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JEROME WARD v. COMMONWEALTH PENNSYLVANIA (03/07/88)

decided: March 7, 1988.

JEROME WARD, 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 Jerome Ward, Parole No. 4706-M.

COUNSEL

Charles J. Kroboth, Jr., for petitioner.

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

Judges Craig, Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 114 Pa. Commw. Page 256]

Jerome Ward (Petitioner) seeks review of a decision of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief.

Petitioner was serving a three to ten year sentence for robbery with a concurrent one to three year sentence for criminal conspiracy. On February 14, 1982 Petitioner was paroled from these sentences. On August 31, 1982 Petitioner was arrested on several criminal charges.*fn1 He was convicted of these offenses on June 22, 1983.

[ 114 Pa. Commw. Page 257]

On June 25, 1985, a full board violation and revocation hearing was held. As a result of this hearing, the Board issued an order recommitting Petitioner to serve eighteen months backtime as a technical parole violator (TPV) and sixty-six months backtime as a convicted parole violator (CPV) consecutively. On April 28, 1986, the Board modified its recommitment order reducing the TPV backtime to twelve months.*fn2

Petitioner filed a request for administrative relief from the Board's order of April 28, 1986, which request was denied by the Board. Petitioner appealed the denial of administrative relief to the Commonwealth Court. In response to a motion by Petitioner, the Commonwealth Court remanded for a new hearing because of the unavailability of a complete record of the June 25, 1985 hearing.

A second full Board hearing was held on February 25, 1987. At this second hearing, Petitioner contested the allegation that he had violated condition 5A (abstention from the use of controlled substances). Parole agent Daniel Solla testified that at the June 25, 1985 hearing Petitioner had admitted to using drugs in violation of

[ 114 Pa. Commw. Page 258]

    parole condition 5A. Petitioner objected to this testimony.

Also, at this hearing, two laboratory urinalysis reports from Regional Clinical Laboratories were admitted into evidence to prove that Petitioner violated parole condition 5A. The lab reports contained the laboratory letterhead, were signed by a doctor, and were stamped positive. A copy of a service contract between the Board and Regional Clinical Laboratories was also admitted into evidence. The Petitioner objected to the admission into evidence of the two laboratory reports. The hearing examiner overruled the Petitioner's objection, stating that the laboratory reports met the requirements of Powell*fn3 and there was good cause to admit the reports. At the hearing evidence was also presented as to the Petitioner's adjustment while on parole. Parole Agent Solla testified that Petitioner tested positive for drugs on eleven other occasions. Petitioner objected. The Board overruled the Petitioner's objection, stating that Agent Solla's testimony was only being used to determine Petitioner's adjustment while on parole, not whether he had violated condition 5A.

On March 11, 1987, the Board recommitted Petitioner to serve eighteen months backtime as a TPV and his unexpired term (eighty-four months) as a CPV concurrently with his TPV backtime. The Board relied on both the parole agent's testimony and the two laboratory urinalysis reports in reaching its decision that the Petitioner committed a technical parole violation by violating condition 5A. Also, in its order the Board listed the following aggravating circumstances: ...


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