F. Carter v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Carter, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 183 C.D. 2008 Submitted: May 30, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 31, 2008 This case returns to us after remand in Carter v. Pennsylvania Board of Probation & Parole (Carter I), 936 A.2d 155 (Pa. Cmwlth. 2007), in which we directed the Pennsylvania Board of Probation and Parole (Board) to reconsider Frank Carter s (Carter) administrative appeal of its decision to revoke his parole and recommit him for 12 months as a technical parole violator. In Carter I, we determined the Board did not utilize a properly constituted panel in considering Carter s administrative appeal where the panel consisted of only two Board members, one of whom sat on the revocation hearing panel. On remand, the Board reaffirmed its prior recommitment order based on its determinations that Carter was unsuccessfully discharged from a community corrections center program, and Carter engaged in assaultive behavior. Carter asserts the record contains no documentary or non-hearsay evidence showing the community corrections center discharged him before he successfully completed the program. He also argues the Board s determination that he engaged in assaultive behavior is not supported by substantial evidence. Discerning no merit in these assertions, we affirm. We glean the following facts from our decision in Carter I. In July 2006, the Board paroled Carter from a five to ten year sentence for aggravated assault. As a special condition of parole, the Board required Carter to enter the MINSEC program1 and remain in it until successfully discharged by parole supervision staff. On July 28, 2006, Carter signed out of the MINSEC facility on a work pass indicating his destination was 215 12th Street, Philadelphia. However, Carter proceeded to the 1600 block of North Dover Street, where he became involved in a physical altercation with Ralph Grandy (Victim). Board agents arrested Carter based on Victim s statement that Carter struck him several times. The Board charged Carter as a technical parole violator for violating special conditions #5C (failure to refrain from assaultive behavior) and #7 (failure to successfully complete the MINSEC program). Thereafter, the Board held a violation hearing before a two-member panel. 1 The MINSEC program consists of a community detention facility designed to meet the needs of offenders referred by the Pennsylvania Department of Corrections by effectively supervising, treating and transitioning them back to society. 2 At the hearing, Victim testified Carter approached him and struck him from behind as he left his residence at 1638 North Dover Street. Victim stated he then attempted to flee, but Carter followed him, knocked him down and tore off his shirt. Victim explained, although Carter continued to hit him, he reached his house and his fiancée stopped the attack by standing between them. Daryl McCormick (Facility Director), the director of the MINSEC facility, also testified. Facility Director stated on July 28, 2006, Carter signed out for work at his approved destination of 215 12th Street. Facility Director explained the MINSEC facility discharged Carter because he travelled instead to North Dover Street. In response, Carter testified he never assaulted Victim and he travelled directly to his work address on the day in question. He stated he first learned of the assault when a Board agent arrested him at work. Ultimately, the Board determined Carter violated special conditions #5C and #7 and recommitted him to serve 12 months backtime as a technical parole violator. On Carter s administrative appeal, the Board affirmed by a twomember panel. Notably, one of the panel members also sat on the revocation hearing panel. Carter appealed to this Court, arguing that, in denying his administrative appeal, the Board deprived him of due process rights by failing to 3 comply with Section 4(d) of the Act commonly known as the Parole Act (Act)2 (requiring that, if practicable, an administrative appeal of a revocation decision be reviewed by three Board members, two of whom were not on the hearing panel whose decision is being appealed). Because the administrative appeal panel consisted of only two members, one of whom also sat on the hearing panel, this Court held the Board did not afford Carter a proper appeal under the Act. See Carter I. Thus, we vacated the Board s order denying Carter s administrative appeal and remanded for review by a properly constituted panel. On remand, the Board reaffirmed its prior recommitment order. In particular, the Board rejected Carter s assertion that substantial evidence did not support its decision, noting the testimony from Parole Agent Louis Margerum, Victim and Facility Director provided adequate support. Carter again appeals here.3 In determining whether a parolee violated a condition of his parole, the Board may consider all admissible evidence; however, its holding must rest upon substantial evidence. Price v. Pa. Bd. of Prob. & Parole, 863 A.2d 173 (Pa. Cmwlth. 2004). 2 Substantial evidence is such relevant evidence a reasonable Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §331.4(d). 3 On review, we are limited to determining whether the record supports the necessary findings of fact, whether errors of law were made, or whether constitutional rights were violated. Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257 (Pa. Cmwlth. 2008). 4 person might accept as adequate to support a conclusion. Id. Further, the Board must establish by a preponderance of the evidence that the charged conduct occurred. Id. A fact is established by a preponderance of evidence when the evidence would lead the fact-finder to find the existence of a fact is more probable than not. Id. The Board is the ultimate fact-finder and this Court will not disturb the Board s determinations regarding credibility or evidentiary weight on appeal. Id. The mere presence of conflicting testimony or evidence in the record does not mean the Board s findings are not supported by substantial evidence. Harper v. Pa. Bd. of Prob. & Parole, 520 A.2d 518, 523 (Pa. Cmwlth. 