No. 666 October Term, 1977, Appeal from the Order dated November 10, 1976, of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 3761 October Term, 1974.
Joseph R. D'Annunzio and Calvin S. Drayer, Jr., Assistant Public Defenders, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 409]
On December 10, 1974, appellant entered a guilty plea to charges of assault, disorderly conduct and threat on a public servant. He was sentenced to three to twenty-three months imprisonment for assault, and sentence was suspended on the remaining charges. After serving the minimum term, appellant was paroled. While on parole he was arrested and incarcerated as the result of five technical violations. He waived his right to a Gagnon I hearing. After a revocation hearing, parole was revoked and appellant was remanded to the Montgomery County Prison to serve the original sentence with credit for time actually served.
It is now argued that the sentence is illegal because appellant was not given credit for time served, in good standing, on parole. We disagree and affirm the lower court's order because appellant was not entitled to this credit.
Three statutes are relevant to the resolution of the question now raised. The first, the Act of August 24, 1951, P.L.
[ 258 Pa. Super. Page 4101401]
, § 5 (61 P.S. § 331.21a) was added to the Act of August 6, 1941, P.L. 861, § 21.1, as amended. Subsection b of this section provides in part that:
"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, other than by the commission of a new crime . . . may be recommitted after hearing before the board. If he is so recommitted, he shall be given credit for time served on parole in good standing but with no credit for delinquent time . . . ." (emphasis added).
By its terms, the above quoted passage deals only with parolees under the jurisdiction of the Board of Parole. The Board does not have jurisdiction over probationers and parolees sentenced to a maximum period of less than two years. 61 P.S. § 331.17. On its face, section 331.21a(b) does not apply to the instant case.
The two statutes remaining are the Act of June 19, 1911, P.L. 1055, § 10 (61 P.S. § 305), as amended ; and the Act of June 19, 1911, P.L. 1059, § 1 (61 P.S. § 314), as amended. Appellant was paroled under authority of 61 P.S. § 314, which applies to parole from county jails. Appellant argues, citing Commonwealth ex rel. Little v. Keenan, 168 Pa. Super. 125, 78 A.2d 27 (1951), that 61 P.S. ...