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decided: June 27, 1986.


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.

Author: Barry

[ 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 Condition No. 5-C, assaultive behavior." After being denied administrative relief from the order, petitioner initiated this appeal.

Our own review of the present controversy is limited to determining whether necessary findings are supported by substantial evidence, whether an error of law was committed, or whether any of the parolee's constitutional rights were violated. Cox v. Board of Probation and Parole, 507 Pa. 614, 620, 493 A.2d 680, 683 (1985). Petitioner has been persistent in his assertion that the Commonwealth is collaterally estopped from re-litigating, in the course of the parole revocation hearing, the issue of whether he possessed a weapon and engaged in assaultive behavior after the not guilty verdict was entered pursuant to his alibi defense.*fn3

[ 98 Pa. Commw. Page 390]

Heretofore this Court has articulated a reluctance to apply collateral estoppel in the realm of parole hearings. Although the Supreme Court in Commonwealth v. Page 390} Brown, 503 Pa. 514, 469 A.2d 1371 (1983), specifically held that the Commonwealth could be collaterally estopped from revoking probation after a trial court acquittal on related charges, we have noted that significant differences exist between parole and probation which would make Brown inapplicable in the former context. See Hawkins v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 547, 554-55, 490 A.2d 942, 946-47 (1985) (allocatur denied).*fn4

[ 98 Pa. Commw. Page 391]

Notwithstanding that reluctance, however, we have been equally straightforward in stating that where "the ultimate issue in both the criminal prosecution and the parole violation proceeding [are] the same," an "acquittal

[ 98 Pa. Commw. Page 392]

    in criminal court may preclude the Board from revoking . . . parole." Nickens v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 313, 319 n. 10, 502 A.2d 277, 279 n. 10 (1985). Cf. Brantley v. Pennsylvania Board of Probation and Parole, 95 Pa. Commonwealth Ct. 641, 647, 506 A.2d 970, 973 (1986) ("We [have] reasoned that for collateral estoppel to apply, the ultimate issues in the criminal trial must be identical to [the] issue or issues sought to be precluded from consideration at the parole revocation hearing.").*fn5 In the present case, we conclude that precisely the same issue of fact was resolved against the Commonwealth by the jury in the criminal prosecution. Thus, in consonance with our foregoing pronouncements, and attentive to recent indication from our Supreme Court that Brown does apply in the parole context,*fn6 we must reverse the Board's revocation.

[ 98 Pa. Commw. Page 393]

Of the four elements required to coalesce before collateral estoppel will apply,*fn7 of importance in the present case is whether the issue sought to be relitigated was actually the same. Because petitioner here succeeded in his alibi defense -- the same situation as in Brown -- there is strong indication that the jury in its acquittal simply found incredible Robinson's identification of petitioner as his assailant, and, instead, believed petitioner's testimony. In this respect we note our Supreme Court's conclusion concerning an acquittal following assertion of such a defense:

In this matter at the trial of the criminal charge the appellant defended on the ground of alibi. The defense at trial produced evidence to establish that he was elsewhere at the time of the alleged robbery. There was no dispute that a robbery of the victim had occurred. Thus the only rational explanation to be drawn from the general verdict of acquittal was that the jury concluded that appellant did not participate in the criminal act of robbing the victim.

Brown, 503 Pa. at 519, 469 A.2d at 1373 (emphasis added). In addition, our own examination of the trial transcript reveals to us no other "rational explanation" for the jury's acquittal.*fn8 While in the present case the

[ 98 Pa. Commw. Page 394]

    defense evidence was limited to petitioner's own testimony with respect to his whereabouts, petitioner's exclusive defense was, in the end, one of alibi. We thus follow the Supreme Court's reasoning and infer from the acquittal that the jury concluded that petitioner did not return to the bar and did not shoot Robinson.

Also as in Brown, it is "beyond dispute on [the] record that the sole basis offered by the Commonwealth to support its request for the revocation" was the possession of firearms and the engaging in of assaultive behavior, parole condition violations stemming from precisely the same criminal conduct "for which [petitioner] had previously been tried and acquitted." 503 Pa. at 519, 469 A.2d at 1373. This ineluctably leads to the conclusion that the Board has re-decided "an issue of ultimate fact that has previously been litigated and [decided] adversely to the Commonwealth." Id. Under the facts of the present case, the Board must be collaterally estopped from doing so.

Our holding, as we have stated, was foreshadowed in Hawkins, Nickens, and Brantley. We nonetheless emphasize, however, that none of those cases are deprived of their practical significance by our present holding. In each of the former instances the issue re-litigated in the course of the parole revocation hearing was different from that dealt with in the criminal proceeding. In Hawkins, similarity of issues was absent because "the elements of a technical parole violation involving [the condition that the parolee not possess a firearm or other weapon]" were not the same as those which had to be proven to establish a violation of the criminal statute in

[ 98 Pa. Commw. Page 395]

    question. 88 Pa. Commonwealth Ct. at 554, 490 A.2d at 946 (emphasis added). Precisely the same dissimilarity prompted our conclusion in Nickens that collateral estoppel would not apply. 93 Pa. Commonwealth Ct. at 319-20, 502 A.2d at 279-80 ("We . . . hold that the elements required to be proven in a prosecution for possession of a Prohibited Offensive Weapon are not the same as those required to prove a violation of [the parole condition that the parolee refrain from carrying or possessing any firearms or other weapons].") (Emphasis added.) In Brantley, similarly, we held that collateral estoppel would not apply because the "elements which must be proven by the Commonwealth regarding [the crime of Possession of Instruments of Crime (Generally)] are different from those the Board" was required to prove in establishing a violation of the parole condition that "firearms or other weapons" not be possessed. 95 Pa. Commonwealth Ct. at 649, 506 A.2d at 974 (emphasis added).

Because our holding is premised on state law, we need not address petitioner's assertion that failure to apply collateral estoppel in the present case violated his double jeopardy rights*fn9 under the coextensive protections of the United States and Pennsylvania Constitutions.



Now, June 27, 1986, the order of the Pennsylvania Board of Probation and Parole at Parole No. 5078-H, dated December 19, 1984, which denied administrative relief to Curtis Boswell, is reversed.



[ 98 Pa. Commw. Page 396]

Dissenting Opinion by Judge MacPhail:

I respectfully dissent.

In my opinion, Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983) must be limited to probation revocation hearings where, for the first time, the individual's personal liberty is at stake. I believe that that fact is what triggers the application of the penumbra of constitutional rights afforded to the petitioner in that case. In parole revocation hearings, of course, that fact is not present and for that reason we have held that prisoners are entitled to some but not all constitutional rights afforded to those who are not imprisoned.

The Court has always maintained that parole revocation hearings are civil in nature. In civil cases, the burden upon the party with the burden of proof is to make out its case by the preponderance of the evidence. In administrative agency appeals our own scope of review is to determine whether substantial evidence is present to support findings made by the agency.

In criminal cases, the burden is upon the Commonwealth to prove its case beyond a reasonable doubt. A verdict of acquittal in a criminal case does not mean that the defendant is innocent; it means only that the Commonwealth failed to meet its burden of proof. In a criminal case the defendant comes into court clothed with a presumption of innocence; there is no such presumption for the prisoner in a parole revocation case.

In my view, it is entirely within the realm of reason and consonant with applicable principles of law to permit the Board of Parole to reach a conclusion different from that of a jury or trial judge in a criminal case involving the same person and the same factual issues.

In summary, I think we tread on dangerous ground when we apply the principles of collateral estoppel to parole revocation cases solely on the basis of an acquittal in the criminal courts.

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