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BARRY A. ANDERSON v. COMMONWEALTH PENNSYLVANIA (09/04/85)

decided: September 4, 1985.

BARRY A. ANDERSON, 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 Barry A. Anderson, Parole No. 6158-J.

COUNSEL

Lee F. Mauger, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Barry did not participate in the decision in this case.

Author: Barbieri

[ 91 Pa. Commw. Page 487]

This is an appeal by Barry A. Anderson who petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board recommitment order. That recommitment order revoked his parole and recommitted him to prison to serve fifty-eight months on backtime as both a technical and a convicted parole violator. We will affirm.

Anderson was originally sentenced on January 12, 1977 by Judge Ribner of the Court of Common Pleas of Philadelphia County to a term of four to twenty years as a result of his entering a plea of guilty to the charges of Robbery*fn1 and Burglary.*fn2 That sentence carried an effective date of October 8, 1976 and an original maximum term expiration date of October 8, 1996. The Board granted Anderson parole on this sentence effective October 17, 1980 at which time he was released from the State Correctional Institution at Camp Hill (SCI-Camp Hill).

On November 16, 1981, Anderson was arrested by Philadelphia Police and charged with various weapons offenses. He was released on bail on November 17,

[ 91 Pa. Commw. Page 4881981]

but was rearrested on a Board warrant on November 24, 1981 and confined in the Philadelphia County Prison. On March 8, 1982, he was also arrested by Philadelphia Police as a result of an incident which occurred on November 15, 1981 at an ice cream store located at 730 East Chelten Avenue in Philadelphia where it is alleged that he, armed with a sawed-off shotgun, participated, with a companion, in a robbery of that store. As a result of this second arrest, Anderson was charged with Robbery, Criminal Conspiracy,*fn3 Carrying Firearms on a Public Street or Property,*fn4 and other offenses.*fn5 While the weapons charges stemming from the November 16, 1981 arrest were dismissed at the preliminary hearing, Anderson was convicted of the charges stemming from the March 8, 1982 arrest and, on December 8, 1983, was sentenced by Judge Hill in Philadelphia County Common Pleas Court to a term of nine and one-half to twenty-five years. On December 12, 1983, he was transferred from Philadelphia County Prison to the State Correctional Institution at Graterford (SCI-Graterford).

On February 28, 1984, the Board afforded Anderson a full Board Violation and Revocation Hearing at SCI-Graterford. He was charged with violating general parole condition 5B which mandates that parolees refrain from owning or possessing any firearms or

[ 91 Pa. Commw. Page 489]

    other weapons*fn6 as well as being convicted of new criminal offenses which were committed while serving a parole term. Anderson's counsel objected to the Board's introduction of photocopies of criminal court docket sheets from Philadelphia County Common Pleas Court as the photocopies were not certified under seal as required by Section 6103 of the Judicial Code, 42 Pa. C.S. ยง 6103, and contended that, absent such certification, the documents constituted hearsay. Defense counsel also objected to the admission of the notarized statement of an eyewitness to the November 15, 1981 robbery as well as a copy of a Philadelphia Police Department property receipt. The Board overruled all of counsel's evidentiary objections and found good cause for not allowing Anderson to confront the eyewitness and allowed the use of the witness's affidavit. On March 27, 1984, the Board recorded an order which revoked Anderson's parole as both a convicted and a technical parole violator and mandated that he serve fifty-eight ...


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