Com. v. Colon, J.

J-A23038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY COLON :
:
Appellant : No. 1589 EDA 2019
Appeal from the Judgment of Sentence Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003425-2016
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 5, 2021
Johnny Colon (Colon) appeals the judgment of sentence of the Court of
Common Pleas of Philadelphia County revoking his probation and entering
judgment of sentence. He contends that the presiding judge, the Honorable
Maria B. Coyle (VOP court), committed an abuse of discretion in holding a
probation violation hearing based on a new criminal charge while it was still
pending. In addition, Colon asserts that the VOP court erred in finding
probation violations based on possession of a controlled substance and an
unreported change of residence.
As discussed in more detail below, we find that the VOP court did not
err in holding the violation hearing or in ruling that Colon’s possession of a
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* Retired Senior Judge assigned to the Superior Court.
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controlled substance warranted revocation. However, the VOP court did err
in finding a technical violation, requiring us to remand the case for
resentencing.
I.
In 2017, Colon entered a negotiated guilty plea on counts of possession
with intent to deliver a controlled substance and criminal use of a
communication facility. He received a total sentence of five years of
probation, the terms of which required Colon to report to the Philadelphia
Adult Probation and Parole Department (Probation Department).1
A few months later, well within the probationary period, police raided
and searched a home, acting pursuant to a valid warrant. Upon entering,
police found Colon sleeping in a bedroom on the second floor. Officers saw
no immediate indication of weapons or other contraband on Colon’s person,
but a pat-down frisk yielded several packets of cocaine.
Moreover, during the search of the home, police obtained a billing
invoice for cable services bearing Colon’s name as well as a photograph of
Colon in a separate room. Importantly, within the home police also found a
firearm, hundreds of dollars in cash and large quantities of controlled
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1 While on this state parole, Colon concurrently served a term of federal
probation.
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substances, confirming that illegal drug transactions regularly took place
there.
Colon was arrested on charges of possession with intent to deliver,
simple possession, and other related offenses. The Probation Department filed
a notice to the VOP court (Gagnon II Summary) enumerating several
"Potential Direct Violations" based on those new charges. Colon was held in
state custody in accordance with the detainer lodged by the VOP court.
After a preliminary hearing2 on the new charges, all counts but one were
dismissed for failure to establish a prima facie case. Only a single count
remained (simple possession) and the Probation Department recommended
that the violation hearing be deferred until after the open case had concluded.
The defense echoed that request.
The Philadelphia County District Attorney (District Attorney), appearing
on behalf of the Commonwealth, also opposed the hearing, advising the VOP
court that its general policy was to seek to defer probation violation
proceedings based on new criminal charges until those new charges have been
resolved. The District Attorney offered a number of strategic reasons for
seeking to delay Colon’s violation hearing and emphasized that the
Pennsylvania Supreme Court has long encouraged that practice.
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2 See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (requiring preliminary
“Gagnon I” hearing on whether there is probable cause of a probation
violation).
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The violation hearing was continued on multiple occasions over several
months. Ultimately, the VOP court issued an order directing the District
Attorney to proceed with the hearing and threatening contempt charges in
response to any non-compliance. The VOP court also ordered the District
Attorney to subpoena “any and all relevant police and civilian witnesses for
appearance and to provide testimony” on the date of the hearing. VOP Court
Order, 1/16/2019, at 2.
Before the violation hearing began on February 22, 2019, defense
counsel and the District Attorney repeated their objections to the hearing
going forward before Colon’s open case had concluded. They noted that a
delay of the hearing posed no danger to the community because a detainer
lodged against Colon had remained in effect since the time of his arrest. The
District Attorney further voiced concern that the hearing involved substantially
similar issues of fact to those at play in an imminent trial, undermining the
prosecution. See Hearing Transcript, 2/22/2019, at pp. 20-23. The VOP court
was advised that a trial on Colon’s drug possession charge was scheduled to
take place within weeks.
The VOP court denied the motion to continue the violation hearing,
reasoning that it had repeatedly been delayed and that it was in the court’s
discretion to go forward. The District Attorney indicated that it would not call
or question the police officers who were being offered as witnesses to Colon’s
alleged probation violations. See id. at pp. 48-49. However, the VOP court
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again threatened the District Attorney with contempt charges, including
incarceration, if it did not elicit testimony as evidence against Colon. Id. at
p. 49.
