Commonwealth v. Frye

BENDER, J.,

Dissenting.

¶ 1 I respectfully dissent. As the Majority indicates in footnote 1 of its Opinion, those sentenced to two or more years’ incarceration fall under the jurisdiction of the Pennsylvania Board of Probation and Parole (the “Board”) when on parole. People sentenced to less than two years’ incarceration remain under the jurisdiction of the trial court when on parole. See Commonwealth v. Reese, 774 A.2d 1255, 1259-1260 (Pa.Super.2001). In the instant case, Appellant’s sentence was less than two years; therefore, issues of parole were within the jurisdiction of the trial court rather than the Board.3

¶2 Accordingly, the Majority’s rebanee on Cox v. Commonwealth Bd. of Prob. and Parole, 507 Pa. 614, 493 A.2d 680 (1985), is misplaced. Cox dealt with credit for time served under provisions of the Parole Act, section 331.21a, which appbes to parolees under the jurisdiction of the Board who are released on parole by the Board, but then, for some reason, violate parole and are recommitted by the Board. A parole violator convicted of another crime while on parole and under the jurisdiction of the Board “shall be given no credit for the time at liberty on parole.” 61 P.S. § 331.21a(a) (emphasis added). Section 331.21a indicates that the credit provisions in the Parole Act are appbcable only to parolees under the jurisdiction of the Board. The decision in Cox was premised on the “at liberty on parole” language in section 331.21a(a) of the Parole Act.

¶ 3 In the instant case, Appellant is not under the jurisdiction of the Board since her original judgment of sentence was less than two years. Instead, Appebant is under the jurisdiction of the trial court; ac*1066cordingly, Appellant could not rely on the credit provisions of the Parole Act, as they are applicable only to those who are under the jurisdiction of the Board.

¶4 Thus, Appellant relied on section 9760. of the Sentencing Code to support her request for credit for time served while out on parole and subject to house arrest with electronic monitoring. As the Majority noted, section 9760 reads, in pertinent part:

[T]he court shall give credit as follows: (1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1) (emphasis added). The Majority ignores the above-emphasized sentence in reaching its conclusion that Appellant is entitled to credit for time served.

¶ 5 When interpreting a statute, we turn to principles contained in the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991. United Cerebral Palsy v. W.C.A.B., 543 Pa. 544, 673 A.2d 882 (1996). We must observe the codified rules of statutory interpretation, unless doing so would result in a construction inconsistent with the legislature’s manifest intent. 1 Pa.C.S. § 1901 (“Rules of interpretation”). The principle of statutory construction known as “expressio unius est exclusion alteri-us ” holds that the mention of a specific matter in a general statute implies the exclusion of other matters not mentioned therein. Pane v. Commonwealth Dep’t of Highways, 422 Pa. 489, 222 A.2d 913 (1966). This principle is not universal in application, but is an aid that we can use in interpreting statutes to discern legislative intent. U.S. v. Pennsylvania Public Utility Comm’n, 184 Pa.Super. 380, 135 A.2d 93 (Pa.Super.1957), rev’d on other grounds, 393 Pa. 537, 143 A.2d 341 (1958). We will not apply the rule if to do so would defeat an apparent intention of the legislature. Id. “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its -provisions.” 1 Pa.C.S. § 1921(a) (“Legislative intent controls”). See also Commonwealth v. Koskey, 571 Pa. 241, 812 A.2d 509, 513 (2002) (indicating that courts must presume that legislature “did not intend provisions of its enactments to be mere sur-plusage”).

