J-S36034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRELL DOCTOR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1597 EDA 2020

Appeal from the Judgment of Sentence Entered July 28, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003444-2017

COMMONWEALTH OF PENNSYLVANIA

v.

TERRELL DOCTOR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1598 EDA 2020

Appeal from the Judgment of Sentence Entered July 28, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005642-2017

COMMONWEALTH OF PENNSYLVANIA

v.

TERRELL DOCTOR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1599 EDA 2020

Appeal from the Judgment of Sentence Entered July 28, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005643-2017

COMMONWEALTH OF PENNSYLVANIA :

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
J-S36034-21

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v.

TERRELL DOCTOR 

Appellant

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: No. 1600 EDA 2020

Appeal from the Judgment of Sentence Entered July 28, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009141-2017

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 2, 2022

Appellant, Terrell Doctor, appeals from judgments of sentence of the 

Court of Common Pleas of Philadelphia County (the trial court) following the 

revocation of his probation in four consolidated criminal proceedings. For the 

reasons set forth below, we vacate Appellant’s judgments of sentence and 

remand all four cases for reinstatement of the original orders of probation.

On January 29, 2018, Appellant entered negotiated guilty pleas in four 

criminal cases, CP-51-CR-0003444-2017 (CR-3444-2017), CP-51-CR0005642-2017 (CR-5642-2017), CP-51-CR-0005643-2017 (CR-5643-2017), 

and CP-51-CR-0009141-2017 (CR-9141-2017). In CR-3444-2017, Appellant 

pled guilty to robbery, aggravated assault, conspiracy, and carrying a firearm 

without a license and was sentenced to an aggregate 2 to 5 years’ 

imprisonment followed by 7 years’ probation. N.T., 1/29/18, at 4-5, 7, 12-

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* Retired Senior Judge assigned to the Superior Court.
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13, 18-19, 24-25; CR-3444-2017 Sentencing Order, 1/29/18. In CR-5642-

2017, Appellant pled guilty to robbery and carrying a firearm without a license 

and was sentenced to an aggregate 2 to 5 years’ imprisonment followed by 7 

years’ probation. N.T., 1/29/18, at 5, 7, 14-15, 19, 25; CR-5642-2017 

Sentencing Order, 1/29/18. In CR-5643-2017, Appellant pled guilty to 

resisting arrest and was sentenced to 2 years’ probation. N.T., 1/29/18, at 5-

7, 15-17, 19-20, 25-26; CR-5643-2017 Sentencing Order, 1/29/18. In CR9141-2017, Appellant pled guilty to robbery, conspiracy, and carrying a 

firearm without a license and was sentenced to an aggregate 2 to 5 years’ 

imprisonment followed by 7 years’ probation. N.T., 1/29/18, at 6-7, 17-18, 

20, 26; CR-9141-2017 Sentencing Order, 1/29/18. 

The trial court ordered that the sentences of imprisonment in CR-3444-

2017, CR-5642-2017, and CR-9141-2017 were to run concurrently and that 

the probation sentences were concurrent with respect to each other, but that 

all the probation periods were to be served consecutive to the 2 to 5 year 

prison sentences. N.T., 1/29/18, at 4-6, 23-25; CR-3444-2017 Sentencing 

Order, 1/29/18; CR-5642-2017 Sentencing Order, 1/29/18; CR-9141-2017 

Sentencing Order, 1/29/18. In CR-5643-2017, the trial court ordered that 

Appellant’s probation was to be served concurrently with the probation 

portions of his sentences in CR-3444-2017, CR-5642-2017, and CR-9141-

2017. N.T., 1/29/18, at 5-6, 23-26; CR-5643-2017 Sentencing Order, 

1/29/18. In all four cases, the trial court imposed as a condition of probation 
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that Appellant was required to “submit to random home and vehicle checks 

for weapons and drugs.” CR-3444-2017 Sentencing Order, 1/29/18; CR5642-2017 Sentencing Order, 1/29/18; CR-5643-2017 Sentencing Order, 

1/29/18; CR-9141-2017 Sentencing Order, 1/29/18; see also N.T., 1/29/18, 

at 22-23.

Appellant was paroled from his 2 to 5 year prison sentences by the 

Pennsylvania Board of Probation and Parole (state parole board) on June 29, 

2019. In August 2019, while on parole, Appellant was arrested and charged 

with possession of a firearm by a person prohibited and other offenses. N.T., 

1/9/20, at 8-9; Trial Court Opinion at 5. On February 10 and 13, 2020, before 

Appellant was tried on those new charges and over Appellant’s objection that 

the hearing should be deferred until the new criminal charges were resolved,

the trial court held violation of probation hearings in CR-3444-2017, CR-5642-

2017, CR-5643-2017, and CR-9141-2017.1 On February 13, 2020, based on 

the evidence at those hearings, the trial court found that Appellant was in 

possession of a firearm in the August 2019 incident, that this constituted a 

violation of the conditions of his probation in CR-3444-2017, CR-5642-2017, 

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1

It is not clear from the record whether the new criminal charges have yet 

been resolved. Appellant states in his brief, filed in July 2021, that, at that 

time, the new charges were listed to be tried on November 8, 2021. 

Appellant’s Brief at 11. 
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CR-5643-2017, and CR-9141-2017, and revoked Appellant’s probation in all 

four cases. N.T., 2/13/20, at 46-48.

2

On July 22, 2020, the trial court sentenced Appellant to an aggregate 

15 to 30 years’ imprisonment followed by 21 years’ probation in these four 

cases. Appellant filed timely post sentence motions in all four cases seeking 

reconsideration of his sentences. On July 28, 2020, the trial court granted the 

post sentence motions in part, vacated the July 22, 2020 sentences, and

resentenced Appellant to an aggregate 71/2 to 15 years’ imprisonment 

followed by 7 years’ probation. CR-3444-2017 Sentencing Order, 7/28/20; 

CR-5642-2017 Sentencing Order, 7/28/20; CR-5643-2017 Sentencing Order, 

7/28/20; CR-9141-2017 Sentencing Order, 7/28/20. 

