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STEVEN MILLER v. COMMONWEALTH PENNSYLVANIA (03/20/87)

decided: March 20, 1987.

STEVEN MILLER, 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 Steven Miller, Parole No. 9287M.

COUNSEL

Leonard N. Sosnov, Assistant Defender, with him, John W. Packel, Assistant Defender, Chief, Appeals Division, and Benjamin Lerner, Defender, 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

[ 105 Pa. Commw. Page 25]

Petitioner, Steven Miller, seeks review of the decision of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment order. We affirm.

Petitioner was charged with a violation of parole condition 5C, which requires that parolees refrain from any assaultive behavior, as a result of his alleged assault of Michelle Ward. Petitioner had a parole revocation hearing before a hearing examiner. The record of the hearing before the examiner shows that Michelle Ward, who had previously signed a statement under oath that petitioner had struck and bit her, now testified under oath that what she had previously said in her statement under oath was a lie. She further testified that she made the statement because she was angry at the petitioner, and that since she is his girlfriend, she would want him released so that they can live together at home.

The hearing examiner stated in her report to the Board that no violation of parole was established by a preponderance of the evidence, and recommended that parole be continued. The Board, relying on Michelle Ward's affidavit, found that petitioner violated parole condition 5C, and recommitted him to serve six months backtime.

[ 105 Pa. Commw. Page 26]

Thus, we are confronted with the fact that the principal element of the revocation for which the petitioner was recommitted was established through the use of an out-of-court statement, under oath, made at a time when petitioner had no opportunity to cross-examine the witness as to the accuracy of the charge, and the witness in court now says that she lied.

The petitioner contends that under these circumstances it was error for the Board to consider a prior inconsistent statement as substantive evidence, because the Board did not see or hear the witness, and it could not judge credibility; that the revocation is based on pure hearsay in violation of Grello v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 252, 477 A.2d 45 (1984); and that the revocation is not based on substantial evidence. It is well established that a prior inconsistent statement of a declarant who is a witness in a judicial proceeding, and is available for cross-examination, may be admissible in evidence as substantive evidence to prove the truth of the matters asserted therein. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); Wilson v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 202, 509 A.2d 1335 (1986).

In Brady, the court, in a very thorough discussion of the admissibility of inconsistent statements as substantive evidence, concluded that the present trend is to consider such statements as relevant and reliable and therefore admissible. Of course, its weight is for the fact finder.

However, the issue goes beyond mere admissibility. Under our scope of review, we must determine whether the necessary findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; LaCourt v. ...


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