Commonwealth v. Foster, D., Aplt.

[J-6-2019] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 21 EAP 2018
:
Appellee : Appeal from the Judgment of Superior
: Court entered on January 3, 2018 at
: No. 3572 EDA 2016 affirming the
v. : Judgment of Sentence entered on
: October 27, 2016 in the Court of
: Common Pleas, Philadelphia County,
DARNELL FOSTER, : Criminal Division at No. CP-51-CR-
: 0005272-2015.
Appellant :
: ARGUED: March 5, 2019
CONCURRING OPINION
JUSTICE TODD DECIDED: August 20, 2019
Appellant’s postings are the antithesis of those of an individual who has reflected
on his past wrongs, is eschewing criminal conduct, and is striving to lead a law-abiding
life. In fact, they demonstrate an utter disdain for the criminal justice system and flout the
authority of the trial judge. Nevertheless, in light of the plain and unambiguous statutory
language of the Sentencing Code, as cogently analyzed by the majority, I am constrained
to agree that Appellant is entitled to relief. I therefore join the Majority Opinion.
Probation, by its nature, is a form of lenity in criminal sentencing. Commonwealth
v. Hall, 80 A.3d 1204, 1216 (Pa. 2013). Sentencing judges have broad discretion in
imposing reasonable conditions of probation designed to serve rehabilitative goals,
including the “recognition of wrongdoing, deterrence of future criminal conduct, and
encouragement of future law-abiding conduct.” Id. at 1215. In essence, probation is the
penal system’s attempt to provide one convicted of a crime an opportunity to change his
or her ways for the better and to become a productive member of society outside of
incarceration.
While on probation, after pleading guilty to possessing a controlled substance with
intent to deliver (heroin), Appellant posted various images on his social media accounts,
including, Percocet pills formed to spell “F*CK YOU,” with Appellant’s notation
“call_me_drama_F*uck you #perklife flatline_nizzy;” a bag of marijuana; Appellant’s ankle
monitor with the notation “This sh*t is so corny;” a semi-automatic pistol with two wads of
money; and Appellant’s guilty plea agreement with the caption “Couldn’t [sic] beat the
case 4 years probation.” Commonwealth’s Brief, Exhibit A. Such postings contrast
starkly with what would be expected of an individual who has been shown lenity by our
criminal justice system.
The Sentencing Code, as enacted by the legislature, however, is written in very
limiting terms: “The court shall attach such of the reasonable conditions authorized by
subsection (c) of this section as it deems necessary to insure or assist the defendant in
leading a law-abiding life.” 42 Pa.C.S. § 9754(b) (emphasis added). Subsection (c), in
turn, enumerates only 14 discrete conditions. Id. § 9754(c)(1)-(14). Further, the court
may revoke an order of probation only “upon proof of the violation of specified conditions
of the prohibition.” Id. § 9771(b). Based upon this clear statutory language, as well as
the tenet that penal provisions of a statute shall be strictly construed, 1 Pa.C.S. §
1928(b)(1), Appellant violated no express condition of probation, and there can be no
inherent, inferential, or implicit conditions of probation that would otherwise prohibit his
postings.
However, I point out that a sentencing court “may at any time terminate continued
supervision or lessen or increase the conditions upon which an order of probation has
been imposed.” 42 Pa.C.S. § 9771(a) (emphasis added). In turn, subsection 9754(c)(13),
[J-6-2019] [MO: Donohue, J.] - 2
which is written as a broad catchall provision, authorizes imposing “any” other conditions
of probation that are reasonably related to the convict’s rehabilitation, so long as they are
not “unduly restrictive” of the convict’s constitutional rights of liberty or conscience. Id. §
9754(c)(13); Hall, 80 A.3d at 1213. Thus, in my view, particularly when a sentencing
judge becomes aware of a probationer’s offensive and inappropriate postings, such as
the ones before us, the judge has the discretion under 42 Pa.C.S. §§ 9771(a) and
9754(c)(13) to restrict the probationer’s social media postings so as to curtail behavior
that is manifestly inconsistent with the rehabilitative goals of probation, such as those that
deny or reject past wrongs, that embrace future criminal behavior, or that contain
expressions inconsistent with a law-abiding life.
Justice Mundy joins this concurring opinion.
[J-6-2019] [MO: Donohue, J.] - 3