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COMMONWEALTH PENNSYLVANIA v. KEITH SMITH (10/19/87)

submitted: October 19, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH SMITH, A/K/A KEITH MUNGIN, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 2518 NOVEMBER TERM 1982.

COUNSEL

Irving W. Backman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Tamilia, Popovich and Cercone, JJ.

Author: Tamilia

[ 368 Pa. Super. Page 355]

This appeal stems from the revocation of appellant's parole and subsequent imposition of judgment of sentence of all remaining time on a sentence of time served to twenty-three months.

A review of the record reveals the following case history:

On June 10, 1983, appellant was sentenced to time served from January 28, 1983 to twenty-three months for a conviction of attempted theft by unlawful taking. His parole was due to expire on December 28, 1984. According to the probation/parole officer, the probation department placed "wanted cards" on Mr. Smith on May 11, 1984 as he had failed to report to the probation department in almost three months and he did not reside at his given address and also, according to the police, there were four outstanding warrants.

[ 368 Pa. Super. Page 356]

Appellant was arrested on November 25, 1984 for an offense which occurred on February 17, 1984. According to the police reports, "This Defendant [Appellant] in concert with other males did at point of shotgun and handgun take all employees at Center Hotel hostage and then robbed them of their personal belongings and the hotel funds. The three victims were punched, pushed, threatened and tied and/or locked up." (Violation transcript at p. 4.) On November 26, 1986, a jury found him guilty of robbery (3 counts), criminal conspiracy, possession of an instrument of crime-generally, possession of an instrument of crime-weapon, and prohibited offensive weapons. Sentencing had not taken place at the time the revocation hearing was held. Following his parole revocation, appellant was sentenced to serve the balance of the back time on the original offense. This timely appeal followed.*fn1

Appellant presents one issue for our review:

Has a violation of parole occurred when a parolee has been convicted of an offense and the parolee has filed a motion for new trial, but that motion has not yet been acted upon by the court?

Appellant's brief at "6". The sole case cited by appellant in support of his allegation, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), is not applicable to the facts here. In Linkletter, appellant was attempting to apply the exclusionary rule of Mapp v. Ohio*fn2 to his case which had been finally decided prior to Mapp. "Final" as interpreted by the Supreme Court in ...


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