Com. v. Clayborne, L.

2026 Pa. Super. 61

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2026
• Docket: 2169 EDA 2024
• Status: Published
• Author: Beck

Opinion

J-A18018-25 2026 PA Super 61

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMAR JAMES CLAYBORNE : : Appellant : No. 2169 EDA 2024

Appeal from the Judgment of Sentence Entered August 9, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001033-2020

BEFORE: OLSON, J., DUBOW, J., and BECK, J.

OPINION BY BECK, J.: FILED MARCH 27, 2026

Lamar James Clayborne (“Clayborne”) appeals from the judgment of

sentence of total confinement imposed by the Delaware County Court of

Common Pleas (“trial court”) pursuant to 42 Pa.C.S. § 9771(c)(1)(iii)(B)

following the revocation of his probation for a technical violation of the

conditions of his probation.1 On appeal, Clayborne raises several issues of

first impression concerning provisions of Act 44 of 20232 (“Act 44”), which,

____________________________________________

1 Although 42 Pa.C.S. § 9771(c) does not define the term “technical violation,” the General Assembly defined the term for purposes of section 9774.1(k), which relates to probation review conferences, as “[a] violation of the specific terms and conditions of a defendant’s probation, other than by the commission of a new crime of which the defendant is convicted or found guilty by a judge or jury or to which the defendant pleads guilty or nolo contendere in a court of record.” 42 Pa.C.S. § 9774.1(k). As there is no debate whether Clayborne committed a technical violation of probation, for purposes of this Opinion it is sufficient to note that this definition of technical violation aligns with the sentencing scheme of section 9771(c), discussed below.

2 See Act of Dec. 14, 2023, P.L. 381, No. 44. J-A18018-25

inter alia, substantially amended the Sentencing Code provisions governing

resentences imposed following revocation of probation. Specifically, he

contends that the trial court misinterpreted Act 44 and failed to account for

its impact upon existing probation revocation procedure. To decide the issues

he presents, we must determine whether the General Assembly intended the

term “assaultive behavior” to include conduct that does not involve actual or

threatened physical violence such that the trial court legally exercised its

authority to resentence Clayborne to total confinement as a technical

probation violator. See 42 Pa.C.S. § 9771(c). We must also decide whether

the maximum sentence prescribed by the General Assembly in Act 44 for a

first technical probation violation impacts a probationer’s prerevocation rights

to due process, a speedy hearing, and credit for time spent detained awaiting

the revocation hearing and resentencing.

After careful review, we conclude that the trial court neither erred in

imposing a sentence of total confinement nor in denying Clayborne’s motion

to dismiss the technical violation based upon the timing of his revocation

hearing. It did, however, err in declining to award him credit for time served

prior to revocation pursuant to 42 Pa.C.S. § 9760(1). Because Clayborne has

already served the total confinement portion of his August 9, 2024 resentence,

however, this issue appears to be moot. While we review this technically moot

issue because it is capable of repetition and likely to evade review, we are

-2- J-A18018-25

unable to afford him relief in this matter and are constrained to affirm his

judgment of sentence in its entirety.

Facts and Procedural History

Clayborne’s original probationary sentence stems from his possession

with intent to deliver (“PWID”) cocaine on October 8, 2019, an offense to

which he pled guilty as an ungraded felony at docket number CP-23-CR-

0001033-2020 (“the 2020 case”).3 On September 21, 2020, in accordance

with the terms of the plea agreement, he received a sentence of nine to

twenty-three months of probation with restrictive conditions, followed by a

two-year term of probation supervised by Delaware County Adult Probation

and Parole Services (“Probation Services”).

Several months before his probationary term expired, Clayborne

submitted a drug screen to Probation Services that was positive for cocaine.

N.T., 8/5/2024, at 15-18; N.T. 8/9/2024, at 42. As this was not his first

positive screen, his supervising probation officer Trevor Woodruff sought and

obtained a bench warrant on May 2, 2024, to detain him pending a Gagnon

I hearing.4 N.T., 8/5/2024, at 15-18; N.T. 8/9/2024, at 42; Bench Warrant

Probation Violation, 5/2/2024, at 1. The day before the Gagnon I hearing,

3 See 35 P.S. § 780-113(A)(30). The crime to which Clayborne pled guilty was subject to a maximum sentence of ten years of incarceration. See id. § 780-113(f)(1.1).

4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973), discussed further infra.

-3- J-A18018-25

Clayborne submitted to an evaluation, which recommended that he receive

treatment for his substance abuse and mental health disorders through

“clinically managed, high-intensity residential services for co-occurring

disorders.” N.T., 8/9/2024, at 24-26.

At the hearing the following day, the trial court found that the

Commonwealth established probable cause to believe that Clayborne had

violated the terms and conditions of his probation in the 2020 case by using

drugs and failing to complete court ordered treatment or other special

conditions of his sentence. Gagnon I Hearing Results, 5/14/2024, at 1. The

trial court rescinded the bench warrant upon the opening of a bed at an

inpatient treatment facility and deferred the Gagnon II hearing for three

months to permit Clayborne to complete inpatient treatment. Id.; Order,

5/14/2024, at 1; N.T., 8/9/2024, at 41-42.

Clayborne entered Conewago Snyder, a drug treatment and

rehabilitation facility in Beavertown, Pennsylvania. The facility is equipped to

manage the care of patients, like Clayborne, who have co-occurring disorders.

See N.T., 8/9/2024, at 15, 26-34, 36. According to Conewago Snyder’s

director, Lisa Hershey (“Hershey”), Clayborne met with the facility’s doctor

upon entry, but he was otherwise “combative” during his entire stay and

“there wasn’t a whole lot of work that we could do with him.” Id. at 29.

Clayborne was reportedly “noncompliant with program rules and

expectations,” “would not comply with groups,” made inappropriate

-4- J-A18018-25

comments to staff members, refused to sit down or follow “basic rules,” and

was “very resistant … to any prompts whatsoever.” Id. at 21-22, 29.

Clayborne’s combative attitude culminated in an incident on May 23,

2024, six days after he entered treatment. Pamela Weaver, a program

monitor, instructed Clayborne to stop playing video games and participate in

a life skills group. Id. at 12. Clayborne refused. Id. Subsequently, he

“approached” Weaver in a hallway while she was talking to another client and

asked her if the life skills group was over. Id. at 12-13. When Weaver told

him that the group had not yet ended, Clayborne “started screaming at

[Weaver] that [she] just make[s] up rules” and “got in [her] face.” Id. at 13-

14. Clayborne “was only like six inches away” from her face when he was

screaming at her. Id. at 14. Weaver called for help, and another staff

member alerted Hershey and the assistant director of the facility. Id. at 14.

Before Hershey even exited her office to assist, Clayborne, “came up

the hall” and approached Hershey and the assistant director “in a very

aggressive, abrasive manner” in the doorway of Hershey’s office. Id. at 19.

Clayborne yelled that Conewago Snyder was “making up rules” and that he

did not need to follow them. Id. at 23. Because Clayborne “would jump from

one thing to another” with “a lot of curse words mixed in,” Hershey “wasn’t

even sure [] what he was talking about.” Id. Clayborne’s aggressive manner

made Hershey and the assistant director feel unsafe. Id. at 19. Specifically,

Clayborne was “raising his voice,” “yelling,” and “moving towards [Hershey

-5- J-A18018-25

and the assistant director] into the … doorframe to the doorway,” obstructing

the only exit from the office. Id. at 19. Several times, Hershey asked

Clayborne “to back away from the door because he was coming towards us.”

Id. Hershey feared that Clayborne was going to escalate the situation by

doing “something physical” as he was “push[ing] his way” into her office. Id.

at 19-20.

Because Clayborne’s “aggressive and intimidating” behavior posed a

“high risk” to the safety of the staff and other patients, Hershey decided that

Conewago Snyder could not continue to treat Clayborne. See id. at 20-21.

Conewago Snyder unsuccessfully discharged Clayborne from the program and

placed him on a “do-not-readmit list” based upon his “use of intimidating,

aggressive, and abusive language” and his ongoing failure “to comply with

program rules and expectations.” See id. at 20-22. Although Conewago

Snyder typically transported unsuccessfully discharged patients home, to a

relative’s house, or even to jail, they were “afraid” to do so for Clayborne and

asked Probation Services for immediate assistance in removing him from the

facility. Id. at 22; N.T., 8/5/2024, at 14.

Delaware County sheriffs were unavailable to transport Clayborne, so at

Officer Woodruff’s request, Luzerne County sheriffs took Clayborne into

custody from Conewago Snyder on May 23, 2024. N.T., 8/5/2024, at 14, 20.

Probation Services sought and obtained a bench warrant to detain Clayborne

pending another Gagnon I hearing. Request for Bench Warrant, 5/23/2024,

-6- J-A18018-25

at 1; Probation Violation Bench Warrant, 5/24/2024, at 1. Luzerne County

sheriffs took Clayborne to jail in Snyder County, then Luzerne County, and

arrived at the jail in Delaware County on May 30, 2024. N.T., 8/5/2024, at

19-21.

At Clayborne’s Gagnon I hearing on June 13, 2024, the trial court

determined that the Commonwealth had probable cause to establish that he

committed technical violations of conditions imposed in the 2020 case. See

Gagnon I Hearing Results, 6/13/2024, at 1. The court ordered Clayborne to

be held in custody pending a Gagnon II hearing before the sentencing judge.

Id. That same day, Officer Woodruff requested that the judge’s chambers

provide the first available date for the Gagnon II hearing, and chambers

scheduled the hearing for August 5, 2024. N.T., 8/5/2024, at 22.

At the inception of the August 5, 2024 hearing, Clayborne moved to

dismiss the probation violation, arguing that the Commonwealth failed to

adhere to his right to a speedy hearing guaranteed by constitutional principles

of due process and Pennsylvania Rule of Criminal Procedure 708. Id. at 3-5.

He argued that his ongoing incarceration ran afoul of the presumption against

incarcerating technical violators in Act 44, which had taken effect less than

two months before. Id. at 4. Even if the Commonwealth established the need

for his incarceration, Clayborne emphasized that he had been incarcerated

without a Gagnon II hearing four to five times longer than the maximum

sentence Act 44 authorized for a technical violation of probation. Id. at 4-5.

-7- J-A18018-25

In response, the Commonwealth argued that the timeline for the hearing

was standard. Even if not timely, it asserted that the failure to hold a speedy

probation violation hearing should not result in dismissal of the violation

because Clayborne could have requested to lift the detainer or to expedite the

Gagnon II hearing. Id. at 10-11. Additionally, the Commonwealth

maintained that holding the Gagnon II hearing two months after he was

detained did not prejudice Clayborne. Id. at 11-12.

At the trial court’s request, the Commonwealth reviewed the procedural

history of the case and specified that the violation was premised upon the

information provided by Hershey concerning Clayborne’s behavior at

Conewago Snyder. See id. at 13-23. Clayborne raised a hearsay objection

because Hershey was not present to testify. Id. at 23-24. The trial court sua

sponte continued the hearing to review Act 44 and to provide the

Commonwealth with an opportunity to present firsthand witness testimony.

