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CHARLES MONTIONE v. COMMONWEALTH PENNSYLVANIA (12/29/88)

decided: December 29, 1988.

CHARLES MONTIONE, 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 Charles Montione, Parole No. 1269P.

COUNSEL

Joseph J. Prociak, for petitioner.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt. Judge MacPhail did not participate in the decision in this case.

Author: Blatt

[ 125 Pa. Commw. Page 36]

Charles Montione (petitioner) petitions for review of the denial of administrative relief from an order of the Board of Probation and Parole (Board) recommitting him to prison as a technical parole violator. We shall affirm.

The petitioner was originally incarcerated as a result of his convictions for robbery and burglary. He was paroled from the sentences on October 9, 1985. At that time he agreed to conditions governing his parole that included:

5. You shall:

     a. abstain from the unlawful possession, or sale of, narcotics and dangerous drugs, and abstain from the use of controlled substances within the meaning of Controlled Substance, Drug, Device, and Cosmetic Act (35 P.S. §§ 780-101-780-144) without a valid prescription.

He also agreed that he would participate in out-patient drug therapy and that urinalysis was to be included in his parole plan. On August 20, 1986, he submitted a urine sample that tested positive for the presence of cocaine metabolites. He was subsequently charged with a violation of condition 5(a), quoted above. On the basis of his parole agent's testimony and the urinalysis report provided by the laboratory that tested the urine sample, the Board recommitted the petitioner as a technical parole violator. He subsequently sought and was denied administrative relief from the order. He then filed the timely petition for review that is now before the Court.

The petitioner's sole contention is that the Board erred by allowing the admission of improper hearsay testimony, thereby denying him his right to confront the witness, without an adequate finding of "good cause." The petitioner argues that the admission of the toxicology report denied him the opportunity to confront and challenge

[ 125 Pa. Commw. Page 37]

    the testimony of the chemist performing the test. He contends that the hearing examiner's finding of good cause to deny the right to confrontation was inadequate as a matter of law because it was done for the sake of expediency and simplicity. He, therefore, asks that the order of the Board ...


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