J. R. Billa, Jr. v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph R. Billa, Jr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 2020 C.D. 2007 Submitted: February 22, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 14, 2008 Joseph R. Billa, Jr. petitions for review from an order of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve six months backtime as a technical parole violator. Billa asserts the Board s determination that he violated general condition #2 of his parole by changing his approved residence without permission is not supported by substantial evidence. Concluding the Board s determination is adequately supported, we affirm. In June 1999, the Board paroled Billa from an aggregated 11-and-a-half to 23-year state prison sentence for manslaughter and criminal conspiracy. In February 2007, the Board issued a warrant to commit and detain Billa based on an alleged violation of general condition #2 of his parole. Specifically, the Board alleged Billa left Coleman Hall, his approved residence, without permission from parole supervision staff, and failed to return. A hearing ensued. At the hearing, parole agent Frank Keegan (Agent Keegan) testified Billa s approved residence was Coleman Hall, and Billa left his approved residence on February 23, 2007 and did not return. In addition, Agent Keegan presented a Community Education Centers Special Report (Report), a document completed by a facility staff member when a resident does not return to the facility as scheduled. The Report memorializes the fact that Billa did not return to Coleman Hall on the evening of February 23, 2007, and that an employee of Coleman Hall notified Agent Keegan that Billa was delinquent. In addition, Ferdinano Irizarry, a senior counselor at Coleman Hall (Hall Representative), testified that Billa formerly resided at the facility. Hall Representative testified as part of his job responsibilities he was the custodian of records for Coleman Hall s residents, including Billa. Hall Representative testified on February 23, 2007, Billa did not return to the facility and, as a result, he was unsuccessfully discharged. Hall Representative further testified, although he did not personally prepare the Report, this type of document is routinely prepared by Coleman Hall employees. The hearing examiner admitted the report over Billa s objection. In response, Billa testified he did, in fact, return to Coleman Hall on the evening of February 23, but the facility staff did not properly log him in as having returned. Billa further testified he left the facility the next morning on a social pass and, when he attempted to return, he was denied access because he did not return on February 23. Billa testified he was unable to resolve this issue with facility staff, and he unsuccessfully attempted to contact his parole agent to inform him of the situation. As a result, Billa testified he spent the next few nights in an apartment he rented. 2 Billa further testified on February 28, 2007, he received a message from Agent Keegan indicating the Board issued a detainer against him because he left Coleman Hall. Billa testified he immediately reported to the parole office and was arrested. Billa submitted computer printouts generated by Coleman Hall s log in system for February 19 through February 23, which showed the times he left and returned to the facility. Notably, the printout for February 23 does not indicate Billa actually returned to the facility on that date. Relying on Agent Keegan s testimony and the Report, the hearing examiner determined Billa violated general condition #2 of his parole by changing his approved residence without permission. As a result, the hearing examiner ordered Billa recommitted for six months. Billa filed a timely administrative appeal, which the Board denied. This appeal followed. On appeal,1 Billa first argues the Board did not prove he violated general condition #2 of his parole. Specifically, he asserts, although he was charged with leaving his approved residence, the record lacks sufficient evidence to establish Coleman Hall was, in fact, his approved residence. 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). Substantial evidence is such relevant evidence a reasonable person might 1 Our review is limited to determining whether necessary findings were supported by substantial evidence, an error of law was committed, or a constitutional right of parolee was violated. Bolden v. Pa. Bd. of Prob. & Parole, 794 A.2d 440 (Pa. Cmwlth. 2002). 3 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 factfinder 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). Here, the Board determined Billa violated general condition #2 of his parole by changing his approved residence without permission. See 37 Pa. Code §63.4(2). In support of its determination, the Board relied on the testimony of Agent Keegan as well as the Report. See Certified Record (C.R.) at 123. Based on our review of the record, no error is apparent in the Board s determination. More particularly, at the Board hearing Agent Keegan testified Coleman Hall was Billa s approved residence and Billa failed to return to the facility on February 23, 2007. C.R. at 43. Keegan further testified Billa did not return to Coleman Hall between February 24 and 27. C.R. at 97. In addition, Billa testified from February 24 through February 27 he stayed at an apartment he rented. C.R. at 83. Billa acknowledged parole staff had not approved this apartment as his residence. Id. Clearly, this testimony constitutes substantial evidence to support the Board s determination that Coleman Hall was Billa s approved residence and that Billa changed his residence without permission. 