            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darryl Blackwell,                           :
                      Petitioner            :
                                            :
       v.                                   : No. 1750 C.D. 2019
                                            : SUBMITTED: June 26, 2020
Pennsylvania Board of                       :
Probation and Parole,                       :
                  Respondent                :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                  FILED: August 4, 2020

       Darryl Blackwell (Blackwell) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board).1                     The Board denied
Blackwell’s request for administrative relief and upheld its decision recommitting
Blackwell to serve nine months of backtime as a technical parole violator (TPV).
After thorough review, we affirm the Board’s decision.
                                       I. Background
       In August 2002, Blackwell was convicted and sentenced to a prison term of
11 years, 3 months to 22 years, 6 months for numerous criminal offenses including
possession of a weapon, simple assault (two counts), contempt for violation of orders
(four counts), terroristic threats, harassment, criminal mischief, and possession of an



       1
        Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§ 6101, 6111(a).
instrument of a crime. Certified Record (C.R.) at 5. His minimum parole date was
October 7, 2012, and his maximum sentence date was January 7, 2024. Id.
       In September 2014, Blackwell was paroled to Wernersville Community
Corrections Center (Wernersville CCC). C.R. at 34. In April 2015, he was released
from Wernersville CCC to his approved home plan. Id. In June 2015, he was
recommitted to serve six months of backtime as a TPV for traveling outside his
district without permission. Id.
       In December 2015, Blackwell was re-paroled to Harrisburg Community
Corrections Center (Harrisburg CCC).               C.R. at 35.   In August 2016, he was
successfully discharged from Harrisburg CCC to his approved home plan. Also in
August 2016, he was successfully discharged from the Batterer’s Intervention
Program at Commonwealth Clinical Group. Id.
       In June 2017, a woman reported Blackwell held her against her will, hit her,
and spat on her. Id. Blackwell was arrested by agents of the Board for violating
condition 5c of his parole, which required him to refrain from assaultive behavior.
Id. However, he was subsequently released after his alleged victim recanted her
assault accusation against him. Id. The Board ordered him to have no contact with
the alleged victim and to participate again in the Batterer’s Intervention Program.
Id.   In January 2018, Blackwell was again successfully discharged from the
Batterer’s Intervention Program at Commonwealth Clinical Group. Id.
       In May 2018, Blackwell was arrested by Harrisburg police and charged with
“strangulation – applying pressure to throat or neck,” a second-degree felony, after
his girlfriend reported he grabbed her by the throat and held her down with sufficient
pressure on her throat that she could not breathe and began to pass out.2 Id. The

       2
         The Certified Record does not indicate whether this victim was the same person involved
in the 2017 alleged incident.


                                               2
responding officer observed abrasions and scratches on the victim’s neck and a
laceration on her tongue where she stated she bit herself while struggling with
Blackwell. Id.
      The Board lodged a warrant to commit and detain Blackwell pending
disposition as a TPV. C.R. at 45. The Board’s cited reasons for detention included
“seriousness of offense,” “assaultive behavior,” and “other – domestic violence in
nature.” Id. In June 2018, the felony strangulation charge against Blackwell was
changed to a summary offense of “disorderly conduct – engage in fighting,” to which
he pleaded guilty. Id. As a result of his guilty plea to the disorderly conduct charge,
the Board charged Blackwell with a technical parole violation of condition 4 of his
parole, “comply with all municipal, county, state and federal criminal laws . . . .”
C.R. at 50; Notes of Testimony, 7/13/18 (N.T.) at 6.
      In July 2018, the Board held a hearing on the technical parole violation before
a hearing examiner and a Board member. See generally N.T. The supporting
evidence was Blackwell’s guilty plea to the summary offense of “disorderly conduct
– engage in fighting.” N.T. at 7. Blackwell’s parole agent testified as a witness and
offered three documentary exhibits in support of the alleged technical parole
violation. First, the agent submitted a copy of the criminal complaint and related
affidavit of probable cause (Cmwlth. Ex. 1), signed by the magisterial district judge
(MDJ) and stamped and signed by the officer who prepared it. N.T. at 7-9; C.R. 87-
90. Second, the parole agent submitted a printout of the original criminal docket
regarding the felony strangulation charge from the MDJ’s office, with the MDJ’s
electronic signature and seal (Cmwlth. Ex. 2). N.T. at 10-11; C.R. at 91-93. Third,
the parole agent submitted a printout of the docket from the MDJ’s office showing
the change to a summary offense of “disorderly conduct – engage in fighting” and



