Without a show of good cause, hearsay alone is not enough to find someone a Technical Parole Violator (“TPV”). In the case of Turon McGee, the Commonwealth Court of Pennsylvania recently held the Parole Board, “erred, as a matter of law, in finding him a 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 convicted of crimes related to rape of a child. He was sentenced to 5 to 10 years of imprisonment and was first paroled on June 24, 2013. However, he was recommitted to serve six months of backtime after a technical violation. On April 30, 2016, McGee was reparoled subject to conditions, including a condition requiring him to complete all programming at Coleman Hall in Philadelphia. Discharge from this center for any reason would result in a violation of probation.
McGee was given Notice he was being charged with a technical violation after he was discharged from the center for threatening behavior. A Contract Facility Coordinator (“Coordinator”) at the Bureau of Community Corrections was the only person who testified at McGee’s parole hearing.
The Parole Agent representing the Board offered into evidence an email sent by the Deputy Operations Manager for Coleman Hall to the Coordinator requesting approval for McGee’s unsuccessful discharge. McGee’s counsel objected to admission of the email because the sender was not present in court, so there was no direct testimony about the threatening behavior that was the basis for the “unsuccessful” discharge.
The Coordinator testified 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 renewed his objection that the hearing could not proceed without testimony from the shift supervisor whom McGee allegedly threatened.
The Board found McGee was in violation noting the evidence relied upon in making its determination was the Coordinator’s testimony.
McGee argued, because only a hearsay report of the alleged threats towards the shift supervisor was admitted into evidence (without a showing of good cause) he was deprived of his right of confrontation. The court agreed, holding, “[The] Coordinator was merely a conduit for the hearsay evidence upon which the Board ultimately relied. Further, there was no showing of good cause for admitting this hearsay evidence.” While hearsay may be admitted, it cannot be the only evidence of a parole violation.
With this opinion, the court dispels any question that, absent a showing of good cause, hearsay alone is enough to find you a Technical Parole Violator.
To read the unreported opinion:
http://www.pacourts.us/assets/opinions/Commonwealth/out/1473CD17_9-13-18.pdf?cb=1
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steve@fairlielaw.com
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