Commonwealth, Aplt. v. Rosario, K. ( 2023 )

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1271 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, : No. CP-63-CR-000223-2015 and
: remanding.
Appellee :
: ARGUED: October 26, 2022
COMMONWEALTH OF PENNSYLVANIA, : No. 4 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1272 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, : No. CP-63-CR-001543-2013 and
: remanding.
Appellee :
: ARGUED: October 26, 2022
COMMONWEALTH OF PENNSYLVANIA, : No. 5 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1273 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, APPELLEE : No. CP-63-CR-001262-2013 and
: remanding.
:
: ARGUED: October 26, 2022
DISSENTING OPINION
JUSTICE MUNDY DECIDED: MAY 16, 2023
Probation is inherently conditional. So long as the conditions are met, probation
allows a defendant the opportunity to rehabilitate outside of incarceration. It is with that
fundamental principle in mind that sentencing judges carefully balance the gravity of the
offense, the protection of the public, and the rehabilitative needs of the defendant before
imposing probation and deciding the conditions that define the probationary sentence.1
When a defendant violates a condition of probation, that balance is changed. And so, to
account for that change, a court may increase conditions of probation, impose sanctions,
or revoke an order of probation “upon proof of the violation of specified conditions of
probation.” 42 Pa.C.S. § 9771(b).
This case asks us to interpret Section 9771(b) to determine when a sentencing
court may revoke probation. Because the very existence of a probationary sentence is
conditional, I believe it is clear that a defendant must comply with those conditions to be
entitled to serve a probationary sentence. Therefore, if a defendant violates a condition
of probation before his probationary period has begun, the plain statutory requirements
of Section 9771(b) have been met and the court may revoke probation.
I start, as the majority does, with the plain language of the statute at issue. The
statute governing revocation of probation states:
(b) Revocation.—The court may increase the conditions, impose a brief
sanction under section 9771.1 (relating to court-imposed sanctions for
violating probation) or revoke an order of probation upon proof of the
violation of specified conditions of probation.
1 In determining a sentence, “the court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with section 9725 (relating to
total confinement) and the protection of the public, the gravity of the offense as it relates
to the impact on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b).
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42 Pa.C.S. § 9771(b). Subsection (b) goes on to explain the options for resentencing,
but the above cited portion is the operative language for when a court may revoke. As it
plainly reads, the court may revoke after a showing that the defendant violated the
conditions of probation. It is undisputed that a general condition of probation is to lead a
law-abiding life and it is a violation of probation to commit a new crime. Commonwealth
v. Foster, 214 A.3d 1240, 1250 (Pa. 2019) (“[A] court may find a defendant in violation of
probation only if the defendant has violated one of the ‘specific conditions’ of probation
included in the probation order or has committed a new crime.”). And so, when Appellee
in today’s case committed a new crime by kidnapping and shooting a man in the back of
the head, he violated the conditions of probation, and the court was permitted to revoke
that probation.2
My fundamental disagreement with the majority stems from its conclusion that the
conditions of probation do not attach until the term specified in the probation order begins.
Maj. Op. at 14 (“only a violation of the probation itself may trigger revocation, not a
violation of the probation order before the probation term has started.”). As described
above, the very existence of a probation order is conditional. A defendant is given the
opportunity to serve his sentence outside of prison so long as he complies with the
conditions of probation. The sentencing judge attaches conditions to the order of
2 The Black’s Law Dictionary Definition of “probation” bolsters my position. The primary
definition of probation is “[a] court-imposed criminal sentence that, subject to stated
conditions, releases a convicted person into the community instead of sending the
criminal to jail or prison, usu. on condition of routinely checking in with a probation officer
over a specified period of time.” Probation, BLACK’S LAW DICTIONARY (11th ed. 2019). The
majority references a secondary definition, which defines “[t]he period of time during
which a sentence of probation is in effect.” Maj. Op. at 15 n.11. However, that secondary
definition makes little sense in the context of conditions in Section 9771. Replacing the
word “probation” with its dictionary definition is only understandable using the primary
definition. Put another way, the conditions of the probation are the conditions of “a court
imposed criminal sentence,” not the conditions of “the period of time during which a
sentence of probation is in effect.”
