C. F. Anderson v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carlton F. Anderson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 2098 C.D. 2007 Submitted: March 14, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: May 12, 2008 Carlton F. Anderson (Anderson) petitions for review from an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board order recommitting Anderson as a technical parole violator to serve six months backtime. We affirm. On November 11, 2004, the Board reparoled Anderson from a 40 year state prison sentence for rape. On January 26, 2007, Anderson was arrested by Parole Agent Ryan Shaw (Agent Shaw). Anderson was charged with violating a special parole condition which prohibited him from consuming alcohol.1 1 The special parole condition reads as follows: Condition #7: You shall comply with the following special conditions imposed by the Board and with special conditions imposed by the parole supervision staff. You shall not consume or possess alcohol under any condition or for any reason-mandatory. A parole violation hearing was held at which Agent Shaw testified that on January 26, 2007, he arrived at Anderson s apartment to do a home check. Agent Shaw stated that when Anderson came to the door to let him in, he smelled alcohol coming from his persons [sic] and his eyes was [sic] glassy at that time and his speech was slurry. Notes of Testimony (N.T.) at 11. Agent Shaw got a urine test kit and urinalysis slip from his car, returned to the house and had Anderson fill out the laboratory slip and sign his name. After Anderson signed the form, Agent Shaw stated that he took Anderson into the bathroom and had him urinate in a cup while Agent Shaw watched. Agent Shaw then took the cup, sealed it and placed it in his pocket. Agent Shaw then checked Anderson s apartment. In the refrigerator, Agent Shaw found a black bag with a four pack of Colt 45 in it. Anderson told Agent Shaw that the beer belonged to his girlfriend, who was in the bedroom.2 Agent Shaw further stated that Anderson became irritated with him, resulting in a call to 911 for assistance. Agent Shaw placed Anderson under arrest. Agent Shaw testified that Anderson signed the urinalysis slip and that the specimen tested positive for ethanol.3 The resulting report on the analysis of Anderson s specimen was admitted into evidence as Exhibit S-2. The report was on Lab letterhead, was signed by the certifying scientist and stated that the specimen tested positive for ethanol using a screen cut-off of 0.05g%. Anderson testified at the hearing that he did not sign the urinalysis slip and that he did not give a urine specimen to Agent Shaw that night. 2 Agent Shaw also notes in his testimony that Anderson, as the sole person on the lease of the apartment, was in possession of the alcohol, as it was in his refrigerator. 3 The test was performed by Scientific Testing Laboratories, Inc. (Lab). Lab had been approved by the Board to perform drug analysis of urine samples taken from persons under its supervision. 2 On August 6, 2007, the Board mailed its revocation decision, recommitting Anderson as a technical parole violator, for the violation of condition #7, alcohol consumption. The Board stated that it relied upon the parole agent s testimony and the lab report. Anderson filed an administrative appeal. On October 18, 2007, the Board affirmed the revocation decision. Anderson now petitions our court for review.4 Anderson contends that the evidence presented was not sufficient to sustain the Board s finding of a parole violation. We disagree. Initially, we observe that substantial evidence is defined as evidence that a reasonable mind would deem sufficient to support a conclusion of law. Price v. Pennsylvania Board of Probation and Parole, 863 A.2d 173 (Pa. Cmwlth. 2004). We also note that the Board must prove a technical parole violation by a preponderance of the evidence. McCauley v. Pennsylvania Board of Probation and Parole, 510 A.2d 877, 879 (Pa. Cmwlth. 1986). A preponderance of the evidence is such proof as leads the fact-finder ¦to find that the existence of a contested fact is more probable than its nonexistence. Sigafoos v. Pennsylvania Board of Probation and Parole, 503 A.2d 1076, 1079 (Pa. Cmwlth. 1986). As stated previously, Agent Shaw testified at the parole violation hearing. Agent Shaw testified that Anderson smelled of alcohol, had glassy eyes and was slurring. Agent Shaw further stated that he watched Anderson provide a urine sample and that the sample came back as positive for ethanol. The Board accepted the parole agent s testimony. In parole violation proceedings coming 4 Our review of a Board recommitment decision is limited to a determination of whether necessary findings are supported by substantial evidence, whether an error of law was committed, or whether any constitutional rights of the parolee have been violated. Wright v. Pennsylvania Board of Probation and Parole, 743 A.2d 1004 (Pa. Cmwlth. 1999). 3 under its exclusive jurisdiction, the Board is the fact-finding agency. Therefore, matters of witness credibility and evidentiary weight are solely for the Board s discretion. Falasco v. Pennsylvania Board of Probation and Parole, 521 A.2d 991, 994 (Pa. Cmwlth. 1987). The Board determined that Agent Shaw was credible and accepted his testimony. Therefore, the Board s conclusion that Anderson violated special condition #7 of his parole is supported by substantial evidence of record. Accordingly, we affirm the decision of the Board. JIM FLAHERTY, Senior Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carlton F. Anderson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 2098 C.D. 2007 ORDER AND NOW, this 12th day of May, 2008, the Order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge
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