J-A23024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD JAMES :
:
Appellant : No. 1329 EDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007900-2012
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 31, 2021
Appellant Ronald James appeals from the judgment of sentence imposed
following violation-of-probation proceedings. Appellant asserts that the trial
court erred in revoking his probation based on hearsay police reports.
Additionally, Appellant requests that this Court vacate the judgment of
sentence without remanding for further proceedings. The Commonwealth and
the trial court agree that the revocation decision improperly relied on hearsay
police reports but assert that a remand for a new hearing is proper. For the
reasons that follow, we vacate the judgment of sentence and remand this
matter for further proceedings.
The trial court summarized the procedural background of this appeal as
follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Following his January 31, 2014, conviction [for possession with
intent to deliver a controlled substance (PWID)], Appellant . . .
was sentenced on March 28, 2014, to concurrent periods of state
incarceration [of one-and-one-half to two years], followed by four
years[’] probation on charges of possession of a controlled
substance with intent to deliver and conspiracy.
On August 24, 2017, Appellant was found in violation of his
probation and sentenced to new concurrent terms of four years[’]
probation, along with employment and drug treatment conditions.
On December 5, 2018, Appellant was arrested and charged with
possession of a controlled substance with intent to deliver and
possession of a controlled substance, arising from events
occurring on November 19, 2018 (CP-51-CR-0000607-2019)
[(the new charges)].
A violation hearing was held on April 5, 2019, at which time
Appellant was found in violation of his probation,[1] and sentenced
to concurrent terms of [one to two years’] state incarceration,
followed by [two years’] reporting probation.
A motion for reconsideration was filed on April 17, 2019. That
motion was denied on May 2, 2019.
A timely notice of appeal was filed on May 6, 2019.[2]
On July 29, 2019, an order issued directing the filing of a
statement pursuant to Pa.R.A.P. 192[5](b). On August 8, 2019,
Appellant filed a statement pursuant to Pa.R.A.P. 192[5](b).
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1 As discussed below, the Gagnon II summary listed “possible direct
violations” based on the new charges. See Gagnon II Summary, 3/28/18,
at 1; see also Gagnon v. Scarpelli, 411 U.S. 778, (1973). Appellant
objected to the trial court proceeding with the Gagnon II hearing based on
alleged discovery violations and while trial on the new charges were pending.
Appellant also objected to the trial court’s consideration of hearsay documents
and reports. See N.T., 4/5/19, at 4-11, 19.
2The thirtieth day after resentencing for Appellant’s violation of probation fell
on a Sunday, and Appellant filed his notice of appeal on the following Monday.
See 1 Pa.C.S. § 1908.
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On October 2, 2019, Appellant filed a supplemental Rule 1925(b)
statement noting the September 20, 2019, dismissal of [the new
charges].
Trial Ct. Op., 10/9/19, at 1-2 (footnote omitted).
Appellant presents the following questions for review:
1. Was there not insufficient evidence to sustain a revocation, and
were not due process rights violated, where only inadmissible
hearsay police reports were introduced?
2. Was it not an abuse of discretion and a violation of due process
rights to sustain a revocation of probation in this case based
on alleged new criminal conduct where inadequate discovery
had been provided before the [Commonwealth v. Kates, 305
A.2d 701 (Pa. 1973) (Daisey Kates)] hearing, only hearsay
evidence was introduced, and the underlying new criminal
charges were dismissed after multiple continuances because
the Commonwealth failed to provide complete discovery?
Appellant’s Brief at 2 (some capitalization omitted).
We summarize Appellant’s arguments together because they are related
to his claims that the trial court erred in relying on hearsay reports and that
a remand is improper. First, Appellant asserts that the trial court improperly
considered hearsay evidence without finding good cause. Id. at 7. Appellant
contends that “[b]ecause there was no admissible evidence of probative value
to sustain the burden to show by a preponderance of the evidence that [he]
violated his probation, this Court should reverse the revocation of probation.”
Id. at 8.
Second, Appellant contends that “[i]t would be fundamentally unfair for
[him] to be subject to a new hearing where there was no admissible probative
evidence offered to sustain the burden of proof at the revocation hearing in
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violation of well established law.” Id. at 8 n.2. In support, Appellant cites
Commonwealth v. Foster, 214 A.3d at 1240 (Pa. 2019), In the Interest
of Davis, 546 A.2d 1149 (Pa. Super. 1998) (en banc), and Commonwealth
v. Royster, 572 A.2d 683 (Pa. 1990). Id. Further, Appellant claims that a
remand is improper because the trial court also abused its discretion when
holding a Daisey Kates hearing. Id. at 11. Appellant emphasizes the trial
court’s reliance on hearsay evidence and disregard for his claims that the
Commonwealth failed to provide him with complete discovery. Id. at 10-11.