Appellant timely appealed in all four cases and this Court sua sponte

consolidated these appeals. In his brief in these appeals, Appellant argues that 

the judgments of sentence must be vacated on the grounds that (1) the trial 

court should have deferred the violation of probation hearing until after the 

resolution of the new criminal charges; (2) the new sentences were excessive; 

and (3) the evidence was insufficient to show a violation of a condition of 

Appellant’s probation. Appellant’s Brief at 2-3. The Commonwealth argues 

that Appellant’s sentences must be vacated under this Court’s decision in 

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2 Because Appellant’s parole was from a state sentence, revocation of 

Appellant’s parole was under the jurisdiction of the state parole board and the 

hearing and revocation were limited to Appellant’s probation sentences. 
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Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc). 

We agree with the Commonwealth that it is clear from the record that 

Appellant was not serving his probation sentences in August 2019 and that 

under Simmons, the revocation of probation in these cases was without 

statutory authority and the sentences imposed for those revocations of 

probation are illegal sentences. We therefore vacate Appellant’s judgments of 

sentence on that ground and need not and do not address Appellant’s issues. 

While Appellant, whose brief was filed before Simmons was decided,

did not argue this issue, the issue of whether a sentence is illegal is not subject 

to waiver and may be raised by this Court, even if the appellant has not raised 

it. Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889 (Pa. Super. 

2019); Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013). 

“The legality of a criminal sentence is non-waivable, and this Court may ‘raise 

and review an illegal sentence sua sponte.’” Pi Delta Psi, Inc., 211 A.3d at 

889 (quoting Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 

2010)). A sentence imposed for an invalid revocation of probation is an illegal 

sentence. Simmons, 262 A.3d at 515-16 & n.3. 

A court may revoke a defendant’s probation only upon proof that the 

defendant violated a condition of his probation. 42 Pa.C.S. § 9771(b); 

Commonwealth v. Foster, 214 A.3d 1240, 1243, 1250-51 (Pa. 2019); 

Simmons, 262 A.3d at 519. When a court orders that a sentence of probation 

is to run consecutive to a term of imprisonment, the defendant’s conduct while 
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he is still on parole from the imprisonment sentence cannot constitute a 

violation of probation because the probation conditions cannot take effect until 

the imprisonment sentence has been fully served. Simmons, 262 A.3d at

523-25, 527. 

Here, the record shows that Appellant’s probation sentences in all four 

case were consecutive to his sentences of imprisonment and that he was still 

on parole in August 2019. The trial court’s January 29, 2018 sentencing 

orders in CR-3444-2017, CR-5642-2017, and CR-9141-2017 expressly 

provided that all periods of probation were consecutive to the 2 to 5 year 

imprisonment portions of those sentences and its January 29, 2018 sentencing 

order in CR-5643-2017 expressly provided that the 1 to 2 year period of 

probation that it imposed was to be served concurrently with the probation

sentence in CR-5642-2017. CR-3444-2017 Sentencing Order, 1/29/18; CR5642-2017 Sentencing Order, 1/29/18; CR-9141-2017 Sentencing Order, 

1/29/18; CR-5643-2017 Sentencing Order, 1/29/18.

3 Appellant was paroled

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3 Although the trial court at the February 2020 hearings asserted that 

Appellant was serving his probation sentence in CR-5643-2017 in August 

2019, N.T., 2/13/20, at 5, 49, those subsequent characterizations of 

Appellant’s sentence cannot alter the clear language of the January 29, 2018 

sentencing order. Commonwealth v. Borrin, 80 A.3d 1219, 1226-27 (Pa.

2013). Indeed, the trial court in its opinion recognized that Appellant’s 

probation sentence in CR-5643-2017 was consecutive to the 2 to 5 year prison 

sentences in the other three cases. Trial Court Opinion at 4 (stating that the 

January 29, 2018 sentencing orders provided that “[a]ll periods of state and 

county supervised periods of probation were imposed to run concurrently with 

(Footnote Continued Next Page)
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from the 2 to 5 year prison sentences in June 2019 and he could not finish 

serving those prison sentences until 2022 at the earliest, as he was arrested 

in these four cases in February 2017 and June 2017. Therefore, because he 

was not yet serving the probation sentences, Appellant’s actions in August 

2019 could not be in violation of a condition of his probation in any of these 

cases and the revocation of probation and new sentences in all four cases 

must be vacated. Simmons, 262 A.3d at 523-25, 527.

4

 

Because the trial court lacked authority to revoke Appellant’s probation 

based on his actions in August 2019, while he was still serving his prison 

sentences on parole and his probation had not yet begun in any of the four 

cases, the sentences that it imposed in July 2020 were illegal sentences. 

Accordingly, we vacate Appellant's judgments of sentence and remand that

case with instructions to reinstate the January 29, 2018 probation sentences 

in all four cases.

Judgments of sentence vacated. Case remanded with instructions to 

reinstate the original probation sentences. Jurisdiction relinquished. 

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each other but consecutively running to all periods of state supervised periods 

of confinement”). 

4 We recognize that revocations of probation before the defendant began 

serving his probation sentence were permitted under this Court’s precedents 

at the time of the probation revocation hearing here and that our en banc

decision in Simmons overruling those precedents was not handed down until 

this case was on appeal. New judicial decisions that change the law, however, 

are applicable to cases on direct appeal. Commonwealth v. Chesney, 196 

A.3d 253, 257 (Pa. Super. 2018). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/02/2022