             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Turon McGee,                                      :
                               Petitioner         :
                                                  :
                       v.                         :    No. 1473 C.D. 2017
                                                  :    Submitted: July 27, 2018
Pennsylvania Board of Probation and               :
Parole,                                           :
                        Respondent                :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                  FILED: September 13, 2018


       Turon McGee (McGee) petitions for review of the June 30, 2017 Order of the
Pennsylvania Board of Probation and Parole (Board) affirming the Board’s Decision
mailed September 28, 2016, revoking his parole and recommitting him as a technical
parole violator (TPV).1 After review, we agree with McGee that the Board erred, as


       1
            McGee’s Petition for Review was not filed with this Court until October 20, 2017, which
would otherwise be untimely had he not previously filed a timely Petition for Review with the
Court of Common Pleas of Bucks County (common pleas). Common pleas did not transfer the
Petition for Review to this Court, but rather dismissed the matter. See Section 5103(a) of the
Judicial Code, 42 Pa. C.S. § 5103(a) (“If an appeal or other matter is taken to or brought in a court
. . . of this Commonwealth which does not have jurisdiction . . . the court . . . shall not quash such
appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal . . . .”).
Upon McGee’s Petition for Leave to File Appeal Nunc Pro Tunc, we granted McGee such relief
and, therefore, his Petition for Review is timely.
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.
      On June 10, 2009, following McGee’s conviction for crimes related to rape of
a child, in violation of Section 3126(c) of the Crimes Code, 18 Pa. C.S. § 3126(c),
and related offenses, McGee was sentenced to 5 to 10 years of imprisonment.
McGee was first paroled on June 24, 2013, but was recommitted to serve six months
of backtime after a technical violation. On April 30, 2016, McGee was automatically
reparoled subject to certain conditions, including Special Condition No. 7
(successful completion of all programming recommended by community corrections
center (CCC)). Special Condition No. 7 advised McGee that “[d]ischarge from this
center for any reason other than successful completion will be a violation of [his]
conditions of supervision and may result in . . . incarceration.” (Certified Record
(C.R.) at 31.) The Board assigned McGee to live at Coleman Hall in Philadelphia.
      As alleged in a Resident Infraction Report dated June 11, 2016, McGee,
against the instruction of Coleman Hall staff, called for an ambulance. When
emergency medical personnel arrived, they determined that McGee’s complaint was
not an emergency. Thereafter, McGee returned to his housing unit where staff
allegedly heard him threaten a shift supervisor. The Resident Infraction Report cited
McGee for threatening an employee with bodily harm and failing to follow
directions. Thereafter, McGee was unsuccessfully discharged from Coleman Hall.
      On June 20, 2016, the Board provided McGee with a Notice of Charges and
Hearing (Notice), informing him that he was being charged with a technical violation
of Special Condition No. 7. The Notice reiterated the content of Special Condition
No. 7 and stated that “supporting evidence: on 6/13/2016, you were unsuccessfully



                                         2
discharged from Coleman Hall for behavior that was assaultive in nature.” (Id. at
36.)
       A hearing was then held where only a Contract Facility Coordinator
(Coordinator) at the Bureau of Community Corrections testified.              During
Coordinator’s testimony, 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. Parole 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 “[s]ender [was] not present” and there was no direct testimony about the
threatening behavior that was the basis for the unsuccessful discharge. (Id. at 66.)
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. (Id. at 67-68.)
       When the Hearing Examiner inquired if the shift supervisor was present,
Parole Agent stated he was not. Parole Agent asserted that because he understood
the issue at hand to be one of unsuccessful discharge alone, the behavior underlying
the discharge was “irrelevant.”         (Id. at 68 (emphasis added).)   The Hearing
Examiner, noting that “we do like to know the reason . . . for the discharge,” asked
Parole Agent if the shift supervisor was unavailable or if “he was not considered,”
and Parole Agent responded that it was the latter, because “[w]e are simply charging
for the . . . unsuccessful discharge.” (Id. at 68-69.) The Hearing Examiner deferred




                                            3
decision on McGee’s objection to the email and Resident Infraction Report, but
advised that the objection was “being seriously considered.” (Id. at 69-70.)
       The Board ultimately found that McGee had not successfully completed the
program at Coleman Hall and, thus, was in violation of Special Condition No. 7. In
so doing, the Board noted that the evidence relied upon in making its determination
was Coordinator’s testimony. The Board did not address the objection raised by
McGee’s Counsel. The Board recommitted McGee for a minimum of six months.
       McGee timely filed an administrative appeal from the Board’s Decision
revoking his parole and recommitting him as a TPV. McGee raised a number of
arguments in support of his appeal, including that the Board’s finding was supported
only by hearsay evidence that was admitted over objection without a showing of
good cause. (Id. at 96-97.) The Board affirmed its Decision on June 30, 2017.
       On appeal to this Court,2 McGee raises the following arguments. First,
McGee contends the Notice charged a different violation than the one upon which
the Board made its finding. Second, he argues he did not willfully violate his parole
but was discharged for reasons beyond his control, namely, in retaliation for
complaints he filed while at Coleman Hall. Third, and finally, McGee contends that
the Board’s finding was not based on substantial competent evidence. The Board,
McGee argues, did not produce the shift supervisor whom he allegedly threatened,
but only a hearsay report of those threats, which the Board erroneously admitted into
evidence without a showing of good cause and, thereby, deprived McGee of his right
of confrontation.


