D.L. Patrick v. PPBD.L. Patrick v. PPB
D‘Wayne L. Patrick (Petitioner) has petitioned this Court to review the decision of the Pennsylvania Parole Board (Board), mailed April 22, 2025, which affirmed the rescission of his automatic reparole. After careful review, we affirm.
I. BACKGROUND1
Petitioner is an inmate currently incarcerated at the State Correctional Institution Fayette (SCI-Fayette). See Pet. for Rev., 6/23/25. In 1993, Petitioner was sentenced to 15 to 35 years of incarceration for robbery and burglary, among other crimes stemming from the same incident. See Sentence Status Summ., 9/6/06.
Petitioner remained delinquent until December 2024, when the Board issued a warrant for his arrest. See Warrant to Commit & Detain, 12/3/24. Petitioner was later arrested in the state of New York and returned to the Pennsylvania Department of Corrections’ (DOC) custody. See Admin. Remedies Form, Attach. (Notice of Charges & Hr‘g).
Following his arrest and during intake at SCI-Smithfield, Petitioner voiced suicidal and homicidal ideations, which prompted DOC staff to place Petitioner in a psychiatric observation cell. See id., Attach. (DOC R., 12/11/24). The next day, while psychiatric staff interviewed him, Petitioner stated that he would “kill any man in his cell.” See id., Attach. (DOC Misconduct R., 12/12/24). DOC then charged Petitioner with prison misconduct for threatening another person. See id. A hearing examiner held a disciplinary hearing, which Petitioner did not attend, and the examiner found Petitioner guilty of misconduct. See DOC Disciplinary Hr‘g R., 12/17/24.
The Board, unaware of Petitioner‘s disciplinary infraction, issued a decision on January 16, 2025, recommitting Petitioner as a technical parole violator (TPV). See Bd. Dec., 1/16/25. The Board ordered that Petitioner be placed in a community corrections or other DOC-operated facility for a period not to exceed six months, with automatic reparole available at the conclusion of that period. See id.
Shortly thereafter, DOC notified the Board of Petitioner‘s misconduct. See DOC Mem., 1/24/25. Accordingly, the Board issued a second decision, rescinding Petitioner‘s automatic reparole after determining that his misconduct
On March 3, 2025, Petitioner sought administrative relief from both Board decisions. In response, the Board dismissed his challenge of the January 16 decision as untimely and affirmed the January 28 decision that rescinded his automatic reparole. After preserving the date of Petitioner‘s initial filing and directing him to perfect the appeal, this Court then received Petitioner‘s timely petition for review. See Pet. for Rev.
Petitioner presents one issue for this Court‘s review: whether his conduct put others in “reasonable apprehension of bodily harm” and, thus, warranted rescission of his automatic parole.3 Pet‘r‘s Br. at 4.
III. DISCUSSION4
Petitioner asserts that his statement does not constitute assaultive behavior. See Pet‘r‘s Br. at 11-14. He offers three arguments in support of this assertion. See id. First, according to Petitioner, his remark was an isolated statement made only to healthcare workers during a mental-health evaluation. See id. at 12. He next contends that the remark was not accompanied by any violent act “toward[] the people conducting the evaluations or those who were moving him” throughout the facility. Id. at 13. Finally, Petitioner argues that “[n]o specific person was threatened.” Id. at 12 (citing in support Anderson, 266 A.3d at 111, and Malarik v. Pa. Bd. of Prob. & Parole, 25 A.3d 468, 470 (Pa. Cmwlth. 2011)). Therefore,
Preliminarily, we note that DOC misconduct reports constitute substantial evidence upon which the Board may rely. See Anderson, 266 A.3d at 111; Lockett v. Pa. Bd. of Prob. & Parole, 141 A.3d 613, 617 (Pa. Cmwlth. 2016). Here, the DOC‘s prison misconduct report charged Petitioner with “threatening another person.” See Admin. Remedies Form, Attach. (DOC Misconduct R., 12/12/24). The hearing examiner also found that Petitioner stated he would “kill any man in his cell.” See DOC Disciplinary Hr‘g R. (crediting the written report of Psychological Services Specialist Baxter). The Board was entitled to rely on these findings as substantial evidence in rescinding Petitioner‘s automatic reparole, provided that his statement constitutes “assaultive behavior.” See Anderson, 266 A.3d at 111; Lockett, 141 A.3d at 617.
Under the Prisons and Parole Code,5 a parolee who commits a disciplinary infraction involving “assaultive behavior” loses eligibility for automatic reparole. See
Neither the statute nor the regulations define the term “assault” or “assaultive behavior.” Nevertheless, this Court has established that “[a]ssaultive behavior encompasses a broader category of actions than would the crime of assault, and thus actions that would not constitute a crime may nonetheless be sufficient grounds for revocation of parole.” Jackson v. Pa. Bd. of Prob. & Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005). In the context of parole violations, the Court has cited
However, it is not necessary that the intended recipient hears or perceives the threat. See, e.g., Anderson, 266 A.3d at 111 (finding that an inmate‘s threat to punch an officer in the mouth, though made only to staff and not directly to the officer, constituted assaultive behavior); Malarik, 25 A.3d at 470 (holding that a parolee‘s letters soliciting funds from third parties so he could kidnap and execute a judge constituted assaultive behavior); see also, e.g., Commonwealth v. Simmons, 56 A.3d 1280, 1284-85 (Pa. Super. 2012), aff‘d, 91 A.3d 102 (Pa. 2014) (recognizing that communicating a threat to “hospital personnel” rather than the intended victim did not negate the finding of assaultive behavior).7
Moreover, an overt act need not accompany the threat. See, e.g., Moore, 505 A.2d at 1367-68; Dunkleberger v. Pa. Bd. of Prob. & Parole, 573 A.2d 1173, 1175 (Pa. Cmwlth. 1990) (holding that a parolee‘s conditional threat to kill his pregnant girlfriend constituted assaultive behavior because, despite no accompanying act, it reflected a “willful offer with force or violence to [harm] another“). Furthermore, the recipient need not actually experience apprehension or testify to any fear as assaultive behavior is determined by the content and nature of the threat itself. See Anderson, 266 A.3d at 111; see also Butterfield v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1030 CD 2010, filed Mar. 31, 2010), slip op. at 4, 2010 WL 9511412, at *2 (holding that a parolee‘s threat to shoot a clinical supervisor if he saw the supervisor on the street was assaultive behavior because it demonstrated that he was “inclined toward or disposed to” commit assault “if the opportunity ever arose“).8
Here, Petitioner‘s argument that the healthcare setting precludes a finding of assaultive behavior is unpersuasive. The content of Petitioner‘s threat, rather than the clinical setting in which it was made, controls our analysis. See Anderson, 266 A.3d at 111; Simmons, 56 A.3d at 1284-85. Petitioner explicitly threatened lethal harm to any person who entered his cell, and it is immaterial that the threat was not heard directly or perceived firsthand by an intended recipient. Cf. Malarik, 25 A.3d at 470. Because Petitioner expressed a willingness to inflict harm that would certainly place another person in apprehension of bodily harm, neither the setting nor the audience precludes a finding of assaultive behavior. See Anderson, 266 A.3d at 111; Malarik, 25 A.3d at 470.
Next, Petitioner‘s argument that his remark cannot be assaultive behavior because it was unaccompanied by an overt act misconstrues the controlling legal standard. Whether the parolee acted in furtherance of his words is irrelevant.
Finally, Petitioner‘s argument that a threat must identify a specific target lacks support. The absence of a specifically named recipient does not preclude a determination that the nature of the remark itself is assaultive. See Anderson, 266 A.3d at 111; Butterfield, 2010 WL 9511412, at *2. Petitioner‘s statement applies broadly to any inmate, officer, or staff member who may choose or be required to enter his cell. See DOC Disciplinary Hr‘g R. A threat of fatal harm directed at “anyone” reflects a general “inclinat[ion] or disposit[ion] to commit assault” if the circumstances in the threat occur. See Butterfield, 2010 WL 9511412, at *2. Here, the breadth and severity of Petitioner‘s remark would reasonably place any person entering Petitioner‘s cell in great apprehension of bodily harm. See Anderson, 266 A.3d at 111. Because the Board need not establish that any specific recipient actually experienced or testified to apprehension, the absence of a specified victim does not diminish the threatening nature of Petitioner‘s remark or prevent the finding that his statement constitutes assaultive behavior. See id.
Petitioner‘s reliance on Anderson and Malarik is misplaced. Neither case imposes a requirement that the target of the threat be specifically identified. See Anderson, 266 A.3d at 111; Malarik, 25 A.3d at 470. In each case, this Court treated the parolee‘s statement as assaultive because of the statement‘s violent
IV. CONCLUSION
For these reasons, substantial evidence supports the Board‘s determination that Petitioner committed assaultive behavior under
LORI A. DUMAS, Judge
AND NOW, this 31st day of August, 2026, the Pennsylvania Parole Board‘s decision, mailed April 22, 2025, is AFFIRMED.
LORI A. DUMAS, Judge
Notes
Recommitment to correctional facility.--A technical violator recommitted to a State correctional institution or a contracted county jail under subsection (c) shall be recommitted as follows:
. . . .
(3) Except as set forth in paragraph (4) or (5), the offender shall be recommitted for one of the following periods, at which time the offender shall automatically be reparoled without further action by the [B]oard:
. . . .
(i) For the first recommitment under this subsection, a maximum period of six months.
. . . .
(5) The time limit under paragraph (3) shall not be applicable to an offender who:
(i) committed a disciplinary infraction involving assaultive behavior
. . . .
See Flowers, 987 A.2d at 1272.1a: [A] violent physical or verbal attack . . . [and] 2a: [A] threat or attempt to inflict offensive physical contact or bodily harm on a person . . . that puts the person in immediate danger of or in apprehension of such harm or contact.