Appellant further notes that the new charges did not result in a conviction
because the Commonwealth failed to provide adequate discovery and that
matter was dismissed. Id. at 11-12. From this, Appellant asserts that “the
[Daisey Kates] revocation here is void” and that the order revoking his
probation should be vacated without a remand. Id. at 13.
Neither the Commonwealth nor the trial court dispute the error in
revoking Appellant’s probation based on police reports alone.3
____________________________________________
3 Although the trial court asserted that it erred in admitting hearsay without a
finding of good cause, it concluded that “[t]he matter should be remanded for
a new violation hearing” without any citation to legal authority. Trial Ct. Op.
at 3. In addressing Appellant’s claim that the subsequent dismissal of the new
charges did not preclude further proceedings, the trial court noted that there
was no record of the disposition of the new charges. Id. at 4 n. 3. In any
event, the trial court noted that “the termination of the case [on the new
charges] based on incomplete discovery does not constitute the sort of
disposition that would create a collateral estoppel bar to considering the
conduct for the purpose of probation violation.” Id. at 4 (citing
Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983)).
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Commonwealth’s Brief at 7; Trial Ct. Op. at 3. The Commonwealth states that
it “shares the preferences of this Court and the Supreme Court to defer
revocation until after trial” on a probationer’s new charges.4 Commonwealth’s
Brief at 4, 10-12. Nevertheless, the Commonwealth asserts that the cases
and principles cited by Appellant do not support his argument that a remand
is improper. Id. at 4, 8, 12-13. The Commonwealth emphasizes that the trial
court’s error was evidentiary in nature, the dismissal of the new charges by
nolle prosequi does not preclude further proceedings on the violation of
probation, and that a remand for a new hearing would not conflict with its own
policies or the principles weighing against “pretrial revocations.” Id. at 12-
14.
Our review of a judgment of sentence imposed upon a violation of
probation “is limited to determining the validity of the probation revocation
proceedings and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial to consider the
same sentencing alternatives that it had at the time of the initial sentencing.”
Commonwealth v. Giliam, 233 A.3d 863, 866 (Pa. Super. 2020) (citation
omitted and some formatting altered).
____________________________________________
4The Office of the District Attorney of Philadelphia, Lawrence S. Krasner, Esq.,
has expressed similar policy arguments and reservations in cases concerning
Daisey Kates. Cf. Commonwealth v. Major, 241 A.3d 469, 613 EDA 2018,
2020 WL 6305915, at *7, n.9 (Pa. Super. filed Oct. 28, 2020) (unpublished
mem.).
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This Court has summarized the procedures and rights afforded to a
probationer as follows:
When a parolee or probationer is detained pending a
revocation hearing, due process requires a determination at
a pre-revocation hearing, a Gagnon I hearing, that
probable cause exists to believe that a violation has been
committed. . . .
The Gagnon II hearing entails two decisions: first, a
consideration of whether the facts determined warrant
revocation. The first step in a Gagnon II revocation
decision . . . involves a wholly retrospective factual
question: whether the parolee [or probationer] has in fact
acted in violation of one or more conditions of his parole or
probation. It is this fact that must be demonstrated by
evidence containing probative value. Only if it is determined
that the parolee or probationer did violate the conditions
does the second question arise: should the parolee or
probationer be recommitted to prison or should other steps
be taken to protect society and improve chances of
rehabilitation? Thus, the Gagnon II hearing is more
complete than the Gagnon I hearing in affording the
probationer additional due process safeguards, specifically:
(a) written notice of the claimed violations of probation or
parole; (b) disclosure to the probationer or parolee of
evidence against him; (c) opportunity to be heard in person
and to present witnesses and documentary evidence; (d)
the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation); (e) a neutral and detached
hearing body such as a traditional parole board, members
of which need not be judicial officers or lawyers; and (f) a
written statement by the factfinders as to the evidence
relied on and reasons for revoking probation or parole.
Further, we note that there is a lesser burden of proof in a
Gagnon II hearing than in a criminal trial . . . . Thus, the
Commonwealth need only prove a violation of probation by a
preponderance of the evidence.
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Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009)
(citations omitted and some formatting altered).
In Allshouse, the Commonwealth alleged that the probationer
committed technical violations of his probation. Id. at 1238. At the Gagnon
II hearing, the Commonwealth had a probation officer read various witness
statements into the record to demonstrate that the probation violated a no-
contact order and failed to maintain good behavior. Id. at 1239. The
probation officer was not sworn in to testify, and the Commonwealth did not
present any testimony from the witnesses. Id. The probationer conceded
that he failed to comply with a probation term that he pay court costs, but
denied the violations of the no-contact order and failing to maintain good
behavior. Id. The trial court found the probationer in technical violation,
revoked his probation, and resentenced him. Id.
