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Commonwealth v. Foster

Supreme Court of Pennsylvania

August 20, 2019


          ARGUED: March 5, 2019

          Appeal from the Judgment of Superior Court entered on January 3, 2018 at No. 3572 EDA 2016 affirming the Judgment of Sentence entered on October 27, 2016 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0005272-2015



         The issue presented in this case asks for a determination of what constitutes a permissible basis for a court to find an individual in violation of probation ("VOP"). The pertinent language of the relevant statutes requires that orders of probation include "specific conditions" to help the defendant to achieve the general condition of leading a "law-abiding life," and a finding that a defendant violated a "specified condition of the probation" to support its revocation. See 42 Pa.C.S. §§ 9754(b)-(c), 9771(c). Based on our canons of statutory construction, we conclude that the VOP court must find, based on the preponderance of the evidence, that the probationer violated a specific condition of probation or committed a new crime to be found in violation. Absent such evidence, a violation of probation does not occur solely because a judge believes the probationer's conduct indicates that probation has been ineffective to rehabilitate or to deter against antisocial conduct. We therefore reverse the decision of the Superior Court, vacate the order of the VOP court and remand the case for proceedings consistent with this Opinion.

         On July 7, 2015, Appellant Darnell Foster entered a negotiated guilty plea to charges of possession of and possession with intent to deliver a controlled substance.[1]The trial court sentenced him to four years of probation. On August 3, 2016, Foster's probation officer detained him because of several photographs he posted on his social media accounts in the preceding three months. The photographs depicted guns, drugs, large amounts of money and his sentencing sheet from his plea agreement, along with captions that he posted with some of the pictures.[2]

         The common pleas court held two hearings on the alleged violation of probation in August and October.[3] It was the Commonwealth's position that the items in the photographs were contraband that belonged to Foster and that he took the pictures. The Commonwealth claimed, without any corroborating evidence, that a black hand in a photograph that was holding a bag of marijuana necessarily belonged to Foster and that a gun depicted in a different photograph belonged to Foster, constituting the commission of crimes. N.T., 10/27/2016, at 19, 20; see 18 Pa.C.S. § 6105(a) (defining persons not to possess firearms). The Commonwealth contended that Foster was using his social media accounts "as an ad agency … to sell the drugs" and that this evinced that he "continue[d] to do exactly what he's been doing." Id. at 10, 18. According to the Commonwealth, the photographs reflected "the kind of respect that he has for [the court] and the rules that [the court has] and the rules that probation has for him." Id. at 11. It asserted that there was "absolutely no evidence to show that the photos were taken by anyone other than [Foster]" and "that there is clearly enough evidence to show that [Foster] is in violation of his supervision."[4] Id. at 9, 11. The Commonwealth requested that Foster be resentenced to a period of incarceration and be prohibited from using social media for the duration of his court supervision. Id. at 11. Other than the photographs in question, the Commonwealth presented no evidence at either VOP hearing in support of its contentions. At no time did the Commonwealth mention the conditions of Foster's current probation, present a document detailing the conditions, or suggest that his conduct violated a specific condition of his probation.

         Foster, through counsel, admitted that the social media accounts were his and that he had posted the photographs in question, but asserted that he downloaded all of the pictures (other than those depicting his sentencing sheet and him with money) from the internet. Counsel argued that although Foster should not have downloaded and posted pictures that reflect criminal activity or a criminal lifestyle, it was not a crime or a violation of his probation to do so. Counsel recounted that Foster had been attending meetings with his probation officer, tested negative on every drug screen and had not incurred any new arrests, all of which presumably were conditions of his probation. Counsel argued that the burden was on the Commonwealth to establish that Foster had violated his probation and that it failed to carry that burden. When given the opportunity to speak for himself, Foster explained to the VOP court that he posted the photographs "to show off to people," but admitted that "[i]t was stupid." Id. at 25. He further stated that the photographed money was his, but that he had earned it through legal employment with a waste management company.

