McCullough v. Commonwealth

Dissenting Opinion by

Senior .Judge Kalish:

I respectfully dissent.

The record shows that a switchblade knife was found on petitioner after he had been arrested and searched. The Board concedes that petitioner did possess a knife when he committed the robbery, but that the recommitment was based on the fact that the knife was found subsequent to the commission of the robbery and therefore was not part of the act, but instead it was a technical violation.

The record shows that in the crimes of robbery, aggravated assault and battery, and possession of an offensive weapon, a knife was used to instill fear, and that in each instance the use of the knife was a constituent element of the crime. Thus, for the act of carrying or possession of that particular knife there could be no technical violation. Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985); Massey v. Pennsylvania Board of Probation and Parole, 509 Pa. 256, 501 A.2d 1114 (1985); Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986). The Board recognized this and recommitted petitioner as a convicted violator for the robbery conviction only. He was not recommitted for the other convictions since they were constituent elements of the crime of robbery.

As to the technical violation, its resolution depends on whether the switchblade knife was the same knife used in the robbery. If it was not, then to constitute a violation, it need only be shown that the parolee was in possession of the knife and no criminal conduct is required. Hawkins v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 547, 490 A.2d 942 (1985).

There is no finding as to whether the knife found on parolee was or was not used in the robbery. That it was found on him subsequently and after a search is not probative of the issue. The Boards finding of a technical violation is not based on sufficient evidence as shown in the record.

Accordingly, I would reverse only that part of the order imposing a period of recommitment for a technical violation of condition 5(b).