Scott v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 30 November 1995
• Citation: 668 A.2d 590
• Parties: Keith M. SCOTT, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 590

668 A.2d 590

Keith M. SCOTT, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 28, 1995.

Decided Nov. 30, 1995.

George W. Westervelt, Jr., for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, for respondent.

Before DOYLE and KELLEY, JJ., and NARICK, Senior Judge.

KELLEY, Judge.

Keith M. Scott appeals from an administrative order of the Pennsylvania Board of Probation and Parole denying his request for administrative relief from the board's revocation decision recommitting him as a technical parole violator. We reverse and remand.

On April 2, 1992, Scott was sentenced to a 10-to-20 year term of imprisonment on his nolo contendere plea to the crime of third degree murder. With an effective date of March 31, 1983, the Department of Corrections calculated the minimum expiration date on Scott's sentence as March 31, 1993, and the maximum term expiration date as March 31, 2003. On September 1, 1993, Scott was released on parole subject to a number of conditions.

On February 4, 1994, the board issued a warrant to commit and detain Scott, and a notice of charges and hearing based on his alleged technical violation of parole conditions 5b, 5c and 7. The notice alleged the following charges:

1. Violation of Condition No. 5b: YOU SHALL REFRAIN FROM OWNING OR POSSESSING ANY FIREARMS OR OTHER WEAPONS. (3 counts)

a. On 9-4-93, you were in possession of a 22 Magnum revolver pistol.

b. During September of 1993, you were in possession of a 10 millimeter Glock handgun.

c. On 2-4-94, the following weapons were confiscated from your approved residence: one (1) Mossberg 12 gauge pump shotgun, serial no. G878391; one (1) Glenfield 12 gauge bolt action shotgun, serial no. 71357747; one (1) Stevens 12 gauge single shotgun, no serial number; one (1) Harrington-Richardson 12 gauge single shotgun, serial no. 918060; one (1) Glenfield .22 caliber semi-automatic, Model 60, serial no. 23506068, and one (1) Green Camo-Colored Compound bow plus three arrows.

2. Violation of Condition No. 5c: YOU SHALL REFRAIN FROM ANY ASSAULTIVE BEHAVIOR.

During November of 1993, you threatened a co-worker, Gerald Thomas, by approaching Mr. Thomas and stating "I am going to fuckin kill you" numerous times.

3. Violation of Condition No. 7, Special Condition: YOU MUST NOT CONSUME ALCOHOL UNDER ANY CONDITION OR FOR ANY REASON. (2 counts)

a. On or about 9-2-93, you consumed Zima Clear Malt alcoholic beverages.

b. On or about 1-18-94, you consumed Southern Comfort alcoholic beverages.

(Certified Record (R.), pp. 10-11). On March 23, 1994, another notice of charges and hearing alleging the same technical parole violations was issued by the board. (R., pp. 24-25).

On March 30, 1994, a hearing was held on the alleged violations before John Engle, a hearing examiner. In support of Counts 1(a) and 3(a), the board called Eric Hahn as a witness. Because Hahn was reluctant to testify at the hearing, the board introduced an affidavit signed by him to establish the alleged violations. Scott then made a statement, admitting the allegation contained in Count 1(a). Scott also introduced an affidavit executed by Hahn which indicated that his prior affidavit was executed under pressure by parole agents.

In support of Counts 1(b), 2 and 3(b), the board called Ray Opperlee. Opperlee testified and was cross-examined regarding these alleged violations of Scott's parole conditions. Scott denied the allegation in Count 3(b), stating that the only alcohol he had consumed while on parole was contained in prescription cough syrup. Scott did not comment on the other two counts.

In support of Count 1(c), the board called Larry Mundro, a parole supervisor. Mundro testified regarding a search that had been conducted on Scott's approved residence, his parents' house. Mundro found a number of weapons in the house. Scott argued that the search was executed in violation of his rights against unreasonable searches and seizures, and sought the exclusion of this evidence on these grounds. The hearing officer permitted Mundro to testify over Scott's objection.

In response, Scott stated that the weapons recovered from his parents' house were owned by his stepfather. Scott stated that, before his release, he had instructed his mother and stepfather that they must get rid of all of the guns in the house in order for him to stay there. Scott stated further that his mother had told him that she had taken all of his stepfather's guns from the house, and that he had no idea that the weapons were still there. In addition, the room in which the weapons were found was his mother's private sitting area. When he would come home at night, Scott stated, he would see his mother in there watching television.

