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JOHN OLIVER v. COMMONWEALTH PENNSYLVANIA (06/04/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 4, 1985.

JOHN OLIVER, JR., 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 John Oliver, Jr., dated September 16, 1983.

COUNSEL

John Oliver, Jr., petitioner, for himself.

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 Barry. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barry

[ 89 Pa. Commw. Page 636]

John Oliver, Jr. (petitioner) petitions for review of the denial of his request for administrative relief by the Pennsylvania Board of Probation and Parole (Board) from its decision to recommit him as a technical parole violator (TPV) for thirty-six months backtime.

According to the record certified by the Board, petitioner was paroled on July 1, 1977, from a ten to twenty year sentence imposed after his conviction in the Court of Common Pleas of Philadelphia County for Aggravated Assault and Battery. In May, 1979, he was arrested, and subsequently convicted in the Court of Common Pleas of Montgomery County, on charges of burglary. He was sentenced to six to twenty-three months for that offense. Petitioner had several arrests between the 1979 conviction and the charges which initiated this case; however, his only conviction during that time was for driving under the influence of alcohol for which he was fined $50.00.

While still on parole, petitioner was arrested on June 25, 1983, by the Sex Crimes Unit of the Philadelphia Police on charges of Rape, Indecent Assault, Indecent Exposure, Simple Assault, Recklessly Endangering Another Person and Unlawful Restraint. After notification of petitioner's arrest, his parole agent recommended on June 27, 1983, that petitioner be detained pending disposition of the criminal charges and that he be recommitted as a TPV for violating condition No. 5-c of his parole which required him to refrain from any assaultive behavior. Following a preliminary hearing on July 6, 1983, at which probable cause to detain was found, the Board detainer was

[ 89 Pa. Commw. Page 637]

    effectuated. Thereafter, on August 17, 1983, the Board issued a notice to petitioner advising that his revocation hearing had been scheduled for September 1, 1983. The hearing notice contained petitioner's correct parole number and his institution number from his Montgomery County conviction, F-6850. The use of F-6850 was incorrect because his parole from that sentence had expired. The hearing notice also contained the following notice of charges:

You are charged with the following:

Condition No. 5-c: "You shall refrain from any assaultive behavior."

On or about 6/15/83, you did drag Karen Potter (Jackson) a retarded person, inside of your apartment, strike her on the face and neck and rape her.

A Full Board Violation Hearing was held as scheduled on September 1, 1983. Appearing at the hearing were the members of the Board, petitioner's parole agent, Mr. Atz; Karen Potter, the alleged victim (victim); victim's mother, Mrs. Regina Potter; victim's mental health worker, Mary McCole, petitioner and the Board's Institutional Parole Representative, Mr. Bivins. After an extended discussion of petitioner's right to counsel and the absence of counsel for petitioner at the hearing, petitioner advised the Board that he wished to proceed with the hearing in the absence of counsel and signed a waiver to that effect. On September 16, 1983, the Board issued its decision to recommit petitioner as a TPV. That document also bore the incorrect institution number, F-6850 and the correct parole number. When, on December 14, 1983, the Board notified petitioner that his request for administrative relief had been denied, it also acknowledged that his Montgomery County Parole had expired and that it had erroneously used the

[ 89 Pa. Commw. Page 638]

    incorrect institution number in prior communications with him. The Board then advised petitioner that his Philadelphia County sentence with an institution number of H-7052 was still in effect and that his records would be corrected to reflect the correct institution number.

In challenging the Board's action, petitioner raises three issues: (1) whether he was denied his right to counsel, (2) whether he was denied due process because the revocation of his parole was based on the testimony of the victim, who is mentally retarded, and (3) whether he was accorded proper notice of his revocation hearing due to the utilization of the incorrect institution number on the notice form. We will address these questions in the order presented.

As we have recently held, a parolee is entitled to the assistance of counsel at a Board revocation hearing, unless validly waived. Coades v. Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, 480 A.2d 1298 (1984). Under its regulations governing procedures for hearings for violations of parole conditions,*fn1 the Board or hearing examiner has an obligation to determine if a parolee, appearing without counsel, understands his right to counsel, his right to free counsel if unable to afford private counsel and that he shall not be penalized in any way for requesting counsel. Only upon the satisfaction of the Board or hearing examiner that a parolee's refusal of counsel is knowing, intelligent and freely made and after the execution of a written waiver to that effect, can the hearing proceed in the absence of counsel for the parolee. In applying these principles to this matter, we are satisfied, upon a careful review of the transcript of petitioner's revocation hearing, that the

[ 89 Pa. Commw. Page 639]

Board fulfilled its obligations and that petitioner made a knowing, intelligent and free choice to proceed*fn2 with the hearing in the absence of counsel.*fn3

[ 89 Pa. Commw. Page 640]

Petitioner next argues that his right to due process was violated because the Board relied on the victim's

[ 89 Pa. Commw. Page 641]

    testimony to support its revocation order. Inasmuch as the victim is mentally retarded, petitioner specifically contends that, under such circumstances, there is no competent evidence in the record to support the revocation.

[ 89 Pa. Commw. Page 642]

Generally, the determination of the competency of a witness is for the trial court and that determination is not reviewable in the absence of a clear abuse of discretion. Commonwealth v. Stoner, 284 Pa. Superior Ct. 364, 425 A.2d 1145 (1981). We have applied these rules to administrative proceedings as well. See Kakas v. Department of Public Welfare, 65 Pa. Commonwealth Ct. 550, 442 A.2d 1243 (1982).

The general rule is that a person with a mental illness is competent to testify if he is capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. (Citation omitted.)

Id. at 552, 442 A.2d at 1244. Therefore, if a review of the record fails to indicate that the witness lacked the mental capacity to understand the questions, communicate intelligible answers or recollect the events at issue, we cannot say that the administrative tribunal has abused its discretion in finding a witness competent to testify. Id.

Instantly, our review of the record discloses that the victim was able to satisfy the Kakas standard. Accordingly, we cannot hold that the Board abused its discretion or violated petitioner's due process rights in accepting her as a competent, credible witness. Consequently, we must reject petitioner's argument

[ 89 Pa. Commw. Page 643]

    that the record does not contain competent evidence to support the Board's order.

Finally, we consider whether the Board's use of the incorrect institution number on its hearing notice deprived him of proper notice. Under our holding of Snyder v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 193, 467 A.2d 112 (1983), it is of no consequence that the Board utilized the incorrect institution number. As was the case in Snyder, all of the Board's notices and orders to petitioner also contained his correct parole number, which covers all sentences for which a parolee is under supervision. Moreover, the charges against petitioner to be considered at the hearing were clearly delineated in the notice. Therefore, petitioner's argument is without merit.

Having found the Board's order to be supported by substantial evidence and finding that the Board committed no legal errors and violated none of petitioner's constitutional rights in adjudicating this matter,*fn4 we will affirm the recommitment order of the Board.

Order

Now, June 4, 1985, the order of the Pennsylvania Board of Probation and Parole, dated September 16, 1983, is affirmed.

Judge Williams, Jr., did not participate in the decision in this case.

Disposition

Affirmed.


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