Id. at 25. Clayborne’s counsel indicated that he did not object as long as the

Commonwealth agreed to Clayborne’s immediate release. Id. Without

explaining its rationale, the trial court declined to release Clayborne and

continued the hearing until August 9, 2024. Id. In the meantime, Clayborne

filed a memorandum of law in support of his motion to dismiss. See

generally Letter Brief in Support of Motion to Dismiss VOP, 8/7/2024.

At the continued Gagnon II hearing, the Commonwealth established

the aforementioned facts through the testimony of Weaver, Hershey, and

-8- J-A18018-25

Officer Woodruff. At the conclusion of the hearing, the trial court determined

that Clayborne had violated the conditions of his probation and that the

Commonwealth had established, by a preponderance of the evidence, that his

violation involved “assaultive behavior” within the meaning of section

9771(c)(1)(iii)(B).5 N.T., 8/9/2024, at 43. Specifically, the trial court found

him in violation of rule 9 of his probation requirements (requiring him to

refrain from “overt behavior”) based upon his “encounter” with Conewago

Snyder staff, and rule 10(C) (requiring him to complete special conditions)

based upon his failure to complete the court-ordered treatment. See id. at

40-43; see also N.T., 8/5/2024, at 8-9.6 As a result, the trial court revoked

5 Originally, the trial court also found by clear and convincing evidence that Clayborne committed a technical violation that involved an identifiable threat to public safety pursuant to 42 Pa.C.S. § 9771(c)(1)(ii). After Clayborne argued that the Commonwealth did not present evidence establishing that there was no less restrictive means to incarceration, a requirement of subsection (c)(1)(ii), the trial court changed its mind. N.T., 8/7/2024, at 52- 53.

6 At both Gagnon II hearings, Officer Woodruff indicated that his reports erroneously listed the incident as violative of Rule 7 (requiring probationer to refrain from drug use), instead of the intended Rule 9. We suspect that his reference to “overt behavior” was shorthand for exhibiting threatening or overt behavior, but we cannot confirm because no written request for revocation filed with the clerk of courts appears in the certified record. See Pa.R.Crim.P. 708(A); Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980) (“[D]ue process requires a probationer receive written notice of the claimed probation violations prior to commencement of the revocation hearing[.]”). This particular procedural defect is not before us, as Clayborne did not object to it below or advance it as an issue on appeal. See Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981) (holding that probationer must preserve objection to inadequate notice before trial court); (Footnote Continued Next Page)

-9- J-A18018-25

Clayborne’s probation in the 2020 case and sentenced him to one to thirty

days in jail and a one-year term of probation. N.T., 8/9/2024, at 65-67, 69,

72; Sentencing Order, 8/9/2024, at 1. The court ordered Clayborne’s

immediate parole upon his completion of drug and psychiatric evaluations.

See Sentencing Order, 8/9/2024, at 1.

The trial court declined to award credit to the resentence for the time

Clayborne spent detained prior to the Gagnon II hearing, asserting that

giving him credit for the seventy-nine days in custody on the detainer is

“incompatible” with, and would “negate,” newly added section 9771(c)(2)(iv),

which authorized the trial court to incarcerate a probation violator for an

additional thirty days beyond the statutory maximum sentences to obtain an

evaluation if needed. N.T., 8/9/2024, at 68-69, 73-74. It also denied

Clayborne’s motion to dismiss the violation based upon due process and Rule

708 concerns, concluding that the two-step Gagnon process after a probation

detainer takes longer than fourteen days as a practical matter, Probation

Services followed “standard operating procedure,” and Act 44 dealt with the

“back end” of reducing probation violation sentences but not the “front end”

of procedure concerning probation violation detainers. See id. at 57, 61, 70-

73.

see also Quinlan, 412 A.2d at 497 (holding that probationer must allege that he was injured by a defect in written notice of allegations against him, not simply that record failed to reflect his receipt of such notice).

- 10 - J-A18018-25

Issues on Appeal

Clayborne filed a timely notice of appeal. Both Clayborne and the trial

court complied with Rule 1925 of our appellate procedural rules. He presents

three issues for our review:

1. Whether … there was insufficient evidence to overcome the presumption against total confinement because [section 9771(c)(1)(iii)(B)] requires “assaultive behavior or included a credible threat to cause bodily injury to another” … [yet] the testimony only involved … cursing, approaching someone, complaining about made up rules, and refusing to go to group therapy[.]

2. Whether … the [trial] court erred in denying [Clayborne’s] motion to dismiss under Pa.R.Crim.P. 708, the Due Process Clause, and the standard to dismiss articulated [Commonwealth] v. Christmas, 995 A.2d 1259 ([Pa. Super.] 2010), where [section 9771(c)(2)(i)] only allows [Clayborne] to be incarcerated for 14 days on a first technical violation …, and [Clayborne] was incarcerated 79 days before having the Gagnon [II] hearing[.]

3. Whether … the [trial] court erred in failing to award any time credit for the 79 days [Clayborne] spent detained solely on this violation petition, in contravention of the time credit statute, [42 Pa.C.S. § 9760(1).]

Clayborne’s Brief at 5-6.

- 11 - J-A18018-25

Overview of Sentencing Code Provisions Pertaining to Probation Revocation and Resentencing, as Amended by Act 44

As each of Clayborne’s issues require this Court to interpret the

Sentencing Code as amended by Act 44, we begin with an overview of the

relevant statutory provisions.7

A trial court decides the sentence to impose within the confines of the

authority provided to it by the General Assembly. See 42 Pa.C.S. § 9703.

Probation is a sentencing alternative that a court may impose in addition to,

or instead of, confinement and other penalties. See id. §§ 9721(a)(1), (b),

9722.

The sentencing court has the authority to set the term of probation,

select the authority responsible for supervising the probation, 8 and impose

reasonable conditions of probation in accordance with section 9763. Id.

§ 9754(a), (b). Conditions must be individualized, necessary, and the least

restrictive means available to promote the defendant’s rehabilitation and

protection of the public. Id. § 9763(b). There are thirteen specifically

7 The version of section 9771 applicable to Clayborne’s resentencing was in effect from June 11, 2024 to October 19, 2025. We refer to this version unless otherwise specified. A new version of section 9771 with a minor change took effect on October 20, 2025. See Act of July 21, 2025, P.L. 127, No. 38, § 1 (changing subsection (C)(2)(iv)(B)’s reference to “problem-solving court” to “treatment court” consistent with amendments to section 916).

8 Probation is supervised by county probation departments, see 42 Pa.C.S. §§ 9911-9914, or the state Department of Corrections, see 61 Pa.C.S. §§ 6171(11)(ii), 6172(a).

- 12 - J-A18018-25

enumerated general conditions that a court may include, and one that

authorizes the court to order the probationer to “do other things reasonably

related to rehabilitation.” Id. § 9763(b)(1)-(7), (9)-(15). A sentencing court

also has authority to order certain specialized conditions of probation, such as

the electronic home monitoring originally ordered in Clayborne’s 2020 case.

Id. § 9763(c), (d).

Generally,

[t]he 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 by clear and convincing evidence that a person presents an identifiable threat to public safety.

Id. § 9771(a). Further, upon proof by a preponderance of the evidence that

a probationer violated “specified conditions of probation,” the court may

revoke an order of probation, increase the conditions of probation, or impose

a brief sanction under an established court-imposed program. Id. § 9771(b);

see also id. § 9771.1; Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa.

2019). Probation revocation is “an integral element of the original conditional

sentence.” Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007).

Because a probation revocation results in a loss of liberty, a probationer

must be accorded due process. Gagnon, 411 U.S. at 782; Commonwealth

v. Davis, 336 A.2d 616, 620 (Pa. Super. 1975). Revocation occurs in a two-

step process. First, when a probationer is detained based on an alleged

probation violation, due process requires a Gagnon I prerevocation hearing

- 13 - J-A18018-25

to determine whether probable cause exists to believe that the probationer

committed a violation. Commonwealth v. Ferguson, 761 A.2d 613, 617

(Pa. Super. 2000). If the Commonwealth satisfies this burden, a second, more

comprehensive Gagnon II revocation hearing follows at which trial court

determines whether to revoke probation. Id.

After considering the “record of the sentencing proceeding, together

with evidence of the conduct of the defendant while on probation,” and making

a finding on the record that a violation of probation occurred, the trial court

may revoke the term of probation and resentence the probationer. See 42

Pa.C.S. §§ 9754(d), 9771(d). Subject to the limitations imposed by

subsections (b.1) and (c), “the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing,” including

any applicable mandatory minimum sentence the Commonwealth may seek

for the court to impose upon resentencing, with “due consideration being given

to the time spent serving the order of probation.” Id. § 9771(b). The trial

court’s discretion to resentence a probation violator to a period of total

incarceration, however, is cabined by section 9771(c):

(c) Limitation on sentence of total confinement.--There is a presumption against total confinement for technical violations of probation. The following shall apply:

(1) The court may impose a sentence of total confinement upon revocation only if:

(i) the defendant has been convicted of another crime;

- 14 - J-A18018-25

(ii) the court finds by clear and convincing evidence that the defendant committed a technical violation that involves an identifiable threat to public safety and the defendant cannot be safely diverted from total confinement through less restrictive means; or

(iii) the court finds by a preponderance of the evidence that the defendant committed a technical violation and any of the following apply:

(A) The technical violation was sexual in nature.

(B) The technical violation involved assaultive behavior or included a credible threat to cause bodily injury to another, including acts committed against a family or household member.

(C) The technical violation involved possession or control of a firearm or dangerous weapon.

(D) The technical violation involved the manufacture, sale, delivery or possession with the intent to manufacture, sell or deliver, a controlled substance or other drug regulated under … [t]he Controlled Substance, Drug, Device and Cosmetic Act.

(E) The defendant absconded and cannot be safely diverted from total confinement through less restrictive means.

(F) The technical violation involved an intentional and unexcused failure to adhere to recommended programming or conditions on three or more separate occasions and the defendant cannot be safely diverted from total confinement through less restrictive means. For purposes of this clause, multiple technical violations stemming from the same episode of events shall not constitute separate technical violations.

(2) If a court imposes a sentence of total confinement following a revocation, the basis of which is for one or more technical violations under paragraph (1)(ii) or (iii), the court shall consider the employment status of the defendant. The defendant shall be sentenced as follows:

- 15 - J-A18018-25

(i) For a first technical violation, a maximum period of 14 days.

(ii) For a second technical violation, a maximum period of 30 days.

(iii) For a third or subsequent technical violation, the court may impose any sentencing alternatives available at the time of initial sentencing.

(iv) The time limitations contained in this paragraph shall not apply to the extent that a reasonable term of additional total confinement, not to exceed 30 days, is necessary to allow a defendant to either be evaluated for or to participate in:

(A) a court-ordered drug, alcohol or mental health treatment program; or

(B) a problem-solving court provided for in section 916 (relating to problem-solving courts).

