Damron v. Pa. Bd. of Prob. & Parole

109 Pa. Commonwealth Ct. 554 (1987)

531 A.2d 592

Kelly Damron, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent.

No. 1820 C.D. 1986.

Commonwealth Court of Pennsylvania.

September 28, 1987.

Submitted on briefs January 22, 1987.

Before President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three.

*555 Frederick I. Huganir, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

OPINION BY JUDGE BLATT, September 28, 1987:

Kelly Damron (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment.

On November 23, 1984 the petitioner was released from the State Correctional Institution at Camp Hill (Camp Hill) to the Maryland Division of Probation and Parole, which was to supervise his parole. Special conditions of the parole required that he enroll in, and successfully complete, an in-patient drug and alcohol rehabilitation program, as well as an out-patient drug and alcohol therapy program. A failure to successfully complete either of these programs would constitute a violation of his parole. 37 Pa. Code §67.1(c).

On January 1, 1985 the petitioner successfully completed the required in-patient therapy, but, on August 7, 1985, he was unsatisfactorily discharged from the outpatient program. A Board warrant was thereafter forwarded to the Maryland parole authorities on September 13, 1985. A full Board revocation hearing was held at Camp Hill, pursuant to which the petitioner was found to have violated general parole condition, 5(i) (refrain from unlawful possession, use or sale of controlled substances) (67 Pa. Code 65.4(5)(i)), and the aforementioned special condition regarding his failure to successfully complete out-patient therapy. He was subsequently *556 recommitted to serve the remainder of his unexpired term. Administrative relief was denied and this appeal followed.[1]

Our scope of review of a Board order, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Anderson v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 369, 503 A.2d 1039 (1986).

The petitioner contends that the Board's conclusion of a violation of condition 5(i) was not supported by substantial evidence because the Board relied upon inadmissible hearsay in the form of laboratory reports. Specifically, the petitioner contends that, inasmuch as the Board never requested the presence of either a representative from the Virginia laboratory, which performed the urinalysis tests, or from the Maryland Division of Probation and Parole, to testify to the accuracy and reliability of those tests, the Board's good cause finding for their admission was erroneous.

We initially note that Board regulations pertinently provide:

In technical violation hearings, . . . witnesses upon whose testimony the parole revocation would be based shall appear and be subject to examination by the parolee except when the Examiner finds on the record good cause for not allowing such confrontation. In hearings under the provisions set forth in §§71.3 (relating to arrest for a new criminal offense) and 71.4 (relating to conviction for new criminal offense), documentary *557 evidence and reports may be utilized solely, provided the Examiner is satisfied as to their authenticity, relevancy and accuracy.

37 Pa. Code §71.5(d). And, in the case sub judice, the Examiner stated that there was good cause to admit the laboratory reports into evidence even though no one was present to testify to their accuracy and reliability, because the persons with such knowledge were beyond the subpoena power of the Board. Myers v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 574, 510 A.2d 387 (1986) (a good cause finding based upon the unavailability of witnesses, due to the fact that they are outside the Commonwealth of Pennsylvania, and, therefore, not subject to the Board's subpoena power is not in error). Inasmuch as we find Myers to be controlling on the good cause issue, we need not address the petitioner's contentions that the Board should have made some effort to compel the out-of-state witnesses' appearance, or that the Board failed to show that the laboratory which performed the test was one approved by the Board.[2]

Having concluded that the Board's good cause ruling was not in error, we must also determine whether or not there was substantial evidence to support the Board's recommitment order.

We initially note that the evidence relied upon here to support the petitioner's recommitment consisted of laboratory reports, prepared in Virginia at the request *558 of the Maryland parole authorities. And, in order for such reports to be admissible as a business record exception to the hearsay rule, they must contain some indicia of regularity and reliability such as the laboratory letterhead, the signature of a known and responsible staff member, or some other mark of reliability. Powell v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 7, 513 A.2d 1139 (1986), petition for allowance of appeal denied, 514 Pa. 640, 523 A.2d 346 (1987).

Our review of the record of this case indicates that the laboratory reports relied upon by the Board do contain the necessary letterhead and signature of the pathologist director so as to qualify them as business records, and, therefore, an exception to the hearsay rule.[3] Accordingly, we must hold that the laboratory reports herein constitute substantial evidence to support the petitioner's recommitment.

We will, therefore, affirm the order of the Board.

ORDER

AND NOW, this 28th day of September, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.

NOTES

[1] The petitioner does not challenge the Board's conclusion that he violated the special condition of successfully completing outpatient therapy.

[2] Our review of the relevant statute and regulations reveals no basis for imposing upon the Board a duty to attempt to coax witnesses into its jurisdiction when it has no authority to compel their appearance. Likewise, where, as here, a parolee is supervised by the parole authorities of another state upon his request, the Board is not required to prove that the laboratory chosen by the other state is also approved by the board, so long as there is some indicia of reliability on the face of the laboratory report. See Myers.

[3] If out-of-state laboratory reports, containing the required letterhead and signature, thereby evidencing their reliability, were held not to be business records, then the Board would have no recourse when a parolee, released to another state's jurisdiction, chose to violate his parole by using drugs or alcohol outside the Commonwealth of Pennsylvania.