For the Defense - Volume 1, Issue 3 - 2016 - 30

8. 9. 10. 11. 12. 13. 14. 15. without stating reasons, is an appropriate exercise of that discretion. Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. Commw. 2016)(en banc), petition for allowance of appeal granted at 56 MAP 2016 (May 23, 2016) (The issue is: "Did the Parole Board abuse it discretion by summarily denying petitioner credit against his maximum sentence for time that he spent at liberty on parole following his recommitment as a convicted parole violator?"). In contrast, a parolee revoked for a technical violation "shall be given credit for the time served on parole in good standing." 61 Pa. C.S. §6138 (c)(2). E.g., Riddle v. W.C.A.B., 981 A.2d 1288, 1291 (Pa. 2009) (word "shall" in statute imposes mandatory duty). See, e.g., Commonwealth v. Bigelow, 399 A.2d 392, 395 (Pa. 1979)("word of exception 'unless' . . . is a proviso" placing burden on party to prove facts to establish exception). 1 Pa.C.S. §1903(b). See, Greenholtz v. Inmates of Nebraska, 442 U.S. 1, 11-12 (1979); Board of Pardons v. Allen, 482 U.S. 369 (1987); Crump v. Lafler, 657 F. 3d 393, 399 (6th Cir. 2011). Commonwealth v. Scott, 698 A.2d 32 (Pa. 1997). Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 364 (1998). 61 P.S. §6153; 42 Pa.C.S. §9912; and 42 Pa. C.S. §6304; see also, In Re: J.E., 937 A.2d 421 (Pa. 2007) (search of juvenile's person and home without reasonable suspicion violated 42 Pa. C.S. §6304 and the Fourth Amendment). Commonwealth v. Johnson, 86 A.3d 182, 188 (Pa. 2014) (holding under Article I, § 8 that suppression is mandated where defendant was arrested on an expired arrest warrant, and refusing to adopt United States Supreme Court's Fourth Amendment 16. 17. 18. 19. 20. "good faith" exception). See, Commonwealth v. Khiri Arter, 63 MAP 2015.The allocatur grant in Khiri Arter was this: Whether the Superior Court erred in upholding the Revocation Court's denial of Petitioner's motion to exclude evidence obtained in violation of the Petitioner's privacy rights under Article I, Section 8 of the Pennsylvania Constitution? See, Order (July 28, 2015). See generally, e.g., Morrissey v. Brewer, 408 U.S. 471, 477 (1972)(due process requires proof that "the parolee has in fact acted in violation of one or more conditions of his parole"); Wagner v. Pennsylvania Board of Probation and Parole, 498 A.2d 1007, 1009 (Pa. Commw. 1985)("fashioning of a condition over which a parolee would have no control would amount to an abuse of this (Board's) authority."). Fehnel v. Pennsylvania Board of Probation and Parole, 2011 WL 10893887 (Pa. Commw. 2011) (unreported memorandum opinion)(revocation as a result of a program discharge reversed because specific conduct allegedly justifying discharge not adequately proven); Hudak v. Pennsylvania Board of Probation and Parole, 757 A.2d 439, 441-42 (Pa. Commw. 2000) (where discharge from program was for medical reasons parolee not shown to be somewhat at fault, therefore revocation not justified); see also, Commonwealth v. Heilman, 876 A.2d 1021, 1028 (Pa. Super. 2005) (determination whether discharge from treatment program justified revocation could not be made "since the (probation) court failed to inquire [into] the specific reasons for his discharge"). E.g., Commonwealth v. Brown, 469 A.2d 1371, 1373 n.2 (Pa. 1983); Commonwealth v. Del Conte, 419 A.2d 780, 781 (Pa. Super. 1980). Commonwealth v. Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). About the Author Len Sosnov practices pre-trial, appellate and post-conviction law in Pennsylvania. He formerly was a professor at Delaware Law School, where he taught courses in criminal law, criminal procedure, and evidence. Before teaching at Delaware Law School, he was a staff attorney at the Defender Association of Philadelphia and served as Chief, Law Reform Unit. He has co-authored a book on Pennsylvania Criminal Procedure and written law review articles on state and federal constitutional criminal procedure issues. Mr. Sosnov is a cum laude graduate of Harvard Law School. 30 For The Defense | Vol. 1, Issue 3 Share this article

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016