(3) Nothing in this section shall prevent the adoption of a program [to establish swift, predictable and brief probation violation sanctions] under section 9771.1.

42 Pa.C.S. § 9771(c).9

Issue 1: Overcoming the Presumption Against Incarceration for a Technical Violation Involving “Assaultive Behavior”

Mootness

We must first determine whether we can review this issue, as it appears

to be technically moot. See Commonwealth v. Gillins, 302 A.3d 154, 162

(Pa. Super. 2023) (explaining that in general, case challenging sentence and

9 Subsection (b.1), regarding failure to pay fines, also limits the trial court’s typical discretion in resentencing but is not applicable to this case.

- 16 - J-A18018-25

not underlying conviction is moot upon expiration of sentence without

demonstration of collateral consequences adequate to satisfy the case-or-

controversy requirement) (citation omitted). While the Commonwealth does

not raise the issue of mootness, Clayborne acknowledges that he has already

served the total confinement imposed, implicitly conceding that any relief we

can afford him is now moot. See Clayborne’s Brief at 23 n.7. He nonetheless

contends that his appeal falls within an exception to the mootness doctrine

because it is capable of repetition yet evading review. Id. (citing

Commonwealth v. Dixon, 907 A.2d 468, 472 (Pa. 2006)). “Pursuant to this

principle, an appellate court may decide a case where issues important to the

public interest are involved, the nature of the question under consideration is

such that it will arise again, and review will be repeatedly thwarted if strict

rules of mootness are applied.” Dixon, 907 A.2d at 472-73.

We agree with Clayborne that this issue, as well as the other two issues

he presents, satisfy this exception to mootness despite the apparent

expiration of his sentence. All three issues regarding the impact of Act 44

upon probation resentencing are issues of public importance that will arise

repeatedly for others, and because of the short sentences permitted by Act 44

for first- and second-time technical violators of probation, consistently evade

appellate review. See Dixon, 907 A.2d at 472-73; accord Commonwealth

v. Phillips, 344 A.3d 360, 367 n.11 (Pa. 2025) (declining to dismiss appeal

as moot despite suspected expiration of sentence during appeal because, inter

- 17 - J-A18018-25

alia, deciding issue raised “will be useful and instructive to the bench and bar

in future cases”).

Scope and Standard of Review

Clayborne claims that the record insufficiently establishes that his

technical violation constituted “assaultive behavior.” He is therefore

contending that the statutory prerequisites for a sentence of total confinement

were not satisfied. This is a claim that the trial court exceeded its authority

by imposing a sentence of total confinement, which constitutes a non-waivable

legality of sentence challenge. See Commonwealth v. Seals, __ A.3d __,

2026 WL 739101, *11-12 (Pa. Super. 2026) (en banc).

As Clayborne’s “challenge to the legality of this sentence requires us to

engage in statutory interpretation,” it “presents a question of law.”

Commonwealth v. Prince, 320 A.3d 698, 703 (Pa. Super. 2024) (citation

and quotation marks omitted). Our standard of review for an issue of

statutory interpretation is de novo and our scope of review is plenary.

Commonwealth v. Crosby, 329 A.3d 1141, 1148-49 (Pa. 2025). To the

extent that our textual analysis concludes that the trial court’s authority is

“preconditioned on the finding of a triggering fact,” the “legality of sentence

- 18 - J-A18018-25

claim includes our de novo review of whether the requisite fact exists.”

Prince, 320 A.3d at 706.

The Statutory Construction Act 10 guides our analysis. See

Commonwealth v. Gamby, 283 A.3d 298, 306 (Pa. 2022). We begin by

recognizing that “[t]he object of all interpretation and construction of statutes

is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.

§ 1921(a).

The plain language of the statute traditionally “provides the best

indication of legislative intent.” Crosby, 329 A.3d at 1149 (Pa. 2025). “When

the words of a statute are clear and free from all ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §

1921(b). The General Assembly has instructed courts to ascribe the “common

and approved meaning” to its chosen words and phrases, unless the word or

phrase is technical, has acquired a peculiar and appropriate meaning, or is

expressly defined in the statute. 1 Pa.C.S. § 1903(a). Courts may consult

dictionary definitions to illuminate the common and approved meaning of a

word or phrase. Commonwealth v. Chisebwe, 310 A.3d 262, 269 (Pa.

2024); Gamby, 283 A.3d at 307 n.11. We consider the statutory language

not in isolation, but in the context within which it appears. Commonwealth

v. Rosario, 294 A.3d 338, 346 (Pa. 2023); A.S. v. Pennsylvania State

10 1 Pa.C.S. §§ 1501-1991.

- 19 - J-A18018-25

Police, 143 A.3d 896, 906 (Pa. 2016). “Every statute shall be construed, if

possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a).

If statutory language is ambiguous, sections 1921(c) and 1922

enumerate nonexclusive lists of eight statutory construction factors and five

presumptions that we may consider to aid us in discerning the General

Assembly’s intent. See id. §§ 1921(c), 1922. “A statute is ambiguous when

there are at least two reasonable interpretations of the text under review.”

Commonwealth v. Green, 291 A.3d 317, 327 (Pa. 2023).

The General Assembly’s use of the same phrase in two different

provisions does not automatically mean it intended the terms to have the

same meaning. Gamby, 283 A.3d at 311 (quoting Yates v. United States,

574 U.S. 528, 537 (2015) (“[I]n law as in life ... the same words, placed in

different contexts, sometimes mean different things. … [I]dentical language

may convey varying content when used in different statutes, sometimes even

in different provisions of the same statute.”)). If two statutes “relate to the

same persons or things or to the same class of persons or things,” however,

they are “in pari materia” and we must construe them “together, if possible,

as one statute.” 1 Pa.C.S. § 1932(a)-(b).

If, at the end of the process of discerning legislative intent a “grievous

ambiguity or uncertainty” in a penal statute remains, the rule of lenity requires

that we must construe it strictly in favor of the defendant. Commonwealth

v. Rosario, 294 A.3d 338, 350 (Pa. 2023); 1 Pa.C.S. § 1928(b)(1). The rule

- 20 - J-A18018-25

of lenity does not require, however, that we give the words of a penal statute

the narrowest possible meaning or disregard legislative intent. Rosario, 294

A.3d at 350.

The Parties’ and Trial Court’s Interpretation of “Assaultive Behavior”

Clayborne argues that his sentence of total confinement is “legally

inappropriate” because the Commonwealth failed to establish, by a

preponderance of the evidence, that he engaged in “assaultive behavior” in

accordance with section 9771(c)(1)(iii)(B), as he neither committed nor

threatened violent conduct. Clayborne’s Brief at 26-27, 40. Clayborne

argues, using the Black’s Law Dictionary definition of “assault,” that

“assaultive behavior” requires that the person engage in “a battery, attempt,

or a threat to commit physical injury.” Id. at 26 (citing ASSAULT, Black’s Law

Dictionary (12th ed. 2024)). He contends that this interpretation of the phrase

effectuates the General Assembly’s intent to curtail rampant incarceration for

minimal technical violations of probation. Id. Clayborne acknowledges that

his actions—screaming, cursing, approaching people, and complaining—may

have caused “fear or nervousness” in others, but he argues that this does not

establish that the behavior was assaultive. Id. at 26-27.

Should this Court find the phrase “assaultive behavior” ambiguous,

Clayborne contends that the considerations set forth in the Statutory

Construction Act lead to the same conclusion. First, he points to the “almost

identical language” of 61 Pa.C.S. § 6138(c)(1.3)(ii), which authorizes a trial

- 21 - J-A18018-25

court to incarcerate an individual who commits a technical violation of parole

conditions by engaging in “assaultive behavior.” Clayborne’s Brief at 28.

Clayborne maintains that Section 9771 should be read in pari materia with

section 6138, and that the General Assembly’s use of “assaultive behavior” in

section 9771(c)(1)(iii)(B) reflects its decision to mirror the use of the same

phrase in section 6138. Id.

To support his assertion that assaultive behavior in the parole context

requires “actual violence or a threat of violence,” Clayborne cites two

Commonwealth Court cases finding a parolee’s behavior not to be “assaultive”

because the parolee did not threaten physical harm or cause reasonable

apprehension of bodily harm in another. Id. at 33-35 (citing Jackson v. Bd.

of Prob. & Parole, 885 A.2d 598 (Pa. Cmwlth. 2005), and Johnson v. Bd.

of Prob. & Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998)).

He finds further support for his contention that “‘assaultive behavior’

must involve physical violence” in his reading of section 9771(C)(1)(iii)(B) in

its entirety. Id. at 39 (emphasis added). He observes the General Assembly’s

use of the disjunctive “or” in section 9771(c)(1)(iii)(B), which permits the

Commonwealth to overcome the presumption against incarceration by

demonstrating that the probationer’s technical violation included either

“assaultive behavior” or a “credible threat to cause bodily injury to another.”

Id. at 39-40. In his view, any interpretation of “assaultive behavior” that

includes nonviolent conduct such as “screaming, cursing, and [invading]

- 22 - J-A18018-25

personal space” runs counter to the presumption that the General Assembly

intends all words in a statute to be effective and certain, as there would be no

need to include “credible threat to cause bodily injury” if such conduct was to

be included. Id. at 40. He argues that the General Assembly “intended more

than non-threatening words and acts, devoid of physical violence o[r] the

threat of violence, when it chose the term ‘assaultive behavior’.” Id.

Clayborne additionally contends that because section 9771 is a penal

statute, it must be strictly construed. He urges this Court to invoke the rule

of lenity to resolve any ambiguity in the language to favor his interpretation.

Id. at 35-36.

Clayborne further relies upon remarks from Senators Camera Bartolotta

and Sharif Street from the floor during the passage of Act 44. See id. at 37-

38 (reproducing remarks from Pa. S.J., 2023 Reg. Sess. No. 32). According

to Clayborne, the floor statements reflect the General Assembly’s intent to

revise section 9771 to prevent a probationer’s ensnarement in a “probation-

to-prison revolving door” simply for non-criminal, non-violent, and minor

technical violations. Id. at 37 (quoting Sen. Bartolotta’s remarks, Pa. S.J.,

2023 Reg. Sess. No. 32 (June 27, 2023)). He argues that his behavior was

fueled by his “mental health withdrawal symptoms” and likens his behavior to

childish complaints that constituted the sort of minor technical violation to

which the senators referred. Id. at 38.

