from the Order Dated September 19, 2018 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI
[*] , J.
the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas,
which removed the Office of the Philadelphia District
Attorney ("DA") and appointed a special prosecutor,
in this revocation of probation case. For the following
reasons, we transfer the appeal to the Supreme Court of
relevant facts and procedural history of this case are as
follows. On June 15, 2016, police executed a search warrant
at a suspected drug house in Philadelphia. During the search,
police located Appellee, Demetrius Mayfield, sleeping in a
bedroom. Police recovered a handgun from the bedroom. On May
15, 2018, Appellee entered a negotiated guilty plea to one
count of persons not to possess firearms. The court
accepted Appellee's plea as knowing, intelligent, and
voluntary, and imposed the negotiated sentence of 11½
to 23 months' imprisonment, plus three years'
probation. The court awarded Appellee credit for time served
and released him on immediate parole with the following
conditions: seek and maintain legitimate employment, attend
vocational training and parenting classes, submit to random
drug/alcohol screens and home and vehicle checks for drugs
and weapons, and stay away from the 5300 block of Lesher
Street and any co-defendant(s). The court said the plea deal
was "very generous" and cautioned Appellee
"not [to] come back…." (N.T. Guilty Plea
Hearing, 5/15/18, at 17; R.R. at 30a).
9, 2018, while Appellee was on parole, police approached a
vehicle parked in the wrong direction on a one-way street.
Appellee was in the driver's seat with a male passenger.
Officers conducted a search of the vehicle and found drugs
and two guns. The Commonwealth subsequently charged Appellee
at docket No. CP-51-CR-0006274-2018, with various drug and
firearms offenses ("new charges").
Adult Probation and Parole Department
("Department") issued a Gagnon I
summary on July 11, 2018, that stated
Appellee's new charges constituted the only
"potential direct violations" of his
parole/probation and recommended a detainer. The Department
issued a Gagnon II summary on July 26, 2018,
expressly asking the trial court to wait until final
disposition of the new charges before proceeding with a
revocation hearing, with the detainer to remain. On August 2,
2018, the court appointed defense counsel and scheduled a
"status of counsel" conference for August 31, 2018.
parties appeared before the court on August 31, 2018.
Although the court listed the proceeding as a "status of
counsel" conference, the court immediately directed the
Commonwealth to file a motion to revoke Appellee's
parole/probation, based on Appellee's new charges, and to
subpoena the police officers involved with the new charges
for a revocation hearing. The Assistant District Attorney
("ADA") informed the court a new internal policy
required approval from a supervisor to file a motion for
revocation prior to disposition of new charges. The ADA said
she would subpoena the police officers to comply with the
court's directive but confirmed she did not have the
authority to file the revocation motion when the new charges
were still pending. Notwithstanding the ADA's
representations, the court directed her to file the motion
and emphasized the "extremely generous" plea deal
Appellee had received for "an extremely serious pistol
whipping." (N.T. Hearing, 8/31/18, at 4-5; R.R. at
35a-36a). The ADA informed the court Appellee's case did
not involve a "pistol whipping."
The court conceded its error but still demanded the ADA to
prepare for a revocation hearing on September 19, 2018.
Regarding the revocation hearing, the court made clear it
wanted to "knock this one out." (Id. at 4;
R.R. at 35a).
parties appeared before the court again on September 6, 2018,
at the Commonwealth's request. A different ADA
represented the Commonwealth and attempted to clarify the
recent policy requiring the ADA to seek approval to file a
revocation motion before disposition of new charges. The ADA
said his superior, the First Assistant of the DA's
office, had denied the request in this case. The ADA
explained prosecutorial discretion lies with the DA, not the
court, to determine whether to proceed immediately to a
revocation hearing or to defer revocation until disposition
of the new charges. The court responded: "The underlying
facts of this case were horrendous" and Appellee's
negotiated sentence was "well below any guidelines that
were applicable." (N.T. Hearing, 9/6/18, at 6; R.R. at
40a). The court emphasized the new charges were "very
serious, very serious accusations and potentially very
significant violations of [the court's] order of
sentence." (Id. at 11-12; R.R. at 41a). The
court also said it had the authority to grant or deny a
request to defer a revocation proceeding pending disposition
of new charges and would not wait until disposition of the
new charges in this case. The court further stated it could
decide whether Appellee had violated the terms of his
parole/probation "independent of whether or not the
Commonwealth decides to do [its] job." (Id. at
13; R.R. at 42a). Notwithstanding the ADA's requests to
continue the revocation matter, pending disposition of the
new charges, the court ordered the ADA to subpoena the police
officers involved with Appellee's new charges and to
appear for the revocation proceeding as scheduled for
September 19, 2018.
