J-S40044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

WALLACE LARDANI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2013 EDA 2021

Appeal from the Judgment of Sentence Entered February 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012402-2014

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

WALLACE LARDANI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2014 EDA 2021

Appeal from the Judgment of Sentence Entered February 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012397-2014

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

WALLACE LARDANI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2015 EDA 2021

Appeal from the Judgment of Sentence Entered February 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012400-2014
J-S40044-22

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COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

WALLACE LARDANI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2016 EDA 2021

Appeal from the Judgment of Sentence Entered February 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012401-2014

BEFORE: PANELLA, P.J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JUNE 12, 2023

Appellant, Wallace Lardani, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, following 

revocation of his probation. Although we hold that Appellant’s issues raised 

on appeal do not merit any relief, we sua sponte vacate the probationary 

portion of Appellant’s revocation sentences as illegal and remand for 

resentencing.

In its opinion, the trial court set forth the relevant facts and procedural 

history of this case as follows:

The summarized underlying facts supporting the guilty pleas 

for the [above-captioned cases] included Appellant’s arrest, 

lodging of criminal charges and commensurate 

apprehension for violation of probation by Philadelphia 

police officers in 2014 while operating a stolen Black Dodge 

Ram truck that had been reported as involved in a string of 

vehicle thefts. Upon further discovery and investigation of 

numerous stolen vehicle parts, ranging from tires to lug nuts 

that had been recovered from inside the truck, Appellant 

had been further implicated in conspiratorial criminal 
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conduct that had affected numerous victims. Appellant 

entered respective negotiated guilty pleas to three felony 

counts of receiving stolen property [(“RSP”)] with a 

corresponding three counts of conspiracy, and the 

misdemeanor offense of possession of an instrument of a 

crime [(“PIC”)], also with a corresponding charge of 

conspiracy.

On April 16, 2015, after conducting full colloquies, this 

[c]ourt accepted the tendered guilty pleas and imposed the 

negotiated sentences that envisioned concurrently running 

periods of probationary supervision that had followed 

consecutively to all concurrently running periods of 

confinement. In each case, Appellant was sentenced to one 

(1) year and six (6) months to four (4) years of confinement 

beginning April 16, 2015, with credit being accorded for 

custodial time served, followed by five (5) years of 

supervised and specified rehabilitative condition periods of 

reporting probation. The rehabilitative conditions included 

regular reporting, payment of negotiated amounts of 

restitution to each impacted victim, compliance with random 

drug screening and treatment, completion of vocational 

training and engaged legitimate employment. Random 

home and vehicle checks were directed. 

During the ensuing period of probation in each case, 

however, Appellant once again absconded for a lengthy 

period after failing to report as directed with his assigned 

Probation Officer on October 21, 2019. Probation wanted 

cards had been issued. Formal First Judicial District of 

Pennsylvania bench warrants had been issued in each case 

on January 15, 2020. Arrest warrants for Appellant had also 

been issued from authorities in Shenandoah, Pennsylvania 

following reports of Appellant’s complicity in the burglary 

and related thefts from a residence in that county. All 

probationary and law enforcement efforts to locate 

Appellant were unsuccessful. All previously negotiated 

amounts of restitution, fines and costs in all cases remained 

unpaid.

Appellant was finally detained on May 14, 2020, following 

his arrest by Philadelphia uniformed police officers and 

lodging of resulting criminal charges including felony graded 

charges of Criminal Trespass, Theft by Unlawful Taking, 
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Theft by Receiving Stolen Property, and Criminal 

Conspiracy. On that date [at] about 3:00 a.m., uniformed 

patrol officers responded to ongoing radio call reports 

emanating from Allied Security officers that two individuals 

had entered a secured pad-locked and highly fenced-in 

parking lot owned by the Elwyn Institute located at 4400 

Ludlow Street, Philadelphia via a large step-ladder. They 

had been observed by security personnel pulling on car 

doors that had been parked inside the privately-owned lot.

Upon arrival, police officers detained one male just outside 

the lot. They observed a silver Toyota Prius registered to 

Elwyn Institute that had been damaged and precariously 

perched on a small vehicle jack. A yellow reciprocating saw 

was seen on the ground next to the Prius. There was also 

noticeable evidence that something had been cut 

presumably from the saw from that vehicle’s undercarriage. 

As officers approached, Appellant crouched by the lot fence, 

ran across the lot to an adjoining yard, climbed a retaining 

wall onto a patio and then jumped onto a nearby roof. He 

was apprehended by law enforcement after his leaping 

flight. 

It was also reported that the retrieved video from the 

camera feed that had been installed by Elwyn Institute, had 

captured much of the incident. In addition to the evidence 

that both males had been acting criminally in concert, law 

enforcement officials recovered a black Pontiac registered to 

Appellant that had been parked on Ludlow Street just 

outside of the invaded lot. Investigators recovered from 

that vehicle an unexplained Pennsylvania automobile 

registration plate and a radio scanner that had been used to 

monitor police responses. The Pontiac was held for 

fingerprinting processes. The reciprocating saw was 

retrieved. The entire scene reflective of the vehicle damage 

and use of the high ladder was photographed. Naturally 

both males were duly arrested and charged as conspirators. 

Upon notification of Appellant’s apprehension and arrest, 

this [c]ourt directed county probation department’s 

detention of Appellant and his commitment pending further 

proceedings. Gagnon I and II violation and revocation 

evidentiary hearings were scheduled and continued at the 
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request of the defense after receiving due notifications.[1] 

Appellant, by and through his privately retained counsel, 

Brian Fishman, Esquire, repeatedly demanded lifting of the 

probation detainers, objected to any consideration of any 

evidence related to the events of May 14, 2020 and 

simultaneously conceded to the technical violations related 

to the extended period of absconding and related nonreporting, nonpayment and still open warrants. The defense 

contentions and objections were overruled.

