Cromartie v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 01 July 1996
• Citation: 680 A.2d 1191
• Parties: James CROMARTIE, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1191

680 A.2d 1191

James CROMARTIE, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 22, 1996.

Decided July 1, 1996.

Ronald G. McNeil, for Petitioner.

Robert A. Greevy, Assistant Chief Counsel, for Respondent.

Before SMITH and PELLEGRINI, JJ., and MIRARCHI, Jr., Senior Judge.

PELLEGRINI, Judge. ¹

James Cromartie (Petitioner) petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied Petitioner's request for administrative relief from the Board's order of July 21, 1995, which recommitted Petitioner as a technical parole violator to serve his unexpired term of one year, three months and three days. ²

Petitioner was originally sentenced by a Philadelphia Common Pleas Court to serve a term of five to ten years for robbery, along with a concurrent sentence of two-and-a-half to five years for a related firearms offense. That sentence had a minimum expiration date of February 23, 1989, and a maximum expiration date of February 3, 1994. Petitioner was paroled on October 13, 1989. He was subsequently recommitted for nine months as a technical and convicted parole violator and his recomputed maximum expiration date was July 24, 1996.

On December 28, 1994, Petitioner was arrested by the Philadelphia police for possession of a firearm in violation of Sections 6106 and 6108 of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. §§ 6106 and 6108. ³ On December 29, 1994, the Board lodged a warrant to detain Petitioner pending disposition of criminal charges. On January 26, 1995, a detention hearing was held and probable cause was found to detain Petitioner pending disposition of the criminal charges. On April 21, 1995, the criminal charges against Petitioner were dismissed for lack of prosecution. Because the criminal charges had been dismissed, the Board charged Petitioner as a technical parole violator on April 25, 1995, alleging that he violated Parole Condition No. 5b, which prohibits the parolee from possessing a firearm. ⁴ A preliminary hearing was held at which the report of Philadelphia Police Officer Ralph Domenic, the arresting police officer in the incident on December 28, 1994, was introduced. Based on the arrest report, the examiner determined there was probable cause for the technical charge of possession of a weapon.

On July 7, 1995, the Board held a violation hearing wherein Officer Domenic testified to the following facts. On December 28, 1994, Officer Domenic and his partner responded to a medical call at 113 West Roosevelt Boulevard. No one answered the front door, and, as a result, the officers went around to the back door. They then observed Petitioner sitting in a vehicle in a private driveway behind the residence. Because the vehicle did not have any tags or an inspection sticker, the officers thought the car was probably stolen. After Petitioner failed to produce identification, he was asked to step out of the car and was patted down by Officer Domenic who found a .32 caliber revolver containing four live rounds tucked in Petitioner's waistband. He was then placed under arrest.

Subsequent to the hearing, the Board issued an order recommitting Petitioner as a technical parole violator to serve his unexpired term of one year, three months and three days. The Board further noted "prior parole failure" and "threat to the community" as aggravating reasons. Petitioner's request for administrative relief was denied and he petitions this Court for review. ⁵

In addition to arguing that the recommitment was not supported by substantial evidence, Petitioner contends that the Board erred in several respects:

failing to exclude the evidence from the illegal search of his person;

failing to hold the preliminary hearing and the violation hearing in a timely manner as required by the Board' regulations;

failing to apply the doctrines of res judicata and collateral estoppel;

denying him his right to confront and cross-examine the police officer at the preliminary hearing; and

recommitting him for more than the presumptive range without written justification.

I.

Petitioner first contends that the search of his person was illegal because Officer Domenic had neither probable cause nor a reasonable suspicion to believe that Petitioner was currently or had been involved in any criminal activity. Petitioner argues that without a sufficient basis for the search, the seizure of the firearm from his person violates his Fourth Amendment right to be secure against unreasonable searches and seizures. Relying primarily on this Court's decision in Scott v. Pennsylvania Board of Probation and Parole, 668 A.2d 590 (Pa.Cmwlth.1995), Petitioner contends that the exclusionary rule is applicable in the present case and that the evidence obtained by Officer Domenic should have been excluded from the revocation hearing. ⁶

