J-S06024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMAL PRESSLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1615 EDA 2021

Appeal from the Judgment of Sentence Entered July 20, 2021

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001532-2018

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

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 2, 2022

Jamal Pressley appeals from the judgment of sentence entered following 

a finding that he violated probation. Pressley argues the evidence did not 

support a finding that he violated probation because the trial court did not 

inform him of the specific conditions of probation at the time of sentencing. 

We affirm the judgment of sentence. 

In December 2018, Pressley pled guilty to firearms not to be carried 

without a license. 18 Pa.C.S.A. § 6106(a)(1). The trial court sentenced him to 

three to 23 months’ incarceration and three years’ reporting probation. At the 

sentencing, the court stated: “There will be a three year probation consecutive 

to the parole. He will forfeit the firearm. He’ll pay the costs. He will comply 

with any special conditions of probation and parole.” N.T., 12/27/18, at 8. The 

sentencing order provided, among other things, that Pressley “shall comply 

with any special conditions of probation . . . imposed by the Montgomery 
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County Adult Probation . . . Dept. or the PA Board of Probation and Parole” 

and that “Defendant shall pay the monthly offender supervision fee.” 

Trial/Plea/Sentence, dated Dec. 27, 2018.

In May 2021, the Montgomery County Probation Department issued to 

Pressley a Notice of Violation, listing three alleged violations: 1) Pressley was 

arrested in April 2021 in Philadelphia for possessing a controlled substance, 

driving under the influence, and other offenses; 2) Pressley failed to abstain 

from the unlawful possession, use or sale of narcotics or other dangerous 

drugs and drug paraphernalia; 3) Pressley failed to pay fines, costs and/or 

restitution. In July 2021, the court held a Gagnon II1 hearing, where Pressley 

stipulated that he violated probation based on count one, his arrest on new 

charges, and count 3, failure to pay fines and/or costs. The trial court revoked 

probation. The trial court imposed an aggregate sentence of time served to 

12 months of imprisonment followed by one year of probation. Pressley filed 

a timely Notice of Appeal.

Pressley raises the following issues:

I. Was the sentence imposed by the [c]ourt on July 20, 2021 

an illegal sentence since the Commonwealth failed to 

present evidence of the actual terms and conditions of 

defendant’s probation and parole as required by 

Com[monwealth] v. Koger, [255 A.3d 1285 (Pa.Super. 

2021); failed to establish a violation of a specific condition 

of probation as required by Koger; and failed to establish a 

new criminal conviction for defendant?

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1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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II. Was the evidence at the July 20, 2021 Gagnon II

hearing insufficient to establish a Gagnon violation since 

the Commonwealth failed to present evidence of the actual 

terms and conditions of defendant’s probation and parole as 

required by Com[monwealth] v. Koger, [255 A.3d 1285 

(Pa.Super. 2021); failed to establish a violation of a specific 

condition of probation as required by Koger; and failed to 

establish a new criminal conviction for defendant?

Pressley’s Br. at 3. We will address Pressley’s claims together.

Pressley argues his sentence is illegal because the Commonwealth failed 

to present evidence of the actual terms and conditions of probation and parole 

or evidence he violated a specific condition of probation. Pressley relies on 

Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), to argue that 

revocation of probation is not proper unless the Commonwealth established 

the defendant violated a specific condition of probation. Further, he relies on 

Commonwealth v. Koger, 255 A.3d 1285 (Pa.Super. 2021), to argue that if 

a trial court does not advise a defendant of the conditions of probation or 

parole at sentencing, the Commonwealth cannot prove a defendant violated 

the condition. Pressley maintains that his stipulation to the arrest and violation 

does not make the sentence legal, as the violation cannot stand if the court 

lacked the authority to impose the sentence. He maintains the Commonwealth 

failed to present evidence of the terms and conditions of Pressley’s probation

and therefore could not establish a violation. He argues that an “arrest alone 

does not provide a valid basis for revocation.” Pressley’s Br. at 17. 