The evidentiary revocation hearing[s] were bifurcated and 

completed on September 24, 2020. Following completion of 

hearings, this [c]ourt formally revoked all periods of 

probation due in each case based on careful analysis of 

cumulative evidence of Appellant’s multi-formed violations. 

These violations included admitted absconding that had 

followed Appellant’s chronic non-reporting to his probation 

officer; failure to attend court proceedings to address the in 

and out of county warrants; refusal to pay any due 

restitution, fines, court costs; and general non-compliance 

with any of the court-directed rehabilitative conditions of 

probationary supervision. This demonstration of sufficient 

evidence had included Appellant’s brazen engagement in 

concerted criminal activity and flight from law enforcement 

officials on May 14, 2020 that led to his apprehension, 

detention and lodging of new criminal charges. Following 

revocations, presentence investigative [(“PSI”)] reports and 

mental evaluations and a sentencing hearing were ordered 

and scheduled for February 19, 2021.

On February 19, 2021, after announcing a thorough review 

of the mental health assessment and [PSI] reports, a full 

sentencing hearing of aggravating and mitigating 

circumstances was presented by the Commonwealth’s 

representative, Assistant District Attorney Jan McDermott, 

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1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). 

See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000) 

(explaining that when parolee or probationer is detained pending revocation 

hearing, due process requires determination at pre-revocation hearing 

(Gagnon I hearing) of probable cause to believe violation was committed; 

upon finding of probable cause, second, more comprehensive hearing 

(Gagnon II hearing) follows before court makes final revocation decision). 
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and defense counsel, Brian Fishman, Esquire.

As a result, ... the [court imposed an] aggregated sentence 

from all five cases...for a minimum state supervised term of 

confinement of five (5) years to [a] maximum ten (10) years 

of state supervised confinement, followed by the state 

supervised period of five (5) years of probation.[2] Credit 

for custodial time served was accorded. Supervisory and 

rehabilitative conditions were verbally specified within each 

Order of Sentence. 

Although post-sentence motions were filed on behalf of 

Appellant by Brian Fishman, Esquire on February 24, 2021 

which had been denied by operation of law, no appeal of any 

case was filed. On March 11, 2021, Valerie Joy Palazzo, 

Esquire was retained and entered her appearance [as] 

counsel on behalf of Appellant. Thereafter, no direct appeal 

was filed. Subsequently, Appellant, by and through 

Benjamin J. Simmons, Esquire, filed a timely Petition for 

relief pursuant to the Post Conviction Relief Act, 42 

Pa.C.S.A. § 9541 et seq. (“PCRA”) seeking reinstatement of 

appellate rights. Per agreement with the Commonwealth’s 

representative, Appellant’s PCRA request was granted, and 

his direct appellate rights were restored by this [c]ourt on 

August 25, 2021. A counseled Notice of Appeal was filed on 

behalf of Appellant on August 25, 2021 by Valerie Joy 

Palazzo, Esquire.[3] A counseled Statement of [Errors] 

Complained of on Appeal Pursuant to P[a].R.A.P. 1925(b) 

was filed on September 20, 2021. 

(Trial Court Opinion, filed January 4, 2022, at 3-8).

Appellant raises four issues for our review:

Did the Trial Court err in sua sponte ordering [the] 

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2 The court sentenced Appellant at the four above-captioned dockets, as well 

as a fifth case docketed at CP-51-CR-000470-2014 involving retail theft. 

Appellant has not appealed from the judgment of sentence at this docket 

number. 

3 Appellant filed a notice of appeal at each of the four above-captioned docket 

numbers. This Court subsequently consolidated the appeals sua sponte.
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Commonwealth to hold a Daisey Kates[4] hearing over 

Defense counsel’s objection and the Commonwealth’s 

objection when the Commonwealth had not filed a written 

motion to proceed as such and when Appellant was still

presumed innocent as he had not been convicted of the new 

charges?

Did the Trial Court err in sentencing Appellant to an 

aggregate term of 5-10 years of incarceration followed by 5 

years of consecutive probation when the only violation that 

should have been considered is Appellant’s technical 

violation, or failure to report to probation?

Did the Trial Court err in imposing a sentence that was 

unduly harsh, excessive, inconsistent with the sentencing 

code, contrary to fundamental norms underlying the 

sentencing process because it did not take into 

consideration the information contained in the Pre-Sentence

Report, the Mental Health Report, arguments for mitigation,

Appellant’s lack of any violent background, his gainful 

employment, the loss of his mother while incarcerated and 

the subsequent loss of his step-brother and other 

information including his need for rehabilitation?

(Appellant’s Brief at 2). 

Following the filing of Appellant’s brief on appeal, the Commonwealth 

nolle prossed the charges lodged against Appellant on May 14, 2020. Thus, 

Appellant filed an application for relief in this Court seeking leave to 

supplement his brief. This Court granted Appellant permission to do so, and 

Appellant filed a supplemental brief (incorporating all issues from the principal 

brief) raising the following issue:

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4 Where the court holds a revocation hearing based on new criminal charges 

before the defendant’s trial on the new charges, the proceeding is commonly 

known as a “Daisey Kates hearing.” See Commonwealth v. Kates, 452 

Pa. 102, 305 A.2d 701 (1973).
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Is the trial court’s excessive sentence of five to ten years of 

confinement for a revocation of probation void when the 

court considered the facts of a new arrest in a Daisey Kates

style Violation of Probation hearing and the new arrest was 

subsequently nolle prossed by the Commonwealth.

(Appellant’s Supplemental Brief at 2).

When reviewing the outcome of a revocation proceeding, this Court is 

limited to determining the validity of the proceeding, the legality of the 

judgment of sentence imposed, and the discretionary aspects of sentencing. 

