Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Thomas Brantley, Parole No. 1143-K, dated April 3, 1985.
Jules Epstein, Assistant Defender, with him, John W. Packel, Assistant Defender, Chief, Appeals Division, and Benjamin Lerner, Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Rogers, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.
[ 95 Pa. Commw. Page 642]
Thomas Brantley has petitioned this court for review of an administrative order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board recommitment order. The latter order revoked Brantley's parole and recommitted him to prison to serve a total of fifteen months on backtime as a technical and convicted parole violator.
[ 95 Pa. Commw. Page 643]
The Board granted parole to Brantley on August 26, 1982 to the prison sentence he was serving for Voluntary Manslaughter.*fn1 While at liberty on parole, Brantley was arrested in Philadelphia on May 31, 1984 and charged with Criminal Conspiracy,*fn2 Robbery,*fn3 Carrying Firearms on Public Streets or Public Property in Philadelphia,*fn4 Possessing Instruments of Crime [PIC] (Generally),*fn5 Aggravated Assault*fn6 and Simple Assault.*fn7 Brantley was tried before a jury and on November 2, 1984, was found guilty only of Criminal Conspiracy. He was found not guilty of Robbery and PIC (Generally). The prosecuting attorney for the Commonwealth sought and was granted a nolle prosequi or nol pros on all of the other criminal charges.
Following this conviction, the Board afforded Brantley a full Board violation and revocation hearing which took place on February 7, 1985. The Board charged Brantley with being a convicted parole violator, as a result of his conviction for Criminal Conspiracy, and as a technical parole violator for allegedly violating general parole condition 5B*fn8 which requires that parolees refrain from owning or possessing any firearms or other weapons, and 5C*fn9 which requires that parolees refrain from engaging in any assaultive behavior. A woman by the name of Bonnie Walker, who was complainant at Brantley's criminal trial, testified before the
[ 95 Pa. Commw. Page 644]
Board at the parole revocation hearing. Essentially, Walker testified that on May 31, 1984, Brantley and another man forced their way into Walker's apartment and at gunpoint robbed and assaulted Walker.
As a result of the hearing, the Board revoked Brantley's parole on February 19, 1985, and ordered him recommitted to prison as a technical parole violator to serve nine months on backtime for violating general parole conditions 5B and 5C, and as a convicted parole violator to serve an additional six months on backtime for the new criminal conviction. The Board's revocation order expressly states that the evidence the Board relied upon was the testimony of Bonnie Walker and the proof of record of Brantley's Criminal Conspiracy conviction. Pursuant to 37 Pa. Code § 71.5, Brantley petitioned the Board for administrative relief from its parole revocation order. Brantley's petition to the Board was denied by a letter/order dated April 3, 1985. Brantley then timely petitioned this court for review.
Brantley raises two issues on appeal to this court: 1) Whether the Board is statutorily empowered to revoke parole for technical parole violations where the parolee is acquitted of the criminal charges arising from that same conduct; and 2) Whether the Board is collaterally estopped from revoking his parole on the ground that he violated technical parole conditions 5B and 5C after he was acquitted of criminal charges arising from the same incident. Brantley does not challenge that portion ...