         At the conclusion of the second proceeding, the VOP court found that Foster had violated his probation. Notably, the VOP court did not find that Foster had violated a condition of his probation - in fact, the VOP court never mentioned the conditions of his probation in reaching its decision, and no order of probation appears in the certified record on appeal.[5] Nor did the VOP court find that the items in the photographs were, in fact, contraband, that any of the items belonged to Foster, that he took the posted pictures, or that he committed a crime. Instead, the court found as follows:

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.

         VOP Court Opinion, 3/31/2017, at 5. It thus revoked his probation and resentenced him to 11½ to 23 months of incarceration, followed by seven years of probation.

         Foster appealed to the Superior Court challenging, in relevant part, the revocation of his probation without finding him in violation of a specific condition of his probation as statutorily and constitutionally required. Relying on its prior decision in Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), which, in turn, had relied upon language from this Court's decision in Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), the Superior Court framed the question before it as "whether the evidence admitted at the VOP hearing established by a preponderance of the evidence that probation had proven ineffective at rehabilitating [Foster] and deterring him from antisocial behavior." Commonwealth v. Foster, 3572 EDA 2016, 2018 WL 267757, *3 (Pa. Super. Jan 3, 2018) (non-precedential decision).

         Based on the above-quoted portion of the VOP court's opinion, the Superior Court found that the decision to find Foster in violation of his probation was neither an abuse of discretion nor an error of law. The Superior Court found it irrelevant whether the pictures were Foster's or whether he downloaded the images from the internet, as the photographs "illustrate his association of himself with contraband, a propensity for violence, and the glorification of drugs as well as show his lack of rehabilitation and his antisocial conduct." Id. According to the Superior Court, the photographs "actively suggest [Foster]'s continued involvement with these items." Id.

         The Superior Court cited this Court's decision in Infante for the proposition that "[a] probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct." Foster, 2018 WL 267757, at *3 (quoting Infante, 888 A.2d at 791). The Superior Court pointed to the photograph Foster posted of his negotiated guilty plea, which included the caption, "Couldn[']t beat the case 4 years['] probation," categorizing this as an "expression of remorse not for engaging in the sale of illegal drugs which led to that plea but, rather, at his inability to avoid prosecution." Id. at *4. It found that this constituted clear evidence that "being on probation had not sufficiently rehabilitated [Foster] or deterred him from engaging in antisocial conduct." Id.[6]

         Foster filed a petition for allowance of appeal, which this Court granted to address the following question:

Did not the Superior Court err by ignoring the governing statute and due process protections that permit revocation only for a violation of specified conditions of probation, and by holding that [Foster's] inappropriate offensive social media posting, that violated no condition of probation, warranted revocation?

Commonwealth v. Foster, 187 A.3d 913 (Pa. 2018) (per curiam).

         Prior to addressing the substantive issue raised, we must first determine whether this appeal continues to be properly before us for decision. On March 1, 2019, the Commonwealth filed a post-submission communication, see Pa.R.A.P. 2501(a), informing the Court that Foster had pled guilty on December 8, 2018 to possession of a controlled substance with intent to deliver. This resulted, on February 15, 2019, in a revocation of the sentence of probation that he was given on October 27, 2016 by the VOP court. The Commonwealth contends that because Foster has been resentenced, "there is no final sentence before this Court that could be vacated." Commonwealth's Post-Submission Communication, 3/1/2016, at 2. Although not explicit in this regard, it appears based on the totality of the motion that the Commonwealth is suggesting that the question before the Court is now moot.

         Foster responded to the Commonwealth's motion, asserting that the Court should disregard the information communicated by the Commonwealth because the Court must evaluate the case based on the record at the time of the revocation in question.[7] Foster further disagrees that the case is moot as probation revocation has adverse consequences beyond the sentence received. He therefore requests that the Court decide the pending appeal.

