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COMMONWEALTH PENNSYLVANIA v. ROCCO CAPPIELLO (02/27/81)

filed: February 27, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
ROCCO CAPPIELLO, APPELLANT



Nos. 2447 & 1889 October Term, 1979, Appeal from the judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 695-76.

COUNSEL

Robert J. O'Shea, Jr., Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 284 Pa. Super. Page 478]

Appellant Rocco Cappiello appeals from the judgment of sentence imposed following a revocation of his probation. For the reasons which follow, we will remand for further proceedings.

On May 12, 1977, appellant appeared in the Court of Common Pleas, Montgomery County, and tendered a plea of guilty to one count of robbery. Following the colloquy, appellant was placed on fifteen years probation with a condition that he successfully complete the drug rehabilitation program at Gaudenzia House in Philadelphia. On August 10, 1979, appellant again appeared in court for a probation revocation hearing. He was found in violation of his probation in several respects, including his arrest and conviction for other robberies. Probation was revoked and a sentence of three to fifteen years imprisonment was imposed. A timely motion for modification of sentence was filed and denied. This appeal followed.

Appellant first contends he is entitled to credit for time served in custody on the robbery charge prior to his transfer to Gaudenzia House. Section 1360(1) of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1 (18 Pa.C.S.A. § 1360(1)) provides:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

See also Pa.R.Crim.P. 1406(b). Although the court below was at first unsure whether appellant should receive credit for time served prior to the commencement of his probationary term, the court later corrected itself and granted him due credit. Opinion at 4. Indeed, the Commonwealth concedes that appellant is entitled to such credit under § 1360(1)

[ 284 Pa. Super. Page 479]

    and Rule 1406(b). Since the court has since corrected whatever uncertainty existed at the time of sentencing, we merely note our agreement with the court's resolution of this issue.

Appellant also contends he is entitled to credit for time served in residence at the Gaudenzia House. In Commonwealth v. Usher, 264 Pa. Super. 435, 399 A.2d 1129 (1979) we considered whether the appellant therein was entitled to credit on his prison sentence for the term spent at Abraxis, a residential drug treatment program. Focusing on the "custody" requirement of Rule 1406(b) and the applicable statute, and examining the record wherein the nature of the Abraxis program was set forth, we found that the restraint imposed upon the appellant during his stay at Abraxis was sufficient to constitute "custody". We thus granted him credit against his term of imprisonment for the time served in Abraxis prior to his probation revocation. Accord, Commonwealth v. Mallon, 267 Pa. Super. 163, 406 A.2d ...


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