McCullough v. Commonwealth

Opinion by

Judge Doyle,

This is an appeal by Howard McCullough from an order of the Pennsylvania Board of Probation and Parole (Board), which modified a recommitment order by deleting all references to a violation of technical parole condition 5c (refrain from assaultive behavior) and affirmed a prior determination to recommit McCullough to serve eighteen months as a technical parole violator and twenty-four months as a convicted parole violator for robbery.

On March 31, 1982 McCullough was arrested on various charges and' was ultimately convicted of robbery. The Board thus imposed a twenty-four month re-commitment for the convicted parole violation. The Board also imposed recommitment time for three technical parole violations. McCullough was recommitted for twelve months for violation of conditions 5c and 5b (possession of an offensive weapon) and for six months for violation of condition 6 (consumption of intoxicating beverages). McCullough petitioned the Board which, pursuant to the, mandates of Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), deleted all reference to condition 5c, but nonetheless reaffirmed the twelve-month recommitment for condition 5b only.

. McCullough contends on appeal that Rivenbark precludes his recommitment for both robbery and possession of an offensive weapon. The Board, to the contrary, maintains that recommitment was not based upon McCulloughs possession of a knife during the commission of the robbery, but üpon his possession of a knife when he was later searched by a police officer.

We have previously decided that where a technical parole violation is accomplished by the commission of a criine, the rule in Rivenbark precludes recommitment for both the technical and convicted violations. Nicastro v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 569, 518 A.2d 1320 (1986). Here, the record reflects that McCullough was found to be in possession of a weapon at some point subsequent to the completion of his criminal act. We, therefore, do not believe the Rivenbark doctrine to be applicable here. As Judge Craig of this Court stated in Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 322, 518 A.2d 327, 330 (1986):

[W]here the record before the board establishes that the recommitted parolee violated a technical parole condition independently, and separately in time, from the commission of the crime, backtime based upon that technical viola-' tion would be warranted: .

See also Nicastro; Weimer v. Pennsylvania Board of Probation and Parole, 103 Pa. Commonwealth Ct. 180, 519 A.2d 1103 (1987).

Accordingly, we hold that the Board acted properly in ordering the recommitment for a violation of condition 5b. Petitioner does not in. his brief argue that the twelve-month recommitment was. excessive or that recommitment for violation of condition 6 was improper. These points, therefore, are waived.

Based upon the foregoing, the order of the Board is affirmed.

Order

Now, January 22, 1988, the. order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby affirmed.