On appeal, the Allshouse Court concluded that “all evidence in support
of [the violations of the no-contact order and good behavior conditions] was
hearsay” that the trial court admitted into evidence without a finding of good
cause. Id. at 1243. Moreover, the Court noted that there was no competent
evidence to rebut the probationer’s accounts and denials of the alleged
violations. Therefore, this Court determined that the Commonwealth failed to
establish a violation of probation warranting revocation, vacated the judgment
of sentence, and remanded the matter for a new hearing. Id. at 1243-44.
Instantly, we agree with the trial court, Appellant, and the
Commonwealth that the trial court erred in finding that Appellant violated his
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probation. See Trial Ct. Op. at 3; Appellant’s Brief at 7; Commonwealth’s
Brief at 7. Here, as in Allshouse, the trial court revoked Appellant’s probation
based solely on a review of hearsay reports and documents, which the trial
court considered without a finding of good cause. Allshouse, 969 A.2d at
1243-44. Accordingly, we must vacate the judgment of sentence. See id. at
1244.
We next consider Appellant’s request to vacate without remanding for
further proceedings. In Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007),
the trial court revoked probation based on its review of a probation officer’s
hearing summary sheet, which the officer “adopted as his testimony.”
Mullins, 918 A.2d at 83. This Court concluded that the trial court erred in
revoking probation based on a hearing summary sheet that was entered into
evidence and where no testimony substantiated the allegations in the report.
Id. at 83-84. Notably, this Court vacated the judgment of sentence and did
not remand for a new hearing. Id. Our Supreme Court granted allowance of
appeal to consider whether this Court “exceeded its authority” by vacating the
sentence without remanding for a new violation-of-probation hearing. Id. at
84.
The Mullins Court concluded that this Court erred by failing to remand,
noting:
The potential for a [violation-of-probation] hearing is an integral
part of the original conditional sentence, the purpose of which is
to establish to the satisfaction of the court that granted probation,
that the individual’s conduct warrants continuing him as a
probationer. Even where the [violation-of-probation] hearing
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record is insufficient to sustain revocation of probation, this
purpose should not be frustrated—the court that granted
probation should not be precluded from determining whether
probation remains the proper course only because the
Commonwealth failed to include certain formalities in the record.
Probation is given by grace, not by right. To hold the Double
Jeopardy Clause is somehow implicated at a [violation-of-
probation] hearing would elevate something of grace to the status
of constitutional dimension.
Id. at 86 (citation omitted).
In contrast, in Foster, our Supreme Court reversed a violation-of-
probation sentence and rejected the Commonwealth’s argument that the
matter should be remanded for a new hearing.5 Foster, 214 A.3d at 1252.
Our Supreme Court distinguished Mullins, explaining:
Unlike Mullins, the case at bar does not involve a procedural
anomaly or the disregard of an evidentiary formality. This case
simply involves the question of whether the evidence and
information presented before the [violation-of-probation] court
supports a finding that [the probationer] violated his probation.
The sole evidence presented by the Commonwealth at the
[violation-of-probation] hearing was the photographs. The
photographs depicted alleged marijuana, white pills and an
alleged gun, the intended implication being that [the probationer]
was in possession of contraband. The Commonwealth made
extensive argument before the [violation-of-probation] court that
the items in the photographs belonged to [the probationer], that
he took the pictures of these items (thus possessing them), and
that he thus committed a crime. The Commonwealth never
contended that [the probationer] violated a specific condition of
his probation; in fact, it expressly concedes that he did not.
____________________________________________
5 The Foster Court did remand that case to the trial court. However, the
remand was for a calculation of sentencing credit for the time the probationer
spent in custody for the probation violation the Court reversed. Foster, 214
A.3d at 1254.
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The [violation-of-probation] court heard the argument and
considered the evidence presented, making findings of fact based
on its assessment of that evidence. As stated hereinabove, the
[violation-of-probation] court found, based on the evidence
presented, that [the probationer] violated probation because in
the court’s view, he was not taking his probation seriously and his
behavior of posting the pictures on his social media accounts
(which he admitted) was antisocial and defiant, concluding on that
basis that probation was not an effective vehicle for his
rehabilitation. Importantly, the [violation-of-probation] was
specifically asked to find that [the probationer] committed a
crime, but it did not.
