Opinion
No. 1417 C.D. 2014
05-26-2015
Thomas Patrick Gehan, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Thomas Patrick Gehan (Gehan) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board). The Board denied Gehan's request for administrative relief and found that there was substantial evidence presented at Gehan's parole revocation hearing to recommit him as a convicted parole violator. We now affirm.
Gehan pled guilty to a charge of aggravated assault and, on April 27, 2006, he was sentenced to a term of imprisonment of five years and three months to fifteen years and six months. (Certified Record (C.R.) at 1.) On November 8, 2010, Gehan was released on parole. (Id. at 9.) On March 21, 2012, Gehan was arrested and charged with Contempt for Violation of Order or Agreement, 23 Pa. C.S. § 6114; two counts of Terroristic Threats, 18 Pa. C.S. § 2706; and Harassment; 18 Pa. C.S. § 2709. (Id. at 18.) As a result of the new charges, the Board issued a warrant to commit and detain Gehan. (Id. at 15.) Gehan waived his detention hearing and agreed that the Board could detain him pending the disposition of his new criminal charges. (Id. at 21.) While in custody, Gehan was further charged with Possession of an Instrument of Crime with Intent, 18 Pa. C.S. § 907; Recklessly Endangering Another Person, 18 Pa. C.S. § 2705; two counts of Aggravated Assault, 18 Pa. C.S. § 2702; and two counts of Simple Assault, 18 Pa. C.S. § 2701. (Id. at 30.)
Gehan was also charged with additional counts of Terroristic Threats and Contempt for Violation of Order or Agreement. (C.R. at 30.)
A hearing examiner conducted a parole revocation hearing on August 19, 2013. (Id. at 35.) The Commonwealth introduced a trial disposition and dismissal form from the Philadelphia County Court of Common Pleas to prove that Gehan had been convicted on the charges of Terroristic Threats and Simple Assault. (Id. at 52-53.) Gehan objected to the introduction of the form because it did not contain a court seal. (Id. at 53.) The hearing examiner overruled the objection, noting that the document "appear[ed] to have a judge's signature on it." (Id.) The hearing examiner also noted that the document had a heading. (Id.) The hearing examiner then concluded that the signature and the heading indicated that the document was reliable. (Id. at 53-54.)
The Board maintains that Gehan was convicted of two counts of Terroristic Threats and one count of Simple Assault. The trial disposition and dismissal form, however, appears to be missing a page and only reflects Gehan's conviction on one count of Terroristic Threats and one count of Simple Assault. (C.R. at 67-68.)
On November 12, 2013, the Board issued a decision which recommitted Gehan as a convicted parole violator. The Board determined that Gehan would serve nine months backtime due to his criminal convictions. (Id. at 99.) The Board indicated that, in issuing its decision, it relied on the following evidence of Gehan's conviction in a court of record: "certified copy of court record proving conviction, acknowledgment of conviction, documented PBPP form." (Id.)
Gehan filed a request for administrative relief with the Board, arguing that substantial evidence did not exist to show that Gehan had been convicted. (Id. at 102-03.) Specifically, Gehan argued that because the document relied upon by the Board did not bear a court seal, it was insufficient to prove conviction. (Id.) On July 28, 2014, the Board denied Gehan's request for administrative relief. In so doing, the Board reasoned:
The Board determined that sufficient evidence was presented at the August 19, 2013 revocation hearing to recommit your client as a convicted parole violator for committing the offenses of Terroristic Threats (2 counts) and Simple Assault in violation of his parole. This decision was based on your client's acknowledgment of the conviction as well as the photocopy of the court record proving the conviction bearing the actual signature of the trial judge at the bottom of the page. This evidence was sufficient to establish that your client violated his parole as indicated and the fact that the Board found this evidence to be credible and chose not to accept your client's explanation is not subject to challenge. Sanchez v. P[a.] B[d.] of Prob[.] and Parole, 616 A.2d 1097 (Pa. [Cmwlth.] 1992). Moreover, there is no evidence of a due process violation in regards to the evidentiary hearing as you had an opportunity to present defense evidence.(Id. at 105.) Gehan then appealed to this Court.
