Summary
In Michael, we held that in the absence of a definition of the word "weapon," under 37 Pa. Code § 63.4(5)(ii), the Board was not wrong in finding that the knife was a weapon for parole violation purposes because there was no proof that the parolee was using the knife for a legitimate purpose.
Summary of this case from GETZ v. P.A. BD. OF PROBATION AND PAROLEOpinion
September 19, 1984.
Pennsylvania Board of Probation and Parole — Parole violation — Possession of a weapon.
1. The fact that a folding knife would not be included in the definition of the word weapon found in criminal statutes or rules does not preclude the Pennsylvania Board of Probation and Parole from determining under its own regulations that possession of such a knife constitutes possession of a weapon for parole violation purposes particularly when such instrument would fall within the common dictionary definition of the term. [175]
Submitted on briefs to President Judge CRUMLISH, JR. and Judges COLINS and BLATT, sitting as a panel of three.
Appeal, No. 660 C.D. 1984, from the Order of the Pennsylvania Board of Probation and Parole in case of Robert A. Michael, Parole Number 9331-H, dated December 13, 1983.
Parolee recommitted as technical parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Appeal denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Motion for summary relief filed. Held: Board order affirmed. Motion for summary relief denied.
Timothy P. Wile, Assistant Public Defender, for Petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, LeRoy S. Zimmerman, Attorney General, for respondent.
Petitioner, while on parole, was arrested and subsequently convicted for leaving the scene of an accident. At the time of his arrest, petitioner had in his possession a folding knife, with a 3-1/2" blade. The knife was in a folded state and secured in a sheath attached to petitioner's belt. The knife in question was not concealed but rather was carried in plain view.
Subsequently, petitioner received six months back-time for the misdemeanor conviction and an additional nine months back-time for violation of general parole condition 5B, which requires that a parolee "refrain from owning or possessing any firearms or other weapons."
The instant Petition for Review and subsequent Motion for Summary Relief involve only the violation concerning the carrying of the folding knife. The petitioner argues that the folding knife is not a weapon, per se, since it also has a utilitarian purpose in addition to its use as a potential weapon.
The authority for condition 5B is found in 37 Pa. Code § 63.4(5) (ii). The Code does not define what constitutes a "weapon", nor are any other administrative regulations proffered by the Board that offer a definition of "weapon".
It is clear that under the Crimes Code the possession of such a knife would not in and of itself fall within the definition of "weapon" contained in 18 Pa. C. S. § 907(c), Commonwealth v. Moore, 259 Pa. Super. 560, 393 A.2d 967 (1978). However, it is also equally clear that the provisions of the Crimes Code and Rules of Criminal Procedure are not directly applicable to recommitment actions of the Board. Miller v. Pennsylvania Board of Probation and Parole, 78 Pa. Commw. 26, 466 A.2d 1110 (1983).
The general definition of weapon is "an instrument of offensive or defensive combat: something to fight with." Webster's Third New International Dictionary 2589 (1976). In the absence of a specific definition for the word "weapon" as found in 37 Pa. Code § 63.4(5)(ii), the Board was not wrong in ruling that the knife in question was a weapon for parole violation purposes. Furthermore, an agency's interpretation of its own regulations, unless clearly erroneous, will normally control. See Barr v. Department of Public Welfare, 62 Pa. Commw. 211, 435 A.2d 678 (1981). We are satisfied that the Board's interpretation is not clearly erroneous.
Accordingly, we affirm.
ORDER
AND NOW, September 19, 1984, the order of the Pennsylvania Board of Probation and Parole dated December 13, 1983 is hereby affirmed, and furthermore, Petitioner's Motion for Summary Relief is denied.