- 23 - J-A18018-25

The Commonwealth endorses the trial court’s analysis, which found that

in the absence of a statutory definition of assaultive behavior, it properly gave

the statutory language its common and approved usage in context, which is

broader than an act constituting the crime of assault. Trial Court Opinion,

12/17/2024, at 7; see also Commonwealth’s Brief at 19-20. Like Clayborne,

the court borrows the definition of “assaultive behavior” used by the

Commonwealth Court to construe section 6138, but reaches the opposite

conclusion. Instead, the trial court found that in the context of both parole

and probation violations, an assault is a “violent physical or verbal attack” and

a “threat or attempt to inflict offensive physical contact or bodily harm on a

person … that puts the person in immediate danger of or apprehension of such

harm or contact.” Id. at 5 (quoting Flowers v. Bd. of Prob. & Parole, 987

A.2d 1269, 1272 (Pa. Cmwlth. 2010)). In support of its conclusion that

Clayborne engaged in “assaultive behavior,” the trial court highlighted

Conewago Snyder staff’s credible testimony that: (1) Clayborne maintained a

persistent combative attitude throughout his stay; (2) he got in Weaver’s face

with only six inches distance between them; (3) he used intimidating,

aggressive, and abusive language during his encounter with Weaver and

Hershey; and (4) Weaver and Hershey each perceived a need for external

assistance with Clayborne. Id. at 6-7.

Meaning of “Assaultive Behavior” in Section 9771(c)(1)(iii)(B)

Plain Language

- 24 - J-A18018-25

The question before us is what constitutes “assaultive behavior” to

overcome the presumption against incarcerating a technical probation violator.

Neither section 9771 nor the definitions section of the Sentencing Code defines

“assaultive behavior.” See generally 42 Pa.C.S. §§ 9702, 9771. We

therefore begin by examining the common and approved usage of the phrase.

“Assaultive” is an adjective that modifies the noun “behavior.” Words

with a suffix “-ive” perform or tend toward an indicated action: in this case,

assault.11 The dictionary definition of “assaultive” includes two meanings: (1)

“of, relating to, or tending toward assault,” as in “assaultive behavior” and (2)

“having an intense or abrasive effect on the senses or emotions,” such as

“loud and assaultive music.”12

The dictionary defines “assault” as (1) “a violent physical or verbal

attack”; (2) “a military attack usually involving direct combat with enemy

forces”; and (3) “a concerted effort (as to reach a goal or defeat an

adversary),” such as “an assault on drug trafficking.” 13 Referring to “law,” the

definition also includes (1) “a threat or attempt to inflict offensive physical

contact or bodily harm on a person (as by lifting a fist in a threatening manner)

11 “-ive.” Merriam-Webster.com Dictionary, https://www.merriam- webster.com/dictionary/-ive (last accessed on 2/17/2026).

12 “Assaultive.” Merriam-Webster.com Dictionary, https://www.merriam- webster.com/dictionary/assaultive (last accessed on 2/17/2026). 13 “Assault.” Merriam-Webster.com Dictionary, https://www.merriam- webster.com/dictionary/assault (last accessed on 2/17/2026).

- 25 - J-A18018-25

that puts the person in immediate danger of or in apprehension … of such

harm or contact” and (2) rape. Id. Thus, an assault can involve actual,

attempted, or threatened physical violence, but it also includes a violent verbal

attack or a threat or attempt to inflict offensive physical contact.

The definition of assault in Black’s Law Dictionary, Clayborne’s dictionary

of choice, is consistent. First, as it relates to “criminal & tort law,” it defines

an assault as a “threat or use of force on another,” placing a person in

“reasonable apprehension of imminent harmful or offensive contact,” and “the

act of putting another person in reasonable fear or apprehension of an

immediate battery by means of an act amounting to an attempt or threat to

commit a battery.” ASSAULT, Black’s Law Dictionary (12th ed. 2024). Under

“criminal law,” it includes an attempt to commit battery with specific intent to

cause physical injury or actually causing physical injury to another person

intentionally, knowingly, recklessly, or with criminal negligence. Id. It also

defines assault in the “popular[]” sense as “any attack.” Id.

The definitions—including the Black’s Law Dictionary definition cited by

Clayborne—recognize that an “attack,” not limited to physical conduct, may

fall under the plain meaning of “assault.” Taken together, these dictionary

definitions reflect that the word “assaultive” includes behavior tending towards

actual, attempted, or threatened infliction of bodily harm, as well as behavior

tending towards a violent verbal attack or behavior tending towards attempted

or threatened offensive physical contact. The key components are a violent

- 26 - J-A18018-25

verbal or physical attack—i.e., one made aggressively and with intensity and

abrasiveness—that reasonably causes another fear of imminent bodily injury

or offensive physical contact. Thus, we cannot agree with Clayborne that

either a specific threat of physical violence or the commission/attempt of an

act of physical violence is essential to the term under a plain language

interpretation. Rather, to be “assaultive,” behavior may be physically violent

or expressly threaten violence, but may also be another kind of “attack,”

including one that is solely verbal and rises to a level of aggressiveness and

force such that it tends towards assault and places a person in reasonable fear

of imminent bodily injury or offensive physical contact.

Ambiguity

Unfortunately, our analysis cannot end here, as the conduct in

subsection (c)(i)(iii)(B) is not limited to “assaultive behavior,” but could

alternatively include “a credible threat to cause bodily injury to another.” 42

Pa.C.S. § 9771(c)(1)(iii)(B). This raises the question of what constitutes

“assaultive behavior” in light of the proffered specific alternative. Viewing the

full text of the subsection as a whole, there are two potential interpretations:

(1) the General Assembly intended “assaultive behavior” to be limited to

actual physical violence in contrast to a credible threat of bodily injury or (2)

the General Assembly intended to use the term “assaultive behavior” in its

broader common-sense meaning (as found hereinabove) differentiated from

a credible threat of bodily injury in another respect. Given the phrase has

- 27 - J-A18018-25

more than one reasonable interpretation, we turn to tools of statutory

interpretation to assist us in resolving the ambiguity.

1 Pa.C.S. § 1921(c)

The General Assembly amended section 9771(c) in Act 44 of 2023, a

bipartisan effort that amended Sentencing Code provisions related to

probation. We find it most helpful to begin by evaluating the new enactments

alongside the prior version of the affected statutory provisions, considering,

in particular, the scope and breadth of the amendments included in Act 44

and statements made by those involved in the drafting of the legislation.

These details shed light on a number of the factors we may consider when

untangling ambiguous language in a statute. See 1 Pa.C.S. § 1921(c)(1)-(5),

(7) (the occasion and necessity for the statute, the circumstances behind its

enactment, the mischief to be remedied, the object to be obtained, former

versions of a statute, and contemporaneous legislative history).

It is readily apparent from the text of Act 44 as a whole, when

juxtaposed with the prior version of the Sentencing Code, that the General

Assembly intended to change significantly the state of probation in this

Commonwealth. A simple comparison of Act 44 to the prior statute

demonstrates the General Assembly’s intent to constrict a judge’s authority to

exercise discretion when imposing terms and conditions of probation in the

first instance and when considering whether to modify or revoke probation

along the way.

- 28 - J-A18018-25

Previously, the court could impose reasonable conditions “it deem[ed]

necessary,” in its discretion, “to ensure or assist the defendant in leading a

law-abiding life.” See 42 Pa.C.S. §§ 9754(b), 9763(c) (versions effective

prior to December 10, 2024). Now, the court solely may impose conditions

that are individualized, necessary, and the least restrictive to promote the

defendant’s rehabilitation and to protect the public. See 42 Pa.C.S.

§§ 9754(b), 9763(c).

Act 44 also implemented a new statutory provision creating a

requirement for “probation review conference[s].” See 42 Pa.C.S. § 9774.1.

It includes a detailed description of how, when, and under what circumstances

such conferences must be conducted, and provides the potential for early

termination of probation. See id. § 9774.1(a)-(i).

Section 9771 dictates the conditions under which the trial court may

revoke a term of probation. Prior to Act 44, section 9771(c) specified that the

court “shall not impose a sentence of total confinement” unless the court found

that the defendant was convicted of another crime, his conduct indicated he

would likely commit another crime unless confined, or total confinement was

“essential to vindicate the authority of the court.” 42 Pa.C.S. § 9771(c)

(effective December 18, 2019, to June 10, 2024). Post-amendment, section

9771(c) prohibits the court from imposing a sentence of total confinement for

a technical violation of probation, subject to specifically delineated exceptions.

See 42 Pa.C.S. § 9771(c); see also supra, pp.15-16. As we discuss in more

- 29 - J-A18018-25

detail below, Act 44 places specific, relatively short maximum sentences for a

period of confinement imposed for a first or second technical violation. See

id.

The stated goal of several of Act 44’s bipartisan co-sponsors was to

“reform Pennsylvania’s probation system” in an attempt to “implement greater

fairness in the process, eliminate excessive incarceration, give individuals a

more reliable second chance to get their lives right, and offer taxpayers a

break from ever-rising state correctional costs.” See Co-Sponsorship

Memorandum introducing S.B. 838 by Senators Lisa Baker, Camera

Bartolotta, and Anthony Williams (Dec. 15, 2022). The co-sponsors

emphasized that they designed Act 44 to put “parameters in place” to disrupt

the “probation-to-prison revolving door” for “technical violations, such as a

minor traffic offense,” that “can perpetually extend the clock on an offender’s

term and result in re-confinement.” See id.

While these comments do not necessarily speak to the intent of the

General Assembly as a whole in passing the Act, they clearly support our

interpretation of the General Assembly’s intent to reform Pennsylvania’s

system of probation—and, in particular, incarceration for technical violations

of probation—from reading the Act as a whole. This is also in accord with the

public commentary provided by Governor Shapiro when he signed the bill into

law in the presence of former probationer Meek Mill, whose probationary term

- 30 - J-A18018-25

was extended multiple times following technical violations. See Pa. Gov.

Mess., Comprehensive Probation Reform Legislation (Dec. 15, 2023).

Parole statute

With an understanding of the scope of the changes made by the Act, we

turn to the statutory provisions governing technical violations of parole to see

if those provisions shed light upon our understanding of “assaultive behavior”

as an alternative to a credible threat to injure another. Clayborne directs our

attention to section 6138(c)(1.3)(ii), amended in 2019 to allow incarceration

for technical violations of parole that “involved assaultive behavior or included

a credible threat to cause bodily injury to another.” 61 Pa.C.S.

§ 6138(c)(1.3)(ii). Because this language is identical to section

9771(c)(1)(iii)(B), Clayborne argues that we should read both sections in pari

materia.

Clayborne does not analyze whether 9771 and 6138 relate to “the same

persons or things or to the same class of persons or things,” which is required

to construe them “together, if possible, as one statute.” 1 Pa.C.S. § 1932(a)-

(b). Both probation and parole involve supervision outside the confines of

incarceration to ensure compliance with certain terms and conditions, the

authority to set the rules, supervise the offenders’ compliance, and “violate”

the offender is statute dependent, and involves the separation of powers

between the legislative, judicial, and executive branches. See

Commonwealth ex rel. Banks v. Cain, 28 A.2d 897, 900-01 (Pa. 1942)

- 31 - J-A18018-25

(delineating the separate powers of each branch of government has over

sentencing and parole). Probation and parole are distinct, however, and not

interchangeable. See Commonwealth v. Koger, 295 A.3d 699, 709 (Pa.