Recently, in Kyte v. Pennsylvania Board of Probation and Parole, 680 A.2d 14 (Pa.Cmwlth.1996), we reiterated the long established ruled that unlike in criminal prosecutions, where evidence is excludable due to violations of the Fourth Amendment, the Fourth Amendment's exclusionary rule is not applicable to parole revocation procedures. See also Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Johnson v. Pennsylvania Board of Probation and Parole, 107 Pa.Cmwlth. 183, 527 A.2d 1107 (1987); Nickens v. Pennsylvania Board of Probation and Parole, 93 Pa.Cmwlth. 313, 502 A.2d 277 (1985); Zimmerman v. Pennsylvania Board of Probation and Parole, 83 Pa.Cmwlth. 282, 476 A.2d 1016 (1984).

In Kyte, the parolee's parole agent conducted a warrantless search of a room, not in parolee's residence but where parolee was present, and found a knife. Based on the knife and the parole agent's testimony, the Board recommitted him for a technical parole violation of Condition 5b. After reviewing the discussion in Kates about whether the purposes of the exclusionary rule would be served by its application to probation and parole revocation hearings, ⁷ we concluded, as our Supreme Court had in Kates, that: [T]his type of constitutional objection [a Fourth Amendment violation] does not preclude the evidence from being presented during a probation revocation hearing and does not form the basis of a denial of due process.

Kyte, 680 A.2d at 17, quoting Kates, 452 Pa. at 121, 305 A.2d at 711.

Moreover, in Kyte, we overruled our prior decision in Scott, relied on by Petitioner here. In Scott, this Court addressed the exclusion of evidence obtained when a parole supervisor conducted a warrantless search of a parolee's approved residence without the consent of the owner, the parolee's mother. Although recognizing that Pennsylvania courts (as well as a number of other states and federal courts) have refused to apply the exclusionary rule to parole revocation proceedings, the decision applies a balancing of interests framework to the facts of that case. The balance of interests test had been set forth by the United States Supreme Court to determine whether the exclusionary rule is applicable to other types of proceedings. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). However, it had never been applied to the facts of a parole or probation case to determine if the exclusionary rule applies. To the contrary, in Kates, our Supreme Court applied the balancing test generally to determine if evidence should ever be excluded from parole and probation revocation hearings due to constitutional violations and then held, as a matter of law, that the exclusionary rule does not apply to the revocation hearings.

Because our decision in Scott was at variance with Kates, it was overruled and is inapplicable here. We find no error in the Board's admission of the testimony and evidence from the search of Petitioner. Kyte. Additionally, based on the proper admission of Officer's Domenic's testimony and evidence, there was substantial evidence for the Board's finding that Petitioner possessed a weapon in violation of Condition 5b of his parole.

II.

Petitioner also contends that the Board erred because the preliminary and violation hearings were not held in a timely manner. The Board's regulations state that the preliminary hearing for a violation of parole conditions "shall be held within 14 days of the detention of the parolee on the Board warrant". 37 Pa.Code § 71.2(3). The effect of the regulation is that the preliminary hearing on charges of violating conditions of parole must be held within 14 days of either the arrest of the parolee on a Board warrant or the lodging of the warrant as a detainer at the facility where the parolee is already confined. Woods v. Pennsylvania Board of Probation and Parole, 79 Pa.Cmwlth. 134, 469 A.2d 332, 335 (1983). If probable cause is found in the preliminary hearing, a violation hearing "shall be held not later than 120 days after the preliminary hearing". 37 Pa.Code § 71.2(10); Woods.

Because of the criminal charges flowing from Petitioner's arrest on December 28, 1994, the Board issued a detainer on December 30, 1994, for criminal parole violations. ⁸ However, after the criminal charges were dismissed, the Board issued a second detainer on April 25, 1995, based on technical parole violations. (Certified Record, Document # 12). Petitioner's preliminary hearing was held on May 8, 1995, within 14 days of the Board's second detainer. The violation hearing was held on July 7, 1995, within 120 days of the preliminary hearing.

Petitioner mistakenly asserts that the time limitations begin to run from the date of the Board's original detainer, based on the criminal charges, December 30, 1994, rather than from the detainer as a technical parole violator. Just as the actions for convicted parole violations and technical parole violations are separate, ⁹ detainers initiating those actions are separate actions and are treated as such in the...