       2
        Our standard of review is limited to determining whether the Board’s findings of fact are
supported by substantial evidence, whether the Board committed an error of law, or whether the
Board violated the parolee’s constitutional rights. Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d
160, 164 n.2 (Pa. Cmwlth. 2016).


                                               4
       The Board contends that the charge specified in the Notice, unsuccessful
discharge from Coleman Hall, was the same basis for the Board’s ultimate finding
of McGee as a TPV. The Board further argues that McGee’s unsuccessful discharge
from Coleman Hall did not result from conduct outside of his control, but rather his
misconduct triggering the unsuccessful discharge. (Board’s Brief at 9.) The Board
does not address McGee’s third argument.
       Here, McGee did not raise before the Board the first two arguments he raises
on appeal. Because those issues were not raised before the Board either at the
revocation hearing or in McGee’s administrative appeal, those issues are waived.
Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012).3
       McGee’s third issue, however, regarding the hearsay testimony at the center
of the violation and revocation hearing, is not waived. McGee’s Counsel objected
to this evidence at the hearing, and McGee raised the issue in his administrative
appeal. Therefore, we will address the merits of this issue.
       The Board’s regulations provide that prior to the hearing, a parolee be advised
of “[t]he right to cross-examine an adverse witness who appears at the hearing,
unless the panel or examiner specifically finds good cause for not allowing
confrontation.” 37 Pa. Code § 71.2(11)(iv). Further, “[w]hile hearsay may be

       3
         Even if McGee had not waived review of these two issues, it is unlikely that he would
have prevailed on either of them on the merits. Regarding the first issue, although due process is
violated when the Board rests its revocation decision on grounds other than those specified in the
notice, Champion v. Pennsylvania Board of Probation and Parole, 395 A.2d 671, 672 (Pa.
Cmwlth. 1978), no such circumstances are present here. Both the Notice provided to McGee and
the Board’s final decision specify violation of Special Condition No. 7 as the premise for the
revocation. As to the second issue, a willful act within the parolee’s control must form the basis
for a violation to be found. Hudak v. Pa. Bd. of Prob. & Parole, 757 A.2d 439, 440-41 (Pa.
Cmwlth. 2000). While McGee contends that his discharge was retaliatory based upon complaints
he made against Coleman Hall personnel, the record reflects, via Coordinator’s accepted
testimony, only that the discharge was premised on the threats McGee made, which would be
considered a willful act.


                                                5
admitted in probation and parole revocation hearings, a decision to recommit a
parolee as a TPV may not be based solely upon hearsay evidence.” Grello v. Pa.
Bd. of Prob. & Parole, 477 A.2d 45, 46 (Pa. Cmwlth. 1984) (emphasis added). If,
over objection, hearsay testimony is admitted without a finding of good cause, the
hearing examiner commits reversible error. Id. While good cause is not legislatively
defined, we have held that a Board policy not requiring the testimony of adverse
witnesses who have to travel more than 50 miles for a hearing does not amount to
good cause. Id. at 46-47.
      In Hracho v. Pennsylvania Board of Probation and Parole, the petitioner
challenged his recommitment as a TPV when a Board employee, without personal
knowledge of the alleged violation, was the only testifying witness at the hearing.
503 A.2d 112, 112-13 (Pa. Cmwlth. 1986). The Board employee was permitted to
submit into evidence a letter written by an Indian Beach, North Carolina police
officer that was not witnessed or notarized, and bore no official letterhead. Id. at
113. The letter indicated that, based on evidence the police officer had found, the
petitioner had been consuming alcohol on one day and, on the next day, was arrested
in a bar. Id. The Board recommitted the petitioner based solely upon the letter. Id.
We reversed and found that there was not good cause for the absence of the police
officer, noting that there was no evidence that the Board “either attempted or even
requested that the [police officer] appear for petitioner’s hearing.” Id. Because the
Board recommitted the petitioner based solely on hearsay evidence admitted without
a finding of good cause, we reversed the Board’s order. Id.
      Similar to Hracho, McGee was found to be a TPV based solely on hearsay
evidence that was admitted over objection without a finding of good cause. The
conduct underlying the unsuccessful discharge was established only through the



                                         6
hearsay evidence of the email and the Resident Infraction Report admitted during
Coordinator’s testimony. Coordinator’s testimony merely relayed his approval of
the discharge, but he lacked personal knowledge of the incident that led to the
discharge. Thus, 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 the Parole Agent argued that the Board had
only to prove that McGee was unsuccessfully discharged and not the underlying
conduct that formed the basis for the discharge, the Parole Agent offered no authority
in support of such an argument, the Board makes no such argument now on appeal,
and we have not uncovered any such authority. If it were true, as the Parole Agent
asserted, that only the fact of the unsuccessful discharge had to be proven, and not
the conduct that formed the basis for the discharge, then a parolee could be cited for
any reason, including reasons that violate his rights, or no reason at all, and there
would be no inquiry into the basis for the discharge. We cannot countenance such a
claim.
         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.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                          7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Turon McGee,                             :
                         Petitioner      :
                                         :
                   v.                    :   No. 1473 C.D. 2017
                                         :
Pennsylvania Board of Probation and      :
Parole,                                  :
                        Respondent       :


                                      ORDER


      NOW, September 13, 2018, the June 30, 2017 Order of the Pennsylvania
Board of Probation and Parole (Board) affirming the Board’s Decision mailed
September 28, 2016, in the above-captioned matter, is VACATED, and the matter
is REMANDED to the Board for further proceedings consistent with this opinion.
      Jurisdiction relinquished.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
