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SAMUEL E. MAXFIELD v. COMMONWEALTH PENNSYLVANIA (03/01/88)

decided: March 1, 1988.

SAMUEL E. MAXFIELD, 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 Samuel E. Maxfield, Parole No. 1754-G, dated February 17, 1987.

COUNSEL

Frederick R. Gutshall, Deputy Public Defender, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. President Judge Crumlish concurs in the result.

Author: Doyle

[ 114 Pa. Commw. Page 163]

This is an appeal by Samuel Maxfield (Petitioner) from an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief.

In March 1986, Petitioner was paroled from a six-to-twelve-year sentence imposed as a result of his conviction

[ 114 Pa. Commw. Page 164]

    for rape. A special condition of his parole was that he not associate with one Marcelona Becker. On July 28, 1986 Petitioner was arrested and charged with three technical parole violations. Specifically, Petitioner was charged with violating general condition 5c (refrain from assaultive behavior) and with violations of two special conditions, one pertaining to outpatient psychiatric/psychological therapy and the other pertaining to associating with Ms. Becker.

At his parole violation hearing, Petitioner waived his right to counsel and admitted violating the outpatient therapy condition. The Board also charged Petitioner with violating his parole conditions by associating with Ms. Becker and by assaulting her. Ms. Becker did not testify at the hearing. The parole agent testified that he had attempted to subpoena her four times without success and that he had been unable to locate her. Supervisor Dadigan was then called to testify. He stated that on July 8, 1986 Ms. Becker had told him that on or about July 7, 1986, Petitioner came up to her in a bar, grabbed her by the arm, swung her around and punched her in the face with his fist, causing her glasses to break and cutting her lip. He further testified that Ms. Becker had signed a statement to this effect in his presence the next day and that he personally observed her lip to be cut and swollen. This testimony was admitted into the record without objection, as was the statement purportedly signed by Ms. Becker. There was no specific finding of good cause by the hearing examiner for admitting the hearsay evidence. As for other testimony relating to this incident, Petitioner admitted having encountered Ms. Becker at the bar and conversing with her but denied any assaultive behavior.

The Board recommitted Petitioner for all three violations. In finding that Petitioner violated the prohibition against assaultive behavior, it relied upon "Supervisor's testimony. Documentary evidence received

[ 114 Pa. Commw. Page 165]

    at the time of the violation hearing." In finding Petitioner had violated the condition that Petitioner not associate with Ms. Becker, the Board relied upon the same evidence. To support its finding of a violation of the outpatient therapy condition, the Board relied upon Petitioner's admission. Petitioner was recommitted to serve a total of twenty-four months backtime, six months for assaultive behavior and nine months for each of the other conditions. The backtime was within the presumptive range for each offense. Subsequent to the imposition of twenty-four months backtime, Petitioner petitioned the Board for administrative relief, maintaining that the charges against him were not supported by the evidence. Administrative relief was denied and this petition for review followed. Subsequent to Petitioner filing his ...


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