[ J
- 115
- 2020 ] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

v.

DEMETRIUS MAYFIELD,

Respondent : : : : : : : : : : : : : No. 15 EM 2020 Appeal from the Opinion and Order of the Superior Court at No. 2811 EDA 2018 dated December 16, 2019 the Order of the Philadelphia County Court of Common Pleas at No. CP

- 51

- CR

- 0006367

- 2016 dated September 19, 2018

SUBMITTED: November 16, 2020

O PINION

JUSTICE WECHT DECIDED: March 25, 2021 In this probation revocation case , the trial court entered an order removing the District Attorney ’ s Office and appoint ing a private criminal

- defense attorney to represent the Commonwealth as a “ special prosecut or. ” Because we conclude that the court lacked the authority to make such an appointment , we vacate the trial court ’ s order and remand for further proceedings. The Appel lee in this matter, Demetrius Mayfield , pleaded guilty to one count of persons not to possess firearms 1 in May 2018. Consistent with Mayfield ’ s plea agreement, the trial court imposed a sentence of 111⁄2 to 23 months ’ imprisonment, to be

1 18 Pa.C.S. § 6105.[ J

- 115

- 2020 ]

- 2

followed by three y ears ’ probation. The court also awarded Mayfield credit for time served and released him on immediate parole.
T wo months later, Mayfield was again arrested and charged with various drug and
firearms offen ses (“the new charges”). Shortly after Mayfield ’ s arrest, t he Adult Probation and Parole Department issued a Gagnon I 2 summary recommending a detainer. The Department subsequently issued a Gagnon II summary in which it asked the trial court to
defer Mayfield ’ s revocation hearing pending final dispositio n of his new charges, with the
detainer to remain in place

. T he court then appointed defense counsel to represent Mayfield and scheduled a status conference for August 31, 2018

. At the status conference, the court directed the Commonwealth to file a moti on to revoke Mayfield ’ s probation

. The Assistant District Attorney (“ADA”) representing the Commonwealth informed the court that, per a recent policy change within the Philadelphia District Attorney ’ s Office (“DAO”) , she was required to obtain approval from a supervisor
before fil ing a revocation motion prior to the disposition of new criminal charges. Despite
the ADA ’ s hesitation , the court stated that it wanted to “knock this one out” 3 and order ed the parties to appear for a revocation hearin g on September 19, 2018

. O n September 6, 2018, t he parties again appeared before the court , this time at the Commonwealth ’ s request. At that hearing, a different ADA appeared and explained
to the court that his supervisor , the DAO’s First Assistant, had de clined the request to file
a revocation motion prior to the disposition of Mayfield ’ s new charges . The ADA also

2 In Gagnon v. Scarpelli , 411 U.S. 778 (1973), the United States Supreme Court held that probationer s are entitled to two hearings when a violation of probation is alleged

. First, a preliminary hearing must be held at the time of arrest and detention to discern whether the alleged violation is support ed by probable cause

. Id . at 781

- 82. S econd, a more comprehensive hearing must be held prior to the court rendering a final revocation decision. Id. at 782.

3 Notes of Testimony (“ N.T. ”) , 8/31/ 20 18, at 4

.[ J

- 115

- 2020 ]

- 3

argued that the DAO has the sole discretion to defer revocation proceedings until the disposition of new charges. In response, the trial court made clear that it intended promptly to hold a revocation hearing

. The court also warned the ADA that it intended to proceed “independent of whether or not the Commonwealth decides to do [its] job.” 4 On September 19, 2018, the parties appeared as s cheduled for the revocation hearing. When the court asked the Commonwealth to call its first witness, the following exchange took place :
THE COMMONWEALTH: Your Honor, despite my personal views and the propriety of this proceeding, I ’ m under very strict instructions from people who probably should be here themselves not to participate in this hearing.
THE COURT: When were you folks going to let me know that?
THE COMMONWEALTH: I apologize, your Honor. I thought that was the understanding.
THE COURT: Are you saying to me that the Commonwealth of Pennsylvania is not going to be represented by the District Attorney ’ s Office of Philadelphia in this matter?
THE COMMONWEALTH: The police officers are here, your Honor.
THE COURT: No. No. No. L isten to my question, [counsel]. Are you saying that the Commonwealth of Pennsylvania is not going to be represented by the District Attorney ’ s Office of Philadelphia at this revocation hearing; yes or no?
THE COMMONWEALTH: If I understand the question correctly, I believe that the answer would be no because

— THE COURT: Thank you. Have a seat. I ’ m appointing a special prosecutor to represent the Commonwealth of Pennsylvania from the wheel. Mr. Lloyd is here tomorrow, isn ’ t he? James Lloyd. He ’ s h ere on another case. So I ’ m going to appoint James Lloyd, Esquire to represent the Commonwealth of Pennsylvania at the revocation hearing. The District Attorney ’ s Office has removed itself.

