J-S17019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES FLETCHER

Appellant No. 3065 EDA 2015

Appeal from the Judgment of Sentence entered September 9, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0002618-2011

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2017

Appellant, James Fletcher, appeals from the September 9, 2015 

judgment of sentence imposed after the revocation of Appellant’s parole. 

We vacate and remand. 

The record reveals that, on December 17, 2010, Appellant was 

arrested and charged with possession with intent to deliver (“PWID”) a 

controlled substance (35 P.S. § 780-113(a)(30)). On February 29, 2012, 

the trial court sentenced Appellant to one to two years of incarceration 

followed by five years of probation in accord with the parties’ negotiated plea 

agreement. On June 27, 2015, while Appellant was serving his term of 

probation, he was arrested for theft and related offenses. Those charges 

were eventually dismissed, but the trial court conducted a hearing on 

September 19, 2015, to address two technical violations—a positive drug 
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test and failure to perform community service. At the conclusion of that 

hearing, the trial court revoked Appellant’s probation and imposed a 

sentence of six to twenty-three months of incarceration followed by four 

years of probation. Appellant raises three issues on appeal, which we have 

reordered for purposes of analysis: 

1 Did not the lower court err by revoking Appellant’s 

probation where the evidence was legally insufficient 

to find him in technical violation by a preponderance 

of the evidence, where it relied on inadmissible 

hearsay, and where it denied Appellant the 

opportunity to present a defense? 

2 Did not the lower court violate Appellant’s right to 

allocution, requiring a new sentencing hearing? 

3 Did not the sentencing court violate the 

requirements of [42 Pa.C.S.A. § 9771(c)] when, 

after revoking his probation, it sentenced Appellant 

to a period of total confinement where: i) he had 

not been convicted of a new crime, ii)the record did 

not demonstrate any likelihood that he would commit 

a new crime if not incarcerated, and iii) incarceration 

was not essential to vindicate the authority of the 

court? 

Appellant’s Brief at 3. 

Appellant first argues the evidence was insufficient to find him in 

violation of his probation. At a probation revocation hearing, the 

Commonwealth must demonstrate a violation based on evidence containing 

“probative value.” Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. 

Super. 2001). Unlike a criminal trial, the Commonwealth need not prove its 
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case beyond a reasonable doubt. Id. at 350. The Commonwealth need only 

prove by a preponderance of the evidence that a violation occurred. Id. 

The instant record reveals that Appellant failed a drug test. N.T. 

Hearing, 9/9/15, at 6. In addition, Appellant was unable to provide his 

probation officer with proof that he performed any community service. Id.

at 5. Appellant was required to perform 100 hours per year of community 

services as a condition of his probation. Id. These facts are more than 

sufficient to establish, by a preponderance of the evidence, that Appellant 

violated technical conditions of his probation. 

Next, Appellant argues that he is entitled to a new sentencing hearing 

because the trial court did not afford him his right of allocution at the 

sentencing hearing. The Rules of Criminal Procedure guarantee a defendant 

the right to make a statement at his revocation hearing: “At the time of 

sentencing, the judge shall afford the defendant the opportunity to make a 

statement in his or her behalf and shall afford counsel for both parties the 

opportunity to present information and argument relative to sentencing.” 

Pa.R.Crim.P. 708(D)(1). Our Supreme Court has ruled that a trial court 

must inform a defendant of his right to speak prior to sentencing. 

Commonwealth v. Thomas, 553 A.2d 913, 919 (Pa. 1989). Failure to do 

so requires a new sentencing hearing. Id. 

The trial court concedes that it failed to inform Appellant of his right to 

speak on his own behalf. Trial Court Opinion, 7/7/16, at 5-6. The court also 
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concedes that Appellant preserved the issue in a timely post-sentence 

motion. Id. at 6.1 We will therefore vacate the judgment of sentence and 

remand for a new hearing. Given our decision, we will not address 

Appellant’s challenge to the discretionary aspects of the trial court’s 

sentence. 

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/2017

____________________________________________

1

 The Commonwealth argues that Appellant waived this issue for failing to 

raise it in a post-sentence motion. It appears that the local prothonotary 

initially misfiled Appellant’s timely post-sentence motion. The trial court 

eventually received Appellant’s motion, and the court concedes the validity 

of Appellant’s argument. We therefore decline to find the issue waived.