              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Angelo Shawn Randolph,                   :
                Petitioner               :
                                         :   No. 586 C.D. 2019
            v.                           :
                                         :   Submitted: October 18, 2019
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: January 15, 2020


            David Crowley, Esquire (Counsel), of the Centre County Public
Defender’s Office, has filed an Application for Leave to Withdraw as Counsel on
behalf of Angelo Shawn Randolph (Randolph). Randolph petitions for review of the
April 25, 2019 order of the Pennsylvania Board of Probation and Parole (Board),
denying his request for administrative relief and rejecting challenges to his
recommitment and the rescission of his automatic reparole date. We grant Counsel’s
application to withdraw and affirm the Board’s order.
            On April 24, 2005, following his convictions of third-degree murder,
criminal attempt, and various firearm offenses, a trial court sentenced Randolph to 15
to 30 years’ imprisonment. At the expiration of his minimum sentence, November 24,
2017, the Board released Randolph on parole. In a decision dated July 17, 2018, the
Board recommitted Randolph as a technical parole violator (TPV) and ordered him to
serve six months’ backtime. In this decision, the Board stated that Randolph would
automatically be paroled on November 21, 2018, on condition that he, inter alia, did
not commit a prison disciplinary infraction involving assaultive behavior. (Certified
Record (C.R.) at 7-8, 18-20, 32, 36, 39-41, 45.)
             On August 19, 2018, while he was incarcerated, Randolph was involved
in an altercation with another inmate and charged with the “behavioral infractions” of
being in an unauthorized area and fighting. At a behavioral infraction conference,
Randolph admitted that he was in an unauthorized area but denied that he was guilty
of fighting. In his defense statement to the charge of fighting, Randolph stated that he
had a confrontation with the inmate regarding their agreement to exchange food items
and that he “went over and grabbed him,” i.e., the inmate, but claimed that “he didn’t
hit him.” (C.R. at 52.) Following a misconduct hearing, the Board, relying on video
surveillance, found that Randolph choked the inmate and determined that he
“committed a disciplinary infraction involving assaultive behavior.” (C.R. at 56.)
Consequently, the Board voted to “rescind automatic reparole” and recalculated
Randolph’s reparole date, extending it to “18 months from the misconduct date.” Id.
The Board confirmed these findings and conclusions in a decision dated November 14,
2018, wherein it determined that Randolph would not be eligible for reparole until
February 19, 2020. (C.R. at 51, 53-54, 62.)
             On November 26, 2018, Randolph filed administrative appeals from the
Board’s decisions dated July 17, 2018, and November 14, 2018. In a decision mailed
April 25, 2019, the Board affirmed its prior decisions. In doing so, the Board noted
that with respect to its July 17, 2018 recommitment decision, Randolph waived his
right to a hearing and admitted that he violated the technical conditions of his parole.



                                           2
(C.R. at 66-67.) Regarding its November 14, 2018 decision rescinding Randolph’s
automatic reparole date, the Board cited section 6138(d)(5)(i) of the Prisons and Parole
Code (Parole Code),1 61 Pa.C.S. §6138(d)(5)(i), and noted that Randolph “committed
a disciplinary infraction involving assaultive behavior, which was the basis for
rescinding [his] automatic reparole date.” (C.R. at 71.)
                  On May 15, 2019, Counsel filed a petition for review in this Court,
alleging that the Board was without authority, and did not adduce sufficient evidence,
to recommit Randolph as a TPV. Counsel also asserted that the Board lacked a
legitimate basis to rescind Randolph’s automatic reparole date.
                  On August 5, 2019, Counsel filed an application for leave to withdraw and
an Anders brief,2 detailing the reasons why he determined that Randolph’s appeal lacks
merit.
                  Before examining the merits of Randolph’s petition for review, we must
first address Counsel’s application for leave to withdraw. Seilhamer v. Pennsylvania
Board of Probation and Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010). In order to
withdraw, Counsel must fulfill the procedural requirements set forth in Craig v.
Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985).
Under Craig, counsel must notify the petitioner of his request to withdraw, furnish the
petitioner with either a copy of a brief complying with Anders or a no-merit letter
satisfying the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
inform the petitioner of his right to retain new counsel or submit a brief on his own
behalf. Craig, 502 A.2d at 760-61.