         We agree with Foster that this case is not moot. A case is moot when facts that arise after the initiation of the case leave a litigant without a stake in the outcome of the matter. William Penn Sch. Dist. v. Pennsylvania Dept. of Ed., 170 A.3d 414, 435 n.33 (Pa. 2017). As Foster correctly observes, the impact of a revocation of probation goes beyond the resentencing decision. Johnson v. Commonwealth Bd. of Probation and Parole, 482 A.2d 235, 236 (Pa. 1984) (per curiam) (finding parolee's challenge to violation proceeding was not moot after re-paroled because finding of violation could have "future consequences"). If the defendant is convicted of another crime or has a future revocation of probation proceeding, a past probation revocation is something that courts deciding these questions would consider in determining whether probation is an appropriate sentence. See, e.g., Commonwealth v. Parlante, 823 A.2d 927, 931 (Pa. Super. 2003) ("We agree with the trial court that Parlante should serve time in prison because of her prior criminal record and repeated inability to comply with the rules and requirements of her probation."). See also 42 Pa.C.S. §§ 9721(b) (sentencing considerations include defendant's rehabilitative needs and protection of public), 9771(c) (permissible bases for imposing sentence of total confinement upon revocation of probation include the need to vindicate the court's authority). The October 27, 2016 order revoking Foster's probation remains part of his record. The subsequent revocation of his probation in February 2019 does not render that order superfluous. We therefore proceed to consider the merits of the issue raised.

         Foster asserts that the plain language of section 9771 of the Sentencing Code, 42 Pa.C.S. § 9771, which governs revocation of probation, prohibits a court from finding a probationer in violation absent proof that the defendant violated a specific condition of his or her probation or committed a new crime. By finding Foster in violation for his "offensive antisocial conduct," Foster argues that the courts below effectively rewrote the statute to allow for revocation on some other, non-specified basis, which is prohibited by the rules of statutory construction. Foster's Brief at 9-10. Foster states that the other statute that is part of this statutory scheme includes the same, unambiguous language, requiring the same interpretation. Id. at 10-11; see 42 Pa.C.S. § 9754. In the event this Court finds section 9771 to be ambiguous, Foster contends that the courts below nonetheless erred, as the language of the statute, as a penal statute, must be "interpreted in the light most favorable to the accused." Foster's Brief at 13-14 (quoting Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001)).[8]

         The Commonwealth makes only passing references to section 9771, but it asserts its disagreement with Foster's interpretation of the statutory provision.[9] Instead of reading section 9771 as permitting revocation only for a violation of a specified condition of probation, the Commonwealth states that the "focus" of the statute is on the requirement of "proof of a violation before a court orders revocation." Commonwealth's Brief at 17 (emphasis in original) (citing Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985), for the proposition that "the Court has recognized that a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence").

         This case presents a question of statutory interpretation, for which our scope of review is plenary and our standard of review is de novo. Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018). The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets forth the governing principles for our analysis. It provides that the goal of interpreting a statute is to discern and implement the intent of the General Assembly. Id. § 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. Id. § 1921(a)-(b); Cagey v. Commonwealth, 179 A.3d 458, 462-63 (Pa. 2018) ("when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, we must give the statute this plain and obvious meaning") (citation omitted).

         "[I]n determining whether language is clear and unambiguous, we must assess it in the context of the overall statutory scheme, construing all sections with reference to each other, not simply examining language in isolation." Whitmoyer v. Workers' Comp. Appeal Bd. (Mountain Country Meats), 186 A.3d 947, 954 (Pa. 2018). Statutes that are in 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. 1 Pa.C.S. § 1932. We ascribe the "common and approved" definition to each of the words used in a statute. 1 Pa.C.S. § 1903(a). We construe "[g]eneral words" used in a statutory provision as being defined and "restricted by preceding particular words." Id. § 1903(b).

         The present versions of our probation statutes date back to 1974. Approximately a year and a half prior to their adoption, the United States Supreme Court decided Morrissey v. Brewer, 408 U.S. 471 (1972). In Morrissey, the high Court announced the due process protections to which a person is entitled when alleged to be in violation of parole.[10] Of particular relevance to the case at bar, the Morrissey Court began with the following premise:

Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?

