remand not necessary where one parole violation is set aside provided the recommitment period falls within the presumptive range for the admitted violations
How later courts described this case
- remand not necessary where one parole violation is set aside provided the recommitment period falls within the presumptive range for the admitted violations
Written by the judges who cited it.
The opinion
KELLEY, Judge,
concurring and dissenting.
In the instant appeal, petitioner first contends that he was subjected to an unconstitutional search and the fruits of that search, particularly the knife, should not have been considered by the board in revoking his parole. However, my review of the certified record reveals that petitioner did not object to the admission of this evidence at his parole revocation hearing. As a result, petitioner has waived any claim he may have regarding the Board’s consideration of this evidence. See, e.g., Mangone v. Pennsylvania Board of Probation and Parole, 123 Pa.Cmwlth. 34 , 553 A.2d 91 (1988), petition for allowance of appeal denied, 522 Pa. 591 , 561 A.2d 743 (1989); Wallace v. Pennsylvania Board of Probation and Parole, 119 Pa.Cmwlth. 508 , 548 A.2d 1291 (1988); Maxfield v. Pennsylvania Board of Probation and Parole, 114 Pa.Cmwlth. 162 , 538 A.2d 628 (1988); Patton v. Pennsylvania Board of Probation and *19 Parole, 95 Pa.Cmwlth. 333 , 505 A.2d 407 (1986).
In addition, in reviewing this claim on the merits, the majority overrules our panel decision in Scott v. Pennsylvania Board of Probation and Parole, 668 A.2d 590 (Pa.Cmwlth.1995). However, on May 15,1996, the Pennsylvania Supreme Court granted allowance of appeal in that ease to address precisely the same issue which is considered by the majority in the instant appeal. Scott v. Pennsylvania Board of Probation and Parole, No. 2 M.D. Allocatur Docket, — Pa. -, 676 A.2d 1203 , petition for allowance of appeal granted May 15,1996.
Based on the foregoing, I believe it would be imprudent to consider the first claim raised by petitioner in this appeal for two reasons. Initially, I believe that this claim should not be addressed because it has not been properly preserved by petitioner for our review. Additionally, if it were appropriate to review this claim on the merits, its resolution would be controlled by the Pennsylvania Supreme Court’s disposition of the identical claim in Scott . Therefore, I must dissent from that portion of the majority opinion which considers petitioner’s initial claim on the merits, and purports to overrule our panel decision in Scott .
In this appeal, petitioner also contends that even if this improperly admitted evidence is considered, the Board’s finding of a violation of parole condition 5B is not supported by substantial evidence. I agree with the majority that, when all of the evidence of record is reviewed, there is substantial evidence to support the Board’s finding of a violation of petitioner’s parole condition 5B. Therefore, I concur with the majority’s determination that the Board’s order denying petitioner’s request for administrative relief must be affirmed.
SMITH and FRIEDMAN, JJ., join in this concurring and dissenting opinion.