Brown v. Pennsylvania Board of Probation & Parole

DISSENTING OPINION BY

Judge COHN.

Respectfully, I dissent.

On page 11 of the transcript, the following evidence regarding Ms. Brown’s original statement appears:

Mr. Wolfe: (prosecuting for the Board) ... [D]id you not state that I felt he was going to hit me several times during this encounter, and feared that he will hit me in the future? And you indicated that you are afraid of him.
Ms. Brown: I was being emotional at that time.
Mr. Wolfe: But did you make that statement to us on August 10, 2001?
Ms. Brown: I thought that I had to write that down in order for you to talk to him....

While Ms. Brown may now claim that she had other motives for making her original statement, she does not deny that she originally made it. In Miller v. Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 24, 522 A.2d 720 (1987), the issue was whether the Board of Probation and Parole (Board) erred in relying on a signed statement made under oath by the parolee’s girlfriend that he struck and bit her when the girlfriend recanted her statement at the revocation hearing. In deciding whether this evidence could support the revocation, we noted that it was an out-of-court statement made under oath at a time when the parolee had no opportunity to cross-examine her as to the accuracy of the charge. We observed in Miller, relying on Commonwealth v. Brady, 510 Pa. 128, 507 A.2d 66 (1986), the trend to consider a prior inconsistent statement of a declarant, who is a witness in a judicial proceeding and is available for cross-examination, as substantive evidence in a later proceeding. Miller extended the Brady holding to a situation where the initial signed statement given under oath is made in the context of investigation of a possible parole violation. We also noted in the Miller case that there were indicia of reliability regarding the signed out-of-court statement, including the fact that it was made under oath near the time of the incident. We additionally noted the relationship of the parties and held that the motivation of the parolee’s girlfriend was a proper consideration for the Board.

*988Here, as in Miller, we have a statement, made under oath, near the time of the incident and made in the context of investigating a parole violation. Under Miller, that statement may be considered by the Board as substantive evidence. Further, if believed, it is substantial evidence of as-saultive behavior.1 Therefore, I fail to see how the Board, in relying on it, acted in bad faith, capriciously, or with fraud as required by Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 49, 484 A.2d 413 (1984).

Accordingly, I would affirm its order.

. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 49, 484 A.2d 413 (1984).