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WILLIAM FRANK MOORE v. COMMONWEALTH PENNSYLVANIA (03/10/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 10, 1986.

WILLIAM FRANK MOORE, 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 the case of William Frank Moore, Jr., Parole No. 6884-J.

COUNSEL

Robert B. Stewart, III, Chief Public Defender of Huntingdon County, for petitioner.

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

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

Author: Colins

[ 95 Pa. Commw. Page 532]

William F. Moore, Jr. (petitioner) was ordered recommitted as a technical parole violator by the Pennsylvania Board of Probation and Parole (Board) for multiple violations.*fn1 Petitioner's request for administrative relief has been denied and this appeal follows.

On August 2, 1984, petitioner was paroled from the State Correctional Institute at Pittsburgh (SCIP) from a sentence of ten (10) to thirty (30) years for a

[ 95 Pa. Commw. Page 533]

    myriad of convictions.*fn2 Temporary living arrangements were established for petitioner at the residence of the Catholic Chaplain for SCIP. While living at the Chaplain's residence, the petitioner had full access and use of the telephone. During this period of transient residency, the local police department received a complaint from a female residing in Scott Township. The complainant alleged that she was receiving obscene telephone calls from a male caller threatening to violently rape her. Additionally, the complainant informed the investigating officer that the department was in receipt of an obscene letter she had received in April of 1984.

A tracing device was placed on the complainant's telephone, and it was determined that two calls were placed from the Chaplain's number, as well as from various pay stations. Officer Devlin of the Scott Township Police Department informed the complainant that the calls were dialed from the Chaplain's telephone. The complainant informed the investigators that she had been to SCIP to visit her brother, and had heard the Chaplain speak, and he definitely was not the caller.

Further investigation by Officer Devlin determined that the only other person who had access to the telephone was the petitioner. Upon receipt of this information, a warrant was issued and petitioner was arrested on September 19, 1984.

Prior to his arrest, petitioner had been to visit his parole officer, Thomas Griffith, on September 14, 1984. Petitioner informed his agent that his urine

[ 95 Pa. Commw. Page 534]

    specimen would be tainted for he was not feeling well and had self-administered some prescription medication.

On September 20, 1984, parole officer Griffth, in the presence of petitioner's landlady, searched petitioner's new residence for further parole violations. Griffith's search resulted in the finding of a letter similar in content and handwriting to the one previously received by the female complainant. Criminal charges against petitioner were dismissed due to illegal search and seizure, which defense does not apply in parole board hearings. Hossback v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 344, 471 A.2d 186 (1984).

Petitioner contends that the charges against him were not proven at his Board hearing. We disagree. There is ample evidence in the record supporting petitioner's recommitment. When substantial evidence in the record supports an order of the Board in a recommitment case, that order must be affirmed. Lantzy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 626, 477 A.2d 18 (1984).

The evidence supporting petitioner's recommitment for violation of parole condition 5A (possession and use of narcotic drugs) is petitioner's own admission that the results of the urine test would prove positive. Petitioner said he had a toothache and self-administered some medication because he had no money and could not obtain a medical card. There seems to be some confusion in the record of what drug petitioner had taken, Percocet or Darvocet. However, petitioner's urinalysis reported traces of three controlled substances (Amphetamine, Methamphetamine, and Tetrahydrocannabinol*fn3) which petitioner could not justify.

[ 95 Pa. Commw. Page 535]

Petitioner next contends that he did not violate parole condition 5C (refrain from assaultive behavior) for his behavior was not assaultive. Petitioner maintains that the letters and telephone calls were mere threats, and for his behavior to be assaultive, something had to be done beyond a mere threat.

The Board found that these actions constituted more than a mere threat. In Grundy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 618, 478 A.2d 139 (1984), we held that the Board's interpretation of its own regulations is entitled to great weight unless clearly erroneous. We find no error in the Board's investigations for petitioner's conduct clearly falls within the definition of assault cited in the Board's brief.*fn4

We fail to see how petitioner's conduct could be defined as anything but assaultive in nature. The letters and telephone calls contain repeated statements that the victim was going to be slashed, mutilated, and brutally raped. Such conduct would clearly evoke a reasonable apprehension of bodily harm in any individual. Whether or not the conduct would fall within the definition of an "assault" under the Crimes Code is not definitive of the issue herein involved. It is "clear that the provisions of the Crimes Code and Rules of Criminal Procedure are not directly applicable to recommitment actions of the Board." Michael v. Pennsylvania Board of Probation and Parole, 85 Pa. Commonwealth Ct. 173, 175, 481 A.2d 711, 712 (1984).

[ 95 Pa. Commw. Page 536]

Assaultive behavior being an independent basis for the recommitment of a parolee, Simpson v. Pennsylvania Page 536} Board of Probation and Parole, 81 Pa. Commonwealth Ct. 432, 473 A.2d 753 (1984), coupled with the results of petitioner's urinalysis, amply justify the Board's recommitment of petitioner.*fn5

For the above reasons, the order of the Board is affirmed denying petitioner's petition for administrative relief.

Order

And Now, this 10th day of March, 1986, the order of the Pennsylvania Board of Probation and Parole, dated August 2, 1985, at Parole No. 6884-J, denying administrative relief is affirmed.

Disposition

Affirmed.


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