Hracho v. Commonwealth, Pennsylvania Board of Probation & Parole

Opinion by

Judge Colins,

Michael Hraicho (petitioner) appeals a decision of the Pennsylvania Board of Probation .and Parole (Board) recommitting petitioner as a technical parole violator. Having been denied his Petition for Administrative Relief, this appeal followed.

Petitioner was under parole supervision when he was arrested in North Carolina. Upon being paroled from his Conviction in North Carolina, petitioner was returned to .the State Correctional Institute at Camp Hill, where he was resenteneed as a direct¹ and teohnieal parole violator.² The only witness to- testify against petitioner at his revocation hearing -was' Joseph Menegat, ian -employee of the Bioard, who admitted haying no personal.knowledge of petitioner’s technical parole violation.

Petitioner argues that the evidence upon which the Hearing Examiner relied land based, his decision was purely hearsay and 'that the .Examiner’s finding that good cause existed for. the absence of .witnesses was in error. "We agree with both contentions.

. It is quite apparent from the record that a copy of a letter from the .arresting officer in North (Carolina (iSgt. Ditto) was the..sole basis for the Board’s finding. Board (employee Joseph M-enegat was (allowed to. sub-, mit .this letter into ¡evidence which wias forwarded to the Board from petitioner’s parole officer in North Carolina.; The 'Contents of this letter stateid as follows:

This is to inform you that do: [isic] to evidence found at the crime scene on 6/18/8,4 it is my belief that Michael had -consumed or was. under the influence of a alcoholic beverage. Also on 6/19/ 84 the date of his arrest he, was in .Frank’s Tavern ¡Sailer Path NiC oonsumming [sic] alcohol. •

T.K. Ditto

Indian Beach Police Dept.

The above correspondence; hot witnessed or notarized, written on stationery that bore no official letterhead, was admitted over the timely objection of petitioner’s' counsel. The:' Board contends that this letter is reliable, because' petitioner admitted -being arresited by Sgt. Ditto. Granted, the petitioner has admitted he was arrested by ¡Sgt. Ditto, however, the Sergeant’s-letter does not state that he personally saw petitioner consuming alcohol, nor where he arrested the petitioner. This letter, with no independent certification as to its truth or accuracy, has little indicia of reliability. Yet, it was -this letter that solely resulted in petitioner receiving eighteen months back-time for the consumption of alcohol. "While hearsay may be admitted -in probation and parole revocation hearings, a decision to recommit a parolee as a technical parole violator may not be based solely on hearsay .evidence. Grello v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 252, 477 A.2d 45 (1984).

We believe that the hearing examiner failed to ■show good cause for the absence of adverse witnesses at petitioner’s revocation hearing. 37 Pa. Code §§71.5 (d), 71.2(6). The record is devoid of any evidence that the Board either attempted or even requested that the arresting officer from North Carolina appear for petitioner’s hearing. Despondent argues that it is the Board’s policy not to subpoena out-of-state witnesses. In Razderk v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 176, 463 A.2d 111 (1983), it was held -that a similar policy is in direct ¡contravention of the Board’s regulation. iThe Board further argues that they have no power to subpoena persons from North Carolina. This argument must fail because the Board does have a means to assure the presence of out-of-state witnesses at a hearing. The proper means to facilitate this end is through the use of letters rogatory. The Board Would have to petition the appropriate Court ¡of Common Pleas for the issulanee of such and ¡once issued could be used to compel the presence of out-of-state witnesses ¡at a hearing.

Aceoridingily, we reverse the Board’s order reoommitting petitioner as a technical parole violator and remand for lan ladditional hearing consistent with this opinion.

¡Order

And Now, this 16th diay of January, 1986, the decision of the Pennsylvania Board of Probation and Parole, dated March 20,1985, is hereby reversed, and this case is remanded to the Board for an additional hearing consistent with this opinion.

Jurisdiction Relinquished.

1 Petitioner’s direct parole violation was for a conviction for the offense of larceny in North Carolina for which he was recommitted for nine (9) months. The evidence relied on was petitioner’s conviction in a court of record.

2 Petitioner was'charged with- tWo technical parole violations. The first violation was for traveling outside the paroled area without permission for which the, .Board, found- petitioner not guilty. Petitioner’s second- technical violation-was. for- the consumption of alcohol for. which he received the maximum recommitment time of. eighteen (18) months and said conviction,.is on. appeal here..- .