On appeal, the sole issue is whether the documentary evidence presented at the revocation hearing constitutes substantial evidence to prove that Gehan was convicted. Gehan contends that the documents relied upon by the Board did not bear a court seal, and, therefore, are insufficient to prove that Gehan was convicted.
Our standard of review of a Board order denying administrative relief is limited to considering whether necessary factual findings are supported by substantial evidence, whether the Board erred as a matter of law, and whether constitutional rights were violated. 2 Pa. C.S. § 704.
The determination that a parolee violated parole is a determination made by the Board, and, thus, the Board bears the burden of justifying its determination by producing substantial evidence that the parolee was convicted of a new crime. See Pierce v. Pa. Bd. of Prob. and Parole, 500 A.2d 181, 183 (Pa. Cmwlth. 1985). "The Board meets this burden by presenting records pursuant to 37 Pa. Code § 71.5(d)." Id. 37 Pa. Code § 71.5(b) provides:
In hearings conducted under this chapter, documentary evidence and reports, including, but not limited to, depositions, written interrogatories, affidavits, laboratory reports, business records, public records, official records and letters rogatory, may be utilized solely, if the panel or examiner is satisfied as to their authenticity, relevancy, accuracy and reliability.Once the Board has met its burden, the parolee may rebut the Board's evidence by showing that the evidence inaccurately reflects that the parolee was convicted of a new crime. See Pierce, 500 A.2d at 183.
In Sanchez v. Pennsylvania Board of Probation and Parole, 616 A.2d 1097 (Pa. Cmwlth. 1992), this Court held that photocopies of a parolee's docket sheets which bore the signature of the trial judge were sufficient evidence to support the Board's decision to recommit a parolee. Sanchez, 616 A.2d at 1101-02. The photocopies did not bear a court seal. Id. at 1098. This Court, however, vacated the Board's order to recommit the parolee because the documents the Board relied upon were not admitted into evidence, and, thus, the parolee did not have "an opportunity to confront the [B]oard's reliance on the [documents]." Id. at 1102.
Here, the Board also relied upon a document, the trial disposition and dismissal form, which was signed by the trial judge. The hearing examiner specifically noted that the document was reliable because it was signed by the trial judge and had a heading. Such a document, despite the lack of a court seal, is substantial evidence to establish that Gehan was convicted of Terroristic Threats and Simple Assault. Gehan, however, argues that there is no proof that the signature is the actual signature of the trial judge. Here, unlike Sanchez, the document was introduced during the revocation hearing. Gehan objected to the admission of the document solely due to the lack of a court seal. Gehan did not challenge the signature as not belonging to the trial judge, nor did he present any evidence to rebut the determination that the signature belonged to the trial judge. We, therefore, reject Gehan's argument that substantial evidence did not exist to prove that Gehan was convicted of a new crime.
Gehan also argues that "the authentication of the signature purporting to be that of the trial judge was not made at the hearing, where the examiner observed that it appeared to be the judge's signature, but in some ex parte proceeding after . . . Gehan's opportunity to present evidence for the record was closed." (Pet'r's Br. at 12.) As noted above, Gehan had an opportunity to challenge the authenticity of the signature at the revocation hearing. The hearing examiner specifically noted that the document was reliable due to the presence of the trial judge's signature. If Gehan had doubts concerning the authenticity of the signature, his opportunity to challenge the hearing examiner's determination was during the revocation hearing. Instead, Gehan raises this issue for the first time on appeal to this Court. "The law is well settled that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal." Chesson v. Pa. Bd. of Prob. and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012). Gehan has, therefore, waived any argument concerning the authentication of the trial judge's signature.
Despite Gehan's contentions that requiring Gehan to present his own evidence to rebut the Board's evidence improperly shifts the burden of proof, the Board proved by substantial evidence that Gehan had been convicted of a new crime. The burden then properly shifted to Gehan to rebut the Board's evidence of Gehan's conviction. See Pierce, 500 A.2d at 183. --------
Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 26th day of May, 2015, the order of the Pennsylvania Board of Probation and Parole is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge