Opinion
No. 1141 C.D. 2012
05-02-2013
Herman O. Hellams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Herman O. Hellams (Parolee) petitions for review of a decision of the Pennsylvania Board of Probation and Parole (Board) denying his petition for administrative relief and recommitting him as a technical parole violator for leaving his parole district without permission and for failing to refrain from assaultive behavior. Parolee asserts that the evidence does not establish he violated his parole. We affirm the Board in part, reverse in part and remand.
Parolee is currently serving three separate sentences for robbery; each has a different minimum and maximum sentence date. Parolee was paroled on September 2, 2008, but it was revoked on May 22, 2009. He was reparoled on March 18, 2010. On September 28, 2011, he was detained and charged with violating two conditions of parole. Specifically, Parolee was charged with violating Condition Number 1, which required him not to leave his assigned parole district without prior written permission, and Condition Number 5(c), which required him to "refrain from any assaultive behavior." Certified Record item 5 at 17 (C.R. ___). A parole revocation hearing was held.
Parole Agent Robert McAfee testified that Parolee received permission from his Philadelphia parole agent to leave the Philadelphia District to move to Butler. That permission required Parolee to complete his move and report to Agent McAfee, in the Mercer District, by September 28, 2011. McAfee did not offer a copy of that permission into evidence.
McAfee then testified that on September 18, 2011, Parolee stopped at the home of Raymond Baum in Westmoreland County, where Parolee got into a fight with Baum. McAfee asserted that Baum's home, which was 12 miles from the Pennsylvania Turnpike, was not a location on a reasonable route between Philadelphia and Butler. In support, he presented a highway map of Pennsylvania. Further, Parolee went there to pick up Parolee's step-children, not to move Parolee's personal effects. Parolee's wife recorded the fight on her cellular phone. McAfee reviewed the recording and concluded it showed assaultive behavior by Parolee. Accordingly, he ordered Parolee detained on September 28, 2011, the date on which he became Parolee's supervisor.
Parolee presented the testimony of State Police Trooper Isaac Lanham, a criminal investigator. Trooper Lanham explained that he had been approached by another trooper to review the video recording of the fight between Baum and Parolee. Lanham, his supervisor and other colleagues reviewed the recording 20 times. Lanham concluded that Baum should be charged with aggravated assault, simple assault and terroristic threats and that Parolee should not be charged. This conclusion was shared by his colleagues, and Parolee was not charged.
Parolee and his wife had reported the incident immediately to the police and provided them with the video recording.
Trooper Lanham testified about the altercation. Baum's daughter had reported to her father that Parolee had physically disciplined her. Parolee and his wife planned to discuss the issue with Baum when they picked up the children. The video showed Baum raising his fist to strike Parolee and clutching a key in his hand; Lanham described the key as having the effect of a weapon. Baum told Parolee "you're going to be a dead motherfucker." C.R. 11; Notes of Testimony at 76 (N.T. ___). Parolee responded to Baum's attack by hitting him, pushing him to the ground, and continuing to hit him. Trooper Lanham opined that at that point Parolee might be seen as "being vindictive or vengeful;" however, he noted that Parolee disengaged after he disarmed Baum and threw away the key. C.R. 11; N.T. 75.
Danielle Hellams, Parolee's wife, also testified. She stated that Parolee's Philadelphia parole officer gave him until September 28th to complete his move to Butler. On September 18th, they left Philadelphia and arrived at Baum's at the time specified in her custody order. Pursuant to the custody order, Baum has the children three weekends per month. On these weekends, she always arrives at Baum's residence on Sunday to collect the children. She offered no testimony about the fight.
The Board found that Parolee had violated Conditions 1 and 5(c) of his parole and recommitted him to serve six months backtime as a technical parole violator. Parolee filed an administrative appeal, but the Board found McAfee's testimony sufficient to establish that Parolee violated the terms of his parole. The Board also rejected Parolee's claim that McAfee lacked authority to detain him because the incident occurred prior to the start of McAfee's supervision of Parolee. The Board concluded that it had supervisory authority over Parolee regardless of which parole agent was assigned to a parolee at the time parole was violated.
