Commonwealth, Aplt. v. Rosario, K.

Opinion

[J-67A-2022, J-67B-2022 and J-67C-2022] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2022 : Appellant : Appeal from the Order of the : Superior Court entered September : 10, 2021 at No. 1271 WDA 2020, v. : Vacating the Order of the Court of : Common Pleas of Washington : County entered August 14, 2020 at KEITH ROSARIO, : No. CP-63-CR-000223-2015 and : remanding. Appellee : : ARGUED: October 26, 2022

COMMONWEALTH OF PENNSYLVANIA, : No. 4 WAP 2022 : Appellant : Appeal from the Order of the : Superior Court entered September : 10, 2021 at No. 1272 WDA 2020, v. : Vacating the Order of the Court of : Common Pleas of Washington : County entered August 14, 2020 at KEITH ROSARIO, : No. CP-63-CR-001543-2013 and : remanding. Appellee : : ARGUED: October 26, 2022

COMMONWEALTH OF PENNSYLVANIA, : No. 5 WAP 2022 : Appellant : Appeal from the Order of the : Superior Court entered September : 10, 2021 at No. 1273 WDA 2020, v. : Vacating the Order of the Court of : Common Pleas of Washington : County entered August 14, 2020 at KEITH ROSARIO, : No. CP-63-CR-001262-2013 and : remanding. Appellee : : ARGUED: October 26, 2022 OPINION

JUSTICE DOUGHERTY DECIDED: MAY 16, 2023 We granted discretionary review to consider the legality of the practice of

anticipatory revocation of probation, which involves the cancellation of a probation

sentence before it begins. As detailed below, we hold the plain language of the statute

governing probation revocation prohibits this practice. Accordingly, we affirm the order

of the Superior Court.

I. On May 4, 2015, Rosario pleaded guilty to carrying a firearm without a license,

delivering crack cocaine, and delivering marijuana. The trial court sentenced him to two

and a half to five years’ imprisonment for the gun conviction, a consecutive term of five

years’ probation for the crack cocaine offense, and one year of probation for the marijuana

conviction to run concurrently with the five-year probation. In May of 2017, Rosario was

paroled. Four months later, on September 5, 2017, while Rosario was still on parole for

his gun conviction but before his probation sentences for his drug crimes began, he

kidnapped a man and shot him in the back of the head. In connection with these new

crimes, the Commonwealth charged him with attempted homicide and related offenses,

and he was held for court.1 Based on the new charges against him, on May 7, 2018, the

trial court revoked Rosario’s parole and probations in the present cases. Thereafter, on

February 21, 2019, the trial court resentenced him to consecutive terms of the balance of

1 A jury subsequently convicted Rosario of attempted homicide, two counts of aggravated assault, two counts of kidnapping, and criminal conspiracy, on June 3, 2019. Following a remand from the Superior Court for resentencing, on March 25, 2022, he was sentenced to an aggregate term of 25 to 50 years’ imprisonment in that separate case.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 2 his two and a half to five-year sentence for carrying a firearm without a license, five to ten

years’ imprisonment for delivering crack cocaine, and five years’ probation for delivering

marijuana. On April 16, 2020, however, the Superior Court vacated the judgment of

sentence and remanded for resentencing. On remand, on August 14, 2020, the trial court

imposed the same consecutive sentences for the gun and crack cocaine convictions but

increased the sentence for delivering marijuana to a consecutive term of two to five years’

imprisonment.

Rosario appealed to the Superior Court, raising two discretionary sentencing

claims. First, he claimed the trial court “did not make any of the required factual findings

[J-67A-2022, J-67B-2022 and J-67C-2022] - 3 pursuant to 42 Pa.C.S. §[§]9721(b)[,2] 9725,[3] and the records of the violation and

sentencing hearings do not support such findings.” Appellant’s Superior Court Brief at

2 Subsections (a) and (b) of section 9721 provide:

(a) General rule.--In determining the sentence to be imposed the court shall, except as provided in subsection (a.1), consider and select one or more of the following alternatives, and may impose them consecutively or concurrently: (1) An order of probation. (2) A determination of guilt without further penalty. (3) Partial confinement. (4) Total confinement. (5) A fine. (6), (7) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.

* * * (b) General standards.--In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with section 9725 (relating to total confinement) and the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating to publication of guidelines for sentencing, resentencing and parole, risk assessment instrument and recommitment ranges following revocation). In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences a person following revocation of probation or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence or resentence outside the guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of guidelines for sentencing), 2154.1 (relating to adoption of guidelines for restrictive conditions), 2154.3 (relating to adoption of guidelines for fines), 2154.4 (relating to adoption of guidelines for resentencing) and 2154.5 (relating to adoption of guidelines for parole) and made effective under section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines to the commission, as established under section 2153(a)(14) (relating to powers and duties). Failure to comply shall be grounds for vacating the sentence or resentence and resentencing the defendant.

42 Pa.C.S. §9721(a),(b) (footnote omitted). 3 Section 9725 provides:

[J-67A-2022, J-67B-2022 and J-67C-2022] - 4 15. Second, he claimed the “sentence was excessive and based upon improper factors.”

Id. at 21. Although Rosario did not also challenge the authority of the trial court to revoke

his parole and probations, the panel addressed this issue sua sponte.4 Initially, the panel

noted that when a maximum sentence is two years or more, authority to grant or revoke

parole is “vested in the Parole Board.” Commonwealth v. Rosario, 1271-1273 WDA 2020,

2021 WL 4129781 at *4 (Pa. Super. Sept. 10, 2021) (unpublished memorandum), quoting

Commonwealth v. Miller, 770 A.2d 362, 363 (Pa. Super. 2001). The panel held that

“[b]ecause [Rosario’s] original maximum sentence [for carrying a firearm without a

license] was five years’ imprisonment, the Parole Board has exclusive jurisdiction over

[his] parole.” Id. at *5. Accordingly, the panel concluded, the trial court’s order revoking

his parole and recommitting him to serve the balance of his sentence was a “nullity” and

“sua sponte vacate[d] th[e] sentence as illegal.” Id.

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

42 Pa.C.S. §9725. 4 An appellate court can raise and address the legality of a sentence sua sponte. See Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020) (“[A]n appellate court can address an appellant’s challenge to the legality of his sentence even if that issue was not preserved in the trial court; indeed, an appellate court may raise and address such an issue sua sponte.”).

