Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Carl Wilson, Parole No. 4781-P, dated April 30, 1985.
Scott F. Breidenbach, Assistant Public Defender, 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.
[ 97 Pa. Commw. Page 203]
Carl Wilson (petitioner) appeals a decision of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical parole violator.*fn1 Having been denied his Petition for Administrative Relief, this appeal follows.
Petitioner was paroled on June 16, 1981, from a sentence of one (1) to five (5) years for a conviction of Theft, Assault, and Possession of an Instrument of Crime.
While on parole, petitioner was arrested and charged with Aggravated Assault, Simple Assault, Recklessly Endangering Another Person, and Possession of an Instrument of Crime. A Board detainer was issued charging petitioner with violations of parole condition 5b*fn2 and 5c.*fn3 These criminal charges were eventually dismissed.
At petitioner's violation hearing before a Board examiner, Gwendolyn Smith, petitioner's paramour, the complainant in the assault incident, testified that she was not struck by petitioner. This testimony was contrary to the same witness' testimony at petitioner's criminal preliminary hearing.
In determining that petitioner was in violation of his parole conditions, the Board examiner relied on the witness' prior recorded statements and not her live testimony. The witness, Ms. Smith, testified at the criminal preliminary hearing that petitioner had beaten her with a four-foot branch from a tree. When Ms. Smith testified at petitioner's revocation hearing, she stated that she had found the petitioner with another woman and that she had a fight with this woman.
[ 97 Pa. Commw. Page 204]
Upon hearing this new version of what occurred, the parole agent pleaded surprise and introduced the notes of testimony from the preliminary hearing. Despite objection by petitioner's counsel, the Board examiner accepted this recorded statement over the live witness' testimony.
Our scope of review in parole Board recommitment cases is limited to determining whether the findings of the Board are supported by substantial evidence, or are in accordance with the law and do not violate the parolee's constitutional rights. Zazo v. Pennsylvania Board of ...