J-S06012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW EARLY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1122 EDA 2021

Appeal from the Judgment of Sentence Entered May 5, 2021,

in the Court of Common Pleas of Montgomery County,

Criminal Division at No(s): CP-46-CR-0000733-2010.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 23, 2022

Matthew Early appeals from the judgment of sentence entered following 

revocation of his parole and probation. After careful review, we affirm in part 

and vacate in part.

On March 20, 2014, Early pled guilty to one count of retail theft.

1

 The 

court sentenced Early to time served to 12 months’ incarceration followed by 

a consecutive sentence of three years’ probation.

While serving that sentence, Early violated his probation. On November 

19, 2018, the court revoked his probation and resentenced him to time served 

to 12 months’ incarceration plus a consecutive two-year period of probation.

Subsequently, Early was paroled. 

____________________________________________

1 We note that Early’s plea and sentence arose out of an incident that occurred 

in 2010.
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While serving the probationary term of his November 19, 2018,

sentence, Early violated his probation again. On April 2, 2020, the court 

revoked his probation and resentenced him to time served (from 1/16/2020)

to 12 months’ incarceration. Early was paroled shortly thereafter.

A few months later, in August 2020, while still on parole for the April 2, 

2020, sentence, Early was arrested in Philadelphia on multiple charges, 

including possession of a firearm prohibited, burglary, theft by unlawful 

taking, receiving stolen property, criminal trespass, conspiracy, firearms not 

to be carried without a license, corruption of minors, carrying firearms on 

public streets, and criminal mischief.2 The trial court summarized the 

circumstances surrounding Early’s arrest for these offenses as follows: 

[On August 7, 2020,] Officer Rajkowski was on patrol at 

approximately 4:51 a.m. when [he] saw two men suddenly run 

from a parked Chrysler Town and Country minivan as they spotted 

his police car. Officer Rajkowski caught and detained one of the 

men, [Early]. The [officer] also found [Early’s] son, then fourteen 

years old, in the minivan. The van was full of movable property, 

including computer equipment, rifles and shotguns. Officer 

Rajkowski looked around and noticed damage to the front door of 

a doctor's office at the corner where the van was parked. The 

officer was able to walk inside the doctor's office, which supports 

an inference that the damage was such that it enabled entry to 

what one would expect (given that it was nighttime in densely 

populated area) to have been a locked building. [Early] was not 

in possession of a key to the building. The area immediately inside 

the doorway, which appeared to be the waiting room for the 

doctor's patients, was cluttered with movable property, and the 

rooms upstairs had been ransacked. Photographs taken later in 

the investigation showed computer equipment in the van and a 

____________________________________________

2 Ultimately these criminal charges were withdrawn. 
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pump-action shotgun, a bolt-action rifle and three swords resting 

on the furniture in the waiting room. 

Trial Court Opinion, 7/26/21, at 2-3 (citations omitted).

Based on these charges, the Montgomery County Adult Probation and 

Parole Office issued a notice of violation dated August 11, 2020. Multiple 

technical violations were listed also. 

Following a hearing on May 5, 2021, the court found that Early violated 

his parole and probation. As a result, the court revoked his parole and 

probation, and imposed a new sentence of 10 to 24 months’ incarceration in 

a state facility, to commence from his commitment date of August 11, 2020. 

Early filed this timely appeal. Early and the court complied with 

Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Early challenges the court’s revocation of his parole and 

probation and resulting sentence. For ease of disposition, we have restated 

and reordered his issues as follows:

I. Whether the court erred in anticipatorily revoking his 

sentence of probation when Early was still on parole at the 

time of his alleged violations and had not yet begun serving 

his probationary term.

II. Whether the evidence was insufficient to establish a parole 

violation since the Commonwealth failed to present 

evidence of the actual terms and conditions of Early’s parole

or the violation of a specific condition of his parole as 

required by Commonwealth v. Koger, 255 A.3d 1255 (Pa. 

Super. 2021), appeal granted, 2022 WL 1014268 (Pa. April 

5, 2022), or evidence of a new crime.

III. Whether the court erred in permitting the introduction of 

hearsay testimony to establish Early’s permission to be on 

the property and ownership of the property thereby 
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violating Early’s right to due process and his right to 

confrontation.

IV. Whether the court erroneously revoked Early’s parole and 

imposed an illegal sentence since the Commonwealth failed 

to establish a violation.

