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Pennsylvania Supreme Court: Probationer Must Violate Specific Condition of Probation or Commit New Crime to Be Found in Violation

by Douglas Ankney

The Supreme Court of Pennsylvania held that a court must find, based on a preponderance of the evidence, that a probationer violated a specific condition of probation or committed a new crime to be found in violation of probation.

In July 2015, Darnell Foster was sentenced to four years of probation after pleading guilty to charges of possession and possession with intent to deliver a controlled substance.

In August 2016, Foster’s probation officer detained him because of photographs Foster had posted on his social media accounts. The photographs depicted guns, drugs, large amounts of cash, and Foster’s sentencing sheet with the caption, “Couldn’t beat the case. Four years probation.”

At a hearing in the common pleas court, the Commonwealth argued, without any corroborating evidence, that the contraband in the photographs belonged to Foster. The Commonwealth claimed that a black hand holding a bag of marijuana was Foster’s hand and that a gun in another photograph belonged to Foster.

The Commonwealth presented no evidence other than the photographs, argued that Foster committed new crimes (apparently drug possession and possession of a firearm), and urged the court to resentence him to a period of incarceration.

Foster, through counsel, admitted that he had posted the photographs to the social media accounts. But he asserted that he had downloaded all of the pictures from the internet, except those depicting his sentencing sheet. Counsel argued that while Foster should not have downloaded and posted the photos of criminal activity, it was neither a crime nor a violation of any specific condition of his probation.

The court found that Foster violated his probation. Notably, the court did not find that Foster violated a condition of his probation, did not mention the conditions of his probation, did not find that the items in the photographs belonged to Foster, and did not find that Foster committed a crime. Instead, the court found: “What is crystal clear from these photographs, posted by the defendant on his social media accounts, is that he does not take probation seriously and clearly is not attempting to conform to society’s expectations of its citizenry. Mr. Foster’s embracement of all things ‘gangsta,’ including illegal drugs, guns, and violence, is not the reformation this court had in mind for the defendant when he was placed on probation. This defendant’s conduct clearly indicates that probation was an ineffective vehicle to accomplish his rehabilitation and deter against Foster’s future antisocial conduct, as he has chosen to highlight his defiance or indifference regarding his crimes, rather than any display of remorse.” The court revoked Foster’s probation and resentenced him to 11 to 23 months of incarceration followed by seven years of probation.

Foster appealed to the Superior Court, challenging the revocation of his probation without finding him in violation of a specific condition of his probation as statutorily and constitutionally required. The Superior Court affirmed, and the Pennsylvania Supreme Court granted further review.

The Supreme Court observed that the Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, set forth the governing principles for the analysis of this case. The goal of interpreting a statute is to discern and implement the intent of the General Assembly. § 1921(a). When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit, and every provision of a statute is to be given effect to the extent possible. § 1921(a)-(b). Statutes that are pari materia (meaning that they relate to the same person or things or to the same class of persons or things) must be construed as one statute to the extent possible. § 1932. Courts must ascribe the “common and approved” definition to each of the words used in a statute. § 1903(a).

A parole revocation hearing requires a fact finder to first determine “whether the parolee has in fact acted in violation of one or more conditions of his parole.” Morrissey v. Brewer, 408 U.S. 471 (1972). If he has, it is only then that the fact finder decides if the parolee should be recommitted to prison. Id. 

In response to Morrissey, the Pennsylvania General Assembly enacted 42 Pa.C.S. §§ 9754 and 9771, which address the requirements for an order of probation and a violation of probation, respectively. Section 9754 provides a general condition that the probationer live a law-abiding life, i.e., not commit another crime. Section 9754 also provides specific conditions that may be imposed by the sentencing court. Section 9771(b) provides that revocation of probation is sanctioned only “upon proof of the violation of specified conditions of the probation.”

The Supreme Court ruled that the plain meaning of the statutes require a court to find that a probationer either committed a new crime or violated a specific condition of probation as stated in a probation order before a probationer could be found in violation. The common pleas court had made no such finding in Foster’s case and unlawfully revoked his probation. However, the Supreme Court learned that during the appeal process Foster was convicted of a new crime and was incarcerated. Consequently, Foster was entitled to credit for any time served as a result of the unlawful probation revocation.

Accordingly, the Court reversed the decision of the Superior Court, vacated the decision of the court of common pleas, and remanded to the court of common pleas for proceedings consistent with the Court’s opinion. See: Commonwealth v. Foster, 2019 Pa. LEXIS 4593 (2019). 

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