Summary
In Damron v. Pennsylvania Board of Probation and Parole, 109 Pa. Commw. 554, 531 A.2d 592 (1987), this court held that the requisite indicia of reliability were present where the laboratory urinalysis report contained the laboratory letterhead and was signed by the laboratory's pathologist director.
Summary of this case from Ward v. Pa. Bd. of Prob. ParoleOpinion
September 28, 1987.
Pennsylvania Board of Probation and Parole — Technical parole violator — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Hearsay — Laboratory reports — Good cause for absence of witness — Business record.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the Pennsylvania Board of Probation and Parole is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [556]
2. Good cause is demonstrated in a proceeding before the Pennsylvania Board of Probation and Parole for the admission of a laboratory report despite the absence of a witness to testify to its accuracy and reliability when the persons with such knowledge were beyond the subpoena power of the Board. [557]
3. A laboratory report is admissible in a parole revocation proceeding under the business records exception to the hearsay rule when good cause for the nonattendance of an authenticating witness is shown and when the report has indicia of regularity and reliability, displaying the letterhead of the laboratory and the signature of a known and responsible staff member. [557-8]
Submitted on briefs January 22, 1987, before President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 1820 C.D. 1986, from the Order of the Pennsylvania Board of Probation and Parole, in case of Kelly Damron, Parole No. 2128-R.
Parolee recommitted as technical parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Relief denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Frederick I. Huganir, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Kelly Damron (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board recommitment.
On November 23, 1984 the petitioner was released from the State Correctional Institution at Camp Hill (Camp Hill) to the Maryland Division of Probation and Parole, which was to supervise his parole. Special conditions of the parole required that he enroll in, and successfully complete, an in-patient drug and alcohol rehabilitation program, as well as an out-patient drug and alcohol therapy program. A failure to successfully complete either of these programs would constitute a violation of his parole. 37 Pa. Code § 67.1(c).
On January 1, 1985 the petitioner successfully completed the required in-patient therapy, but, on August 7, 1985, he was unsatisfactorily discharged from the outpatient program. A Board warrant was thereafter forwarded to the Maryland parole authorities on September 13, 1985. A full Board revocation hearing was held at Camp Hill, pursuant to which the petitioner was found to have violated general parole condition, 5(i) (refrain from unlawful possession, use or sale of controlled substances) ( 67 Pa. Code § 65.4(5)(i)), and the aforementioned special condition regarding his failure to successfully complete out-patient therapy. He was subsequently recommitted to serve the remainder of his unexpired term. Administrative relief was denied and this appeal followed.
The petitioner does not challenge the Board's conclusion that he violated the special condition of successfully completing outpatient therapy.
Our scope of review of a Board order, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Anderson v. Pennsylvania Board of Probation and Parole, 94 Pa. Commw. 369, 503 A.2d 1039 (1986).
The petitioner contends that the Board's conclusion of a violation of condition 5(i) was not supported by substantial evidence because the Board relied upon inadmissible hearsay in the form of laboratory reports. Specifically, the petitioner contends that, inasmuch as the Board never requested the presence of either a representative from the Virginia laboratory, which performed the urinalysis tests, or from the Maryland Division of Probation and Parole, to testify to the accuracy and reliability of those tests, the Board's good cause finding for their admission was erroneous.
We initially note that Board regulations pertinently provide:
In technical violation hearings, . . . witnesses upon whose testimony the parole revocation would be based shall appear and be subject to examination by the parolee except when the Examiner finds on the record good cause for not allowing such confrontation. In hearings under the provisions set forth in §§ 71.3 (relating to arrest for a new criminal offense) and 71.4 (relating to conviction for new criminal offense), documentary evidence and reports may be utilized solely, provided the Examiner is satisfied as to their authenticity, relevancy and accuracy.
37 Pa. Code § 71.5(d). And, in the case sub judice, the Examiner stated that there was good cause to admit the laboratory reports into evidence even though no one was present to testify to their accuracy and reliability, because the persons with such knowledge were beyond the subpoena power of the Board. Myers v. Pennsylvania Board of Probation and Parole, 97 Pa. Commw. 574, 510 A.2d 387 (1986) (a good cause finding based upon the unavailability of witnesses, due to the fact that they are outside the Commonwealth of Pennsylvania, and, therefore, not subject to the Board's subpoena power is not in error). Inasmuch as we find Myers to be controlling on the good cause issue, we need not address the petitioner's contentions that the Board should have made some effort to compel the out-of-state witnesses' appearance, or that the Board failed to show that the laboratory which performed the test was one approved by the Board.
Our review of the relevant statute and regulations reveals no basis for imposing upon the Board a duty to attempt to coax witnesses into its jurisdiction when it has no authority to compel their appearance. Likewise, where, as here, a parolee is supervised by the parole authorities of another state upon his request, the Board is not required to prove that the laboratory chosen by the other state is also approved by the board, so long as there is some indicia of reliability on the face of the laboratory report. See Myers.
Having concluded that the Board's good cause ruling was not in error, we must also determine whether or not there was substantial evidence to support the Board's recommitment order.
We initially note that the evidence relied upon here to support the petitioner's recommitment consisted of laboratory reports, prepared in Virginia at the request of the Maryland parole authorities. And, in order for such reports to be admissible as a business record exception to the hearsay rule, they must contain some indicia of regularity and reliability such as the laboratory letterhead, the signature of a known and responsible staff member, or some other mark of reliability. Powell v. Pennsylvania Board of Probation and Parole, 100 Pa. Commw. 7, 513 A.2d 1139 (1986), petition for allowance of appeal denied, 514 Pa. 640, 523 A.2d 346 (1987).
Our review of the record of this case indicates that the laboratory reports relied upon by the Board do contain the necessary letterhead and signature of the pathologist director so as to qualify them as business records, and, therefore, an exception to the hearsay rule. Accordingly, we must hold that the laboratory reports herein constitute substantial evidence to support the petitioner's recommitment.
If out-of-state laboratory reports, containing the required letterhead and signature, thereby evidencing their reliability, were held not to be business records, then the Board would have no recourse when a parolee, released to another state's jurisdiction, chose to violate his parole by using drugs or alcohol outside the Commonwealth of Pennsylvania.
We will, therefore, affirm the order of the Board.
ORDER
AND NOW, this 28th day of September, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.