See Early’s Brief at 5-7.

In the first issue, Early claims that the court erred finding that he

violated his probation, revoking his probation, and imposing a new sentence. 

Specifically, Early argues that the court’s anticipatory revocation of his 

probation was illegal since he was still on parole at the time of his alleged 

violation and had not begun serving his probationary term. In support of his 

position, Early relies on our recent decision in Commonwealth v. Simmons, 

262 A.3d 512 (Pa. Super. 2021) (en banc)

3

. Early’s Brief at 25-26.

In its Rule 1925 opinion, the court implies that it did not revoke Early’s 

probation, but only revoked his parole. The Commonwealth agrees. Trial 

Court Opinion, 7/26/21, at 1, 2, 4; Commonwealth’s Brief at 7.

Our review of the record, however, reveals that the notice of violation 

was generic and referenced both parole and probation. At the hearing, the 

Commonwealth specifically argued that “the defendant’s conduct at the very

least violated his probation and parole.” N.T., 5/5/21, at 31. The 

Commonwealth requested that Early “be essentially maxed out, based on his 

back time and remaining exposure for a sentence of ten to 24 months. . . .” 

____________________________________________

3 Our Supreme Court granted allowance of appeal in Commonwealth v. 

Rosario, 264 A.3d 358 (Pa. Super. 2021) to review issues decided by this 

Court in Simmons.
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Id. at 35. Furthermore, the court specifically stated on the record that “I have 

found the defendant, after a full contested Gagnon Hearing, to be in violation 

of his probation and parole.” Id. at 43. It then imposed a new sentence of 

incarceration.4 Therefore, we will address this issue.5

When considering an appeal from a sentence imposed following the 

revocation of probation, “[o]ur 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 

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4 We reiterate this Court’s guidance in the Simmons’ concurrence which 

elaborated on the differences between parole and probation and the separate 

statutory authority for each. Thus, when conducting a violation hearing, the 

court “must question whether the violation hearing is for an alleged violation 

of parole or violation of probation, as the court's possible sanctions are 

different.” Id. at 533. Additionally, the record should clearly reflect the basis 

on which the court is proceeding. 

5 Although Early’s notice of appeal and Rule 1925(b) statement, which was 

filed before Simmons, did not raise 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. 

Furthermore, “Pennsylvania appellate courts apply the law in effect at the time 

of the appellate decision. This means that we adhere to the principle that, a 

party whose case is pending on direct appeal is entitled to the benefit of 

changes in law which occur before the judgment becomes final.” 

Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations 

omitted and formatting altered).
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initial sentencing.” Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. 

Super. 2007), appeal denied, 945 A.2d 169 (2008) (citation omitted); 42 

Pa.C.S.A. § 9771(b). “Revocation of a probation sentence is a matter 

committed to the sound discretion of the trial 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). 

In Simmons, an en banc panel of this Court overruled Commonwealth 

v. Wendowski, 420 A.2d 628 (Pa. Super. 1980), which permitted a court to 

anticipatorily revoke an order of probation upon violation and resentence a 

defendant before the start of a probationary sentence. In reviewing the 

relevant statutes, the Simmons Court determined that when a trial court 

imposes an order of probation to run consecutive to a term of confinement, 

the defendant is “required to serve his entire term of total confinement before 

he beg[ins] to serve his probationary term.” Id. at 523. Thus, the Simmons

Court held, the conditions of an order of probation “cannot take effect until 

the term of imprisonment ends.” Id. at 524. Accordingly, where an appellant 

is on parole and his probationary period has yet to begin, a trial court cannot 

anticipatorily find that an appellant violated the terms and conditions of 

probation and revoke it. Id. at 524-25. No statutory authority exists 

permitting a trial court to anticipatorily revoke, i.e. before the sentence of 

probation has started, an order of probation. Id. Consequently, for a court

to consider whether a defendant violated probation and potentially revoke it, 

the violation must occur while the defendant is serving his sentence of 
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probation; there cannot be a violation of probation until a defendant has 

started his probationary term. 

Here, when Early committed the alleged violations, he was on parole 

because his sentence of incarceration did not max out and probation did not 

begin until January 16, 2021, 

Since Early’s violations occurred on August 7, 2020, shortly after he was 

paroled, his alleged violations could not constitute probation violations, and 

the court could not find that Early violated his probation. As a result, the court 

could not revoke Early’s sentence of probation and impose a new sentence of 

incarceration. In doing so, we conclude that the trial court erred. We consider 

Early’s remaining issues in the context of his parole revocation.