[J-67A-2022, J-67B-2022 and J-67C-2022] - 5 Turning to the propriety of the probation revocations, the panel observed the

Superior Court “has affirmed anticipatory revocations of probation[.]” Id., citing

Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999), and Commonwealth v.

Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980). However, the panel noted, the

Superior Court sitting en banc, “recently overruled Wendowski, Ware, and other cases

affirming anticipatory revocations of probation” in Commonwealth v. Simmons, 262 A.3d

512 (Pa. Super. 2021) (en banc). The panel recounted that the Simmons court explained:

No statutory authority exists to support [anticipatory probation revocation]. Rather, the plain language of the relevant statutes provides that: a trial court may only revoke an order of probation “upon proof of the violation of specified conditions of the probation;” the “specified conditions” of an order of probation are attached to, or are a part of, the order of probation; and, when the trial court imposes an “order of probation” consecutively to another term, the entirety of the “order of probation” – including the “specified conditions” – do not begin to commence until the prior term ends. Id., quoting Simmons, 262 A.3d at 524-25.

Here, the panel observed, when the trial court revoked Rosario’s probationary

sentences on May 7, 2018, he was still on parole for the firearm conviction, and had not

yet started serving his terms of probation, which ran consecutively to his gun sentence.

“Under Simmons,” the panel held, “the [trial] court lacked the authority to revoke

[Rosario’s] probationary sentences[.]” Id. at *6. Accordingly, the panel sua sponte

vacated the sentences for the crack cocaine and marijuana convictions, and remanded

to the trial court “to reinstate the original May 4, 2015 orders of probation.” Id. In sum

then, the panel vacated all three sentences, and ordered reimposition of the original

orders of probation for the drug offenses.

II.

This Court granted the Commonwealth’s petition for allowance of appeal, which

raised two questions: “(1) Did the Superior Court err and abuse its discretion and

[J-67A-2022, J-67B-2022 and J-67C-2022] - 6 misapprehend and ignore or misapply the doctrine of stare decisis in its Simmons

decision by overturning over 40 years of case law permitting the revocation of consecutive

probation sentences not yet commenced where there has been a substantive violation

and conviction in a new case?” and “(2) Did the Superior Court abuse its discretion and

misapprehend and misapply the statutory authority it cited in Simmons, which statutes do

not clearly and unambiguously speak to or demand the result of prohibiting violation of

probation sentences that have not yet commenced when a substantive violation has

occurred?” Commonwealth v. Rosario, 271 A.3d 1285 (Pa. 2022) (per curiam). The issue

of whether the anticipatory revocation of probation is permitted under Pennsylvania law

is a question of law. Accordingly, our standard of review is de novo and our scope of

review is plenary. See, e.g., Pennsylvania Environmental Defense Foundation v.

Commonwealth, 279 A.3d 1194, 1202 (Pa. 2022).

The Commonwealth argues the panel should be reversed, and trial courts should

be allowed to revoke probation sentences before they begin. It contends the en banc

Superior Court panel in Simmons erred in overruling the panel decisions in Wendowski

and its progeny upholding anticipatory probation revocation. It asserts “overruling a prior

precedent requires the consultation of a number of factors: the quality of the precedent’s

reasoning, the workability of the rule it established, its consistency with other related

decisions, the reliance on the decision, and the age of the decision.” Commonwealth’s

Brief at 15. Yet, the Commonwealth claims, Simmons “undertook no independent

analysis” of these factors and instead overruled the extant line of precedent in “conclusory

fashion.” Id. at 16. In the Commonwealth’s view, these considerations call for adherence

to Wendowski and the decisions following it. With respect to the quality of the reasoning

of these cases, the Commonwealth maintains “mischief would ensue if criminals could

commit crimes with impunity knowing that their probationary sentence was not subject to

[J-67A-2022, J-67B-2022 and J-67C-2022] - 7 being revoked and they were not subject to being resentenced for committing new

crimes.” Id. at 16. The Commonwealth additionally contends the rule established by

these precedents is workable given that the General Assembly has repeatedly amended

the probation-related statutes of 42 Pa.C.S. §9754,5 and 42 Pa.C.S. §9771,6 yet “never

5 Section 9754 provides:

(a) General rule.--In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision. The court shall consider probation guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of guidelines for sentencing) and 2154.1 (relating to adoption of guidelines for restrictive conditions).

(b) Conditions generally.--The court shall attach reasonable conditions authorized by section 9763 (relating to conditions of probation) as it deems necessary to ensure or assist the defendant in leading a law-abiding life.

(c) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.

(d) Sentence following violation of probation.--The sentence to be imposed in the event of the violation of a condition shall not be fixed prior to a finding on the record that a violation has occurred.

42 Pa.C.S. §9754. 6 Section 9771 provides:

(a) General rule.--The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.

(b) Revocation.--The court may increase the conditions, impose a brief sanction under section 9771.1 (relating to court-imposed sanctions for violating probation) or revoke an order of probation upon proof of the violation of specified conditions of the probation. 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. The attorney for the Commonwealth may file notice at any time prior to resentencing of the Commonwealth’s intention to proceed under an applicable provision of law requiring a mandatory minimum sentence.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 8 made a change in the language that would negate or express any disagreement with, let

alone call into question, Wendowski or its progeny.” Id. at 17. The Commonwealth posits

Wendowski is consistent with this Court’s decisions in Commonwealth v. Foster, 214 A.3d

1240 (Pa. 2019), and Commonwealth v. Vivian, 231 A.2d 301 (Pa. 1967). It also argues

appellate courts, trial courts, and parties have long relied on this decision. It emphasizes

“the Superior Court’s line of precedent runs from Wendowski in 1980 up until Simmons in

August 2021[,]” a period of over forty years. Id. at 18. In addition to faulting Simmons for

“conduct[ing] no stare decisis analysis[,]” the Commonwealth warns that under this

decision, “a parolee like Rosario could commit innumerable new crimes (and be convicted

for them) while on the parole portion of a sentence and face no more punishment than

revocation of his parole.” Id. at 19-20.

