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COMMONWEALTH PENNSYLVANIA v. THOMAS MCDERMOTT (09/23/88)

filed: September 23, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS MCDERMOTT, APPELLANT



Appeal from the Judgment of Sentence of December 17, 1986 in the Court of Common Pleas of Luzerne County, Criminal Division, No. 622 of 1986.

COUNSEL

Gerald P. Deady, Wilkes-Barre, for appellant.

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com.

Beck, Kelly and Popovich, JJ. Beck, J. concurs in the result. Popovich, J. files a concurring opinion.

Author: Kelly

[ 377 Pa. Super. Page 628]

Appellant, Thomas McDermott, appeals from judgment of sentence entered following parole revocation, and separately petitions for review of an order revoking and forfeiting bail which had originally been granted pending appeal of the parole revocation. We grant the petition for review, affirm the order revoking and forfeiting bail and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On September 17, 1985, appellant pled guilty to a charge of carrying a firearm without a license and was sentenced to 10 to 23 months imprisonment with credit for time served prior to imposition of sentence. On February 15, 1986, appellant was paroled. A condition of his parole was that he conduct himself as a good citizen, abstaining from any wrongdoing, and that his behavior must not be a menace to his family or any individual, or group of individuals. (N.T. 12/17/86 at 13). He did not comply with that condition.

Late in the evening on August 3, 1986 (while appellant was still on parole), appellant gave a ride to two hitchhikers, Mary H.; age 12, and Lisa M., age 13. Appellant drove them to a nearby hotel, administered methamphetamine to both children by hypodermic syringe, and proceeded to have non-forcible sexual intercourse with Mary H.

On August 19, 1986, appellant was arrested and detained for parole violations relating to the above incidents. On September 25, 1986, an initial Gagnon I hearing*fn1

[ 377 Pa. Super. Page 629]

    was held which resulted in a determination that probable cause existed to detain appellant as a technical parole violator.*fn2

On December 17, 1986, the Gagnon II disposition hearing was held. Mary H. and Lisa M. were subpoenaed by the Commonwealth. Although neither asserted her right against self-incrimination, both initially refused to cooperate. Mary H. feigned selective memory loss. Lisa M. merely responded to questions she did not wish to answer with silence. Both were held in contempt of court and remanded to the custody of the deputy sheriff to be taken to juvenile detention. The trial court noted for the record that both had been "flippant" and "arrogant" toward the court. The disposition hearing was then held in recess for one hour and twenty minutes. (N.T. 12/17/86 at 1-11).

The hearing resumed with testimony from three adult witnesses (N.T. 12/17/86 at 12-28). Mary H. was then recalled to the stand. She proceeded to answer the questions previously evaded with assertions of selective memory loss. She testified that appellant administered methamphetamine to her by hypodermic syringe and had non-forcible sexual intercourse with her. (N.T. 12/17/86 at 29-34). Extensive cross-examination was permitted regarding her decision to testify and the testimony itself. (N.T. 12/17/86 at 34-48). Lisa M. was then recalled to the witness stand. She too elected to answer questions previously evaded. She testified that she and Mary H. had gone with appellant to

[ 377 Pa. Super. Page 630]

    his hotel room and that he had administered methamphetamine to them. She also identified and verified as a truthful account of her present recollection a prior written statement she had given the police. (N.T. 12/17/86 at 50-54). Extensive cross-examination was permitted regarding Lisa's decision to testify and the testimony itself. (N.T. 12/17/86 at 54-69). Appellant testified on his own behalf that he had given Mary H. and Lisa M. a ride on August 3, 1986, but denied every other aspect of their testimony. (N.T. 12/17/86 at 71-84).

The trial court found that appellant had administered methamphetamine to Mary H. and Lisa M. and that he had sexual relations with Mary H. on August 3, 1986. Parole was revoked and appellant was denied credit for time spent at liberty on parole. Appellant thereafter filed a timely appeal of the judgment of sentence entered following parole revocation.

