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ROBERT B. MOORE v. COMMONWEALTH PENNSYLVANIA (09/03/87)

decided: September 3, 1987.

ROBERT B. MOORE, 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 Robert Moore, Parole No. 1170-K.

COUNSEL

Frederick I. Huganir, 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 Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 144]

Robert B. Moore (Petitioner) appeals a decision of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board order recommitting him for fifteen months. We affirm.

On November 4, 1982, Petitioner was released on parole from sentences for unlawful delivery of a controlled substance.*fn1 Three years later, on November 22, 1985, the Board issued a detainer against Petitioner on charges of violating technical condition 5a of his parole (possession of illegal drugs/narcotics). At Petitioner's parole violation hearing on December 30, 1985, the Board presented a laboratory urinalysis report from November of 1985 showing the presence of methamphetamine, an illegal narcotic, in Petitioner's bloodstream. Petitioner's counsel did not object to the admission into evidence of the lab report. Instead, Petitioner testified that he had taken some blue speckled pills belonging to his girlfriend, an acknowledged drug user, thinking that they were methamphetamine "look-alikes" containing only caffeine, and stated that the fact that the pills turned out to be real methamphetamine was an honest mistake on his part. Petitioner further testified that he was moving back in with his wife and children, attending family therapy, seeking employment, and otherwise taking steps toward becoming a productive and law-abiding citizen.

The Board found Petitioner guilty of violating parole condition 5a, which carries a five-to-twelve month presumptive range of recommitment. The Board ordered Petitioner recommitted to serve fifteen months, citing as aggravating factors: "Very poor parole adjustment. You were previously warned and counseled about

[ 109 Pa. Commw. Page 145]

    drug involvement."*fn2 Following the Board's denial of administrative relief, Petitioner appealed.

Petitioner contends that: (1) the Board failed to establish that he was in "possession" of illegal drugs; (2) the Board erred in recommitting him beyond the five-to-twelve month presumptive range; and (3) he received ineffective assistance of counsel at his violation hearing.

Our scope of review is limited to whether necessary findings of fact are supported by substantial evidence, whether the Board has committed an error of law, or whether Petitioner's constitutional rights have been violated. Seyler v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 302, 509 A.2d 438 (1986).

Petitioner initially asserts that the laboratory report showing the presence of methamphetamine in his bloodstream was insufficient to demonstrate "possession" of illegal drugs. We find this argument to be meritless. Petitioner admitted to ingesting the pills. The presence of an illegal drug in Petitioner's bloodstream provides substantial evidence for a finding that he was in possession of that ...


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