The Commonwealth also argues Simmons “misapplied” 42 Pa.C.S. §9721, as well

as sections 9754 and 9771. Id. at 21. It notes there is no language in sections 9721 or

9754 restricting resentencing, and section 9771 does not “plainly and explicitly prohibit

the revocation of consecutive probation sentences.” Id. at 24. A sentence of probation,

the Commonwealth advocates, is conditional by its very nature, and the general condition

(c) Limitation on sentence of total confinement.--The court shall not impose a sentence of total confinement upon revocation unless it finds that: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court.

(d) Hearing required.--There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.

42 Pa.C.S. §9771.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 9 that the defendant refrain from committing new crimes attaches at the time the sentence

is imposed. It insists section 9771 “reads no differently[,]” and concluding otherwise

“incorrectly place[s] language into that clear and unambiguous statute.” Id. at 27.

Furthermore, it contends the occasion and necessity for these statutes was “the

punishment and rehabilitation of offenders, which is undermined by the Simmons court’s

opinion . . . essentially giving a free pass to those who reoffend and are convicted of new

offenses[.]” Id. at 29.

Amicus curiae the Pennsylvania District Attorneys Association (PDAA) joins the

Commonwealth in arguing for reversal. The PDAA submits the panel erred in relying on

Simmons because Simmons misapplied the rules of statutory construction. Amicus

asserts the requirement that a defendant must be currently serving probation in order to

have his probation revoked “effectively add[s]” language to section 9771, and “is directly

contradictory to the accepted interpretation and practice created in 1980 in . . .

Wendowski, to which our legislature acquiesced.” Amicus Brief at 13. Moreover, the

PDAA criticizes Simmons for “fail[ing] to properly acknowledge and apply the doctrine of

stare decisis.” Id. at 14. It claims the en banc panel in Simmons simply disagreed with

Wendowski and its progeny, which was “insufficient to overcome the doctrine of stare

decisis and 40 years of precedent.” Id. at 18. The PDAA insists Simmons will permit

defendants to “violate the law with impunity” until their probationary terms begin. Id. In

addition, amicus argues “Simmons significantly limits the sentencing options available to

lower courts” because “[w]ithout the ability to violate a consecutive probation sentence, .

. . if a court believes that a state sentence[7] might be warranted, the[ ] only option

available is to impose a state sentence and afford no opportunity for defendants to

demonstrate that they can be compliant with a lesser level of supervision.” Id. at 19.

7Generally, terms of incarceration of two years or more are served in state prison. See 42 Pa.C.S. §9762(b).

[J-67A-2022, J-67B-2022 and J-67C-2022] - 10 Lastly, the PDAA asserts a “multitude” of sentences “were constructed with the

Wendowski decision as the guiding principle.” Id.

In response, Rosario argues for affirmance of the panel’s decision applying

Simmons. He asserts the Simmons court was not bound by stare decisis because it was

sitting en banc, whereas Wendowski and its follow-on precedents were decisions by

three-judge panels. He notes it is well settled that the Superior Court, sitting en banc,

may overrule a decision of a three-judge panel of that court. Moreover, Rosario contends,

since this Court’s standard of review in assessing the legality of the anticipatory

revocation of probation is de novo, “any assessment concerning the propriety of the

intermediate court’s failure to follow its own precedent on that issue is immaterial.”

Appellee’s Brief at 11, quoting McGrath v. Bureau of Professional and Occupational

Affairs, 173 A.3d 656, 661 n.7 (Pa. 2017). He rejects the policy assertion of the

Commonwealth and PDAA that disallowing anticipatory revocation will “open the gates to

anti-social conduct that can be committed with impunity, with criminals knowing nothing

will happen to them.” Id. at 13. On the contrary, Rosario contends, a defendant who

commits a new crime while on parole is subject not only to revocation of his parole and

recommitment to serve his backtime, but also a separate sentence for his new offense if

he is convicted.

Furthermore, Rosario maintains the “plain and unambiguous language” of section

9721 and “related statutes” make “clear that a defendant can be revoked for violating

conduct only while he is on probation, and not before he is serving the consecutively

imposed term.” Id. at 16. He notes section 9721(a) provides that an order of probation

may be imposed consecutively or concurrently, not both. However, he argues, “[i]f a

judge considers conduct in violation of parole to also be a violation of probation of a

consecutively imposed term of probation that has not yet begun, and revokes that

[J-67A-2022, J-67B-2022 and J-67C-2022] - 11 probation, in effect the consecutively imposed term of probation has been impermissibly

modified to be a concurrent term of probation under Section 9721(a).” Id. at 18. Rosario

claims as well that anticipatory revocation “effectively lengthens the term of probation

beyond the stated consecutive term,” and thus violates the mandate of section 9754(a)

that probation shall be ordered for a fixed period of time. Id. at 19. He emphasizes

revocation is “conspicuously absent” from the actions a court may take at any time with

respect to probation identified in section 9771(a). Id. at 22. He asserts section 9771(d)

specifies there shall be no probation revocation except after a hearing considering the

defendant’s conduct while on probation, and the word “‘while’ . . . normally means ‘during

the time[.]’” Id. at 23, quoting In re Naugle’s Estate, 112 A. 24, 25 (Pa. 1920). Because

the plain language of the statutes does not permit anticipatory revocation, Rosario

advances, the doctrine of legislative acquiescence cannot support this procedure,

especially considering that penal statutes must be strictly construed.

III.

In this and most cases, section 9771 of the Sentencing Code, 42 Pa.C.S. §9771,

governs the revocation of probation. See Foster, 214 A.3d at 1246-47 (“[S]ection 9771 .

. . governs revocation of probation[.]”).8 Our construction of section 9771, as with any

statute, is guided by the Statutory Construction Act. See 1 Pa.C.S. §§1501-1991. Under

the Act, “[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 a statute generally provides the best indication of legislative intent.”

Commonwealth v. Lehman, 243 A.3d 7, 16 (Pa. 2020). “When the words of a statute are

8Under 42 Pa.C.S. §9771.1, “the court of common pleas of a judicial district may establish a program to impose swift, predictable and brief sanctions on persons who violate their probation.” 42 Pa.C.S §9771.1(a). Following a third violation of probation under such a program, a court may revoke the order of probation. See 42 Pa.C.S. §9771.1(i)(1). Section 9771.1 is not implicated here.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 12 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). In ascertaining the plain meaning, “we

consider the statutory language at issue not in isolation, but in the context in which it

appears.” Commonwealth by Shapiro v. Golden Gate National Senior Care LLC, 194

A.3d 1010, 1027 (Pa. 2018). In addition, words and phrases are construed according to

rules of grammar and according to their common and approved usage, except for

technical words and phrases and those that have acquired a peculiar and appropriate

meaning or are specifically defined. See 1 Pa.C.S. §1903(a). “Only when the words of

a statute are not explicit will we resort to other considerations to discern legislative intent.”

