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NATHANIEL NELSON v. COMMONWEALTH PENNSYLVANIA (04/18/78)

decided: April 18, 1978.

NATHANIEL NELSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Nathaniel Nelson v. Commonwealth of Pennsylvania, Board of Probation and Parole.

COUNSEL

Joan Saltzman, Assistant Defender, with her John W. Packel, Assistant Defender, Chief, Appeals Division, and Benjamin Lerner, Defender, for petitioner.

Robert A. Greevy, Assistant Attorney General, with him Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge DiSalle.

Author: Disalle

[ 35 Pa. Commw. Page 24]

This is a petition for review filed by Nathaniel Nelson (Nelson) requesting us to set aside the determination of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical parole violator, and to release him from custody and restore him to parole on the street. By order dated October 27, 1977, we granted Nelson's motion for expedited review. The Board has raised preliminary objections in the nature of a demurrer.

Such a preliminary objection admits as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom, but not the pleader's conclusions or statements of law. Robinson v. Department of Justice, 32 Pa. Commonwealth Ct. 77, 377 A.2d 1277 (1977). On October 11, 1972, Nelson was convicted of voluntary manslaughter and sentenced to three and one-half months to ten years at a state correctional institution. The effective date of that sentence was May 29, 1971. Nelson was paroled on December 30, 1976. He was arrested on July 17, 1977, and charged with aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. Subsequently, these charges were dismissed, since the complainant, Nelson's brother, did not wish to press them. The Board lodged a warrant against Nelson on July 19, 1977. A preliminary hearing before a State Parole Hearing Examiner was afforded him on July 29, 1977.

[ 35 Pa. Commw. Page 25]

At the preliminary hearing, Nelson was charged with technical parole violations of (1) failing to maintain employment, (2) possession of a deadly weapon, and (3) overt behavior of a dangerous and threatening nature. Nelson claims that evidence only as to the latter two charges was presented and that this evidence consisted solely of hearsay and his own statement that he stabbed his brother in self-defense. He also states there was no court stenographer present.

A revocation hearing before a Parole Board Hearing Officer was held on August 16, 1977. Again, no court stenographer was present, although the hearing was tape-recorded by the Hearing Officer. Nelson contends that a transcribed copy of the tape of the hearing has not been made available to him. The Board determined, on September 28, 1977, that violations of possession of a deadly weapon and overt behavior of a dangerous and threatening nature had been established and that Nelson be recommitted as a technical parole violator.*fn1

Nelson's contention that a stenographic record be required at preliminary and revocation hearings in order not to preclude him from a meaningful appeal is devoid of merit. Recently, in Bunner v. Board of Probation and Parole, 32 Pa. Commonwealth Ct. 483,

[ 35 Pa. Commw. Page 26379]

A.2d 1368 (1977), we had the opportunity to address this issue. We stated there, and Nelson advances no new authority or argument that would lead us to decide differently here, that in the absence of any Board regulations, we are unable to discern anything in ...


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