In the second issue, Early claims that the evidence was insufficient to 

establish that he violated his parole based on this court’s holding in Koger. 

Specifically, Early argues that he did not violate the terms of his parole 

because the court did not impose any conditions upon him at the time of 

sentencing. Consequently, according to Early, the Commonwealth failed to 

establish that he committed technical violations of his parole. Early’s Brief at 

24. 

Early further claims that the evidence failed to establish that he 

committed new crimes. Specifically, he argues that, without the admission of 

hearsay evidence, the Commonwealth could not prove that he was not allowed 

in the doctor’s office, the property found in his van came from that office, or 

that the damage on the office door predated the incident. Id. at 24-25. 
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In reviewing Early’s claims, we are mindful of the following. “[T]he 

purposes of a court's parole-revocation hearing — the revocation court's tasks

— are to determine whether the parolee violated parole and, if so, whether

parole remains a viable means of rehabilitating the defendant and deterring 

future antisocial conduct, or whether revocation, and thus recommitment, are 

in order.” Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 

2008). “The Commonwealth must prove the violation by a preponderance of 

the evidence and, once it does so, the decision to revoke parole is a matter 

for the court's discretion.” Id. at 291. 

In the exercise of that discretion, technical violations such as failure to 

report or not living at a given address are alone sufficient to support the parole

revocation. See Commonwealth v. Smith, 534 A.2d 120, 121 (Pa. Super. 

1987), appeal denied, 542 A.2d 1368 (Pa. 1988). However, in order for a 

defendant to be found in violation of the conditions of parole, the court is 

required to attach conditions to a defendant’s parole and inform him or her of 

same. Koger, 255 A.3d at 1291. Failure to do so is a violation of the court’s 

statutory mandate. Id. at 1290. As such, this responsibility cannot be 

delegated to a county probation and parole department. Where a trial court 

does not impose, at the time of sentencing, any specific probation or parole 

conditions, the court cannot find that a defendant violated a specific condition

of probation or parole included in the sentencing order. Id. at 1291.

Additionally, the commission of a new crime or conviction of another 

crime committed while on parole is a sufficient basis for revoking parole.
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Commonwealth v. Foster, 214 A.3d 1240, 1251 (Pa. 2019); Kalichak, 943 

A.2d at 290–91 (citing Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa.

Super. 2004)). 

Here, the Commonwealth sought revocation of Early’s parole based 

upon technical violations as well as the commission of new crimes. We first 

consider whether there was sufficient evidence presented for the court to find 

that Early violated various conditions of his parole. The Commonwealth 

claimed the following:

2. You failed to conduct yourself in a manner that would not create 

a danger to the community or yourself. To wit: On or About August 

7, 2020, in Philadelphia, Pennsylvania, you, along with your 

fourteen (14) year old son, broke into a doctor’s office and stole 

approximately $120,000 worth of items including, but to limited 

to, several firearms, ammunition, swords, a HP monitor, one (1) 

Acer laptop, (1) Centry safe, and one (1) wooden chest. (Violation 

of Rule #2).

3. Failed to not own, use, and/or possess any type of lookalike 

firearm, lethal weapon explosive, and/or ammunition. To wit, on 

or about August 7, 2020, in Philadelphia, Pennsylvania, you were 

found by the Philadelphia Police Department to be in possession 

of four (4) shot guns, five (5) rifles, three (3) civil war swords, 

one (1) box of Remington shotgun shells, and a ten (10) round 

magazine fully loaded with .223 ammunition. (Violation of Rule 

#9).

4. Failed to report to the Montgomery County Adult Probation and 

Parole Department as directed: To wit: You failed to report within 

(48) hours of release from custody, as required. Furthermore, you 

failed to contact this Department on or about July 8 and July 29, 

2020, as directed. (Violation of Rule #1).

5. Failed to obtain and/or maintain a legal and verifiable residence 

as directed. (Violation of Rule #3).

6. Absconded from supervision on or about July 29, 2020.

(Violation of Rule #3).
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7. Failed to enter, cooperate and participate in, and/or complete 

and evaluation, test and/or treatment as directed. To wit: You 

failed to enroll in and/or complete drug and alcohol and/or mental 

health inpatient treatment, as recommended by the Probation and 

Parole Intervention (PPI) Evaluation. (Violation of Rule #7).