                                          3
Blackwell’s guilty plea to that charge, also with the MDJ’s electronic signature and
seal. N.T. at 11-12; C.R. at 94-96. The parole agent testified that he obtained the
documents personally from the MDJ’s office. N.T. at 10, 12.
         Blackwell, through counsel, objected to all three exhibits as hearsay and
violations of Blackwell’s right of confrontation, because the copies were not
separately certified beyond the certifications on the original documents. N.T. at 7-
12. The hearing officer accepted the documents into evidence over counsel’s
objections. Id.
         Following the hearing, in August 2018, the Board issued a Violation Hearing
Report (Report) indicating that the technical violation charge related to condition 4
of Blackwell’s parole. C.R. at 79. The Report reflected that Blackwell offered no
defense to the violation, other than objecting to the admission of the documentary
exhibits. C.R. at 80. The Report further reflected the Board’s finding, by a
preponderance of the evidence, that Blackwell violated condition 4 of his parole.
C.R. at 81. The Board relied on evidence consisting of the parole agent’s testimony,
copies of the MDJ records, and the Board’s forms 257T,3 257H,4 and 257N.5 Id.
Notably, Blackwell does not challenge the Board’s reliance on the parole agent’s
testimony or the various Board forms.
         The Board found placement in county jail was appropriate because the parole
violation was assaultive. Id. Accordingly, the Board recommitted Blackwell as a
TPV to serve nine months of backtime. C.R. at 82, 104, 106.

         3
             Technical Violation Arrest Report related to felony strangulation charge. C.R. at 45.

         4
             Supervision History, including a description of the felony strangulation charge. C.R. at
34-36.

         5
        Notice of Charges and Hearing relating to the felony strangulation charge, signed by
Blackwell. C.R. at 37.


                                                    4
       In September 2018, Blackwell filed a timely Administrative Remedies Form
with the Board, seeking relief from its recommitment decision. C.R. at 109. In his
request for relief, Blackwell renewed his argument that the documentary evidence
from the MDJ’s office was inadmissible hearsay because the copies were not
certified separately from the seals on the original documents. C.R. at 110. In
November 2018, the Board issued a written decision finding there was substantial
evidence in support of recommitment and affirming the recommitment decision.
C.R. at 127-28.
       Blackwell then petitioned for review in this Court.
                                           II. Issue
       On review,6 Blackwell contends photocopies of certified documents constitute
inadmissible hearsay, and the Board’s admission of such documents into evidence
denied his right of confrontation and cross-examination under the Board’s
regulation, 37 Pa. Code § 71.2(11)(iv). Blackwell asserts the Board erred in
admitting such hearsay evidence over his objections and in relying on that evidence
as support for its decision recommitting him as a TPV.
                                       III. Discussion
       In a recommitment proceeding, the Board has the burden of proving a
violation of parole by a preponderance of the evidence. Chapman v. Pa. Bd. of Prob.
& Parole, 484 A.2d 413 (Pa. Cmwlth. 1984) (citing 37 Pa. Code § 71.2(20)). Here,
Blackwell’s sole argument is that the Board erred in accepting into evidence copies
of documents relating to his 2018 arrest and the resulting felony strangulation

       6
          Under Section 704 of the Administrative Agency Law, our review of the Board’s decision
is limited to a determination of whether the Board’s findings of fact are supported by substantial
evidence, whether the Board committed an error of law, or whether the Board’s decision violated
Blackwell’s constitutional rights. 2 Pa.C.S. § 704; Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d
160, 164 n.2 (Pa. Cmwlth. 2016).