Commonwealth v. Janssen Pharmaceutica, Inc., 8 A.3d 267, 275 (Pa. 2010); see also

Commonwealth v. Cousins, 212 A.3d 34, 39 (Pa. 2019) (“We will only look beyond the

plain meaning of the statute where the words of the statute are unclear or ambiguous.”),

quoting Commonwealth v. Ramos, 83 A.3d 86, 91 (Pa. 2013).

The plain language of section 9771, which is set forth supra in footnote 6, reflects

the legislative intent to permit the revocation of probation only after the relevant

probationary term has begun.9 Subsection (a) lists but three actions concerning probation

a court may take “at any time”: terminate continued supervision, lessen the conditions of

probation, and increase the conditions of probation upon a finding of an identifiable threat

to public safety. 42 Pa.C.S. §9771(a). Tellingly, subsection (a) does not include the

revocation of probation as something the court may do “at any time.” The implication of

this omission is that revocation cannot be ordered at any time but rather is subject to

temporal limitations, i.e., revocation is permissible solely during the term of the probation

9 The General Assembly amended section 9771 in 2019, following the revocation of Rosario’s probations in 2018. The language of section 9771 foreclosing anticipatory probation revocation appears in both the pre- and post-amendment versions of the statute.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 13 itself. See Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) (“Under the doctrine

of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute

implies the exclusion of other matters.”) (internal quotation and citation omitted).10

Moreover, subsection (b) states the court may “revoke an order of probation upon

proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b)

(emphasis added). That is, only a violation of the probation itself may trigger revocation,

not a violation of the probation order before the probation term has started. Had the

legislature intended a violation of the conditions of the order of probation to be sufficient

for revocation, it would have said so, and the pertinent language of subsection (b) would

instead permit revocation upon proof of the violation of specified conditions of the order

of probation. See Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (“[A]s a matter

of statutory interpretation, although one is admonished to listen attentively to what a

10 The dissent argues “the reason revocation cannot occur ‘at any time’ is not a temporal limitation, but the hearing requirement.” Dissenting Opinion at 8. On the contrary, as with revocation, a hearing is required before the court can increase the conditions of probation. See 42 Pa.C.S. §9771(d) (“There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation.”) (emphasis added). Section 9771(d), by its broad terms, applies to all increases in the conditions of probation without limitation, including increases premised on an identifiable threat to public safety. Yet section 9771(a) explicitly permits such increases based on a safety threat to occur at any time. See 42 Pa.C.S. §9771(a) (“The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.”) (emphasis added). Thus, inclusion in section 9771(d)’s hearing requirement does not dictate exclusion from section 9771(a). The reason revocation was omitted from section 9771(a)’s list of procedures that can occur at any time was not because of the hearing requirement in section 9771(d), but because it was the legislature’s intent to permit revocation only during the probationary term and not before it begins.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 14 statute says[;][o]ne must also listen attentively to what it does not say.”), quoting Kmonk–

Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001).11

Also, subsection (b) requires the court resentencing a defendant following

revocation of probation to give “due consideration . . . to the time spent serving the order

of probation.” 42 Pa.C.S. §9771(b) (emphasis added). Yet, if the probationary term has

not even commenced, then no time at all has been spent serving the probation sentence.

A probation sentence does not commence from the date of imposition if the sentencing

court has expressly ordered otherwise. See Pa.R.Crim.P. 705. The requirement to

consider in resentencing the time spent serving the probation sentence is incompatible

with anticipatory probation revocation.12

11 The dissent asserts “the legislature could have just as easily had the revocation statute require proof of the violation of specified conditions while on probation.” Dissenting Opinion at 6 n.5 (emphasis in original). However, adding this language would have been redundant. The legislature’s pointed use of the phrase “the probation” instead of the phrase “order of probation” employed earlier in the same sentence indicates it did not mean for these phrases to have identical meanings. Had the legislature intended a violation of the order of probation to suffice for revocation, it would have simply repeated this phrase. Instead, the legislature used a different phrase – “the probation” – indicating its intent to require a violation of the actual probation sentence rather than the mere order of probation. See Commonwealth v. Elliott, 50 A.3d 1284, 1290 (Pa. 2012) (“[W]hen the legislature uses . . . different words, we must . . . presume that ‘it must have meant for the words to have separate meanings.’”), quoting Drabic v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 906 A.2d 1153, 1157 (Pa. 2006); see also Probation, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “probation” as “[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison, usu. on condition of routinely checking in with a probation officer over a specified period of time” and “[t]he period of time during which a sentence of probation is in effect”). 12 The dissent proposes that “when a defendant violates the terms of probation prior to the start of the probationary period, the court simply must consider the fact that the defendant spent no time serving the order of probation when deciding the appropriate revocation sentence.” Dissenting Opinion at 8 n.7. But the plain language of section 9771(b) does not contemplate a circumstance where the defendant has spent no time at all serving his probation sentence. This provision does not call for consideration of any time spent serving probation. Nor does it require the court to consider the time spent

[J-67A-2022, J-67B-2022 and J-67C-2022] - 15 Furthermore, subsection (d) provides: “[t]here shall be no revocation” of probation

“except after a hearing at which the court shall consider . . . evidence of the conduct of

the defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added). The word

“shall” commonly connotes a mandatory requirement. See Chanceford Aviation

Properties, L.L.P. v. Chanceford Tp. Bd. of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007)