¶ 6 Giving effect to all of the provisions of section 9760(1), -I note that the first sentence indicates that credit shall be given for “all” time spent in custody and, therefore, contains more general terms than the second sentence which lists the specific instances in which credit shall be given, ie., “[cjredit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.” 42 Pa.C.S. § 9760(1) (emphasis added). Our principles of statutory construction indicate that (1) a statute must be construed as a whole, giving effect to all of its provisions; (2) the specific controls the general; and (3) the principle of expressio unius est exclusion alterius helps us to discern legislative intent. Applying these principles, I conclude that section 9760(1) permits credit only for all time spent in custody in the following circumstances: “prior to trial, during trial, pending sentence, and pending the resolution of an appeal.” Accordingly, it is my opinion that Appellant cannot rely on section 9760(1) in support of her claim for credit for time served while on house arrest with electronic monitoring *1067as a condition of parole when none of the situations enumerated in section 9760(1) apply. Appellant’s time on parole was after trial and sentencing, and no appeal was pending at the time. None of the circumstances specifically listed in the second sentence of section 9760(1) are applicable and, therefore, the trial court properly denied credit for time served. See, e.g., Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001) (plurality) (approving credit for time spent on house arrest with electronic monitoring as a motion for a new trial was pending and during the period of time defendant waited for his new trial); Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991) (approving of credit to DUI offender for time spent in alcohol rehabilitation facility following arrest but prior to entering guilty plea); Commonwealth v. Tout-Puissant, 828 A.2d 186 (Pa.Super.2003) (granting credit to defendant for time spent in pretrial confinement in an outmate program that was considered “custodial” for purposes of section 9760); Commonwealth v. Vanskiver, 819 A.2d 69 (Pa.Super.2003) (en banc) (following Justice Zappala’s approach in Chiappini under circumstances in which defendant sought credit for time served on house arrest with electronic monitoring as a condition of bail); Commonwealth v. Bowser, 783 A.2d 348 (Pa.Super.2001) (dealing with question of credit for time spent incarcerated prior to entering guilty plea); Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991) (affirming credit granted by trial court to DUI offender who spent time in alcohol rehabilitation facility as a condition of bail in order to avoid pretrial imprisonment). But see Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569, 572 (1979) (ignoring second sentence of section 9760(1) by granting credit for time spent on probation in “isolated” drug rehabilitation facility that had sufficiently restrictive rules and coercive features, e.g., participants were prohibited from leaving the facility and had to regularly be in their assigned place at any particular time); Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (holding that defendant qualified for credit on senténce imposed following probation violation for time spent in isolated and restrictive Abraxas drug rehab facility during probation where drug rehab was alternative to incarceration for young first-time drug offenders funded by grant from the Pennsylvania Governor’s Council on Drug and Alcohol Abuse).

¶ 7 Thus, I specifically take issue with the following statement in the Majority Opinion, opining that, in Cox,

the Supreme Court made no distinction between time served after sentencing and time served awaiting trial, pending sentence, or during appeals. There seems to be no logical reason for making such a distinction. If a person is in a program that is the “equivalent of incarceration,” he or she should get the same credit one would get if in state prison or a county jail.

Majority Opinion at 1064. Of course the Cox Court made “no distinction between time served after sentencing and time served awaiting trial, pending sentence, or during appeals.” See id. The Cox Court did not need to make this distinction because it was not interpreting or applying section 9760(1); rather, it dealt exclusively with application of the “at liberty on parole” language found in the Parole Act. The Parole Act has different credit provisions than section 9760, as explained above. The Majority indicates that there is “no logical reason” for excluding credit under section 9760(1) for time served on house arrest after sentencing. The Majority makes this assertion in disregard of the second sentence of section 9760(1), which plainly enumerates the specific circum*1068stances in which credit may be given. Our job is to discern legislative intent, primarily from the plain language of a statute. The Majority is overstepping its bounds by altering the plain meaning of section 9760(1) by extending credit to persons who are on parole after sentencing (with no pending appeal), even though this situation is excluded from the enumerated list of situations qualifying for credit as per the second sentence of section 9760(1). It is up to the legislature to revise the statute if their intent is for people, in circumstances similar to that of Appellant, to have credit for time served on parole under section 9760(1). For now, we should not continue to ignore the second sentence of section 9760(1). For these reasons, I would affirm the judgment of sentence.

. Accordingly, I agree with the Majority that this appeal is properly before us. I would only add that a challenge to the trial court's failure to award credit for time served involves the legality of the sentence and is, therefore, appealable as of right. Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723, 725 (1992).