On January 15, 1987, appellant filed a motion for release on bail pending disposition of his appeal from the revocation of parole. The motion alleged that appellant was entitled to bail pursuant to Pa.R.Crim.P. 4010(B)(1). A rule to show cause why appellant should not be released on bail was issued January 26, 1987. On February 10, 1987, following a hearing, appellant was released on $10,000.00 bail.

On June 10, 1987, appellant was arrested and charged with firearms violations. On September 4, 1987, appellant was arrested for a firearms offense, possession of a small amount of methamphetamine, and possession of drug paraphernalia. On September 26, 1987, appellant's bail was revoked by ex parte order. A rule to show cause why the revocation order should not be vacated was issued October 25, 1987. Following a hearing on October 26, 1987, the order revoking bail was reaffirmed. On November 6, 1987, appellant filed a petition for review of the order revoking and forfeiting bail.

I.

Under Pennsylvania law, the authority to parole convicted offenders is split between the common pleas

[ 377 Pa. Super. Page 631]

    courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987). The common pleas court retains authority over parole matters relating to offenders sentenced to maximum terms of less than two years even when the offender is confined in a state rather than county correctional facility. See Georgevich v. Court of Common Pleas, 510 Pa. 285, 285-86, 507 A.2d 812, 813 (1986). However, the common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years. See Gillespie v. Commonwealth Department of Corrections, 106 Pa. Commw. 500, 527 A.2d 1061 (1987). In fiscal year 1986-87, of the 89,411 offenders on active probation or parole only 19% were supervised by the Parole Board; twice as many parolees were under county supervision as were under supervision of the Parole Board (11.5% to 22.8%). See Pennsylvania Board of Probation and Parole, 1987 Annual Report, at 33 (Feb.1988). The extent of Common Pleas Court parole is thus greater than that of the centralized and more visable Parole Board.

There are significant differences between common pleas court parole and administrative parole. The procedures for seeking parole in the common pleas court are governed by 61 P.S. § 314; applications for administrative parole on the other hand are governed by 61 P.S. § 331.22. See Wile, supra, 58 Pa.B.A.Q. at 121-22 (outlining the similarities and differences in the procedures). Revocation procedures in the common pleas court are governed by Pa.R.Crim.P. 1409 and local rules, e.g. Phila.R.Crim.P. 910; revocation of administrative

[ 377 Pa. Super. Page 632]

    parole is governed by the detailed regulations promulgated by the Parole Board and codified at 37 Pa.Code § 71 et seq. See, Wile, supra, 58 Pa.B.A.Q. at 129-32 (outlining similarities and differences in revocation proceedings).

Appeals from common pleas court parole orders are within the exclusive jurisdiction of the Superior Court, while appeals from administrative parole orders are within the exclusive jurisdiction of the Commonwealth Court. See 42 Pa.C.S.A. §§ 742, 763(a)(1); see also Wile, supra, 58 Pa.B.A.Q. at 138. Attempts to circumvent the Commonwealth Court's exclusive jurisdiction over administrative parole matters via Post Conviction Hearing Act and habeas corpus petitions have been rejected. See Commonwealth v. Fells, 513 Pa. 18, 518 A.2d 544 (1986) (PCHA petition); Commonwealth ex rel. Biglow v. Ashe, 348 Pa. 409, 35 A.2d 340 (1944) (habeas corpus petition); Gillespie v. Commonwealth, Department of Corrections, supra (habeas corpus petition); see also Wile, supra, 92 Dickinson L.Rev. at 69-70 & nn. 362-66. Because none of the statutory provisions vesting jurisdiction in the Commonwealth Court apply to common pleas parole orders, the Commonwealth Court cannot exercise jurisdiction over such appeals (Pa.Const.Art. V, sec. 4; 42 Pa.C.S.A. § 763); thus, our jurisdiction over appeals from common pleas court parole matters is exclusive.

Though uniformity in the treatment of common pleas court and administrative parole matters might be desirable, the strict dichotomy dictated by the statutory schema enacted in Pennsylvania thwarts efforts to ensure complete uniformity. As noted above, there are material differences between common pleas court and administrative parole procedures; these differences may result in a lack of uniformity between Superior Court and Commonwealth Court decisions in parole matters even where actual conflicts (unrelated to procedural differences) do ...


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