4 Nevertheless, Billa points to another excerpt from Agent Keegan s testimony, in which the Agent testified [Billa] does not have an approved residence. His residence, he had submitted three different home plans. They ve all been rejected. He does not have an approved residence. C.R. at 97. Based on this testimony, Billa argues Agent Keegan s testimony cannot support a determination that Coleman Hall was Billa s approved residence. We disagree. When read as a whole, the record reveals that what Agent Keegan meant was that the Board did not approve a private residence for Billa, so the Board placed him at Coleman Hall. Indeed, the certified record contains a report of Billa s Supervision History as of February 28, 2007, which states, [o]n 12/26/06, [Billa] was transferred to Coleman [Hall] due to his home plan being disapproved. [Billa] requested [his] home plan be resubmitted and the plan was, on 2/12/07. At this time the plan ha[s] not been approved. C.R. at 32. Therefore, we reject Billa s argument that Agent Keegan s later testimony disproves the fact that Coleman Hall was Billa s approved residence. Moreover, at the Board hearing Billa did not dispute that Coleman Hall was his approved residence. In fact, it is clear from Billa s own testimony as well as the printouts he submitted that he resided at Coleman Hall. In addition, Billa offered no evidence of any other approved residence. Thus, the Board s determination that Coleman Hall was Billa s approved residence is amply supported.2 2 Further, the cases cited by Billa in support of his assertion that the Board s determination here is not supported by substantial evidence are distinguishable. See Jackson v. Pa. Bd. of Prob. & Parole, 885 A.2d 598 (Pa. Cmwlth. 2005) (reversing Board determination that parolee committed assaultive behavior against prison employee by hugging her against her wishes); Smalls v. Pa. Bd. of Prob. & Parole, 823 A.2d 274 (Pa. Cmwlth. 2003) (reversing Board determination that parolee (Footnote continued on next page ¦) 5 Billa further asserts that finding a violation of general condition #2 of his parole, the hearing examiner improperly admitted the hearsay testimony of Hall Representative as well as the Report. This argument fails. With regard to the business records exception to the hearsay rule, Pennsylvania adopted the Uniform Business Records as Evidence Act, which states, in relevant part: A record of an act, condition or event shall, insofar as relevant, [is] competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission. 42 Pa. C.S. §6108(b). Further, the Board s regulations provide, In hearings conducted under this chapter, documentary evidence and reports, including, but not limited to depositions, written interrogatories, affidavits, laboratory reports, business records, public records, official records and letters rogatory, may be utilized solely, if the ¦ examiner is satisfied as to their authenticity, relevancy, accuracy and (continued ¦) possessed alcohol where testimony of parole agent was insufficient to establish constructive possession of alcohol); Brown v. Pa. Bd. of Prob. & Parole, 806 A.2d 984 (Pa. Cmwlth. 2002) (reversing Board determination that parolee assaulted his wife where wife promptly recanted initial report of assault in affidavit and in testimony before Board; wife s prior inconsistent statement to parole agent was not substantial evidence). Here, unlike in those cases, the Board s determination that Billa violated his parole by changing his approved residence without permission is directly supported by the testimony of Agent Keenan and the Report, as well as Billa s own testimony. 6 reliability. 37 Pa. Code §71.5(b); see also Pa. R.E. 803(6) (hearsay exceptions; records of regularly conducted activity). Here, the hearing examiner admitted the Report, which memorializes the fact that Billa did not return to Coleman Hall on February 23, 2007. C.R. at 46. Agent Keegan testified he received this report as notification that Billa was delinquent. C.R. at 43. In admitting this report over Billa s objection, the hearing examiner relied on Hall Representative s authenticating testimony that he was the custodian of records for residents of Coleman Hall, including Billa, C.R. at 44-45, and that the Report was a routine business record for the facility. C.R. at 46. No error is apparent in the hearing examiner s admission of the report, which corroborates Agent Keegan s testimony that Billa left Coleman Hall without permission. See, e.g., Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 634 (Pa. Cmwlth. 2005) (log book from rehabilitation center, authenticated by testimony of center s director, was sufficient to support allegation that parolee violated parole by failing to abide by center s rules and regulations). Moreover, contrary to Billa s assertions, the hearing examiner did not rely on Hall Representative s testimony in determining Billa violated general condition #2 of his parole; rather, the Board relied on Agent Keegan s testimony and the Report. C.R. at 123, 138. The Board only relied on Hall Representative s testimony to the extent he gave foundation testimony for admission of the Report. No error is apparent in this regard. See Lee (testimony of director of rehabilitation center who is responsible for overall operation of center was sufficient to authenticate center s log book). 7 As a final issue, Billa argues the Board erred in failing to credit a letter he submitted that was written by a Coleman Hall employee to Billa s employer (at his employer s request) that indicates, among other things, he returned to the facility on the evening of February 23. As noted above, matters of evidentiary weight are within the exclusive province of the Board as fact-finder. Price. Here, the Board chose to accept the evidence submitted by the Commonwealth over that submitted by Billa. The Board s decision not to credit the letter is understandable given that it is directly contrary to the printout Billa submitted from the Coleman Hall log in system, which does not indicate Billa actually returned to the facility on February 23. We may not disturb the Board s determination concerning the weight of the evidence on appeal. Id. Based on the foregoing, we affirm.3 ROBERT SIMPSON, Judge 3 In his reply brief, Billa asks that this Court decline to consider the Board s brief on the grounds counsel for the Board did not enter an appearance as required by Pa. R.A.P. 120(a). Contrary to this assertion, our review of the docket here reveals counsel for the Board did, in fact, enter an appearance; as such, we decline the invitation to strike the Board s brief. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph R. Billa, Jr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 2020 C.D. 2008 ORDER AND NOW, this 14th day of April, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. Joseph R. Billa, Jr. s Application for Relief Pa. R.A.P., 123(a) and Application for Injunction Pending Appeal are DENIED. ROBERT SIMPSON, Judge

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