57 Pa. Commw. 401 | Pa. Commw. Ct. | 1981
Opinion by
Charles Benefiel has filed a petition for review challenging the decision of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical parole violator. Cross-motions for judgment on the pleadings have been filed, and the issues have been submitted on briefs.
Benefiel alleges that a Board warrant filed to commit and retain him as a technical parole violator should be vacated because of certain alleged procedural deficiencies. We disagree and hold the Board’s action was proper and will enter 'judgment for the Board.
Benefiel was under parole supervision when he was arrested on charges of terroristic threats. On November 2, 1978, the Board filed a warrant charging Benefiel with the technical parole violation of disobeying a condition of his parole, namely, that he engaged in overt behavior' which threatened or presented a clear and present danger to himself or others.
First, there is no prerequisite to a valid parole condition that the parolee must agree to its terms. After a convict has met certain eligibility parole requirements, he is then paroled subject to certain general and possibly some special conditions. Thus, Benefiel became subjected to condition No. 10 after parole eligibility was determined. Under the Board’s broad power to make general rules governing the conduct and supervision of parolees
He secondly contends that he is entitled to have his parole reinstated because he was deprived of his right to present witnesses at the revocation hearing.
While we do not have a transcribed record of the hearing, we are aided by the pleading in which is contained a certificate of the Chairman of the Board and the briefs of the parties. In examining these documents, we find that sufficient evidence was before the Board to conclude that Benefiel had violated a condition of his parole by acts of overt behavior which endangered others.
In a motion for summary judgment, the Court must accept as true all well-pleaded facts of record, but must resolve any doubts as to the existence of a genuine issue of material fact against the moving party. First Pennsylvania Bank, N.A. v. Triester, 251 Pa. Superior Ct. 372, 380 A.2d 826 (1977).
The essence of Benefiel’s claim for relief is that he would have moved for a continuance had not Board agents persuaded him not to.
A careful review of these undenied facts set forth above convinces us that Benefiel was not prejudiced by tbe Board’s failure to obtain an affidavit on bis behalf, since tbe Board’s good faith attempt to secure tbe affidavit was rebuffed. Tbe decision to recommit Benefiel as a technical parole violator was not made until after serious attempts were made to obtain tbe witnesses’ testimony.
Accordingly, we bold that Benefiel bad violated a condition of bis parole and tbe decision to recommit him as a technical parole violator was in accordance with tbe law and did not violate bis constitutional rights.
Accordingly, we
Order
The motion for summary judgment of tbe respondent, Pennsylvania Board of Probation and Parole, is granted and judgment is entered in its favor and against tbe petitioner, Charles Benefiel.
37 Pa. Code §63.4 contains the general conditions of parole and reads as follows:
If parole is granted, the parolee shall be subject to the following conditions:
*403 (10) Refrain from overt behavior which threatens or presents a clear and present danger to himself or others.
Section 23 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §331.23.
Benefiel, who was assisted by counsel at the bearing, never averred that be ever made a motion for a continuance or that be ever asked the bearing examiner for a continuance; only that “be was in the process of requesting a continuance” when persuaded not to.