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probation “as it deems necessary to ensure or assist the defendant in leading a law-
abiding life.” 42 Pa.C.S. § 9754(b). When a defendant commits a new crime, he alters
the balance struck by the sentencing court when it weighed the defendant’s rehabilitative
needs against the need to protect the public and concluded that probation was
appropriate. This is true even if the crime is committed while incarcerated or while on
parole before the probationary term has begun. To suggest, as the majority does, that
the conditions of probation only apply during the term of probation would mean that a
defendant’s rehabilitation and pursuit toward a law-abiding life – the entire purpose of the
order of probation – is meaningless prior to the day the probationary term begins. Instead,
the conditions of probation must attach at the time the order is issued and are not
exclusive to the term of probation.
My view on this matter is not novel. The understanding that a defendant must live
a law-abiding life to be entitled to serve his sentence in public rather than in confinement
has shaped the law and impacted sentencing decisions for decades. “A probation order
is conditional by its very nature.” Commonwealth v. Nicely, 638 A.2d 213, 217 (Pa. 1994)
(emphasis added). In describing the underlying purpose of probation and related policy
considerations, this Court has stated:
[T]he basic objective of probation is to provide a means to achieve
rehabilitation without resorting to incarceration. When it becomes apparent
that the probationary order is not serving this desired end the court’s
discretion to impose a more appropriate sanction should not be fettered.
Initially, when the court decides to impose a probation order it is only after
first balancing the interest of society in protecting against possible future
criminal behavior of the individual with the benefit he would receive by
remaining free from prison. Certainly, society has the right to expect a
prompt hearing when a probationer has allegedly engaged in a course of
criminal activity.
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 4
Commonwealth v. Kates, 305 A.2d 701, 708 (Pa. 1973) (emphasis added).3 The Superior
Court relied on similar foundational principles in Commonwealth v. Wendowski, 420 A.2d
628 (Pa. Super. 1980), when it held over forty years ago that it is possible to violate the
conditions of probation before the probationary term itself begins:
If, at any time before the defendant has completed the maximum period of
probation, or before he has begun service of his probation, he should
commit offenses of such a nature as to demonstrate to the court that he is
unworthy of probation and that the granting of the same would not be in
subservience to the end of justice and the best interests of the public, or the
defendant, the court could revoke or change the order of probation. A
defendant on probation has no contract with the court. He is still a person
convicted of crime, and the expressed intent of the [c]ourt to have him under
probation beginning at a future time does not change his position from the
possession of a privilege to the enjoyment of a right.
Id. at 630 (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944)) (internal
quotations omitted).4
It is with this overarching understanding of the purpose of probation in mind that I
find it apparent the conditions of probation apply broadly to the imposition of a probation
order in general, rather than specifically during the probationary term. Furthermore,
consideration of the related statutes governing orders and conditions of probation in pari
materia supports my position. Section 9754 is titled “Order of Probation” and states:
3 The majority criticizes my reference to Nicely and Kates, as those cases did not concern
revocation of probation before the start of the probationary term and Kates predated
section 9771. Maj. Op. at 19-20. While it is obvious that these cases do not directly
decide today’s issue, they are nevertheless important in understanding the foundational
legal principles underlying probation. My core position is that the majority’s decision today
cannot be reconciled with the fundamental objective and purpose of probation.
4As discussed below, and recognized by the majority, “there was widespread reliance on
Wendowski and its progeny for many years up until the recent [Commonwealth v.
Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc)] decision, and the abrogation of
anticipatory revocation represents a significant change in sentencing practice[.]” Maj. Op.
at 29.
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 5
(b) Conditions generally. — The court shall attach reasonable conditions
authorized by section 9763 (relating to conditions of probation) as it deems
necessary to ensure or assist the defendant in leading a law-abiding life.
