Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Re: Marvin Wallace, Parole No. 1942-P, dated December 1, 1987.
Marvin C. Wallace, petitioner, for himself.
Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
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Before us is an appeal by Marvin C. Wallace (Petitioner), from an order of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief and recommitted him to the State Correctional Institution as a technical parole violator. We affirm.
Petitioner was paroled by the Board in November, 1985 from a sentence of six-to-twenty years that was imposed by the Court of Common Pleas of Philadelphia County as a result of Petitioner's conviction of third degree murder and possession of an instrument of crime. On February 24, 1987, he was arrested and charged with aggravated assault for allegedly striking Richard Tripp on the head with a pipe. On the same day, the Board lodged its warrant and detainer against him. Petitioner's demurrer to the new criminal charge was subsequently sustained in the court of common pleas.
A preliminary parole hearing was held on July 21, 1987, at which time the hearing examiner determined that probable cause was established with respect to Petitioner's two technical parole violations, namely,
[ 119 Pa. Commw. Page 510]
possession of a weapon and assaultive behavior. A parole violation hearing was held on August 13, 1987, and, as a result of that hearing, the Board ordered Petitioner to be recommitted as a technical parole violator to serve fifteen months backtime. Petitioner was represented by defense counsel throughout that hearing.
Petitioner, now proceeding pro se, subsequently filed a timely administrative appeal that was denied by the Board on December 1, 1987. This appeal ensued.
In this appeal, Petitioner raises several issues for our review. First, Petitioner maintains that he was denied the right of due process as the Board did not provide him with advance notice of his violation hearing. We have reviewed the record, however, and have found that this issue was not raised by Petitioner at his violation hearing. Where a parolee fails to raise an issue before the Board, it is considered waived and cannot be raised for the first time on judicial review. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a).
Petitioner asserts, however, that his hearing counsel was ineffective, and that the appeal now before this Court is his first opportunity to raise the notice issue. We do not agree. While this Court has in the past held that an issue may be raised for the first time on appeal here, it has only been where the facts warranted such extraordinary consideration. See Vereen v. Pennsylvania Board of Probation and Parole, 101 Pa. Commonwealth Ct. 63, 515 A.2d 637 (1986) (issue of defense counsel's ineffectiveness not waived where the administrative appeal counsel and violation hearing counsel were not the same). In the case before us, however, Petitioner proceeded pro se during his administrative appeal and did not challenge the sufficiency of the violation hearing ...