September 19, 2018, the parties appeared for the scheduled
revocation hearing. Defense counsel objected to going forward
with the revocation hearing mainly because: (1) the
Commonwealth did not file a request for revocation per
Pa.R.Crim.P. 708 (requiring written request for revocation to
be filed with clerk of courts), and the Department, defense
counsel, and ADA agreed to defer the revocation proceeding
until disposition of the new charges; (2) the court acted as
an advocate for the Commonwealth instead of a neutral
fact-finder; (3) the court improperly directed the
Commonwealth to file a revocation motion and subpoena police
officers, over the Commonwealth's objections; (4) defense
counsel had not yet received the transcript for the
preliminary hearing related to the new charges, so counsel
would be unable to represent Appellee effectively at the
revocation hearing; (5) Appellee retained private counsel to
represent him concerning the new charges and wanted private
counsel to represent him in the revocation proceedings as
well; and (6) Appellee's co-defendant related to the new
charges told police the guns and drugs belonged to him, but
defense counsel would not be able to call the co-defendant as
a witness in the revocation proceedings while an open case
was still pending against the co-defendant, due to Fifth
response, the court indicated its order, directing the ADA to
subpoena police officers and scheduling a revocation hearing,
constituted sufficient written notice under Rule 708. The
court also noted the different burden of proof at a trial on
Appellee's new charges versus the lower burden of proof
at a revocation hearing. The court further emphasized
Appellee's right under Rule 708 to a revocation hearing
held "as speedily as possible." Appellee expressly
waived his right to a speedy revocation hearing, but the
court told the Commonwealth to call its first witness
concerning revocation. The hearing continued as follows:
[THE COMMONWEALTH]: Your Honor, despite my personal views and
the propriety of this proceeding, I'm under very strict
instructions from people who probably should be here
themselves not to participate in this hearing.
[THE COURT]: When were you folks going to let me know that?
[THE COMMONWEALTH]: I apologize, your Honor. I thought that
was the understanding.
[THE COURT]: Are you saying to me that the Commonwealth of
Pennsylvania is not going to be represented by the District
Attorney's Office of Philadelphia in this matter?
[THE COMMONWEALTH]: The police officers are here, your Honor.
[THE COURT]: No. No. No. Listen to my question, [counsel].
Are you saying that the Commonwealth of Pennsylvania is not
going to be represented by the District Attorney's Office
of Philadelphia at this revocation hearing; yes or no?
[THE COMMONWEALTH]: If I understand the question correctly, I
believe that the answer would be no because-
[THE COURT]: Thank you. Have a seat.
I'm appointing a special prosecutor to represent the
Commonwealth of Pennsylvania…. … The District
Attorney's Office has removed itself.
* * *
Let the record reflect that the District Attorney's
[Office] of Philadelphia has withdrawn its representation
from the Commonwealth of Pennsylvania at the revocation
hearing on this matter.
(N.T. Hearing, 9/19/18, at 46-48; R.R. at 56a). Immediately
following the hearing, the Commonwealth filed a motion to
reconsider in the trial court and a notice of appeal in this
next day, the parties (including the court-appointed special
prosecutor) appeared before the court. The Assistant
Supervisor of the law division in the DA's office
appeared to clarify that the DA's office had not
"removed itself" from the proceedings but was
exercising prosecutorial discretion to defer revocation until
disposition of Appellee's new charges. The court informed
the Commonwealth that deferring the revocation proceeding
would infringe on Appellee's right to a speedy revocation
hearing. Defense counsel reminded the court that Appellee had
waived his right to a speedy revocation hearing. The hearing
continued as follows:
[THE COURT]: I understand that [Appellee waived his right to
a speedy revocation hearing]. And this court has a duty to
proceed. And I can grant or deny the request to continue the
case. This court's authority is what is at issue. Whether
or not [Appellee] disobeyed the order of sentence in any way,
shape or form or the terms of supervision therein. In this
particular case, sir, it is my discretion to go forward. I
have that discretion under the case law as I understand it.
* * *
Now, I do not need to wait for the disposition of his open
case to make a fair determination as to what occurred there
because that matter also had been held for court. A prima
facie case has been demonstrated. So there is sufficient
reason, number one, for detention. Number two, to proceed
with a hearing. And I am not going to have you or anybody
else from the District Attorney's Office sit there and
think that because you refuse to do your job and represent
the interests of the Commonwealth of Pennsylvania, which it
includes public safety. I'm going to do my job, sir.
So since you have told me that you are not going to represent
the Commonwealth of Pennsylvania at a revocation hearing that
will be held in due course, sir; and I am not waiting for his
open case to be resolved, I have to replace you with somebody
else. Actually I'm not replacing. I'm putting someone
in there since you are not going to do it.
So you may step back. Your petition for reconsideration is
[THE COMMONWEALTH]: Your Honor, can I make our position clear
for the record?
[THE COURT]: You did. You did. And so did [the other two
ADAs]. Given the position of this office not to go forward in
the matter as it should, you left the [ADA] standing before
me without the ability to explain. That's not proper.
That is disrespectful to him. Disrespectful to me and duly
What else do you want to tell me?
[THE COMMONWEALTH]: Just that we filed a notice of appeal
under this court's order yesterday with the Superior
Court which in due course to this court will receive a copy
of our notice of appeal.
[THE COURT]: Okay.
[THE COMMONWEALTH]: And I just reiterate the grounds stated
in the petition. Particularly emphasizing that the Supreme
Court of this state has said that the preferred method of
dealing with situations like this is ...