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). In 

general, “[r]evocation 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. Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal 

denied, 631 Pa. 710, 109 A.3d 678 (2015). 

For purposes of disposition, we combine some of Appellant’s issues. 

Initially, Appellant argues that the Commonwealth did not file written notice 

of its intent to proceed with a violation of probation hearing prior to Appellant’s 

trial on the new May 2020 charges. In fact, Appellant insists the 

Commonwealth opposed proceeding to the revocation hearing prior to trial 

on Appellant’s new charges. In the absence of written notice, Appellant 

asserts that his due process rights were violated. Appellant acknowledges 

that case law permits the trial court to hold a revocation hearing prior to trial 

on new charges forming the basis for revocation of probation, but he indicates 
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that our courts have cautioned against doing so, in the event that the 

Commonwealth subsequently drops the new charges or the defendant is 

acquitted of the new charges. Appellant claims the evidence against him 

relevant to the new charges was extremely weak and circumstantial, and 

Appellant’s flight from authorities alone did not establish his guilt.

Additionally, Appellant emphasizes that the Commonwealth has now 

withdrawn the new charges.5 Appellant avers that the Commonwealth’s 

decision to nolle prosse the new charges renders his revocation sentence void, 

as that sentence was at least partially based on the new charges. Appellant 

suggests that the Commonwealth’s decision to nolle prosse the new charges 

is no different than an acquittal. Appellant concludes the trial court’s 

revocation sentence was inappropriate under these circumstances, and this 

Court must vacate and remand for resentencing. We disagree. 

Pennsylvania Rule of Criminal Procedure 708 governs violations of 

parole/probation, in pertinent part, as follows:

Rule 708. Violation of Probation, Intermediate 

Punishment, or Parole: Hearing and Disposition

(A) A written request for revocation shall be filed with 

the clerk of courts.

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5

In Appellant’s second issue raised in his principal brief, Appellant argued that 

the court should have only considered evidence of his technical probation 

violations while the new charges were still pending, because he was still 

presumed innocent of those charges. In his supplemental brief, Appellant 

elaborates on this claim with a purportedly stronger argument that the new 

charges are no longer pending against him based on the Commonwealth’s 

decision to nolle prosse the new charges.
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(B) Whenever a defendant has been sentenced to 

probation or intermediate punishment, or placed on parole, 

the judge shall not revoke such probation, intermediate 

punishment, or parole as allowed by law unless there has 

been:

(1) a hearing held as speedily as possible at which the 

defendant is present and represented by counsel; and

(2) a finding of record that the defendant violated a 

condition of probation, intermediate punishment, or parole.

Pa.R.Crim.P. 708(A)-(B). Additionally, with respect to revocation of probation, 

Section 9771 of the Sentencing Code provides:

§ 9771. Modification or revocation of order of 

probation

(a) General rule.—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.

(b) Revocation.—The court may increase the 

conditions, impose a brief sanction under section 9771.1 

(relating to court-imposed sanctions for violating probation) 

or revoke an order of probation upon proof of the violation 

of specified conditions of the probation. Upon revocation 

the sentencing alternatives available to the court shall be 

the same as were available at the time of initial sentencing, 

due consideration being given to the time spent serving the 

order of probation. The attorney for the Commonwealth 

may file notice at any time prior to resentencing of the 

Commonwealth’s intention to proceed under an applicable 

provision of law requiring a mandatory minimum sentence. 

(c) Limitation on sentence of total 

confinement.—The court shall not impose a sentence of 

total confinement upon revocation unless it finds that:
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(1) the defendant has been convicted of another 

crime; or

(2) the conduct of the defendant indicates that it is 

likely that he will commit another crime if he is not 

imprisoned; or 

(3) such a sentence is essential to vindicate the 

authority of the court.

(d) Hearing required.—There shall be no revocation 

or increase of conditions of sentence under this section 

except after a hearing at which the court shall consider the 

record of the sentencing proceeding together with evidence 

of the conduct of the defendant while on probation. 

Probation may be eliminated or the term decreased without 

a hearing. 

42 Pa.C.S.A. § 9771. 

A probationer’s due process rights at a revocation hearing include: (1) 

written notice of the claimed violation(s); (2) disclosure of the evidence 

against him; (3) an opportunity to be heard in person and to present witnesses 

and documentary evidence; (4) the right to confront and cross-examine 

adverse witnesses; (5) a neutral and detached hearing body; and (6) a written 

statement by the factfinder as to the evidence relied on and reasons for 

revocation. Kates, supra at 118, 305 A.2d at 709. Once these requirements 

are met, the court must decide following a hearing

whether the parolee or probationer has in fact acted in 

violation of one or more conditions of his parole or 

probation. It is this fact that must be demonstrated by 

evidence containing probative value. Only if it is determined 

that the parolee or probationer did violate the conditions 

does the second question arise: should the parolee or 

probationer be recommitted to prison or should other steps 

be taken to protect society and improve chances of 
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rehabilitation?

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001) (internal

citations and quotation marks omitted). “Unlike a criminal trial where the 

burden is upon the Commonwealth to establish all of the requisite elements 

of the offenses charged beyond a reasonable doubt, at a revocation hearing 

the Commonwealth need only prove a violation of probation by a 

preponderance of the evidence.” Id. at 350 (internal quotation marks 

omitted). 

“Technical violations can support revocation and a sentence of 

incarceration when such violations are flagrant and indicate an inability to

reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super. 2007). 

“Nevertheless, even when a probation violation is present, revocation is not 

automatic. Rather, the focus must remain on whether probation can still be 

an effective tool for rehabilitation.” Id.

“The threat of revocation may be executed on the basis of an arrest and 

evidence of some facts in addition.” Sims, supra at 350. See also 

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

well-settled law that probation cannot be revoked solely on basis of arrest). 

