Original jurisdiction in case of Stanope Tyrone Pugh, a/k/a Tyrone Pugh Johnson v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Stanope Tyrone Pugh, a/k/a Tyrone Pugh Johnson, petitioner, for himself.
Robert A. Greevy, Assistant Attorney General, with him Edward G. Biester, Jr., Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Crumlish, Jr. Judge MacPhail concurs in the result only.
By an Order of January 17, 1979, the petition for review of Stanope Tyrone Pugh, a/k/a Tyrone Pugh Johnson, petitioner, was treated as one addressed to our original jurisdiction. Pennsylvania Rules of Appellate Procedure and Section 761 of the Judicial Code, 42 Pa. C.S. § 761.
For our consideration is the petition for review, preliminary objections in the nature of a demurrer filed by the Pennsylvania Board of Probation and Parole (Board). The certificate of the Chairman of the Board, submitted pursuant to Section 8 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.8, and petitioner's traverse response to the certificate, as well as briefs in support of the issues, are a part of the record.
In June, 1968, petitioner was ordered to serve three concurrent three to ten year terms for felony convictions.*fn1 Completing the minimum sentence, he was paroled May 3, 1971. In the next six months, petitioner was arrested five times by the Philadelphia police for various criminal incidents. After the fourth arrest, he was released on bail and continued under parole supervision until the fifth arrest on November 22, 1971, for bail violation. Bail was revoked and a parole violation warrant was filed charging him with technical parole violations. Two of the aforesaid arrests resulted in convictions after which his status was changed to convicted parole violator. When, on May 7, 1973, he was sentenced to two to four years, his back time was calculated to be seven years and the original maximum term of his June, 1968 sentence was modified to read May 7, 1980. On the second conviction, he was sentenced to a concurrent one to three year sentence to follow completion of his arrest sentence. On May 30, 1975, he reentered a state institution to serve his two to four year term concurrent with the one to three year term. After the minimum term was completed, he was paroled from the concurrent sentences on May 27, 1976.
Petitioner again went afoul of the Philadelphia authorities on June 1, 1977, when he was arrested and charged with bank robbery and conspiracy. He was found guilty of conspiracy and sentenced in Federal District Court to five years in a federal institution where he is presently in residence.
Petitioner initially contends that the time spent in custody pursuant to the Board's detainer order prior to sentencing on new charges should credit against the
original sentence. We have held that this is so only where the convicted parole violator was eligible for bail, had met the requirements for the new offense, and had remained incarcerated solely on the lodged detainer warrant. Rodriques v. Pennsylvania Board of Probation and Parole, 44 Pa. Commonwealth Ct. 68, 403 A.2d 184 (1979). See also Davis v. Cuyler, 38 Pa. Commonwealth Ct. 488, 394 A.2d 647 (1978), and Mitchell v. Pennsylvania Board of Probation and Parole, 31 Pa. Commonwealth Ct. 243, 375 A.2d 902 (1977). So here, the credit was properly applied to the new sentence because Board records show his ...