Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Steven Tyson, dated March 25, 1981.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 84 Pa. Commw. Page 327]
Mr. Tyson (Petitioner) appeals from an order of the Board of Probation and Parole (Board) denying him administrative relief. The Board, after a full board hearing, recommitted Petitioner as a technical parole violator to serve eighteen months back time. In its recommitment order, the Board stated that Petitioner had violated conditions 2, 9 and 10 of his parole.
[ 84 Pa. Commw. Page 328]
With respect to condition 2 which required him to report to his parole agent as instructed, Petitioner admitted at the hearing that he had not reported to his parole agent on the day he had been ordered to do so. He offered reasons why he had not reported. The Board rejected those reasons and we hold that that was within the proper province of the Board.
Conditions 9 and 10 of Petitioner's parole required that he refrain from possessing firearms and from overt behavior which threatened or presented a clear and present danger to others. With respect to those alleged violations, the parole agent's only evidence was a written statement from one Denise Sheed which statement was read into the record over Petitioner's objection as being hearsay. It does not appear that Ms. Sheed's statement was under oath*fn1 but it was witnessed by the parole officer. The statement indicated that Petitioner had threatened Ms. Sheed and a neighbor with a gun. The parole agent also read another statement purportedly from Ms. Sheed stating that she would not appear at the Board hearing because she was afraid of Petitioner. The evidence was admitted over objection, the Board finding that the witness's fear was good cause for her non-appearance. On advice of counsel, Petitioner did not testify with respect to conditions 9 and 10.
Petitioner's appeal to this Court is limited to the Board's determination that he violated conditions 9 and 10. Petitioner contends that since the only evidence in support of the violations was hearsay, it must be disregarded; and that the Board's error in this respect constitutes a clear violation of his due process right to confront and cross-examine witnesses against him. The Board counterposes that it had
[ 84 Pa. Commw. Page 329]
good cause to excuse the witness from appearing personally and, in the alternative, since Petitioner admits violating condition 2, the other violations are supererogatory.
A Board regulation, 37 Pa. Code § 71.2(16), authorizes the Board to admit hearsay testimony where it finds good cause for a witness's absence. The regulation conforms with the language in Morrissey v. Brewer, 408 U.S. 471 (1972), that while the right to confront and cross-examine adverse witnesses is one of the minimum requirements of constitutional due process in parole revocation hearings, that right need not be enforced where the hearing officer specifically finds good cause for not permitting the prisoner to confront the witness against him. That Court noted that good cause may be found where an informant, if identified, might be subjected to the risk of harm. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the U.S. Supreme Court held that it did not intend in Morrissey to prohibit the use, where appropriate, of conventional substitutes for live testimony such as affidavits, depositions or documentary evidence. In the ...