[W]hen the basis for revocation arises from the advent of 

intervening criminal conduct, a [revocation] hearing may be 

held prior to any trial arising from such criminal conduct. 

On the other hand, this Court has recognized that it is not 

unreasonable for a probation revocation hearing to be 

postponed pending adjudication of criminal charges which 

are the basis for the revocation. 
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Commonwealth v. Infante, 585 Pa. 408, 421, 888 A.2d 783, 791 (2005) 

(internal citations and quotation marks omitted), abrogated on other grounds 

by Commonwealth v. Foster, 654 Pa. 266, 214 A.3d 1240 (2019). The 

rationale and preference for deferring revocation proceedings is to “avoid the 

possibly unjust result of revoking probation, only to find later that the 

probationer has been acquitted of the charges that prompted the revocation 

hearing.” Id. at 422, 888 A.2d at 792. See also Commonwealth v. 

Royster, 524 Pa. 333, 572 A.2d 683 (1990) (reversing and vacating 

revocation sentence where new convictions, which had formed sole basis for 

revocation of probation, were ultimately overturned on double jeopardy 

grounds).

More recently, our Supreme Court authored its decision in 

Commonwealth v. Mayfield, ___ Pa. ___, 247 A.3d 1002 (2021). In that

case, the Supreme Court addressed whether the trial court had authority to 

appoint a private attorney as a “special prosecutor” to represent the 

Commonwealth, and to remove the District Attorney as the prosecutor in a 

probation revocation matter, after the Assistant District Attorney had informed

the trial court that the Commonwealth wanted to defer the probation 

revocation proceedings pending resolution of new charges lodged against the 

defendant. The Court decided that no statute or inherent powers granted the 

trial court authority to take such action. Id. at ___, 247 A.3d at ___. 

Nevertheless, the Court went on to
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caution that our decision should not be interpreted as 

approving the Commonwealth’s refusal to participate in a 

prompt [violation of probation] hearing as the court 

instructed. Our law is clear: trial courts have broad 

authority to modify or terminate their own supervisory 

orders. And while this Court has expressed a preference for 

deferring [violation of probation] proceedings until after the 

resolution of a defendant’s new charges, we have never held 

that trial courts lack the discretion to hold [violation of 

probation] hearings prior to a probationer’s new trial.

Id. (internal footnotes omitted). See also Commonwealth v. Parson, 259 

A.3d 1012, 1020-21 (Pa.Super. 2021) (relying on Mayfield and rejecting 

parties’ assertion that trial court abused its discretion by proceeding with 

violation of probation hearing over Commonwealth’s objection or before 

appellant’s new charges were resolved; explaining that both Section 9771 and 

our Supreme Court’s decision in Mayfield make clear that it is court, not 

Commonwealth, that has “inherent power” to revoke probation; stating that 

although it is often more prudent to defer violation of probation proceeding 

until after resolution of probationer’s new charges, it is not required; thus, 

court had authority to proceed with appellant’s violation hearing once alleged 

probation violations were reported by Probation Department, regardless of 

status of appellant’s new case or Commonwealth’s position). 

In Commonwealth v. Banks, 198 A.3d 391 (Pa.Super. 2018), this 

Court considered the effect of the Commonwealth’s decision to nolle prosse

new charges that had formed part of the basis for the revocation of the 

appellant’s probation. There, the appellant pled guilty in June 2015 to theft 

and other offenses. The court imposed a county intermediate punishment 
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(“IP”) sentence of five years. One year later, while serving the IP sentence, 

the probation department filed a violation petition alleging new criminal 

charges against the appellant and technical violations. The new charges 

involved allegations of assault and theft. The technical violations included 

allegations of failure to report to supervision, failure to report for urine 

screenings, and/or the production of a urine sample that tested positive for 

drugs or alcohol. 

At a subsequent hearing, the Commonwealth nolle prossed the new 

charges. The parties then proceeded to address the alleged IP violations. The 

appellant’s counsel conceded the technical violations but voiced concern that 

the nolle prossed charges had formed the primary basis for the revocation 

hearing. Nevertheless, the court agreed to consider evidence of the now-nolle 

prossed charges. The probation officer first detailed the technical violations. 

The probation officer then referenced the new arrest and provided details of 

the appellant’s conduct that had formed the basis of the nolle prossed charges. 

The appellant’s counsel objected to this testimony on the basis that the new 

charges had been nolle prossed. The court did not specifically rule on the 

objection but questioning regarding the new charges stopped. Following the 

hearing, the court revoked the IP sentence and imposed an aggregate term 

of 18 to 42 months’ imprisonment. 

On appeal, the appellant challenged the revocation of his county IP 

sentence and the facts relied upon in fashioning a new sentence. Initially, this 
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Court noted that a revocation of a county IP sentence is equivalent to the 

revocation of probation. Id. at 397. This Court further explained that the 

appellant had preserved his challenge to the discretionary aspects of 

sentencing and raised a substantial question warranting our review, where the 

appellant had claimed the court relied on an impermissible sentencing factor

by considering charges that had since been nolle prossed. Id. at 401. 

Turning to the merits of the claim, this Court explained that the 

Commonwealth’s decision to nolle prosse charges is “quite different from an 

acquittal.” Id. at 403.

A nolle prosequi is a voluntary withdrawal by a prosecuting 

attorney of proceedings on a particular criminal bill of 

information, which at anytime in the future can be lifted 

upon appropriate motion in order to permit a revival of the 

original criminal bill or information. Since a nolle prosequi

acts neither as an acquittal nor a conviction, double 

jeopardy does not attach to the original criminal bill or 

information. 

