Parole Revocation; Commonwealth Burden of Proof

Commonwealth v. Foster, 2018 WL 267757 (Pa. Super. 2018) (unreported), allocatur granted June 25, 2018, appeal docket 21 EAP 2018

This case arises from the appeal of Darnell Foster from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following the revocation of his probation based on an offensive post on social media. Superior Court summarized the relevant procedural as follows:
 
[Appellant] was arrested on May 6, 2015, and charged with possession with intent to deliver and simple possession of a controlled substance. On July 7, 2015, [Appellant] entered into a negotiated guilty plea to possession with intent to deliver in return for a sentence of four years’ probation. [Appellant] was detained on August 3, 2016 as a result of the photographs he had posted on his Instagram and Facebook accounts, copies of which are attached hereto, made a part hereof and marked as Appendix “A”. The eight pictures depict a nine millimeter gun and hundred dollar bills; a large wad of hundred and fifty dollar bills; numerous Percocets spelling out “FUCK YOU”; another large cache of pills; a bag of marijuana; [Appellant] wearing his house arrest ankle bracelet fanning out the wad of hundred and fifty dollar bills; and [Appellant’s] sentencing sheet from this case noting that [Appellant] had been placed on “youth violence reduction probation.” (Appendix A). (N.T. 10–27–2016, pp. 7–9). On October 27, 2016, [Appellant] was found in violation of his probation and resentenced to eleven and one-half to twenty-three months’ incarceration, followed by seven years’ probation. 
 
Slip Op. at 2. On appeal, Superior Court affirmed the trial court’s revocation of probation and agreed with the trial court reasoning that Foster’s “conduct clearly indicates that probation was an ineffective vehicle to accomplish his rehabilitation and deter against [Appellant’s] future antisocial conduct, as he has chosen to highlight his defiance or indifference regarding his crimes, rather than any display of remorse,” sufficient for the Commonwealth to meet its burden by a preponderance of the evidence. Slip Op. at 8.

The Supreme Court granted the Petition for Allowance of Appeal, limited to the following issue:

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 [Petitioner’s] inappropriate offensive social media posting, that violated no condition of probation, warranted revocation? 

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.