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WILLIAM POWELL v. COMMONWEALTH PENNSYLVANIA (08/14/86)

decided: August 14, 1986.

WILLIAM POWELL, 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 Powell, dated December 23, 1985.

COUNSEL

Scott F. Breidenbach, Assistant Public Defender, for petitioner.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino dissents.

Author: Craig

[ 100 Pa. Commw. Page 8]

This parole revocation case presents the important and recurring question of the admissibility, in a parole revocation administrative hearing, of a laboratory report for the purpose of establishing a drug abuse technical violation by a parolee.

[ 100 Pa. Commw. Page 9]

Petitioner William Powell seeks review of an order of the Pennsylvania Board of Probation and Parole denying his application for administrative relief from a board action which recommitted him as a technical parole violator to serve his unexpired term of 14 months and 3 days.

After the board had released the petitioner in April of 1985 from incarceration under a sentence of 1-1/2 to 3 years imposed for attempted burglary, the petitioner was arrested in June of 1985 on a board warrant for technical violations of General Parole Conditions No. 3A, failure to report as instructed, and No. 5A, failure to abstain from the use of controlled substances.

At a parole revocation hearing held at Graterford State Correctional Institution, Montgomery County, the petitioner admitted the reporting failure violation, for which the presumptive range of recommitment is 3 to 6 months, 37 Pa. Code § 75.4. However, through counsel, the petitioner contested the evidence relating to the drug abuse violation, for which the presumptive range of recommitment is 5 to 12 months for a single offense, 37 Pa. Code § 75.4.

The determinative evidence of the drug abuse violation was an unsigned computer printout report from Healtheast Laboratories, a private laboratory, referring to a urine specimen taken from the petitioner, stating his name, and confirming that the urine drug screen was positive for listed controlled substances. (Appended to this opinion is a reproduction of the barely legible report copy supplied as the original record exhibit.) The report referred to Mr. Polgar, the petitioner's previous parole agent, and also contained the following comment:

THIS LABORATORY IS APPROVED BY THE PA DEPT OF HEALTH TO PERFORM ANALYSIS FOR DRUGS SUBJECT TO ABUSE. TOXICOLOGY IS STAFFED BY FIVE PEOPLE

[ 100 Pa. Commw. Page 10]

ALL OF WHOM MAY HAVE, IN SOME FASHION, BEEN INVOLVED IN THE PROCESSING OF THIS SPECIMEN.

At the hearing before the examiner, however, no person from the laboratory appeared to support the content of the report or otherwise to authenticate it. The petitioner attacks the admission of the laboratory report as evidence necessary to support the drug abuse technical violation. He identifies the central issue in this case to be whether the board's finding as to the occurrence of that violation was thus based upon inadmissible hearsay and therefore not supported by substantial evidence.

In a parole revocation proceeding, a parolee retains due process rights, but with the right to confront and cross-examine adverse witnesses being subject to modification upon a specific finding of good cause for such a denial. See Gagnon v. Scarpelli, 411 U.S. 782 n.5, 93 S.Ct. 1756, 1759 n.5 (1973); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604 (1972).

Under board regulations pertaining to technical violation hearings, the absence of witnesses necessary to establish the violation is allowable only "when the Examiner finds on the record good cause for not allowing such confrontation." 37 Pa. Code § 71.5(d). The same regulation permits sole reliance upon documents only with respect to criminal parole violation matters, see, e.g., Anderson v. Pennsylvania Board of Probation and Parole, 91 Pa. Commonwealth Ct. 486, 497 A.2d 947 (1985).

Where the substantive content of a laboratory report is involved with respect to a technical parole violation, the business records hearsay exception may be pertinent. As this court pointed out recently in Whitmore v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 569, 504 A.2d 401 (1986), the Judicial

[ 100 Pa. Commw. Page 11]

Code, in 42 Pa. C.S. § 6108(b) provides that such a record shall be competent evidence

     if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

In this case, the examiner admitted the laboratory record, explicitly concluding that "good cause is established not to allow confrontation of those who may have conducted the test." The examiner noted that the report names the pathologist and laboratory director; in addition, he specifically found that the laboratory was approved by the Pennsylvania ...


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