Opinion
No. 2070 C.D. 2012
04-30-2013
Craig Burns, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Craig Burns (Burns) petitions for review of the decision of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from the Board's decision revoking his parole and recommitting him as a technical parole violator to serve 12 months' backtime. We affirm.
On October 2, 2009, Burns was sentenced to a two to four-year term of imprisonment for the manufacture/sale/delivery or possession with the intent to deliver a controlled substance. On August 15, 2011, Burns was paroled subject to a number of conditions including Condition #5C which required that he refrain from assaultive behavior. On January 18, 2012, Burns was arrested for violating Condition #5C based on his alleged assault of Valerie Fleck.
On February 29, 2012, the Board conducted a violation hearing. Valerie Fleck testified that on January 17, 2012, she met Burns to retrieve her bank card and that she accepted his offer for a ride to her boyfriend's house. She stated that while en route, Burns stopped in a parking lot and she rejected his multiple requests for oral sex. She testified that Burns told her that her father was having chest pains and that he dropped her off at home and left. Valerie Fleck stated that she was concerned about her father and called Burns later and asked him for a ride to her father's house which was near Burns' house. She testified that while en route, Burns confessed that her father was not really sick and that he took her to his house. She stated that while at Burns' house, he started kissing and licking her cheek, tugging at her clothes, and he pushed her down. She testified that Burns grabbed her head which caused her to scream and that Burns put his penis in her mouth without her consent when she screamed. Valerie Fleck stated that she shoved and slapped Burns and repeatedly told him no as he pushed her down on a bed and ripped her bra and ripped off her pants and underwear. She testified that he had sex with her without her consent and that he punched her two or three times and hit her head off the wall during the assault. She stated that she told Burns that she was going to call the police because he forced himself on her and that Burns hit her in the head with a board when she started to leave. She testified that she went to the neighbor's to get a ride home and that her boyfriend took her to the hospital where she was examined and treated. She stated that her boyfriend called the State Police and she was interviewed by them at the hospital.
Agent Stetler testified that he received a call from Valerie Fleck on January 18, 2012, and that she told him that Burns had sexually assaulted her. Agent Stetler stated that he went to her house to interview her and that he observed profound swelling on the top of her forehead and discoloring marks on her wrists.
Agent Dombrosky, Burns' supervising agent, testified that he came into the office on January 18, 2012, and had a voice message from Burns that he had lost track of time and that he would be missing his group session on January 17, 2012. Agent Dombrosky stated that Burns was scheduled to attend the cognitive skills group on January 17, 2012, from 5:30 to 7:00.
Burns presented the testimony of Cindy Fleck, Valerie Fleck's sister, who testified that Valerie told her that she was going to set Burns up to get him into trouble for prescription drugs. Cindy Fleck stated that she sent Burns a letter to warn him about the conversation she had with her sister. She testified that her sister was intent on setting Burns up and that she believed Burns' denial of the assault over her sister's allegations. Burns also asked the Board's hearing officer to review a preliminary hearing packet, that included the letter sent by Cindy Fleck to Burns which stated that Valerie Fleck was going to set Burns up and that Cindy Fleck could not believe that her sister would cry rape, let alone for a third time. Finally, as dispositional testimony, Burns testified that he did well on his parole until he was arrested, that he was unaware of any incident alleged by Valerie Fleck, and that he only became aware of it the following day when he was arrested as a technical parole violator.
On April 13, 2012, the Board issued a decision recommitting Burns as a technical parole violator to serve 12 months' backtime based on his violation of Condition #5C. The Board relied upon Valerie Fleck's and Agent Stetler's testimony in determining that the violation was established.
On October 10, 2012, the Board's appeal panel disposed of Burns' administrative appeal of the Board's decision in which it stated the following, in pertinent part:
The Board determined that sufficient evidence was presented at the February 29, 2012 violation hearing to recommit Mr. Burns for violating condition #5C (assaultive behavior) of your parole. The decision was based on the testimony of Ms. Valerie Fleck and the state parole agent. The fact that you presented conflicting evidence on behalf of Mr. Burns but the Board chose to believe the testimony from Ms. Valerie Fleck and the parole agent is not subject to challenge. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413 (Pa. [Cmwlth.] 1984). The testimony presented and accepted by the Board substantiates the violation.Burns then filed the instant appeal.
Our scope of review of an appeal from an order of the Board is limited to determining whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Chapman, 484 A.2d at 416.
The sole claim Burns raises in this appeal is that the Board's findings are not supported by substantial evidence. Specifically, Burns asserts that the hearing examiner's report summarizing the evidence presented at the violation hearing mistakenly notes that Valerie Fleck received the letter from Cindy Fleck outlining Valerie Fleck's plan to set Burns up when the letter was actually sent to Burns and that the conflicting evidence created confusion regarding the author of the letter and its contents.
In parole violation proceedings, the burden of proof is upon the Board to show by a preponderance of the evidence that the parolee violated the terms and conditions of his parole. Sigafoos v. Pennsylvania Board of Probation and Parole, 503 A.2d 1076, 1079 (Pa. Cmwlth. 1986). A preponderance of the evidence is such proof as leads the fact-finder, here, the Board, to find that the existence of a contested fact is more probable than its nonexistence. Id. For purposes of our review, "substantial evidence" has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Chapman, 484 A.2d at 416. Moreover, questions of resolving conflicts in the evidence, witness credibility and evidentiary weight are within the exclusive discretion of the Board. Id. Thus, the mere fact that there is evidence in the record that conflicts with the evidence that supports the Board's findings does not mean that those findings are not supported by substantial evidence. Id.
However, who the letter was addressed to is not relevant because Cindy Fleck directly testified at the violation hearing that she sent Burns the letter to warn him of her sister's intention to set him up regarding prescription drugs and that she believed Burns' denial over her sister's allegations. Moreover, in its decision recommitting Burns, the Board relied on Valerie Fleck's and Agent Stetler's testimony and rejected Burns' evidence, including Cindy Fleck's testimony. As noted, the Board was free to reject Burns' evidence as not credible and the Board's determination in this regard is not subject to our review. Chapman. Moreover, Cindy Fleck's letter outlining a set-up involving prescription drugs does not contradict Valerie Fleck's direct testimony regarding Burns' assault and Agent Stetler's direct testimony regarding the visible wounds that she suffered from the assault, but merely tends to impeach Valerie Fleck's credibility which is, again, a determination that is not subject to our review. Id. Thus, any purported mistake regarding the recipient of Cindy Fleck's letter that is contained in the summary of the testimony in the hearing officer's report does not affect the substantial evidence relied upon by the Board in its decision revoking Burns' parole for a violation of Condition #5C, and his claim that the Board's decision is not supported by substantial evidence is without merit.
Moreover, the transcript of the violation hearing shows that the hearing officer's misunderstanding regarding the recipient of the letter was corrected and that he properly understood that the letter was sent by Cindy Fleck to Burns. See Certified Record at 79. --------
Accordingly, the Board's decision is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of April, 2013, the decision of the Pennsylvania Board of Probation and Parole, dated October 10, 2012, at No. 111FB, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge