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COMMONWEALTH PENNSYLVANIA EX REL. BARRY SALTZBURG v. THOMAS A. FULCOMER (03/07/89)

filed: March 7, 1989.

COMMONWEALTH OF PENNSYLVANIA EX REL. BARRY SALTZBURG
v.
THOMAS A. FULCOMER, SUPERINTENDANT HUNTINGDON PRISON. APPEAL OF BARRY SALTZBURG



Appeal from the Order entered March 2, 1988 in the Court of Common Pleas of Delaware County, Civil, No. 3126-81.

COUNSEL

Thomas J. McBride, Philadelphia, for appellant.

Joseph J. Mittleman, Assistant District Attorney, Media, for appellee.

Cavanaugh, Wieand and McEwen, JJ.

Author: Mcewen

[ 382 Pa. Super. Page 423]

We here consider an appeal from an order*fn1 which denied, without a hearing, the petition for writ of habeas corpus,

[ 382 Pa. Super. Page 424]

    filed by appellant in the Common Pleas Court of Delaware County, in which appellant asserted that the Pennsylvania Board of Probation and Parole and the Bureau of Corrections were holding him in confinement in violation of the equal protection and due process clauses of the United States Constitution.

Appellant was found guilty after a jury trial on October 20, 1981, and was sentenced by the eminent Judge Melvin G. Levy to serve consecutive terms of imprisonment of from three years to six years for robbery and from two years to four years for criminal conspiracy. This Court on direct appeal affirmed the judgment of sentence. Commonwealth v. Saltzburg, 324 Pa. Super. 621, 472 A.2d 1166. The Supreme Court denied the petition for allowance of appeal. Commonwealth v. Saltzburg, No. 244 E.D., 1984; July 30, 1984.

The record reveals that on December 29, 1986, appellant was transferred from the state prison at Huntingdon to a Community Service Center in Allentown. Four months thereafter, however, on April 20, 1987, appellant was, as a result of a misconduct charge, removed from the Community Service Center in Allentown and returned to prison confinement. The misconduct charge arose from a criminal complaint against appellant charging the offense of "former convict not to own firearm," 18 Pa.C.S. ยง 6105. The charge was dismissed at the preliminary hearing on October 13, 1987, as a result of the failure of the Commonwealth to establish a prima facie case. Appellant alleges that although the misconduct charge was also dismissed with prejudice, he was not returned to the Community Service Center but remained incarcerated in state prison. Appellant became eligible for parole in October of 1987. As a

[ 382 Pa. Super. Page 425]

    result, counsel for appellant undertook the following correspondence:

A letter of October 15, 1987, to appellant's counselor in the prison confirming that appellant was eligible for parole and that the misconduct charge had been dismissed with prejudice.

A letter of November 20, 1987, to the secretary for the Board of Probation and Parole confirming (1) that the delay that had occurred to that date was not due to any criminal or misconduct charges, and (2) that the Board would very shortly render a decision upon the parole status of appellant.

The Parole Board did not reach a decision when it considered appellant's application for parole, but instead, on December 8, 1987, continued the case ...


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