*2 NIX, C.J., LARSEN, Before FLAHERTY, and McDERMOTT, ZAPPALA, STOUT, PAPADAKOS and JJ.

OPINION THE OF COURT PAPADAKOS, Justice.

This is the appeal the Commonwealth of Pennsylvania, (Board) Board of Probation and Parole from the Opinion and Order of the Commonwealth Court. That Court vacated the Board’s decision and remanded with directions that the Board recompute the backtime to be served Michael (Appellee) Threats a convicted violator and as a technical parole violator. The Common- wealth Court reversed the Board’s determination Ap- pellee violator to the extent that this finding was Appellee’s based on possession of a weapon during the commission of various robberies for was convicted.

The record this matter shows that Appellee origi- had nally been sentenced to serve a term of imprisonment of two to four years for convictions of robbery,1 burglary,2 recklessly endangering another person,3 an instrument of crime.4 The Board put Appellee on parole 1. 18 Pa.C.S. 3701. §

2. Pa.C.S. §

3. 18 Pa.C.S.

4. 18 Pa.C.S. § 907. 4, 1984, twenty- one six months February year, with Among the unserved. sentence days

six time were at that parole placed Appellee conditions of to the Board 1) change residence Appellee report that: his 2); 2) a month to (Condition Appellee report twice (Condition 3a); Appellee notify staff supervision arrest hours seventy-two staff within supervision 4) owning from or (Condition 3b); and refrain Appellee (Condition 5b). possessing weapons 25, 1985, of four Appellee was convicted February On to concurrent sen- and was sentenced robbery counts of Based on twenty years. of ten to imprisonment tences that it would the Board notified status as a Appellee’s to determine hearing conduct a to Section pursuant convicted and technical of Parole Act.5 21.1 of *3 25, 1985, Appellee stipulated hearing April At the held on parole violations the convictions and to all 1951, 21.1, 24, 6, 1941, 861, August P.L. August P.L. added § Act of 1, 28, 1957, 429, 1401, 5, § P.L. 61 P.S. 331.21a. § as amended June pertinent part: provides in section This jurisdiction of (a) Any parolee under the Violators. Convicted any penal institu- Pennsylvania released from Board of Parole the tion of the Commonwealth who, during period parole of or punishable by any delinquent parole, commits crime on while judge guilty by a or found imprisonment, which he is convicted for guilty at time jury pleads or nolo contendere or to which he or board, may, at the discretion court of record thereafter in a is so If his recommitment a violator. be recommitted as ordered, of the term to serve the remainder he shall be reentered compelled he not to serve had parolee would have been which said liberty given for the time at be no credit paroled, and he shall been parole. jurisdiction of (b) Any parolee under the Violators. Technical any penal from institu- Parole released Board of the tion in the Commonwealth lates the terms and who, parole, during period of vio- parole, than his other conditions of guilty he is convicted or found crime of which of a new commission guilty in pleads or nolo contendere jury he by judge or or to which a record, hearing before the may after be recommitted court of a board. served or recommitted, given the time be credit for he shall If he is so delinquent standing with no credit for good but time, of his serve the remainder reentered to be or sentences. sentence 14, 1985, Board entered into evidence.6 On June notified Appellee of its decision to recommit him a as convicted parole violator for the four robbery ordering full, him unexpired to serve the term of one year, six months and twenty-six days original robbery conviction before serving new sentences.

The Board also found have violated the four mentioned previously conditions of stipulated as him unexpired ordered to serve the same term concurrently as a technical violator. 10, 1985, we issued decisions in Rivenbark

On December Parole, Board Probation and 509 Pa. of 248, 501 A.2d 1110 and Massey v. Pennsylvania 509 Pa. (1985), where we held that the Board could not order a period to serve a of recommitment as a technical for an act violative of the technical terms and conditions of his parole, which also constituted a new crime has been convicted.

Not long and Massey, Rivenbark after January 1986, Appellee asked the Board to reconsider his recommit- tal as a technical violator based on our rulings Rivenbark and Massey. Appellee argued that his weapon occurred during the robberies and formed a part his robbery convictions. Since he believed his convictions were for crimes which also violated the terms of the condi- parole, tions of his Appellee asked that the Board apply Rivenbark and recompute the backtime he should serve 28, 1986, January violator. On the Board denied Appellee's us, request arguing, as it does before *4 act for which he was recommitted as a technical (possessing did not weapon) constitute a criminal 25, April hearing, Appellee following 6. At the 1985 admitted to the 1) report change violations: that he failed to in residence to (Condition 2); 2) report the Board No. that he failed to twice a month (Condition 3a); 3) parole supervision to his staff that he failed to notify parole supervision seventy-two staff within of hours (Condition 3b); 4) possessed weapons arrest and on four (Condition 5b). separate occasions 186

offense for which he was convicted. the Board concluded that Appellee could be treated as a convicted violator on the basis of the robbery and a technical violator on the basis of possessing a weapon.

