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DARRYL BURGESS v. COMMONWEALTH PENNSYLVANIA (08/03/89)

decided: August 3, 1989.

DARRYL BURGESS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW.

COUNSEL

Ellen K. Barry, Carlisle, for petitioner.

Timothy P. Wile, Asst. Chief Counsel, with him, Robert Greevy, Chief Counsel, Harrisburg, for respondent.

Palladino and Smith, JJ., and Kalish, Senior Judge. Smith, J., dissents.

Author: Kalish

[ 130 Pa. Commw. Page 283]

Darryl Burgess (petitioner) appeals from a decision of the Board of Probation and Parole (Board) finding that petitioner was in technical violation of specified conditions. We affirm.

Petitioner was paroled after serving the minimum of a ten to twenty year sentence for robbery and burglary. The conditions attached to his parole were that he not move from his residence without written permission of the parole staff (condition 2) and that he abstain from the use of illegal drugs (condition 5A).

Petitioner was arrested for violation of these conditions. At the hearing the examiner found insufficient evidence to sustain condition 2, but sufficient evidence of a violation of condition 5A.

[ 130 Pa. Commw. Page 284]

The Board found that there was a preponderance of evidence regarding condition 2 and recommitted petitioner for violation of both conditions 2 and 5A.

Our scope of review is limited to determining whether petitioner's rights have been violated, there has been an error of law, or a necessary finding is not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).

At the revocation hearing, the parole officer testified that he took a urine sample from petitioner at the Kensington Community Center, personally marked the container, and sent it in a sealed cardboard container to the Health East Laboratories. The parole officer also submitted into evidence a copy of the Board minutes approving Health East Laboratories as the official urinalysis laboratory for the Board. The laboratory urinalysis report was submitted as well. This was prepared on official laboratory letterhead and signed by Gerald E. Clement, Ph.D, director of toxicology.

Petitioner contends that this was hearsay evidence, uncorroborated, and that therefore the finding of a violation of condition 5A is ...


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