The District Attorney proposed for the officers to be called to the stand
so that the VOP court could question them directly, at which point the VOP
court accused the District Attorney of obstructing the proceedings due to bias
in favor of the defense. Id. at pp. 49-52. The District Attorney was ultimately
not held in contempt because a compromise was reached with the VOP court
where witnesses would be called by the District Attorney but then questioned
by the VOP court. The District Attorney then began calling witnesses, doing
so over his own objection. Id. at p. 56.
Two police officers testified consistently at the hearing that they made
undercover drug purchases from a third party (Nelson Medina) at a home
located at 3415 E. Street in Philadelphia. Based on those transactions, the
police were granted a warrant to search the home and, upon entering, they
discovered Colon sleeping in a second-floor bedroom. The police patted down
Colon’s person and found several small packages of cocaine. They also
searched nearby rooms and found a firearm, other drugs and a cable bill
bearing Colon’s name. A picture of Colon was also found in the home.
Prior to executing the warrant, police did not know that Colon would be
present and they had seen no indication that Colon had participated in the
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distribution of drugs. The officers also had no reason to think that Colon could
be armed at the time he was patted down.
A “bulge” in Colon’s pants, which was found to be caused by bags of
cocaine, was not noticed by police until after the frisk began:
Defense counsel: A the time that you patted him down, could
you see any bulge or any sign that he was armed?
Officer: I think I already answered that to say no.
Id. at p. 98. The officer clarified further that once the bulge was detected
during the frisk, the officer’s only concern was that it could be narcotics. He
testified that it was department policy to always search individuals present
during the execution of a warrant.
The defense moved to suppress the evidence obtained by the police
during the pat-down search, arguing there was no indication prior to the
search that he was armed and dangerous. The defense also pointed out that
since no technical violations of probation had been alleged, the evidence was
insufficient to establish that Colon had violated any probationary terms.
The VOP court denied the motion to suppress the fruits of the pat-down
search. It went on to find that Colon had committed two probation violations
that warranted revocation. The first was the possession of drugs (a new
criminal offense) and the second was based on a change of address without
notifying the Probation Department (an uncharged technical violation). See
1925(a) Opinion, 10/8/2019, at 17-19; Hearing Transcript, 2/22/2019, at pp.
112-13.
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About two weeks after the violation hearing and finding of violation but
prior to sentencing, Colon’s criminal case was closed, with all counts being
dropped or dismissed pursuant to the speedy trial rule. Accordingly, the
Probation Department recommended to the VOP court that Colon be allowed
to continue serving probation. See Gagnon II Summary, 4/23/2019.
Contrary to that recommendation, the VOP court revoked Colon’s
probation, finding that the conduct underlying the drug possession charge and
unreported change of address justified a prison term of total confinement.
Colon received nearly the maximum possible sentence on his two convictions,
totaling a prison term of 5.5 to 14 years.
A timely motion to vacate revocation or to modify the sentence was
denied. A notice of appeal was filed; as was a 1925(b) statement. In his
appellate brief, Colon raises the following three issues:
1. Where the only charged violation was a “potential direct
violation” based on a new pending case, was it not an abuse of
discretion and violation of due process in the circumstances of this
case for the judge to sua sponte order a [probation violation
hearing], and, then refuse to void the resulting revocation when
the underlying new criminal charge was dismissed.?
2. Did not the [trial] court err in denying suppression of drugs
taken from [Colon] because police violated his constitutional
rights when, for the routine purpose of officer safety, they frisked
him without reasonable suspicion that he was armed and
dangerous, and searched him without probable cause?
3. Was it not a violation of statutory law and due process
protections when the [trial] court revoked probation based on
uncharged and unproven violations of alleged probation
conditions?
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Appellant’s Brief, at 2.
Although the Commonwealth argues in its brief that Colon was legally
searched, it agrees with him that the VOP court’s order should be overturned.
The Commonwealth contends that the VOP court abused its discretion in
holding the violation hearing prior to the resolution of Colon’s pending case.3
Moreover, the Commonwealth agrees that the order on review should be
vacated because the VOP court found Colon violated probation due to an
unreported change of address despite that he never received notice that the
violation hearing would encompass any such technical violations.
II.