         1
             61 Pa.C.S. §§101-6309.

         2
             Anders v. California, 386 U.S. 738 (1967).


                                                    3
               “Where an Anders brief is filed when a no-merit letter would suffice, the
Anders brief must at least contain the same information that is required to be included
in a no-merit letter.” Seilhamer, 996 A.2d at 42-43. Substantively, a no-merit letter
must include the following: (1) the nature and extent of counsel’s review; (2) the issues
the parolee wishes to raise; and (3) counsel’s analysis in concluding the parolee’s
appeal is without merit. Hughes v. Pennsylvania Board of Probation and Parole, 977
A.2d 19, 25 (Pa. Cmwlth. 2009); Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009). We require counsel to comply with these requirements to ensure that a
petitioner’s claims are considered and that counsel has substantial reasons for
concluding the claims are without merit. Zerby, 964 A.2d at 962. Once counsel fully
complies with the procedural and substantive requirements to withdraw, this Court
independently reviews the merits of the petitioner’s claims. Id. at 960.
               In the present case, Counsel notified Randolph that he was seeking leave
to withdraw and provided him with a copy of the application to withdraw and the
Anders brief, which addressed the issues that Randolph asserted below and were raised
in the petition for review. Counsel also advised Randolph of his right to obtain
substitute counsel or file a brief on his own behalf. In addition, Counsel’s Anders brief
reflects that he has thoroughly reviewed the record in this matter and the applicable
law, setting forth his reasons for concluding that the appeal is meritless. Therefore, we
conclude that Counsel has complied with the procedural and substantive requirements
to withdraw.
               Having made this determination, we now conduct our own independent
review to determine whether Randolph’s appeal is, in fact, without merit. An appeal
is without merit when it lacks any basis in law or fact. Commonwealth v. Santiago,
978 A.2d 349, 356 (Pa. 2009).



                                            4
               On appeal,3 Randolph asserts that the Board erred in recommitting him as
a TPV because it did not have an adequate basis to do so.4                    However, the record
indicates that Randolph waived his right to counsel and a hearing. (C.R. at 26-27.)
The record further establishes that Randolph signed an admission form admitting that
he committed the conduct that resulted in and warranted his recommitment as a TPV,
i.e., failing to successfully complete a residential placement program and engaging in
assaultive behavior toward staff that worked there. (C.R. at 27.) This Court has held
that where, as here, a petitioner admits that he violated the terms and conditions of his
parole and waives his right to a hearing, the statements in the waiver and admission
forms are sufficient evidence, in and of themselves, to justify recommitment as a TPV.
See McKenzie v. Pennsylvania Board of Probation and Parole, 963 A.2d 616, 620-21
(Pa. Cmwlth. 2009); Prebella v. Board of Probation and Parole, 942 A.2d 257, 260-
61 (Pa. Cmwlth. 2008); see also Sanders v. Pennsylvania Board of Probation and
Parole, 958 A.2d 582, 586 (Pa. Cmwlth. 2008). Therefore, we conclude that this issue
is devoid of merit.
               Next, Randolph contends that the Board did not possess the authority to
rescind his automatic parole date. While section 6138(d)(3) of the Parole Code, 61

       3
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210, 1212
n.6 (Pa. Cmwlth. 2003).

       4
          We note that the Board’s recommitment decision was issued on July 17, 2018, and Randolph
did not file an administrative appeal until November 26, 2018, well after the 30-day time limitation
for filing an administrative appeal. The end result is that, absent extraordinary circumstances that are
not readily apparent from the record, the Board lacked jurisdiction to entertain this particular appeal
and should have dismissed it as untimely. See 37 Pa.Code §73.1(a)(1), (b)(1); McCaskill v.
Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1095 and n.4 (Pa. Cmwlth. 1993).
Nonetheless, the Board addressed the recommitment issue in its August 25, 2019 order, and so will
we.


