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ALFRED MASSEY v. COMMONWEALTH PENNSYLVANIA (12/10/85)

SUPREME COURT OF PENNSYLVANIA


decided: December 10, 1985.

ALFRED MASSEY, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, APPELLEE

No. 60 E.D. Appeal Dkt. 1985. Appeal from the order of the Commonwealth Court of Pennsylvania at No. 3551 C.D. 1983, affirming the Order of the Pennsylvania Board of Probation and Parole at No. 6596K. Opinion not reported.

COUNSEL

David M. McGlaughlin, Philadelphia, for appellant.

Robert A. Greevy, Harrisburg, for Pa. Bd. of Probation & Parole.

Arthur R. Thomas, Harrisburg, Robert B. Lawler, Asst. Dist. Atty., Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Mcdermott

[ 509 Pa. Page 257]

OPINION

We granted allocatur in this case in conjunction with Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), since the instant case involves the same issue as was presented in Rivenbark. That issue is whether the Pennsylvania Board of Probation and Parole (Board) may order a parolee to serve a period of recommitment as a technical parole violator for an act violative of the technical terms and conditions of his parole, which also constitutes a new crime of which he has been convicted.

In Rivenbark, we held that although double jeopardy protections do not preclude separate periods of recommitment as both a technical parole violator and a convicted parole violator based upon the same conduct, the statutory section authorizing recommitment of technical violators, 61 P.S. ยง 331.21a(b),*fn1 unambiguously expressed the legislative

[ 509 Pa. Page 258]

    intent that the Board not recommit a parolee as a technical violator based upon an act constituting a new crime of which he has been convicted. Having expressed in Rivenbark our reasons for so deciding the issue, we avoid duplication of that discussion and simply analyze the applicability of our holding in Rivenbark to the facts of this case.

Appellant was sentenced to a term of imprisonment of one to seven and one-half years on June 3, 1976, for the crime of rape. He was paroled on May 8, 1977, at the expiration of his minimum sentence. On May 26, 1982, appellant was convicted in the Court of Common Pleas of Philadelphia of rape*fn2 and attempted involuntary deviate sexual intercourse.*fn3 The next day, after another trial involving a separate incident, appellant was convicted of simple assault,*fn4 theft by unlawful taking or disposition*fn5 and robbery.*fn6 He was sentenced for these crimes on April 26, 1983.

Following a parole revocation hearing held on March 19, 1984, the Board recommitted appellant as a convicted parole violator for the entire unexpired six and one-half year term of his 1976 rape conviction. Simultaneously, the Board recommitted appellant as a technical parole violator for a term of eighteen months for violation of term and condition 5(c) of his parole*fn7 -- failure to refrain from assaultive behavior. This recommitment as a technical violator was founded upon two separate breaches of term and condition 5(c). The first was his assault of a store manager after having been

[ 509 Pa. Page 259]

    caught by the manager and a security guard trying to steal goods from the store. This assault led to his conviction for simple assault and supplied a necessary element to his robbery conviction. The second breach of term and condition 5(c) was appellant's assaultive conduct in committing the rape for which he was convicted in May of 1982.

Thus, the record clearly indicates that appellant was recommitted as a technical violator for acts constituting new crimes for which he was convicted. As we held in Rivenbark, such recommitment is beyond the authority which the General Assembly has granted the Board. Id., 509 Pa. at 255, 501 A.2d at 1114.

We reverse that part of the order of the Commonwealth Court affirming the Board's recommitment of appellant as a technical violator,*fn8 and vacate that part of the Board's order imposing a period of recommitment as a technical violator.

Disposition

Reversed in part, Vacated in part.


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