Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Re: Curtis Boswell, Parole No. 5078-H, dated December 19, 1984.
Leonard N. Sosnov, Assistant Defender, with him, John W. Packel, Assistant Defender, Chief of Appeals Division, and Benjamin Lerner, Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Judge MacPhail.
[ 98 Pa. Commw. Page 387]
This appeal results from an order of the Board of Probation and Parole (Board) which denied administrative relief sought by the petitioner, Curtis Boswell (petitioner), from a Board parole revocation order. That revocation order revoked petitioner's parole and returned him to prison as a technical parole violator to serve eighteen months of backtime.
Petitioner was originally granted parole on December 12, 1979, with his release conditioned upon, among other things, the requirements that he "refrain from owning or possessing any firearm or other weapons," and that he "refrain from any assaultive behavior." On March 3, 1984, petitioner was arrested and charged with shooting a bartender, Ronald J. Robinson (Robinson) with a rifle. A parole detainer was lodged against petitioner on the following day because of the arrest.
[ 98 Pa. Commw. Page 388]
On June 25 and 26, 1984, the petitioner was tried before a jury on the charges arising out of the alleged shooting. The counts included, among others, charges of aggravated assault and of carrying a firearm without a license. In the course of the trial Robinson testified that he had broken up a crap game in the rear of the bar at which he worked, that petitioner, a participant, had become angry because of the disturbance, and that he returned approximately ten minutes later with the rifle and shot him. The police detective who arrested petitioner testified that the firearm petitioner allegedly used had never been located.
Petitioner's defense was one of alibi. While admitting that he had been at the crap game, petitioner testified before the jury that he immediately left and went to another bar, and that he never returned to Robinson's place of employment. Petitioner also testified that several participants in the crap game were displeased at the game's breakup. Neither petitioner nor the prosecution offered corroborative testimony with respect to, respectively, the alibi and the identity of the assailant.*fn1
The jury thereafter returned a verdict of not guilty. Nevertheless, the Board, acting on its prior detainer, issued to petitioner a Notice of Charges and Hearing. That Notice charged petitioner with violation of the parole conditions that he refrain from possessing firearms and that he refrain from assaultive behavior, and detailed that these charges arose from the same alleged shooting incident.
[ 98 Pa. Commw. Page 389]
At a parole revocation hearing convened thereafter,*fn2 Robinson appeared and repeated his story. Petitioner, meanwhile, maintained his story that he had never returned to the bar, never possessed a rifle, and never shot Robinson. On November 7, 1984, the Board issued its revocation order, having adopted the hearing examiner's findings that Robinson's testimony was "sufficient to establish a preponderance [sic] in regard to Violation of Condition No. 5-B, possession of a rifle and ...