The preliminary issue before us is whether the VOP court erred in
holding Colon’s violation hearing prior to the resolution of a pending charge
that was an alleged basis for probation revocation.4 Both Colon and the
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3Much of the Commonwealth’s brief concerns the animus Judge Coyle directed
at the Philadelphia County District Attorney, but Colon, who is the sole
appellant, has not adopted the claim that his probation revocation and
sentence should be overturned on that particular ground. We note, though,
that Judge Coyle’s conduct toward the District Attorney looms large in a
pending case. See Commonwealth v. Mayfield, 224 A.3d 718 (Pa. Super.
2019) (transferring case to Pennsylvania Supreme Court to determine
whether Judge Coyle erred in dismissing District Attorney from case and
appointing a special prosecutor due to dispute over whether probation
violation hearing should go forward).
4“Our review is limited to determining the validity of the probation revocation
proceedings and the authority of the sentencing court to consider the same
sentencing alternatives that it had at the time of the initial sentencing.”
Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007); see
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Commonwealth urge us to find that where they mutually agree that a violation
hearing should be deferred until a new criminal case has been resolved, the
VOP court should be required to wait, rendering any premature revocation a
legal nullity.
A.
The statute which governs the revocation of probation provides that
once a judgment of sentence has been entered against a defendant, the court
retains authority to modify the terms while the sentence is being served:
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.
42 Pa.C.S. § 9771(a). Probation may be revoked if a court finds, by a
preponderance of the evidence, that the probationer either: 1) violated a
specific condition of his or her probation; or 2) engaged in criminal conduct.
See Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa. 2019); see also
42 Pa.C.S. § 9771(c) (permitting a sentence of total confinement upon
revocation where defendant has been convicted of a new offense or conduct
indicates likelihood of future crimes).
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also 42 Pa.C.S. § 9771(b). “Revocation of a probation sentence is a matter
committed to the sound discretion of the VOP court and that court’s decision
will not be disturbed on appeal in the absence of an error of law or an abuse
of discretion.” Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa. 1996).
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At the violation hearing, sufficient evidence of probative value must be
presented to demonstrate that a violation of probation occurred. See
Commonwealth v. Allhouse, 969 A.2d 1236, 1240 (Pa. Super. 2009).
“Absent such evidence, a violation of probation does not occur solely because
a judge believes the probationer’s conduct indicates that probation has been
ineffective to rehabilitate or to deter against antisocial conduct.” Foster, 214
A.3d at 1243. “Revocation and resentencing are warranted if, in the face of a
new criminal act or the violation of a condition of probation, the court finds
that probation is no longer achieving its desired aims of rehabilitation and
deterring criminal activity.” Id. at 1251.
At a violation hearing, a probationer’s due process rights include the
following:
(a) written notice of the claimed violations of (probation or)
parole; (b) disclosure to the (probationer or) parolee of evidence
against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); (e) a
“neutral and detached” hearing body such as a traditional parole
board, members of which need not be judicial officers or lawyers;
and (f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking (probation or) parole.
Commonwealth v. Ferguson, 761 A.2d 613, 617-18 (Pa. Super. 2000).
Additionally, this Court has recently held that where a defendant is
acquitted of a criminal charge which was the sole basis for a probation
revocation, probation must be reinstated. See Commonwealth v. Giliam,
223 A.3d 863, 867 (Pa. Super. 2020) (holding that since “violation of
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probation was based solely on allegations of new criminal charges for which
[probationer] was later acquitted, ultimately, no violation of probation
occurred.”).
B.
As to the timing of a violation hearing where new criminal charges are
pending, our Supreme Court has repeatedly stated that it is preferable but not
required for a violation hearing to take place after a trial on the new charges
has concluded. See e.g., Commonwealth v. Brown, 469 A.2d 1371, 1376
(Pa. 1983); Commonwealth v. Burrell, 441 A.2d 744, 746 (Pa. 1983). “[I]t
is clear that there is no statutory restriction in this State that would prevent
the court from holding a hearing where the alleged violation is the commission
of an offense during the probationary period prior to the trial for the
subsequent offense.” Commonwealth v. Kates, 305 A.2d 701, 706 (Pa.
1973).
A central reason for our Supreme Court’s preference is that deferring
the violation would help “avoid the risk of entering a VOP sentence that would
ultimately be void if the defendant were acquitted of the new charges.”