4 N.T., 9/6/ 20 18 , at 13.[ J

- 115

- 2020 ]

- 4 * * * * Let the record reflect that the District Attorney ’ s [ Office] of Philadelphia has withdrawn its representation from the Commonwealth of Pennsylvania at the revocation hearing on this matter. 5
After the hearing, the Commonwealth filed a motion for reconsider ation and a notice of appeal to the Superior Court. 6 On the following day , the parties

— now joined by the newly appointed special prosecutor , attorney James Lloyd

— appeared before the trial
court to exchange discovery

. The ADA explained to the court that the DAO had not

“ removed itself ” from the cas e; rath er, it was simply exercising prosecutorial discretion to
defer revocation proceedings until after the resolution of Mayfield ’ s new charges. Defense counsel similarly noted his objection to the trial court ’ s appointment of a special prosecutor . Following the hearing, the Commonwealth filed a motion to stay the proceedings pending appeal. On September 27, 2018, the trial court held a hearing on the Commonwealth ’ s motion to stay . T wo ADAs, defense counsel, and the special prosecutor attended the hearing, at which the Commonwealth argued, among other things, that the trial court
lacked the authority to remove the DAO from the case. The Commonwealth further argued that the trial court no longer had jurisdiction to proceed with the revocation hearing
while t he matter was pending on appeal . T he trial court denied the Commonwealth ’ s motion for reconsideration , but agreed to stay the proceedings pending appeal. 7

5 N.T., 9/19/ 20 18, at 46

- 48.

6 The Commonwealth filed an interlocutory appeal as of right after certifying that the order appointing a special prosecutor would substantially handicap the prosecution. See Pa.R.A.P. 311(d) (“ In a criminal case, under the circumstances p rovided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution. ”).

7 On Octob er 3, 2018, James Lloyd filed a motion to substitute counsel, claiming that he cannot act as a court

- appointed special prosecutor because he currently[ J

- 115

- 2020 ]

- 5

The Commonwealth then filed a concise statement of errors complained of on appeal pursuant to Pa.R. A.P. 1925(b), in which it challenged the trial court ’ s authority to

remove the DAO and appoint a private attorney to act in its stead. In response, the trial court issued an opinion noting that courts of common pleas have the authority to

commence violati on of probation ( “ VOP ” ) proceedings at any time. 8 As for the removal
of the DAO , the trial court opined that the appointment of a special prosecutor was warranted given the Commonwealth ’ s “unprecedented ” and “ contemptuous ” refusal to participate in the revocation hearing

. 9 The court cited as authority for its actions In re Thirty

- Fifth Statewide Investigating Grand Jury , 112 A.3d 624 (P a

. 2015) (OAJC) , in which
we held that the supervising judge of a grand jury has the inherent authority to appoint a
sp ecial prosecutor to investigate allegations that the sanctity of the grand jury has been breached by the attorney for the Commonwealth

. On December 16, 2019, the Superior Court issued a decision recognizing that it lacked jurisdiction to rule on the Commonwealth ’ s appeal. 10 The panel explained that this Court has exclusive jurisdiction over appeal s involv ing the supersession of a district attorney. 11 Accordingly, the Superior Court transferred the appeal to our Court for represents multiple criminal defendant s in his capacity as a criminal defense attorney. The trial court did not rule on that motion

. 8 See 42 Pa.C.S. § 9771 (“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.”) ; accord Commonwealth v. Kates , 305 A.2d 701, 708 (Pa. 1973) (“When it becomes apparent that the probationary order is not serving this desired end [ , ] the court ’ s discretion to impose a more appropriate sanction should not be fettered.”).

9 Trial Court Opinion, 12/31/2018, at 7.

10 Commonwealth v. Mayfield , 224 A.3d 718 (Pa. Super. 2019).

11 Section 722 of the Judicial Code provides that “[t] he Suprem e Court shall have exclusive jurisdiction of appeals ” involving “[s] upersession of a district attorney by an[ J

- 115

- 2020 ]

- 6

resolution

. 12 We then ordered additional briefing and invited the Attorney General to
submit an amicus curiae brief

. The Commonwealth raises one narrow issue for our review: whether the trial court exceeded its authority when it removed the DAO and appointed a special prosecutor to represent the Commonwealth. As with “ all questions of law, our standard of review is de

novo , and our scope of review is plenary. ” 13 We begin with the Commonwealth Attorneys Act , which empowers specific entities to repres ent the Commonwealth in legal matters

. 14 Relevant to this case, the Act permits the replacement of one prosecutor with another in at least three circumstances. First, t he Attorney General may petition a court to permit his or her office to supersede the d istrict attorney in a ny criminal action. 15 Second, the president judge of a particular county may request that the Attorney General supersede the district attorney in a criminal proceeding

. 16 Third, a district attorney ’ s office may refer a case to the Attorney General for prosecution whenever the office lacks adequate resources or has a conflict of

Attorney General or by a court [.]” 42 Pa.C.S. § 722(5) ; see also Pa.R.A.P. 702(c) (providing that petitions for review of special prosecutions or investigations shall be filed in the Supreme Court).

12 See Pa.R.A.P. 751(a) (“If an appeal or other matter is taken to or brought in a court or magisterial district which does not have jurisdiction of the appeal or other matter, the court or magisterial d istrict judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in transferee court on the date first filed in a court or magisterial district.”).

