decided: February 16, 1979.
COMMONWEALTH OF PENNSYLVANIA
VAUGHN B. GREENLEE, APPELLANT
No. 1874 October Term, 1977, Appeal from the Order of Cirillo, J., dated May 24, 1977, dismissing defendant's Post-Conviction Hearing Act Petition in the Court of Common Pleas of Montgomery County, at No. 48 April Term, 1973, and No. 5498 October Term, 1975.
Vincent A. Couchara, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, for Commonwealth, appellee.
Cercone, Spaeth and Lipez, JJ.
[ 263 Pa. Super. Page 479]
On May 17, 1974, appellant was sentenced to three to twenty-three months in Montgomery County Prison after pleading guilty to charges of receiving stolen goods and conspiracy. He was released on parole on August 18, 1974. On December 6, 1975, appellant was arrested and charged with burglary. On January 16, 1976, a parole revocation hearing was held on the burglary charge and on various technical parole violations. Appellant was found in violation of his parole and was sentenced to serve the balance of his original sentence. He then pleaded guilty to the burglary and a related charge, and was sentenced on that conviction to two to four years' imprisonment. Appellant was sent to the State Correctional Institution at Graterford to serve his sentence.
Appellant filed a Post-Conviction Hearing Act (PCHA) petition alleging that the sentence was illegal because he had been ordered to serve the burglary sentence before completing his original sentence. The PCHA hearing court
[ 263 Pa. Super. Page 480]
found that the order committing appellant to prison for the parole violations clearly indicated that the sentence therefor was to precede the burglary sentence.*fn1 The PCHA court therefore ordered, on May 24, 1977, that the records at Graterford be corrected to indicate that appellant was first to serve the balance of his original sentence and then begin the burglary sentence. The order dismissed the petition without any other relief. Appellant does not argue this issue on appeal, and in fact agrees that the court was correct:
[T]he order of the lower court of January 16, 1976, was clear that the sentences were to be consecutive and that sentence for the parole violation was to precede the sentence for the new criminal offense."
Appellant's brief at 5.
Appellant asserts, by new court appointed counsel, on this appeal that his PCHA hearing counsel was ineffective for failing to move to amend the PCHA petition (which appellant had personally completed and filed) in order to allege ineffectiveness on the part of appellant's parole revocation hearing counsel on the grounds that that attorney had failed to object to the introduction, in the course of the revocation hearing, of alleged hearsay evidence concerning the burglary charge.
The standard to be applied in any consideration of alleged ineffectiveness of counsel is found in the following frequently-cited passage:
[Counsel's] assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives
[ 263 Pa. Super. Page 481]
were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.
Cmwlth. ex rel. Washington v. Maroney, 427 Pa. 599, 604-5, 235 A.2d 349, 352 (1967). We can discern no reasonable basis for the failure of PCHA counsel to move to amend the PCHA petition, which had been filed pro se by appellant, in order to assert a claim that parole violation hearing counsel had been ineffective for failing to object to certain hearsay testimony at the parole hearing. The record of the parole hearing alone makes out a prima facie case for a finding of ineffectiveness on the part of parole hearing counsel. At that hearing, evidence was adduced by the Commonwealth concerning both appellant's technical violations*fn2 and alleged new criminal offenses. Appellant admitted the technical violations under direct examination,*fn3 but did not testify regarding the burglary. The only evidence regarding the burglary was presented by the testimony of a police detective. The portions of this testimony that tended to inculpate appellant were entirely hearsay.*fn4
[ 263 Pa. Super. Page 483]
Revocation of parole because of a subsequent criminal conviction requires service of the remainder of the whole original term of imprisonment, without credit for time at liberty on parole ("street time"). See United States ex rel. Heacock v. Myers, 251 F.Supp. 773 (E.D.Pa.1966), aff'd, 3 Cir. 367 F.2d 583, cert. denied, 386 U.S. 925, 87 S.Ct. 900, 17 L.Ed.2d 797, Com. ex rel. Thomas v. Myers, 419 Pa. 577, 215 A.2d 617 (1966). Revocation based on a technical violation of parole term requires that credit be given for "street time" passed in good standing only. 61 P.S. § 331.21a (1964). See Bunner v. Board of Probation and Parole, 32 Pa. Commw. 483, 379 A.2d 1368 (1977).
In the instant case, at the parole revocation hearing, the court revoked appellant's parole and allowed no credit for "street time." Such a sentence would be lawful only if a criminal violation were shown at the hearing. Since the only evidence of a criminal offense presented at the parole revocation hearing was hearsay not admissible under any exception, it follows that, had the testimony been objected to and excluded, the revocation court would have been required to consider whether appellant was entitled to credit for street time and, if so, how much credit was to be applied against the sentence of recommittal. See 61 P.S. 331.21a;
[ 263 Pa. Super. Page 484]
revocation is based solely on technical violations, the court should determine the amount of "street time" the appellant is entitled to and amend the sentence accordingly.
Remanded for proceedings not inconsistent with this Opinion.