* * *

[Here, t]he Commonwealth was not estopped from 

introducing evidence of [the appellant’s] arrest, the charges 

filed, or the factual allegations in support thereof. The 

revocation court’s consideration of this evidence was 

not only permissible, but also required before it could 

impose a sentence of total confinement. For these 

reasons, we reject [the appellant’s] assertion that the 

revocation court relied upon an impermissible factor in 

sentencing him.

Id. (emphasis added) (internal citations omitted). 

In Commonwealth v. Joe, No. 649 WDA 2019, 2020 WL 4645188 
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(Pa.Super. filed Aug. 11, 2020) (unpublished memorandum),

6

this Court 

considered a similar issue. In that case, the appellant pled guilty to possession 

of a firearm or other weapon in a court facility. The court sentenced him to 

one year of probation and imposed costs. While on probation, the 

Commonwealth charged the appellant with persons not to possess a firearm 

following a search of a house where the appellant and his girlfriend had rented 

a room. The Commonwealth then charged the appellant with a violation of 

probation for “failure to be of good behavior and comply with laws” and for 

failure to pay his costs/restitution. Id. at *1. 

On March 27, 2019, the Commonwealth nolle prossed the new charge. 

Later that same day, the appellant appeared for a violation of probation 

hearing. Although the court acknowledged the Commonwealth’s decision to 

nolle prosse the new charge, the court found that the appellant had violated 

his probation, revoked probation, and resentenced him to one year of 

probation.

On appeal, the appellant challenged the sufficiency of the evidence for 

the probation violation where the Commonwealth had nolle prossed the new 

charge. When analyzing the appellant’s first issue, this Court initially noted 

that the trial court did not find a technical violation for the appellant’s failure 

to pay restitution/costs, but only found that the appellant had committed a 

____________________________________________

6 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this 

Court filed after May 1, 2019 for their persuasive authority).
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new crime constituting a violation of his probation. 

Next, this Court clarified

that a defendant may have new charges nolle prossed and 

still have his probation revoked based upon the underlying 

conduct of those charges. Indeed, when a charge is nolle 

prossed, the Commonwealth is not prevented from pursuing 

a violation of probation if evidence is presented to 

demonstrate that a crime occurred. See [Banks, 

supra] (emphasis added). Under such circumstances, the 

Commonwealth must introduce evidence of the arrest, the 

charges filed, evidence of the conduct underlying the arrest 

and any physical evidence. Id. 

Id. (internal footnote omitted).

Nevertheless, in Joe, the Commonwealth presented no evidence at all 

at the violation of probation hearing. Additionally, the Commonwealth did not 

assert any technical violation as the reason for revoking probation. Thus, the 

only evidence at the violation of probation hearing was the fact that the 

appellant had been arrested, which was insufficient on its own to revoke 

probation. Consequently, this Court held that the revocation of the appellant’s 

probation and the resentencing were improper. 

Instantly, regarding Appellant’s claim of insufficient notice constituting 

a denial of his due process rights, the trial court stated: 

Gagnon I and II notices and reports had been formally 

issued and admittedly received. No objection had been 

raised by the defense concerning notification. This [c]ourt 

also issued formal written Orders that had notified well in 

advance all parties through their respective attorneys of 

their respective duties and the conditions upon which the 

hearings would be conducted well in advance of the full 

evidentiary hearings. 
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(Trial Court Opinion at 13-14). 

Our review of the record supports the court’s statements. The record 

shows that on May 16, 2020, the probation department filed a Gagnon I

summary listing Appellant’s potential direct violations of probation based on 

the new charges incurred on May 14, 2020. The summary also detailed the 

technical violation of Appellant’s failure to report since October 21, 2019. The 

probation department lodged a Gagnon II summary on May 29, 2020, 

reiterating the allegations of the Gagnon I summary. The Gagnon II

summary recommended that the court continue the violation of probation 

hearing pending resolution of the new charges.7 The probation department 

subsequently lodged another Gagnon II summary, adding that Appellant had 

failed to pay court costs, fines, supervision fees, and restitution. 

The parties appeared before the court on June 18, 2020. At that time, 

the court discussed Appellant’s new charges. Appellant objected to 

proceeding to a violation of probation hearing before resolution of the new 

charges, and the court overruled the objection. (See N.T. Hearing, 6/18/20, 

at 30). The court stated that it would set a future date for a full violation of 

probation hearing, at which time the Commonwealth could present testimony 

from the officers who observed Appellant’s conduct on May 14, 2020. The 

____________________________________________

7 As we discuss infra, the court possesses the ultimate authority to decide 

whether to proceed on the violation of probation hearing prior to disposition 

of new charges, regardless of the Commonwealth’s position on this issue.
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court scheduled this hearing for September 24, 2020, giving Appellant ample 

time to prepare for the hearing. Appellant does not dispute that he received 

discovery in advance of the hearing, and the record makes clear that he had 

an opportunity to cross-examine the Commonwealth’s witness at the 

September 24, 2020 hearing. Thus, we cannot agree that Appellant was 

denied due process or that there was any failure to comply with the relevant 

rules of criminal procedure.8 See Pa.R.Crim.P. 708(A); Kates, supra.

Additionally, we reject Appellant’s suggestion that the court was 

required to defer the violation of probation proceeding until resolution of the 

new charges. As our Supreme Court made clear in Mayfield, it is the court—

not the Commonwealth—that has the inherent authority to revoke probation. 

See Mayfield, supra; Parson, supra. Thus, notwithstanding the preference

for deferring violation of probation hearings (see Infante, supra), it was not 

up to Appellant or the Commonwealth to make that decision, and the trial 

court acted within its authority in declining to defer the violation of probation 

proceeding. See Mayfield, supra; Parson, supra. 

We further reject Appellant’s suggestion that the Commonwealth’s 

____________________________________________

8 To the extent Appellant alleges a due process violation based on the 

Commonwealth’s failure to provide written notice that it would proceed with 

the violation of probation hearing before resolution of his new charges, our 

Supreme Court’s decision in Kates did not mandate such written notice, and 

Appellant cites no other authority in support of that claim. See Kates, supra. 