42 Pa.C.S. § 9754(b). Relatedly, section 9763 is titled “Conditions of probation” and
states: “The court may attach any of the following conditions upon the defendant as it
deems necessary.” 42 Pa.C.S. § 9763(b). The majority suggests that “[t]hese statutes
concern what conditions may be imposed on probation . . . not when these conditions
apply.” Maj. Op. at 22. I respectfully disagree. These statutes make clear that the
conditions of probation are not limited to the probationary term. Conditions are attached
“upon defendant” (section 9763(b)) and are applied at the time the court imposes the
order of probation (section 9754(b)). The core purpose of the conditions is to “ensure or
assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). The requirement
to lead a law-abiding life is a prerequisite to the very existence of an order of probation.
Nothing about these statutes or probation generally suggest that this requirement is
irrelevant until the day probation begins, yet that is the conclusion reached by the
majority.5
5 The only support the majority provides for its position is the suggestion that “[h]ad the
legislature intended a violation of the conditions of the order or probation to be sufficient
for revocation, it would have said so, and the pertinent language of subsection (b) would
instead permit revocation upon proof of the violation of specified conditions of the order
of probation.” Maj. Op. at 14 (emphasis in original). However, the legislature could have
just as easily had the revocation statute require proof of the violation of specified
conditions while on probation. As the statute exists, there is no qualifying language to
the word “probation,” suggesting that the conditions relate to probation broadly, and not
limited to the term of probation. Nevertheless, as explained supra, the related statutes
governing orders and conditions of probation make clear that the conditions are not
exclusive to the probationary term.
The majority also suggests that “for many defendants, like Rosario, who are sentenced
to a term of imprisonment followed by a consecutive period of probation, it would be
impossible to comply straight away upon sentencing with all of the conditions noted in
section 9783(b),” such as attending a rehabilitative facility or other intermediate
punishment program. Maj. Op. at 22. Certainly, it is not a violation of probation to fail to
comply with an impossible condition. This is true even during the term of probation, for
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 6
Thus, because the statute allows revocation “upon proof of the violation of
specified conditions of probation” and a violation can occur even before the probationary
term has begun, I believe that the plain language of the statute permits the practice of
revocation of probation prior to the start of the probationary term. I reach this conclusion
fully recognizing that revocation is not listed as an action the court can take “at any time”
according to the statute. 42 Pa.C.S. § 9771(a) (“The court has inherent power to at any
time terminate continued supervision, lessen the conditions upon which an order of
probation has been imposed or increase the conditions under which an order of probation
has been imposed upon a finding that a person presents an identifiable threat to public
safety.”). The majority concludes that “[t]he implication of this omission is that revocation
cannot be ordered at any time but rather is subject to temporal limitations, i.e., revocation
is permissible solely during the term of the probation itself.” Maj. Op. at 13-14. I find the
majority’s reliance on implication unnecessary, as the plain language of the statute itself
clearly reveals that revocation can occur at any time following a hearing. Section 9771(d)
states:
(d) Hearing required. — There shall be no revocation or increase of
conditions of sentence under this section except after a hearing at which
the court shall consider the record of the sentencing proceeding together
with evidence of the conduct of the defendant while on probation. Probation
may be eliminated or the term decreased without a hearing.
example if upon release from incarceration there is no space available to attend a
rehabilitative facility. That does not make all other possible conditions, especially the
general condition to lead a law abiding life, a nullity until every condition is possible.
Under the majority’s logic, if it is a condition to participate in a particular treatment or
education program, a defendant does not need to begin such a program until the
probationary period begins even if it is available while incarcerated.
