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WADE PLAIR v. COMMONWEALTH PENNSYLVANIA (03/03/87)

decided: March 3, 1987.

WADE PLAIR, 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 Wade Plair, dated June 24, 1986.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief-Appellate Division, and Melaine Shannon Rothey, Appellate Counsel, for petitioner.

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

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 104 Pa. Commw. Page 298]

This is a petition for review of the denial of administrative relief from a decision of the Pennsylvania Board of Probation and Parole (Parole Board) which recommitted petitioner, Wade Plair, as a technical parole violator. We affirm.

Petitioner was paroled on September 27, 1985 from his sentence for third degree murder. Thereafter, he was arrested and charged with recklessly endangering another person and terroristic threats which he inflicted upon Francine Donald and her daughter Tamara Donald. These charges were dismissed after the victims failed to appear at city court for three different hearings.

On January 21, 1986, petitioner was charged with technical parole violations of which the Parole Board notified him and set a date for a hearing. Petitioner was charged for a violation of condition No. 5B which states, "[Y]ou shall refrain from owning or possessing any firearms or other weapons" and condition No. 5C which states, "[Y]ou shall refrain from any assaultive behavior."

At the hearing held on April 15, 1986, Tamara Donald testified that petitioner did not have a handgun and Francine Donald testified that a man in a car, whom she could not identify, may have fired two shots. However, two police officers testified, over objection, that they had been told by Tamara Donald that a gun had been used and placed to her head and that Francine Donald told them that petitioner took two shots at her with a handgun. The Parole Board found petitioner guilty of a parole violation and ordered petitioner recommitted.

Petitioner contends that the Commonwealth cannot impeach its own witnesses and that the witnesses' prior

[ 104 Pa. Commw. Page 299]

    inconsistent statements cannot be used as substantial evidence. Petitioner further contends that the Parole Board failed to give him adequate notice of the precise circumstances of the alleged violation.

Our scope of review is limited to a determination of whether the findings of the Parole Board are supported by substantial evidence, are in accordance with the law, and do not violate the parolee's constitutional rights. Zazo v. Pennsylvania Board of ...


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