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ALBERT ACKERMAN v. COMMONWEALTH PENNSYLVANIA (09/30/87)

decided: September 30, 1987.

ALBERT ACKERMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Albert Ackerman, dated October 6, 1986.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief, Appellate Division, and Melaine Shannon Rothey, Appellate Counsel, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 600]

Albert Ackerman (Petitioner) appeals from a decision of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board order recommitting him to serve 58 months backtime.

The facts in this matter are not in dispute. On March 17, 1983, after having absconded from parole supervision and been declared delinquent, Petitioner committed an offense in Temple, Texas which led to his conviction of robbery by force and threats. Upon being

[ 109 Pa. Commw. Page 601]

    arrested, Petitioner was discovered to have in his possession a sock partially filled with sand. Petitioner told the arresting officer that the sock made a good weapon and that he had used it in committing the robbery.

Upon Petitioner's return to Pennsylvania, the Board held a timely violation/revocation hearing and subsequently ordered Petitioner recommitted for 40 months as a convicted parole violator*fn1 and 18 months as a technical parole violator for violating old conditions 1 (failure to report regularly to parole agent), 2 (changing residence without permission), 5 (leaving parole district without permission) and 6 (possession of a deadly weapon).*fn2 The Board found that Petitioner's possession of the sock filled with sand constituted possession of a deadly weapon in violation of Condition 6.

Petitioner contends that the Board erred as a matter of law in determining that the sock was a weapon, or, in the alternative, that, even if the sock was a weapon, the Board had no authority to recommit him as a technical parole violator for possession of the weapon in light of

[ 109 Pa. Commw. Page 602]

    our Supreme Court's decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). Petitioner does not challenge his recommitment on the ...


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