13 Skotnicki v. Ins. Dep ’ t , 175 A.3d 239, 247 ( Pa. 2017).

14 71 P.S. §§ 732

- 101

– 732

- 506.

15 Id. § 732

- 205(a)( 4 ).

16 Id. § 732

- 205(a)( 5 ).[ J

- 115

- 2020 ]

- 7

interest. 17 If the Attorney General declines that referral, the district attorney may then
refer the matter to a district at torney of a contiguous county ; or, i f the district attorneys of the contiguous counties decline the referral, the district attorney may refer the matter to a district attorney of a noncontiguous county. 18
W hile the Act allows for the substitution of one pr osecutor for another in these
three situations , all of th ose circumstances involve the replacement of one duly

- elected public official with another. But n othing in the Commonwealth Attorneys Act, or in any other statute, authorizes trial courts to deputiz e private attorneys to represent the Commonwealth in criminal matters. In other words , there is no statute which grants the trial court the authority th at it purported to exercise here. Nor are we persuaded by the trial court ’ s suggestion that courts of common pleas possess inherent authority to summarily remove a district attorney ’ s office and appoint a special prosecutor. In the trial court ’ s view, such authority can be gleaned from our
decision in Thirty

- Fifth Statewide Investigating Grand Jury . Unlike the present appeal , however, that case concerned the unique authority of a supervising grand jury judge to appoint a private attorney to investigate a suspected breach of grand jury secrecy. In upholding the appointment i n that case, we concluded that supervising judges have the authority “to appoint a special prosecutor in scenarios in which a grand jury may be considering potential criminal conduct on the part of an Attorney for the Commonwealth (as defined in the Invest igating Grand Jury Act) or a closely affiliated official.” 19

17 Id. § 732

- 205 (a)(3).

18 18 Pa.C.S. § 9201

. 19 In re Thirty

- Fifth Statewide Investigating Grand Jury , 112 A.3d at 629

- 30 (citation omitted).[ J

- 115

- 2020 ]

- 8

Notably , however, our holding in Thirty

- Fifth Statewide Investigating Grand Jury was based, at least in part, on the extensive powers granted to supervising judges under the Investigating Grand Jury Act. And, despite those broad powers, the Court
nevertheless expressly declined to hold that a private attorney appointed to investigate a breach of grand jury secrecy could conduct an “actual prosecution” 20 of the sort that the
trial court ’ s order in this case plainly would have required. Put simply, our holding in Thirty

- Fifth Statewide Investigating Grand Jury did not endorse the appointment of a special prosecutor outside of the grand jury context , nor have we ever endorsed the appointment of a private attorney to prosecute a criminal defendant. Because we can find no authority (statutory or inherent) authorizing the appointment of a special prosecutor to represent the Commonwealth in VOP proceedings, we vacate the trial court ’ s appointment orde r. Nevertheless, we caution that our decision should not be interpreted as approving of the Commonwealth ’ s refusal to participate in a prompt VOP hearing as the court instructed. Our law is clear : trial courts have broad authority to modify or terminate their own supervisory orders

. 21 And while this Court has expressed a preference for deferring VOP proceedings until after the

20 Id. at 630 n.7. Though t he special prosecutor in Thirty

- Fifth Statewide Investigating Grand Jury maintained that his appointment authorized him to submit a grand jury presentmen t to the Montgomery County district attorney for her consideration , he did not himself seek to initiate an affirmative prosecution on behalf of the Commonwealth. See i d. (“[W] e do not presently vindicate the pursuit of an actual prosecution by a special p rosecutor appointed by a supervising judge, since those are not the facts before us.

. . . Rather, the propriety of such a prosecution would appear to remain an issue of first impression in this Court. ”).

21 42 Pa.C.S. § 9771 (“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 identifiabl e threat to public safety.”).[ J

- 115

- 2020 ]

- 9

resolution of a defendant ’ s new charges, we have never held that trial courts lack the discretion to hold VOP hearing s prior to a probationer ’ s new trial. 22
We also express no opinion regarding any other remedies that may have been
available to the trial court to address the Commonwealth ’ s refusal to participate in Mayfield ’ s VOP hearing. 23 T he only question before us today is wheth er the trial court had the authority to remove the DAO and appoint a special prosecutor of its own choosing . We hold that it did not. Accordingly, we vacate the trial court ’ s appointment order and remand for further proceedings. Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.

22 See Commonwealth v. Infante , 888 A.2d 783, 793 (Pa. 2005) (noting this Court ’ s “preference for deferral of VOP sentencing until the final outcome of any new criminal charges”), partially abrogated on other grounds by Common wealth v. Foster , 214 A.3d 1240 (Pa. 2019); but see Kates , 305 A.2d at 706 (“[T]here 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 probat ionary period prior to the trial for the subsequent offense.”).

23 See Trial Court Opinion at 28 ( “ This Court could have initiated contempt proceedings to force Appellant ’ s refused participation in the probation hearing. ”).