Moreover, as discussed, the court notified Appellant three months in advance 

that it planned to proceed with the violation of probation hearing before 

disposition of the new charges.
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decision to nolle prosse the new charges has the same effect as an acquittal. 

As this Court made clear in Banks, such a procedural posture is “quite 

different from an acquittal.”9 See Banks, supra at 403. Thus, no relief is 

due on these issues.

In his remaining claims, Appellant argues that the revocation sentence 

was excessive where the court considered an impermissible fact at sentencing, 

namely, the facts giving rise to his May 2020 charges, which were later nolle 

prossed. Appellant contends the court focused only on Appellant’s prior 

history of arrests, convictions, and violations of parole, and ignored 

substantial mitigating evidence. (See Appellant’s Brief at 17-20). Appellant 

insists the court imposed an unduly harsh sentence based on allegations of 

Appellant’s new charges which were non-violent in nature and subsequently 

withdrawn. These arguments implicate the discretionary aspects of 

____________________________________________

9 Appellant relies heavily on this Court’s decision in Commonwealth v. 

Giliam, 233 A.3d 863 (Pa.Super. 2020), involving circumstances where the 

trial court had revoked probation based on new charges of which the 

defendant was ultimately acquitted. This Court held that “because [the 

appellant’s] violation of probation was based solely on allegations of new 

criminal charges for which he was later acquitted, ultimately, no violation of 

probation occurred. Consequently, we conclude [the appellant’s] probation 

revocation sentence is void.” Id. at 868. Further, this Court noted that “[t]he 

instant case exemplifies why, as a practical matter, the appellate courts have 

cautioned against proceeding with a probation violation hearing before the 

trial on new charges where, as here, the new charges are the sole basis for 

the alleged probation violation.” Id. at 869. Nevertheless, Appellant’s 

reliance on Giliam is misplaced because: (1) that case involved an acquittal, 

not the Commonwealth’s decision to nolle prosse charges; and (2) the new 

charges in Giliam had formed the sole basis for the alleged probation 

violation, whereas here, Appellant had committed technical violations as well. 
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sentencing. 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Watson, 228 A.3d 

928, 935 (Pa.Super. 2020). Prior to reaching the merits of a discretionary 

aspect of sentencing issue:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal...; (2) whether 

the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence...; (3) whether 

appellant’s brief has a fatal defect...; and (4) whether there 

is a substantial question that the sentence appealed from is 

not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 

9781(b). 

Id. (quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), 

appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke this Court’s jurisdiction by including in his brief a separate concise 

statement demonstrating a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an 

appellant separately set forth the reasons relied upon for allowance of appeal 

furthers the purpose evident in the Sentencing Code as a whole of limiting any 

challenges to the trial court’s evaluation of the multitude of factors impinging 

on the sentencing decision to exceptional cases.” Commonwealth v. 

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (emphasis in original) (internal 
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quotation marks omitted). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 2015)

(internal citation omitted). A claim that the court relied on impermissible 

sentencing factors raises a substantial question warranting review. 

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003). See 

also Banks, supra.

Here, Appellant timely filed a notice of appeal nunc pro tunc following 

reinstatement of his appellate rights, preserved his sentencing claims in a 

timely-filed motion for modification of sentence, and he included a Rule 

2119(f) statement in his brief on appeal. Additionally, Appellant’s claim that 

the court erroneously relied on the new charges which were later nolle prossed

when imposing the revocation sentence presents a substantial question for 

our review. See Banks, supra; Simpson, supra. 

Turning to the merits of this claim, however, we cannot agree with 

Appellant that the court’s reliance at sentencing on the new charges was 

improper. Rather, “[t]he Commonwealth was not estopped from introducing 
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evidence of [Appellant’s] arrest, the charges filed, or the factual allegations in 

support thereof. The revocation court’s consideration of this evidence was not 

only permissible, but also required before it could impose a sentence of total 

confinement.” Banks, supra at 403. 

At the September 24, 2020 violation of probation hearing, Appellant 

initially conceded the technical violation of failing to report since October 21, 

2019. Over Appellant’s objection,10 the Commonwealth then introduced 

testimony from Officer Joseph Marano. Officer Marano testified that he was 

on duty with Officer Bill Bittner on May 14, 2020. At approximately 3:00 a.m., 

the officers received a radio call to 4117 Ludlow Street in Philadelphia based 

on two individuals pulling on door handles inside a secured, fenced-in parking 

lot. Officer Marano observed a ladder propped up against the back fence of 

the parking lot. Officer Marano saw Appellant crouched down in the yard 

adjacent to the parking lot. Appellant was approximately 15 feet away from 

the ladder. Officer Marano also observed a silver Toyota Prius that appeared 

to be on a jack in the parking lot, raised higher than the other vehicles. Officer 

Marano heard from another officer that a reciprocating saw was recovered at 

the scene. Other than responding police, an off-site security guard, Appellant 

and his co-defendant, there was no one else at the scene. When Officer 

____________________________________________

10 Appellant renewed his objection to proceeding to the violation of probation 

hearing prior to disposition of the new charges. The court again overruled the 

objection.
J-S40044-22

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Marano tried to apprehend Appellant, Appellant fled. Officer Marano 

ultimately apprehended Appellant. The Commonwealth also introduced 

evidence of photographs from the crime scene depicting the ladder against 

the fence and the Toyota Prius that appeared to be raised on a jack. (See

N.T. Hearing, 9/24/20, at 23-51). Thus, the record shows the Commonwealth 

properly introduced evidence of Appellant’s arrest, the charges filed, 

Appellant’s conduct underlying the arrest, and physical evidence, which the 

court was free to analyze when making its revocation sentencing decision. 