                                                   5
Pa.C.S. §6138(d)(3), lists time periods for automatic reparole based upon the number
of prior recommitments as a TPV, section 6138(d)(5)(i) provides that automatic
reparole “shall not be applicable to a parolee who . . . committed a disciplinary
infraction involving assaultive behavior[.]”      61 Pa.C.S. §6138(d)(5)(i).       Here,
according to the Automatic Reparole Rescission Report, the

             [m]isconduct report from Clinton County Correction Facility
             reflects that [] Randolph committed [a] misconduct[] for
             fighting . . . . The misconduct[] occurred on 08/19/2018
             when he got into an argument with another inmate.
             [Randolph] then followed this inmate back to his bunk area
             and choked him by placing both hands around his throat.
             This also caused the other inmate to hit his head on the bunk.
             The incident was over cornbread. [Randolph] denied the
             misconduct of fighting, but based on video evidence the
             prison found him guilty . . . .
(C.R. at 54.) Based on these facts, the Board concluded that Randolph committed a
disciplinary infraction involving assaultive behavior. (C.R. at 54-56.)
             In the prison disciplinary context, “assaultive behavior is defined under
the ordinary dictionary definition of assault.” Malarik v. Pennsylvania Board of
Probation and Parole, 25 A.3d 468, 470 (Pa. Cmwlth. 2011) (internal alterations
omitted). Applying this understanding of the term, this Court has construed it to
include, inter alia, “a threat or attempt to inflict offensive physical contact or bodily
harm on a person (as by lifting a fist in a threatening manner) that puts the person in
immediate danger of or in apprehension of such harm or contact.” Id. Given the nature
of the physical confrontation, at bare minimum, Randolph’s act of choking another
inmate constitutes an attempt to inflict bodily harm on that inmate. Cf. Commonwealth
v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006). Consequently, the Board did not err
in determining that Randolph engaged in assaultive behavior and rescinding his




                                           6
automatic reparole date for that reason. This Court concludes, accordingly, that
Randolph’s contentions challenging the Board’s decision in these regards are meritless.
                We address Randolph’s remaining arguments briefly. Randolph asserts
that, following his recommitment, the Department of Corrections (DOC) should have
segregated him from county and federal inmates. To the contrary, “an inmate does not
have a right to be housed in a particular facility or in a particular area within a facility,”
37 Pa. Code §37.11, and it is entirely within the discretion of the DOC “to determine
where inmates are housed.” Lopez v. Department of Corrections, 119 A.3d 1081, 1085
(Pa. Cmwlth. 2015). Without a specific statute or regulation mandating certain housing
arrangements and/or segregation among certain classes of inmates, Randolph’s claim
lacks merit.
                Randolph also asserts that the Board’s decision to recommit him and
rescind automatic reparole violates principles of double jeopardy and due process, as
well as the fruit of the poisonous tree doctrine. However, these constitutional claims
have been rejected by this Court. See, e.g., Bowman v. Pennsylvania Board of
Probation and Parole, 709 A.2d 945, 948 (Pa. Cmwlth. 1998); Santo v. Pennsylvania
Board of Probation and Parole, 568 A.2d 296, 298 (Pa. Cmwlth. 1990); Epps v.
Pennsylvania Board of Probation and Parole, 565 A.2d 214, 217 (Pa. Cmwlth. 1989);
Gundy v. Pennsylvania Board of Probation and Parole, 478 A.2d 139, 141 (Pa.
Cmwlth. 1984). Moreover, originating as a deterrent to unconstitutional searches and
seizures under the Fourth Amendment5 in criminal proceedings, the fruit of the
poisonous tree doctrine is inapplicable to parole revocation and recommitment
proceedings. See Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357,
364-69 (1998). Therefore, we conclude that Randolph’s remaining issues are meritless.


       5
           U.S. Const. amend. IV.


                                              7
             Having concluded that the issues raised by Randolph lack any basis in law
and/or fact, we affirm the Board’s order.


                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Angelo Shawn Randolph,                 :
                Petitioner             :
                                       :    No. 586 C.D. 2019
            v.                         :
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                 Respondent            :


                                   ORDER


            AND NOW, this 15th day of January, 2020, the Application for Leave
to Withdraw as Counsel filed by David Crowley, Esquire (Counsel), of the Centre
County Public Defender’s Office, is GRANTED, and the April 25, 2019 order of the
Pennsylvania Board of Probation and Parole is hereby AFFIRMED.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
