214 A.3d 1240
Pa.2019Background
- Darnell Foster pleaded guilty in 2015 to drug offenses and was sentenced to four years’ probation.
- In 2016 Foster posted social-media photos showing guns, drugs, money, and his plea/sentencing sheet; Commonwealth detained him for an alleged probation violation.
- At two VOP hearings the Commonwealth presented only the photos and argued they showed Foster possessed contraband and used social media to sell drugs; it did not identify or introduce the written probation order or any specified probation condition.
- Foster admitted posting the accounts, said some images were downloaded from the internet, denied possessing the contraband, and emphasized compliance with supervision (negative drug tests, reporting).
- The VOP court revoked probation based on findings that the photos showed Foster’s indifference to rehabilitation and that probation was ineffective; the court did not find violation of any specific probation condition or a new crime.
- The Superior Court affirmed relying on a passage from Commonwealth v. Infante that framed a VOP standard in terms of probation’s effectiveness; the Pennsylvania Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Foster) | Held |
|---|---|---|---|
| Whether a court may revoke probation based solely on evidence that probation “has been ineffective” (without proof of violation of a specified condition or new crime) | VOP may be revoked if evidence shows probation is ineffective to rehabilitate or deter; focus is on proof of a violation before revocation and on protecting public safety | Revocation requires proof—by preponderance—that defendant violated a specific condition of probation or committed a new crime; otherwise statute and due process forbid revocation | Court held statute unambiguous: revocation requires proof that defendant violated a specified probation condition or committed a new crime; cannot revoke merely because probation appears ineffective |
| Whether an implied or common-law probation condition (e.g., prohibition on communicating intent to commit violence) can supply a basis for revocation | Argues other jurisdictions recognize implied/no-need-for-written-condition limits if probationer had notice | Foster: Pennsylvania statutes require specified conditions in the order; Commonwealth failed to prove any specified condition was violated | Court declined to create an implied condition; revocation must rest on statutory specified condition or new crime |
| Whether prior decisions (Infante/Ortega) allow revocation on “ineffectiveness” alone | Reliance on Infante language that discussed probation effectiveness | Foster: that language was misread; Infante discussed effectiveness only after a specific-condition violation or new crime | Court disapproved Superior Court’s reliance on Infante/Ortega for allowing revocation absent statutory predicate; clarified Infante’s language in context |
| Remedy: vacatur vs remand for new VOP hearing | Commonwealth argued remand (Mullins) to allow proper factfinding under correct legal standard | Foster sought vacatur of the October 27, 2016 revocation order | Court vacated the VOP revocation and resentencing; distinguished Mullins and declined to simply remand for further factfinding because statutory predicate was never established; remanded for proceedings consistent with opinion (may affect credit/time served) |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process framework for parole revocation; must first determine violation of parole conditions)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probationer entitled to preliminary and final revocation hearings)
- Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005) (discussed probation revocation standards; Pa. Supreme Court clarifies proper contextual reading)
- Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007) (remand appropriate where VOP record procedurally deficient; not controlling here)
- Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983) (probation revocation requires proof by a preponderance of the evidence)