Id. at 479-80 (emphasis added). The Court continued, stating that a parolee relies on the court's "implicit promise that parole will be revoked only if he fails to live up to the parole conditions." Id. at 482. Thus, the Court repeated that "[t]his discretionary aspect of the revocation decision need not be reached unless there is first an appropriate determination that the individual has in fact breached the conditions of parole," referring to this as a function of "basic fairness" and "avoiding reactions to arbitrariness." Id. at 483-84.

         In an apparent response to Morrissey, our General Assembly enacted sections 9754 and 9771 of the Judicial Code, which address the requirements for an order of probation and a violation of probation, respectively. See 42 Pa.C.S. §§ 9754, 9771. Section 9754[11] provides that an order of probation must specify the length of the term thereof at the time of sentencing. Id. § 9754(a). Under the heading "[c]onditions generally," section 9754 requires the sentencing court to attach any "reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law-abiding life." Id. § 9754(b). Subsection (c), titled "[s]pecific conditions," includes the fifteen conditions of probation that are authorized for inclusion in the order. Id. § 9754(c). "[I]n the event of the violation of a condition," the statute directs that the court cannot resentence the defendant before it makes "a finding on the record that a violation has occurred." Id. § 9754(d) (emphasis added).

         Section 9771[12] allows for termination of supervision or modification of the conditions of probation at any time. Id. § 9771(a). Revocation of probation, however, is sanctioned only "upon proof of the violation of specified conditions of the probation." Id. § 9771(b) (emphasis added). If, after finding a violation, the court revokes a defendant's probation, it may only resentence the defendant to a term of incarceration if (1) the defendant was convicted of a new crime; (2) the defendant's conduct makes it likely that he or she will commit a new crime if not incarcerated; or (3) incarceration "is essential to vindicate the authority of the court." Id. § 9771(c). A hearing is required before a court may revoke probation or increase the terms of a defendant's probation, "at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation." Id. § 9771(d).

         We find the language of the pertinent statutory provisions to be clear and unambiguous. The law provides a general condition of probation - that the defendant lead "a law-abiding life," i.e., that the defendant refrain from committing another crime. Id. § 9754(b). To insure that general condition is met, or to assist the defendant in meeting that general condition, the order must also include certain "specific conditions" from the list enumerated in section 9754(c). Only upon the violation of any of the "specified conditions" in the probation order (general or specific) may a court revoke the defendant's probation. Id. § 9771(b). In other words, a court may find a defendant in violation of probation only if the defendant has violated one of the "specific conditions" of probation included in the probation order or has committed a new crime. The plain language of the statute does not allow for any other result.[13]

         The Commonwealth advocates for the creation of an implied condition of probation: that a defendant is prohibited from "communicat[ing] an intent to commit a violent crime." Commonwealth's Brief at 12. Citing to cases from other jurisdictions, the Commonwealth asserts that other courts have recognized that the proscribed conduct for a probationer need not be included as a specified condition as long as a person has some form of notice of the prohibited conduct. Id. at 14 (citing United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977), United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994), State v. Austin, 685 A.2d 1076, 1083 (Vt. 1996)).

         The Commonwealth makes no argument that the statutory scheme governing probation in Pennsylvania either expressly or implicitly provides a basis for finding a defendant in violation of probation for communicating an intent to commit a violent crime. The Commonwealth does not even suggest that our statutes support such a finding. Based on our review of the relevant provisions and the advocacy presented, we decline to create a new condition of probation that has not been provided for by our General Assembly.

         In its decision, the Superior Court never mentioned either section 9754 or 9771. Instead, as stated above, the court relied solely upon a statement made by this Court in Commonwealth v. Infante, which was reiterated in the Superior Court's prior decision of Commonwealth v. Ortega, that "[a] probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct" to affirm the VOP court's decision. See Foster, 2018 WL 267757, at *3; Infante, 888 A.2d at 791 (quoting Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983)); see also Ortega, 995 A.2d at 886 (referring ...

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