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KELLY DAMRON v. COMMONWEALTH PENNSYLVANIA (09/28/87)

decided: September 28, 1987.

KELLY DAMRON, 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 Kelly Damron, Parole No. 2128-R.

COUNSEL

Frederick I. Huganir, 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

[ 109 Pa. Commw. Page 555]

Kelly Damron (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment.

On November 23, 1984 the petitioner was released from the State Correctional Institution at Camp Hill (Camp Hill) to the Maryland Division of Probation and Parole, which was to supervise his parole. Special conditions of the parole required that he enroll in, and successfully complete, an in-patient drug and alcohol rehabilitation program, as well as an out-patient drug and alcohol therapy program. A failure to successfully complete either of these programs would constitute a violation of his parole. 37 Pa. Code ยง 67.1(c).

On January 1, 1985 the petitioner successfully completed the required in-patient therapy, but, on August 7, 1985, he was unsatisfactorily discharged from the out-patient program. A Board warrant was thereafter forwarded to the Maryland parole authorities on September 13, 1985. A full Board revocation hearing was held at Camp Hill, pursuant to which the petitioner was found to have violated general parole condition, 5(i) (refrain from unlawful possession, use or sale of controlled substances) (67 Pa. Code 65.4(5)(i)), and the aforementioned special condition regarding his failure to successfully complete out-patient therapy. He was subsequently

[ 109 Pa. Commw. Page 556]

    recommitted to serve the remainder of his unexpired term. Administrative relief was denied and this appeal followed.*fn1

Our scope of review of a Board order, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Anderson v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 369, 503 A.2d 1039 (1986).

The petitioner contends that the Board's conclusion of a violation of condition 5(i) was not supported by substantial evidence because the Board relied upon inadmissible hearsay in the form of laboratory reports. Specifically, the petitioner contends that, inasmuch as the Board never requested the presence of either a representative from the Virginia laboratory, which performed the urinalysis tests, or from the Maryland Division of Probation and Parole, to ...


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