Commonwealth v. Infante, 888 A.2d 783, 793 (Pa. 2005), abrogated on
other grounds by Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa.
2019); see also Brown, 469 A.2d at 1376; Commonwealth v. Davis, 336
A.2d 616, 623 (Pa. Super. 1977).
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Here, the Probation Department submitted to the VOP court a Gagnon
II Summary outlining potential violations of Colon’s probation, including new
criminal offenses. Although the District Attorney sought to delay the violation
hearing until the new charges were resolved, the VOP court opted to press
forward while they were still pending. Approximately one month after the
violation hearing was held and before the sentencing, all the new charges were
either dropped or barred by the speedy trial rule.
Nevertheless, we can find no error in the VOP court’s decision to hold
the violation hearing because it was a matter of judicial discretion. The
violation hearing was not “prosecutorial” in nature, as it related to the terms
of Colon’s ongoing probationary sentence and the propriety of allowing him to
continue serving his sentence outside of state custody.
As long as Colon remained on probation, Section 9771(a) gave the VOP
court authority to hold a violation hearing, make findings of fact and determine
whether supervised release should continue in light of alleged violations. See
42 Pa.C.S. § 9771(a) (outlining court’s inherent power to revoke probation).
Nothing in the District Attorney’s statutory mandate indicates the contrary.
Accordingly, neither the defense nor the District Attorney had a say in when
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or whether the VOP court could proceed against Colon once his new criminal
charges were reported by the Probation Department.5
C.
The dismissal of Colon’s criminal charge for possession does not entitle
him to a reinstatement of probation. This would only be the case if through
an acquittal of that charge, Colon had proven that a violation of probation had
never occurred. See Giliam, 223 A.3d at 867.
The subsequent dismissal of Colon’s new case, based on speedy trial
grounds, is different from an acquittal because it is a procedural result that
does not at all bear on his guilt or innocence. See Commonwealth v. Banks,
198 A.3d 391, 403 (Pa. Super. 2018) (holding that where a new criminal
charge was nolle prossed, “no similar factual resolution occurred”); see also
Commonwealth v. Joe, 649 WDA 2019 (Pa. Super. August 11, 2020)
(unpublished memorandum) (explaining that a nolle prossed charge could be
used to establish a probation violation if sufficient evidence of criminal conduct
is introduced).
At the violation hearing in this case, evidence was elicited showing that
Colon illegally possessed controlled substances with intent to distribute them.
Even though the speedy trial rule procedurally barred the Commonwealth from
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5 As to the VOP court’s attempt to dictate to the District Attorney how to
proceed against Colon at the violation hearing, we find no legal support for
such authority.
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prosecuting Colon for that offense, this did not prevent the VOP court from
determining, by a preponderance of the evidence, that Colon’s criminal
conduct made him unsuited for supervised release. See Foster, 214 A.3d at
1243; see also 42 Pa.C.S. § 9771.
III.
A.
We now turn to Colon’s substantive arguments. He claims first that the
VOP court could not revoke his probation based on possession of a controlled
substance because the only evidence that he committed that offense was
obtained in violation of his Fourth Amendment right to be free from
unreasonable searches.6 However, the VOP court did not err in finding that
the police lawfully obtained that evidence during the execution of a valid
warrant to search the home.7
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6 The exclusionary rule, which bars use of evidence obtained during an illegal
search, applies in the context of a probation violation hearing. See
Commonwealth v. Arter, 151 A.3d 149, 167-68 (Pa. 2016) (holding that
under the Pennsylvania Constitution, evidence obtained in violation of
probationer’s constitutional rights may not be used to prove a probation
violation occurred).
7 “Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Mathis, 125 A.3d
780, 783 (Pa. Super. 2015).
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The warrant alone did not authorize the police to search Colon’s person,
so some other basis was needed to make the pat-down lawful. Generally, in
order for a pat-down to be justified, police must have a well-founded belief
that the subject is armed and dangerous. See generally Ybarra v. Illinois,
444 U.S. 85, 93-96 (1979); see also Terry v. Ohio, 392 U.S. 1, 21-24
(1968); Commonwealth v. Grahame, 7 A.3 d 810, 815-17 (Pa. 2010).