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 7
42 Pa.C.S. § 9771(d). And so, the reason revocation cannot occur “at any time” is not a
temporal limitation, but the hearing requirement.6 I also recognize that the statute states
that during such hearing the court “shall consider . . . evidence of the conduct of the
defendant while on probation.” Id. Yet, unlike the majority, I do not believe this language
is restrictive. The statute does not prevent the court from considering the conduct of the
defendant prior to the term of probation. And so, subsection (d) does not foreclose
revocation prior to the start of the probationary term, there is simply no “conduct of the
defendant while on probation” for the court to consider at that time. Id.7
Although I find the plain language of the statute permits a court to revoke probation
prior to the start of the probationary term, any ambiguity as to the legislative intent is
wholly resolved by legislative acquiescence. The Superior Court decided Wendowski in
1980. Since that time, anticipatory revocation has become a prevalent practice that has
6 The majority attempts to rebut my conclusion by suggesting that “inclusion in section
9771(d)’s hearing requirement does not dictate exclusion from [actions that can occur at
any time under] section 9771(a),” as exemplified by the fact that an increase in conditions
is included within both subsections. Maj. Op. at 14 n.10. However, an important statutory
qualification is that an increase may only occur “at any time . . . upon a finding that a
person presents an identifiable threat to public safety.” 42 Pa.C.S. § 9771(a) (emphasis
added). Thus, only when a person presents an identifiable threat may a court increase
the conditions of probation “at any time” under subsection (a), whereas any other increase
in conditions must occur after a hearing under subsection (d). See, 1 Pa.C.S. § 1933
(Particular controls general). Following the majority’s logic, an increase in conditions is
included in subsection (a) because it is not temporally limited, and yet an increase in
conditions also requires a hearing, which the majority deems is temporally limited and
must occur during the probationary term. This is inherently inconsistent.
7 Similarly, the majority relies on the sentencing portion of section 9771(b), which states,
“[u]pon revocation the sentencing alternatives available to the court shall be the same as
were available at the time of initial sentencing, due consideration being given to the time
spent serving the order of probation.” As with the requirements of subsection (d), when
a defendant violates the terms of probation prior to the start of the probationary period,
the court simply must consider the fact that the defendant spent no time serving the order
of probation when deciding the appropriate revocation sentence.
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 8
provided flexibility to sentencing decisions for decades.8 As the majority recognizes, the
legislature has renumbered and amended section 9771 several times in the last forty
years but has never made any material changes to the statute. Maj. Op. at 25. Our rules
of statutory construction call for the presumption that “when a court of last resort has
construed the language used in a statute, the General Assembly in subsequent statutes
on the same subject matter intends the same construction to be placed upon such
language.” 1 Pa.C.S. § 1922(4). Importantly, “notwithstanding the clear import of §
1922(4) that it applies only where this Court has furnished a construction, this Court has
recognized the extension in principle of § 1922(4)’s presumption to cases decided by the
Superior Court.” Commonwealth v. Dickson, 918 A.2d 95, 107 (Pa. 2007), quoting In re
Lock’s Estate, 244 A.2d 677, 682-83 (Pa. 1968) (“It has been held, and rightly so, that
where a decision of the Superior Court construing a statute was never modified by the
Supreme Court, the presumption was that when the legislature subsequently enacted a
8 It is necessary to emphasize the Commonwealth’s recognition that “the term
‘anticipatory revocation of probation’ appears to be almost unique to Pennsylvania law,
and of fairly recent origin.” Appellant’s Brief, at 11. Indeed, the term seems to have first
appeared in an unpublished Superior Court case from 2014. See, Commonwealth v.
Wilson, 891 EDA 2013 (Super. Ct. 2014) (trial court ruled “that Wilson violated his parole
and anticipatorily violated his probation;” holding that “Wilson’s disorderly conduct
conviction constituted both a violation of his parole and the basis for an anticipatory
revocation of probation.”). The term then became more widely used following the
Superior Court’s published decision in Simmons.
The Commonwealth astutely notes that the term is a misnomer, as revocation in this
context is not in “anticipation” of some future wrongdoing. Rather, the probation order
sets forth expectations and conditions of probation, including the general condition to lead
a law-abiding life. Thus, a conviction and subsequent revocation are reactionary actions
to the defendant’s commission of a new crime, not anticipatory ones. While I find the
term problematic for this reason, it has nevertheless become used and relied upon in
many cases, including this one. Thus, for sake of brevity and consistency, I use the term
“anticipatory revocation” insofar as it means the revocation of a probationary order based
on a defendant’s misconduct that occurred prior to the start of the probationary term.
