HEARSAY ALONE – ADMITTED OVER OBJECTION AND WITHOUT GOOD CAUSE – WAS IS INSUFFICIENT TO FIND PAROLE VIOLATION

In an unreported decision, the Commonwealth Court has decided the case of Turon McGee v. PA Bd of Probation and Parole, No. 1473 C.D. 2017 (September 13, 2018), holding that the Board erred, as a matter of law, in finding McGee a Technical Parole Violator (“TPV”) based solely on hearsay evidence that was admitted over objection without a showing of good cause for depriving him of his right of confrontation.

McGee was sentenced to serve a portion of his sentence in Coleman Hall Community Corrections Center with the requirement that discharge from the center for any reason other than successful completion would be a violation of his conditions of supervision and may result in incarceration. He was subsequently charged with a technical violation and received a Notice advising him that he was unsuccessfully discharged from Coleman Hall for behavior that was assaultive in nature. 

At McGee’s Parole Revocation Hearing, the Parole Agent representing the Board offered into evidence an email sent by the Deputy Operations Manager for Coleman Hall to Coordinator requesting approval for McGee’s unsuccessful discharge. The agent then offered into evidence the Resident Infraction Report attached to the aforementioned email. McGee’s Counsel objected to admission of the email because the sender was not present and there was no direct testimony about the threatening behavior that was the basis for the unsuccessful discharge. Coordinator testified that he received the Resident Infraction Report with the email and that the Resident Infraction Report was the basis upon which he approved the unsuccessful discharge. McGee’s Counsel then renewed his objection that the hearing could not proceed without testimony from the shift supervisor whom McGee allegedly threatened.

The Board found McGee in violation and, after his Administrative appeal to the Board affirmed that Decision, McGee filed this appeal to the Commonwealth Court.

The Commonwealth Court noted that while hearsay may be admitted in probation and parole revocation hearings, a decision to recommit a parolee as a TPV may not be based solely upon hearsay evidence. And, if, over objection, hearsay testimony is admitted without a finding of good cause, the hearing examiner commits reversible error. 

In applying the law to the facts at hand, the Commonwealth Court determined that McGee was found to be a TPV “based solely on hearsay evidence that was admitted over objection without a finding of good cause.” Furthermore, “the conduct underlying the unsuccessful discharge was established only through the hearsay evidence of the email and the Resident Infraction Report admitted during Coordinator’s testimony.”

Therefore, the Board committed an error of law when it recommitted McGee as a TPV based solely on hearsay evidence that was admitted without a finding of good cause. Accordingly, we vacate and remand the matter to the Board for a new hearing. 

CASE LINK:

Turon McGee v. PA Bd of Probation and Parole, No. 1473 C.D. 2017 (September 13, 2018)

http://www.pacourts.us/assets/opinions/Commonwealth/out/1473CD17_9-13-18.pdf?cb=1

 

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