Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of James Brown, No. 3221-H.
John C. Armstrong, Assistant Public Defender, with him, Scott F. Breidenbach, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins.
[ 114 Pa. Commw. Page 49]
James Morrow, a/k/a James Brown (petitioner), appeals an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment order. At issue is the interpretation of our Supreme Court's decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), potentially dispositive of the computation of petitioner's backtime in that he was simultaneously recommitted as both a technical and convicted parole violator.
We find it unnecessary to recite petitioner's criminal history at this juncture. Suffice it to say that petitioner was arrested on July 9, 1979 and charged with certain offenses related to a sexual assault. Following a hearing, he was recommitted to serve: (1) six months for violating conditions of his parole requiring that he refrain from engaging in assaultive behavior and from possessing a weapon, the latter violation now the subject of the instant appeal, and (2) forty months pertaining to his conviction of rape. Upon his request for review in light of the then newly-decided Rivenbark, the Board deleted reference to petitioner's technical violation for assaultive behavior but did not modify the duration of his backtime.
Upon appeal, petitioner presents an argument previously considered and rejected by this Court in Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986), appeal granted, 516 Pa. 624, 532 A.2d 21 (1987). He submits that because he committed rape by holding his victim at knifepoint, his possession of the knife constituted conduct for which he was subsequently convicted, such that the Board was precluded by Rivenbark from imposing a technical violation for possession of a weapon.
[ 114 Pa. Commw. Page 50]
The Board counters that Rivenbark is only applicable where the conduct comprising the technical violation is an element of the associated criminal offense as defined in the Crimes Code, 18 Pa. C. S. §§ 101-9183. Possession of a weapon is not an element of the crime of rape as so defined.*fn1 Our acceptance of its contention, as the Board concedes, would require us to overrule certain of our decisions, namely, Weimer v. Pennsylvania Board of Probation and Parole, 103 Pa. Commonwealth Ct. 180, 519 A.2d 1103 (1987), Threats and Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986), in which, the Board suggests, we have "needlessly struggled" to formulate a rule of law applicable to such cases. Indeed, the Board labels our Rivenbark progeny "strange". While we do not condone the Board's critique of our decisions in such terms, we find merit to its assertion. Our decisions may well have become unnecessarily esoteric, an evolution which we now clarify.
I. Rivenbark, Massey and Progeny
We begin our analysis with consideration of our Supreme Court's decisions in Rivenbark and its companion case, Massey v. Pennsylvania Board of Probation and Parole, 509 Pa. 256, 501 A.2d 1114 (1985). Rivenbark involved a parolee who violated a special ...