Police must be able to articulate something more than a generalized suspicion,
and mere presence in an area where crime has occurred is insufficient. See
Grahame, 7 A.3d at 815-17.
At Colon’s violation hearing, the officers who searched Colon’s person
were unable to articulate any reason to think that he was armed and
dangerous prior to the frisk. They testified that they saw nothing to indicate
that he possessed a weapon or otherwise posed a danger. The officers also
confirmed that Colon was not named in the search warrant or previously linked
to the circumstances that prompted it.
However, even if we were to find that the police initially exceeded the
scope of the warrant when Colon was frisked, the evidence would still be
admissible under the doctrine of inevitable discovery. There is no dispute in
this case that the police obtained a valid warrant to search the home that
Colon was occupying. Police were granted the warrant after staging a number
of drug purchases at that location. While they were legally in the home
executing the warrant, police found firearms, controlled substances and
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evidence that Colon at least occasionally resided in the home. All of this
evidence was recovered by police independently of their frisk of Colon’s
person.
When it can be established “by a preponderance of the evidence that
the illegally obtained evidence ultimately or inevitably would have been
discovered by lawful means, then the evidence is admissible.”
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009); see
also Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009)
(same).
This test is clearly met because even had Colon not immediately been
frisked when police first encountered him, all of the other incriminating
evidence found in the home would have justified a search of his person
incident to arrest. Once the police obtained a valid warrant and entered the
home, it is more likely than not that the drugs in Colon’s pocket would have
been discovered, making that evidence admissible to prove a probation
violation.
Further, the frisk was lawful because police may detain and search a
probationer’s person as long as there is “reasonable suspicion to believe that
[he] possesses contraband or other evidence of violations of the conditions of
supervision.” 42 Pa.C.S. § 9912(d)(1)(i). Colon was serving probation at the
time of the pat-down. As such, he would have been subject to a search of his
person even without the officers having reason to believe he was armed and
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dangerous. Under the circumstances outlined above, the police had
reasonable suspicion that Colon possessed contraband or evidence of a
probation violation at the time he was searched. Consequently, the VOP court
did not err in finding the fruit of the search admissible at the violation hearing
and relying on it as grounds to revoke Colon’s probation.8
B.
Next, Colon argues that the VOP court erred in revoking his probation
based on a technical violation – unreported change of residence – that had
never been formally alleged prior to the violation hearing. When Colon’s
violation hearing began, the only potential violation concerned the alleged
commission of a new criminal offense.
Both the Commonwealth and Colon argue that no evidence was adduced
at the violation hearing showing that Colon’s probationary terms required him
to report a change of address. The assigned probation officer did not appear
at the violation hearing, and the summaries of potential probation violations
submitted to the VOP court never included the failure to report a change of
address.
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8 Neither the Commonwealth in its brief nor the VOP court in its opinion
specifically referenced the inevitable discovery doctrine or Colon’s status as a
probationer to justify the pat-down, but the ruling on the admissibility of the
evidence may be affirmed on alternative grounds. See Commonwealth v.
Bostick, 958 A.2d 543, 559 (Pa. Super. 2008).
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By nevertheless finding Colon in violation of his probation based on that
conduct, the VOP court erred. See Morrissey v. Brewer, 408 U.S. 471, 488-
89 (1972) (holding that due process requires advance written notice of
potential parole violations); Kates, 305 2d at 709 n.10 (applying Morrissey
to probation proceedings).
It is well established that a court cannot consider unalleged technical
violations when revoking probation and imposing sentence. See
Commonwealth v. Carver, 923 A.2d 495, 499 (Pa. Super. 2007) (reversing
order of probation revocation and remanding to give court “opportunity to
analyze whether Appellant’s probationary conduct warrants revocation under
the applicable legal mandates.”); Commonwealth v. Alexander, 331 A.2d
836, 838-39 (Pa. Super. 1974) (reversing revocation order for new hearing
where probationer was notified of substantive, but not technical, violations of
probation).9
Even if the VOP court had revoked Colon’s probation and imposed the
sentence solely due to his new criminal conduct, the sentence may still be
found invalid due to consideration of an impermissible sentencing factor:
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9In its 1925(a) opinion, the VOP court also mentioned for the first time that
Colon’s unpaid court fees were a technical violation justifying revocation. See
1925(a) Opinion, 10/8/2019, at 28. Neither this additional technical violation
nor any other technical violation was ever alleged in a Gagnon II summary,
and for the same reasons as those outlined above, the VOP court erred in
considering unpaid fees at the violation hearing and sentencing.
