Appeal from the order of the Pennsylvania Board of Probation and Parole in case of Raymond Hossback, Parole No. 6664.
John W. Packel, Assistant Defender, Chief of Appeals Division, with him Benjamin Lerner, Defender, Defender Association of Philadelphia, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, for respondent.
Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
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Raymond Hossback (petitioner) petitions for review of the denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board) from its order revoking his parole and recommitting him as a technical parole violator.*fn1
On April 17, 1980, the petitioner, while on parole, was arrested by federal drug enforcement agents for alleged federal drug law violations. Also, on April 17, 1980, the Board lodged a detainer on him based on his arrest and on his travel outside of the area of his parole supervision. Subsequently, he was indicted on four counts with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-1194. On July 15, 1980, Judge Van Artsdalen of the U.S. District Court, ruling on a pre-trial defense motion to suppress the evidence against the petitioner, held that the federal government had failed to meet its burden under the rule of Kastigar v. United States, 406 U.S. 441 (1972), and suppressed all of the evidence against the petitioner. Judge Van Artsdalen found that under Kastigar the federal government could not prove that its evidence against the petitioner was not directly premised on, or indirectly derived from, testimony and interviews which the petitioner had given in 1977. The petitioner testified under a statutory grant of immunity*fn2 before a federal grand
[ 80 Pa. Commw. Page 346]
jury and at a federal drug trial. He also gave interviews, under an informal grant of immunity, to agents of the Philadelphia office of the federal Drug Enforcement Agency (DEA) concerning his knowledge of nationwide illegal drug activities.
On July 18, 1980, the Board conducted a final parole revocation hearing for the petitioner at which the sole evidence was the testimony of DEA Agent Miller. Miller's testimony, to which petitioner's counsel objected, concerned the same evidence which had been suppressed by Judge Van Artsdalen. The Board, on September 5, 1980, issued its order revoking the petitioner's parole and recommitting him, based on Agent Miller's testimony.
The sole question raised by the petitioner is whether the Board acted properly in revoking his parole and recommitting him on the basis of evidence which had been suppressed by the federal court because such evidence was directly premised on or indirectly derived from his immunized testimony or other information which he had supplied to the DEA.
In order to answer this question in favor of the petitioner, we would have to hold that a parole revocation proceeding is a ...