(“The word ‘shall’ by definition is mandatory, and it is generally applied as such.”). In

addition, when used as a conjunction as it is here, “while” generally means “during the

time.” See Naugle’s Estate, 112 A. at 25 (“The word ‘while,’ as shown by the dictionaries,

normally means ‘during the time[.]’”). Thus, under the express terms of subsection (d),

the court cannot revoke probation unless the court has considered the defendant’s

conduct during the time he was serving probation. An assessment of the defendant’s

conduct while on probation, however, is possible only if the probationary term has in fact

actually begun. If the probation has not commenced, then perforce there is no conduct

of the defendant while on probation for the court to consider. In other words, in the

anticipatory revocation context, the statutory mandate to consider the defendant’s

conduct on probation is impossible to satisfy. In this way, subsection (d) limits the

revocation of probation to the cancellation of probationary terms currently being served,

and forecloses the anticipatory revocation of probation sentences yet to begin. 13 The

serving the probationary sentence, if any. Rather, subsection (b) obliges the court to consider the time spent on probation. It presumes a situation where the defendant has actually spent time serving the probationary term, and does not envisage anticipatory revocation where there is no such time. 13The dissent maintains section 9771(d) “does not prevent the court from considering the conduct of the defendant prior to the term of probation.” Dissenting Opinion at 8. That may be, but whatever discretion the court has to consider pre-term-of-probation conduct would not eliminate the requirement to consider the defendant’s conduct during the term of probation itself. This statutory obligation cannot be fulfilled in the anticipatory revocation context. The dissent also alleges “subsection (d) does not foreclose revocation prior to the start of the probationary term, there is simply no ‘conduct of the

[J-67A-2022, J-67B-2022 and J-67C-2022] - 16 plain text of section 9771 clearly (and repeatedly) prohibits the anticipatory revocation of

probation.

Although we conclude the clear language of section 9771 explicitly forbids

anticipatory probation revocation, any hypothetical ambiguity in this regard is clarified by

consideration of statutes in pari materia and the rule of lenity. “Statutes or parts of

statutes are in pari materia when they relate to the same persons or things or to the same

class of persons or things.” 1 Pa.C.S. §1932(a). “Statutes in pari materia shall be

construed together, if possible, as one statute.” 1 Pa.C.S. §1932(b). “It must not be

overlooked that the rule requiring statutes in pari materia to be construed together is only

a rule of construction to be applied as an aid in determining the meaning of a doubtful

statute, and that it cannot be invoked where the language of a statute is clear and

unambiguous.” In re McFarland’s Estate, 105 A.2d 92, 95-96 (Pa. 1954); see also

Goodwin v. Goodwin, 280 A.3d 937, 948 n.7 (Pa. 2022) (“[T]he rule requiring in pari

materia construction of statutes applies in instances of ambiguous statutory language.”).

Like section 9771, other statutes relating to probation also include language inconsistent

with the anticipatory revocation of probation.

To wit, section 9721(a) authorizes the court to impose a sentence of probation

“consecutively or concurrently[.]” 42 Pa.C.S. §9721(a) (emphasis added). The word “or”

is disjunctive and “means one or the other of two or more alternatives.” In re Paulmier,

937 A.2d 364, 373 (Pa. 2007). Accordingly, section 9721(a) permits a probation sentence

defendant while on probation’ for the court to consider at that time.” Id. at 8, quoting 42 Pa.C.S. §9771(d). This ignores the mandatory nature of section 9771(d). This provision does not say the revocation court may consider the defendant’s conduct while on probation, or that it is permissible for the court to do so. Again, the statute states in no uncertain terms that “the court shall consider the . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added). Section 9771(d) sets forth a compulsory obligation to consider the defendant’s conduct on probation. The revocation court has no discretion to opt out of this obligatory consideration, either because probation has not yet started or for any other reason.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 17 that is either consecutive or concurrent to one or more other sentences, not consecutive

and concurrent. Yet when, as here, the court anticipatorily revokes a consecutive

probationary term for a violation of a separate sentence the defendant is currently serving,

the probation sentence is effectively both concurrent and consecutive, in contravention

of the plain language of section 9721(a).

Moreover, section 9754(a) mandates: “[i]n imposing an order of probation the court

shall specify at the time of sentencing the length of any term during which the defendant

is to be supervised[.]” 42 Pa.C.S. §9754(a). This language requires the imposition of

probation for a fixed period of time. Revoking probation before it starts effectively

lengthens the term of probation beyond the fixed term specified at sentencing. Similarly,

the court is statutorily required to “specify at the time of sentencing . . . the length of the

term of restrictive conditions” of probation. 42 Pa.C.S. §9763(a).14 Thus, like section

9754, section 9763 envisions a definite probation sentencing scheme. In tension with

these statutes, anticipatory revocation provides for an indefinite regime whereby the

probationary term is not necessarily confined to a fixed period of time beginning on a date

certain.

Finally, “[u]nder the rule of lenity, when a penal statute is ambiguous, it must be

strictly construed in favor of the defendant.” Cousins, 212 A.3d at 39; see also 1 Pa.C.S.

14 The full text of subsection 9763(a) provides:

(a) General rule.--In imposing probation, the court shall consider guidelines adopted by the Pennsylvania Commission on Sentencing under section 2154 (relating to adoption of guidelines for sentencing) or 2154.1 (relating to adoption of guidelines for restrictive conditions) and specify at the time of sentencing the conditions of probation, including the length of the term of restrictive conditions under subsection (c) or (d). The term of restrictive conditions under subsection (c) shall be equal to or greater than the mandatory minimum term of imprisonment required by statute.

42 Pa.C.S. §9763(a).

[J-67A-2022, J-67B-2022 and J-67C-2022] - 18 §1928(b)(1). “[T]he rule of lenity has its limits, as it ‘does not require that the words of a

penal statute be given their narrowest possible meaning or that legislative intent be

disregarded.’” Commonwealth v. Nevels, 235 A.3d 1101, 1105 (Pa. 2020), quoting

Commonwealth v. Packer, 798 A.2d 192, 196 (Pa. 2002). Moreover, “the rule applies if

at the end of the process of construing what [the legislature] has expressed, there is a

grievous ambiguity or uncertainty in the statute[.]” Shaw v. United States, 580 U.S. 63,

71 (2016) (internal quotations and citations omitted). Undoubtedly, section 9771 is a

penal statute. See Nesbit v. Clark, 116 A. 404, 406 (Pa. 1922) (“A penal statute is one

which imposes a penalty or forfeiture for transgressing its provisions, or for doing a thing

prohibited[.]”). Hence, to the extent section 9771 remains, after exhausting all other tools

of statutory interpretation, hopelessly ambiguous as to whether it authorizes the

anticipatory revocation of a probation, the rule of lenity calls for the conclusion it does not.

