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GORDON E. FENTON v. COMMONWEALTH PENNSYLVANIA (10/19/87)

decided: October 19, 1987.

GORDON E. FENTON, 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 Gordon Fenton, Parole No. 4264-M.

COUNSEL

Allen P. Powanda, First Assistant Public Defender, Centre County Public Defender Office, for petitioner.

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

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

Author: Blatt

[ 110 Pa. Commw. Page 321]

Gordon Fenton (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 August 20, 1979, the petitioner was released on parole and he was to be supervised in New York. The New York parole authorities subsequently notified the

[ 110 Pa. Commw. Page 322]

Board that the petitioner had absconded from supervision on December 10, 1984, pursuant to which the Board issued a warrant for his arrest. The arrest was made in Florida and he was then returned to Pennsylvania where he was recommitted to serve eighteen months backtime*fn1 for technical violations of general parole conditions 1 (leaving the parole district without permission) and 2 (changing residence without permission). 37 Pa. Code ยง 63.4(1) and (2). Administrative relief was denied and this appeal followed.

The petitioner initially contends that he was improperly denied the right to confront the witnesses who prepared the New York "Cooperation Violation of Parole Report" (Report) and the Florida teletypes, indicating that he was apprehended there, which documents were submitted into evidence at his revocation hearing.*fn2

In order for the Report and the teletypes to be admissible, the Board was required to make a good cause finding as to why they should be admissible without witnesses present to testify to their validity and reliability. Myers v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 574, 510 A.2d 387 (1986). And the hearing examiner here found that there was good cause to admit the documents into evidence without witness confrontation because the necessary individuals were located in New York and Florida, and, therefore, were not subject to the Board's subpoena power. This issue was squarely addressed in Myers,

[ 110 Pa. Commw. Page 323]

    where we held that a good cause finding based on the inability of the Board to subpoena out-of-state witnesses did not constitute an error.*fn3 Damron v. Pennsylvania Board of Probation and ...


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