Parolee petitioned for this Court's review and raises two issues. First, Parolee asserts that he could not have violated Condition 1 of his parole, i.e., being outside of the Mercer District on September 18, 2011, because he was not required to be in the Mercer District on that day. Second, he claims his conduct did not constitute assaultive behavior in violation of Condition 5(c) of his parole.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed or whether the findings of fact are supported by substantial evidence. McKenna v. Pennsylvania Board of Probation and Parole, 782 A.2d 1105, 1106 (Pa. Cmwlth. 2001). --------
In his first issue, Parolee argues that he did not violate Condition 1 on September 18, 2011, because he was not required to be in the Mercer District until September 28th. The Board counters that Parolee had permission to travel to Butler to move his belongings and not to stop in Westmoreland County to pick up his step-children and discuss their discipline.
McAfee was not Parolee's supervisor on the date of the incident. However, the Board is "an agency with statewide jurisdiction" over parolees. Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 600, 840 A.2d 299, 306 (2003). Accordingly, the Board has the authority to determine whether a condition of parole has been violated regardless of the district in which it occurred or the identity of the detaining parole agent.
The Board found that Parolee did not have permission to stop in Westmoreland County. However, Parolee did have permission to move, and McAfee's testimony was not very clear about the specifics or limitations of this permission. A personal move, logically, includes attending to the needs of one's family. In any case, there was no evidence that Parolee had completed the move by September 18, 2011, making the Mercer District his new district with respect to Condition 1. To the contrary, the unequivocal evidence was otherwise, that the Mercer District became his new district on September 28, 2011. In short, the evidence does not support the Board's finding that Parolee was required to be in the Mercer District on September 18, 2011. Accordingly, we reverse the Board's conclusion that Parolee violated Condition 1 of his parole.
In his second issue, Parolee argues that the evidence shows that Baum was the aggressor and that he acted in self-defense. Trooper Lanham's testimony established that Parolee was the victim of the assault and, thus, was not charged criminally along with Baum. The Board counters that there is a difference between engaging in criminal assault and "refrain[ing] from assaultive behavior." 37 Pa. Code §63.4(5)(iii) (relating to general conditions of parole). The Board found, based on the video recording, that Parolee continued to punch Baum after he knocked him to the ground. Further, Parolee did not try to back away from the fight; it was Baum who fled.
It is the Board that resolves conflicts in evidence, witness credibility and evidentiary weight. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413, 416 (Pa. Cmwlth. 1984). In assessing assaultive behavior, this Court has recognized that it "encompasses a broader category of actions than would the crime of assault." Jackson v. Pennsylvania Board of Probation and Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005). Accordingly, "actions that would not constitute a crime may nonetheless be sufficient grounds for revocation of parole." Id. Even verbal threats can constitute assaultive threats. See, e.g., Moore v. Pennsylvania Board of Probation and Parole, 505 A.2d 1366 (Pa. Cmwlth. 1986) (parolee's letter threatening recipient with rape and mutilation held to be assaultive behavior). However, words spoken under the threat of physical attack are not enough, in themselves, to constitute assault.
Baum initiated the fight. The Board found that Parolee did more than defend himself. Lanham's testimony alone showed that Parolee acted "vindictively," if not criminally, in the course of his fight with Baum. This is sufficient to support the Board's finding that Parolee failed to "refrain" from assaultive behavior in violation of Condition 5(c) of his parole.
The Board imposed a total of six months backtime for the two technical parole violations, i.e., Condition 1 and Condition 5(c). In Kyte v. Pennsylvania Board of Probation and Parole, 680 A.2d 14, 18 (Pa. Cmwlth. 1996), we held that a remand is not necessary where one Board violation is set aside so long as the recommitment period falls within the presumptive range for the remaining violation. That is the case here because the presumptive range for Parolee's single violation of Condition 5(c) is "6 to 18 months." 37 Pa. Code §75.4. Notably, the Board ordered the minimum recommitment for two violations. The Board may wish to order less than six months on the remaining violation, given the mitigating circumstance that Parolee's assaultive behavior occurred in the context of self-defense.
Accordingly, the order of the Board is reversed as to the finding that Condition Number 1 was violated and affirmed as to the finding that Condition Number 5(c) was violated. We remand to the Board for a reexamination of its recommitment of six months backtime.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 2nd day of May, 2013, the order of the Pennsylvania Board of Probation and Parole (Board) dated May 16, 2012, in the above-captioned matter is hereby AFFIRMED IN PART and REVERSED IN PART and REMANDED to the Board in accordance with the attached opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge