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WILLIAM E. KNUCKLES v. COMMONWEALTH PENNSYLVANIA (12/04/87)

decided: December 4, 1987.

WILLIAM E. KNUCKLES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of William Knuckles, Parole No. 7253-E.

COUNSEL

John P. Liekar, Sr., for petitioner.

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

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 111 Pa. Commw. Page 488]

William Knuckles (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief. We affirm.

While on parole, Petitioner violated technical parole condition 5B (refrain from owning or possessing firearms or other weapons). He was recommitted to serve four months backtime; his backtime was less than the presumptive range (six to twelve months) because the Board found as a mitigating circumstance that Petitioner had community support. When Petitioner's request for administrative relief was refused, he appealed to this Court.

It is necessary to indicate in some detail the evidence presented at the parole violation hearing. Parole

[ 111 Pa. Commw. Page 489]

    agent Durka testified that on May 1, 1986 he and supervisor Green, apparently acting on a tip, contacted Petitioner at his residence. Petitioner was asked whether he had any firearms; he denied having any and gave permission for the house to be searched. The agents discovered a loaded rifle behind a living room chair. In addition, several boxes of shotgun shells were found in the house.

Petitioner testified that while he knew the rifle was in the house he was not "in possession" of it. He explained that the house he had been residing in (with his agent's authorization) had belonged to his father who had died approximately three months earlier and that the rifle had belonged to him. There is no dispute that Petitioner had permission to live at the residence previously occupied by his father.

On appeal here Petitioner raises numerous arguments for our consideration. We shall examine them seriatim keeping in mind that our scope of review of a Board order is limited to determining whether there has been a constitutional violation or an error of law and whether the Board's necessary findings are supported by substantial evidence. Nickens v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 313, 502 A.2d 277 (1985).

Petitioner first contends that because the parole agent did not have a search warrant the search was violative of the Fourth Amendment of the United States Constitution and hence the evidence from that search cannot be used at his Board hearing. Were the agents acting in concert with the police Petitioner's argument might be persuasive. See Commonwealth v. Brown, 240 Pa. Superior Ct. 190, 361 A.2d 846 (1976). But no such concerted action is indicated here. Rather, the ...


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