Pursuant to the plain meaning of section 9771, as confirmed by the in pari materia

doctrine and rule of lenity, defendants may not be preemptively penalized for violating

probation sentences they have not yet even begun to serve.

The arguments of the dissent, Commonwealth, and amicus do not persuade us

otherwise. The dissent’s reliance on Commonwealth v. Nicely, 638 A.2d 213 (Pa. 1994)

is misplaced. In Nicely, the appellees were ordered to pay additional supervision fees

while they were serving their probation sentences. See id. at 215. Thus, Nicely involved

the modification of conditions of probationary sentences currently being served, which,

as the Court there specifically noted, see id. at 217, is permitted under 42 Pa.C.S.

§9771(a). Nicely did not involve, much less endorse, the revocation of probation before

it starts.

The dissent’s citation to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) also

misses the mark. Kates predated the promulgation of section 9771, which was enacted

[J-67A-2022, J-67B-2022 and J-67C-2022] - 19 in 1974 as 18 Pa.C.S. §1371 and renumbered section 9771 in 1980. Moreover, each of

the defendants in Kates were serving their probation sentences when they were arrested

for new offenses. See Kates, 305 A.2d at 703-04. Hence, as in Nicely, there was no

cause for the Kates Court to even consider the propriety of anticipatory probation

revocation, let alone endorse this procedure.15

Contrary to the Commonwealth’s assertion, Vivian does not support construing

section 9771 to permit the anticipatory revocation of probation. Like Kates, Vivian also

predates the enactment of section 9771. In addition, while the facts of Vivian involved

the anticipatory revocation of probationary sentences, the defendant in that case did not

challenge the propriety of revoking probation before it begins. Instead, Vivian claimed

the trial court violated double jeopardy by changing his probation sentences to terms of

imprisonment. See Vivian, 231 A.2d at 305 (“It is now asserted that the prison sentences

imposed on February 23, 1966, modifying the court order of probation on February 14,

1966, violated due process and constituted double jeopardy in violation of the provisions

of Article 1, s 10 of the Pennsylvania Constitution, P.S., and the Fifth Amendment to the

United States Constitution.”). The Vivian Court held “the trial court in its discretion had

the right to change its order of probation and impose a prison sentence without violating

the proscription against double jeopardy included in the Fifth Amendment to the United

States Constitution[.]” Id. at 306 (internal citation omitted). Because it was not at issue

in the case, Vivian said nothing at all regarding the legality of anticipatory probation

revocation. When an issue is “not . . . raised in briefs or argument nor discussed in the

opinion of the Court . . . , the case is not a binding precedent on this point.” United States

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).

15 Indeed, the dissent acknowledges “it is obvious” Nicely and Kates do not “decide today’s issue.” Dissenting Opinion at 5 n.3.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 20 The Commonwealth’s dependence on Foster is also unavailing. Foster involved

the question of “what constitutes a permissible basis for a court to find an individual in

violation of probation” under section 9771. Foster, 214 A.3d at 1243. That is, Foster

concerned what may justify the revocation of probation, not when revocation may be

ordered. Ultimately, this Court held “a court may find a defendant in violation of probation

only if the defendant has violated one of the ‘specific conditions’ of probation included in

the probation order or has committed a new crime.” Id. at 1250. Thus, “the question of

anticipatory revocation was not before the Foster Court[,]” Simmons, 262 A.3d at 538

(Bowes, J., concurring and dissenting), and the Court offered no view on this distinct

issue. While acknowledging “the statute at issue” is section 9771, Dissenting Opinion at

2, the dissent nevertheless insists sections 9754(b) and 9763(b) “make clear that the

conditions of probation are not limited to the probationary term,” id. at 6. To the contrary,

as noted, see supra n. 5, section 9754(b) simply provides: “The court shall attach

reasonable conditions authorized by section 9763 (relating to conditions of probation) as

it deems necessary to ensure or assist the defendant in leading a law-abiding life.” 42

Pa.C.S. §9754(b). Section 9763(b), in turn, states: “The court may attach any of the

following conditions upon the defendant as it deems necessary[,]” and then specifies the

conditions. 42 Pa.C.S. 9763(b).16 These statutes concern what conditions may be

16 The conditions are:

(1) To meet family responsibilities. (2) To be devoted to a specific occupation, employment or education initiative. (3) To participate in a public or nonprofit community service program. (4) To undergo individual or family counseling.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 21 imposed on probation, i.e., “reasonable conditions” that the trial court “deems necessary,”

not when these conditions apply. They do not mandate, “clear[ly]” or otherwise, that the

conditions immediately spring into existence when the court enters an order of probation.

Indeed, for many defendants, like Rosario, who are sentenced to a term of imprisonment

followed by a consecutive period of probation, it would be impossible to comply straight

away upon sentencing with all of the conditions noted in section 9763(b). For instance, it

is not possible for an incarcerated defendant to attend or reside in a rehabilitative facility

or other intermediate punishment program, or to report to the court or a designated

person.17

(5) To undergo available medical or psychiatric treatment or to enter and remain in a specified institution, when required for that purpose. (6) To attend educational or vocational training programs. (7) To attend or reside in a rehabilitative facility or other intermediate punishment program. (8) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective. (9) To not possess a firearm or other dangerous weapon unless granted written permission. (10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount and on a schedule that the defendant can afford to pay, for the loss or damage caused by the crime. (11) To be subject to intensive supervision while remaining within the jurisdiction of the court and to notify the court or designated person of any change in address or employment. (12) To report as directed to the court or the designated person and to permit the designated person to visit the defendant’s home. (13) To pay a fine. (14) To participate in drug or alcohol screening and treatment programs, including outpatient programs. (15) To do other things reasonably related to rehabilitation. (16), (17) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.

42 Pa.C.S. §9763(b).

The dissent contends the existence of “an impossible condition” of probation “does not 17

make all other possible conditions . . . a nullity until every condition is possible.”

[J-67A-2022, J-67B-2022 and J-67C-2022] - 22 The Commonwealth and amicus are wrong to suggest the en banc panel majority

in Simmons was bound by stare decisis. “[A]n en banc panel of an intermediate court is

authorized to overrule a three-judge panel decision of the same court.” McGrath, 173

A.3d at 661 n.7. In any event, “any purported failure on the part of the Superior Court . .

