Com. v. Mack, D.

• Court: Superior Court of Pennsylvania
• Decided: June 4, 2021
• Docket: 1619 EDA 2019
• Status: Unpublished

Opinion

J-S40033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DYSHAWN TYRONE MACK : : Appellant : No. 1619 EDA 2019

Appeal from the Order Entered April 29, 2019 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000775-2018

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JUNE 4, 2021

Appellant, Dyshawn Tyrone Mack, appeals from the judgment of

sentence of three to eight years’ incarceration imposed by the Court of

Common Pleas of Monroe County (trial court) for violation of probation. For

the reasons set forth below, we vacate the judgment of sentence.

On February 17, 2018, Appellant was arrested and charged with

aggravated assault and conspiracy to commit aggravated assault arising out

of a fight in which a person was stabbed. On January 16, 2019, Appellant

entered a negotiated plea to one count of conspiracy to commit aggravated

assault and was sentenced to a period of incarceration of one year, less one

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* Retired Senior Judge assigned to the Superior Court. J-S40033-20

day, to two years, less one day, with credit for time served, followed by five

years’ probation.

On February 12, 2019, the trial court granted Appellant parole effective

February 15, 2019. On February 14, 2019, the day before Appellant was to

be released on parole, Appellant’s cellmate was assaulted by several inmates,

and Appellant was charged with participating in the assault. Following these

charges, the Commonwealth filed a motion to revoke Appellant’s parole and

probation. On April 18, 2019, a preliminary hearing was held on the new

criminal charges and the magisterial district judge bound Appellant over on a

simple assault charge and other misdemeanor charges.

On April 29, 2019, the trial court held a hearing on the Commonwealth’s

motion to revoke parole and probation. At this hearing, Appellant’s counsel

requested that the probation revocation be deferred until after Appellant’s trial

on the new charges. N.T., 4/29/19, at 7, 16, 28-29. Appellant conceded that

the magisterial district judge had found a prima facie case and that he was in

his cell when other inmates came into the cell and assaulted his cellmate, but

contended that he had no involvement in the assault and did not admit that

he was guilty of the charges or that he had committed any crime. Id. at 15-

16, 24-26, 28-31. No witnesses were called to testify at the revocation

hearing and the trial court did not hear any evidence that Appellant

participated in the assault. The trial court denied Appellant’s request to defer

ruling on the probation revocation, revoked Appellant’s parole and probation,

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and sentenced Appellant to three to eight years’ incarceration for the

probation violation to be served consecutive to the remainder of his original

prison sentence. Id. at 15-16, 31-32; Trial Court Sentencing Orders, 4/29/19.

Appellant timely appealed the trial court’s violation of probation

sentence. On December 11, 2019, while this appeal was pending and before

the appeal was briefed,1 a jury acquitted Appellant of all charges in the prison

assault case that was the basis of the trial court’s revocation of Appellant’s

probation. Trial Court Supplemental Statement, 5/7/20, at 2. Appellant

argues that the revocation of his probation and sentence for violation of

probation must be vacated because there was no admission or evidence at the

hearing that he had committed the new crime of which he was accused and

he was acquitted of the new criminal charges. The Commonwealth does not

argue that the revocation of probation and sentence can be upheld; it has not

filed any brief in this appeal. We agree that the trial court erred in finding

that Appellant violated his probation and that its revocation of Appellant’s

probation and sentence must be vacated.

The trial court could revoke Appellant’s probation only upon proof that

Appellant either: 1) violated a specific condition of his probation or 2)

committed a new crime. Commonwealth v. Foster, 214 A.3d 1240, 1243,

1249-51 (Pa. 2019); Commonwealth v. Giliam, 233 A.3d 863, 867 (Pa.

1 Briefing in this appeal was delayed because of issues concerning appointment of counsel for Appellant.

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Super. 2020). The sole ground on which the trial court revoked Appellant’s

probation was the fact that Appellant had been charged with a new crime and

a magisterial district judge had found a prima facie case sufficient to bind

Appellant over for trial on that charge. Trial Court Opinion, 7/19/19, at 3-4,

6; Trial Court Supplemental Statement, 5/7/20, at 1. The fact that a

defendant is charged with a new crime, however, is insufficient to support

revocation of probation absent proof that he committed that crime. Giliam,

233 A.3d at 867-69; Commonwealth v. Sims, 770 A.2d 346, 352 (Pa.

Super. 2001); Commonwealth v. Joe, 649 WDA 2019, unpublished

memorandum at 6-9 (Pa. Super. filed August 11, 2020).2

There was no evidence before the trial court that Appellant had

committed the new crime or violated any other condition of probation.

Appellant denied that he had any involvement in the assault and admitted

only that he had been charged with the crime and that a prima facie case had

found at his preliminary hearing, not that the evidence at the preliminary

hearing was credible. N.T., 4/29/19, at 15-16, 24-26, 28-31. A defendant’s

admission that the Commonwealth has established a prima facie case with

respect to the new criminal charges is not proof that the defendant committed

the crime and is insufficient to support revocation of probation. Sims, 770

2 Unpublished decisions of this Court filed after May 1, 2019, although not precedential, “may be cited for their persuasive value.” Pa.R.A.P. 126(b)(1)- (2); 210 Pa. Code § 65.37(B).

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A.2d at 349-53. While there was a full preliminary hearing with respect to the

new charges against Appellant, the trial court did not review the record from

the preliminary hearing or make any findings based on the evidence at the

preliminary hearing. Because the trial court heard no evidence from which it

could find that Appellant violated his probation, its revocation of his probation

must be vacated.

Moreover, in addition to the utter insufficiency of the evidence at the

revocation of probation hearing, Appellant’s acquittal of the new criminal

charges also requires that the probation revocation be vacated. Where a court

bases revocation of probation solely on new criminal charges against the

defendant and the defendant is subsequently acquitted of those charges, the

finding of a probation violation must be set aside and the probation revocation

and sentence must be vacated. Giliam, 233 A.3d at 869 (vacating probation

violation finding and sentence based solely on new criminal charges, even

though court heard evidence and made finding that defendant had committed

the crimes, because defendant was subsequently acquitted of the charges).

Because there is no basis for the trial court’s finding that Appellant

committed a new crime and no evidence that he violated any specific condition

of his probation, we vacate the trial court’s revocation of Appellant’s probation

and judgment of sentence and remand this case with instructions to reinstate

the original order of probation.

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Judgment of sentence vacated. Case remanded with instructions to

reinstate the original order of probation. Jurisdiction relinquished.

Judge King joins the Memorandum.

Judge Shogan Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/4/21

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