Com. v. Gall, J.
866 WDA 2021
| Pa. Super. Ct. | Jan 21, 2022Background
- In 2012 Gall pled guilty to three counts of indecent assault of a child, one count of endangering the welfare of a child, and one count of corruption of minors; the written sentence imposed an aggregate term of imprisonment followed by probation and included the condition that he “must attend any counseling as directed by [the] probation officer.”
- Gall served his maximum sentence and was released in July 2020. In March 2021 PBPP filed a violation report alleging he failed to report telephone numbers and failed to comply with sex‑offender counseling.
- PBPP Agent Double found multiple cell phones at Gall’s residence (some containing pornographic images, including photos pasted into a children’s book), placed Gall on GPS monitoring (which he violated and failed to keep charged), and arrested him after further indicia of prohibited materials and an unreported phone were discovered.
- Gall’s counselor, Lindemuth, testified Gall refused to discuss his offenses claiming he had filed a PCRA petition and ultimately discharged him after continued noncompliance and denials about the pornography; Gall testified the phones belonged to others and cited mental‑health/phone problems.
- After a Gagnon II hearing the trial court found a probation violation by a preponderance, revoked probation as to one count, and resentenced Gall to 24–60 months’ confinement (aggregate) followed by continued probation on the remaining counts; Gall appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commonwealth proved a violation when the trial court allegedly did not orally impose specific probation conditions at sentencing (Foster claim) | Commonwealth: A written sentencing order (docketed and served) required counseling; revocation may be based on violation proved by preponderance | Gall: No specific conditions were pronounced at the 2012 sentencing hearing, so under Foster revocation based on an unannounced condition is improper | Court: Written sentencing order satisfied statutory requirement; Foster inapplicable; violation proven by preponderance; no relief to Gall |
| Whether the trial court abused its discretion by failing to consider required sentencing factors and relying on a nine‑year‑old PSI without ordering a new one | Gall: Court relied on stale PSI and failed to consider §9721(b) factors, producing an unreasonable sentence | Commonwealth/Trial court: Court considered the PSI and hearing testimony; Gall made no contemporaneous objection | Court: Claims were not preserved (no post‑sentence motion or objection), therefore waived |
| Whether resentencing to confinement for technical violations complied with statutory requirements for total confinement (§9771) | Gall: Total confinement for technical violations was improper because statutory criteria were not met | Commonwealth: Revocation and confinement were warranted by noncompliance and risk factors; sentencing within court’s discretion | Court: Argument waived for failure to preserve; sentencing affirmed |
Key Cases Cited
- Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019) (trial court may revoke probation only upon finding a violation of a specific condition and must specify conditions at sentencing)
- Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021) (sentencing court cannot delegate its duty to set and communicate probation conditions to probation/parole officers)
- Commonwealth v. Parson, 259 A.3d 1012 (Pa. Super. 2021) (probation‑revocation standard is proof by a preponderance of the evidence)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due‑process requirement for a hearing prior to probation/parole revocation)