. to follow its own precedent is immaterial to our de novo resolution of the legal issue

presented.” Commonwealth v. Smith, 186 A.3d 397, 401 n.6 (Pa. 2018); see also

McGrath, 173 A.3d at 661 n.7 (“[W]here, as here, this Court undertakes de novo resolution

of a legal issue, any assessment concerning the propriety of the intermediate court’s

failure to follow its own precedent on that issue is immaterial.”).

The Commonwealth’s championing of Wendowski, and the line of three-judge

Superior Court panel decisions following it,18 is unconvincing. These decisions do not, of

course, bind this Court any more than they bound the en banc panel in Simmons. See In

re Estate of duPont, 2 A.3d 516, 524 (Pa. 2010) (“[T]his Court is not bound by the Superior

Court’s holdings[.]”). Nor are they persuasive. Wendowski did not even acknowledge

what was then section 1371, much less explicate how this statute authorized anticipatory

probation revocation. It is axiomatic, and should hardly need reiteration, that proper

Dissenting Opinion at 6-7 n.5. We agree a condition of probation may be operative even though compliance with one or more other conditions is not possible. But this hardly means the conditions of probation apply immediately upon the issuance of the sentencing order even before the probation itself has actually started. And, to be sure, this conclusion finds no support in the text of either section 9754(b) or section 9763(b), which concern the substance, not the timing, of probation conditions. 18See Commonwealth v. Mitchell, 955 A.2d 433 (Pa. Super. 2008); Commonwealth v. Hoover, 909 A.2d 321 (Pa. Super. 2006); Commonwealth v. Castro, 856 A.2d 178 (Pa. Super. 2004); Ware, 737 A.2d 251; Commonwealth v. Miller, 516 A.2d 1263 (Pa. Super. 1986); Commonwealth v. Dickens, 475 A.2d 141 (Pa. Super. 1984).

[J-67A-2022, J-67B-2022 and J-67C-2022] - 23 disposition of a legal question governed by a statute requires analysis of said statute. In

lieu of the appropriate statutory analysis, the panel instead principally relied on

nonbinding decisions from other jurisdictions not involving section 1371. See Wendowski,

420 A.2d at 630. Moreover, as discussed, the single Pennsylvania case cited by the

Wendowski panel, Vivian, does not support its holding.

In Dickens, the panel reasoned “the decision in Wendowski is not contrary to

statutory law in Pennsylvania” because the provision of “42 Pa.C.S. §9771(b), which

authorize[s] a court to ‘revoke an order of probation upon proof of the violation of specified

conditions of the probation,’ do[es] not prevent revocation for violation of a condition which

occurs prior to the specific probation being revoked.” Dickens, 475 A.2d at 144, quoting

42 Pa.C.S. §9771(b). On the contrary, as discussed, in specifying there must be a

violation of the “probation” itself, as opposed to the “order of probation,” before probation

may be revoked, this language does indeed foreclose anticipatory revocation. In any

case, other language in section 9771 – the pointed omission of revocation from

subsection (a)’s enumeration of court actions which may be taken at “any time,” the

requirement in subsection (b) of court consideration of the defendant’s time spent serving

probation, the mandate in subsection (d) for court consideration of the defendant’s

conduct while on probation – clearly precludes the anticipatory revocation of probation.

The Miller panel rejected the argument Wendowski and Dickens “should be re-

examined in light of 42 Pa.C.S. §9771(d)” because “[t]he purpose of this section of the

statute is to require a hearing before a court revokes probation.” Miller, 516 A.2d at 1265.

But our rules of statutory construction forbid disregarding the clear language of a statute

under the pretext of pursuing its “spirit,” or purpose. See 1 Pa.C.S. §1921(b). Again, the

[J-67A-2022, J-67B-2022 and J-67C-2022] - 24 plain text of subsection (d) obliges the revocation court to consider “evidence of the

conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added).

There cannot be such evidence unless and until the probationary term has actually

commenced.

The remaining decisions in the Wendowski line offer no fresh analysis, but rather

simply rely on prior flawed precedent. Specifically, Ware relies on Wendowski and

Dickens, see Ware, 737 A.2d at 253-54; Castro relies on Ware, see Castro, 856 A.2d at

180 n.1; Hoover relies on Miller and Wendowski, see Hoover, 909 A.2d at 323; and

Mitchell relies on Miller and Hoover, see Mitchell, 955 A.2d at 435 n.2.

It is true, as the dissent, Commonwealth, and amicus each emphasize, that since

Wendowski, the legislature has renumbered and amended section 9771 without

materially changing the statute, but we do not presume legislative acquiescence in

anticipatory revocation. The rules of statutory construction call for the presumption “[t]hat

when a court of last resort has construed the language used in a statute, the General

Assembly in subsequent statutes on the same subject matter intends the same

construction to be placed upon such language.” 1 Pa.C.S. §1922(4). Importantly,

however, this presumption, like any consideration beyond the statutory text, is operative

only when the statute is unclear or ambiguous. See Commonwealth v. Dickson, 918 A.2d

95, 108 n.15 (Pa. 2007) (plurality) (Ҥ 1922(4) . . . speak[s] to one of several means by

which we discern legislative intent when the language in question is less than

conclusive.”). Where, as here, “the legislative intent [is] manifest in its most trustworthy

source, the statutory language, we cannot simply fall back on an attenuated assertion of

sub silentio legislative acquiescence[.]” Id. at 101.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 25 The dissent “agree[s] that the plain language of the statute controls[,but] assuming

arguendo that the language of the statute is ambiguous, . . . cannot imagine a more

definitive example of legislative acquiescence than here.” Dissenting Opinion at 10. This

overstates things considerably. Again, by its express terms, section 1922(4) is limited to

decisions by the “court of last resort.” 1 Pa.C.S. §1922(4). The court of last resort in

