              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tramale Lockett,                        :
                           Petitioner   :
                                        :
                   v.                   :
                                        :
Pennsylvania Board                      :
of Probation and Parole,                :   No. 1453 C.D. 2015
                           Respondent   :   Submitted: December 18, 2015



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                  FILED: May 4, 2016


            Tramale Lockett (Lockett) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) July 22, 2015 order denying
him administrative relief. Essentially, Lockett presents one issue for this Court’s
review: whether sufficient evidence supports the Board’s May 13, 2015 decision
denying Lockett automatic re-parole. After review, we affirm.
            Lockett is an inmate currently incarcerated at the Centre County
Correctional Facility (CCCF).       Lockett was sentenced to three to six years’
incarceration for Violation of Probation - Firearm Not to be Carried Without a
License. The original minimum and maximum sentence release dates were June 21,
2013 and June 21, 2016, respectively. The Board initially paroled Lockett from this
sentence on August 5, 2013 to reside in the Alle-Kiski Pavilion.           Lockett
subsequently absconded from parole supervision staff on October 11, 2013, and the
Board declared him delinquent. Agents arrested Lockett for parole violations on
October 28, 2013. On October 31, 2013, Lockett waived his right to a preliminary
hearing and a violation hearing, and admitted to violating the following parole
conditions: (1) leaving the Pittsburgh district without permission; (2) change of
residence without permission; (3A) failure to report; and (7) failure to complete the
Alle–Kiski Pavilion program. The Board, however, did not immediately revoke
Lockett’s parole based on the admission/waiver. Instead, the Board chose to hold
that decision in abeyance pending Lockett’s completion of his required programs.
Lockett was sent to Renewal Inc. to participate in the programs. Lockett failed to
complete the programs at Renewal Inc. and was discharged due to repeatedly
threatening staff at the center. As a result, by May 16, 2014 decision, the Board
recommitted Lockett as a technical parole violator to serve six months in a state
correctional institution/contracted county jail (SCI/CCJ) for violating the four parole
conditions to which he previously admitted.         The Board also recalculated his
maximum sentence release date from June 21, 2016 to July 8, 2016 based on the
violations.
              Lockett was automatically re-paroled from this sentence on May 25,
2014 to the Alle-Kiski Pavilion. Lockett absconded from parole supervision staff on
July 4, 2014 and the Board again declared him delinquent. On September 11, 2014,
agents arrested Lockett for parole violations. That same day, Lockett waived his
right to a preliminary hearing and a violation hearing and admitted to violating the
following parole conditions: (1) leaving the Pittsburgh district without permission; (2)
change of residence without permission; (3A) failure to report; and (7) failure to
complete the Alle-Kiski Pavilion program. This time, the Board determined that
Lockett could not be safely diverted in the community and immediately processed his
waiver/admission. By October 16, 2014 decision, the Board recommitted Lockett to
serve nine months in a SCI/CCJ as a technical parole violator for the four violations
that he admitted to on September 11, 2014. This decision also recalculated Lockett’s
maximum sentence release date from July 8, 2016 to September 15, 2016, and his


                                           2
new automatic re-parole date was June 11, 2015. Lockett was placed in the CCCF
following his recommitment as a technical parole violator.
              On March 11, 2015, Lockett got into a fight with another inmate. The
CCCF conducted a misconduct hearing on March 23, 2015 and charged Lockett with:
Charge 110 - Assault: attempting to cause or threatening bodily harm to staff, visitors
or inmates; Charge 134 - Fighting or inciting a fight; and Charge 139 - Presence or
entering into another cell/dorm room. Lockett pled guilty to Charge 134 - Fighting or
inciting a fight, but he was found not guilty of the remaining charges, including
assault. Because re-parole is not automatic for a parolee who commits a disciplinary
infraction “involving assaultive behavior,” the Board voted to deny Lockett automatic
re-parole. Section 6138(d) of the Prison and Parole Code, 61 Pa.C.S. § 6138(d). By
May 13, 2015 decision, the Board deleted the June 11, 2015 automatic re-parole date
set forth in the October 16, 2014 decision. On May 18, 2015, the Board received an
administrative appeal from Lockett objecting to the decision denying him automatic
re-parole. By response mailed July 22, 2015, the Board denied Lockett’s appeal and
affirmed its May 13, 2015 decision. Lockett appealed to this Court.1
              Lockett first argues that substantial evidence does not support the
Board’s decision to rescind his automatic re-parole date based on his misconduct
because he was acquitted of the assault charge at his prison misconduct hearing. We
disagree.
              Section 6138(d) of the Prison and Parole Code provides in relevant part:

              Recommitment to correctional facility.--A technical
              violator recommitted to a State correctional institution or a


         1
          “Our review in a parole revocation action is limited to determining whether the findings
were supported by substantial evidence, whether constitutional rights were violated, or whether the
Board committed an error of law.” Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3
(Pa. Cmwlth. 2010).