In Foster, the Pennsylvania Supreme Court concluded a court may find 

a defendant in violation of probation only where it finds, “based on the 
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preponderance of the evidence, that the probationer violated a specific 

condition of probation or committed a new crime.” 214 A.3d at 1243

(emphasis added). In Koger, we concluded that because the trial court did 

not impose at sentencing any specific probation or parole conditions, the court 

could not subsequently find the defendant violated a specific condition of his 

probation or parole. 255 A.3d at 1291. There, the trial court did not advise 

the defendant at the time of sentencing of the conditions of his probation. 

Rather, a probation officer explained the rules, regulations, and conditions 

immediately after sentencing. This Court concluded the trial court erred in 

failing to specifically advise the defendant of the conditions of his probation at 

the time of his initial sentencing. Id. at 1290.2

Here, the court found Pressley violated probation based on a failure to 

pay fines and costs and the arrest for new criminal conduct. At the original 

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2 The Court in Foster stated that:

[Section 9754(b) of the Sentencing Code] requires that 

[t]he court shall attach such of the reasonable conditions 

authorized by subsection (c) of this section as it deems 

necessary to insure or assist the defendant in leading a lawabiding life. 42 Pa.C.S. § 9754(b) (emphasis added). The 

failure to do so is a violation of this statutory mandate. While 

this Court has recognized that probation officers may, 

consistent with their statutory authority, impose specific 

conditions of supervision pertaining to the defendant's 

probation, see 61 Pa.C.S. §§ 6131(a)(5)(ii), 6151, any

supervision conditions imposed must be in furtherance of 

the trial court's conditions of probation.

Foster, 214 A.3d at 1244 n.5 (quotation marks & some citations omitted).
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sentencing, the trial court informed Pressley that he had to pay costs. Because

it informed Pressley of the requirement to pay costs, it did not err in finding

that he violated probation when he failed to pay. Further, as the Supreme 

Court in Foster made clear, a court may find a violation based on new criminal 

conduct. Here, Pressley was arrested for new criminal conduct. He stipulated

that he violated probation due to the arrest on new criminal charges. The court 

did not err in finding Pressley violated probation based on the new criminal 

conduct. 

To the extent Pressley argues that the court could find a violation only 

with proof of a criminal conviction, we disagree. At a probation hearing, a 

court applies a preponderance of the evidence standard to determine whether 

a violation occurred. Foster, 214 A.3d at 1244 n.4. A court may delay a 

probation violation hearing until after the trial outcome on the new charges. 

Commonwealth v. Giliam, 233 A.3d 863, 868 (Pa.Super. 2020). Further, if 

a violation of probation is based on allegations of new criminal charges for 

which the defendant later is acquitted, the probation violation is void. Id.

However, there is no requirement that the court must wait for the trial 

outcome of the new charges. Id. at 869 (noting it is preferable to defer a 

violation of probation hearing until resolution of the new charges, but such 

deferral is not required). Rather, the court can proceed on the probation 

violation prior to the criminal trial. Here, Pressley stipulated that he was 

arrested for new criminal conduct. He did not seek to delay the probation 

hearing until an outcome of any trial and there is nothing in the record to 
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establish he was acquitted of charges related to the new conduct. It was not 

error for the court to conclude, based on Pressley’s stipulation, that Pressley 

violated probation by engaging in new criminal conduct. 

Similarly, we reject Pressley’s argument that his revocation was based 

solely on an arrest. Probation may not be revoked based on an arrest unless

there is additional evidence of facts to support the new charges. See 

Commonwealth v. Moriarty, 180 A.3d 1279, 1286 (Pa.Super. 2018). Here, 

the violation was not based solely on the arrest. Rather, it was based on 

Pressley’s stipulation that he violated probation by being arrested for new 

criminal charges.

Judgment of sentence affirmed.

Judge King joins the memorandum.

Judge Kunselman files a dissenting memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2022