Pennsylvania is, of course, the Pennsylvania Supreme Court. Thus, the “definitive”

example of legislative acquiescence would be legislative silence in response to a series

of decisions by this Court. Here, on the other hand, the Wendowski line of cases consists

exclusively of three-Judge panel decisions of the Superior Court; this Court has never

once endorsed anticipatory revocation. We acknowledge this Court’s decision years ago

endorsing an extension of the presumption of legislative acquiescence to Superior Court

decisions. See In re Estate of Lock, 244 A.2d 677, 682-83 (Pa. 1968). Yet extending

section 1922(4) beyond its terms to Superior Court cases pivots on the questionable

notion that this Court’s determination not to review a case reflects its endorsement of the

panel’s decision. This Court, however, may deny allowance of appeal for reasons wholly

unrelated to its agreement with the outcome below. See Dickson, 918 A.2d at 107 n.14

(“A denial [of allocatur] may merely reflect that the particular controversy was not the

proper vehicle for deciding a question of law or that it was not presented in the proper

posture.”) (internal citation and quotation omitted; brackets in original). While permissible

under Lock,19 a presumption based solely on Superior Court case law is far from

19Although Lock has not been overruled, and we decline to do so here since we did not grant allowance of appeal on the question and the abrogation of Lock is not addressed in the briefing, we nonetheless note, as we have previously, that there are “valid concerns regarding the soundness of” this decision, Dickson, 918 A.2d at 108 n.15, including its

[J-67A-2022, J-67B-2022 and J-67C-2022] - 26 “definitive,” and falls well short of resolving any purported ambiguity in section 9771 in

favor of the Commonwealth, especially given the applicability of the in pari materia

doctrine and rule of lenity.

We disagree our plain language construction of section 9771 will give a “free pass

to [defendants] who reoffend” while on parole but before their consecutive probation

sentences begin, or permit reoffenders to “violate the law with impunity[.]”

Commonwealth’s Brief at 29; Amicus Brief at 18; see also Dissenting Opinion at 11 (“I

also agree with the Commonwealth that it is an absurd result to suggest that a defendant

could commit a new crime with impunity[.]”). For one thing, a defendant who violates his

county or state parole by committing a new crime is subject to revocation of his parole

and recommitment to prison. See 42 Pa.C.S. §9776(e); 61 Pa.C.S. §6138(a). In addition,

he is subject to separate punishment for his new offense. In this case, for example,

Rosario has been sentenced to 25 to 50 years’ imprisonment for his new crimes.

The dissent maintains revocation of parole and recommitment to prison and a

separate punishment for the new offense do not “rectify the true problem that, by

committing a new crime, the defendant has shown a probationary term is not a sufficient

method of rehabilitation.” Dissenting Opinion at 11. But of course a parolee recommitted

to prison, or a defendant sentenced to a new term of imprisonment, is not placed on

probation; he is incarcerated. Under either scenario “the true problem” of a criminal being

placed on probation despite being demonstrably unsuited for supervised release is

nonexistent. We are similarly unmoved by the dissent’s hypotheticals of a defendant who

tension with the plain language of section 1922(4) and reliance on the dubious assumption that this Court’s denial of allocatur indicates agreement with the court below.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 27 “assault[s] a corrections officer or fellow inmate while incarcerated” and “a defendant

convicted of stalking [who] go[es] directly to his victim’s home the day he is released on

parole[.]” Id. at 12 n.9. In these circumstances, as in the present case, we see “little

practical effect to revocation of probation.” Id. The prisoner’s assault would presumably

adversely impact his parole eligibility and subject him to fresh convictions and sentences.

Similarly, the convicted stalker would presumably be subject to parole revocation and

reincarceration as well as punishment for any new offenses stemming from his contact

with the victim. Under these hypothetical examples, as in the case sub judice, the

defendants will not enjoy immunity for their crimes, and public safety will not be

compromised.

We disagree as well with the Commonwealth’s argument that construing section

9771 to bar anticipatory revocation reads words into the statute. Section 9771’s existing

plain language requires court consideration of the defendant’s conduct while on probation

and time spent serving probation. See 42 Pa.C.S. §9771(b),(d). These requirements

clearly limit the timing of revocation to the post-commencement-of-probation context.

Indeed, interpreting section 9771 to permit anticipatory revocation would ignore these

provisions and read them right out of the statute, in contravention of the rule of

construction that “[e]very statute shall be construed, if possible, to give effect to all its

provisions.” 1 Pa.C.S. §1921(a).

It is not correct, as amicus contends, that in the absence of the authority to

anticipatorily revoke probation, a sentencing court which “believes that a state sentence

might be warranted” is hamstrung to impose such a sentence without giving the defendant

the opportunity to demonstrate he “can be compliant with a lesser level of supervision.”

[J-67A-2022, J-67B-2022 and J-67C-2022] - 28 Amicus Brief at 19. On the contrary, the court can impose a pure probation sentence or

a split sentence involving a term of incarceration of less than two years and a period of

probation. See 42 Pa.C.S. §9721(a). In either case, if the defendant subsequently

violates the probation, the court can then revoke the probation and impose a state

sentence. See 42 Pa.C.S. §9771(b). Hence, a sentencing court can defer a state

sentence and retain the discretion to order state confinement upon a future violation of

probation without the extra-statutory power to anticipatorily revoke probation.

Finally, while we recognize there was widespread reliance on Wendowski and its

progeny for many years up until the recent Simmons decision, and the abrogation of

anticipatory revocation represents a significant change in sentencing practice, these

considerations do not dissuade us from concluding the procedure is illegal. Reliance

interests are pertinent to the question of whether to adhere to stare decisis. See

Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020). Stare decisis is not

implicated here; we are addressing the legality of anticipatory probation revocation as a

matter of first impression for this Court. What’s more, no amount of past prevalence may

justify the persistence of a practice that is clearly illegal. See Alexander, 243 A.3d at 200

(“[T]he Commonwealth is clearly not entitled to the persistence of an illegal practice.”).

Such is the case here. Pursuant to the plain language of section 9771, it is clear that the

anticipatory revocation of probation is unlawful and must accordingly be prohibited,

irrespective of whether “[t]he rule established in Wendowski developed into a routinely

enforced principle that was employed by our trial and appellate courts for over four

decades.” Amicus Brief at 16.

IV.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 29 For the foregoing reasons, we hold the anticipatory revocation of a probation

sentence that has yet to start is illegal under Pennsylvania law. Accordingly, the Superior

Court’s order is affirmed.

Chief Justice Todd and Justices Donohue and Wecht join the opinion.

Justice Mundy files a dissenting opinion in which Justice Brobson joins.

[J-67A-2022, J-67B-2022 and J-67C-2022] - 30