                                                3
            contracted county jail under subsection (c) shall be
            recommitted as follows:
            ....
            (3) Except as set forth in paragraph (4) or (5), the parolee
            shall be recommitted for one of the following periods, at
            which time the parolee shall automatically be re[-
            ]paroled without further action by the [B]oard:
               (i) For the first recommitment under this subsection,
               a maximum period of six months.
               (ii) For the second recommitment under this
               subsection for the same sentence, a maximum of nine
               months.
               (iii) For the third or subsequent recommitment under
               this subsection for the same sentence, a maximum of
               one year.
            (4) The parolee may be re[-]paroled by the board prior to
            expiration of the time period under paragraph (3) if the
            board determines that it is in the best interest of the
            Commonwealth and the parolee.
            (5) The time limit under paragraph (3) shall not be
            applicable to a parolee who:
               (i) Committed a disciplinary infraction involving
               assaultive behavior, sexual assault, a weapon or
               controlled substances;
               (ii) Spent more than 90 days in segregated housing
               due to one or more disciplinary infractions; or
               (iii) Refused programming or a work assignment.

61 Pa.C.S. § 6138(d) (text emphasis added). This Court has held:

            ‘The Board has broad discretion to administer the parole
            laws, and the Court will defer to the Board’s interpretation
            of its regulations if it is consistent with statutory authority
            and is not clearly erroneous.’ Jackson v. [Pa.] Bd. of Prob.
            [&] Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005).
            Relative to assaultive behavior, this Court has stated:

                                          4
               Although the Board’s regulations require that parolees
               refrain from assaultive behavior, the regulations do not
               provide a definition of ‘assault.’ 37 Pa. Code §
               63.4(5)(iii) (relating to general conditions of parole).
               However, this Court recognizes ‘[a]ssaultive behavior
               encompasses a broader category of actions than would
               the crime of assault, and thus actions that would not
               constitute a crime may nonetheless be sufficient
               grounds for revocation of parole.’ Jackson . . . , 885
               A.2d [at] 601 . . . .
               Moreover, in the context of parole violations,
               assaultive behavior is defined under the ordinary
               dictionary definition of assault. Moore v. Pa. Bd. of
               Prob. & Parole, . . . 505 A.2d 1366 ([Pa. Cmwlth.]
               1986). Webster’s Collegiate Dictionary, 73 (11th ed.
               2003) defines assault as: ‘1 a: [A] violent physical or
               verbal attack. . . . [and] 2 a: [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.’
            Flowers v. [Pa.] Bd. of Prob. [&] Parole, 987 A.2d 1269,
            1271–72 (Pa. Cmwlth. 2010).

Malarik v. Pa. Bd. of Prob. & Parole, 25 A.3d 468, 470 (Pa. Cmwlth. 2011).
            Here, it is undisputed that by October 16, 2014 decision, the Board
recommitted Lockett as a technical parole violator to serve nine months, and Lockett
had a right to be automatically re-paroled from that recommitment on June 11, 2015.
It is also undisputed that while incarcerated at CCCF, Lockett’s fight with another
inmate resulted in charges of assault, fighting or inciting a fight, and presence or
entering into another cell/dorm room after conducting a disciplinary hearing. At the
prison misconduct hearing, Lockett pled guilty to the fighting charge. According to
the CCCF Disciplinary Hearing Report:

            The inmate was found Guilty of [C]harge 134 [fighting
            or inciting a fight] since the video footage shows the two
            inmates throwing punches at each other. The inmate was
            found Not Guilty of [C]harge 110 [assault; attempting to
                                           5
             cause or threatening bodily harm to staff, visitors or
             inmates] since it appears to be a mutual fight.

Certified Record at 67 (emphasis added). Because “the Board has broad discretion to
administer the parole laws, and the Court will defer to the Board’s interpretation of its
regulations if it is consistent with statutory authority and is not clearly erroneous” and
fighting, i.e., throwing a punch at another inmate, is clearly a “violent physical . . .
attack. . . . [and] [or 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[,]” the Board
properly rescinded Lockett’s automatic re-parole date based on his assaultive
behavior. Malarik, 25 A.3d at 470.
             Lockett further asserts that the Board is collaterally estopped from
finding that Lockett committed assaultive behavior because he was acquitted of the
assault charge. Lockett cites Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983) to
support his position that once a petitioner is acquitted of a crime, parole cannot be
revoked for participation in that same crime. However, the issue in Brown was
whether Brown’s parole could be revoked based solely on a robbery charge of which
he had been acquitted. The Brown Court opined:

             [T]he problem presented in this law suit is merely whether
             the Commonwealth, after having elected to defer to the
             judgment of the jury, should be given the additional
             opportunity to re[-]litigate the same issue applying a
             preponderance of the evidence test. We do not believe that
             there is any justification for such a disparity. As has been
             noted[,] the probationer is bound in a subsequent revocation
             hearing by an earlier verdict of guilt. Moreover, in electing
             to defer the judgment in the first instance[,] the
             Commonwealth has impinged upon the probationer’s right
             to a ‘speedy’ revocation hearing and disposition. Under all
             of these circumstances, it is clear that such an option would
             not only be unseemly but fundamentally unfair.


                                             6
Id. at 1377-78 (citation omitted). Here, Lockett was acquitted of the misconduct
charge of assault, but he was found guilty of fighting. As assault and fighting both
fall within the ambit of assaultive behavior, an acquittal of one does not collaterally
estop a finding of assaultive behavior for the other. Accordingly, Brown is not
controlling.
               For all of the above reasons, the Board’s order is affirmed.




                                             7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tramale Lockett,                         :
                           Petitioner    :
                                         :
                   v.                    :
                                         :
Pennsylvania Board                       :
of Probation and Parole,                 :   No. 1453 C.D. 2015
                           Respondent    :


PER CURIAM
                                        ORDER

            AND NOW, this 4th day of May, 2016, the Pennsylvania Board of
Probation and Parole’s July 22, 2015 order is affirmed.