                                                5
charge. Blackwell insists that although the original documents were sealed or
certified, the copies were not separately recertified. Thus, Blackwell contends that
the Board impermissibly admitted and relied on hearsay. Further, Blackwell asserts
the Board violated his right of confrontation under a Board regulation by admitting
hearsay evidence. We discern no merit in Blackwell’s argument.
       Pennsylvania law is settled that copies of court documents and other public
records need not be separately certified to be admissible in evidence. See Anderson
v. Pa. Bd. of Prob. & Parole, 497 A.2d 947 (Pa. Cmwlth. 1984); Chapman. In
Anderson, this Court addressed evidentiary issues closely analogous to those raised
by Blackwell here. The petitioner argued the Board erred by admitting copies of a
criminal docket sheet and police department property receipt at his recommitment
hearing. Because the copies had not been recertified under seal, the petitioner
asserted they were inadmissible hearsay. This Court disagreed. Regarding the
uncertified copy of the docket sheet, we held that “photocopies of court records need
not be additionally certified. . . .” Id. at 949 (citing 37 Pa. Code § 71.5(b)7) (quoting
Davis v. Pa. Bd. of Prob. & Parole, 481 A.2d 714, 717 (Pa. Cmwlth. 1984)).
Similarly, in Chapman, this Court found a copy of a certified docket showing the
petitioner’s guilty plea to aggravated assault and criminal conspiracy was sufficient
in itself to support recommitment for a technical parole violation of assaultive
conduct. Chapman, 484 A.2d at 416.
       Further, in Anderson, we also found all of the documents at issue were public
records. Under Section 6109(b) of the Judicial Code, the Uniform Photographic


       7
           “In hearings conducted [by the Board], documentary evidence and reports, including, but
not limited to, depositions, written interrogatories, affidavits, laboratory reports, business records,
public records, official records and letters rogatory, may be utilized solely, if the panel or examiner
is satisfied as to their authenticity, relevancy, accuracy and reliability.” 37 Pa. Code § 71.5(b).


                                                  6
Copies of Business and Public Records as Evidence Act, a reproduction of a record
of “any department or agency of government . . . when satisfactorily identified, is as
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether the original is in existence or not. . . .” 42 Pa.C.S. § 6109(b). 8
Therefore, we concluded the copies at issue in Anderson were “specifically made
admissible” by Section 6109(b). Anderson, 497 A.2d at 950.
       Of significance here, Blackwell now concedes the admissibility of
Commonwealth Exhibit 3, a copy of the criminal docket sheet documenting his
guilty plea to the charge of “disorderly conduct – engage in fighting.” Blackwell’s
Br. at 7. The docket sheet itself constituted substantial evidence establishing that
Blackwell engaged in assaultive behavior and thereby violated condition 4 of his
parole, which required him to comply with all federal, state, county, and municipal
laws while on parole. See Thompson v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,
No. 603 C.D. 2017, filed Jan. 27, 2018),9 slip op. at 10-11, 2018 Pa. Commw. Unpub.
LEXIS 46, at *14 (unreported) (copy of criminal docket showing new conviction
was adequate to support recommitment decision, as it constituted substantial




       8
          Section 6103 of the Judicial Code, 42 Pa.C.S. § 6103, generally requires certification of
photocopies of court records in order for those records to be admissible. However, this Court has
found that Section 6103 is inapplicable to the Board. See Blackwell v. Pa. Bd. of Prob. & Parole,
516 A.2d 856, 859 (Pa. Cmwlth. 1986) (citing 42 Pa.C.S. § 6101) (“[e]xcept as otherwise provided
by statute or regulation promulgated pursuant thereto by a government agency, the provisions
of this subchapter shall apply to matters heard by judicial tribunals and to all matters heard by
government agencies of this Commonwealth”) (emphasis added); 37 Pa. Code § 71.5(b)); Davis
v. Com. 481 A.2d 714, 717 (Pa. Cmwlth. 1984) (same).

