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filed: April 14, 1989.


Appeal From Order Entered December 21, 1987, Court of Common Pleas, Criminal Division, Philadelphia County No. 85-05-2302-05


Norman Gross, Assistant District Attorney, Philadelphia, for the Com., appellant.

Leonard D. Sosnov, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, Brosky and Montemuro, JJ.

Author: Cavanaugh

[ 384 Pa. Super. Page 120]

This is an appeal by the Commonwealth from an order of the lower court granting appellee-William Romolini's petition for parole. The Commonwealth contends that the granting of parole was error since appellee had not yet begun to serve his sentence at the time parole was granted. It argues that the lower court erroneously relied upon calculations provided by prison authorities concerning appellee's minimum release date.

The order in question was entered by the Honorable Albert W. Sheppard, Jr. on December 21, 1987. It granted parole to appellee, effective July 2, 1987, upon a judgment of sentence rendered on April 15, 1986. The Commonwealth filed a timely appeal.

Appellee has a lengthy criminal record, which includes contacts with the criminal justice system beginning at the age of nine years and a history of drug abuse. He was twenty-five years old at the imposition of the instant sentence and had received nine juvenile adjudications, two adult convictions, and had several outstanding matters both in Pennsylvania and New Jersey.

On October 23, 1985 appellee began to serve a sentence for burglary imposed by the Honorable Theodore S. Gutowicz. Subsequently, on November 6, 1985, he was found guilty of the offenses charged in the instant case*fn1 by Judge Sheppard. Sentence was deferred pending preparation of a presentence report. On January 2, 1986, Judge Sheppard sentenced appellee to eleven and one-half to twenty-three months imprisonment in the county prison to be served consecutively to the sentence of Judge Gutowicz.*fn2 After

[ 384 Pa. Super. Page 121]

    the Commonwealth filed a petition for modification, Judge Sheppard vacated the sentence on January 16, 1986, and the matter was subsequently heard on April 15, 1986. At that time, Judge Sheppard reimposed the original sentence of January 2nd.

On April 8, 1986, appellee appeared before the Honorable Herbert P. Cain for a violation of parole hearing on yet a third case. Judge Cain found appellee to be in violation of parole and ordered appellee to serve the remainder of his sentence, which was twenty months and fourteen days in the county prison. At the time of the reconsideration hearing on April 15, 1986, before Judge Sheppard, defense counsel informed the court of the action taken by Judge Cain at the violation of parole hearing.

On December 24, 1986 appellee was paroled on the sentence imposed by Judge Gutowicz. Nearly a year later, on December 10, 1987, appellee filed a petition for parole upon the instant sentence of Judge Sheppard. Hearings were held on December 17 and 21, 1987. Judge Sheppard, in reliance upon calculations supplied by the county prison authorities, determined that appellee's minimum parole date was July 2, 1987, and, consequently, he granted parole effective that date. Judge Sheppard made clear on December 21st that he considered the computations of the prison authorities to be binding upon him since their preparation was a function of the executive branch of government.

In his opinion dated March 3, 1988, Judge Sheppard repeats the proposition that the doctrine of separation of powers requires his acceptance of the prison authorities' minimum release date:

It was proper for this Court to rely upon the "minimum parole date" calculated by the Philadelphia County prison authorities. Indeed, this Court believes that it would have been inappropriate, on the basis of these pleadings and matters of record, to make an independent evaluation

[ 384 Pa. Super. Page 122]

    of the applicable "parole date" and unilaterally overrule the prison authorities.

In this regard, it is important to recognize that this Court was not presented with a Writ of Mandamus to compel the Philadelphia County prison authorities to recompute the manner in which defendant was to serve the balance of the two sentences, as was the situation in Com. v. Ferrer, 319 Pa. Super. 152, 465 A.2d 1275 (1983). Instead, here, before the Court was simply defendant's Petition for Parole, asking that parole be granted based upon those calculations prepared by the prison authorities. The undersigned submits that, under such circumstances, it would have been a violation of the separation of powers for this Court to substitute unilaterally its thinking for that of the executive branch, that is, the prison authorities.

The Commonwealth did not present any authority to substantiate its contention that this Court had the power conferred upon it to so act in the context of this case.

The Pennsylvania Constitution separates the powers to be exercised by officials into three categories. It provides: "The legislative power of this Commonwealth should be vested in a General Assembly . . ." Article II, Section 1; "The Supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed . . ." Article IV, Section 2; and "The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court" and other designated courts and justice of the peace. Article V, Section 1. By specifically designating where each of these three powers is vested, the Constitution separates each from the other. The efficient operation of government depends upon each branch cooperating with the other.

Lower Court Opinion, at 5-6.

On appeal, the Commonwealth argues that appellee could not be legally paroled on July 2, 1987, on the Sheppard sentence until the termination of the Cain sentence on

[ 384 Pa. Super. Page 123]

December 22, 1987. It cites a prohibition against the concurrent service of backtime and front-time sentences as the basis for a finding of error by Judge Sheppard. Since the Cain sentence was imposed on April 6, 1986, it precedes, therefore, the Sheppard sentence imposed on April 15, 1986. As such, until Judge Cain's sentence was served in its entirety, appellee could not commence serving Judge Sheppard's sentence. ...

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