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WILLIAM J. SINWELL v. COMMONWEALTH PENNSYLVANIA (10/12/79)

decided: October 12, 1979.

WILLIAM J. SINWELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of William J. Sinwell v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

William J. Sinwell, petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Blatt

[ 46 Pa. Commw. Page 430]

William J. Sinwell (petitioner) has filed a petition for review challenging the order of the Pennsylvania Board of Probation and Parole (Board), which revoked his parole and recommitted him as a technical parole violator.

The petitioner contends that the Board unconstitutionally revoked his parole on the basis of hearsay testimony without a finding of good cause for not allowing confrontation. See Herring v. Board of Probation and Parole, 39 Pa. Commonwealth Ct. 156, 394 A.2d 1082 (1978). He also asserts that he was denied effective assistance of counsel at his revocation hearing. The Board has filed a preliminary objection in the nature of a demurrer. We must determine therefore whether or not the petitioner has stated a cause of action in his petition for review, assuming the truth of all factual averments and inferences fairly deducible therefrom, and bearing in mind that, if there

[ 46 Pa. Commw. Page 431]

    is any doubt, the preliminary objection should be overruled. See Robinson v. Department of Justice, 32 Pa. Commonwealth Ct. 77, 377 A.2d 1277 (1977).

The petitioner was charged with violating the condition of his parole that he not move from his home without the permission of his parole agent. At his revocation hearing, his parole agent testified that the petitioner's mother had informed him on October 11, 1978 that she had not seen the petitioner since October 2, 1978. While this may have been hearsay, the petitioner concedes in his petition that there was also evidence given by his parole agent that the petitioner had admitted to the agent that he "took off" on October 2, 1978 when he heard that a warrant had been issued for his arrest. The Board does not dispute the hearsay nature of his mother's statement, but argues (1) that the admission of hearsay is not per se improper and (2) that the other testimony of the agent supports the Board's charge. We must therefore determine if, on the one hand, the plaintiff has stated a cause of action and, on the other hand, he has gone too far and pleaded a defense which defeats his claim.

Both Board regulation 37 Pa. Code § 71.2(16) and the federal constitution, see Morrissey v. Brewer, 408 U.S. 471 (1972), require that a parolee be permitted to confront and cross-examine those upon whose statements the Board relies in revoking parole unless a specific finding of good cause for not allowing confrontation is made by the Board or its designee. See Kemp v. Board of Probation and Parole, 43 Pa. Commonwealth Ct. 390, 402 A.2d 708 (1979) (applying Board regulation); Herring, supra (applying constitutional standards). The right to confront and cross-examine, however, can be waived, Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (1940), and, if no objection is voiced to the introduction of hearsay evidence at a revocation hearing, a parolee cannot later

[ 46 Pa. Commw. Page 432]

    challenge its admission. See Commonwealth v. Moore, 440 Pa. 86, 270 A.2d 200 (1970). Indeed, it is not the introduction of hearsay evidence at a revocation hearing which is error but the admission of hearsay over objection and without a finding of good cause. We believe, therefore, that the petitioner cannot succeed without a plea that he objected to the admission of the hearsay evidence and that it was admitted over his objection without a finding of good cause. And, because the petitioner here has not alleged any objection to the admission of the hearsay, we believe that he has failed to state a cause of action. We also believe, however, that his proceeding pro se warrants our allowing him an opportunity to amend his petition by including such an allegation if he so desires. Accordingly, the ...


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