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JERRY FALLINGS v. COMMONWEALTH PENNSYLVANIA (01/07/86)

decided: January 7, 1986.

JERRY FALLINGS, 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 Jerry Fallings, Parole No. 9824-G, dated January 26, 1985.

COUNSEL

James R. Rosato, Jr., 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 Judge Palladino.

Author: Palladino

[ 94 Pa. Commw. Page 78]

Jerry Fallings (Petitioner) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical parole violator to serve eighteen (18) months backtime.

Petitioner was convicted on two counts of unlawful delivery of a controlled substance and sentenced to a term of two (2) to ten (10) years. On October 2, 1983, Petitioner was released on parole. On August 17, 1984, the Board, in response to requests from the Dauphin County District Attorney's Office and the Harrisburg Police Department, imposed the following special condition 6 on Petitioner's parole: "Do not associate with Jonathon Blackstone. In addition, you are not to engage in any type of conduct toward Mr. Blackstone that threatens his personal safety or well-being."*fn1 Subsequently, Blackstone alleged that Petitioner threatened him and used offensive language when they encountered each other on the street on September 1, 1984. As a result of this incident, Blackstone notified Petitioner's parole officer of the violation, resulting in Petitioner's detainment on a parole violation warrant. A preliminary hearing, held on September 14, 1984, established probable cause to hold Petitioner for a violation hearing. The preliminary hearing examiner based his decision on Blackstone's affidavit, to which defense counsel objected as hearsay.

[ 94 Pa. Commw. Page 79]

At the violation hearing on October 12, 1984, Petitioner, Petitioner's parole agent, Blackstone, and three defense witnesses testified. The hearing examiner recommended recommitment based on a preponderance of the evidence presented. On November 26, 1984, the Board issued an order recommitting Petitioner for violation of condition 5C. This order was subsequently modified by the Board, upon Petitioner's request for administrative review, to correct a typographical error to indicate a violation of special condition 6, upon which the original charge had been filed.

Petitioner alleges two errors on this appeal: that Petitioner was denied due process at his preliminary hearing because hearsay evidence, submitted over defense counsel's objection, was the sole basis of the hearing examiner's recommendation to hold Petitioner for a violation hearing; and that the evidence presented to the Board at the violation hearing was insufficient to prove by a preponderance of the evidence that Petitioner violated special condition 6.

This Court's scope of review of a recommitment order of the Board is limited to determining whether necessary findings are supported by substantial evidence, whether the Board committed an error of law, and whether the parolee's constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Coades v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, 480 A.2d 1298 (1984).

Petitioner asserts that he was denied due process because hearsay evidence was admitted over objection at his preliminary hearing without good cause. Petitioner relies upon 37 Pa. Code § 71.2(16) which states:

(16) The representatives of the Board who are familiar with the facts which constitute the alleged violation ...


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