2023) (cautioning this Court to avoid using legal standards interchangeably

when reviewing issues related to violations of probation and parole);

Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (explaining that

the “difference between these often confused terms” stems from different

sources of statutory authority); Commonwealth v. Simmons, 262 A.3d 512,

531 (Pa. Super. 2021) (en banc) (Kunselman, J., concurring) (explaining that

the “legislature treats parole and probation separately” even though

practitioners and trial court judges colloquially refer to “VOP hearings” without

distinction).

Section 6138 applies to parolees under the jurisdiction of the

Pennsylvania Parole Board.14 Unlike probation, parole is not one of the

enumerated sentencing alternatives ordered by a court at the time of

sentencing or resentencing. See 42 Pa.C.S. § 9721(a). After serving part of

a sentence of incarceration, a convicted criminal offender is conditionally

released from confinement to serve the remainder of the term outside the

14 The Parole Board, an independent administrative board of nine members appointed by the Governor with the advice and consent of a majority of the Senate, has exclusive power over parole and violation decisions concerning persons sentenced by a court to imprisonment in a State correctional institution or to special parole. 61 Pa.C.S. §§ 6111, 6132.

- 32 - J-A18018-25

confines of the institution in compliance with parole conditions. Holmes, 933

A.2d 57, 59 n.5. Parole “is an amelioration of punishment,” but “it is in legal

effect imprisonment.” Cain, 28 A.2d at 901 (citation, quotation marks, and

italics omitted). “Unlike a probation revocation, a parole revocation does not

involve the imposition of a new sentence.” Commonwealth v. Kalichak, 943

A.2d 285, 290 (Pa. Super. 2008). Instead, the statutory sanction for a parole

revocation is recommitment for the remainder of the original sentence

previously imposed. See 42 Pa.C.S. § 9776(e); 61 Pa.C.S. §§ 6137(h),

6138(a).

Furthermore, unlike probation, the Parole Board has the discretion to

“revoke” the parole of a “convicted violator” only. See 61 Pa.C.S. § 6138(a),

(c). Instead of revoking the parole of a “technical violator,” the Parole Board

is authorized to detain a technical parole violator pending a hearing and to

recommit the offender to a community corrections center or facility for six

months, whereupon the technical violator is automatically reparoled. Id.

§ 6138(c)(1.3). If the Parole Board determines that certain conditions are

present, however, it may instead recommit the offender to a state correctional

institution or contracted county jail for defined maximum terms of six months,

nine months, and one year for first, second, and third technical parole

violations, respectively, with automatic reparole at the end of the specified

term. Id. § 6138(d)(3)-(5).

- 33 - J-A18018-25

While the distinctions between probation and parole prevent us from

reading these statutes in pari materia, we agree that it is significant that both

statutes address the permissibility of a sentence of incarceration for technical

violations involving either “assaultive behavior” or a credible threat to cause

bodily injury to another.15 We therefore turn to court interpretations of the

General Assembly’s use of assaultive behavior in the context of parole to see

what, if anything, it reveals about its use in the probation context, with due

regard to the different nature of probation and parole.

Flowers, the case cited by the trial court, was decided in 2011. Like

most of the Commonwealth Court cases interpreting the phrase “assaultive

behavior,” Flowers interpreted the term as it is used in a regulation

promulgated by the Parole Board requiring offenders on parole to “refrain from

an assaultive behavior” as a general condition of parole, sometimes referred

to as condition 5(c). See Flowers, 987 A.2d at 1272; 37 Pa.Code

§ 63.4(5)(iii). Significantly, the code provision does not include the

alternative “credible threat” language contained in sections 6138(c)(1.3)(ii)

and 9771(c)(1)(iii)(B). Thus, cases construing condition 5(c) shed little light

on the particular ambiguity at issue. They do, however, reconfirm our analysis

of the plain meaning of “assaultive behavior,” standing alone, as

“encompass[ing] a broader category of actions than would the crime of

15 In fact, all bases for committing a technical parole violator to prison under section 6138(c)(1.3) are identical to those in section 9771(c)(1).

- 34 - J-A18018-25

assault[.]” Flowers, 987 A.2d at 1272 (citation omitted). As stated above,

the Flowers court relied upon the dictionary definition of “assault” in

determining what constitutes “assaultive behavior,” recognizing that it

included, in relevant part, both physical and verbal attacks. Id. (citation

omitted).16

Notably, Clayborne does not cite, nor did our research uncover, any

cases interpreting 61 Pa.C.S. § 6138(c)(1.3)(ii) after the General Assembly

amended it in 2019 to add “or included a credible threat to cause bodily injury

to another” as an alternative to a parole violation that “involved assaultive

behavior.” See Act of Dec. 18, 2019, P.L. 776, No. 115, § 20(c)(1.3)(ii).

16 In neither Jackson nor Johnson—the two cases cited by Clayborne—does the Commonwealth Court state that assaultive behavior must include physical violence. Nor do Jackson and Johnson preclude a finding that a violent verbal attack constitutes assaultive behavior. In fact, Johnson included a violent verbal attack within the definition of “assaultive behavior,” which Jackson then repeats. Johnson, 706 A.2d at 905; Jackson, 885 A.2d at 602. Both cases involved brief in-person interactions with another without physical harm, an overt verbal threat of physical harm, or anything that could be construed as a verbal attack. The key in both cases was a determination that the parolee’s behavior did not objectively evoke a reasonable apprehension of bodily harm. See Jackson, 885 A.2d at 601-02 (majority holding that inmate’s unsolicited hug of prison employee before his release on parole was offensive and unwelcome to employee but was not assaultive behavior because it lacked a threat or an offer with force to do harm that would “evoke a reasonable apprehension of bodily harm in any individual”); Johnson, 706 A.2d at 904-05 (holding that parolee’s tap on shoulder of witness about to testify against his cousin’s boyfriend at preliminary hearing while saying “[y]ou ain’t got to go out on a brother ... [, d]on’t go out on a brother” was not assaultive behavior; parolee may have intimidated witness but he did not threaten physical harm and statement was not “one that would evoke a reasonable apprehension of bodily harm in any individual”).

- 35 - J-A18018-25

Without cases analyzing the amended version of section 6138(c)(1.3)(ii), the

parole cases do not help our ambiguity analysis. As such, we turn back to the

language of section 9771(c) with its two alternatives.

Analysis

We agree with Clayborne that the legislative history of Act 44 shows the

General Assembly intended to restrict incarceration for technical violations of

probation as compared to the prior version of the statute. We disagree,

however, that this intent supports his narrow interpretation of the phrase

“assaultive behavior.” Clayborne’s construction of the statute requiring actual

physical violence overlaps substantially with crimes prohibiting “assault” as

stated in the Crimes Code.17 Significantly, however, the General Assembly did

not include any assault crimes, which are clearly defined by statute, in section

9771(c)(1)(iii)(B). Had the General Assembly intended “assaultive behavior”

to include criminal behavior only, it would not have been necessary to specify

17 In fact, even in the criminal context, an assault does not always require conduct that involves an act or specific threat of physical violence. To the contrary, the crime of “simple assault” includes “attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3).

- 36 - J-A18018-25

that the trial court has authority to incarcerate a probationer for “assaultive

behavior.”18

Our directive in this respect is clear:

[I]t is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include. Consequently, as a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.

Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) (cleaned up;

citation omitted). The broader read of “assaultive behavior” as encompassing

more than acts or specific threats of physical violence conveys a threshold of

behavior that is more dangerous than mere disrespect, rudeness, or brief or

isolated misbehavior, any of which reasonably could have triggered the trial

court’s authority to impose a sentence of total confinement to “vindicate the

authority of the court” under the prior version of section 9771(c). Interpreting

“assaultive behavior” as broader than “assault” cabins a trial court’s discretion

but gives deference to the language selected by the General Assembly, which

ostensibly recognized the need to protect individuals and the public at large

from a probationer’s conduct—whether physical or verbal—that causes,

threatens, or places another in reasonable fear of imminent bodily injury or

offensive physical contact.

18 Further, Act 44 retained the concept of noncriminal technical violations, including allowing a technical violator to be sentenced to incarceration for conduct that in and of itself is not a crime. See, e.g., 42 Pa.C.S. § 9771(c)(1)(ii), (iii)(A), (B), (C), (E), (F).

- 37 - J-A18018-25

We further disagree with Clayborne that this interpretation of “assaultive

behavior” renders the alternative language contained in the statute

“ineffective and meaningless.” See Clayborne’s Brief at 39. As stated above,

“assaultive behavior” instills in another person a reasonable fear of imminent

bodily injury or offensive physical conduct. A credible threat to cause physical

injury may include, for example, verbal threats or statements made at a

distance, such as the threats in Commonwealth v. Simmons, which relied

upon the act of expressing the threat, not its actual effect upon the intended

victim. See Commonwealth v. Simmons, 56 A.3d 1280, 1284–85 (Pa.

Super. 2012) (interpreting “assaultive behavior” as used in conditions of

special probation set forth in 37 Pa.Code § 65.4(5)(iii) as not requiring direct

communication of threats to victim; Simmons’ repeated communication to

third parties that he was going to cut up victim and feed him to pigs alongside

promise that Simmons was going to make it worth his while if he had to return

to death row constituted assaultive behavior), aff’d per curiam, 91 A.3d 102

(Pa. 2014)).19 It may be devoid of any physical action or immediate attempt

19 We recognize that the Simmons Court classified this conduct as assaultive behavior. We note, however, that the Simmons Court was discussing a condition of special probation (37 Pa. Code § 65.4(5)(iii)), not the Sentencing Code, and it did not conduct an interpretation of the meaning of “assaultive behavior” in reaching its decision. Instead, it relied wholesale upon the Commonwealth Court’s interpretation of the term in Malarik v. Bd. of Prob. & Parole, 25 A.3d 468, 470 (Pa. Cmwlth. 2011), which, in turn, interpreted the same phrase applicable to parolees in 37 Pa. Code § 63.4(5)(iii). Neither code provision includes the companion “credible threat” language that appears (Footnote Continued Next Page)

- 38 - J-A18018-25

to act yet still be credible enough for a court to conclude that total confinement

is warranted. Cf. id. at 1288 (Wecht, J., dissenting) (expressing concern with

the majority’s expansive interpretation of “assaultive behavior” because the

General Assembly could not have intended a probationer to violate probation

and go to state prison by stating that he was going to kill a referee while

watching a football game and upset with a call).

Along these lines, it is telling that the General Assembly did not require

a credible threat to be made directly to a victim; it is sufficient that a threat

of bodily injury that the court deems credible is made by the probationer.

Conversely, including a “verbal attack” that places another in fear of harm by

the probationer in the definition of “assaultive behavior” conveys intensity,

proximity, and immediacy vis a vis another person and that person’s

reasonable fear of imminent harm. Given that the goal of probation is to

protect the community and rehabilitate the offender, it is reasonable to

conclude that the General Assembly wanted to curb violent and aggressive

verbal outbursts directed at another person even if the probationer does not

cause or threaten to cause bodily injury.

We therefore conclude that in the context of section 9771(c)(1)(iii)(B),

the General Assembly intended “assaultive behavior” to mean (1)(a) a violent

physical attack, (b) violent verbal attack, or (c) the threat or attempt to inflict

in section 9771(c)(1)(iii)(B). Thus, Simmons is not controlling in that respect.