See Banks, supra. Compare Joe, supra.

11

Regarding Appellant’s claim that the court imposed an excessive 

sentence without consideration of mitigating factors,12 this Court has held that 

“an excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question.” Swope, 

supra at 339 (internal citation omitted). Thus, we will consider the merits of 

____________________________________________

11 We recognize that in Banks, supra and Joe, supra the Commonwealth 

nolle prossed the new charges before those appellants had proceeded to their 

violation of probation hearings, whereas in this case, the Commonwealth nolle 

prossed the new charges after the violation of the probation hearing. We 

view this as a distinction without a difference as it pertains to our analysis of 

this case. 

12 Appellant also claims the sentence was excessive based solely on his 

technical violations. Appellant bases this argument on the premise that the 

court erroneously considered his new charges. Because we have concluded 

that the court was permitted to consider the new charges, we need not 

address Appellant’s argument concerning whether the sentence was excessive 

based only on technical violations of probation.
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this claim as well.

We observe that “upon revocation [of probation] the sentencing 

alternatives available to the court shall be the same as were available at the 

time of initial sentencing.” Commonwealth v. Wallace, 582 Pa. 234, 241,

870 A.2d 838, 842-43 (2005) (internal citation omitted). See also 42 

Pa.C.S.A. § 9771(b). Nevertheless, we reiterate that the court shall not 

impose a sentence of total confinement upon revocation unless it finds that:

“(1) the defendant has been convicted of another crime; or (2) the conduct of 

the defendant indicates that it is likely that he will commit another crime if he 

is not imprisoned; or (3) such a sentence is essential to vindicate the authority 

of the court.” 42 Pa.C.S.A. § 9771(c). 

Instantly, the court explained its sentencing rationale as follows:

Here, this [c]ourt’s comprehensive analysis of Appellant’s 

repeated conduct directly addressed the ineffectiveness of 

the previously directed community-based probationary 

supervision. Appellant’s original guilty pleas that he had 

entered in each of the four subject cases, had included 

admissions to criminal conduct that had occurred while he

had been under other prior court-ordered probationary 

periods. The entry of the guilty pleas thus triggered 

commensurate re-entry of this [c]ourt’s supervision and 

imposition of rehabilitative conditions.... 

Thereafter, not surprisingly, Appellant had stopped 

reporting and then completely absconded from supervision. 

Once again, no payment of any of the relatively minimal 

amounts of restitution that had been due to any of his 

victims had been made. No fines or costs had been paid. 

No rehabilitative conditions had been met. No courtdirected vocational training, no legitimate employment, and 

no drug or alcohol treatment had occurred. Appellant’s 

assigned county of Philadelphia probation officer once again 
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had issued bench warrant cards due to his disappearance 

from our county. In the interim, Appellant had also 

apparently fled to Shenandoah Pennsylvania where he had 

caused law enforcement authorities to issue warrants for his 

arrest and apprehension. ...

Appellant’s next appearance before this [c]ourt had 

occurred only because of his apprehension and arrest...on 

May 14, 2020. Specifically, the credible and compelling 

evidence that had been introduced via testimony from the 

responding police officer and related physical evidence 

including photographs of the scene, unequivocally proved 

that Appellant and his associate had entered a locked and 

fenced-in parking lot owned by Elwyn Institute, Inc. at 4040 

Ludlow Street, Philadelphia PA in the wee hours of the 

morning with the intent to steal catalytic converters from 

multiple contained parked vehicles. 

These two males had been well-prepared for their criminal 

enterprise. They had been equipped with the tools of the 

trade including a police radio scanner, reciprocating saw and 

high ladder and a vehicle to enable escape. Unfortunately 

for them, the police officers that had responded had been 

faster sprinters. Not surprisingly, Appellant’s first reaction 

to the appearance of law enforcement was to scale a wall 

and flee across a neighboring rooftop as part of his ongoing 

effort to evade capture. 

This [c]ourt noted that Appellant’s extensive criminal history 

had been replete with similar evasive tactics while under 

court-ordered supervision with reappearance only after 

apprehension and detention with new criminal charges 

stemming mostly from repeated thefts. Thus, as announced 

on the record, although the technical violations had been 

sufficient to warrant revocation, this [c]ourt deemed the 

circumstances of his new arrest to be relevant at the very 

least to evaluate his most recent mindset and his future 

likelihood of compliance with the terms of community-based 

non-custodial probation.

(Trial Court Opinion at 16-18). Thus, the court concluded: “The circumstances 

surrounding Appellant’s 2020 arrest...undoubtedly illuminated Appellant’s 
J-S40044-22

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likelihood that he would commit future crimes unless incarcerated.” (Id. at 

18). 

On this record, we cannot say that the court abused its sentencing 

discretion upon revocation of Appellant’s probation. See Colon, supra. The 

court provided ample reasons for its finding that Appellant’s conduct indicated 

that it was likely he would commit another crime if not imprisoned to warrant 

imposition of a sentence of confinement upon revocation. See 42 Pa.C.S.A. 

§ 9771(c). Further, the court had the benefit of a PSI report, so we can 

“presume that the trial court was aware of relevant information regarding 

[Appellant’s] character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Bonner, 135 A.3d 592, 

605 (Pa.Super. 2016), appeal denied, 636 Pa. 657, 145 A.3d 161 (2016). 