1987). Also, [w]hen reviewing the evidentiary record to determine whether a finding is supported by substantial evidence, the prevailing party is entitled to the benefit of every inference that may be logically and reasonably drawn from the evidence viewed in a light most favorable to the prevailing party. Bandy v. Pa. Bd. of Prob. & Parole, 530 A.2d 507, 512 n.10 (Pa. Cmwlth. 1987). I. MINSEC Discharge Carter first argues the Board s determination that he violated special condition #7 (failure to successfully complete the MINSEC program) is not supported by admissible, non-hearsay evidence. In particular, he asserts Facility Director only testified MINSEC discharged him, not that MINSEC unsuccessfully discharged him. Carter points out the Board hearing examiner sustained his hearsay objection to Facility Director s statement that he discharged Carter based on information from Parole Agent Margerum that Carter deviated 5 from his approved work destination. Thus, Carter maintains the Board failed to prove his unsuccessful discharge from the MINSEC program. In support, Carter cites Hudak v. Pennsylvania Board of Probation and Parole, 757 A.2d 439 (Pa. Cmwlth. 2000). In Hudak, we placed the burden of proof on the Board, in establishing a technical parole violation based on an unsuccessful discharge from a community corrections center, to prove the parolee was at least somewhat at fault for the parole violation. Id. at 441. There, we held, where a parolee was hospitalized, and, as a result, could not report for curfew, he should not be recommitted for his unsuccessful discharge from the center, because the parole violation required some kind of fault on the parolee s part. Here, unlike in Hudak, the record not only supports the Board s finding that Carter did not successfully complete the MINSEC program, it also reveals Carter was significantly at fault for his discharge. More particularly, Parole Agent Margerum testified Carter s parole supervisors instructed him to enter and remain in MINSEC until successfully discharged. Certified Record (C.R.) at 44-45. Carter was also required to abide by all conditions imposed by MINSEC program staff. Id. at 45. Failure to abide by all conditions imposed by MINSEC program staff and failure to successfully complete the MINSEC program for any reason would result in an immediate violation of Carter s parole. Id. at 45. Victim testified on July 28, 2006, Carter assaulted him near his residence on North Dover Street. Id. at 36-38, 40-41. Carter approached Victim 6 from behind, struck him in the back of his head and knocked him down. Id. After Victim got back up, Carter chased him and continued to hit him. Id. Carter knocked Victim down four or five times and ripped off his shirt. Id. Following the assault, Victim s family physician treated him for injuries. Id. Victim s testimony establishes Carter deviated from his approved work destination at 215 12th Street and attacked Victim at his residence in the 1600 block of North Dover Street. Facility Director then testified MINSEC discharged Carter for deviation based on information from Carter s parole agent. Id. at 46-47. Although Carter testified he did not deviate from his approved work route and did not assault Victim, the Board rejected Carter s testimony. We cannot disturb this determination. Price; Harper. In sum, Victim s testimony supports the Board s determination that Carter deviated from his approved work route. Facility Director s testimony supports the Board s finding that MINSEC discharged Carter for deviation. Based on the testimony of these witnesses, the Board could certainly infer Carter was unsuccessfully discharged from the MINSEC facility program. Additionally, this evidence, combined with Parole Agent Margerum s testimony regarding the special conditions of Carter s parole, supports the Board s determination that Carter did not successfully complete the MINSEC program and thus violated special condition #7. Therefore, the Board s determination that Carter s 7 unsuccessful discharge from MINSEC constituted a technical parole violation is supported by the record and in accord with the law. Hudak. II. Assaultive Behavior Carter also asserts substantial evidence does not support the Board s determination that he violated special condition #5C by engaging in assaultive behavior. He contends his testimony must be given equal weight with that of Victim. Carter points out he testified he went to work on July 28, 2006 and did not assault Victim. In support, he notes Board agents arrested him at work. He also emphasizes: no police report or documentation of Victim s injuries exists; Victim s fiancée did not testify in corroboration; and, Victim s testimony is biased because Carter dated Victim s fiancée. Carter further argues the Board bears the burden of proving a violation; and where, as here, the testimony is equal in weight, the parolee must receive the benefit of the doubt. Having determined Victim s testimony provides substantial evidence that Claimant assaulted Victim, we disagree. Here, the Board credited Victim s testimony regarding the assault. Victim testified Carter approached him near his vehicle in the 1600 block of North Dover Street and struck him with sufficient force to knock him down several times. C.R. at 36-38, 40-41. Victim, with the help of his fiancée, escaped into his residence. Id. Victim s testimony is sufficient to establish Carter violated special condition #5C by engaging in assaultive behavior. See, e.g., Harper (credited testimony of two individuals that parolee hit them several times in the face 8 constituted substantial evidence to support the finding that parolee engaged in assaultive behavior). Moreover, as explained above, no error is apparent in the Board s decision to resolve issues of witness credibility, evidentiary weight and conflicts in the evidence in favor of the Board and against Carter. Price; Harper. For these reasons, we conclude the record contains substantial evidence to support the Board s determinations that Carter violated special conditions #7 and #5C. Discerning no error in the Board s decision denying Carter s administrative appeal, we affirm. ROBERT SIMPSON, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Carter, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 183 C.D. 2008 ORDER AND NOW, this 31st day of July, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. ROBERT SIMPSON, Judge
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