Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Tyrone Neal, Parole No. 4300-R.
John C. Armstrong, 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 Craig. Dissenting Opinion by Judge Palladino.
[ 109 Pa. Commw. Page 408]
This parole revocation case involves a question governed by Powell v. Board of Probation and Parole, 100 Pa. Commonwealth Ct. 7, 513 A.2d 1139 (1986), appeal denied, 514 Pa. 640, 523 A.2d 346 (1987). The issue is whether a parole revocation and recommitment for drug usage may be based upon an exhibit offered against the parolee as a purported laboratory report, without first-hand authentication and devoid of any indicia of reliability and accuracy, being a computer printout of generic nature, lacking any signature or letterhead to establish the laboratory's attestation to its alleged work.
Here the petitioner, parolee Tyrone Neal, after agents of the Pennsylvania Board of Probation and Parole arrested him, received a parole violation hearing before an examiner on March 6, 1986. Based on the record of the hearing, the board, on April 4, 1986, ordered the parolee recommitted for backtime of 24 months, of which 12 months were for violation of Technical Condition No. 5A, use of drugs, and the remaining 12 months were for violation of Technical Condition No. 6, failure to attend outpatient therapy.
Without contesting the 12 months imposed for Condition No. 6, the parolee has appealed the drug usage backtime because its principal evidentiary basis was the purported laboratory report, supported only by the parole agent's testimony that he had received it in the mail after dispatching the parolee's urine sample to the laboratory and conferring with laboratory employees by telephone.
Board counsel's brief urges that we overrule Powell, contending that the agent's testimony of mailing and receipt
[ 109 Pa. Commw. Page 409]
is enough to confirm the reliability of a machine reproduction which contains the parolee's name, the alleged test results and a boilerplate claim that the laboratory is one approved by the Pennsylvania Department of Health.
There may be a misapprehension as to the nature of this court's concern about the offered proof of drug usage.
There is no problem with the agent's direct testimony about his mailing of the sample and his receipt of the document which he offered. Powell imposes no requirement that laboratory personnel be produced for first-hand authentication ...