At the outset of the revocation hearing, the Commonwealth introduced 

the rules and regulations of supervision referenced in the notice of violation. 

N.T., 5/5/21, at 7. Early’s parole officer indicated that Early did not report 

after he was released. He also did not respond to the two letters supervision 

sent to him. Id. at 41.

Additionally, Early’s PPI recommended that he receive inpatient 

treatment. Early claimed that he did outpatient drug and alcohol treatment 

but did not provide verification thereof. Id. Further, Early admitted that, 

even though the PPI recommended mental health treatment, he did not 

comply with it. He also admitted that he was not in touch with his parole

officer. Id. at 29. Because this was Early’s third violation and he showed an 

inability to change, his parole officer asked the court to impose a state 

sentence. 

Based upon this information, the court found that Early violated his 

parole for failure to report, absconding, and failure to comply with his PPI.6 

Id. at 43, 45. 

____________________________________________

6 The Commonwealth withdrew the failure to provide verifiable address 

violation. Id. at 27, 45.
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Upon review of the record, we conclude that the court did not err in 

finding that Early violated his parole. First, contrary to Early’s claim, the court 

did impose certain conditions of parole with which he was required to comply

and informed Early of these requirements. In its April 2, 2020, order which 

revoked Early’s probation and resentenced him, the “Special Conditions of 

Sentence” specifically required Early to have a PPI evaluation and comply with 

the recommended treatment. 

Also, in its April 3, 2020 order which granted Early’s parole, the court 

indicated that he was released from imprisonment “under supervision of the 

Montgomery County Adult Probation and Parole Department for the remainder 

of the maximum sentence . . . .” To carry out that supervision, the county 

probation and parole department imposed certain rules and regulation. In 

particular, Early was required to report in and make himself available to 

supervision. We have held that “conditions of supervision that are germane 

to, elaborate on or interpret any conditions of probation [or parole] that are 

imposed by the trial court[]” are permissible. Commonwealth v. Elliott, 50 

A.3d 1284, 1292 (Pa. 2012).

Further, as set forth above, the evidence presented at the revocation 

hearing demonstrated that Early did not comply with these conditions. Thus, 

contrary to Early’s claim, there was sufficient evidence for the court to find 

Early in technical violation of his parole. 
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We next consider the Commonwealth’s claim that Early violated his 

parole based upon the commission of multiple, new crimes. The 

Commonwealth claimed as follows:

1. Arrested on or about August 7, 2020 by the Philadelphia Police 

Department for conduct of the following nature: Possession of 

a Firearm Prohibited, Burglary – Not Adapted for Overnight 

Accommodation No Person Present, Theft by Unlawful Taking –

Movable Property, Receiving Stolen Property, Criminal 

Trespass – Breaking into Structure, Conspiracy, Firearms Not 

to be Carried Without a License, Corruption of Minors, Carrying 

Firearms on Public Streets and Criminal Mischief. On or about 

August 7, 2020. (Violation of Rule #2).

The court found that the Commonwealth presented sufficient evidence at the 

revocation hearing to show that Early committed new crimes in violation of 

his parole. Trial Court Opinion, 7/26/21, at 5-7. 

Preliminarily, we observe that the sole basis upon which Early challenges 

the sufficiency of the evidence to establish that he committed a new crime is 

that the court improperly allowed the Commonwealth to present hearsay 

evidence. According to Early, without the hearsay, no evidence was presented

to indicate that the items found in Early’s van came from the doctor’s office, 

that he was not permitted in the doctor’s office, or that damage to the office 

door did not predate the incident. Early’s Brief at 24-25. 

When conducting a sufficiency review, we consider all the evidence 

actually admitted, even improperly admitted evidence. Commonwealth 

v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc ) (emphasis added). 
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We do not review a diminished record. Commonwealth v. Koch, 39 A.3d 

996, 1001 (Pa. Super. 2011). As such, Early’s contention is without merit.

7

 

 Based on the foregoing, we conclude that the court neither erred in 

finding that Early violated his parole nor abused its discretion in revoking his 

parole.

In the third issue, Early claims that the court improperly admitted the 

property owner’s statements through Officer Rajkowski to establish that Early

was not permitted to enter the doctor’s office, that the items came from the 

doctor’s office, or that the property was damaged that night, and therefore 

that he committed certain crimes. Early maintains that these statements 

constituted hearsay and violated his Sixth Amendment right to confrontation. 