[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 9
similar statute dealing with the same subject matter, the legislature intended the same
construction to be placed on the language of the subsequent statute.”)).
The majority dismisses this presumption, emphasizing that the statutory language
is the most trustworthy source for interpreting legislative intent. Maj. Op. at 25-26. I agree
that the plain language of the statute controls. However, assuming arguendo that the
language of the statute is ambiguous, I cannot imagine a more definitive example of
legislative acquiescence than here. For decades, trial courts have revoked probation
when a defendant made clear that probation would not serve its rehabilitative purpose by
committing a new crime before the probationary term had begun. The Superior Court
followed Wendowski and consistently affirmed countless instances of anticipatory
revocation in the years that followed. See Commonwealth v. Dickens, 475 A.2d 141, 144
(Pa. Super. 1984) (“The fact that appellant had not commenced serving probation when
the new offense occurred did not prevent the court from revoking its prior order placing
appellant on probation. . . . If the new offense is committed at any time before the
maximum period of probation has been completed, probation may be revoked.”);
Commonwealth v. Miller, 516 A.2d 1263, 1265 (Pa. Super. 1986) (“If a probationer’s
criminal conduct, even if committed prior to commencement of the probationary period,
discloses that probation will not be in the best interests of the public or the defendant, a
court may revoke . . . The commission of a new crime violates an implied condition of
probation and suggests that the defendant is a poor probation risk.”), appeal denied, 528
A.2d 956 (Pa. 1987); Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999)
(“[T]he court had the authority to revoke appellant’s probation despite the fact that, at the
time of revocation of probation, appellant had not yet begun to serve the probationary
portion of her split sentence and even though the offense upon which revocation of
probation was based occurred during the parole period and not the probationary period.”),
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appeal denied, 747 A.2d 900 (Pa. 1999); Commonwealth v. Castro, 856 A.2d 178, 180
n.1 (Pa. Super. 2004) (“Appellant was found in violation of his parole, which he was
serving at the time of his arrest, and in anticipatory violation of his probation, which had
not yet begun to run. Such a finding is proper[.]”); Commonwealth v. Allshouse, 33 A.3d
31, 39 (Pa. Super. 2011) (“Appellant’s probation was revoked prior to its commencement
on the basis that Appellant was a danger to society and, therefore, unworthy of
probation.”).
Given the prevalence and wide acceptance in the courts for over forty years
permitting revocation prior to the start of the probationary term it seems exceedingly
unlikely that the legislature was either unaware of the practice or uninterested in
correcting decades of improper revocation. Instead, I would presume, as our rules of
statutory interpretation advise, that the General Assembly has not materially changed
section 9771 because Wendowski and its progeny comport with the legislative intent of
the statute – that revocation prior to the start of the probationary term is permissible.
I also agree with the Commonwealth that it is an absurd result to suggest that a
defendant could commit a new crime with impunity – as far as the status of his probation
is concerned – until the day he is actually serving the probationary period. Brief for
Appellant at 29 (quoting Wright v. United States, 315 A.2d 839, 842 (D.C. App. 1974);
see also 1 Pa.C.S. § 1922(1) (“[T]he General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable.”). The majority posits that this is not
an issue, because a defendant who commits a new crime while on parole is subject to
revocation of his parole in addition to separate punishment for his new offense. Maj. Op.
at 27. However, this entirely ignores the need to rectify the true problem that, by
committing a new crime, the defendant has shown a probationary term is not a sufficient
method of rehabilitation. Put another way, the majority’s interpretation means that a
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sentencing court has no method of correcting its sentence after a defendant acts in a way
that wholly alters the underlying balance between his rehabilitation and the protection of
the public upon which the probationary sentence was premised. Given the purpose of
probation and its inherently conditional nature explained above, I believe such a result is
absurd and unreasonable.9
Further, I disagree with the majority’s analysis of statutes in pari materia. See 1
Pa.C.S. § 1932. The statute concerning sentencing generally states that a court may
impose a sentence of probation “consecutively or concurrently[.]” 42 Pa.C.S. § 9721(a).