- 39 - J-A18018-25

offensive physical contact or bodily harm, (2) directed to a person, (3) which

places the person in danger, or in reasonable apprehension, of imminent

bodily injury or offensive physical contact. This not only comports with the

dictionary definition of the word “assaultive” and the Commonwealth Court’s

interpretation of the same phrase, but also aligns with the occasion and

necessity of Act 44, the mischief the General Assembly sought to remedy, and

the object to be obtained, based upon our consideration of the circumstances

of the enactment of Act 44, the prior version of section 9771(c), and the

contemporaneous legislative history, rendering all portions of the subsection

effective and certain. See 1 Pa.C.S. §§ 1921(c), 1922(2).

Application

We find no error in the trial court’s conclusion that Clayborne’s actions

constituted “assaultive behavior.” Clayborne’s characterization of his behavior

as petulant, complaining, swearing, and an invasion of personal space

deemphasizes the loud, aggressive, and intimidating nature of his outburst.

He was not simply awkwardly standing too close to someone while speaking

loudly or passively cursing and complaining from a distance or from a seated

posture. He approached and interrupted Weaver while she was with a client

and physically positioned his body six inches from her face. He pursued

Hershey while she was exiting her office and physically stood in the doorway,

blocking her only means of egress, screaming and swearing at her and the

facility’s assistant director. His persistent shouting, agitation, and body

- 40 - J-A18018-25

language reasonably caused Weaver and Hershey to fear he would harm them.

This was not just a de minimus rule infraction; this was a verbal attack that

placed Hershey and Weaver in reasonable fear of imminent bodily injury.

Clayborne’s technical violation of probation involved assaultive

behavior. The trial court thus permissibly resentenced him to a period of total

confinement.

Issue 2: Speediness of Revocation Hearing

Arguments of the Parties and Trial Court

In his second issue before this Court, Clayborne argues that the delay

in conducting his Gagnon II hearing violated his due process right to liberty

and his right to a speedy hearing under Rule 708. Clayborne’s Brief at 40-57.

His argument is two-fold. First, he briefly discusses the general standards for

due process20 and contends that the failure to hold the hearing until he had

served multiple terms of the maximum sentence for a first technical violation

of probation violated his right to be heard at a hearing held at a “meaningful

time.” Id. at 42-43. Second, he contends that the requirement of a speedy

violation of probation hearing contained in Rule 708 of the Pennsylvania Rules

of Criminal Procedure must be viewed in light of Act 44. Id. at 44. Because

Act 44 severely curtailed maximum incarceration terms for first and second

20 Clayborne raises his due process claim solely under the United States Constitution; he does not raise an argument under the Pennsylvania Constitution. See Clayborne’s Brief at 41 (referencing only the Due Process Clause of the Fourteenth Amendment of the United States Constitution).

- 41 - J-A18018-25

technical violations, he argues that it effectively hastened the timeframe in

which prejudice by a prehearing detention is measured pursuant to the factors

set forth in Commonwealth v. Christmas. Id. at 44. He emphasizes that

he was incarcerated for seventy-nine days prior to his Gagnon II revocation

hearing yet the ultimate sentence for a first technical violation is at most

fourteen or forty-four days of incarceration (and only if the Commonwealth

overcomes a presumption against incarceration). Id. at 47. While a probation

officer is vested with discretionary power to arrest a probation violator, see

42 Pa.C.S. § 9913, Clayborne argues that no law or rule requires a

prerevocation detention. Clayborne’s Brief at 48.

He further asserts that the Commonwealth failed to explain why it took

seventy-nine days to complete a Gagnon II hearing and that it failed to act

with diligence in scheduling the hearing. See id. at 49. Even if the availability

of the trial judge was an issue—something that Clayborne claims was not

established—he argues that, like Rule 600,21 the Commonwealth has a duty

to exercise reasonable diligence to ensure that the revocation hearing happens

in a timely fashion by requesting that another judge conduct the hearing. Id.

at 49-53.

Lastly, he claims that he was prejudiced by the delay. Id. at 47-48.

Clayborne does not allege that the seventy-nine days impacted the

21 See Pa.R.Crim.P. 600.

- 42 - J-A18018-25

presentation of witnesses or evidence in his case. Instead, he argues that his

personal liberty was unnecessarily restrained. Id. He points to his release on

parole after one day, demonstrating that he served seventy-nine times longer

than he needed to. Id. He emphasizes that he was not incarcerated for any

reason other than the probation detainer, which makes the prejudice

particularly acute because he was unnecessarily incarcerated. Id. at 54, 57.

The trial court explains that Clayborne’s assaultive behavior at

Conewago Snyder presented safety concerns for the staff and other patients,

thereby necessitating his immediate removal. Trial Court Opinion,

12/17/2024, at 8-9. Because he was in Snyder County and the Delaware

County sheriff’s department was unavailable to pick him up, it took seven days

to transport him to Delaware County. Id. at 9. After that, the trial court

maintains that the two-step Gagnon process proceeded in a standard and

timely fashion, with Officer Woodruff promptly requesting hearing dates and

the court scheduling the hearings in accordance with the earliest available

date on its schedule. Id. at 9-10. Without expounding upon its analysis, the

trial court concluded that Clayborne “has not demonstrated prejudice by the

delay.” Id. at 10.

The Commonwealth echoes the trial court’s analysis that the timeframe

was standard, especially for a detainee located in another county, and notes

that this Court has found that even a “five-month delay is not in and of itself

unreasonable.” Commonwealth’s Brief at 14 (citing Commonwealth v.

- 43 - J-A18018-25

Saunders, 575 A.2d 936, 938 (Pa. Super. 1990)). As for the Commonwealth’s

due diligence, it asserts that Clayborne “cites to no authority to support that

the Commonwealth should have, or was required to, request an ‘expedited

date’ even sooner that the court’s calendar would allow.” Id. at 15. Finally,

the Commonwealth argues that Clayborne did not experience prejudice in the

form of evidentiary issues, and, as for his continued incarceration, he never

filed a motion to lift the detainer after he was arrested on the bench warrant.

Id. at 16.

The timeliness of a revocation hearing is governed by Rule 708 of our

Rules of Criminal Procedure. It provides, in relevant part, that a court may

not revoke probation unless there has been “a hearing held as speedily as a

possible at which defendant is present and represented by counsel” and “a

finding of record that the defendant violated a condition of probation.”

Pa.R.Crim.P. 708(B)(1)-(2).

This Court has interpreted the language “as speedily as possible” as

requiring a hearing within a reasonable time. Christmas, 995 A.2d at 1262.

Rule 708 does not contain a presumptive period in which a hearing must be

held; “instead, the question is whether the delay was reasonable under the

circumstances of the specific case and whether the appellant was prejudiced

by the delay.” Id. “In evaluating the reasonableness of a delay, the court

examines three factors: the length of the delay; the reasons for the delay;

- 44 - J-A18018-25

and the prejudice resulting to the defendant from the delay.” Id. at 1263.

The speediness of a hearing “is not measured solely on length of the delay,”

as the “court must analyze the circumstances surrounding the delay to

determine if the Commonwealth acted with diligence in scheduling the

revocation hearing.” Commonwealth v. Clark, 847 A.2d 122, 124 (Pa.

Super. 2004).

When evaluating prejudice, courts must bear in mind that probation is

a “discretionary penological measure to which a defendant has no absolute

right,” with its primary goal the rehabilitation and restoration of the individual

to a “useful life.” Commonwealth v. Marchesano, 544 A.2d 1333, 1336

(Pa. 1988). The probationer must establish actual prejudice, which in the

probation context is “something which would detract from the probative value

and reliability of the facts considered, vitiating the reliability of the outcome

itself.” Id. A prompt revocation hearing serves the purpose of (1) avoiding

“such prejudice by preventing the loss of essential witnesses or evidence, the

absence of which would contribute adversely to the determination” and (2)

preventing “unnecessary restraint of personal liberty.” Id.

The length of time at issue in this case is the seventy-nine days between

the day Clayborne was picked up on the bench warrant and the Gagnon II

hearing on August 9, 2024. As for the reason for the delay, even if one

quibbled about the weeklong process to transport Clayborne across several

counties, the Commonwealth’s diligence in overcoming the trial court’s

- 45 - J-A18018-25

schedule, or the Commonwealth’s failure to bring the necessary witnesses to

the first Gagnon II hearing, the underlying crux of Clayborne’s argument is

that the standard operating procedure for scheduling probation revocation

hearings is incongruent with Act 44. See Clayborne’s Brief at 49 (agreeing

with the trial court that the “detention procedure and delay” in this case “is

customary in Delaware County”). As defense counsel put it at the hearing,

Act 44 was supposed to be “a sea change about how we do probation

revocations,” yet counsel did not see “a lot of seas changing even though it’s

supposed to.” N.T., 8/9/2024, at 57. Clayborne already exceeded the

maximum statutory term even before the court held a hearing to determine

whether the Commonwealth had probable cause to detain him and to hear the

allegations against him. Id. at 61. His pretrial detention time, as compared

with the ultimate maximum sentence, is both the reason Clayborne considers

the seventy-nine days to be an unreasonable “delay” and the basis of his

argument that he was prejudiced in the form of unnecessary restraint of

liberty.22

22 The law is clear that “[i]f a defendant is already incarcerated on the charges that triggered the probation revocation, he cannot claim the delay in holding his revocation hearing caused him any loss of personal liberty.” Christmas, 995 A.2d at 1263; see also Marchesano, 544 A.2d at 1336 (holding defendant did not establish prejudice; he failed to show he was “subject to incarceration as a result of any delay in the revocation of probation hearing”); Clark, 847 A.2d at 124 (holding that probationer did not establish “prejudice because of the delay as he was not imprisoned longer than he otherwise would have been”). What remains unclear is what constitutes an “unnecessary (Footnote Continued Next Page)

- 46 - J-A18018-25

Prior to the passage of Act 44, the trial court could resentence a

technical violator up to the maximum sentence for the original crime within

the fairly broad confines of section 9771. Section 9771(c) now generally

presumes that a probationer cannot be sentenced to total confinement for a

technical violation, and even if the technical violation warrants incarceration,

a trial court may only sentence a first-time technical violator to serve no more

than fourteen days of incarceration—and no more than thirty additional days

if an evaluation is required. Therefore, there is some commonsense appeal to

Clayborne’s argument that the concept of what constituted a speedy probation

revocation hearing under the prior law can no longer be the standard.

As the trial court observed, however, Act 44’s amendments pertain

solely to the “back end” of reducing probation violation sentences, not the

“front end” of procedure concerning probation violation detainers. N.T.,

8/9/2024, at 57, 61, 70-73. Act 44 is silent concerning prehearing detention.

As Clayborne concedes, apart from his argument concerning the length of his

prehearing detention in light of Act 44, the hearing in this matter was not

inordinately drawn out or delayed. Thus, if we were to rule that Clayborne

restraint of personal liberty” when a probationer is incarcerated solely on a detainer awaiting a determination of whether he violated the technical terms of his probation, such that the reliability of the outcome is vitiated. None of the cases cited by Clayborne involve a determination that a probationer experienced actual prejudice by an unnecessary restraint of liberty, and our research located only circumstances that do not constitute such prejudice, such as Marchesano, Christmas, and Clark.

- 47 - J-A18018-25

was denied a speedy hearing because his prerevocation incarceration

exceeded his post-revocation penalty, it would be tantamount to concluding

that prehearing detention of technical violators inherently violates Rule 708

until larger systemic changes to expedite the procedure are made. 23

It is possible the General Assembly envisioned limiting or eliminating

prehearing detention for technical violations as part of its effort to prevent the

revolving door of incarcerating probationers for minor infractions. 24 But that

23 We observe that prior to the passage of Act 44, our Supreme Court’s Criminal Procedural Rules Committee published proposed rules for comment addressing “statewide procedural rules governing bail proceedings and technical violations of county probation and parole.” Proposed Amendment of Pa.R.Crim.P. 122; Rescission of Pa.R.Crim.P. 520-529 and Replacement with Pa.R.Crim.P. 520.1-520.19; Adoption of Pa.R.Crim.P. 708.1, and Renumbering and Amendment of Pa.R.Crim.P. 708, 52 Pa. B. 205, 2022 PA REG TEXT 603827, 1/8/2022. Of relevance here, the Committee proposed adding new Rule 708.1, which the Committee asserted will promote due process in prerevocation procedure by establishing the options a supervising authority has when the authority believes a county probationer violated the technical terms of probation; criteria for lodging a detainer if needed to detain the probationer until the revocation hearing; a short deadline for judicial review of detainers at the Gagnon I hearing to determine if probable cause exists to believe the probationer violated the conditions of probation and if there are any conditions upon which a probationer may be released; and automatic expiration of the detainer if the deadline is not met. See id. After receiving an initial round of comments, the Committee revised the proposed rules and republished them for further public comment on July 8, 2023. See 53 Pa. B. 3553, 2023 PA REG TEXT 646961, 7/8/2023. To date, we are not aware of any further action taken on these proposed rule changes.

24 For example, section 9771(c)(2) requires the court to “consider the employment status of the defendant” when imposing “a sentence of total confinement following a revocation.” 42 Pa.C.S. § 9771(c)(2). This makes sense with respect to a person who was summoned to a hearing without being detained, but it is unlikely that most people would be able to retain their (Footnote Continued Next Page)

- 48 - J-A18018-25

language appears nowhere in the statute. We reiterate that “it is not for the

courts to add, by interpretation, to a statute, a requirement which the

legislature did not see fit to include.” Johnson, 26 A.3d at 1090. To the

contrary, Act 44 left untouched a county probation officer’s authority to

“arrest, with or without warrant, writ, rule or process, any person on probation

under the supervision of the court for failing to report as required by the terms

of that person’s probation … or for any other violation of that person’s

probation….” 42 Pa.C.S. § 9913. Clayborne’s argument notwithstanding, we

cannot conclude that the General Assembly intended to change prerevocation

procedure without explicit language that it was doing so. 25

Moreover, there were cases decided prior to the enactment of Act 44

wherein a probationer was either sentenced to a term of incarceration less

than his prehearing detention or not resentenced to a term of incarceration at

all. See, e.g., Commonwealth v. Berkhous, 324 A.3d 1270 (Pa. Super.

2024) (non-precedential decision) (determining that trial court did not err in

revoking probationer’s probation and resentencing probationer to five years

of probation with restrictive conditions despite probationer’s claim that his

employment during a multi-month detention. Nonetheless, it would be a stretch for this Court to interpret this language as a requirement not to detain an individual prior to revocation, particularly as Act 44 says nothing about prehearing detention for probationers accused of technical violations.

25This may be an area that our Supreme Court’s Criminal Procedural Rules Committee should investigate further.

- 49 - J-A18018-25

speedy hearing rights were violated, inter alia, by unnecessarily incarcerating

him for sixty-five days between expiration of his original probationary period

and Gagnon II hearing). In other words, it is not a new phenomenon that

prehearing detention may exceed the post-revocation sentence, making our

General Assembly’s silence on this question all the more compelling.

Turning to Clayborne’s rather sparse due process claim, we reach a

similar conclusion based upon the argument he presents. “The fundamental

requirement of due process is the opportunity to be heard at a meaningful

time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976). Although a probationer’s liberty is “conditional” and “dependent upon

observance” of restrictions, its loss is a “serious deprivation” warranting due

process. See Gagnon, 411 U.S. at 781 (quoting Morrissey v. Brewer, 408

U.S. 471 (1972), and holding that revocation of probation requires the same

due process as afforded to alleged parole violators described in Morrissey);

Commonwealth v. Davis, 336 A.2d 616, 621 (Pa. Super. 1975) (describing

the procedural due process rights outlined in Morrissey and Gagnon).

Neither Morrissey nor Gagnon prescribe specific timeframes for the

two-hearing procedure. Morrissey indicates that the first hearing should

occur “as promptly as convenient after arrest while information is fresh and

sources are available,” and the second hearing “must be tendered in a

reasonable time after the parolee is taken into custody” and suggests that two

months is not unreasonable. Morrissey, 408 U.S. at 488. This Court has

- 50 - J-A18018-25

previously described the speedy trial right in Rule 1409, the predecessor to

Rule 708, as “part of due process.” See Commonwealth v. Jones, 364 A.2d

414, 416 (Pa. Super. 1976).

Clayborne does not argue that any additional process beyond Rule 708

is due a probationer. Instead, he argues that delaying the “revocation hearing

until he had served multiple terms of the maximum possible sentence deprived

[him] of a hearing at a meaningful time.” Clayborne’s Brief at 42-43. Notably,

he does not contend that the detention itself violates due process. Like his

argument pertaining to Rule 708, he premises his claim on the notion that the

General Assembly’s restriction of the trial court’s sentencing authority post-

revocation means that the General Assembly also intended to restrict

prerevocation detainers. As explained above, while logical, and perhaps

aligned with the policy driving Act 44, this argument presumes too much.

Based upon the claim raised before this Court, Clayborne has not established

an infringement upon his right to due process in the revocation of his

probation.

Issue 3: Entitlement to Credit for Time Served

Arguments of the Parties and Trial Court’s Rationale

In his final issue, Clayborne argues that the trial court erred by declining

to award him credit for the time he spent in custody on the probation detainer

when resentencing him following the revocation of his probation in the 2020

case. Clayborne’s Brief at 58-66. From his perspective, 42 Pa.C.S. § 9760

- 51 - J-A18018-25

unambiguously required the court to award credit for time he spent in custody

on any probation violation detainer in the same case upon resentencing.

Clayborne’s Brief at 58-61. He argues that amendments to section 9771 by

Act 44 did not impact the section 9760 time credit analysis. See id. at 59-

60, 65-66. According to Clayborne, by assuming that all technical violators

will be detained prior to revocation when no law requires prerevocation

detention, the trial court manufactured a conflict between sections 9760 and

9771. Id. at 61-62. He asserts that a probationer’s continued incarceration

for evaluation under section 9771(c)(2)(iv) is not mandatory, and the court

could simply direct the probationer to comply with an evaluation as part of the

sentence. Id. at 63. It also could expedite the revocation hearing process,

thereby leaving time for post-revocation evaluations. Id. at 62. That the

interplay between section 9760 and 9771 produces a result that is impractical

or inconsistent with standard procedure in Delaware County does not permit

the trial court to ignore the plain language of section 9760. Id. at 64-66.

The trial court reasoned that if section 9760(1) required it to give credit

for time served, “it would be impossible to use the 30-day period of

incarceration to which [Clayborne] was sentenced to ensure completion of

necessary evaluations as contemplated by 42 Pa. C.S. § 9771(c)(2)(iv).” Trial

Court Opinion, 12/17/2024, at 13. According to the trial court, the legislative

history of section 9771 “reveals no acknowledgment, consideration, or

discussion of either the interplay between 42 Pa.[]C.S. §§ 9760 and 9771 or

- 52 - J-A18018-25

the inevitable time lapse between a defendant’s detention and subsequent

revocation hearing.” Trial Court Opinion, 12/17/2024, at 13. Because the

time spent detained prerevocation would exceed the fourteen-day statutory

sentence and the thirty-day period afforded for evaluations as a matter of

course, applying time credit would entitle the defendant to release before the

trial court could utilize the tools the General Assembly intended for it to have

post-revocation. Id. at 13-14. A defendant who fails to complete the

evaluations in the community as ordered will receive another technical

violation and will have banked time served to be applied towards future

technical violations, leading to an “absurd” and “never-ending probation cycle”

that is the opposite of what the General Assembly intended to accomplish with

Act 44. Id. at 14. Because the court must presume that the General Assembly

did not intend an absurd result, it concluded that the General Assembly did

not intend for a probation violator to receive prerevocation time credit upon

resentencing. Id. at 13-14.

The Commonwealth agrees with the trial court that there is “arguably”

a conflict between sections 9760(1) and 9771(c)(2)(iv), which permitted the

trial court to evaluate legislative intent. Commonwealth’s Brief at 24. To

achieve the purpose of the sentencing scheme set forth in section 9771(c),

including the ability to incarcerate when necessary to evaluate the defendant,

the Commonwealth argues that the trial court “was constrained to not award

[Clayborne] the credit time.” Id. at 23.

- 53 - J-A18018-25

A challenge to the trial court’s failure to award credit for time served

prior to sentencing involves the legality of a sentence, which is a question of

law that we review de novo with a plenary scope of review. Commonwealth

v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).

There is no constitutional right to credit for time served prior to trial or

sentence. Martin v. Bd. of Prob. & Parole, 840 A.2d 299, 304 (Pa. 2003).

The right to time credit stems from section 9760 of the Sentencing Code’s

general provisions regarding a trial court’s imposition of sentence in a criminal

matter. The purpose of section 9760 is twofold: “(1) eliminating the unequal

treatment suffered by indigent defendants who, because of their inability to

post bail, may serve a longer overall confinement for a given offense than

their wealthier counterparts; and (2) equalizing the actual time served in

custody by defendants convicted of the same offense.” Id. at 309. The

relevant provision states:

After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1).

- 54 - J-A18018-25

From its plain language, application of time credit pursuant to 9760

involves two inquiries: (1) what is the “time spent in custody” for which time

credit is due and (2) what is the “prison sentence” against which time credit

must be awarded. Both Clayborne and the Commonwealth agree that under

the prior version of section 9771, section 9760 time credit may be awarded

against a resentence to a period of incarceration after revocation of probation.

