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SALVATORE ABBRUZZESE v. COMMONWEALTH PENNSYLVANIA (04/24/87)

decided: April 24, 1987.

SALVATORE ABBRUZZESE, 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 Salvatore Abbruzzese, dated February 19, 1986.

COUNSEL

John C. Armstrong, Assistant Public Defender, for petitioner.

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

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

Author: Blatt

[ 105 Pa. Commw. Page 416]

Salvatore Abbruzzese (petitioner) petitions for review of an order of the Pennsylvania Board of Probation

[ 105 Pa. Commw. Page 417]

    and Parole (Board) which denied his request for administrative relief from a Board recommitment.

On May 6, 1983, the petitioner, while on parole, was arrested by Philadelphia police. He pled guilty on October 7, 1983 to burglary and criminal conspiracy, and was sent to the State Correctional Institution at Graterford (Graterford) pending a revocation hearing on his new criminal convictions.*fn1 On May 2, 1984, however, he was transported to New Jersey to face unrelated charges pending there. He pled guilty to those charges on May 9, 1984, was sentenced on June 15, 1984, and was returned to Graterford during the first week of July 1984. He received a revocation hearing for the New Jersey convictions on November 27, 1984 after which he was recommitted for an additional twenty-four months as a convicted parole violator.

We initially note our limited scope of review of an adjudication by the Board, which is to determine whether or not it is supported by substantial evidence, is in accordance with the law, and is observant of the petitioner's constitutional rights. Stevenson v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 540, 460 A.2d 409 (1983).

The petitioner contends that he was denied procedural due process because the revocation hearing here at issue was not held within 120 days of the date on which the Board received official verification of his New Jersey conviction, and he cites 37 Pa. Code ยง 71.4(2).*fn2

[ 105 Pa. Commw. Page 418]

We note that, because the petitioner alleged that the hearing was untimely, it was for the Board to prove by a preponderance of the evidence that it was, in fact, timely. See Brown v. Pennsylvania Board of Probation and Parole, 70 Pa. Commonwealth Ct. 597, 453 A.2d 1068 (1982) (record must contain matters set forth in statute and it is Board's duty to furnish adequate record). The Board, here, merely took administrative notice of the timeliness of the revocation hearing based on its own member's statement that the verification was not ...


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