At the hearing Scott's stepfather, John McDaniel, stated that the weapons recovered from the house were owned by him. Mr. McDaniel testified that after he was told that he would have to dispose of the weapons, he wrapped them up to give them to his brother. In addition, Mr. McDaniel indicated that the room in which the weapons were found was used exclusively by his wife to watch television.

Finally, in support of Count 3(a), the board called Parole Agent Loren Dunham to testify. Dunham stated that after he had arrested Scott on the parole violation charges, Scott admitted that he had consumed alcohol while on parole. Again, in defense of the charges, Scott stated that the only alcohol he had consumed while on parole, or that he admitted to consuming while on parole, was contained in prescription cough syrup.

On June 16, 1994, the board mailed Scott its decision regarding his parole violations. The board found that evidence had been presented to support the charges in Counts 1(a), 1(b), 1(c) and 3(a). In rendering this decision, the board relied on the following evidence: Scott's admissions regarding Counts 1(a) and (c); the testimony of Opperlee regarding Counts 1(b) and 2; the testimony of Mundro regarding Count 1(c); and the affidavit of Hahn regarding Counts 1(a) and 3(a). As a result, the board recommitted Scott to serve the remainder of his sentence and 36 months backtime. On September 6, 1994, the board modified its previous decision by adding two aggravating reasons for its decision; namely, that Scott had committed multiple violations and that he is considered a threat. Scott sought administrative relief from the board which was denied in a decision mailed on November 9, 1994. This appeal followed.

On appeal, Scott claims: ¹ (1) the hearing examiner erred in allowing the introduction of evidence obtained in violation of his Fourth Amendment rights to support Count 1(c); (2) the hearing examiner erred in allowing the introduction of hearsay evidence to support Count 3(a) without a specific finding of good cause; (3) the violations found at Counts 1(c) and 3(a) are not supported by substantial evidence; (4) his recommitment to 36 months of backtime is not supported by substantial competent evidence and was done without adequate written justification; and (5) the notice of the hearing and charges for his preliminary and revocation hearings were improperly vague.

This court's scope of review of an adjudication by the board is limited to a determination of whether or not it is supported by substantial evidence, is in accordance with the law, and is observant of the petitioner's constitutional rights. Johnson v. Pennsylvania Board of Probation and Parole, 129 Pa.Cmwlth. 652, 566 A.2d 918 (1989), aff'd, 525 Pa. 573, 583 A.2d 790 (1991).

On appeal, Scott first claims that the warrantless non-consensual search of his parents' home violated his Fourth Amendment rights against unreasonable searches and seizures. At the parole revocation hearing, the board called Mundro as a witness to support the charges alleged at Count 1(c). (R., pp. 73-86). Mundro was present when Scott was arrested for the alleged violations while he was at a diner with a companion. (R., pp. 76, 80). Prior to his arrest, Mundro was told that there might be firearms present in Scott's approved residence. (R., p. 85). As a result, after securing a key from Scott, Mundro and other parole agents accompanied Scott's companion to his approved residence to search for firearms. (R., pp. 75-76, 78, 80).

Upon arriving at Scott's approved residence, Mundro gave Scott's companion the key and she unlocked the kitchen door. (R., p. 76). As soon as they entered the home, Scott's companion called his mother, Mrs. McDaniel, the owner of the home. Id. Mundro instructed all of the agents to remain in the kitchen while awaiting Mrs. McDaniel's arrival. Id. When she arrived, Mundro told Mrs. McDaniel that he was going to conduct a search of her son's bedroom and asked her to direct him to that room. (R., pp. 76-77). When Mrs. McDaniel hesitated to disclose this information, Mundro told her that he and the agents would go upstairs and locate and search his room themselves. (R., p. 77). Mrs. McDaniel acquiesced and escorted Mundro and the agents upstairs and pointed out her son's bedroom. Id.

After Mrs. McDaniel had gone back downstairs to the kitchen, Mundro searched a room adjacent to Scott's bedroom. (R., pp. 80, 81). The room contained two small sofas with an ironing board in between them, and a television set at the far end. (R., p. 80). Mundro found five firearms under one of the sofas in the room. (R., p. 81). One of the guns recovered was in a zippered shotgun case; the other four were wrapped in a white cloth with electrical tape securing the cloth. (R., pp. 81, 84). None of the guns were loaded, and Mundro did not find any ammunition. (R., pp. 83, 84). Mundro also found a compound bow and three arrows in a closet in the room. (R., pp. 81-82).

After uncovering the weapons, Mundro interviewed Mrs. McDaniel regarding their ownership. (R., pp. 82-83). He advised Mrs. McDaniel that he was confiscating the weapons because they were...