82 Pa. Commw. 626 | Pa. Commw. Ct. | 1984
Opinion by
John Clair Lantzy (petitioner) petitions for review
Petitioner was paroled by the Board on June 18, 1982 from the State Correctional Institution at Pittsburgh (SCI-Pittsburgh) on concurrent sentences imposed by the Courts of Common Pleas of Venango and Clearfield Counties. The longest of those sentences had a maximum term expiration date of May 1988. Petitioner was paroled to the Pittsburgh parole district.
On June 26,1982, petitioner was arrested by Pennsylvania State Police in Indiana County.
A Violation Hearing was held before a Board hearing examiner on September 29, 1982 at the Indiana County Prison. Petitioner was represented by counsel who duly objected to the hearsay evidence attri
Petitioner in Ms brief challenges the examiner’s finding of good cause for Agent Hasak’s absence based on an alleged Board policy which does not require parole agents to attend hearings held outside of a fifty mile radius centered at their district office. A review of the record indicates that while counsel objected to the admission of Agent Hasak’s affidavit at the Violation Hearing, the issue was not raised in petitioner ’s administrative appeal to the Board nor in the Petition for Review filed in this Court. It is raised for the first time in petitioner’s brief. Onr scope of review of a Board recommitment order is limited by
The issue of whether proper good cause existed to allow the hearsay attributed to Trooper John Sokol was raised before the Board. We note, however, that in both its recommitment order of October 1-8, 1982 as well as the denial of administrative relief of December 17, 1982, the Board indicated it did not consider any statement or evidence attributable to Trooper Sokol in ■ determining whether petitioner violated the condition of his parole. As the Board excluded Trooper Sokol’s evidence from consideration, the issue of whether the examiner erred in finding good cause to accept the hearsay is moot.
We now turn to petitioner’s other contention that the Board based its recommitment order on hearsay evidence and cannot be upheld. See Wells v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 430, 471 A.2d 929 (.1984). We must now determine whether the Board’s order is supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704. If substantial evidence in the record supports the Board’s order, we must affirm. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).
For the foregoing reasons, we must affirm the Board’s denial of administrative relief.
And Now, the 31st day of May, 1984, the order of the Pennsylvania Board of Probation and Parole dated December 17,1982 at Parole No. 5842-0 denying administrative relief is affirmed.
Petitioner originally filed an aetion directed to our original jurisdiction under 42 Pa. G. S. §761 and demanded a jury trial. On our own motion we treated the action as a Petition for Review of an order of a Commonwealth agency directed to our appellate jurisdiction under 42 Pa. C. S. §768. See Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 649, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981).
On November 12, 1982 we dismissed the initial action without prejudice due to petitioner’s failure to exhaust his available administrative remedies under 37 Pa. Code §71.5(h). Under the doctrine of exhaustion of administrative remedies, which is applicable to the Board’s parole revocation proceedings, one must exhaust all available administrative remedies before the right to judicial review arises. See Campbell v. Pennsylvania Department of Labor and Industry, 80 Pa. Commonwealth Ct. 558, 471 A.2d 1331 (1984). Petitioner reinstated his action after the Board denied administrative relief on December 17, 1982.
The Pittsburgh parole district comprises the counties of Allegheny, Payette, Greene, Washington and Westmoreland. 1982 Annual Report — Pennsylvania Board of Probation and Parole, p. 23.
Indiana County is in the Butler parole district which also includes the counties of Armstrong, Beaver, Butler, Clarion, Elk, Jefferson and Lawrence. Id.
18 Pa. C. S. §§6101-6119.
The general conditions of parole are found at 37 Pa. Code §63.4 and require that parolees remain in the district to which they have been paroled and not leave that district without prior written permission of the parole supervision staff (general condition 1) as well as refrain from owning or possessing any firearm or other weapon (general condition 5B).
Section 23 of the Act of August 6, 1941, P.L. 861, 61 P.S. §331.23, specifically authorizes the Board to impose special parole conditions upon a parolee where individual circumstances warrant. Petitioner was given a special parole condition not to consume alcohol.
NT. 2-3, R. 2-3.
In Morrissey v. Brewer, 408 U.S. 471 (1972) the United States Supreme Court expressly held that a parole board could consider affidavits, documents and letters at revocation hearings although such evidence would normally be excluded from a criminal trial. Id. a t 489.
The Board has interpreted 37 Pa. Code §75.3(f) which states violations of special parole conditions will be treated at least severely as the least serious of the general conditions as giving those violations a presumptive range of three to eighteen months. We have held that an agency’s Interpretation of its own regulations is controlling unless clearly erroneous or inconsistent with the statute. Wiley House v. Scanlon, 61 Pa. Commonwealth Ct. 8, 432 A.2d 324 (1981), affirmed, 502 Pa. 228, 465 A.2d 995 (1983). See also Lewis v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 335, 459 A.2d 1339 (1983).