The court also reviewed a letter from Appellant’s former employer 

stating that the employer would like to have Appellant back at work. (See 

N.T. Hearing, 9/24/20, at 52). The court made clear it considered the PSI 

report, mental health assessments, letters of recommendation on behalf of 

Appellant, along with attached family photographs. (See N.T. Hearing, 

2/19/21, at 6-7). The court also heard testimony from Jessica Rogers, 

Appellant’s girlfriend who is the mother of Appellant’s daughter, about his 

positive contributions to her life and the hardship she and her children have 

endured since Appellant has been incarcerated. (See id. at 8-24). Defense 

counsel further informed the court that Appellant’s mother had passed away 
J-S40044-22

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while he was incarcerated and that Ms. Rogers’ bother, who was like a brotherin-law to Appellant, had also passed away. (Id. at 27). Therefore, the record 

demonstrates that the court considered the mitigating evidence presented by 

Appellant but imposed a sentence of total confinement based on Appellant’s 

likelihood to reoffend. 

Notwithstanding our disposition that none of Appellant’s issues raised 

on appeal merits relief, our review of the record discloses that the 

probationary portion of Appellant’s sentence is illegal. An appellate court can 

raise and address an issue concerning the legality of sentencing sua sponte, 

assuming proper jurisdiction. Commonwealth v. Thorne, ___ Pa. ___, 276 

A.3d 1192 (2020). “Issues relating to the legality of a sentence are questions 

of law[.] Our standard of review over such questions is de novo and our scope 

of review is plenary.” Commonwealth v. Hawkins, 45 A.3d 1123, 1130 

(Pa.Super. 2012), appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (internal 

citation omitted).

Instantly, the court imposed the following original sentences in this case 

on April 16, 2015 relevant to the four dockets challenged on appeal: at docket 

12397-2014, 11⁄2 to 4 years’ imprisonment for RSP and a consecutive 4 years’ 

probation for conspiracy, plus restitution of $830.00. At docket 12400-2014, 

11⁄2 to 4 years’ imprisonment for PIC and a consecutive 4 years’ probation for 

conspiracy. At docket 12401-2014, 11⁄2 to 4 years’ imprisonment for RSP and 

a consecutive 4 years’ probation for conspiracy. At docket 12402-2014, 11⁄2 
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to 4 years’ imprisonment for RSP and a consecutive 4 years’ probation for 

conspiracy, plus restitution of $600.00. The court imposed each docket 

concurrently, for an aggregate sentence of 11⁄2 to 4 years’ imprisonment, plus 

4 years’ probation. (See N.T. Hearing, 4/16/15, at 16-20). (See also 

Sentencing Order, 4/16/15, at each underlying docket). According to the 

sentencing orders, the sentences would begin on April 16, 2015. (See id.)

Appellant absconded on October 21, 2019, which Appellant stipulated to 

as a technical violation of his supervision. Assuming that Appellant began 

serving the confinement portion of his sentences on April 16, 2015 as set forth 

in the respective sentencing orders, then Appellant would have completed the 

terms of his imprisonment sentences when he absconded, and he would have 

been on probation for his conspiracy convictions at that time. As well, 

Appellant would have been serving the probationary portion of his sentences 

when he incurred charges for the new offenses on May 14, 2020. 

On February 19, 2021, the court imposed the following revocation 

sentences: At docket 12397-2014, 21⁄2 to 5 years’ imprisonment for conspiracy

and a consecutive 1 year of probation for RSP. At docket 12400-2014, 21⁄2 to 

5 years’ imprisonment for conspiracy and a consecutive term of 1 year of 

probation for PIC. At docket 12401-2014, 21⁄2 to 5 years’ imprisonment for 

conspiracy and a consecutive 1 year of probation for RSP. At docket 12402-

2014, 21⁄2 to 5 years’ imprisonment for conspiracy and a consecutive 1 year 
J-S40044-22

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of probation for RSP.

13

 (See N.T. Sentencing, 2/19/21, at 55-59). The court 

imposed the confinement portions of the sentences at dockets 12400-2014

and 12401-2014 consecutively, for an aggregate term of 5 to 10 years’ 

imprisonment, plus 4 years’ probation at these four dockets. (See Trial Court 

Opinion at 6-7). The court also resentenced Appellant to pay the original 

amounts of restitution. 

The problem with this sentencing scheme, however, is that the court 

resentenced Appellant on each of the RSP convictions and the PIC conviction 

even though Appellant had already finished serving those sentences. Notably, 

the court had not imposed probationary tails on any of those counts such that 

the court would have had authority to revoke probation and resentence 

Appellant for those crimes. Rather, the April 16, 2015 sentencing orders make 

clear that the court imposed straight terms of imprisonment on those counts.14 

Because Appellant had already finished serving those terms of imprisonment

when he violated the terms of his supervision, the court could not resentence 

Appellant for those offenses. Thus, the probationary terms imposed at each 

____________________________________________

13 The court also imposed a term of 5 years’ probation at docket 479-2014, 

which is not challenged in this appeal. The court imposed all probationary 

terms concurrent to one another but consecutive to the confinement. (See 

Trial Court Opinion at 7).

14 In other words, the court did not originally impose “split sentences” for the 

RSP or PIC convictions. See, e.g., Commonwealth v. Crump, 995 A.2d 

1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010)

(explaining that split sentence is where court imposes term of incarceration 

followed by term of probation for conviction). 
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of the above-captioned dockets are illegal and we must vacate and remand 

for resentencing. See Commonwealth v. Bartrug, 732 A.2d 1287 

(Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999)

(explaining that illegal sentence must be corrected; if trial court errs in its 

sentence on one count in multi-count case, then all sentences for all counts 

will be vacated so that court can restructure its entire sentencing scheme).15 

Accordingly, Appellant’s issues on appeal merit no relief, but we vacate the 

probationary portion of Appellant’s revocation sentences and remand for 

resentencing.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2023

____________________________________________

15 We recognize that due to the five-year probation sentence at docket 479-

2014 (not on appeal), the aggregate sentence for the above-captioned 

dockets and that docket remains the same. Nevertheless, the best resolution 

is to vacate and remand for resentencing so the court can restructure the 

sentences for the dockets at issue in this appeal as it sees fit.