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MICHAEL STAHL v. COMMONWEALTH PENNSYLVANIA (05/21/87)

decided: May 21, 1987.

MICHAEL STAHL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of Pennsylvania Board of Probation and Parole in case of Michael Stahl dated April 11, 1986.

COUNSEL

Michael F. Salisbury, Rosamilia, O'Connor & Salisbury, 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. President Judge Crumlish, Jr. and Judge Doyle concur in the result only.

Author: Kalish

[ 106 Pa. Commw. Page 275]

Petitioner, Michael Stahl, seeks review of the denial of administrative relief from a decision of the Pennsylvania Board of Probation and Parole (Board) which revoked his parole and recommitted him as a technical parole violator. We affirm.

Petitioner's parole was revoked for violation of condition No. 5A of his parole which provided that petitioner shall not be in possession of illegal narcotics or drugs. At the parole revocation hearing, Parole Officer Hopper testified as to the results of a urine test made by the laboratory and outlined the procedure used prior to the test. He testified that a vial of urine was provided by the petitioner to a prison official who labeled the specimen. The vial is then ordinarily permitted to either remain in the office or it is sometimes placed in a refrigerator before being mailed to the laboratory.

Counsel for the petitioner objected not to the result of the laboratory test, but rather to the custodial procedure concerning the vial prior to testing, particularly to the lack of any safeguards eliminating access by other inmates. As to the results of the laboratory test itself, the hearing examiner felt there was good cause for its admission. However, on the question of custodial procedure

[ 106 Pa. Commw. Page 276]

    there was no finding, and in fact, he said he would leave it up to the Board.

The Board, without discussing the custodial procedure, simply stated that the tape of the hearing revealed a finding of good cause. In fact, there was no objection to the admissibility of the urinalysis report itself, as hearsay. Our inquiry, therefore, is limited to what extent, if any, the custodial procedure tainted the reliability of the report as hearsay, thus affecting its evidentiary basis for an administrative determination of a factual issue.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In Powell v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 7, 513 A.2d 1139 (1986), the issue was the admission into evidence of an unsigned computer report, to support the drug abuse technical violation. The report was a laboratory report which referred to a urine specimen taken from the petitioner, and confirmed that the drug screen was positive for listed controlled substances. At the hearing before the examiner, there was no person from the laboratory offered to support the content of the report or to otherwise authenticate it. This court held that the report in Powell was not admissible in evidence since it lacked sufficient indicia of reliability and regularity. In the instant case, ...


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