Commonwealth v. Foster

214 A.3d 1240

COMMONWEALTH of Pennsylvania, Appellee

v.Darnell FOSTER, Appellant

No. 21 EAP 2018

Supreme Court of Pennsylvania.

Argued: March 5, 2019

Decided: August 20, 2019

OPINION

JUSTICE DONOHUE

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 11 ½ 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 , 585 Pa. 408, 888 A.2d 783 (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 , ––– Pa. ––––, 187 A.3d 913 (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...