The Commonwealth does not seek a new evidentiary hearing, it
simply advocates for the [violation-of-probation] court to have “an
opportunity to make factual findings under [the] proper legal
standard.” As our discussion hereinabove reflects, the legal
standard pursuant to which the [violation-of-probation] court was
required to make its determination is clear, unambiguous, and has
always been the law. Moreover, as discussed, Mullins does not
stand for the proposition that remand is required anytime the
Commonwealth disagrees with the [violation-of-probation] court’s
findings. The failure to make the only finding of fact advanced by
the Commonwealth is a clear rejection of that fact.
Foster, 214 A.3d at 1253 (citations and footnotes omitted).
Instantly, we conclude that the error identified by Appellant is closer to
the procedural defect in Mullins than the findings in Foster.6 Compare
Foster, 214 A.3d at 1253, with Mullins, 918 A.2d 82. Here, as in Mullins,
the error arose from the use of reports and documents to find a violation of
____________________________________________
6 We note Appellant’s reliance on Davis. However, Davis, which was a
juvenile probation matter, was decided before Mullins and Foster and had
no discussion of its decision to vacate the revocation of probation without
remanding the matter. Therefore, the more specific discussions of this Court’s
authority to remand or withhold remand in Mullins and Foster is controlling.
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probation.7 Moreover, the allegations in the police reports, if proven through
competent evidence at a proper hearing, could establish that Appellant
committed new offenses. Unlike Foster, the Commonwealth here seeks a
new evidentiary hearing to remedy the procedural error. The trial court’s
findings also do not evince a clear rejection of the Commonwealth’s theory for
revoking Appellant’s probation. Therefore, we remained bound by the
instruction in Mullins that this matter must be remanded for further
proceedings.
____________________________________________
7 Although Appellant focuses on the trial court’s reliance on the reports and
documents and possible discovery violations, the record reveals other
irregularities that occurred at the hearing. Specifically, the Gagnon II
summary appears to charge only a potential direct violation of probation based
on Appellant’s arrest for delivery of cocaine. See Gagnon II Summary,
3/28/18, at 3-4 & Exs. At the April 5, 2019 hearing, it appears that the
Commonwealth intended to proceed based solely on the report and documents
as none of the parties, nor the trial court, referred to the presence of any
witness except for Appellant. See N.T., 4/5/19, at 3-5, 18-19.
At the hearing, the Commonwealth set forth no arguments regarding the basis
for the revocation. Id. at 18-19. After accepting the reports and documents
over Appellant’s objections regarding discovery matters and to hearsay, the
trial court stated that it found Appellant “in technical violation” of the terms
of his probation, although the Commonwealth presented no evidence of the
terms of Appellant’s probation. See id. 18-20. But see Commonwealth’s
Brief at 2 (indicating that the trial court found Appellant in violation of
probation based solely on his alleged commission of new crimes).
We acknowledge these irregularities may push the instant case closer to the
situation discussed in Foster and add support to Appellant’s general argument
that it would be fundamentally unfair to remand this matter to allow the
Commonwealth a “second bite at the apple.” See Appellant’s Brief at 8, n.2.
However, Appellant does not refer to these apparent irregularities in his brief,
nor does he use them to support his position not to remand this matter for
further proceedings.
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We also acknowledge Appellant’s arguments based on Daisey Kates
and the principles favoring the deferral of a revocation hearing until after trial
on new charges. See Giliam, 233 A.3d at 869 (noting that “it may be
‘preferable to defer [ ] hearing until after the trial, thus avoiding the possibly
unjust result of revoking probation, only to find later that the probationer has
been acquitted of the charges that prompted the revocation hearing”’ (citation
omitted)). In sum, Giliam holds that a violation-of-probation sentence for a
direct violation “cannot stand” when a probationer is subsequently acquitted
of new charges. See id.; see also Royster, 572 A.2d at 686 (vacating a
violation-of-probation sentence for a direct violation based on the trial court’s
subsequent grant of arrest of judgment following trial on new charges).
However, here, even accepting Appellant’s argument that the Commonwealth
was responsible for the dismissal of the new charges based on delays in
discovery, the dismissal of the new charges does not have the same preclusive
force as an acquittal. Accordingly, we conclude that Appellant’s contention
that “the [Daisey Kates] revocation here is void” lacks merit and does not
bar remand of this matter for further proceedings.
For these reasons, we conclude that the trial court erred in revoking
Appellant’s probation based on reports and documents alone. We further
conclude that despite the procedural errors in this case, remand for further
proceedings is appropriate.8 See Mullins, 918 A.2d at 86.
____________________________________________
8 Nothing in our decision precludes Appellant from litigating his discovery
issues in the trial court following remand.
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Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/21
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