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 
2

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 
3

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).
4

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:
5

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 
6

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.
7

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.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tramale Lockett, :

Petitioner :

:

v. :

:

Pennsylvania Board :

of Probation and Parole, : No. 1453 C.D. 2015

Respondent :

PER CURIAM

O R D E R

AND NOW, this 4

th day of May, 2016, the Pennsylvania Board of 

Probation and Parole’s July 22, 2015 order is affirmed.