Additionally, the statute governing orders of probation requires the court to “specify at the
time of sentencing the length of any term during which the defendant is to be
supervised[.]” 42 Pa.C.S. § 9754(a). The majority suggests that revocation of a
consecutive probation sentence before its term begins runs contrary to these related
statutes because “the probation sentence is effectively both concurrent and consecutive,
in contravention of the plain language of section 9721(a).” Maj. Op. at 18 (emphasis in
original). The majority also suggests that anticipatory revocation “effectively lengthens
the term of probation beyond the fixed term specified at sentencing.” Id. However, these
arguments are premised upon the majority’s conclusion that the conditions of probation
9 I recognize that in certain circumstances, such as here, there is little practical effect to
revocation of probation, as the nature of the offense that established the violation of
probation is so serious and the sentence so lengthy that it is unlikely the defendant will
ever serve the underlying probation anyway. However, it is easy to envision when the
practical implications of anticipatory revocation will be exceedingly important, if not
necessary, in order to uphold the purpose of probation and protect the public. For
example, under the majority’s interpretation, a defendant can assault a corrections officer
or fellow inmate while incarcerated without tarnishing his ability to serve a consecutive
probationary sentence, despite clearly exhibiting he is not leading a law-abiding life and
continues to be a danger to society. Similarly, a defendant convicted of stalking could go
directly to his victim’s home the day he is released on parole with no repercussions to a
future probationary term. According to the majority, those hypothetical defendants did
not violate the conditions of their probation. That is an unreasonable conclusion that I
cannot join.
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do not attach until the probationary term has begun. As I explained fully above, the
statutes governing orders and conditions of probation make clear that the majority’s
conclusion on that matter is incorrect, as the conditions are attached to the order of
probation and defendant generally, not the term of probation. 42 Pa.C.S. § 9754(b); 42
Pa.C.S. § 9763(b). Viewing probation as fundamentally conditional, nothing about
anticipatory revocation improperly lengthens a consecutive term of probation. The
probationary term is fixed and gives a defendant the opportunity to serve his sentence
outside of incarceration during that specified length of time, but the existence of that
privilege is conditioned upon leading a law-abiding life.
I also disagree with the invocation of the rule of lenity. As the majority aptly
recognizes, “the rule applies if at the end of the process of construing what [the legislature]
has expressed, there is a grievous ambiguity or uncertainty in the statute.” Shaw v. United
States, 580 U.S. 63, 71 (2016) (internal quotations and citations omitted, emphasis
added). The rule of lenity “provides a means of assuring fairness to persons subject to
the law by requiring penal statutes to give clear and unequivocal warning in language that
people generally would understand, as to what actions would expose them to liability for
penalties and what the penalties would be.” Sawnick, Inc. v. Philadelphia Parking
Authority, 34 A.3d 926, 932 (Cmwlth. Ct. 2012) (quoting Commonwealth v. Reaser, 851
A.2d 144, 149 (Pa. Super. 2004)). The rule is unnecessary until “the end” of the statutory
interpretation process. Shaw, supra. The revocation statute gives clear warning to
probationers that the court may revoke “upon proof of the violation of specified conditions
of the probation.” 42 Pa.C.S. § 9771(b). As explained above, I do not believe the
legislative intent regarding the revocation statute is so hopelessly ambiguous that it is
necessary to resort to the rule of lenity.
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Based on the foregoing, I believe it is clear that probation is fundamentally
conditional, such that a defendant violates the conditions of his probation when he
commits a new crime at any point after probation is imposed and before the conclusion
of the probationary term. With that in mind, I find revocation prior to the start of the
probationary term wholly permissible because the plain language of the statute allows a
court to revoke “upon proof of the violation of specified conditions of probation.” 42
Pa.C.S. § 9771(b). Any ambiguity is resolved by decades of legislative acquiescence to
the practice and the fact that the opposite conclusion reached by the majority runs
contrary to the fundamental purposes of probation. Accordingly, I dissent.
Justice Brobson joins this dissenting opinion.
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