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HOWARD MCCULLOUGH v. COMMONWEALTH PENNSYLVANIA (01/22/88)

decided: January 22, 1988.

HOWARD MCCULLOUGH, 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 the case of Howard McCullough, Parole No. 6112F.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief, Appellate Division, and Richard S. Levine, Appellate Counsel, for petitioner.

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

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 113 Pa. Commw. Page 21]

This is an appeal by Howard McCullough from an order of the Pennsylvania Board of Probation and Parole

[ 113 Pa. Commw. Page 22]

(Board), which modified a recommitment order by deleting all references to a violation of technical parole condition 5c (refrain from assaultive behavior) and affirmed a prior determination to recommit McCullough to serve eighteen months as a technical parole violator and twenty-four months as a convicted parole violator for robbery.

On March 31, 1982 McCullough was arrested on various charges and was ultimately convicted of robbery. The Board thus imposed a twenty-four month recommitment for the convicted parole violation. The Board also imposed recommitment time for three technical parole violations. McCullough was recommitted for twelve months for violation of conditions 5c and 5b (possession of an offensive weapon) and for six months for violation of condition 6 (consumption of intoxicating beverages). McCullough petitioned the Board which, pursuant to the mandates of Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), deleted all reference to condition 5c, but nonetheless reaffirmed the twelve-month recommitment for condition 5b only.

McCullough contends on appeal that Rivenbark precludes his recommitment for both robbery and possession of an offensive weapon. The Board, to the contrary, maintains that recommitment was not based upon McCullough's possession of a knife during the commission of the robbery, but upon his possession of a knife when he was later searched by a police officer.

We have previously decided that where a technical parole violation is accomplished by the commission of a crime, the rule in Rivenbark precludes recommitment for both the technical and convicted violations. Nicastro v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 569, 518 A.2d 1320 (1986). Here, the record reflects that McCullough was found to be in

[ 113 Pa. Commw. Page 23]

    possession of a weapon at some point subsequent to the completion of his criminal act. We, therefore, do not believe the Rivenbark doctrine to be applicable here. As Judge Craig of this Court stated in Threats v. Pennsylvania Board of Probation and ...


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