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JOSEPH GAITO v. PENNSYLVANIA BOARD PROBATION AND PAROLE (03/20/80)

decided: March 20, 1980.

JOSEPH GAITO, JR., APPELLANT,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, APPELLEE



No. 70 March Term, 1979, Appeal from Order and Opinion of the Commonwealth Court of Pennsylvania at No. 21 Miscellaneous Docket No. 2, Dismissing Appellant's Petition for Review, dated October 19, 1978.

COUNSEL

Joseph Gaito, pro se.

Robert A. Greevy, Asst. Atty. Gen., Harrisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion. Kauffman, J., did not participate in the consideration or decision of this case.

Author: Larsen

[ 488 Pa. Page 399]

OPINION

On November 18, 1976, appellant, Joseph Gaito, was paroled from the State Correctional Institution of Pittsburgh. Thereafter, on December 24, 1976, appellant's estranged wife and male companion were shot to death by an unknown assailant. Appellant was sought for questioning in relation to the incident, but efforts to locate him by police officers and appellant's parole agent proved to be unsuccessful. The Pennsylvania Board of Probation and Parole (Board) then authorized the Allegheny County Detective Bureau to arrest appellant, based upon the parole agent's belief that appellant was in violation of three conditions of parole.

On January 8, 1977, through the assistance of a confidential informant, appellant was arrested by police officers and charged with violating the Uniform Firearms Act. Appellant was given a detention hearing by a Board representative on January 17, 1977, and was ordered detained pending disposition of the criminal charges. On April 18, 1977, a jury found appellant guilty of the Firearms Law violations with which he was charged, and a sentence of two to five years imprisonment was imposed. On October 3, 1977, appellant

[ 488 Pa. Page 400]

    was transferred from a county correctional facility to the State Correctional Institution at Pittsburgh, where he was confined in the Diagnostic and Classification Center. A parole revocation hearing was held on November 10, 1977, and the Board subsequently issued an order recommitting appellant as a convicted parole violator.*fn1 The Board also determined that the time which appellant had spent in custody, prior to sentencing on the Firearm's conviction (January 8, 1977 to September 29, 1977), should be credited against the sentences from which appellant was paroled. Appellant filed a petition for review in Commonwealth Court seeking to set aside the Board order and challenging the validity of the arrest warrant issued by the Board. The Commonwealth Court sustained the Board's preliminary objections and dismissed the petition. Gaito v. Pennsylvania Bd. of Prob. and Parole, 38 Pa. Commw. 199, 392 A.2d 343 (1978). This appeal followed.

Appellant first contends that his recommitment was improper because the conviction which led to his recommitment as a convicted parole violator was based upon an illegal arrest.*fn2 Appellant contends that the Commonwealth Court erred in not inquiring into the legality of his arrest when reviewing the Board's recommitment order. We do not agree.

When reviewing a Board's recommitment order, the Commonwealth Court does not have jurisdiction to inquire into the legality of an arrest. The Commonwealth Court's scope of review is limited to determining only whether the Board ...


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