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MICHAEL THOMAS HARPER v. COMMONWEALTH PENNSYLVANIA (01/20/87)

decided: January 20, 1987.

MICHAEL THOMAS HARPER, 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 case of Michael Thomas Harper, Parole No. 1983-K, dated February 28, 1986.

COUNSEL

Claire A. Kimmel, 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 Senior Judge Barbieri.

Author: Barbieri

[ 103 Pa. Commw. Page 253]

This is a parole revocation appeal wherein Michael Thomas Harper, parolee, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommits him to prison as a technical parole violator to serve twenty-four months on backtime. We reverse in part and remand.

Harper was granted parole by the Board on April 21, 1982, on a sentence of seven to twenty years imposed

[ 103 Pa. Commw. Page 254]

    by Judge James E. Buckingham of the Court of Common Pleas of York County as a result of his conviction for Robbery*fn1 and Burglary.*fn2 He was paroled to a plan in York, Pennsylvania, where he eventually set up his own pest exterminating business. On September 20, 1985, he was arrested on a Board warrant, charged with violating three general conditions of parole, and confined in the York County Prison.

On October 30, 1985, Harper appeared before a Board hearing examiner at the York County Prison for a parole Violation Hearing. He was represented by privately-retained counsel and waived both his preliminary hearing and his right to appear before a quorum of the Board. Following that hearing, the Board ordered his parole revoked and recommitted him to serve twenty-four months on backtime for violating general parole conditions 3B,*fn3 4,*fn4 and 5C.*fn5 He subsequently filed a pro se administrative appeal which the Board denied on February 28, 1986. He then filed a pro se petition for review with this Court who appointed the Centre County Public Defender to represent him. The public defender has since filed an amended petition for review on Harper's behalf.

In this appeal, Harper raises numerous assignments of error on the part of the Board which we shall discuss in turn. We are also cognizant of our limited scope of review of a Board parole revocation order under Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704, requiring us to affirm the Board if its findings are supported by substantial evidence, no errors of law committed and no constitutional rights of the parolee

[ 103 Pa. Commw. Page 255]

    are violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Zazo v. Pennsylvania Board of Probation and Parole, 80 ...


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