       9
        We cite this Court’s unreported decision as persuasive pursuant to our Internal Operating
Procedures, 210 Pa. Code § 69.414(a).



                                                7
evidence and satisfied the Board’s burden of proving the new conviction by a
preponderance of the evidence).10
         Furthermore, Blackwell would not be entitled to relief, even if we had deemed
the challenged documents to constitute hearsay evidence, as his felony arrest and the
strangulation incident giving rise to the arrest and felony charge were separately
documented in Board forms 257T, 257H, and 257N. See C.R. at 34-37, 45. The
Board’s decision indicated it relied in part on these documents in making its
recommitment decision, id. at 81, and Blackwell has not challenged that reliance
here.11 Thus, regardless of whether the copies of the arrest report, affidavit of
probable cause, and docket regarding the felony strangulation charge were
admissible, the Board’s decision was still supported by substantial evidence.
         We likewise find Blackwell’s confrontation rights argument to be without
merit.        The Board’s regulation concerning confrontation, on which Blackwell


         10
          Notably, in Thompson v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No.
603 C.D. 2017, filed Jan. 27, 2018), slip op. at 10-11, 2018 Pa. Commw. Unpub. LEXIS 46, at
*14 (unreported), this Court also found petitioner’s appointed counsel demonstrated entitlement
to withdraw. As the evidence of the new conviction constituted substantial evidence and sustained
the Board’s burden of proof, we found the record lacked arguable support for the petitioner’s
argument on review. Therefore, counsel was entitled to withdraw because the petitioner’s legal
position lacked merit and was wholly frivolous. Here, Blackwell’s counsel did not seek to
withdraw, but our analysis in Thompson is nonetheless persuasive concerning the lack of merit in
Blackwell’s argument.

         11
          Although Blackwell was not convicted of the felony strangulation charge, that fact does
not preclude the Board’s reliance on evidence concerning the events underlying his arrest on that
charge. “‘The quantum of proof necessary to establish grounds for parole revocation is
significantly less than that required to sustain a criminal conviction . . . . [A] basis for revoking
parole is established by evidence of probative value substantiating the parolee’s violation of the
terms of his parole.’” Washington v. Pa. Bd. of Prob. & Parole, 458 A.2d 645, 647 (Pa. Cmwlth.
1983) (quoting Com. v. Rossetti, 388 A.2d 1090, 1092 (Pa. Super. 1978) (citations omitted)).




                                                 8
relies,12 states: “Before the violation hearing the parolee or counsel shall be notified
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). This regulation is facially inapplicable
to a hearsay objection, inasmuch as it relates solely to the right to confront and cross-
examine a witness who appears at the violation hearing – not a right to object to
documentary evidence. Moreover, as we have concluded the documents at issue
were admissible without certification, no authenticating witness was required.
Therefore, no right of confrontation or cross-examination is implicated.
                                         IV. Conclusion
      Based on the foregoing discussion, the decision of the Board is affirmed.

                                               __________________________________
                                               ELLEN CEISLER, Judge




      12
           Blackwell neither cites nor otherwise refers to any constitutional confrontation rights.


                                                  9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darryl Blackwell,                   :
                    Petitioner      :
                                    :
      v.                            : No. 1750 C.D. 2019
                                    :
Pennsylvania Board of               :
Probation and Parole,               :
                  Respondent        :

                                  ORDER


      AND NOW, this 4th day of August, 2020, the order of the Pennsylvania Board
of Probation and Parole is AFFIRMED.

                                    __________________________________
                                    ELLEN CEISLER, Judge