See Clayborne’s Brief at 58-59; Commonwealth’s Brief at 23; see also

Phillips, 344 A.3d at 368-69 (recognizing section 9760 as encompassing a

probation detainer as one of the causes of “time spent in custody” for which

time credit may be awarded).26

Our decision in Johnson is instructive. Johnson was convicted of PWID

and sentenced to a term of probation. He was subsequently found in technical

violation of his probation for missing curfew. When resentencing Johnson on

the PWID conviction, the trial court refused to credit Johnson for the time he

had spent incarcerated on the probation violation detainer prior to revocation,

as well as the time he had spent detained prior to pleading guilty to PWID

originally. Johnson, 967 A.2d at 1002-04.

26 The law is clear, however, that a probationer is not entitled to credit for time served on probation. See Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010) (construing sections 9760(1) and 9771(b) and concluding that a trial court is not required to award time for time spent on probation because section 9760 provides credit only for “time spent in custody” and section 9771(b) requires trial courts to give “due consideration” at resentencing to the time serving probation but does not mandate awarding credit for such time).

- 55 - J-A18018-25

On appeal, a divided panel of this Court reversed. Noting that section

9760 did not directly address time credit in this situation, the majority held

that the plain language of section 9760(1)—“all time spent in custody as a

result of the criminal charge for which a prison sentence is imposed or as a

result of the conduct on which such a charge is based”—was broad enough to

encompass both periods requested by Johnson upon resentencing. Id. at

1004-06. This Court reasoned that upon revocation, the probationer’s original

sentence becomes a legal nullity, and the probationer is “placed in the same

position that he was in at the time of his original conviction.” Id. (citing

Commonwealth v. Pierce, 441 A.2d 1218, 1220 (Pa. 1982)). Because

section 9760(1) would have required the court to credit Johnson with time

served prior to sentencing if it had incarcerated Johnson originally, we

determined that section 9760(1) likewise required the trial court to credit

Johnson with all time served prior to resentencing. Id. at 1006.

Thus, according to Johnson the period for which time credit was due,

i.e., “all time spent in custody,” included the time he was incarcerated on the

probation violation detainer; that this time spent in custody was “a result of

the criminal charge,” i.e., the original PWID charge for which probation had

been imposed; the PWID charge was “the criminal charge for which a prison

sentence is imposed,” i.e., the resentencing upon revocation of probation; and

the “prison sentence” against which the credit was due was the “maximum

- 56 - J-A18018-25

term and any minimum term” imposed for PWID at resentencing following the

probation revocation.

If section 9760 applies to the new version of section 9771, the same

analysis would follow. The “time spent in custody” for which credit is due is

Clayborne’s time confined on the probation violation detainer. This custody

time is “a result of” the original PWID charge for which probation had been

imposed because if Clayborne had not committed PWID, he would not have

had probation conditions imposed. As this is a revocation matter, the original

PWID charge is also “the criminal charge for which a prison sentence is

imposed,” i.e., the resentencing upon revocation of probation. The “prison

sentence” against which the credit was due was the “maximum term and any

minimum term” imposed for PWID at resentencing following the probation

revocation.

Thus, we must determine whether section 9760 applies to revised

section 9771. As with prior versions of the statute, the current amended

version of section 9771(b) provides that upon 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.” Compare 42 Pa.C.S. § 9771(b) (effective

until June 10, 2024) with id. (effective June 11, 2024 to Oct. 19, 2025).

This language underpins Johnson’s rationale that there is no significant

distinction between a sentence and a resentence in terms of credit for pretrial

- 57 - J-A18018-25

time served because revocation returns a probationer to the same sentencing

position that he was in at the time of the original conviction. Although

Johnson did not cite this statutory language directly in support of its

rationale, it relied on, inter alia, our Supreme Court’s decision addressing

double jeopardy in Pierce, which was premised upon this language. See

Johnson, 967 A.2d at 1006 (citing Pierce, 441 A.2d at 1220). Pierce

explained that imposing a sentence of total confinement upon revocation of

probation is an integral element of the original conditional sentence, not a

second punishment for the original conviction, because the same section that

authorized a trial court to revoke probation also authorized it to impose the

“same sentencing alternatives that it had at the time of the original

sentencing.” Pierce, 441 A.2d at 1220 (interpreting section 9771(b)’s

predecessor, section 1371(b), and section 9721(a)’s predecessor, section

1321(a)); see also Commonwealth v. Wallace, 870 A.2d 838, 842-43 (Pa.

2005) (citing section 9771 and Pierce for the proposition that “at any

revocation of probation hearing, the court is [] free to impose any sentence

permitted under the Sentencing Code”).

Importantly for our purposes, the restoration of the original sentencing

authority in section 9771(b) was then, as it is now, “statutorily circumscribed”

by the requirement in section 9771(c) that the court make certain findings

before ordering “total confinement following a violation of probation.”

Commonwealth v. Mazzetti, 44 A.3d 58, 66 (Pa. 2012) (quoting prior

- 58 - J-A18018-25

version of 42 Pa.C.S. § 9771(c)(1)-(3)). This remains true in the amended

version of section 9771(b), except that the General Assembly made subsection

(c)’s statutory circumscription of subsection (b) express. See 42 Pa.C.S.

§ 9771(b) (“Subject to the limitations of subsections (b.1) and (c), upon

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.”) (emphasis added).

Although the General Assembly may have further restrained the trial court’s

authority to impose a given sentence, it did not eliminate it. Because section

9771 continues to permit the trial court to impose the same sentencing

alternatives available at the time of the original sentencing proceeding, it must

abide by the Sentencing Code’s subchapters anew when resentencing, as our

Supreme Court recognized in Pierce and Wallace, unless the statutory

provisions specify otherwise. This includes awarding a probationer credit for

time served while incarcerated on a probation detainer pursuant to section

9760.

We do not perceive any ambiguity in section 9771 as it pertains to the

applicability of the Sentencing Code upon resentencing a probationer. To the

extent the wording is in any way ambiguous, however, the law is clear 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);

- 59 - J-A18018-25

see also Green, 291 A.3d at 330 (“In the absence of ambiguity, we cannot

apply the presumptions of Section 1922 of the Statutory Construction Act to

allow for exceptions to [a non-ambiguous] time limit.”). In fact, as our

Supreme Court has observed, it is

[o]ne of the most venerable and fundamental tenets of statutory interpretation [] that, whenever our Court has interpreted the language of a statute, and the General Assembly subsequently amends or reenacts that statute without changing that language, it must be presumed that the General Assembly intends that our Court’s interpretation become part of the subsequent legislative enactment.

Verizon Pennsylvania, Inc. v. Commonwealth, 127 A.3d 745, 757 (Pa.

2015) (citations omitted). The General Assembly was aware of Pierce and

Wallace interpreting the operative language of section 9771(b) as requiring

a court to resentence a defendant pursuant to the provisions of the Sentencing

Code following the revocation of probation. This would necessarily include

credit for time served as required by section 9760. When it enacted Act 44,

that language of section 9771(b) remained unchanged. As such, a probationer

resentenced to a period of incarceration following the revocation of probation

is entitled to credit for time served, if any, pursuant to section 9760.

Unlike the trial court, we do not perceive a conflict between sections

9760(1) and 9771(c)(2)(iv). Section 9760(1) addresses the time credit owed

when imposing a sentence. Section 9771(c)(2)(iv) eliminates “the time

limitations contained in this paragraph,” i.e., the maximum periods of

incarceration for first and second technical offenders, and only “to the extent

- 60 - J-A18018-25

that” up to thirty days are needed for evaluations or to participate in court-

ordered treatment programs or problem-solving courts. Nothing in the plain

language of either section inherently contradicts the other or suggests that

prerevocation time credit is not applicable pursuant to the plain language of

section 9760.

As we discussed in our analysis of Clayborne’s second issue, the

limitation on incarceration for a technical probation violation in Act 44

addresses only who may be incarcerated and the length of a permissible

sentence of incarceration. It does not address or change the probation

officer’s “authority throughout this Commonwealth to arrest, with or without

warrant, writ, rule or process, any person on probation … under the

supervision of the court … for any other violation of that person’s probation….”

42 Pa.C.S. § 9913. Just as we cannot presume that the General Assembly

intended to change prerevocation procedures in Act 44 without explicit

language that it was doing so for purposes of Clayborne’s speedy hearing

analysis, we cannot presume that the General Assembly intended for a

resentencing court to disregard the mandates of section 9760. We are not

empowered to ignore the plain language of sections 9760(1) and 9771(c) in

service of a statute that the trial court believes that the General Assembly

intended to (but did not) write.

Nor do we agree with the trial court’s conclusion that awarding credit for

time served on a probation detainer following a sentence of incarceration for

- 61 - J-A18018-25

a first technical violation is “absurd.” As stated above, there is nothing

ambiguous in the language of section 9771 as it pertains to the applicability

of the Sentencing Code upon resentencing a probationer. See Green, 291

A.3d at 330. Even if there was an ambiguity, what is absurd to the trial court

may not be absurd to our General Assembly, which is tasked with the

consideration and balancing of competing policy considerations. See

Commonwealth v. Peck, 242 A.3d 1274, 1286 (Pa. 2020) (Wecht, J.,

concurring) (“Where the criminal laws are concerned, courts should disabuse

themselves of the notion that a consequence is unintended, and thus ‘absurd,’

merely because it is not maximally punitive. Otherwise, judges may be

tempted to misapply the absurdity doctrine and disregard the plain meaning

of a law in pursuit of its hidden ‘spirit.’”). As Clayborne aptly points out, the

trial court’s absurdity analysis presumes that a probationer will be detained in

every case, but the law does not require pretrial detention for a technical

violation of probation. See Clayborne’s Brief at 61-62.

We therefore conclude that the trial court erred by not awarding credit

against the maximum term and any minimum term imposed for PWID for the

prerevocation time spent in custody as a result of the probation detainer

lodged against Clayborne as he awaited a revocation hearing. Because

Clayborne apparently has served the total confinement portion of his August

9, 2024 resentence, however, this issue appears to be moot. See Phillips,

344 A.3d at 370 n.12 (if an offender has completed his sentence, it “effectively

- 62 - J-A18018-25

bars the lower court from providing relief in the form of the credit for time

served”). While we are able to review his issue because it is capable of

repetition but evading review, and thus presents an exception to the mootness

doctrine, see supra p. 17-18, we are unable to afford him relief. As such, we

are constrained to affirm his judgment of sentence.

Conclusion

In light of Act 44’s amendments to the Sentencing Code, we conclude

that the trial court correctly found that Clayborne’s conduct at Conewago

Snyder constituted “assaultive behavior” such that the trial court permissibly

sentenced him to a period of incarceration for his first technical violation of

probation. Because nothing in the plain language of Act 44 addresses

detainment while awaiting a revocation hearing, we conclude that Clayborne’s

due process right to a hearing at a meaningful time and his right to a speedy

revocation hearing were not violated by conducting the revocation hearing

seventy-nine days after he was detained on a bench warrant. The trial court

erred, however, by failing to award him credit for time served during his

incarceration on the prehearing detainer. As Clayborne appears to have

completed his resentence, the time credit issue is moot. Therefore, we affirm

his judgment of sentence.

Judgment of sentence affirmed.

- 63 - J-A18018-25

Date: 3/27/2026

- 64 -