Com. v. Mack, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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