The opinion of the court was delivered by: Judge Simpson
Submitted: October 9, 2009
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Raising a novel issue, Christopher L. Flowers (Flowers) asks this Court to review an order of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical parole violator to serve twelve months' backtime. Flowers challenges the Board's determination that he violated his parole by failing to refrain from assaultive behavior when a dog under his control attacked his parole officer. We affirm.
On September 14, 2004, the Court of Common Pleas of Dauphin County sentenced Flowers to concurrent terms of imprisonment of four to eight years for possession with intent to deliver a controlled substance, possession of a prohibited firearm, carrying a firearm without a license, flight to avoid apprehension, and escape from detention. At the time of his conviction, Flowers's minimum sentence expiration date was September 14, 2008, and his maximum sentence expiration date was September 14, 2012.
On September 15, 2008, the Board released Flowers on parole with a number of conditions. Relevant here, general condition 5C required Flowers to "refrain from any assaultive behavior."
Four days later, the Board issued a Warrant to Commit and Detain Flowers based on an incident occurring at his approved residence. The Board charged Flowers with a technical violation of his parole, condition 5C. A Board hearing ensued.
At hearing, during which Flowers was represented by counsel, Flowers's parole officer, Carla Smith, testified that in anticipation of Flowers's release, she conducted a home plan investigation. During the home plan investigation, the parole officer observed three dogs*fn1 penned up behind a sliding glass door in an enclosed porch area of the home. The parole officer informed the home provider that the dogs must be locked up when she conducted her home visits. The home provider agreed.
The parole officer further testified that on the day of Flowers's release, she met with him at the parole office to review the conditions of his parole. During the meeting, the parole officer informed Flowers that the dogs needed to be penned up when she conducted her home visits. Flowers agreed.
Two days later, the parole officer made her initial home visit. Flowers was not aware that a home visit was planned. Flowers met the parole officer outside the front door of his home. The parole officer noticed that the dogs were lunging at the metal screen door, barking, and growling at her. As a result, the parole officer told Flowers to go inside the home and put the dogs away. The parole officer testified that as she waited for Flowers to pen the dogs, she had to physically push on the door from the outside to keep the dogs from driving the door open.
After Flowers pulled the dogs away from the screen door, he told the parole officer it was "okay" for her to enter the house. Notes of Testimony (N.T.), 10/24/08, at 16; Certified Record (C.R.) at 47a. However, when the parole officer entered the residence, she saw that one of the three dogs had not been penned. The parole officer testified she told Flowers she was uncomfortable with the dog being loose and she was afraid of it even though it acted friendly.
Despite the parole officer's concerns with the dog that was already loose in the house, Flowers told her that he wanted to release a second dog so that the dog would have an opportunity to become familiar with her. The parole officer demanded that Flowers not let any more dogs loose into the house since she was already uncomfortable with the first dog.
Flowers, however, insisted the "dogs are fine." N.T. at 16; C.R. at 47a. He then opened the sliding glass door and released the second dog into the house. The dog instantly charged the parole officer, knocking her over into a chair.
The dog then bit at the officer's hair, missed her head, and latched on to her upper arm. Flowers pulled the dog off the parole ...