Appeals from orders of Commonwealth Court, No. 227 C.D. 1971, and Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1964, No. 1671, in cases of Commonwealth ex rel. Peter L. Rambeau v. Alfred T. Rundle, Superintendent of the State Correctional Institution at Graterford, Pennsylvania, and Pennsylvania Board of Probation and Parole; Commonwealth of Pennsylvania v. Emanuel Collins.
John H. Lewis, Jr., with him Morgan, Lewis & Bockius, for Rambeau, appellant.
Leonard Packel, Deputy Attorney General, with him Curtis M. Pontz, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.
Edward Blumstein, with him Elkman, Blumstein and Block, for Collins, appellant.
Milton M. Stein, Assistant District Attorney, with him Michael R. Stiles, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jonathan Silver, Chairman Designate, and John Myers, Chairman, for amicus curiae, Prison Research Council of the University of Pennsylvania Law School.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Pomeroy. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring and dissenting opinion. Concurring and Dissenting Opinion by Mr. Justice Manderino.
Each of these cases, which were consolidated on appeal, presents a challenge to the procedures by which the Commonwealth revokes parole and recommits a parolee who has been convicted of a crime committed while on parole.
Appellant Emanuel Collins (Collins) pled guilty on October 5, 1964, to various counts of assault and battery, assault and battery with intent to ravish, and burglary. He was sentenced to a term of three to six years' imprisonment. At the expiration of his three-year minimum, Collins was paroled, but on June 11, 1970, while on parole, Collins was arrested for possession of narcotics. On November 7, 1970, he was convicted of the charge of possession of narcotics and was given a probationary sentence. On December 3, 1970, the parole board, without a hearing, recommitted Collins as a convicted parole violator and he was incarcerated to serve the three remaining years of the sentence on his 1964 conviction. He was given no credit for time spent on parole under the supervision of the Board.
Appellant Peter L. Rambeau (Rambeau) was sentenced to five to ten years as a result of convictions on various charges on May 29, 1961. The sentence was effective March 8, 1961, making the expiration dates of his minimum and maximum sentences March 8, 1966 and March 8, 1971, respectively. He was paroled on March 8, 1966, but subsequently arrested on March 1, 1967, and convicted on June 5, 1967, on another charge. He was sentenced to one to two years on that charge. As a result of that conviction, a hearing was held before one member of the parole board and Rambeau, unrepresented by counsel, was recommitted as a convicted
parole violator on July 12, 1967, and the maximum expiration date was extended to June 5, 1972. Like Collins, Rambeau was given no credit for the time spent on parole under the supervision of the Board.
Collins' case was transferred to us from the Superior Court, where he had taken his appeal from the denial of his Post Conviction Hearing Act petition challenging the parole board's action. Rambeau's case comes to us on direct appeal from the order of the Commonwealth Court dismissing the action of mandamus he brought in that court challenging the parole board's action.
Each appellant raises a challenge to the constitutionality of the Commonwealth's interpretation of the Act of August 6, 1941, P. L. 861, § 21.1, added August 24, 1951, P. L. 1401, § 5, as amended June 28, 1957, P. L. 429, § 1, 61 P.S. 331.21a, so as to deny a convicted parole violator the right to a hearing where he would be represented by counsel before his parole can be revoked.*fn1
The statute in question reads as follows: "(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had
he not been paroled, and he shall be given no credit for the time at liberty on parole. The board may, in its discretion, reparole whenever, in its opinion, the best interests of the prisoner justify or require his release on parole and its [sic] does not appear that the interests of the Commonwealth will be injured thereby. The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator."
While it is true that the statute, by its language, does not explicitly provide that convicted parole violators receive a hearing before parole is revoked, as distinguished from the hearing provided to technical parole violators by § (b) of the same statute, 61 P.S. 331.21a (b), this is not simply a question of statutory interpretation. A hearing is required before parole is revoked as a matter of constitutional due process for convicted parole violators as well as technical parole violators.
In so ruling, we now overrule our decision in Commonwealth ex rel. Thomas v. Myers, 419 Pa. 577, 581 215 A.2d 617 (1966), where we cited Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1935), for the proposition that: ". . . one on parole has no constitutional right to a hearing prior to the revocation of parole, and that whatever right exists in a particular jurisdiction derives solely from the existence of statutory provisions requiring a hearing."
The analysis contained in Escoe v. Zerbst, supra, to the effect that there is no constitutional right to a hearing upon revocation of parole because "probation or suspension of parole comes as an act of grace to one convicted of a crime," was rejected by the United States Supreme Court in its recent opinion in Morrissey and Booher v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593 (1972), where the court, per Chief Justice Burger,
held that a hearing was required before parole was revoked. As the court explained:
"As Mr. Justice Blackmun has written recently, 'This Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a "right" or as a "privilege".' Graham v. Richardson, 403 U.S. 365, 374 (1971). Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 (1970). The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 (1972). Once it is determined that due process applies the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. '[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action.' Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.
"We turn to an examination of the nature of the interest of the parolee in his continued liberty. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement to a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases the parolee faces lengthy incarceration if his parole is revoked.
"We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege'. By whatever name the liberty is valuable and must be seen as within ...