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JOHN K. GRELLO v. COMMONWEALTH PENNSYLVANIA (06/13/84)

decided: June 13, 1984.

JOHN K. GRELLO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of John K. Grello, Parole No. 5723-G, dated September 21, 1983.

COUNSEL

Timothy P. Wile, for petitioner.

Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 83 Pa. Commw. Page 252]

John K. Grello (Petitioner), appeals from a decision of the Pennsylvania Board of Probation and Parole (Board) recommitting Petitioner as a Technical Parole Violator (TPV). Petitioner's Petition For Administrative Review and Relief having been denied, this appeal followed.

[ 83 Pa. Commw. Page 253]

Petitioner was under parole supervision when he was arrested on new charges on January 25, 1983. Petitioner's Parole Agent, Brian D. Phillips, charged Petitioner with the following violations of parole: possession or ownership of a firearm; assaultive behavior; and consumption of alcohol.

Petitioner argues that the evidence upon which the Hearing Examiner relied and based his decision was purely hearsay, and that the Examiner's finding that good cause existed for the absence of adverse witnesses at the hearing, was in error. We agree with both contentions.

The record is replete with hearsay testimony admitted over the timely objection of Petitioner's counsel. Parole Agent Phillips recounted the testimony of two witnesses who testified before a District Magistrate concerning alleged assaults by Petitioner.*fn1 In addition, the Agent submitted a sworn affidavit of a police officer who "noticed the smell of alcohol on [Petitioner's] breath."*fn2

We note the following applicable statutory language:

(d) In technical violation hearings, as set forth in ยง 71.2 (relating to procedure for violation of parole conditions), witnesses upon whose testimony the parole revocation would be based shall appear and be subject to examination by the parolee except when the ...


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