An appeal was taken to the Commonwealth Court from the Board’s Court, denial. That attempt its to apply Rivenbark Massey ruled though that even the weapons violation was not co-extensive the robbery conviction, with the technical violation was accomplished by the commission of the crime and could not supply a basis for an independent recommitment. Accordingly, the Commonwealth Court re- manded for a re-determination of Appellee’s status without consideration violations. Threats v. Penn- weapons sylvania Parole, Board Probation and 102 Pa. Common- of 315, (1986). wealth Ct. 518 A.2d 327 granted petition We the Board’s for allowance of appeal because of the apparent confusion in applying statute and our Rivenbark Massey decisions.7 note that Rivenbark and Massey stand for

firstWe the same proposition, without expansion or elaboration of A principle. not may be recommitted as a technical violator for an act constituting a new crime for which he course, was convicted. Of recommit him as a convicted violator. opinions Indicative by of this confusion are various issued See, Biggs Commonwealth Court since Rivenbark. v. Parole, 187, Board Probation and 107 Pa.Commonwealth Ct. 527 of (1987); Parole, A.2d 1113 Weimer v. Pa. Board Probation and of 180, (1987); Pa.Commonwealth Ct. Pennsyl- 519 A.2d 1103 Nicastro v. Parole, 569, vania Board Probation and 102 Pa.Commonwealth Ct. (1986); Keough 518 A.2d 1320 Board Probation and Parole, 252, (1986); 95 Pa.Commonwealth Ct. 505 A.2d 378 Brewer v. Parole, Pennsylvania Probation and 96 Pa.Commonwealth Ct. (1986). attempts 507 A.2d Each case to create a new determining standard for when a conviction bars recommittal as a fact, Weimer, very technical violator. Brewer and this case have already been discredited the Commonwealth Court in Morrow v. Pennsylvania Board 114 Pa.Commonwealth Ct. where a new standard is announced for claims, analyzing merger. that of *5 alleged

Where the parole upon violation is based an act constituting convicted, a new crime of which is the Board only can resort to recommittal as a convicted parole viola- tor. Recommitment as a exposes convicted violator parolee to serve the remainder of unexpired time with- out credit for any spent time on parole requires serving out the unexpired term time on serving the new before sentences, course, subject, reparole to Board. On hand, the other parole where the condition is violated and conviction, does not result in a our legislature has chosen to treat such a technical violation under 61 P.S. 331.21a(b) gives the parolee spent credit for time while free of reposes violations and the Board discretion, in its authority, to recommit for a less period than the portion unserved sentence. Rivenbark, the subsequent firearms conviction was co-extensive with the condition possess not to firearms and a recommittal as a convicted violator was the only appropriate sanction. Massey, condition of to refrain from was

assaultive behavior. The Board found that Massey violated twice, this condition by assaulting first a store for manager and, which he was simple second, convicted of assault for his assaultive conduct in committing rape for which he also was convicted. These two technical violations stemmed from convictions for crimes of assault which were co-exten- sive with the Board imposed condition to refrain from assaultive behavior.

The Board Massey recommitted as a technical violator for acts constituting new crimes for which he was already convicted, and permitted we held that the statute Massey only be treated as a convicted violator.

In applying principles us, to the case before we must conclude that properly Appellee’s denied request readjustment for All that re- backtime. is in such cases is quired simple determination —is the also a parole violation criminal offense for which so, was convicted? If recommit as a only. convicted violator

Applying simple question to this case leads us to the condition, alia, following. Appellee inter paroled possess that he not The record shows that he any weapons. *6 possess Appellee did a knife on four occasions. not was crime, illegal possession of an he weapons convicted was of four not convicted of convicted robberies. was criminal offense that the conditions a was co-extensive with the correct in parole. Accordingly, relying Board was in of a weapon on the fact that was found him to a technical parole four occasions when it be in him recommitting violator and to serve back time. The Order of the Commonwealth Court is reversed and the Order of the Board is reinstated.

McDERMOTT, J., concurring opinion files a in which NIX, C.J., joins.

McDERMOTT, Justice, concurring. However,

I in I join majority opinion. separate- write I has missed an ly majority opportunity because believe the a certain sanction is fully to resolve the issue when appropriate. problem which best resolves this my analysis view to analogous apply merger questions

is to that which we Williams, 514 See Commonwealth v. sentencing. criminal — denied, —, cert. (1987), 108 Pa. U.S. (1988). Thus, if 2852, 101 L.Ed.2d 889 is parolee S.Ct. crime, the acts which constitute the elements convicted of a form the of a technical parole of that crime cannot basis However, sepa acts constitute separate violation.1 convictions) (or for which rate crimes violations not can form the basis of techni adjudged cal violations. understanding majority’s holding, my and with that I

1. This is agree. For example, this case Mr. Threats was convicted of not, however, four robberies. He was convicted of a weap- ons offense. Regardless of the fact that knife have been means Mr. by which Threats accomplished robberies, force necessary accomplish the the possession of the knife offense, was a distinct and a conclusion that this was a technical precluded violation was not by the convictions on the robberies.

I note with interest that the Commonwealth Court has recently adopted the approach which I am here embracing, Morrow v. Pennsylvania

114 Pa.Cmwlth. A.2d 595 I do not construe the majority opinion obviating this approach. Therefore, I believe that the Commonwealth Court and the Parole Board should continue to adhere to approach.

NIX, C.J., joins this concurring opinion. *7 Pennsylvania, Appellee,

COMMONWEALTH of LENHART, Appellant. Ronald C.

Supreme Pennsylvania. Court of

Argued Sept.

Decided Feb.