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In deciding whether a trial judge considered only permissible
factors in sentencing a defendant, an appellate court must, of
necessity, review all of the judge’s comments. Moreover, in
making this determination it is not necessary that an appellate
court be convinced that the trial judge in fact relied upon an
erroneous consideration; it is sufficient to render a sentence
invalid if it reasonably appears from the record that the trial court
relied in whole or in part upon such a factor.
Commonwealth v. Dugan, 483 A.2d 965, 969 (Pa. Super. 1984) (quoting
Commonwealth v. Bethea, 379 A.2d 102, 106-07 (Pa. 1977)).
Our Supreme Court has clarified that resentencing may be required as
a matter of law where the impermissible factor arises from the violation of a
constitutional right, as is the case here, because the error relates directly to
the sentence’s legality rather than a discretionary aspect of the sentence. See
generally Commonwealth v. Smith, 673 A.2d 893, 896 (Pa. 1996)
(affirming sentence despite consideration of impermissible factor because it
did “not implicate constitutional rights” and sentence was otherwise justified
by proper factors).10
In numerous cases, we have held that where a court conducts a
sentencing in reliance on previously undisclosed facts in violation of
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10 Where an appellate claim involves a discretionary aspect of a sentence, the
issue must be raised in accordance with Pa.R.A.P. 2119(f), and the claim must
be reviewed under an abuse of discretion standard. See generally
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013); 42 Pa.C.S.
§ 9781(c)-(d). In his brief, Colon only asserted error in terms of the illegality
of his sentence and not that the sentence was an abuse of discretion by the
VOP court.
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constitutional due process rights, the sentence must be vacated. See e.g.,
Commonwealth v. Schwartz, 418 A.2d 637, 638-39 (Pa. Super. 1980)
(resentencing required where judge relied on ex parte information that was
not disclosed to the defendant, depriving him the chance to dispute it);
Commonwealth v. Rhodes, 990 A.2d 732, 746-48 (Pa. Super. 2009)
(resentencing required where defendant did not have notice court would be
considering police reports not introduced to the record or disclosed to
counsel); see also Commonwealth v. Cooper, 499 MDA 2016 (Pa. Super.
November 22, 2016) (unpublished memorandum) (ordering resentencing
where court did not notify defendant ahead of sentencing hearing that
photographic evidence would be taken into account).
At the violation hearing in this case, the VOP court announced that Colon
had violated his probation by failing to report that he had changed his address.
The finding of this technical violation deprived Colon of his due process right
to notice of all alleged violations. Had Colon known that a change of address
would be at issue, he could have been better able to refute that fact.
Because the VOP court’s reliance on an unalleged probation violation is
impermissible and a clear violation of Colon’s constitutional rights, we must
remand the case so that he may be resentenced based only on valid
considerations, including Colon’s criminal conduct while serving probation. On
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remand, Colon would be permitted to seek the recusal or disqualification of
the presiding judge.11
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2021
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11 Colon has not briefed the issue of whether Judge Coyle should have been
recused or disqualified so that issue cannot be resolved here. However, Colon
may seek such relief at a later point. See Commonwealth v. Lucky, 229
A.3d 657 (Pa. Super. 2020) (ordering resentencing and denying request for a
different judge because the issue was not raised on appeal, but permitting
Colon on remand to request recusal of Judge Coyle). In doing so, Colon would
not be barred from citing Judge Coyle’s previous animus toward the District
Attorney. See Commonwealth v. Brown, 3234 EDA 2018, at *12 (Pa.
Super. August 7, 2020) (“[T]he record shows that Judge Coyle exhibited a
personal interest in the resentencing sufficient to invalidate the proceedings
based upon an impermissible appearance of partiality and ill will.”). Judge
Coyle’s treatment of Colon and defense counsel may also be relevant. See
id.; see also 1925(a) Opinion, 10/8/2019, at 27 (mischaracterizing Colon’s
non-frivolous suppression grounds as an “absurd assertion [that] presented
nothing more than a blatant effort to disguise the full extent of his violating
and criminal conduct[.]”).
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