grant parole. On April 28, 1971, Banks filed the complaint in the instant case. The Commonwealth has filed preliminary objections to the complaint on the ground that the complaint "fails to state a claim upon which relief can be granted."
In a case quite similar to the facts of this case, Commonwealth ex rel. Lundry v. Cavell, Warden et al., 70 Dauph. 172, 173 (1957), the court refused to issue a writ of mandamus directing the Board of Parole and the Warden of the prison to release the petitioner on parole. There the court said: "In Tanenbaum v. D'Ascenzo et al., 356 Pa. 260, 262 (1947), it is said that mandamus is extraordinary in character and is a high prerogative writ used rather as a last resort than as a common mode of redress. It lies only where the duty is ministerial and ...