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LEROY ZIMMERMAN v. COMMONWEALTH PENNSYLVANIA (06/18/84)

decided: June 18, 1984.

LEROY ZIMMERMAN, 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 case of Leroy Zimmerman, Parole No. 8442-K.

COUNSEL

Timothy P. Wile, Assistant Public Defender, 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.

President Judge Crumlish, Jr. and Judges Colins and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 283]

Leroy Zimmerman, petitioner, appeals here a decision of the Pennsylvania Board of Probation and Parole (Board) which ordered that he be recommitted as a technical parole violator for transgressing special conditions of parole: i.e., (a) leaving the Allentown Parole District without prior written permission, and (b) consuming intoxicating beverages.

On September 14, 1976, Zimmerman was convicted of third-degree murder and sentenced to four to fifteen years imprisonment. He was subsequently paroled on April 29, 1983 subject to the above-mentioned conditions. Thereafter, on April 30, 1983, he was driving an automobile in Schuylkill County, which is within the Allentown Parole District, when, as he alleges, he made a wrong turn and, inadvertently, crossed his parole district boundary by entering Northumberland County, where he was subsequently involved in a one-car vehicular accident. The local authorities, the Mount Carmel Township Police, arrived at the scene of the accident and, upon noting the smell of alcohol

[ 83 Pa. Commw. Page 284]

    on Zimmerman as well as his slurred speech, placed him under arrest. He was then transported to Shamokin General Hospital, where, after being advised of his Miranda rights, he refused to take a blood alcohol test. He was subsequently charged with violating the aforementioned conditions, and recommitted as a technical parole violator. After a Petition for Administrative Review and Relief was denied by the Board, the instant appeal ensued.

Zimmerman raises two issues in this appeal: (a) that the Board erred in allowing the testimony of a Mount Carmel policeman concerning a statement made by Zimmerman to the attending physician at Shamokin General which referred to his alcoholic consumption on the day of the accident, because the statement was taken in violation of his Miranda rights, and, (b) that the Board erred in concluding that Zimmerman violated his parole condition concerning leaving the Allentown Parole District because they failed to prove that he intended to do it.

Our scope of review, of course, is limited to determining whether or not the adjudication is supported by substantial evidence, is in accordance with the law, and is observant of petitioner's constitutional rights. Washington v. Board of Probation and Parole, 73 Pa. Commonwealth Ct. 432, 458 A.2d 645 (1983).

The Board concluded that Zimmerman violated his technical parole condition concerning alcoholic consumption based upon the testimony of a Mount Carmel policeman, who testified that he overheard Zimmerman state to the attending physician at Shamokin General that he drank four or five shots of whiskey prior to the accident. Zimmerman contends that this statement was taken in violation of his Miranda rights. We ...


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