Original jurisdiction in case of Wayne Battle v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Robert B. Mozenter, for petitioner.
Robert A. Greevy, Assistant Attorney General, with him Edward G. Biester, Jr., Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers.
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Wayne Battle has filed a petition for review in the nature of mandamus challenging his detention by the Pennsylvania Board of Probation and Parole pending the disposition of new criminal charges filed against
[ 44 Pa. Commw. Page 382]
him. The parties have filed cross-motions for summary judgment and the issues are before us on briefs.
Battle was released on parole from the service of concurrent sentences for the offenses of aggravated robbery and receiving stolen goods. He was recommitted as a convicted parole violator on two separate occasions and the maximum expiration date of his sentences had been extended to June 27, 1979. On March 3, 1978, while he was once again on parole, Battle was arrested by the Philadelphia authorities on a charge of murder and on March 6, 1978, a parole violation warrant based on these new charges was filed. On March 23, 1978, a criminal preliminary hearing was conducted by a district justice at which a prima facie case was established. Battle was tried before a jury and on August 25, 1978, a mistrial was declared because the jury was unable to reach a verdict. Battle then filed a motion to dismiss the charges against him on the ground that a second trial would place him in double jeopardy. His motion to dismiss was denied by the Court of Common Pleas and his appeal from that action is now pending. In the meantime, Battle has remained detained by the Board pending disposition of the criminal charges and it is this detention which he is here challenging.
Battle contends that he is denied due process of law because he is detained without the benefit of the proper hearings. We disagree.
We first note that Battle's reliance on Pa. R. Crim. P. 1409 for the proposition that his parole cannot be revoked unless the Board has held a hearing "as speedily as possible" is totally misplaced since the comment to Rule 1409 specifically states: "This Rule does not govern parole cases under the jurisdiction of the Parole and Pardons Board, but applies only to the defendants who can be paroled by a judge. . . ." Hence, obviously, Rule 1409 has no application.
[ 44 Pa. Commw. Page 383]
Battle's other arguments are also without merit. Section 71.3(1) of the Board's regulations which appears at 7 Pa. B. ...