Furthermore, because this was the only evidence to support the 

Commonwealth’s claims, the admission of these statements was not harmless 

error. Early’s Brief at 16-17. 

Our standard of review of a trial court's evidentiary rulings, which 

include rulings on the admission of hearsay, is abuse of discretion. 

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014). However, whether 

a defendant has been denied his right to confront a witness under the 

Confrontation Clause of the Sixth Amendment to the United States 

Constitution is a question of law, for which our standard of review is de novo

____________________________________________

7 Because Early asserted no other argument regarding the sufficiency of the 

evidence to establish that he violated his parole by committing new crimes, 

Early has waived them. 
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and our scope of review is plenary. Commonwealth v. Yohe, 79 A.3d 520, 

530–31 (Pa. 2013). 

Hearsay is “a statement . . . the declarant does not make while testifying 

at the current trial or hearing . . . [that is offered] in evidence to prove the 

truth of the matter asserted.” Pa.R.E. 801(c)(1)-(2). Statements that meet

this definition are not admissible unless a hearsay exception applies.

Pa.R.E. 802. Under Pennsylvania law, “hearsay is not admissible at a Gagnon 

II hearing absent a finding of good cause for not allowing confrontation.” 

Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009). 

Notwithstanding this, “an out-of-court statement is not hearsay when it has a

purpose other than to convince the fact finder of the truth of the statement.” 

Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012).

At the revocation hearing, Early objected to Officer Rajkowski’s 

testimony regarding the property owner’s statements. The court overruled 

the objection and specifically explained on the record that it was not accepting

the statements as out of court declarations for the truth of the matter 

asserted. Instead, the court indicated that it was only allowing them for the 

purpose of eliciting what the officer did in response to learning this 

information. N.T., 5/5/21, at 18. The trial court further explained that there 

was sufficient circumstantial evidence from which it could conclude that Early 

was not allowed on the property. Trial Court Opinion, 7/26/21, at 4. 

Given this explanation, the property owner’s statements were not 

hearsay as the court did consider them for the truth of the matter asserted. 
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Consequently, Early’s right to confront the property owner was not violated.

We therefore conclude that the court did not abuse its discretion or commit

an error of law by allowing this testimony into evidence.

In the fourth issue, Early claims that the court imposed an illegal 

sentence. Specifically, he argues that because the Commonwealth failed to 

establish that he violated his parole, the court could not revoke his parole and 

resentence him. In support of his position, he relies on Koger to claim his

sentence was illegal. Early’s Brief at 20, 21. 

Indisputably, the Commonwealth must establish that there was a 

violation of parole before it can be revoked. However, as discussed above, 

there was sufficient evidence to establish that Early violated his parole. 

Therefore, his claim is meritless. 

Nonetheless, we observe that the court imposed a new sentence of 12 

to 24 months’ incarceration. This was an illegal sentence.8 Unlike a probation 

revocation, a parole revocation does not involve the imposition of a new 

sentence. Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa. Super. 

1993). Indeed, there is no authority for a parole-revocation court to impose 

a new penalty. Id. Rather, the only option for a court that decides to revoke 

parole is to recommit the defendant to serve the remainder of the original 

____________________________________________

8 Challenges to an illegal sentence can never be waived and may be raised 

sua sponte by an appellate court. Simmons, 262 A.3d at 516.
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sentence it already imposed. Id. At some point thereafter, the defendant 

may again be paroled. Id. 

Insofar as the trial court revoked Early’s parole and imposed a new 

sentence, that new sentence was illegal. Accordingly, we must remand for 

resentencing. 

In sum, we conclude that the court erred in finding that Early violated 

his probation since he had not started serving his sentence of probation. We, 

therefore, must vacate Early’s judgment of sentence for violation of probation; 

the court must reinstate his probation sentence as ordered on April 2, 2020. 

Additionally, the court did not err in finding that Early violated his parole 

and revoking it. However, the court impermissibly imposed a new sentence. 

Accordingly, we vacate Early’s sentence and remand with instructions to 

resentence Early to the balance of his April 2, 2020, sentence of incarceration. 

Judgment of sentence vacated. Case remanded with instructions to 

reinstate the original order of probation and for resentencing. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2022